EMPLOYMENT AGREEMENT
Exhibit 10.3
THIS AGREEMENT is made as of May 8, 2009, between MakeMusic, Inc., a Minnesota corporation
(hereinafter called “MakeMusic”), and Xxxxxx X. Xxxx (hereinafter called “Executive”):
RECITALS
1. The following recitals shall be considered a part of this Agreement and explain the
parties’ rights and obligations under this Agreement. Any interpretation or construction of this
Agreement shall be considered in light of these recitals.
2. Executive is currently employed by MakeMusic as its Chief Executive Officer pursuant to
that certain Employment Agreement dated February 20, 2007, as amended by the First Amendment to
Employment Agreement dated October 27, 2008.
3. Executive desires to be employed by MakeMusic as its Chief Executive Officer and MakeMusic
desires to employ Executive as its Chief Executive Officer on the terms stated in this Agreement.
4. Executive recognizes, agrees and understands that execution of this Agreement is an express
condition of employment with MakeMusic as its Chief Executive Officer under the terms of this
Agreement.
NOW, THEREFORE, in consideration of MakeMusic employing Executive as its Chief Executive
Officer under this Agreement and/or other benefits now or hereafter paid or made available to
Executive by MakeMusic, Executive and MakeMusic agree as follows:
ARTICLE I
DEFINITIONS
DEFINITIONS
1.01 Confidential Information. For the purposes of this Agreement, “Confidential
Information” means any information not generally known to the public and proprietary to MakeMusic
and includes, without limitation, trade secrets, inventions, and information pertaining to
research, development, purchasing, marketing, selling, accounting, licensing, business systems,
business techniques, customer lists, prospective customer lists, price lists, business strategies
and plans, pending patentable materials and/or designs, design documentation, documentation of
meetings, tests and/or test standards, or manuals whether in document, electronic, computer or
other form. For example, Confidential Information may be contained in MakeMusic’s customer lists,
prospective customer lists, the particular needs and requirements of customers, the particular
needs and requirements of prospective customers, and the identity of customers or prospective
customers. Information shall be treated as Confidential Information irrespective of its source and
any information which is labeled or marked as being “confidential” or “trade secret” shall be
presumed to be Confidential Information.
1.02 Invention. For purposes of this Agreement, the term “Invention” means ideas,
discoveries, and improvements whether or not shown or described in writing or reduced to
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practice and whether patentable or not, relating to any of MakeMusic’s present or future sales,
research, or other business activities, or reasonably foreseeable business interests of MakeMusic.
ARTICLE II
EMPLOYMENT, COMPENSATION AND BENEFITS
EMPLOYMENT, COMPENSATION AND BENEFITS
2.01 Employment With MakeMusic. MakeMusic hereby employs Executive in the position of
Chief Executive Officer of MakeMusic and Executive hereby accepts such employment with MakeMusic.
2.02 Term. This Agreement and Executive’s employment hereunder shall commence on May
8, 2009 and terminate when Executive’s employment with MakeMusic is terminated pursuant to
Paragraph 3.01 hereof.
2.03 Duties.
(a) Executive agrees, during his employment, to devote his full time and best
efforts to the businesses of MakeMusic, including, without limitation, the
performance of those duties and responsibilities reasonably and customarily
associated with his position; provided, however, that Executive’s duties and
responsibilities shall be subject to determination by MakeMusic’s Board of Directors
or its designee. Any material change in Executive’s duties and responsibilities
shall be subject to Executive’s consent, which consent shall not be unreasonably
withheld. Executive shall be granted such powers and authority as are reasonably and
customarily associated with his position.
(b) Executive shall report to, and at all times shall be subject to the
direction of MakeMusic’s Board of Directors or its designee.
(c) Executive, at all times during his employment with MakeMusic, shall comply
with MakeMusic’s reasonable standards, regulations and policies as determined or set
forth by MakeMusic from time to time and as applicable to executive employees of
MakeMusic.
