EMPLOYMENT AGREEMENT
EXHIBIT 10.9
THIS EMPLOYMENT AGREEMENT (this “Agreement”) is made and entered into as of the first day of
February, 2007 (the “Effective Date”) by and between Xxxxxxx X. Xxxxxxxxx, a resident of New York,
New York (the “Executive”), and The Orchard Enterprises, Inc., a New York corporation (the
“Company”).
RECITALS
The Company desires to employ the Executive and the Executive agrees to serve in the employ of
the Company, all on the terms and conditions hereinafter provided.
NOW, THEREFORE, in consideration of the premises and the mutual covenants herein contained,
the receipt and sufficiency of which the parties hereby acknowledge, the parties hereby agree as
follows:
ARTICLE I
EMPLOYMENT
1.1 Employment. The Company hereby employs the Executive and the Executive hereby
accepts employment by the Company upon the terms and conditions contained in this Agreement.
1.2 Office and Duties. The Executive shall serve the Company as General Counsel, and
shall perform such executive duties as are customarily performed in such position and shall perform
such other duties and assume such other positions with the Company or any of its affiliates as may
be from time to time reasonably assigned to him by the Chief Executive Officer or his designee or
the Board of Directors as applicable of the Company or his, its or their designee (collectively the
“Board”).
1.3 Commitment. Throughout the term of this Agreement, the Executive shall diligently
and faithfully devote his best full-time efforts to the performance of his duties hereunder in a
manner that will further the business and interests of the Company. Except as otherwise expressly
set forth in this Section 1.3, the Executive may not engage in any other business for his own
account or accept employment from or serve on the boards of directors of, or hold any other offices
or positions in, other companies or organizations without the prior written approval of the Board;
provided, however, that the Executive may make passive equity investments in other companies or
organizations subject to the terms of Section 2.1 and the Executive may engage in charitable, civic
or community activities that do not interfere with his duties to the Company.
1.4 Term. The term of this Agreement shall commence on the Effective Date and shall
continue for a period of 24 months until January 31, 2009 (the “Initial Term Date”), unless earlier
terminated in accordance with Section 1.6. Thereafter the term of this Agreement may, upon the
mutual written agreement of the parties, be
extended year to year for additional 12 month periods until terminated in accordance with
Section 1.6. The period of time between the commencement and termination of this Agreement is
referred to herein as the “Term.”
1.5 Compensation.
(a) Salary. Effective as of the date hereof, and for the first 7 months of the
Agreement, the Company shall pay the Executive as compensation a base salary of $225,000 per year.
The Board shall review the Executive’s performance during the summer of 2007 and shall, upon the
finding of satisfactory performance, increase the Executive’s salary to $235,000 annually effective
September 1, 2007. The Executive will receive another performance review by the Board during the
summer of 2008, and will, upon finding of satisfactory performance, receive and increase in annual
base salary to at least $250,000. The Board shall have sole discretion to determine whether the
Executive performance merits any raise in the salary. The salary for each year shall be paid by
the Company in accordance with the regular payroll practices of the Company.
(b) Discretionary Bonus. The Board shall review the Executive’s and the Company’s
performance annually, and shall have the sole discretion and authority to determine whether such
performance merits a discretionary bonus payable to the Executive. Such bonus shall be paid in
accordance with the procedures established by the Board.
(c) Other Benefits and Perquisites. Effective as of the date hereof, and for the
remainder of the Term, the Executive shall be entitled to participate in any major medical health
plan (including dental family coverage) at the Company’s expense and receive such additional
benefits, if any, under any plan or arrangement made available from time to time to other senior
management executives by the Company in the sole discretion of the Chief Executive Officer or the
Board, subject to and on a basis consistent with the terms, conditions and overall administration
of any such plan or arrangement (each, a “Company Health Plan”); provided, that in lieu of
participating in any Company Health Plan, the Executive shall be entitled to procure his own
comparable health insurance or enroll in a comparable third party health plan and the Company shall
reimburse the Executive for the expense of obtaining such insurance or enrolling in such plan in an
amount not to exceed the greater of the premiums that would have been paid by the Company for
providing the Executive with such Company Health Plan or for participation in the Sony BMG COBRA
plan offered to the Executive.
