|
Exhibit
10.29
EMPLOYMENT
AGREEMENT
This Employment Agreement
(the “ Agreement ”) is entered into as of
September 8, 2006 (the “ Effective Date ”),
between Digital Music Group, Inc., a Delaware corporation (“
DMGI ”), and Tuhin Roy, a resident of California (the
“ Executive ”).
In consideration of the
promises and the terms and conditions set forth in this Agreement,
the parties agree as follows:
1. Position and
Duties . During the term of this Agreement, DMGI will
employ Executive, and Executive will serve DMGI as its Chief
Strategy Officer. As such, Executive shall have such
responsibilities, duties and authority as reasonably accorded to
and expected of a Chief Strategy Officer. In addition, Executive
shall be appointed President of Digital Rights Agency, Inc., a
wholly-owned subsidiary of DMGI (“ Subsidiary
”), and shall have such responsibilities, duties and
authority as reasonably accorded to and expected of such. The
responsibilities, duties and authority of Executive will include,
among other things, managing and growing the short-term digital
distribution business of DMGI and Subsidiary and expansion of the
sales channel outlets of DMGI and Subsidiary. Additional or
different duties, titles or positions may from time to time be
assigned to or taken from Executive by the Chief Executive Officer
and/or the Board of Directors of DMGI, provided that any such
changes are consistent and compatible with Executive’s
experience, background and managerial skills; refer to Sections 7.5
and 8.4 hereof for additional rights of the Executive in the event
of such a change in his title, duties or responsibilities.
Executive will report directly to the Chief Executive Officer of
DMGI.
2. Performance of
Duties . Executive will be based at and perform his duties
under this Agreement primarily at the San Francisco offices of
DMGI. Executive hereby represents and warrants that he is free to
enter into and fully perform this Agreement and the agreements
referred to herein without breach of any agreement or contract to
which he is a party or by which he is bound. Executive hereby
further represents and warrants that he has provided DMGI with
copies of any employment, confidentiality, non-competition or
non-solicitation agreements currently binding upon him.
3. Exclusive
Service . Executive shall devote his full time and efforts
(from a business perspective) exclusively to this employment and
apply all his skills, effort and experience to the performance of
his duties and advancing DMGI’s interests. Executive shall
not be engaged in any other business activity pursued for salary,
fees, profit, gain or other pecuniary advantage if such activity
interferes with Executive’s duties and responsibilities
hereunder. Executive will not engage in any professional consulting
activity nor serve on any corporate boards except with the prior
written approval of DMGI’s Board of Directors, or at the
direction of DMGI’s Board of Directors, and Executive will
otherwise refrain from engaging in any activities inconsistent or
in conflict with the performance of his duties hereunder. However,
the foregoing limitations shall not be construed as prohibiting
Executive from making personal investments in a passive form or
manner that will not require his services in the operation or
affairs of the companies or enterprises in which such investments
are made.
4. Compliance with
Policies . DMGI has established policies, procedures and
practices, and Executive will comply with and be bound by all such
policies, procedures and
practices from time to time in effect
during Executive’s employment. Executive will be employed in
a position of leadership within DMGI and will be expected to
faithfully adhere to, execute and fulfill all corporate policies
established by DMGI, now and in the future, in addition to
monitoring compliance with such policies by other officers,
employees and directors, particularly DMGI’s Code of Business
Conduct.
5. Confidential or
Proprietary Information and Inventions .
5.1 Company
Information . Executive agrees at all times during the term
of his employment and thereafter, to hold in strictest confidence
and not to use, except for the benefit of DMGI, or to disclose to
any person, firm or corporation (except within the scope of his
employment) without written authorization of the Chief Executive
Officer or Chairman of the Board of Directors of DMGI, any
Confidential Information of DMGI. Executive understands that
“ Confidential Information ” means any DMGI
financial or operating information, contents of music libraries,
data bases, technical data, trade secrets or know-how, including,
but not limited to, research, product plans, products and
processes, services, customer lists, channel partner lists, target
acquisition lists and customers, channel partners and target
acquisitions (including, but not limited to, customers, channel
partners and target acquisitions of DMGI on whom Executive called
or with whom Executive became acquainted during the term of his
employment), market data, software, inventions, music processing
techniques, formulas, technology, designs, drawings, engineering,
hardware configuration information, marketing, financial reports or
other business information disclosed to Executive by DMGI or
prepared by Executive during his employment by DMGI, either
directly or indirectly, in writing, orally, by drawings, or by
observation of documents, technology or equipment. DMGI and
Executive acknowledge that Confidential Information does not
include any of the foregoing items which have become publicly known
and made generally available through no wrongful act of
Executive’s or of others who were under confidentiality
obligations as to the item or items involved.
5.2 Third Party
Information . Executive recognizes that DMGI has received
and in the future will receive from third parties (including, but
not limited to, vendors, customers, channel partners and
acquisition targets) their confidential or proprietary information
subject to a duty on DMGI’s part to maintain the
confidentiality of such information and to use it only for certain
limited purposes. Executive agree to hold all such confidential or
proprietary information in the strictest confidence and not to
disclose it to any person, firm or corporation or to use it except
as necessary in carrying out his work for DMGI consistent with
DMGI’s agreement with such third party.
5.3 No Prior
Inventions . Executive represents that, as of the Effective
Date of this Agreement, other than musical composition and sound
recording copyrights, he has no inventions, original works of
authorship, developments, improvements or trade secrets which were
made by him prior to his employment with DMGI, which relate to
DMGI’s business, operations, digitization processes, music
library or research and development.