(d) Executive shall maintain and improve his managerial skills and knowledge of
MakeMusic’s businesses by attending appropriate conventions and seminars, and
participating in other activities reasonably related thereto. MakeMusic shall pay
and/or reimburse those expenses of Executive, approved by MakeMusic, which are
reasonably related to this subparagraph 2.03(d).
2.04 Outside Activities. MakeMusic acknowledges and agrees that from time to time
Executive may serve as a member of the Board of Directors of one or more nonprofit entities or
businesses other than MakeMusic; provided, however, that Executive provides MakeMusic’s Board of
Directors with information about each proposed directorship, including time required by such
directorship, whether such directorship may involve conflicts of interest with MakeMusic or their
businesses, the types of risks which such directorship may involve, and any other factors Executive
or MakeMusic’s Board of Directors considers material respecting such directorship. MakeMusic’s
Board of Directors shall promptly consider all submissions by
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Executive pursuant to this Paragraph 2.04. MakeMusic’s Board of Directors may request in good
faith that Executive not accept a particular directorship, or more than a specific number of
directorships, or that Executive resign from a particular directorship, and Executive agrees to
honor such requests.
2.05 Base Salary. Executive’s initial annual base salary under this Agreement shall
be calculated on the gross amount of $216,000 per year, less withholding for income and FICA taxes
and any other proper deductions. Executive’s base salary will be paid to him in accordance with
MakeMusic’s normal payroll practices. Future adjustments, if any, to annual base salary will be
determined by MakeMusic. Executive may be entitled to bonuses as determined in the sole discretion
of MakeMusic.
2.06 Fringe Benefits From MakeMusic.
(a) In addition to cash compensation, Executive shall be eligible to receive
equity awards and fringe benefits as they may be made available to executive
employees of MakeMusic and offered to Executive from time to time in the exclusive
discretion of MakeMusic. Such benefits may include, but are not limited to, bonuses,
qualified pension or retirement plans, health insurance and disability plans and
deferred compensation agreements.
(b) Executive shall be eligible to participate in any and all other employee
benefit plans and programs offered by MakeMusic from time to time, including, but
not limited to, any medical, dental, short-term disability and life insurance
coverage, stock option, or retirement plans, in accordance with the terms and
conditions of those benefit plans and programs and on a basis consistent with that
customarily provided to MakeMusic’s executive employees.
2.07 Vacation. In addition to the foregoing compensation and fringe benefits,
Executive shall be entitled to a paid vacation of a duration to be determined by MakeMusic. At
present, Executive shall be entitled to five (5) weeks paid time off per calendar year (prorated
for partial calendar years of service). Such vacation shall be subject to MakeMusic’s paid
vacation policies as they may exist from time to time.
2.08 Expenses. During the term of this Agreement, Executive shall be entitled to
prompt reimbursement by MakeMusic for all reasonable, ordinary and necessary travel, entertainment
and other business related expenses incurred by Executive (in accordance with the policies and
procedures established by MakeMusic for executive employees from time to time) in the performance
of his duties and responsibilities under this Agreement; provided, however, that Executive shall
properly account for such expenses in accordance with federal, state and local tax requirements and
MakeMusic’s policies and procedures.
ARTICLE III
TERMINATION
TERMINATION
3.01 Events of Termination. Executive’s employment with MakeMusic:
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(a) May be terminated by mutual written agreement of MakeMusic and Executive.
(b) Shall terminate immediately upon the death of Executive.
(c) May be terminated upon written notice from MakeMusic to Executive for
Cause, which shall mean the following:
(i) Failure of Executive to (a) faithfully, diligently or competently
perform the material duties, requirements and responsibilities of his
employment as contemplated by this Agreement or as assigned by MakeMusic’s
Board of Directors or its designee, or (b) take reasonable direction
consistent with his position from MakeMusic’s Board of Directors or its
designee; or
(ii) Failure of Executive to comply with the material, reasonable
policies, regulations and directives of MakeMusic as in effect from time to
time; or
(iii) Any act or omission on the part of Executive which constitutes a
failure to comply with material provisions of this Agreement; or
(iv) Any act or omission on the part of Executive which is clearly and
materially harmful to the reputations or businesses of MakeMusic, including,
but not limited to, personal conduct of Executive which is inconsistent with
federal and state laws respecting harassment of, or discrimination against,
one or more of MakeMusic’s employees; or
(v) Conviction of Executive of, or a guilty or nolo contendere plea by
Executive with respect to, any crime punishable as a felony.