(d) Intentionally Omitted
(e) Bonus Option, Profit Sharing Plan or Stock Option Plan. Effective as of the date
hereof and for the remainder of the Term, the Executive shall be entitled to participate in any
bonus option or profit sharing plan, if any, made available from time to time to other senior
management executives by the Company in the sole discretion of the Chief Executive Officer or the
Board, subject to and on a basis
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consistent with the terms, conditions and overall administration of any such arrangement or
plan
(f) Vacations and Sick Leave. Effective as of the date hereof, and for the remainder
of the Term, the Executive shall be entitled to the maximum number of paid absence and leave days
(“PAL Days”) permitted under the Company’s PAL policy in effect from time to time (but not less
than an aggregate of four weeks paid vacation and/or sick days per year). Such PAL Days shall be
administered pursuant to the regular policies of the Company. PAL Days that are not used by the
Executive in any calendar year will not be carried forward except as expressly provided by the PAL
Day policy of the Company. The Executive shall not be entitled to any payment or other
compensation for any unused PAL Days as of the end of any calendar year or at the end of the Term.
(g) Payment and Reimbursement of Expenses. Effective as of the date hereof, and for
the remainder of the Term, the Company shall pay or reimburse the Executive for all reasonable
travel, entertainment and other expenses incurred by the Executive in performing his obligations
under this Agreement; provided, that the Executive properly accounts therefore in accordance with
the regular expenses reimbursement policies of the Company. In addition, the Company shall
reimburse the Executive for the following professional expenses: (i) NYSBA dues, (ii) applicable
attorney registration fees, and (iii) pre-approved continuing legal education expenses; provided,
that the Executive properly accounts therefore in accordance with the regular expenses
reimbursement policies of the Company.
1.6 Termination
(a) Death or Disability. This Agreement shall immediately terminate upon the death of
the Executive. The Company may terminate this Agreement for Disability. A “Disability” shall
exist if a physician, selected in good faith by the Board and reasonably acceptable to Executive’s
family or legal guardian, reasonably determines that, because of ill health, physical or mental
disability, or any other medical reason beyond the Executive’s control, and notwithstanding
reasonable accommodations made by the Company, the Executive is unable to perform the essential
functions of the Executive’s position for a period of 90 or more consecutive days or an aggregate
of 180 or more days during any 12 month period during the Term.
(b) Cause. The Company may terminate the Executive’s employment hereunder by written
notice given to the Executive for Cause or without Cause. Termination for “Cause” shall mean
termination because: (i) Executive has intentionally committed an act of dishonesty, embezzlement,
fraud or theft in his relations with the Company in such a manner as to cause material loss, damage
or injury to or otherwise to materially endanger the business, property, reputation or employees of
the Company, (ii) Executive has repeatedly abused alcohol or drugs in a manner materially adversely
affecting his job performance, (iii) Executive has been found guilty of or has plead nolo
contendere to the commission of a felony offense involving dishonesty; or (iv) Executive has caused
material loss, damage or injury to or otherwise
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materially endangered the property, reputation or employees of the Company due to his act(s)
of gross negligence; (v) insubordination or other willful violation of a material oral directive or
a material written policy of the Company; or (vi) breach of any material provision of this
Agreement; provided, however, that the occurrence of item (v) or (vi) of this
Section 1.6(b) shall not constitute Cause unless the Board notifies the Executive thereof in
writing, specifying in reasonable detail the nature of such occurrence and stating that it is
grounds for Cause, and unless the Executive fails to cure such occurrence within 10 days after
notice is given under this Agreement. If the Board reasonably determines in good faith that the
Executive has failed to cure the conditions which are grounds for Cause under item (v) or (vi) of
this Section 1.6(b) within 10 days after such notice is given, the Board will provide the Executive
with notification of such determination and allow the Executive to respond and to defend himself
before the Board of Directors within a reasonable time (not to exceed 10 days) after such
notification. After which, the Board of Directors will make a reasonable and good faith
determination as to whether the Executive has cured the conditions which are grounds for Cause.
(c) Good Reason. The Executive may terminate his employment hereunder by written
notice given to the Company for Good Reason or without Good Reason. For purposes of this
Agreement, “Good Reason” shall mean any material breach of this Agreement by the Company, including
without limitation: (i) any reduction in the Executive’s Base Salary; (ii) the Company requires the
Executive to be based at an office or location other than the principal office of the Company
located within a 50 mile radius of New York, New York, except for travel reasonably required in the
performance of the Executive’s responsibilities; or (iii) the Company requests the Executive’s
resignation other than for Cause; provided, however, that a material breach of this Agreement by
the Company shall not constitute Good Reason unless the Executive notifies the Company in writing
of the breach, specifying in reasonable detail the nature of the breach and stating that such
breach is grounds for Good Reason, and unless the Company fails to cure such breach within 10 days
after such notice is sent or given under this Agreement.
