EXHIBIT 10.68
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT is made and entered into this 18th day of
November, 2002 by and between Liquid Audio, Inc., a Delaware corporation
(hereafter referred to as "the Company", "the Employer", or "Liquid Audio"), and
Xxxxx X. Xxxxx (hereafter referred to as "Executive").
1. EMPLOYMENT AND DUTIES AND RESPONSIBILITIES: Executive will perform the
duties and responsibilities of Chairman of the Board of Directors
(hereafter "Board" or "Board of Directors") of Liquid Audio reporting to
the Board, and in that capacity Executive shall perform all services, acts
or functions necessary or advisable to manage and conduct the business of
Liquid Audio, and shall perform such other duties and responsibilities as
the Employer may from time-to-time direct. At all times the Executive shall
be subject to the policies and directions of the Board of Directors, and
subject to all applicable laws, rules and regulations. The Board of
Directors may, from time to time, at its sole discretion, modify or
reassign Executive's duties, responsibilities, titles and/or reporting
relationships.
2. DEVOTION OF TIME TO EMPLOYER'S BUSINESS: Executive further agrees to devote
his time, as necessary, to the success of the Company to perform his duties
and responsibilities to the best of his professional skill and ability.
Executive shall not engage in any activities which are, or could be,
construed as being illegal, unethical, a conflict of interest with, or in
competition with the activities and interests of the Company and its
affiliates, or otherwise without approval from the Board of Directors.
3. COMPENSATION: For the term of this Agreement, Executive shall be
compensated as follows:
a. Base Salary: For the services to be rendered by Executive as
Chairman of the Board, or in such other capacity as may be directed by the
Board of Directors, Employer agrees to pay Executive an annual base salary
of One-Hundred Forty-Four Thousand Dollars ($144,000.00), subject to all
payroll deductions as required by law. On the first payroll date following
execution of this Agreement, Executive shall be advanced six months of his
salary ($72,000.00) in a single lump sum payment. Beginning December 1,
2002 salary payments to Executive will begin in the amount of $12,000/month
and will continue through May 31, 2003.
b. Fringe Benefits: Executive shall be entitled to participate in
the benefit plans generally offered by the Company to its executive
employees with such modifications as may be determined by the Board in
light of the benefits provided to Executive hereunder. Executive shall
accrue paid vacation benefits during the Employment Period at the rate of 4
weeks per year.
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4. TRADE SECRETS AND CONFIDENTIAL INFORMATION OF COMPANY AND ITS AFFILIATES:
During the course of his employment, Executive has and will come into the
possession of or acquire confidential, proprietary and trade secret
information of the Company and its affiliates. Executive hereby covenants
and agrees that he will not, either during the term of his employment or at
any time thereafter, disclose any such confidential, proprietary or trade
secret information to any third person (other than those in the Company's
organization and those of the Company's affiliates qualified to receive
such information) for any purpose or reason whatsoever unless and until
such information generally enters the public domain through no act or
omission of Executive. Such confidential and proprietary information shall
be deemed to include, but not be limited to:
a. the nature and terms of the Company's and its affiliates'
contractual relationships, product specifications, data, know-how,
formulae, processes, designs, inventions and ideas, research and
development, manufacturing or distribution methods and processes, customer
lists, customer requirements, vendor and supplier lists and pricing
information, marketing plans and strategies, market share, business plans,
manuals, computer software and databases, computer systems, structures, and
architectures and any other information, however documented or stored, that
is confidential, proprietary or a trade secret;
b. information, however documented or stored, concerning the
business and affairs of the Company and its affiliates (which includes but
is not limited to financial statements, sales, capital spending, profit
margins, projections, plan and budgets regarding any of the preceding, and
the names, compensation and backgrounds of key personnel);
c. notes, analysis, compilations, studies, summaries, and other
material prepared by or for the Company or its affiliates containing or
based, in whole or in part, on any information included in the foregoing;
and
d. the terms and conditions of this Agreement subject to necessary
disclosure to Executive's legal and financial consultants who agree in
writing to be bound to protect its confidentiality.