(d) May be terminated upon 30 days’ written notice from MakeMusic to Executive
without Cause.
(e) May be terminated upon 30 days’ written notice from Executive to MakeMusic.
3.02 Compensation Upon Termination of Executive’s Employment. In the event that
Executive’s employment with MakeMusic terminates the following provisions shall govern as
applicable:
(a) If termination occurs pursuant to subparagraph 3.01(a), the agreement of
the parties shall control.
(b) If termination occurs pursuant to subparagraph 3.01(b), all benefits and
compensation shall terminate as of the date of Executive’s death.
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(c) If the termination occurs pursuant to subparagraphs 3.01 (c) or (e), all
benefits and compensation shall terminate as of the termination date.
(d) If termination occurs pursuant to subparagraph 3.01(d), all benefits and
compensation shall terminate as of the termination date. In addition, Executive
shall receive cash severance payments equal to Executive’s annual base salary in
effect at the time of termination of employment and the pro-rated value of any
incentive compensation earned through the date of termination. Such payments shall
be paid to Executive monthly over the course of a one-year period, beginning after
expiration of any applicable rescission periods set forth in the required release
agreement; provided, however, that notwithstanding anything in this Agreement to the
contrary, if any of the payments described in this Paragraph 3.02 are subject to the
requirements of Section 409A of the Internal Revenue Code of 1986, as amended (“Code
Section 409A”) and MakeMusic determines that Executive is a “specified employee” as
defined in Code Section 409A as of the date of Executive’s termination of
employment, such payments shall not be paid or commence earlier than the first day
of the seventh month following the date of Executive’s termination of employment. As
a condition to Executive’s receipt of such payments, Executive shall be required to
execute, return, comply with and not rescind a full and final release of any and all
claims in favor of MakeMusic. Such release agreement shall be prepared by MakeMusic.
(e) If Executive is terminated without Cause, as defined in subparagraph
3.01(c), upon or within 12 months following a Change of Control of MakeMusic,
Executive shall be entitled to the severance payments set forth in Paragraph 3.02(d)
above.
(i) For purposes of this Agreement, a “Change of Control” means:
(a) The consummation of any merger, consolidation, exchange, or
reorganization to which MakeMusic is a party if the individuals and
entities who were shareholders of MakeMusic immediately prior to the
effective date of such transaction have, immediately following the
effective date of such transaction, beneficial ownership (as defined
in Rule 13d-3 under the Securities Exchange Act of 1934) of less than
fifty percent (50%) of the total combined voting power of all classes
of securities issued by the surviving corporation for the election of
directors of the surviving corporation;
(b) The shareholders of MakeMusic approve any plan or proposal
for the liquidation of MakeMusic;
(c) A sale, lease or other transfer of all or substantially all
of the assets of MakeMusic to any person or entity which is not an
Affiliate of MakeMusic; or
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(d) The acquisition, without prior approval by resolution
adopted by the Board, of direct or indirect beneficial ownership (as
defined in Rule 13d-3 under the Securities Exchange Act of 1934) of
securities of MakeMusic representing, in the aggregate, fifty percent
(50%) or more of the total combined voting power of all classes of
MakeMusic’s then-issued and outstanding securities by any person or
entity or by a group of associated persons or entities acting in
concert; provided, however, that a Change of Control will not be
deemed to occur if such acquisition is initiated by the Executive or
an entity in which the Executive owns fifty percent (50%) or more of
the total combined voting power of all classes of such entity’s
securities, or if the Executive or such entity is a member of the
group of associated persons or entities acting in concert.
