EMPLOYMENT
AGREEMENT
THIS EMPLOYMENT AGREEMENT (this
"Agreement") is made as of January ___, 2009, by and between My
Screen Mobile, Inc., a Delaware corporation ("Company"), and
Maurizio Angelone, an individual ("Employee" ).
RECITALS
A. Company
is engaged in the business of developing and commercializing, on a
global basis, technology that provides direct incentive-based
advertising to mobile telephone users (the "Business" ), and
is seeking a Chief Executive Officer with experience in the global
telecommunications industry.
B. Employee
has experience in the telecommunications business on a global
basis.
C. The
parties are willing to enter into this Agreement with respect to
Employee's employment and services upon the terms and conditions
hereinafter set forth.
AGREEMENT
In consideration of the foregoing
recitals and the premises herein contained, the parties agree as
follows:
I.
TERM
Subject to the provisions of Article
V hereof, Company hereby employs Employee and Employee hereby
accepts employment with Company for a period of three (3) years
(the "Initial Term"). The Initial Term shall commence on the
date on which Employee's employment with his current employer
terminates, which date shall be confirmed in writing by written
letter from Employee to the Company (the "Commencement
Date"); provided, however, if the Initial Term has not
commenced within 100 days from the "Approval Date" (as hereinafter
defined), then this Agreement shall automatically terminate and
neither party shall have any liability to the other party
hereunder, except Employee shall immediately return any portion of
the Signing Bonus paid by Company and reimburse Company for all
expenses paid to, or on behalf of Employee, under Article III,
Section 8 of this Agreement Employee shall use his good faith
efforts to relocate to Miami as soon as possible after the
Commencement Date, however, shall complete such relocation no later
than 90 days after the Commencement Date. For purposes of this
Agreement, the term "Approval Date" shall mean the date the Company
confirms in writing to Employee (and provides reasonable
documentation evidencing such approval) that this Agreement,
including, without limitation, the grant and issuance of all of the
equity incentive compensation set forth below, has been authorized
and approved in accordance with all requisite corporate action,
including the requisite approval from a majority of the
stockholders of the Company, all in accordance with applicable law
and the articles of incorporation, bylaws and all other documents
governing the Company, except for the formal establishment of the
Plans and required filings with the SEC of Information Statements,
Proxy Statements or other such filings required in connection with
the Plans or the equity grants.
II.
DUTIES
1.
General
Duties. Unless otherwise directed by the Board of Directors of
Company (the "Board of Directors"), and subject to its
policies and directives, Employee shall serve as the Chief
Executive Officer of Company, manage the day to day global
operations of Company and perform all duties customarily performed
by the chief executive officer of a US publicly traded company of
similar size, market capitalization and in a similar industry as
the Company. Employee shall serve at the direction of the Board of
Directors of Company (the "Board of Directors"), subject to
its policies and directives (provided that the Company hereby
represents and warrants that no written policies or directives
exist as of the date hereof, it being the intention of the parties
that Employee, as a member of the Board of Directors and together
with the other members of the Board of Directors, will help shape
and set forth the strategies, policies and directives for the
Company on a going-forward basis). Employee shall work from the
Company's world headquarters, which Company shall establish in
Miami, Florida, to where Employee shall relocate.
2.
Devotion of Time to Company's
Business. Employee agrees during the Term, to devote his best
efforts, and all of his business time exclusively, to his
employment with Company, and to perform such duties as shall be
reasonably requested by the Board of Directors of Company. Employee
shall riot, during Employee's employment, unless otherwise agreed
to in advance and in writing by Company, seek or accept other
employment, become self-employed in any other capacity, or engage
in any activities that are detrimental to the business of
Company.
III.
COMPENSATION AND
BENEFITS
As compensation for Employee's
services hereunder, the covenant-not-to-compete contained in
Article VI of this Agreement (the
"Covenant-Not-to-Compete"), and the other covenants and
promises made by Employee hereunder, Company agrees to the
following:
1.
Base Salary. During the Term,
Employee shall receive an annual base salary of
$350,000.00. The base salary shall
be payable in U.S. Dollars at the times and in the installments
consistent with Company's customary payroll practices. Company
shall withhold federal and state taxes in accordance with
applicable law.
2.
