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EMPLOYMENT AGREEMENT

Employee Retention Agreement

EMPLOYMENT AGREEMENT | Document Parties: MY SCREEN MOBILE, INC. You are currently viewing:
This Employee Retention Agreement involves

MY SCREEN MOBILE, INC.

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Title: EMPLOYMENT AGREEMENT
Governing Law: Florida     Date: 4/9/2009

EMPLOYMENT AGREEMENT, Parties: my screen mobile  inc.
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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.

 

 

 

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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).

 

 

 

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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).

 

 

 

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(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).

 

 

 

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(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.

 

 

 

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(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

 

 

 

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(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


 
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