(ii) For purposes of this Agreement, “Affiliate” shall mean any
individual, corporation, partnership, trust or other entity which owns,
directly or indirectly, fifty percent (50%) or more of the total combined
voting power of all classes of MakeMusic outstanding stock entitled to vote;
or any corporation, partnership, trust or other entity of which fifty
percent (50%) or more of the total combined voting power of all classes of
such entity’s outstanding stock, units or other interests entitled to vote
is owned, directly or indirectly, by MakeMusic.
(iii) The Executive shall not be entitled to receive any Change of
Control payment which would constitute a “parachute payment” for purposes of
Code Section 280G, or any successor provision, and the regulations
thereunder. In the event any Change of Control payment payable to the
Executive would constitute a “parachute payment,” the Executive shall have
the right to designate those Change of Control payments which would be
reduced or eliminated so that the Executive will not receive a “parachute
payment.” For purposes of this Paragraph, a “Change of Control payment”
shall mean any payment, benefit or transfer of property in the nature of
compensation paid to or for the benefit of the Executive under any
arrangement which is considered contingent on a Change of Control for
purposes of Code Section 280G, including, without limitation, any and all of
MakeMusic’s salary, bonus, incentive, restricted stock, stock option,
equity-based compensation or benefit plans, programs or other arrangements,
and shall include the acceleration of this Award.
(f) If Executive resigns for Good Reason, as defined below, upon or within 12
months following a Change of Control of MakeMusic, Executive shall be entitled to
the severance payments set forth in Section 3.02(d) above. For purposes of this
Agreement, “Good Reason” shall mean the occurrence of any of
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the following events without Executive’s consent upon or within 12 months
following a Change of Control of MakeMusic:
(i) the assignment to Executive of employment responsibilities which
are not materially of comparable responsibility and status as the employment
responsibilities held by Executive immediately prior to the Change of
Control;
(ii) a reduction of Executive’s annual base salary in effect
immediately prior to a Change of Control by more than 10% unless such
reduction is part of a general salary reduction for all employees of similar
rank to the Executive;
(iii) the failure by MakeMusic to obtain an assumption of the
obligations of MakeMusic to perform this Agreement by any successor to
MakeMusic;
(iv) a material breach of this Agreement by MakeMusic or its successor;
(v) the relocation of Executive’s place of employment by more than
forty (40) miles from the Executive’s place of employment immediately prior
to the Change of Control.
For purposes of the foregoing, Executive shall not be considered to have
been assigned employment of lesser responsibility if Executive manages, has
control over, or serves in a similar position with a subsidiary, division or
operating unit of an acquiring entity that generates revenues of comparable
amounts to the revenues generated by MakeMusic before such Change of
Control. Notwithstanding the foregoing, none of the forgoing events shall be
considered “Good Reason” if it occurs in connection with the Executive’s
death or disability.
(g) All payments made to Executive under this Paragraph 3.02 shall be reduced
by amounts (i) required to be withheld in accordance with federal, state and local
laws and regulations in effect at the time of payment, or (ii) owed to MakeMusic by
Executive for any amounts advanced, loaned or misappropriated. Such offset shall be
made in the manner permitted by and shall be subject to the limitations of all
applicable laws, including but not limited to Code Section 409A, and the
regulations, notices and other guidance of general applicability issued thereunder.
3.03 Return of MakeMusic Property. In the event of termination of Executive’s
employment, whether voluntary or involuntary, or at any time upon MakeMusic’s request, all
corporate documents, records, files, credit cards, computer disks and tapes, computer access cards,
codes and keys, file access codes and keys, building and office access cards, codes and
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keys, materials, equipment and other property of MakeMusic which is in Executive’s possession shall
be returned to MakeMusic at its principal business office on the date of termination of Executive’s
employment, or within one business day thereafter if such duty to return property is triggered by
MakeMusic’s request or termination of employment without notice. Executive may copy, at
Executive’s expense, documents, records, materials and information of MakeMusic only with
MakeMusic’s express, written permission.