Executive specifically agrees that he will not make use of any such
confidential or proprietary information or trade secrets for his own
purpose, or for the benefit of any person, firm, corporation or other
entity except the Company and its appropriate affiliates. Executive further
agrees that he will not in any manner solicit, induce or attempt to induce
any employee, independent contractor, consultant, or member of the Board of
Directors of the Company or its affiliates to terminate their employment,
contractual or other relationship with the Company or its affiliates.
5. TERM: Executive's employment arrangement under this Agreement shall
commence on November 18, 2002 and continue for one (1) year until November
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18, 2003 (hereinafter referred to as the "Expiration Date") subject to the
provisions of this Agreement as to termination and severance compensation
contained in Section 6 below. The period during which Executive's
employment continues in effect pursuant to this Agreement is referred to
herein as the "Employment Period."
6. TERMINATION OF EMPLOYMENT:
a. Termination Without Cause: The Company shall have the right to
terminate this Agreement and Executive's employment without cause before
the Expiration Date upon notice to Executive. In such event, the Company
shall pay Executive severance compensation as follows. The Company shall
pay Executive severance compensation in an amount equal to the base salary
he would have earned pursuant to Section 3(a) between the date of his
termination and the Expiration Date. This compensation will be provided in
a lump sum subject to all payroll deductions as required by law.
b. Termination For Cause: The Company shall have the right to
immediately terminate Executive before the Expiration Date for Cause upon
notice to Executive. Cause shall mean:
(i) A material breach by Executive of any term of this
Agreement, or of any of the Board of Directors' instructions, the Company's
policies, Executive's fiduciary duties to the Company, or of any law,
statute or regulation;
(ii) The failure to achieve the Company's reasonable profit,
revenue or other objectives or goals as determined by the Board of
Directors which failure is related to or arises out of Executive's
performance of his duties or responsibilities as Chairman of the Board, or
such other duties or responsibilities as set forth herein or as he is
assigned by the Board of Directors;
(iii) Misconduct which is injurious to the Company or any of its
affiliates, either monetarily or otherwise, or which impairs Executive's
ability to effectively perform his duties or responsibilities;
(iv) The habitual or repeated neglect of his duties or
responsibilities by Executive;
(v) The appropriation (or attempted appropriation) of a business
opportunity of the Company or its affiliates, including attempting to
secure or securing any personal profit in connection with any transaction
by the Company or its affiliates; or
(vi) The commission of or conviction for (or its procedural
equivalent), or the entering of a guilty plea or plea of no contest with
respect to a crime or any conduct of the Executive which, in the Company's
reasonable judgment, involves moral turpitude.
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In the event that the Executive is terminated for Cause, the Company shall
be obligated to pay Executive his base salary, prorated to the effective
date of termination only. Any termination under this section shall be
without prejudice as to any other remedy to which the Company may be
entitled either under this Agreement or at law.
c. Termination Upon Acquisition: If the Company or a significant
portion thereof is sold or merged or undergoes a change of control
transaction prior to the Expiration Date, this Agreement shall
automatically terminate as of the date of the completion of the transaction
at issue. In such an event, the Company shall be obligated to pay Executive
any remaining base salary, as specified in Section 3 of this agreement.
This payment will be made in a single lump sum, subject to all payroll
deductions as required by law. In the event that the company is acquired by
Roxio, Inc. this Agreement will automatically terminate once the
transaction is approved by the shareholders and the Company shall be
obligated to pay Executive his base salary, prorated to the effective date
of termination only.
d. Voluntary Resignation: Executive may voluntarily terminate his
employment under this Agreement at any time; however Executive agrees to
provide at least thirty (30) days written notice to the Employer. Provided
Executive complied with the thirty (30) day notice requirement, the Company
shall be obligated to pay Executive only his base salary prorated to the
effective date of termination only.
e. Further Conditions of Severance: The receipt by the Executive of
any severance or other post termination benefits shall be conditioned upon
the Executive complying with all the terms of this Agreement, including
Sections 4 and 7, and the execution of a general release in favor of the
Company.