5.4 Future
Inventions . DMGI shall own all right, title and interest
(including patent rights, copyrights, trade secret rights, mask
work rights, sui generis database rights and all other
intellectual and industrial property rights of any sort) to any and
all inventions (whether or not patentable), works of authorship,
mask works, designs, know-how, ideas and information
made or conceived or reduced to
practice, in the whole or in part, by Executive during the term of
his employment with DMGI to and only to the fullest extent allowed
by California Labor Code Section 2870 (attached hereto as
Exhibit A) (collectively referred to herein as “
Inventions ”). Executive agrees that he will promptly
make full written disclosure to DMGI, will hold in trust for the
sole right and benefit of DMGI, and hereby assign to DMGI or its
designee, all his right, title, and interest in and to any and all
Inventions, except as provided in Section 5.7 below. To the
extent allowed by law, this section includes all right of
paternity, integrity, disclosure and withdrawal and any other
rights that may be known as or referred to as “moral
rights” or the like. To the extent Executive retains any such
moral rights under applicable law, Executive hereby ratifies and
consents to any action that may be taken with respect to such moral
rights by or authorized by DMGI and agrees not to assert any moral
rights with respect thereto. Executive will confirm any such
ratifications, consents and agreements from time to time as
requested by DMGI.
5.5 Maintenance of
Records . Executive agrees to keep and maintain adequate
and current written records of all Inventions made by him (solely
or jointly with others) during the term of his employment with
DMGI. The records will be in the form of notes, sketches, drawings
and any other format that may be specified by DMGI. The records
will be available to and remain the sole property of DMGI at all
times.
5.6 Patent and
Copyright Registrations . Executive agrees to assist DMGI,
or its designee, at DMGI’s expense, in every proper way to
secure DMGI’s rights in any Inventions and any copyrights,
patents, mask work rights or other intellectual property rights
relating thereto in any and all countries, including the disclosure
to DMGI of all pertinent information and data with respect thereto,
the execution of all applications, specifications, oaths,
assignments and all other instruments which DMGI shall reasonably
deem necessary in order to apply for and obtain such rights and in
order to assign and convey to DMGI, its successors, assigns and
nominees the sole and exclusive rights, title and interest in and
to such Inventions, and any copyrights, patents, mask work rights
or other intellectual property rights relating thereto. Executive
further agrees that his obligation to execute or cause to be
executed, when it is in his power to do so, any such instrument or
papers shall continue after the termination of this Agreement. If
DMGI is unable because of his mental or physical incapacity or for
any other reason to secure his signature to apply for or to pursue
any application for any United States or foreign patents or
copyright registrations covering Inventions or original works of
authorship assigned to DMGI as above, then Executive hereby
irrevocably designates and appoints DMGI and its duly authorized
officers and agents as his agent and attorney in fact, to act for
and in his behalf and stead to execute and file any such
applications and to do all other lawfully permitted acts to further
the processing and issuance of letters patent or copyright
registrations thereon with the same legal force and effect as if
executed by Executive.
5.7 Exception to
Assignments . Executive understands that the provisions of
this Agreement requiring assignment of Inventions to DMGI do not
apply to any invention which qualifies fully under the provisions
of California Labor Code Section 2870. Executive will advise
DMGI promptly in writing of any Inventions that Executive believes
meet the criteria in California Labor Code
Section 2870.
6. Compensation and
Benefits .
6.1 Base Salary
. Beginning on the Effective Date, DMGI shall pay Executive a
base salary of one hundred and thirty thousand dollars ($130,000)
per year (“ Base Salary ”), payable as earned in
accordance with DMGI’s customary payroll practice. On at
least an annual basis, the Compensation Committee of the Board of
Directors will review Executive’s performance and may make
increases to such base salary if, in their sole discretion, any
such increase is warranted. No reductions will be made to
Executive’s base salary unless it is part of a company-wide
expense reduction plan authorized by the Board of Directors of
DMGI, applying ratably to the base salaries of all executive
officers and to the fees earned by directors; refer to Sections 7.5
and 8.4 hereof for additional rights of the Executive in the event
of such a company-wide reduction in base salaries.
6.2 Additional
Benefits . Executive will be eligible to participate in
DMGI’s employee benefit plans of general application in
effect from time to time, as amended, including without limitation,
those plans covering pension and profit sharing, executive
perquisites, stock purchases, and those plans covering life,
health, and dental insurance in accordance with the rules
established for individual participation in any such plan and
applicable law. Once Executive is eligible for health and dental
insurance coverage hereunder, Executive’s spouse and
dependents shall also be eligible for such coverage in accordance
with the terms of DMGI’s policies and plans and the contracts
with third party providers. In addition, beginning on the Effective
Date, Executive will receive such other benefits, including
vacation, holidays and sick leave, as DMGI generally provides to
its Senior Executives.
6.3 Incentive Bonus
Plan . Subject to the terms of DMGI’s management
incentive bonus plan, as amended from time to time (the “
Bonus Plan ”), Executive will be eligible to earn cash
bonuses on an annual basis, payable as determined under the Bonus
Plan, but not until such time as the Compensation Committee of the
Board of Directors of DMGI determines the targets, milestones,
performance objectives and measurement criteria to be met each
fiscal year and approves the payment of specific cash bonuses after
the end of each fiscal year based upon the objective calculations
and discretionary judgments as called for in the Bonus
Plan.
6.4 Expenses .
DMGI will reimburse Executive for all reasonable and necessary
travel and other expenses incurred by Executive in connection with
DMGI’s business, provided that such expenses are in
accordance with DMGI’s applicable expense reporting and
reimbursement policy and are properly documented and accounted
for
|