ARTICLE IV
PROTECTION OF TRADE SECRETS AND
CONFIDENTIAL BUSINESS DATA
PROTECTION OF TRADE SECRETS AND
CONFIDENTIAL BUSINESS DATA
4.01 Confidential Information. The definition of “Confidential Information” as set
forth in Paragraph 1.01 is not intended to be complete. From time to time during the term of his
employment, Executive may gain access to other information not generally known to the public and
proprietary to MakeMusic concerning MakeMusic’s businesses that is of commercial value to
MakeMusic, which information shall be included in the definition under Paragraph 1.01 above, even
though not specifically listed in that Paragraph. The definition of Confidential Information and
the provisions of this Article IV apply to any form in which the subject information, trade
secrets, or data may appear, whether written, oral, or any other form of recording or storage.
4.02 Maintain in Confidence. Executive shall hold the Confidential Information,
including trade secrets and/or data, in the strictest confidence and will never, without prior
written consent of MakeMusic, directly or indirectly disclose, assign, transfer or convey such
information, or communicate such information to others or use it for his own or another’s benefit.
Without the prior written consent of MakeMusic, Executive shall not communicate Confidential
Information to a competitor of MakeMusic or any other person or entity, including, but not limited
to, the press, other professionals, corporations, partnerships or the public, at any time during
his employment with MakeMusic or at any time after his termination of employment with MakeMusic,
regardless of the reason for the Executive’s termination, whether voluntary or involuntary.
Executive further promises and agrees that he will faithfully abide by any rules, policies,
practices or procedures existing or which may be established by MakeMusic for insuring the
confidentiality of the Confidential Information, including, but not limited to, rules, policies,
practices or procedures:
(a) Limiting access to authorized personnel;
(b) Limiting copying of any writing, data or recording;
(c) Requiring storage of property, documents or data in secure facilities
provided by MakeMusic and limiting safe or vault lock combinations or keys to
authorized personnel; and/or
(d) Checkout and return or other procedures promulgated by MakeMusic from time
to time.
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4.03 Return of Information. Upon termination of the employer-employee relationship,
whether voluntary or involuntary, or at any time upon MakeMusic’s request, Executive will return to
MakeMusic any and all written or otherwise recorded form of all Confidential Information (and any
copies thereof) in his possession, custody or control, including, but not limited to, notebooks,
memoranda, specifications, customer lists, prospective or potential customer lists, or price lists.
Executive will not take with him, upon leaving MakeMusic’s place of business or employment with
MakeMusic, any such documents, data, writings, recordings, or reproduction in any form which may
have been entrusted or obtained by him during the course of his employment or to which he had
access, possession, custody or control, except with MakeMusic’s express, written permission. In
the event of termination of Executive’s employment, whether voluntary or involuntary, or at any
time upon MakeMusic’s request, Executive will deliver to MakeMusic all Confidential Information in
recorded form in his possession, custody or control and shall also deliver any and all property,
devices, parts, mock-ups, and finished or unfinished machinery or equipment in his possession,
custody or control which belongs to MakeMusic. Executive shall also deliver, upon termination of
his employment, whether voluntary or involuntary, or at any time upon MakeMusic’s request, all
records, drawings, blueprints, notes, notebooks, memoranda, specifications and documents or dates,
in any form, which contain Confidential Information.