(d) Date of Termination. Except as otherwise specifically and expressly provided in
this Agreement, “Date of Termination” shall mean the actual effective date of any termination of
this Agreement. If the Company terminates the Executive for Cause or the Executive terminates for
Good Reason, the Date of Termination shall be the close of business on the day that is the tenth
business day after written notice is given in accordance with Section 1.6(b) or Section 1.6(c), as
applicable, unless cured by the Company or cured or successfully defended by the Executive, as
applicable. If the Agreement is terminated because of the Executive’s death, the Date of
Termination shall be the date of the Executive’s death. If the Company terminates for Disability
or without Cause, the Date of Termination shall be the close of business on the day that is the
ninetieth day after written notice is received by the Executive in accordance with Section 1.6(a)
or Section 1.6(b), as applicable. If the Executive terminates without Good Reason, the Date of
Termination shall be the close of business on the day that is the tenth business day after written
notice is received
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by the Company in accordance with Section 1.6(c), unless the Company, in its sole discretion,
elects an earlier Date of Termination within such 10-day period.
1.7 Compensation During Disability or Upon Termination.
(a) During Disability. During any period that the Executive fails to perform his
duties hereunder because of ill health, physical or mental disability, or any other reason beyond
his control, he shall continue to receive his Salary and benefits pursuant to Section 1.4 until
the Date of Termination.
(b) Termination for Disability. If the Company shall terminate the Executive’s
employment for Disability, the Company’s obligation to pay the Executive’s Salary and benefits
pursuant to Section 1.4 shall terminate, except that the Company shall pay and provide the
Executive accrued but unpaid Salary and benefits pursuant to Section 1.4 through the Date of
Termination.
(c) Death of Executive. If the Executive dies prior to the expiration of the Term,
then the Executive’s employment and other rights and obligations under this Agreement shall
automatically terminate and all Salary and benefits to which the Executive is or would have been
entitled pursuant to Section 1.4 shall terminate as of the Date of Termination.
(d) Termination For Cause or Without Good Reason. If the Company shall terminate the
Executive’s employment for Cause or if the Executive shall terminate his employment without Good
Reason, then the Company’s obligation to pay the Executive’s Salary and benefits pursuant to
Section 1.4 shall terminate on the Date of Termination and the Company shall pay the Executive his
accrued but unpaid Salary and benefits pursuant to Section 1.4 through the Date of Termination.
(e) Termination Without Cause or For Good Reason. If at any time during the Term, the
Company shall terminate the Executive’s employment without Cause or if the Executive shall
terminate his employment for Good Reason, then the Company shall pay to the Executive as severance
pay the following amounts:
(i) his then unpaid Salary, in accordance with the regular payroll practices
of the Company, through the Date of Termination at the rate in effect as of the
Date of Termination; and
(ii) after the Termination Date, the Executive shall continue to receive his
Salary, in accordance with the regular payroll practices of the Company, at the
rate in effect as of the Date of Termination for the period from the Date of
Termination through the Initial Term Date.
If the Executive terminates his employment for Good Reason based upon a reduction by the Company of
the Executive’s Salary below the Base Salary, then for purposes of this Subsection 1.7(e), the
Executive’s Salary as of the Date of Termination shall be deemed to be the Executive’s Salary
immediately prior to such reduction.
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If at the time the Company terminates the Executive’s employment without Cause or the Executive
terminates his employment for Good Reason, the Company has in effect a welfare benefit plan that
provides health care benefits for the Company’s participating employees and their dependants (the
“Health Care Coverage”), then the Executive shall have the right under the “COBRA” provisions of
federal law to elect to continue the Health Care Coverage, and, if the Executive so elects, (1) the
Company shall provide the Executive and his eligible dependents with continued Health Care Coverage
for the period from the Date of Termination through the last day of the month that the Company is
obligated to continue the Executive’s Salary pursuant to this Subsection 1.7(e) and (2) the Company
shall pay 100% of the cost of such Health Care Coverage during this period. At the end of such
period, the Executive and his eligible dependents may continue the Health Care Coverage, at their
sole expense, to the extent (if any) and in the manner provided by the “COBRA” provisions of
federal law. For purposes of determining the maximum period of continued Health Care Coverage
under “COBRA,” the date of the qualifying event shall be the Date of Termination.
