EXHIBIT 10.13
THIS EMPLOYMENT AGREEMENT IS ENTERED INTO AS OF THE DAY OF AUGUST 2002.
BETWEEN: TOUCHTUNES MUSIC CORPORATION, a incorporated under the laws
of Nevada with offices at Three Commerce Place, 4th floor,
Nuns' Island, Verdun, Province xx Xxxxxx, Xxxxxx X0X 0X0;
(hereinafter referred to as the "CORPORATION")
AND: XXX. XXXXX XXXXXXXX, 0000 XXXXX XXXXXXX XXXXX, XXX XXXXXXX,
XX 00000
(hereinafter referred to as the "EXECUTIVE")
IT IS AGREED AS FOLLOWS:
WHEREAS the Corporation wishes to retain the services of Executive
to provide the services hereinafter described during the term hereinafter set
out;
NOW THEREFORE THIS AGREEMENT WITNESS that in consideration of the
mutual covenants and agreements here contained and for other good and valuable
consideration, the parties agree as follows;
1 TERM
1.1 The Corporation shall employ Executive for an indefinite term, such
employment shall commence on August 19, 2002.
2 DUTIES
2.1 The Corporation hereby confirms having agreed to engage Executive as
Vice President Music. In such capacity, Executive shall perform such
duties and exercise such powers pertaining to such role for the
Corporation and its affiliates.
2.2 By her acceptance hereof, Executive agrees to devote substantially
all of her working time, attention and skill to the Corporation and
to make every effort necessary to promote the success of the
Corporation's business and perform adequately the duties that are
assigned to her.
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3 REPORTING PROCEDURES
3.1 Executive shall report directly to the President and Chief Executive
Officer of the Corporation or such other person as designated by the
Corporation from time to time.
4 REMUNERATION
4.1 The annual base salary payable to Executive for her services
hereunder shall be $150,000.00 US, exclusive of bonuses, benefits
and other compensation. The annual base salary payable to Executive
pursuant to the provisions of this Section 4 shall be payable in
equal bi-weekly installments in accordance with the Corporation's
normal practices less, in any case, any deductions or withholdings
required by law.
4.2 The Corporation shall provide Executive with employee benefits
comparable to those provided by the Corporation from time to time to
other senior executives of the Corporation.
4.3 The Corporation agrees to provide the Executive with a monthly
automobile allowance of $600.
5 STOCK OPTIONS
5.1 Subject to the approval of the Board of Directors, Executive shall
be granted, within a reasonable period from the commencement of his
employment, an option to purchase shares of the common stock of
TouchTunes Music Corporation (hereinafter "TTMC") in conformity with
the TouchTunes Music Corporation 2000 Long-Term Incentive Plan. The
number of options to be granted will be determined within said
reasonable period and will be comparable to those provided to other
senior executives of the Corporation.
5.2 Options shall vest over a four-year period in equal annual
installments.
6 BONUS
6.1 Executive is entitled to an annual bonus up to 30% of her annual
base salary. Said bonus shall be payable on an annual basis at the
discretion and within the guidelines set forth by the compensation
committee and based on the achievement of the operational budget of
the Corporation.
7 VACATION
7.1 Executive shall be entitled to four (4) weeks of paid vacation per
fiscal year of the Corporation. Should Executive decide not to take
all the vacation to which she is entitled in any fiscal year,
Executive shall be entitled to take up to one (1) week of such
vacation in the next following fiscal year. Upon termination under
Section 9,
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Executive is entitled to payment for a maximum of one (1) week of
unused vacation.
8 EXPENSES
8.1 Executive shall be reimbursed for all reasonable travel and other
out-of-pocket expenses incurred by Executive from time to time in
connection with carrying out his duties hereunder. For all such
expenses Executive shall furnish to the Corporation supporting
evidence for expenses in respect of which Executive seeks
reimbursement.
8.2 The Corporation shall also reimburse Executive for reasonable cost
of training and professional development.
8.3 The Corporation shall provide Executive with adequate support and
equipment to perform her duties.