Signing Bonus. Company shall
pay Employee a signing bonus of $300,000 (the "Signing
Bonus" ), which Signing Bonus shall be payable in three equal
installments of $100,000 each. The first installment of the Signing
Bonus shall be paid within three (3) calendar days after both
parties have executed this Agreement (the "Effective Date"
); the second installment shall be paid within three (3) calendar
days after the Commencement Date; and the third installment shall
be paid within ninety (90) calendar days after the Commencement
Date. If Employee terminates this Agreement, without cause, or if
Company terminates this Agreement for "Cause" (as hereinafter
defined), prior to the date any installment of the Signing Bonus is
due under this Section, Company shall not be obligated to pay the
remaining installments to Employee. In addition, if within one (1)
year after the Commencement Date, Employee terminates this
Agreement, without cause, or Company terminates this Agreement for
Cause, Employee agrees to, within thirty (30) days after such
termination, repay Company a pro rata portion of the Signing Bonus
calculated by multiplying: (A) the portion of the Signing Bonus
actually paid to Employee; times (B) a fraction, the numerator of
which is (i) 365 minus the number of days between the Commencement
Date and the date of Employee's termination, and the denominator of
which is (ii) 365. (By way of example, if Employee has received the
entire Signing Bonus and Employee is terminated by the Company for
Cause after having been employed by the Company for 250 days from
the Commencement Date, then the portion of the Signing Bonus to be
paid back by Employee would be $96,000, calculated by reference to
the foregoing formula as: $300,000 x ((365-250) / 365) =
$96,000).
3.
Cash Incentive Bonus. During each
twelve (12) month period of the Term, Employee shall be eligible to
receive a cash bonus of up to $350,000 based on the achievement of
milestones to be mutually agreed upon by the Board of Directors and
Employee, in good faith, within thirty (30) days after the
commencement of each such twelve month period. Such milestones
shall generally be based on some objective performance standards
such as revenues or profitability of the Company that are
reasonably achievable given the Company's position in the market at
the time the milestones are discussed and agreed upon.
4.
Equity Incentive Compensation.
Company shall provide Employee with the equity incentives set forth
below, subject to one or more employee equity compensation plans
("Plans") to be established by the Company within thirty
(30) days from the Commencement Date, which Plans shall contain
customary terms and provisions as contained in Plans for similarly
situated US publicly traded companies. Within thirty (30) days
after the Commencement Date, (a) such Plans shall be established,
(b) the equity incentives required hereunder shall be granted to
Employee, and (c) the Company shall make any filing with the
Securities & Exchange Commission or other governmental
authority, including, but not limited to, a proxy statement or
information statement, required in connection with any such Plans.
In the event such Plans are not established, such equity incentives
are not granted to Employee, or said filings are not made, within
said thirty (30) day period, then Employee may provide written
notice to Company of its failure, in which case, Company shall have
30 days from its receipt of such written notice, to cure such
failure. If such failure is not cured within such 30 day period,
Employee may resign from his position with the Company and,
notwithstanding anything contained in this Agreement to the
contrary, the Company shall be responsible to immediately pay to
Employee, as agreed upon liquidated damages, the Employee's annual
base salary for the entire Initial Term, plus the entire Signing
Bonus (such a resignation shall not be deemed a termination by
Employee without cause and the provisions for Employee to return a
pro rata portion of the Signing Bonus under Section 2 of this
Article shall not be applicable.
(a)
Stock Grant. Company shall issue Employee 3,000,000 shares
of Company's common stock, par value $0.001 per share (the "Common
Stock")(the grant of all such shares of Common Stock hereinafter
collectively referred to as the "Stock Grant") upon the
Commencement Date, (i) 500,000 of which shall vest six (6) months
after the Commencement Date if Employee is still employed by
Company as of such date; (ii) 500,000 of which shall vest on the
last day of the twelfth month following the Commencement Date, if
Employee is still employed by Company as of such date; (iii)
500,000 of which shall vest on the last day of the eighteenth month
following the Commencement Date if Employee is still employed by
Company as of such date; (iv) 500,000 of which shall vest on the
last day of the twenty-fourth month following the Commencement
Date, if Employee is still employed by Company as of such
date; (v) 500,000 of which shall vest on the last day of the
thirtieth month following the Commencement Date, if Employee is
still employed by Company as of such date; and (vi) 500,000 of
which shall vest on the last day of the thirty-sixth month
following the Commencement Date, if Employee is still employed by
Company as of such date. Notwithstanding the foregoing, if Company
terminates Employee without Cause during any part of the Term, the
entire Stock Grant shall automatically vest. For purposes of
clarity, all unvested shares shall be cancelled and/or returned to
Company, if Employee's employment is terminated for Cause before
the date such shares vest. Upon the Commencement Date, Company
shall issue six (6) share certificates in the name of Employee,
each certificate representing 500,000 shares of the Company's
Common Stock. The Company shall deliver such certificates to
Company's legal counsel, who, subject to the terms and conditions
set forth herein, shall deliver one (1) certificate to Employee on
each of the vesting dates set forth above. If the Company
terminates Employee at any time during the Term without Cause, then
legal counsel shall, and is hereby directed to, immediately deliver
to Employee any of such stock certificates not previously delivered
to Employee. Upon the termination of this Agreement for any other
reason, Company's legal counsel shall cancel any such stock
certificates representing shares that have not vested as of such
termination date (provided that a termination as a result of death
or Disability shall be governed by the terms of Article V, Section
4(c) below).
