EXHIBIT 10.13
THIS EMPLOYMENT AGREEMENT IS ENTERED INTO AS OF THE 13th DAY OF OCTOBER 2003.
BETWEEN : TOUCHTUNES MUSIC CORPORATION, a company
incorporated under the laws of Nevada.
c/o TouchTunes Digital Jukebox Inc.,
a corporation incorporated under the
Canada Business Corporations Act,
having its offices at Three Commerce Place,
4th floor, Nuns' Island, Verdun,
Province xx Xxxxxx, Xxxxxx X0X 0X0;
(hereinafter referred to as
the "CORPORATION")
AND: XX. XXXXXX XXXXXX, 0000 00XX XXXXXX XXXXX,
XXXXXXXXX, XXXXXXXXX, 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 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 shall commence on January 5, 2004.
2 DUTIES
2.1 The Corporation hereby confirms having agreed to engage Executive as
Vice President Business Affairs, Music Rights and Licenses. In such
capacity, Executive shall perform such duties and exercise such powers
pertaining to such role for the Corporation and its affiliates.
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CORPORATION EXECUTIVE
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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.
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 $160,000, 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.
5 LONG-TERM COMPENSATION PLAN
5.1 Subject to the approval of the Board of Directors, Executive shall be
granted, within 60 days from the commencement of her employment, a
grant of 50,000 Units in the Long-term Compensation Plan of TouchTunes
Music Corporation ("the Plan").
5.2 The Units shall vest over a four-year period in equal annual
installments.
6 BONUS
6.1 Executive is entitled to an annual bonus. Said bonus shall be payable
on an annual basis and within the following guidelines set by the
compensation committee. Such bonus will be based upon the achievement
of the budget plan ("BP") of the Corporation, as approved by the
Corporation's Board of Directors and will be capped at 35% of base
salary. The bonus will be based upon a prorated percentage of the
Corporation's achievement versus BP as set out in Exhibit 1 to this
agreement. In addition, Executive is entitled to an additional bonus at
the discretion of the compensation committee up to an additional 10% of
her annual base salary as set out in Exhibit 1.
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CORPORATION EXECUTIVE
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7 VACATION
7.1 Executive shall be entitled to three (3) weeks of paid vacation per
fiscal year of the Corporation. Such vacation will be prorated for
partial years. 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, 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 her duties hereunder. For all such
expenses Executive shall furnish to the Corporation supporting evidence
for expenses in respect of which Executive seeks reimbursement. Said
expenses must be submitted on a timely basis with a maximum delay of
four weeks.
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 AND SEVERENCE PAYMENTS
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 her annual base
salary hereunder for such remaining part
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of the period specified in the notice from Executive, and the
Corporation shall have no further obligations.
9.1.3 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.
9.1.4 Upon written notice from the Corporation to Executive in the event of
termination of her employment without Cause, in which event Executive
shall be entitled to receive an indemnity in lieu of notice equal to
nine (9) months of Executive's base salary at the time of termination.
Upon receipt of a release and discharge acceptable to the Corporation,
such indemnity shall be paid to Executive in a lump sum in accordance
with the normal and then current payroll practices of the Corporation
and the Corporation shall have no further obligations hereunder in the
event of such termination.
9.2 For Disability/Death
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.
This agreement shall terminate without notice upon the death of
Executive.
In the event of permanent disability or death of the Executive, the
Executive shall be entitled to receive an indemnity in lieu of notice
equal to nine (9) months of Executive's base salary at the time of
termination. Upon receipt of a release and discharge acceptable to the
Corporation, such indemnity shall be paid to Executive in a lump sum in
accordance with the normal and then current payroll practices of the
Corporation and the Corporation shall have no further obligations
hereunder in the event of such termination.
10 CONFIDENTIALITY
10.1 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, including, without limitation, any trade secret (process,
plan, form, marketing strategy, etc.), all computer programs in any
form (diskette, hard disk, tape, printed
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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:
10.1.1 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;
10.1.2 Information that the Corporation authorizes Executive
to disclose in writing; or
10.1.3 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.
10.2 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.
11 NON-SOLICITATION
11.1 Executive agrees that she shall not, during her employment and for a
period of twelve (12) months following the termination of her
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 away from the
employment of the Corporation or its subsidiaries, any individual
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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.
12 NON-COMPETITION
12.1 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.
13 INTELLECTUAL PROPERTY
13.1 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.
13.2 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.
13.3 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
preparation, prosecution, issuance, procurement and maintenance of
patent or
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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.
14 ENFORCEABILITY
14.1 Executive hereby confirms and agrees that the covenants and
restrictions pertaining to Executive contained in this agreement,
including, without limitation those contained in Sections 10 to 14
hereof, are reasonable and valid.
14.2 Without limiting the remedies available to the Corporation, Executive
hereby expressly acknowledges and agrees that a breach of the covenants
contained in Sections 10 to 14 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 10 to
14 or such other relief as may be required to enforce specifically any
of the covenants of Sections 10 to 14. Such proceedings shall not
preclude the Corporation from claiming for damages that it has
suffered.
15 RETURN OF MATERIALS
15.1 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 her personal or business
use or that of any other party, reproductions or copies of any such
property or other property of the Corporation.
16 GOVERNING LAW
16.1 This agreement shall be governed by and construed in accordance with
the laws of the state of New York.
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17 SEVERABILITY
17.1 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.
18 NO ASSIGNMENT
18.1 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.
19 SUCCESSORS
19.1 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.
20 SURVIVAL OF COVENANTS
20.1 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.
21 LEGAL ADVICE
21.1 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 she did not avail herself of that
opportunity prior to signing this agreement, she did so voluntarily
without any undue pressure and agrees that her failure to obtain
independent legal advice shall not be used by her as a defense to the
enforcement of her 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 & CEO
EXECUTIVE
/s/ Xxxxxx Xxxxxx
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per: Xxxxxx Xxxxxx