9 TERMINATION
9.1 This agreement may be terminated, except for continuing obligations
hereunder as at any such termination, in any of the following
eventualities and with the following consequences:
9.1.1 at any time, for Cause, on simple notice from the Corporation to
Executive the whole without any other notice or any pay in lieu of
notice or any indemnity whatsoever from the Corporation to
Executive, and any further claims or recourse by Executive against
the Corporation or its affiliates in respect of such termination; or
"CAUSE" shall mean cause for dismissal without either notice or
payment in lieu of notice for reasons of fraud, embezzlement, gross
negligence, willful and careless disregard or gross dereliction of
duty, incapacity or refusal to perform employment functions due to
drug use or alcohol addiction, conviction of a felony, serious
breach of duty not corrected within thirty (30) days of notice to
that effect and discriminatory practices governed by statute.
9.1.2 Upon three- (3) months notice in writing from Executive to the
Corporation, specifying her intention to resign, in which event the
Corporation shall only be obliged to pay Executive its annual base
salary hereunder for such remaining part of the period specified in
the notice from Executive, and the Corporation shall have no further
obligations.
9.1.3 Upon written notice from the Corporation to Executive in the event
of termination of his employment without Cause, in which event the
Corporation shall pay Executive an indemnity in lieu of notice equal
to three (3) months of Executive's base salary at the time of
termination, and the Corporation shall have no further obligations
hereunder in
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the event of such termination. Such indemnity shall be paid
to Executive over the three- (3) month period following the
effective date of termination, in accordance with normal and then
current payroll practices of the Corporation. Executive shall have
no further claims or recourse against the Corporation or any of its
affiliates in respect of such termination; or
9.2 For Disability/Death
9.2.1 The Corporation may immediately terminate this agreement
by notice to Executive if Executive becomes permanently
disabled. Executive shall be deemed to have become
permanently disabled in the event of any mental
incapacity or physical disability of such severity that
Executive shall have been unable to attend to any normal
duties with the Corporation for more than nine (9)
consecutive months in any year or for twelve (12) months
out of any period of twenty-four (24) consecutive months
during the employment period.
9.2.2 This agreement shall terminate without notice upon the
death of Executive.
10 SEVERANCE PAYMENTS
10.1 Upon termination of Executive's employment for cause or by the
voluntary termination of employment of Executive as set forth in
Section 9.1.1 and 9.1.2, Executive shall not be entitled to any
severance payment.
10.2 If Executive's employment is terminated for any reason other than
the reasons set forth in Section 9.1.1 and 9.1.2, Executive shall be
entitled to receive, an indemnity in lieu of notice equal to three-
(3) months of Executive's base salary at the time of termination,
such indemnity shall be paid to Executive over the three- (3) month
period following the effective date of termination, in accordance
with normal and then current payroll practices of the Corporation
and, all unvested options that would have vested during the twelve
(3) month period following the date of such termination shall become
vested at the date of such termination.
10.3 Upon termination of Executive's employment for disability or death
as set forth in Section 9.2, all options to purchase common shares
in the share capital of TTMC granted to Executive shall become
vested immediately.