ARTICLE V
COVENANT NOT TO COMPETE
COVENANT NOT TO COMPETE
5.01 Noncompete and Nonsolicitation. In exchange for MakeMusic’s covenants under this
Agreement, Executive expressly agrees that, during his employment with MakeMusic (except on behalf
of MakeMusic) and for a period of twelve (12) months following termination of his employment with
MakeMusic, regardless of the party initiating termination and regardless of the reason for the
termination, Executive shall not, directly or indirectly, acting on behalf of herself, another
business or competitor, without the prior written consent of MakeMusic:
(a) anywhere within the United States (which Executive acknowledges to be
MakeMusic’s trade area), own, manage, operate, control, be employed by, consult for,
participate in, or provide products or services of any kind to, any business, entity
or person that is in competition with MakeMusic or markets, sells, or provides
products or services that are the same as or similar to, or compete with, products
or services offered by MakeMusic at the time;
(b) render any services, advice or counsel as an owner, employee,
representative, agent, independent contractor, consultant or in any other capacity,
for any third party, if the rendering of such services, advice or counsel involves,
may involve, requires or is likely to result in the use or disclosure by Executive
of any Confidential Information;
(c) solicit, contact, take away or interfere with, or attempt to solicit,
contact, take away or interfere with, any of MakeMusic’s customers or potential
customers with whom Executive (or other employees of MakeMusic under his
supervision) had contact during the twelve (12) month period immediately preceding
his termination date, for the purpose of offering to provide or providing them with
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any products or services that are the same as or similar to, or compete with,
products or services offered by MakeMusic at the time;
(d) solicit, contact, take away or interfere with, or attempt to solicit,
contact, take away or interfere with, any of MakeMusic’s employees (working with
MakeMusic at that time or at any time in the six months prior to Executive’s
termination date) for the purpose of hiring them as an employee, contractor or
consultant or inducing them to leave their employment with MakeMusic; or
(e) solicit, contact, take away or interfere with, or attempt to solicit,
contact, take away or interfere with, any of MakeMusic’s suppliers or vendors (at
that time or at any time in the six months prior to Executive’s termination date)
for the purpose of inducing them to end or alter their relationship with MakeMusic.
5.02 Understandings. Executive acknowledges and agrees that MakeMusic informed him
that the restrictive covenants contained in this Agreement would be required as part of the terms
and conditions of his employment under this Agreement, that he signed and returned this Agreement
to MakeMusic prior to commencing employment under the terms of this Agreement, he has carefully
considered the restrictions contained in this Agreement and that they are reasonable, that the
restrictions in this Agreement will not unduly restrict him in securing other employment in the
event of his termination from MakeMusic; and that employment under the terms of this Agreement
amounts to valuable consideration, to which Executive would not otherwise be entitled, to support
enforcement of the restrictive covenants contained in this Agreement.
5.03 Additional Consideration. As additional consideration for Executive’s agreements
in Paragraph 5.01, MakeMusic shall pay Executive $1,000, less required and authorized deductions
and withholding. Such payment shall be made by MakeMusic within ten (10) days following
Executive’s execution of this Agreement.
ARTICLE VI
INVENTIONS
INVENTIONS
6.01 Disclosure. Executive shall promptly and fully disclose to MakeMusic and will
hold in trust for MakeMusic’s sole right and benefit, any Invention which Executive, during the
period of his employment, makes, conceives, or reduces to practice or causes to be made, conceived,
or reduced to practice either alone or in conjunction with others that:
(a) Relates to any subject matter pertaining to Executive’s employment;
(b) Relates to or is directly or indirectly connected with the business,
products, projects, or Confidential Information of MakeMusic; or
(c) Involves the use of any time, material or facility of MakeMusic.
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6.02 Assignment of Ownership. Executive hereby assigns to MakeMusic all of
Executive’s right, title, and interest in and to all such Inventions as described in Paragraph 6.01
and, upon MakeMusic’s request, Executive shall execute, verify, and deliver to MakeMusic such
documents including, without limitation, assignments and applications for Letters Patent, and shall
perform such other acts, including, without limitation, appearing as a witness in any action
brought in connection with this Agreement that is necessary to enable MakeMusic to obtain the sole
right, title, and benefit to all such Inventions.
6.03 Excluded Inventions. It is further agreed, and Executive is hereby so notified,
that the above agreement to assign Inventions to MakeMusic does not apply to any invention for
which no equipment, supplies, facility or Confidential Information of MakeMusic was used, which was
developed entirely on Executive’s own time, and
(a) Which does not relate:
(i) Directly to the businesses of MakeMusic; or
(ii) To MakeMusic’s actual or demonstrably anticipated research or
development; or
(b) Which does not result from any work performed by Executive for MakeMusic.