ARTICLE II
RESTRICTIVE COVENANTS
2.1 Non-Competition. Except as otherwise expressly set forth in Section 1.3, during
the Term and for a period of 24 months after the Date of Termination (the “Restriction Period”),
regardless of the date, cause or manner of termination, the Executive shall not, in any manner,
directly or indirectly, without the prior written consent of the Company:
(a) become an officer, employee, director, agent, representative or consultant of
another Person (as defined below);
(b) have a proprietary interest in another Person; or
(c) engage in any business as an individual on the Executive’s own account or as an
independent contractor, consultant, partner or joint venture, that competes with the
Company with regard to the Company Business (as defined below) in the following territories
(collectively, the “Territory”):
(ii) the State of New York,
(iii) any state other than the State of New York in which the Company does
business and in which Executive worked for the Company; and
(iv) any foreign country in which the Company does business;
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provided, however, that nothing contained herein shall be interpreted to limit the Executive’s
right or ability to engage in any business or enterprise engaged in any aspect of the music or
entertainment industry other than the Company Business; provided, further, that notwithstanding the
foregoing, the Executive shall be free, without such written consent of the Company, to purchase or
hold as an investment up to 5% of the outstanding stock or other securities of any corporation that
has its securities publicly traded on any nationally recognized securities exchange or
over-the-counter market. For purposes of this Agreement, “Company Business” shall mean the
business of buying, licensing, acquiring in any manner, selling, distributing, marketing, promoting
and otherwise exploiting, by any means, music sound recordings, masters, music publishing rights,
and any other business or operations actually being performed by the Company on the Termination
Date. For purposes of this Agreement, the term “Person” shall mean an individual, corporation,
limited liability company, limited partnership, general partnership, joint stock company or
association, joint venture, association, company, trust, bank, trust company, land trust, common
law trust, business trust or other entity and any government and agency and political sub-division
thereof.
2.2 Non-solicitation of Employees. During the Term and the Restriction Period, the
Executive shall not in any manner, directly or indirectly, as an individual on his own account or
as an independent contractor, consultant, partner or joint venturer, or as an employee,
representative or agent of another Person, or as an officer, director, owner or shareholder of such
other Person, or otherwise (a) solicit, induce or encourage or attempt to solicit, induce or
encourage, any employee of the Company to leave the Company, (b) hire any employee of the Company
or (c) otherwise interfere with the Company’s employment relationship with any employee. The word
“employee” in this Section 2.2 means any person who is or was employed by the Company or any of its
affiliates at the time of, or within 180 days prior to, such solicitation, inducement,
encouragement, hiring or interference.
2.3 Non-solicitation of Customers. During the Term and the Restriction Period, the
Executive shall not in any manner, directly or indirectly, as an individual on his own account or
as an independent contractor, consultant, partner or joint venturer, or as an employee,
representative or agent of another Person, or as an officer, director, owner or shareholder of such
other Person, or otherwise, solicit, call upon or otherwise contact any customer of the Company for
the purpose of accepting, and shall not accept from any such customer, any order for any products
or services substantially the same as or similar to products sold or services provided by the
Company to any such customer within the 180 day period prior to the date of any such solicitation,
call, contact or acceptance.
2.4 Non-interference with Contract. During the Term and the Restriction Period, other
than in connection with, for the benefit of, or in furtherance of the Company Business, the
Executive shall not in any manner, directly or indirectly, as an individual on his own account or
as an independent contractor, consultant, partner or joint venturer, or as an employee,
representative or agent of another Person, or as an officer, director, owner or shareholder of
such other Person, or otherwise, solicit, encourage or induce, or attempt to solicit, encourage or
induce, any vendor, supplier or
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other third party with whom the Company is doing business or has a contract as of the Date of
Termination, to terminate such vendor’s, supplier’s or other third party’s business relationship or
contract with the Company.
2.5 Confidentiality. The Executive recognizes that, by virtue of the Executive’s
employment with the Company, the Executive will have access to Confidential Information (as defined
below) relating to the Company’s business. The Executive agrees that such Confidential Information
is a valuable asset, and if it were to be known or used by others engaged in a similar business, it
would be harmful and detrimental to the Company’s interests. Accordingly, except as may be
required or appropriate for the performance of the Executive’s duties in the normal course of
business, or unless specifically authorized in writing by the Board, the Executive shall not use or
disclose, either during or after the Term, any Confidential Information, except for any
Confidential Information required to be disclosed by law or to comply with a request by a court or
governmental authority (pursuant to a subpoena or otherwise), but only if the Executive promptly
notifies the Company of the required or requested disclosure so the Company may seek a protective
order to prevent disclosure of such Confidential Information.