11 CONFIDENTIALITY
11.1 Executive shall not, directly or indirectly, without the specific
prior written consent of the Corporation, at any time after the date
hereof, divulge to any business, enterprise, person, firm,
corporation, partnership, association or other entity, or use for
Executive's own benefit, (i) any confidential information concerning
the businesses, affairs, customers, suppliers or clients of the
Corporation or its affiliates,
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including, without limitation, any trade secret (process, plan,
form, marketing strategy, etc.), all computer programs in any
form (diskette, hard disk, tape, printed circuit, etc.), all
access codes to computer programs together with any plan, sketch,
diagram, card, contract, bid, price list and client list relative
to the Corporation's business, or (ii) any non-public data or
statistical information of the Corporation or its affiliates,
whether created or developed by the Corporation or its affiliates
or on their behalf or with respect to which Executive may have
knowledge or access (including, without limitation, any of the
foregoing created or developed by Executive), it being the intent
of the Corporation and Executive to restrict Executive from
disseminating or using any data or information that is at the
time of such use or dissemination unpublished and not readily
available or generally known to persons involved or engaged in
businesses of the type engaged in from time to time by the
Corporation (the "Confidential Information"). For purposes of
this Employment Agreement, Confidential Information shall not be
deemed to include:
11.1.1 Information that, at the time of disclosure under this
Employment Agreement or during Executive's employment,
is in the public domain or that, after disclosure under
this Employment Agreement or in connection with
Executive's employment, becomes part of the public
domain by publication or otherwise through no action or
fault of Executive or any other party subject to an
obligation of confidentiality;
11.1.2 Information that the Corporation authorizes Executive to
disclose in writing; or
11.1.3 Information that Executive is required to disclose
pursuant to a final court order that the Corporation has
had an opportunity to contest prior to any such
disclosure.
11.2 This undertaking to respect the confidentiality of the Confidential
Information and to not make use of or disclose or discuss it to or
with any person shall continue to have full effect notwithstanding
the termination of Executive's employment with the Corporation for a
period of two (2) years following the date of such termination.
12 NON-SOLICITATION
12.1 Executive agrees that he shall not, during her employment and for a
period of twelve (12) months following the termination of his
employment, on her own behalf or on behalf of any person, whether
directly or indirectly, in any capacity whatsoever, alone, through
or in connection with any person, employ, offer employment to or
solicit the employment or the engagement of or otherwise entice
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away from the employment of the Corporation or its subsidiaries, any
individual who is employed by the Corporation or its subsidiaries at
the time of the termination of Executive's employment or who was
employed by the Corporation or its subsidiaries in the six (6) month
period preceding the termination of Executive's employment.
13 NON-COMPETITION
13.1 Executive agrees that during the Employment Term and for a period of
twelve (12) months after Executive ceases to be employed by the
Corporation, Executive shall not, directly or indirectly, for
Executive's own account or as an employee, officer, director,
partner, joint venture, shareholder, investor, consultant or
otherwise (except as an investor in a corporation whose stock is
publicly traded and in which Executive holds less than 5% of the
outstanding shares) engage in any business or enterprise, in the
United States of America, that directly or indirectly competes with
the business of the Corporation, as it exists now or in the future
during the Employment Term.
14 INTELLECTUAL PROPERTY
14.1 For the purposes of this Agreement, the term "Inventions" means
ideas, designs, concepts, techniques, inventions and discoveries,
whether or not patentable or protectable by copyright and whether or
not reduced to practice, including but not limited to devices,
processes, drawings, works of authorship, computer programs, methods
and formulas together with any improvement thereon or thereto,
derivative works therefrom and know-how related thereto made,
developed or conceived by Executive while at the employment of the
Corporation during working hours using the Corporation's data or
facilities and which relates to the Corporation's areas of business.
14.2 Executive shall assign and hereby does assign all Inventions to the
Corporation. Executive shall disclose all Inventions in writing to
the Corporation, shall assist the Corporation in preparing patent or
copyright applications for Inventions, and execute said applications
and all other documents required to obtain patents or copyrights for
those Inventions and/or to vest title thereto in the Corporation, at
the Corporation's expense, but for no additional consideration to
Executive. In the event that the Corporation requires assistance
under this Section after termination of employment, Executive shall
provide such assistance at the cost and expense of the Corporation.
14.3 During the term of this Agreement or after termination, on request
of the Corporation and at the cost and expense of the Corporation,
Executive shall execute specific assignments in favor of the
Corporation or nominees of any of the Inventions covered by this
Section, as well as execute all papers and perform all lawful acts
that the Corporation considers reasonably necessary or advisable for
the
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preparation, prosecution, issuance, procurement and maintenance
of patent or copyright applications and patents and copyrights for
the Inventions, and for transfer of any interest Executive may have,
and shall execute any and all papers and lawful documents required
or necessary to vest title in the Corporation or its nominee in the
Inventions.