6.04 Prior Inventions. Attached to this Agreement and initialed by both parties is a
list of all of the Inventions, by description, if any, in which Executive possesses any right,
title, or interest prior to commencement of his employment with MakeMusic, which are not subject to
the terms of this Agreement.
6.05 Specific Performance. Executive expressly acknowledges and agrees that any
violation of any terms of Paragraphs 6.01 or 6.02 may result in the issuance of a temporary
restraining order and/or injunction against Executive to effect specific performance of the terms
of Paragraphs 6.01 or 6.02.
ARTICLE VII
ARBITRATION
ARBITRATION
7.01 Agreement to Arbitrate. With the exception of MakeMusic’s rights to seek
injunctive relief and/or specific performance in a court of competition jurisdiction in connection
with breaches by Executive of Paragraphs 4.02, 4.03, 5.01 and/or 6.01 or 6.02 of this Agreement,
all disputes or claims arising out of or in any way relating to this Agreement, including the
making of this Agreement, shall be submitted to and determined by final and binding arbitration
before the American Arbitration Association (“AAA”) under the AAA’s National Rules for the
Resolution of Employment Disputes. The award of the arbitrator(s), or a majority of them, shall be
final and judgment upon such award may be entered in any court of competent jurisdiction. This
arbitration provision shall continue in full force and effect after Executive’s termination of
employment under this Agreement.
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7.02 Discovery. In addition to any other procedures provided for under the rules of
the NASD or the AAA, upon written request, each party shall, at least 14 days prior to the date of
any hearing, provide to the opposite party a copy of all documents relevant to the issues raised by
any claim or counterclaim and a list of all witnesses to be called by that party at the hearing and
each party shall be permitted to take one deposition at least 14 days prior to any hearing.
7.03 Costs. The costs of proceedings under Article VII shall be paid in accordance
with the provisions of Article VIII below.
ARTICLE VIII
CERTAIN MAKEMUSIC REMEDIES; ATTORNEYS’ FEES AND COSTS
CERTAIN MAKEMUSIC REMEDIES; ATTORNEYS’ FEES AND COSTS
8.01 Certain MakeMusic Remedies. The parties acknowledge and agree that MakeMusic
will suffer irreparable harm if Executive breaches Paragraphs 4.02, 4.03, 5.01 and/or 6.01 or 6.02
of this Agreement. Accordingly, MakeMusic shall be entitled, in addition to any other right and
remedy it may have, at law or equity, to a temporary restraining order and/or injunction, without
the posting of a bond or other security, enjoining or restraining Executive from any violation of
such Paragraphs, and Executive hereby consents to MakeMusic’s right to seek the issuance of such
injunction.
8.02 Payment of Fees and Expenses. If any party initiates or becomes a party to a
formal proceeding in law or equity, or under Article VII, involving this Agreement, and if either
party obtains a substantial portion of the relief requested by that party (the “prevailing party”),
then the non-prevailing party shall pay all of its and the prevailing party’s reasonable costs and
expenses, including reasonable attorneys’ fees and expenses, incurred with respect to such
proceeding. If neither party obtains a substantial portion of the relief requested each shall bear
its/his own expenses. Notwithstanding the foregoing, in the event Executive is terminated pursuant
to Paragraph 3.01(c) and determines to challenge MakeMusic’s determination of Cause, MakeMusic and
Executive shall each bear its/his own attorneys’ fees and expenses in connection with any
proceeding initiated by Executive with respect to the determination as to “Cause.”
ARTICLE IX
INDEMNIFICATION
INDEMNIFICATION
9.01 Indemnification. As to acts or omissions of Executive which are within the scope
of Executive’s authority as an officer, director, or employee of MakeMusic and/or any affiliate of
MakeMusic, MakeMusic shall indemnify Executive, and his legal representatives and heirs, to the
maximum extent permitted by Minnesota law.