7. NON-COMPETITION AND NON-SOLICITATION:
a. The Executive acknowledges that: the services to be performed by
him under this Agreement are of a special, unique, unusual, extraordinary,
and intellectual character; the Company's business is international in
scope and its products and services are currently marketed and sold around
the world including throughout the United States; the Company competes with
other businesses that are or could be located in any part of the United
States or the rest of the world; the provisions of this Section 7 are
reasonable and necessary to protect the Company's business; and in
connection with the fulfillment of his duties and responsibilities
hereunder, the Company will provide Executive with confidential,
proprietary and trade secret information necessitating the execution of the
covenants contained in this Section.
b. During Executive's employment and any period Executive is being
paid or receiving any benefits hereunder following his employment,
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Executive agrees that he will not do any of the following in paragraphs (i)
and (ii):
(i) Engage or invest in, own, manage, finance, or participate
in the ownership, management, operation, financing, or control of, be
employed by, associated with, lend the Executive's name to, lend
Executive's credit to or render services or advice to as an independent
contractor, consultant or otherwise to any business whose products,
services or activities compete in whole or in part with the products,
services or activities of the Company or its affiliates anywhere within a
100 mile radius of any physical location utilized, operated, or staffed by
the Company; provided, however, that the Executive may purchase or
otherwise acquire up to (but not more than) five percent of any class of
securities of any enterprise (but without otherwise participating in the
activities of such enterprise) if such securities are listed on any
national or regional securities exchange or have been registered under
Section 12(g) of the Securities Exchange Act of 1934;
(ii) Solicit business of the same or similar type being carried
on by the Company or its affiliates from any person known by the Executive
to be a customer of the Company or its affiliates;
c. If any covenant in this Section 7 is held to be unreasonable,
arbitrary, or against public policy, such covenant will be considered to be
divisible with respect to scope, time, and geographic area, and such lesser
scope, time, or geographic area, or all of them, as a court or arbitrator
of competent jurisdiction may determine to be reasonable will be binding
and enforceable against the Executive.
d. The Executive will, while the covenants under this Section 7 is
in effect, give notice to the Company, within ten days after accepting any
other employment, of the identity of the Executive's new employer. The
Company may notify such new employer that the Executive is bound by this
Agreement and, at the Company's election, furnish such employer with a copy
of this Agreement or relevant portions thereof.
e. The covenants by the Executive in Section 7 are essential
elements of this Agreement, are designed among other reasons to prevent the
inevitable disclosure of confidential and proprietary information and trade
secrets and to protect the Company's and its affiliates' businesses.
Without the Executive's agreement to comply with such covenants, the
Company would not have entered into this Agreement or continued the
employment of the Executive.
8. DEATH OR DISABILITY. Upon Executive's death or Disability during the
Employment Period, the employment relationship created pursuant to this
Agreement shall immediately terminate, and no further compensation shall
become payable to Executive pursuant to Section 3. In connection with such
termination, the Company shall only be required to pay Executive or his
estate
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(i) any unpaid base salary earned under Section 3(a) for services rendered
through the date of his termination; and (ii) the dollar value of all
accrued and unused vacation benefits based upon Executive's most recent
level of base salary. For purposes of this Section 8, Disability shall mean
the Executive's inability, by reason of any physical or mental injury or
illness, to substantially perform the services required by him hereunder
for a period in excess of ninety (90) consecutive days or in excess of
ninety (90) total days in any consecutive six (6) month period. In such
event, Executive's employment shall be deemed to have terminated by reason
of Disability on the last day of the applicable ninety (90)-day or six
(6)-month period. In addition to the foregoing, Executive or his estate
shall be entitled to any benefits available under the terms of any
disability or other plan in which Executive was a participant at the time
of his death or Disability.
