EMPLOYMENT AGREEMENT EXECUTED IN MONTREAL, QUEBEC, ON JANUARY 18TH, 2001
BETWEEN : TOUCHTUNES MUSIC CORPORATION,
a corporation incorporated under
the Laws of Nevada.
C/O TOUCHTUNES DIGITAL JUKEBOX
INC., a corporation incorporated
under the CANADA BUSINESS
CORPORATIONS ACT, having its head
office at Three Commerce Place, 4th
floor, Nuns' Island, Verdun,
Province of Xxxxxx X0X 0X0;
(hereinafter referred to as the
"Corporation")
ET : XX. XXXXXXX X. XXXXXX,
000 X. Xxxxx, Xxxx Xxxxx, XXXXXXXX.
00000 XXX
(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 WITNESSSES that in consideration of the
mutual covenants and agreements herein 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 having started January 2, 2001. Executive shall be located
initially in Buffalo Grove, Illinois. Executive understands and agrees
that the Corporation may request him to relocate to the head office of
its Canadian subsidiary, or to an other office of the Corporation.
2 DUTIES
2.1 The Corporation hereby confirms having agreed to engage Executive as
Vice President Marketing and Advertising. In such capacity, Executive
shall perform such duties
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and exercise such powers pertaining to the management of Advertising
Sales and Marketing.
2.2 By his acceptance hereof, Executive agrees to devote substantially all
of his 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 him.
3 REPORTING PROCEDURES
3.1 Executive shall report directly to the Chief Operating Officer of the
Corporation or such other person as may be designated by the
Corporation from time to time.
4 REMUNERATION
4.1 The annual base salary payable to Executive for his services hereunder
shall be $150,000.00 USD, 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 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. Notwithstanding the
foregoing, the benefits provided to Executive shall include, at a
minimum, disability and dental coverage. The annual base salary shall
be reviewed on an annual basis starting January 1st, 2002.
5 STOCK OPTIONS
5.1 Subject to the approval of the Board of Directors, Executive shall be
granted, within 60 days from the commencement of his employment, an
option to purchase 50,000 shares of the common stock of TouchTunes
Music Corporation (hereinafter "TTMC") in conformity with the
TouchTunes Music Corporation 2000 Long-Term Incentive Plan.
5.2 Options shall vest over a four-year period in equal quarterly
installments beginning April 1st, 2001.
6 BONUS
6.1 Executive is entitled to an annual bonus of up to 50% of his annual
base salary. Said bonus shall be payable on an annual basis at the
discretion of the compensation committee on the achievement by the
Executive of his Management Objectives set forth by the Chief
Operating Officer, or the officer to whom the Executive directly
reports to, the whole subject to the approval of the Board of
Directors of the
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Corporation. Such Management Objectives shall include specific
Advertising Sales revenue objectives.
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 he is entitled in any fiscal year, Executive
shall be entitled to take up to one (1) of such vacation weeks during
the following fiscal year.
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. Executive shall
furnish to the Corporation supporting evidence for expenses in respect
of which Executive seeks reimbursement. In addition, Executive shall
be entitled to a taxable car allowance of $600 USD per month.
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 breach or 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, any of such,
not corrected within thirty (30) days of notice to that effect and
discriminatory practices governed by statute.
9.1.2 upon three-(3) month notice in writing from Executive to the
Corporation, specifying his intention to resign, in which event the
Corporation shall only be obliged to pay Executive his remuneration
hereunder, including bonuses, earned before the date of termination
calculated pro rata up to and including the date of termination and
the Corporation shall have no further obligations hereunder in the
event of such resignation; or
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 in a
lump sum equal to six (6) months of Executive's base
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salary at the time of termination, and the Corporation shall have no
further obligations hereunder in the event of such termination.
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
Sections 9.1.1 and 9.1.2, Executive shall not be entitled to any
severance payment or any other payments at law or otherwise other than
compensation, including bonuses, earned by Executive before the date
of termination calculated pro rata up to and including the date of
termination.
10.2 If Executive's employment is terminated for any reason other than the
reasons set forth in Section 9.1.1 or 9.1.2, Executive shall be
entitled to receive an indemnity in lieu of notice, severance payment
or any other amount at law or otherwise, in a lump sum amount equal to
six (6) months of Executive's base salary at the time of termination.
The Corporation shall have no further obligations hereunder in the
event of such termination. Executive shall have no further claims or
recourse against the Corporation or any of its affiliates in respect
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
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for Executive's own benefit, (i) any confidential information
concerning the businesses, affairs, customers, suppliers or clients of
the Corporation or its affiliates, 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 three (3) years following the date of such termination.
12 NON-SOLICITATION
12.1 Executive agrees that he shall not, during his employment and for a
period of eighteen (18) months following the termination of his
employment, on his own behalf or on behalf of any person, whether
directly or indirectly, in any capacity
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whatsoever, alone, through or in connection with any person, employ,
offer employment to or solicit the employment or the engagement of or
otherwise entice 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 his employment and for a period of
eighteen (18) 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 his employment.
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
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lawful acts that the Corporation considers reasonably necessary or
advisable for the 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 agrees that, for the purposes of Sections 11 to 15, all
covenants and restrictions in favor of the Corporation are also made
in favor of its subsidiaries and that the remedies provided for in
this Section 15 also apply to its subsidiaries.
15.2 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.
15.3 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
This Agreement shall be construed in accordance with and governed by
the laws of
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the State of New York. To the extent permitted by applicable law, the
parties hereby irrevocably submit in any suit, action or proceeding
arising out of or related to this Agreement or any of the transactions
contemplated hereby to the jurisdiction of any federal court located
in Chicago, Illinois and waive any and all objections to jurisdiction
that they may have.
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 he had the opportunity to seek and was
not prevented nor discouraged by the Corporation from seeking
independent legal advice prior to the execution and
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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.
24 LANGUAGE
24.1 The parties hereto specifically requested that the present Agreement
be drawn up in English. Les parties aux presentes ont specifiquement
requis que cette convention soit redigee en anglais.
(SIGNATURES ON PAGE 10.)
10.
IN WITNESS WHEREOF the parties hereto have executed this Agreement as of the
date first above written.
TOUCHTUNES MUSIC CORPORATION
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per: Xxxxxxxx Xxxxxxxxx, COO
EXECUTIVE
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Xxxxxxx X. Xxxxxx