(b)
Stock Option
Grant. Upon the Commencement Date, Company shall grant Employee
options to purchase an aggregate of 7,000,000 shares of Company's
Common Stock, having an exercise price of $1.00 per share (the
"Option Sharer"). The Option Shares shall vest as set forth
below, and be granted pursuant to the terms of an option agreement
which shall comply and conform with the applicable Plans, which
shall have customary terms and provisions as contained in Plans for
similarly situated US publicly traded companies. Upon a termination
of Employee's employment hereunder, for any reason, (provided that
a termination as a result of death or Disability shall be governed
by the teams of Article V, Section 4(c) below), all Option Shares
vested as of the date of termination shall remain vested and
exercisable by Employee for the time periods and in accordance with
the terms of the Plans, and all unvested Option Shares as of such
date of termination shall terminate. The Option Shares shall vest
as follows:
(i)
750,000 of the Option Shares shall vest six (6) months after the
Commencement Date if Employee is still employed by Company as of
such date.
(ii) 750,000
of the Option Shares shall vest on the last day of the twelfth
month following the Commencement Date, if Employee is still
employed by Company as of such date.
(iii) 750,000
of the Option Shares shall vest on the last day of the
twenty-fourth month following the Commencement Date, if Employee is
still employed by Company as of such date.
(iv) 750,000
of the Option Shares shall vest on the last day of the thirty-sixth
month following the Commencement Date, if Employee is still
employed by Company as of such date.
(v) 4,000,000
of the Option Shares shall vest upon the achievement of milestones
as follows:
(A)
1,000,000 Option Shares shall vest upon the Company: (i) launching
its direct, incentive-based marketing and advertising platform for
mobile devices in any country around the world, such that mobile
device users in such country begin receiving (or are eligible to
receive upon signing up for the appropriate service) advertising to
their mobile devices through the Company's advertising platform;
and (ii) generating any revenue from such launch in such country
(whether from direct fees, licensing fees, sublicense fees or
otherwise, provided, however, that license fees or sublicense fees
received from a licensing arrangement in existence prior to the
Commencement Date shall not be considered revenue for purposes of
meeting this milestone).
(B) 500,000
Option Shares shall vest upon the Company: (i) launching its
direct, incentive-based marketing and advertising platform for
mobile devices in any second country around the world, such that
mobile device users in such country begin receiving (or are
eligible to receive upon signing up for the appropriate service)
advertising to their mobile devices through the Company's
advertising platform; and (ii) generating any "Advertising
Revenue" (as hereinafter defined) from such launch in such
second country. For purposes of this Agreement, "Advertising
Revenue" shall mean My Screen's portion of revenue generated
from the delivery of advertising or marketing to mobile devices
through the Company's mobile advertising platform, but excluding
revenue generated through licensing or sublicensing
fees.
(C) 500,000
Option Shares shall vest upon the receipt by the Company of an
aggregate of $1,000,000 of Advertising Revenue.
(D) 500,000
Option Shares shall vest upon the Company: (i) launching its
direct, incentive-based marketing and advertising platform for
mobile devices in partnership with any Orascom-owned mobile
operator around the world; and (ii) generating any Advertising
Revenue from such launch in such country;
(E) 500,000
Option Shares shall vest at the end of the first fiscal quarter
during which the Company has positive Earnings Before Interest,
Taxes Depreciation and Amortization; and
(F) 1,000,000
Option Shares shall vest at the end of the first fiscal year during
which the Company has positive net annual income based on GAAP
and on an audited basis.