9. ARBITRATION OF DISPUTES. Should either party to this Agreement have any
dispute as to any aspect of this Agreement, or arising out of, or related
or connected with Executive's termination, compensation, or benefits, or
should Executive allege that the Company has violated any of his rights
under state or federal employment or civil rights laws or any other laws,
statutes or constitutional provisions, including, but not limited to, the
Age Discrimination in Employment Act of 1967, the California Fair
Employment and Housing Act, the Civil Rights Act of 1964, the Americans
With Disabilities Act of 1990, the Federal Family and Medical Leave Act, or
the California Family Leave Act, the parties will submit any such dispute
to final and binding arbitration pursuant to the JAMS/Endispute Arbitration
Rules and Procedures for Employment Disputes. Unless another limitations
period is expressly mandated by statute, to be timely, any dispute must be
referred to arbitration within twelve (12) months of the incident or
complaint giving rise to the dispute. Disputes not referred to arbitration
within such twelve (12) month period shall be deemed waived, and the
arbitrator shall deny any untimely claims. THE PARTIES EXPRESSLY AGREE THAT
SUCH ARBITRATION SHALL BE THE EXCLUSIVE REMEDY FOR ANY DISPUTE INVOLVING
THIS AGREEMENT, THE EXECUTIVE'S EMPLOYMENT, TERMINATION, COMPENSATION,
BENEFITS OR THE VIOLATION OF EXECUTIVE'S CIVIL RIGHTS, AND HEREBY EXPRESSLY
WAIVE ANY RIGHT THEY HAVE OR MAY HAVE TO A COURT TRIAL OR A JURY TRIAL OF
ANY SUCH DISPUTE. In making an award, the arbitrator shall have no power to
add to, delete from or modify this Agreement, or to enforce purported
unwritten or prior agreements, or to construe implied terms or covenants
into the Agreement. It is further agreed by the parties that venue for any
arbitration or other legal proceedings shall be Santa Xxxxx County,
California. This arbitration clause is entered pursuant to, and shall be
governed by, the Federal Arbitration Act, but in all other respects this
Agreement shall be governed by the provisions of California law. If the
Federal Arbitration Act is not applicable then the California Arbitration
statute shall govern (Code of Civil Procedure Section 1280 et seq). In any
event, the Company shall pay the cost of the arbitrator and any other type
of cost unique to the arbitration setting (e.g., administrative fees in
excess of the filing fee Executive would have paid in court). If any one or
more provisions of this arbitration clause shall for any
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reason be held invalid or unenforceable, it is the specific intent of the
parties that such provisions shall be modified to the minimum extent
necessary to make it or its application valid and enforceable.
10. ATTORNEYS' FEES: Should any arbitration or litigation commence between the
parties concerning this Agreement or the rights and obligations of either
party, whether it be an action for damages, equitable or declaratory
relief, the prevailing party in any arbitration or litigation shall be
entitled to, as an element of its costs, in addition to other relief as may
be granted by the arbitrator or Court, reasonable sums as and for
attorneys' fees and expert witness fees, or such prevailing party may
recover such attorneys' fees and expert witness fees in a separate action
brought for that purpose.
12. CONSTRUCTION: Except as provided above in Section 9, this Agreement shall
be governed by the laws of the State of California. The invalidity of any
provision hereof shall not invalidate any other provision hereof.
13. SUCCESSORS AND ASSIGNS: This Agreement shall be binding upon the parties'
heirs, successors and assigns. The obligations and covenants of the
Executive under this Agreement, being personal, may not be delegated or
assigned.
14. SEVERABILITY. If any provision of this Agreement is held invalid or
unenforceable by any court of competent jurisdiction or an arbitrator, the
other provisions of this Agreement will remain in full force and effect.
Any provision of this Agreement held invalid or unenforceable only in part
or degree will remain in full force and effect to the extent not held
invalid or unenforceable.
15. ENTIRE AGREEMENT: This is the entire agreement between the parties and
supersedes any and all prior agreements or understandings between them.
Except as expressly provided herein, this Agreement may be not changed or
terminated orally, and no change, termination or attempted waiver of any of
the provisions hereof shall be binding unless in writing signed by both
Executive and the duly authorized officers of the Employer. Any such
written changes, terminations or waivers must specifically reference this
Agreement, and such changes as the Employer may from time-to-time make in
its general policies and procedures shall not be deemed or construed to be
written amendments to this Agreement, whether such changes are in writing
or not.
16. NO WAIVER. The waiver by either party of any term, condition or provision
of this Agreement shall not be construed as a waiver of any other or
subsequent term, condition or provision of this Agreement.
17. VOLUNTARY AGREEMENT: Executive and the Company represent and agree that
each has reviewed all aspects of this Agreement, has carefully read and
fully understands all provisions of this Agreement and is voluntarily
entering into this Agreement. Each party represents and agrees that such
party has had opportunity to review any and all aspects of this Agreement
with the legal tax, or other advisors of such party's choice.
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Executed this __4___day of ___December______________________ , 2002.
COMPANY
By: /s/ XXXXXXX X. XXXXXX
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Title: President & COO
Executive
/s/ XXXXX X. XXXXX
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Xxxxx X. Xxxxx
Chairman
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