ARTICLE X
MISCELLANEOUS
MISCELLANEOUS
10.01 Survival of Provisions. The parties agree that Articles I, IV – X of this
Agreement shall survive termination of this Agreement and termination of Executive’s employment for
any reason.
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10.02 Notification of Restrictive Covenants. Executive authorizes MakeMusic to notify
third parties (including, but not limited, MakeMusic’s clients and competitors) of the terms of
Articles I, IV-VI of this Agreement and the Executive’s responsibilities hereunder.
10.03 Severability. If a court or arbitrator(s) rules that any part of this
Agreement is not enforceable, that part may be modified by the court to make it enforceable to the
maximum extent possible. If the part cannot be so modified, that part may be severed and the other
parts of the Agreement shall remain enforceable.
10.04 Governing Law. This Agreement shall be governed according to the laws of the
State of Minnesota.
10.05 Successors. This Agreement is personal to Executive and Executive may not
assign or transfer any part of his rights or duties hereunder, or any compensation due to him
hereunder, to any other person. This Agreement may be assigned by MakeMusic. This Agreement is
binding on any successors or assigns of MakeMusic.
10.06 Waiver. The waiver by any party of the breach or nonperformance of any
provision of this Agreement by any other party will not operate or be construed as a waiver of any
future breach or nonperformance under any provision of this Agreement or any similar agreement with
any other employee.
10.07 Notices. Any and all notices referred to herein shall be deemed properly given
only if in writing and delivered personally or sent postage prepaid, by certified mail, return
receipt requested, as follows:
(a) To MakeMusic by notice to MakeMusic’s Board of Directors.
(b) To Executive at his home address as it then appears on the records of
MakeMusic, it being the duty of the Executive to keep MakeMusic informed of his
current home address at all times.
The date on which notice to MakeMusic or Executive shall be deemed to have been given if mailed as
provided above shall be the date on the certified mail return receipt. Personal delivery to
Executive shall be deemed to have occurred on the date notice was delivered to Executive
personally, or deposited in a mail box or slot at Executive’s residence by a representative of
MakeMusic or any messenger or delivery service.
10.08 Modification. This Agreement supersedes any and all prior oral and written
understandings, if any, between the parties relating to the subject matter of this Agreement,
including without limitation the Employment Agreement between the parties dated February 20, 2007
and the First Amendment to Employment Agreement dated October 27, 2008 which are hereby terminated
and replaced and superseded by this Agreement. This Agreement sets forth the entire understandings
and agreements between the parties and is the complete and exclusive statement of the terms and
conditions thereof, that there are no other written or oral agreements in regard to the subject
matter of this Agreement other than those agreements, plans, programs
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and policies expressly referred to herein. This Agreement shall not be changed or modified except
by a written document signed by the parties hereto.
10.09 Code Section 409A. Notwithstanding anything in this Agreement to the contrary,
MakeMusic expressly reserves the right to amend this Agreement without Executive’s consent to the
extent necessary to comply with Code Section 409A, as it may be amended from time to time, and the
regulations, notices and other guidance of general applicability issued thereunder.
10.10 Counterparts. This Agreement maybe executed by facsimile transmission and in
counterparts, each of which shall be deemed an original and all of which shall constitute one
instrument.
10.11 No Strict Construction. The language used in this Agreement will be deemed to
be chosen by MakeMusic and Executive to express their mutual intent. No rule of law or contract
interpretation that provides that in the case of ambiguity or uncertainty a provision should be
construed against the draftsman will be applied against any party hereto.
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IN WITNESS WHEREOF, the parties have duly executed and delivered this Employment Agreement
effective as of the date first above written.
| EXECUTIVE |
||||
| /s/ Xxxxxx X. Xxxx | ||||
| Xxxxxx X. Xxxx | ||||
| MAKEMUSIC, INC. |
||||
| /s/ Xxxxx X. XxxXxxXxxxx | ||||
| Xxxxx X. XxxXxxXxxxx | ||||
| Chief Financial Officer | ||||
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