(c)
Adjustments. The following adjustments shall apply to any
portion of the Stock Grant that is unvested at the time of the
event described below and shall apply to the Option
Shares:
(i)
Upon Recapitalization. If the outstanding shares of Common
Stock of the Company are increased or decreased or changed into or
exchanged for a different number or kind of shares or other
securities of the Company by reason of any recapitalization,
reclassification, reorganization, stock split, reverse split,
combination of shares, exchange of shares, stock dividend or other
distribution payable in capital stock of the Company, or other
increase or decrease in such shares effected without receipt of
consideration by the Company, an appropriate and proportionate
adjustment shall be made (A) in the number and kind of shares of
Common Stock issuable to Employee as to the invested portion of the
Stock Grant; (B) in the number and kind of shares of Common Stock
issuable to Employee upon exercise of outstanding Option Shares
granted to Employee hereunder; and (C) in the Option Price per
share of outstanding Option Shares granted to Employee
hereunder.
(ii)
Reorganization. In connection with a merger, consolidation,
reorganization or other business combination of the Company with
one or more other entities in which the Company is not the
surviving entity, each then unvested Stock Grant and each then
outstanding Option Share shall, upon exercise thereafter, entitle
the holder thereof to such number of shares of Common Stock or
other securities or property to which a holder of shares of Common
Stock would have been entitled to upon such merger, consolidation,
reorganization or other business combination.
(iii)
Dissolution or Liquidation. Upon the dissolution or
liquidation of the Company, Employee shall have the right,
immediately prior to the occurrence of such dissolution or
liquidation to exercise all Option Shares, whether or not such
Option Shares were otherwise exercisable at the time such
liquidation or dissolution occurs and without regard to any vesting
or other limitation on exercise imposed under this Agreement. The
Company shall give to Employee reasonable prior written notice
before the record date of any such dissolution or liquidation in
order to give Employee a reasonable amount of time to exercise such
Option Shares, should Employee so elect.
(iv)
Fractional Shares. No fractional shares of Common Stock or
units of other securities shall be issued pursuant to any of the
adjustments set forth herein, and any fractions resulting from any
such adjustment shall be eliminated in each case by rounding upward
to the nearest whole share or unit. Any adjustment made pursuant to
this Section 4(c) shall become effective retroactive to the record
date, if any, for such event.
5.
Change of
Control.
(a) Subject
to Article V below, upon a "Change of Control" (as defined
below):
(i) Except
as set forth below, all unvested Stock Grants and Option Shares
granted pursuant to this Article III, Section 4, shall
automatically vest and be issued (in the case of the Stock Grants)
and become exercisable (in the case of the Option Shares). The
Company shall give to Employee reasonable prior written notice
before the record date of any such Change of Control event in order
to give Employee a reasonable amount of time to exercise such
Option Shares; and
(ii) Employee
shall receive the following additional compensation (payable as set
forth below) (the "Change of Control Bonus" ) if such Change
of Control results in net proceeds to Company or its stockholders,
after payments of all debts, liabilities and other outstanding
obligations of the Company (as shown in the Company's financial
statements as of the date of the Change of Control event, which
financial statements shall be prepared in accordance with GAAP,
consistently applied) ("Net Proceeds" ), of more than
$250,000,000:
(A) One
Percent (1%) of any Net Proceeds between $250,000,000 and
$500,000,000, received by Company or its stockholders;
(B) One
and One-Half Percent (1 1/2%) of any Net Proceeds between
$500,000,001 and $750,000,000, received by Company or its
stockholders;
(C) Two
Percent (2%) of any Net Proceeds between $750,000,000 and
$1,000,000,000, received by Company or its stockholders;
(D) Three
Percent (3%) of any Net Proceeds between $1,000,000,001 and
$1,500,000,000, received by Company or its stockholders;
and
(E) Four
Percent (4%) of any Net Proceeds over $1,500,000,001, received by
Company or its stockholders.
(b)
For purposes of this Agreement, "Change of Control"
means:
(i) any
transaction in which any individual, entity or group (within the
meaning of Section 13(d)(3) or 14(d)(2) of the Securities Exchange
Act of 1934, as amended (the "Exchange Act")), becomes the
Beneficial Owner (as defined in Rule 13d-3 of the Exchange
Act), directly or indirectly, of securities of the Company
representing 50% or more of the combined voting power of the
Company's then-outstanding securities; or
(ii) any
merger, consolidation or other business combination or
reorganization in which the stockholders of the Company immediately
prior to such consolidation, merger or other