15 ENFORCEABILITY
15.1 Executive hereby confirms and agrees that the covenants and
restrictions pertaining to Executive contained in this agreement,
including, without limitation those contained in Sections 11 to 15
hereof, are reasonable and valid.
15.2 Without limiting the remedies available to the Corporation,
Executive hereby expressly acknowledges and agrees that a breach of
the covenants contained in Sections 11 to 15 may result in
materially irreparable harm to the Corporation for which there is no
adequate remedy at law; that it will not be possible to measure
damages for such injuries precisely, and that, in the event of such
a breach, the Corporation shall be entitled to obtain any or all of
a temporary restraining order and a preliminary or permanent
injunction restraining Executive from engaging in activities
prohibited by the provisions of Sections 11 to 15 or such other
relief as may be required to enforce specifically any of the
covenants of Sections 11 to 15. Such proceedings shall not preclude
the Corporation from claiming for damages that it has suffered.
16 RETURN OF MATERIALS
16.1 All files, forms, brochures, books, materials, written
correspondence, memoranda, documents, manuals, computer disks,
software products and lists (including lists of customers,
suppliers, products and prices) pertaining to the business of the
Corporation or any of its affiliates and associates that may come
into the possession or control of Executive shall at all times
remain the property of the Corporation or such subsidiary or
associate, as the case may be. On termination of Executive's
employment for any reason, Executive agrees to deliver promptly to
the Corporation all such property of the Corporation in the
possession of Executive or directly or indirectly under the control
of Executive. Executive agrees not to make for his personal or
business use or that of any other party, reproductions or copies of
any such property or other property of the Corporation.
17 GOVERNING LAW
17.1 This agreement shall be governed by and construed in accordance with
the laws of the state of California.
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18 SEVERABILITY
18.1 If any provision of this agreement, including the breadth or scope
of such provision, shall be held by any court of competent
jurisdiction to be invalid or unenforceable, in whole or in part,
such invalidity or unenforceability shall not affect the validity or
enforceability of the remaining provisions, or part thereof, of this
agreement and such remaining provisions, or part thereof, shall
remain enforceable and binding.
19 NO ASSIGNMENT
19.1 Executive may not assign, pledge or encumber Executive's interest in
this agreement nor assign any of the rights or duties of Executive
under this agreement without the prior written consent of the
Corporation.
20 SUCCESSORS
20.1 This agreement shall be binding on and inure to the benefit of the
successors and assigns of the Corporation and the heirs, executors,
personal legal representatives and permitted assigns of Executive.
21 SURVIVAL OF COVENANTS
21.1 Insofar as any of the obligations contained in this agreement are
capable of surviving termination of this agreement they shall so
survive and continue to bind Executive notwithstanding the
termination of the agreement for whatsoever reason.
22 COMPLETE UNDERSTANDING
22.1 Once signed, this agreement replaces all prior written and/or oral
agreements between Executive and the Corporation with regard to
Executive's terms of employment with the Corporation. This agreement
may not be changed orally, but only in an agreement in writing
signed by both parties.
23 LEGAL ADVICE
23.1 Executive hereby represents and warrants to the Corporation and
acknowledges and agrees that she had the opportunity to seek and was
not prevented nor discouraged by the Corporation from seeking
independent legal advice prior to the execution and delivery of this
agreement and that, in the event that he did not avail himself of
that opportunity prior to signing this agreement, he did so
voluntarily without any undue pressure and agrees that his failure
to obtain independent legal advice shall not be used by him as a
defense to the enforcement of his obligations under this agreement.
(SIGNATURES ON PAGE 9.)
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IN WITNESS WHEREOF the parties hereto have executed this agreement as of the
date first above written.
TOUCHTUNES MUSIC CORPORATION
/s/ Xxxx Xxxxxxxxx
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per: Xxxx Xxxxxxxxx, President and CEO
EXECUTIVE
/s/ Xxxxx Xxxxxxxx
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Xxxxx Xxxxxxxx