For purposes of this Agreement, “Confidential Information” shall mean any and all information
relating to the business, finances, customers, clients and operations of the Company, whether
obtained by or furnished to the Executive before or after the date hereof, and regardless of the
manner in which it is obtained or furnished. Confidential Information does not include, however,
information which: (a) is or becomes generally available to the public other than as a result of an
impermissible disclosure by the Executive; (b) was known by or made available on a non-confidential
basis to the Executive prior to his employment with the Company, or (c) becomes available to the
Executive on a non-confidential basis from a Person other than the Executive who is not known by
the Executive to be bound by a confidentiality agreement with or other obligation of secrecy to the
Company.
2.6 Breach of Restrictive Covenants. The period of time during which the Executive is
prohibited from engaging in business practices pursuant to the restrictive covenants set forth in
Sections 2.1 through 2.4 shall be extended by the length of time during which the Executive is in
breach of any such covenant.
2.7 Condition Precedent. The restrictive covenants set forth in Sections 2.1 through
2.5 are essential elements of this Agreement, and, but for the Executive’s agreement to comply with
such covenants, the Company would not have entered into this Agreement. Such covenants are for the
benefit of the Company and may be enforced by the Company and by any Person succeeding to the
business of the Company pursuant to a merger or purchase of all or substantially all the assets or
outstanding voting stock of the Company. Such covenants by the Executive shall be construed as
agreements independent of any other provision contained in this Agreement, and the existence of any
claim or cause of action of the Executive against the Company, whether predicated on this Agreement
or otherwise, shall not constitute a defense to the enforcement by the Company of such covenants.
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2.8 Injunctive Relief. The Executive acknowledges that the services to be rendered by
Employee under this Agreement are extraordinary and unique and are vital to the success of the
Company, and that damages at law shall be an insufficient remedy in the event that the Executive
violates or threatens to violate any of the terms of Sections 2.1 through 2.5, and the Company
shall be entitled, upon application to a court of competent jurisdiction, to obtain injunctive
relief (including temporary restraining orders) to enforce any or all of the provisions of said
sections, without being required to show any actual damage or to post an injunction bond or other
security. The foregoing injunctive relief shall be in addition to any other rights and remedies
available under applicable laws.
2.9 Disclosure of Works and Inventions/Assignment of Patents. The Executive shall
disclose promptly to the Company or its nominee any and all works, inventions, discoveries and
improvements authored, conceived or made by the Executive during the Term and related to the
Company Business and hereby assigns and agrees to assign all his interest therein to the Company or
its nominee. Whenever requested to do so by the Company, the Executive shall execute any and all
applications, assignments or other instruments which the Company shall deem necessary to apply for
and obtain Letters Patent or Copyrights of the United States or any foreign country or to otherwise
protect the Company’s interest therein. Such obligations shall continue beyond the termination of
employment with respect to such works, inventions, discoveries and improvements authored, conceived
or made by the Executive during the Term, and shall be binding upon the Executive’s assigns,
executors, administrators and other legal representatives.
ARTICLE III
MISCELLANEOUS
3.1 Notices. All notices, requests, demands and other communications required or
permitted under this Agreement and the transactions contemplated herein shall be in writing or
electronically and shall be deemed to have been duly sent, given, made and received when personally
delivered, or when sent by confirmed telecopy or other electronic means or one business day after
deposit with a nationally recognized overnight courier, specifying next day delivery, with written
verification of receipt, addressed as set forth below:
If to the Executive:
Xxxxxxx X. Xxxxxxxxx
0 Xxxxx Xxxxxx
Xxxxxxxxx, Xxx Xxxx 00000
Fax: (000) 000-0000
Phone: (000) 000-0000
0 Xxxxx Xxxxxx
Xxxxxxxxx, Xxx Xxxx 00000
Fax: (000) 000-0000
Phone: (000) 000-0000
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If to the Company:
Xxxx Xxxxxxxxxx
Dimensional Associates
0000 Xxxxxx Xxxx Xxxx
Xxx, Xxx Xxxx 00000
Fax: (000) 000-0000
Phone: (000) 000-0000
Phone: (000) 000-0000
E-mail: xxxx@xxxxxxxxxxxxxxxxxxxxx.xxx
Dimensional Associates
0000 Xxxxxx Xxxx Xxxx
Xxx, Xxx Xxxx 00000
Fax: (000) 000-0000
Phone: (000) 000-0000
Phone: (000) 000-0000
E-mail: xxxx@xxxxxxxxxxxxxxxxxxxxx.xxx
With a copy to:
Xxxxx X. Xxxxxx
Xxxx Xxxxx, LLP
000 Xxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Phone: (000) 000-0000
Fax: (000) 000-0000
Email: xxxxxxx@xxxxxxxxx.xxx
Xxxxx X. Xxxxxx
Xxxx Xxxxx, LLP
000 Xxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Phone: (000) 000-0000
Fax: (000) 000-0000
Email: xxxxxxx@xxxxxxxxx.xxx
Any party may alter the address to which communications or copies are to be sent by giving notice
of such change of address in conformity with the provisions of this section for the giving of
notice, which shall be effective only upon receipt.
