Exhibit 10.1
MUZAK EMPLOYEE AGREEMENT
Muzak LLC, a Delaware limited liability company, hereinafter referred to as
"Company", and Xxxx Xxxxxx, hereinafter referred to as "Employee", hereby enter
into the following Agreement:
1. EMPLOYMENT
Effective November 20, 2006 (the "Effective Date"), the Company hereby agrees to
employ Employee in the position of Chief Financial Officer (CFO), and Employee
hereby accepts employment upon the terms and conditions contained herein. Any
previous Employment Agreement(s) between the Company and Employee are superseded
by this Agreement.
2. COMPENSATION
During the term of employment, Employee shall be entitled to receive an annual
base salary as in effect from time to time (the "Base Salary"). The Base Salary
will be payable in regular installments in accordance with the general payroll
practices of the Company and will be subject to periodic review and adjustment
in accordance with the Company's performance review requirements.
Employee will be entitled to also participate in any health insurance plans,
vacation plans, retirement savings plans and other similar benefits which the
Company makes available generally to other Company executives. The Company will
further reimburse Employee for all reasonable expenses incurred by him/her in
the course of performing his/her duties and which are consistent with the
Company's policies in effect from time to time with respect to professional
licenses, travel, entertainment and other business expenses, subject to the
Company's requirements with respect to reporting and documentation of such
expenses.
3. TERMINATION AT WILL AND SEVERANCE
Employee's employment may be terminated at will (for any reason or no reason at
all). During the term hereof, Employee agrees to comply with all of the
Company's policies and procedures and acknowledges that policies and procedures
may periodically change.
If the Company terminates Employee's employment for any reason other than cause
(cause is defined as (i) a material breach by Employee of any material provision
of this Agreement which breach has not been cured within ten (10) days after
written notice to Employee, (ii) violation in any material respect of a written
directive of the Board or CEO, or (iii) violation of a material Company policy),
the Company shall pay the Employee one (1) year of Base Salary then in effect.
Such compensation will be payable in regular and equal installments in
accordance with the general payroll practices of the Company.
If the Company terminates Employee's employment for any reason other than cause,
Employee and his/her family will further be eligible to receive health and
dental coverage for such Employee and his/her family and the Company shall pay
all COBRA premiums associated with such coverages for the one (1) year period
following such Employee's termination.
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4. NO OTHER SIMILAR EMPLOYMENT
The Employee shall not, during the term of his/her employment, be interested
directly or indirectly in any manner, as a partner, officer, director,
significant stockholder (i.e. greater than 5% interest), advisor, employee or in
any capacity, in any other business similar to the Company's business; the
Company's business includes, but is not limited to, the furnishing of products
and services involving background and foreground music, audio messaging, music
videos, commercial television, digital signage, and drive-thru systems to
commercial and industrial establishments. Notwithstanding the foregoing, the
Employee may engage in investment activities in related businesses, but may not
be an active participant in such businesses.
5. NO OTHER EMPLOYMENT AGREEMENTS
Employee warrants that he/she is not a party to any employment or like agreement
or restrictive contract or agreement which limits the scope of his/her
employment as described in this Agreement. Employee agrees to hold the Company
harmless from any and all suits and claims arising out of any such employment
agreement or restrictive contracts or agreements.
6. NONDISCLOSURE COVENANT
The Employee shall not, at any time or in any manner, either directly or
indirectly, divulge, disclose, or communicate to any person, firm or corporation
in any manner whatsoever trade secrets of the Company including but not limited
to any information relating to the manner of Company's operations, its plans,
clients, processes, financials, forecasts, cost and pricing strategies, or other
data. The parties hereby stipulate as among them, all such matters relating to
the Company are important, material, confidential and gravely affect the
effective and successful conduct of the business of the Company and the
Company's goodwill, and that any breach of the terms of this Section 6 shall be
a material breach of this Agreement. Employee also agrees that he/she shall,
upon termination of his/her employment for any reason whatsoever, deliver to
his/her supervisor any and all tangible embodiments of such trade secrets
including lists of names or other client or account data, contracts, proposals,
studies, records, engineering or economic data, forms, notes and any other
articles or papers which have come into his/her possession by reason of his/her
employment or which he/she holds for the Company, irrespective of whether or not
any of said items were prepared by him/her, and he/she shall not retain
memoranda or copies of any such items. Employee acknowledges that in addition to
the nondisclosure provisions contained in this Agreement, the Company's trade
secrets and confidential information also are protected from use or disclosure
by the Delaware Uniform Trade Secrets Act, DEL. CODE XXX. tit. 6, ss. 2001et
seq. (2005).
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7. NON-SOLICITATION COVENANT
In recognition of the uniqueness of the services which the Company provides, as
well as the confidential information and trade secrets which will be disclosed
to the Employee during the course of his/her employment with the Company, and in
consideration of his/her employment by the Company, the Employee hereby agrees
that he/she will not directly or indirectly during a period of two (2) years
from the last date on which the Employee is employed by the Company (i) solicit
or seek to solicit or induce or attempt to induce any employee or full-time
independent contractor of the Company to leave the employ of, or contracting
relationship with, the Company, (ii) solicit or seek to solicit or induce or
attempt to induce any client, supplier or other business relation of the Company
to cease doing business with the Company, or (iii) solicit or seek to solicit or
induce or attempt to induce any client, supplier or other business relation of
the Company to enter into a commercial relationship to the detriment of the
Company.
8. REMEDIES
Employee acknowledges that the restrictions contained in Sections 6 and 7 of
this Agreement, in view of the nature of the business in which the Company is
engaged and the Employee's role in that business, are reasonable and necessary
to protect the legitimate interests of the Company. Employee understands and
agrees that his/her violation will cause irreparable injury within a short
period of time, and that the Company or its affiliates shall be entitled to seek
and obtain preliminary, permanent and other injunctive relief against any such
actual or threatened violations. Employee further agrees that the Company shall
be entitled to recover damages including an equitable accounting of all
earnings, profits, and other benefits arising from any such violations by
Employee. Such relief shall be in addition to, and in no way in limitation of,
any and all other remedies the Company shall have in law or in equity for the
enforcement of such covenants and provisions. Employee shall pay any and all
reasonable attorneys' fees and associated costs incurred by the Company in
enforcing this Agreement and/or seeking any relief or damages.
9. EFFECT OF WAIVER
The waiver by the Company of a breach of any provision of this Agreement by
Employee shall not operate as a waiver of any subsequent or other breach by
Employee.
10. INVALID PROVISIONS
In the event any provision(s) of this Agreement are held invalid or
unenforceable, such holding shall not affect the validity or enforceability of
the remaining provisions of this Agreement, and such remaining provisions shall
nonetheless be deemed in full force and effect.
11. SUCCESSORS AND ASSIGNS
This Agreement is fully assignable by the Company and will inure to the benefit
of and be enforceable by the Company's successors and assigns.
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12. CHOICE OF LAW AND FORUM
The laws of the state of Delaware (without giving effect to its conflict of law
principles) govern all matters arising out of or relating to this Agreement,
including without limitation, its validity, interpretation, construction,
performance, and enforcement.
Any party bringing a legal action or proceeding against any other party arising
out of or relating to this Agreement may bring the legal action or proceeding in
the United States District Court for the District of Delaware or in any Court of
Chancery of the State of Delaware.
Each party to this Agreement waives, to the fullest extent permitted by law, (i)
any objection which it may now or later have to the laying of venue of any legal
action or proceeding arising out of or relating to this Agreement brought in any
Court of Chancery of the State of Delaware or the United States District Court
for the District of Delaware, and (ii) any claim that any action or proceeding
brought in any such court has been brought in an inconvenient forum.
Each party to this Agreement submits to the nonexclusive jurisdiction of (i) the
United States District Court for the District of Delaware and its appellate
courts, and (ii) any court of Chancery of the State of Delaware and its
appellate courts, for the purpose of all legal actions and proceedings arising
out of or relating to this Agreement.
Employee irrevocably consents to the service of process by mailing a copy of the
process to Employee via certified mail to the last known address provided by
Employee in writing to the Company's Team Member Services Department.
13. ENTIRE AGREEMENT
This Agreement embodies the complete agreement and understanding among the
parties hereto with respect to the subject matter hereof and supersedes and
preempts any prior understandings, agreements or representations by or among the
parties, written or oral, which may have related to the subject matter hereof in
any way.
EMPLOYEE ATTESTS THAT HE/SHE HAS BEEN AFFORDED THE OPPORTUNITY TO CONSIDER THIS
AGREEMENT, HAS CAREFULLY READ THIS ENTIRE AGREEMENT, AND HAS BEEN ADVISED BY THE
COMPANY TO DISCUSS THIS AGREEMENT WITH AN ATTORNEY OF HIS/HER CHOICE. EMPLOYEE
AFFIRMS THAT HE/SHE IS FULLY COMPETENT TO EXECUTE THIS AGREEMENT AND THAT HE/SHE
DOES SO VOLUNTARILY. EMPLOYEE FURTHER ATTESTS THAT HE/SHE POSSESSES SUFFICIENT
EDUCATION AND/OR EXPERIENCE TO FULLY UNDERSTAND THE EXTENT AND IMPACT OF THIS
AGREEMENT'S PROVISIONS.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
Effective Date.
/s/ Xxxx Xxxxxx
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Employee
Muzak LLC
/s/ Xxxxx Xxxxxxx
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By
Vice President Client & Team Member Services
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Title
This Agreement shall be duplicated, one copy to be retained by Employee, one
copy to be retained in the Employee's personnel file.
Rev. 10/2006
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