3.2 Severability. The provisions of this Agreement are independent of and severable
from each other, and no provision shall be affected or rendered invalid or unenforceable by virtue
of the fact that for any reason any other or others of them may be invalid or unenforceable in
whole or in part. If any provision of this Agreement is held to be unenforceable for any reason,
it shall be adjusted rather than voided, if possible, in order to achieve the intent of the parties
to the extent possible.
3.3 Entire Agreement; Amendment. This Agreement contains the entire understanding
between the parties hereto with respect to the subject matter hereof and supersedes all prior and
contemporaneous agreements and understandings, inducements or conditions, express or implied, oral
or written, except as herein contained. This Agreement may not be modified or amended other than
by an agreement in writing executed by the parties hereto.
3.4 Waiver. Neither the failure nor any delay on the part of either party to exercise
any right, remedy, power or privilege under this Agreement shall operate as a waiver thereof, nor
shall any single or partial exercise of any right, remedy, power or privilege preclude any other or
further exercise of the same or of any other right, remedy power or privilege, nor shall any waiver
of any right, remedy, power or privilege with respect to any occurrence be construed as a waiver of
such right, remedy, power or privilege with respect to any other occurrence.
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3.5 Interpretation. The parties hereto acknowledge and agree that (i) each party and
each party’s counsel have reviewed and negotiated the terms and provisions of this Agreement and
have contributed to its revision, (ii) the rule of construction to the effect that any ambiguities
are resolved against the drafting party shall not be employed in the interpretation of this
Agreement, and (iii) the terms and provisions of this Agreement shall be construed fairly as to all
parties hereto and not in favor of or against any party regardless of which party was generally
responsible for the preparation of this Agreement.
3.6 Headings. The headings of paragraphs herein are included solely for convenience
of reference and shall not control the meaning or interpretation of any of the provisions of this
Agreement.
3.7 Governing Law. This Agreement shall be governed by and construed in accordance
with the laws of the State of New York, without giving effect to principles of conflict of laws.
3.8 Survival. The covenants and agreements of the parties set forth in Section 1.6,
Article II and Article III are of a continuing nature and shall survive the expiration, termination
or cancellation of this Agreement, regardless of the reason therefore and in a manner consistent
with the applicable section.
3.9 Binding Effect. This Agreement shall be binding upon and inure to the benefit of
and be enforceable by the parties hereto and their respective heirs, personal representatives,
successors and assigns, including any direct or indirect successor by purchase, merger,
consolidation or otherwise to all or substantially all of the activities or assets of the Company.
The Company shall require and cause any successor (whether direct or indirect by purchase, merger,
consolidation or otherwise) to all or substantially all, of the business or assets of the Company,
by written agreement in form and substance satisfactory to the Executive, expressly to assume and
agree to perform this Agreement in the same manner and to the same extent that the Company would be
required to perform if no such succession had taken place.
3.10 Forum Selection. Any litigation based hereon or arising out of, under or in
connection with this Agreement, shall be brought and maintained exclusively in the courts of New
York County, New York.
3.11 Counterparts. This Agreement may be executed in counterparts and multiple
originals, each of which shall be deemed to be an original but all of which together will
constitute one and the same instrument.
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IN WITNESS WHEREOF, the Company has caused this EMPLOYMENT AGREEMENT to be executed by its
duly authorized representative, and the Executive has signed this Agreement, all as of the day and
year first above written.
| THE ORCHARD ENTERPRISES, INC. |
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| By: | ||||
| Name: | ||||
| Title: | ||||
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