{"id":39376,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/employment-agreement-mp3-com-inc-and-michael-robertson.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"employment-agreement-mp3-com-inc-and-michael-robertson","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/compensation\/employment-agreement-mp3-com-inc-and-michael-robertson.html","title":{"rendered":"Employment Agreement &#8211; MP3.com Inc. and Michael Robertson"},"content":{"rendered":"<pre>\n                              EMPLOYMENT AGREEMENT\n\n                                 BY AND BETWEEN\n\n                                     MP3.COM\n\n                                       AND\n\n                                MICHAEL ROBERTSON\n\n\n\n                               TABLE OF CONTENTS\n\n\n\n                                                                                     \n1.      Employment...................................................................    1\n                                                                                         \n2.      Loyal And Conscientious Performance; Noncompetition..........................    2\n                                                                                         \n3.      Compensation Of Executive....................................................    2\n                                                                                         \n4.      Termination..................................................................    3\n                                                                                         \n5.      Confidential And Proprietary Information; Nonsolicitation....................    4\n                                                                                         \n6.      Assignment And Binding Effect................................................    4\n                                                                                         \n7.      Notices......................................................................    4\n                                                                                         \n8.      Choice of Law................................................................    5\n                                                                                         \n9.      Integration..................................................................    5\n                                                                                         \n10.     Amendment....................................................................    5\n                                                                                         \n11.     Waiver.......................................................................    5\n                                                                                         \n12.     Severability.................................................................    5\n                                                                                         \n13.     Interpretation; Construction.................................................    6\n                                                                                         \n14.     Representations And Warranties...............................................    6\n                                                                                         \n15.     Litigation Costs.............................................................    6\n                                                                                         \n16.     Counterparts.................................................................    6\n                                                                                         \n17.     Arbitration..................................................................    6\n                                                                                         \n18.     Injunctive Relief............................................................    7\n                                                                                         \n19.     Trade Secrets Of Others......................................................    7\n                                                                                         \n20.     Advertising Waiver...........................................................    7\n\n\n\n                                       i.\n\n\n\n                              EMPLOYMENT AGREEMENT\n\n        This EMPLOYMENT AGREEMENT (the \"Agreement\") is made and entered into\neffective as of May 13, 1999, by and between MP3.COM (the \"Company\"), and\nMICHAEL ROBERTSON (\"Executive\"). The Company and Executive are hereinafter\ncollectively referred to as the \"Parties,\" and individually referred to as a\n\"Party.\"\n\n                                    RECITALS\n\n        A. The Company desires assurance of the continued association and\nservices of Executive in order to retain Executive's experience, skills,\nabilities, background and knowledge, and is willing to engage Executive's\nservices on the terms and conditions set forth in this Agreement.\n\n        B. Executive desires to continue in the employ of the Company, and is\nwilling to continue such employment on the terms and conditions set forth in\nthis Agreement.\n\n                                    AGREEMENT\n\n        In consideration of the foregoing Recitals and the mutual promises and\ncovenants herein contained, and for other good and valuable consideration, the\nParties, intending to be legally bound, agree as follows:\n\n1.      EMPLOYMENT.\n\n        1.1 The Company hereby employs Executive, and Executive hereby accepts\nemployment by the Company, upon the terms and conditions set forth in this\nAgreement for the period commencing January 20, 1999 (the \"Hire Date\") and\nending December 31, 2002. Notwithstanding anything herein to the contrary,\neither Party may terminate Executive's employment under this Agreement at any\ntime, with or without cause, subject to the terms and conditions of Section 4\nherein.\n\n        1.2 Executive shall have the title of Chief Executive Officer of the\nCompany and shall serve in such other capacity or capacities as the Company may\nfrom time to time prescribe. Executive shall report to the Board of Directors.\n\n        1.3 Executive shall do and perform all services, acts or things\nnecessary or advisable to manage and conduct the business of the Company and\nwhich are normally associated with the position of Chief Executive Officer,\nconsistent with the Bylaws of the Company and as required by the Company's Board\nof Directors.\n\n        1.4 The employment relationship between the Parties shall be governed by\nthe policies and practices established by the Board of Directors, except that\nwhen the terms of this Agreement differ from or are in conflict with the\nCompany's policies or practices, this Agreement shall control.\n\n\n                                       1.\n\n\n\n        1.5 Unless the Parties otherwise agree in writing, during the term of\nthis Agreement, Executive shall perform the services he is required to perform\npursuant to this Agreement at the Company's offices, located in San Diego, or at\nany other place at which the Company maintains an office; provided, however,\nthat the Company may from time to time require Executive to travel temporarily\nto other locations in connection with the Company's business.\n\n2.      LOYAL AND CONSCIENTIOUS PERFORMANCE; NONCOMPETITION.\n\n        2.1 During his employment by the Company, Executive shall devote his\nfull business energies, interest, abilities and productive time to the proper\nand efficient performance of his duties under this Agreement.\n\n        2.2 Except with the prior written consent of the Company's Board of\nDirectors, Executive will not, during his employment by the Company, engage in\ncompetition with the Company, either directly or indirectly, in any manner or\ncapacity, as adviser, principal, agent, partner, officer, director, employee,\nmember of any association or otherwise, in any phase of the business of\ndeveloping, manufacturing and marketing of products which are in the same field\nof use or which otherwise compete with the products or proposed products of the\nCompany.\n\n        2.3 Except as permitted herein, Executive agrees not to acquire, assume\nor participate in, directly or indirectly, any position, investment or interest\nknown by him to be adverse or antagonistic to the Company, its business or\nprospects, financial or otherwise. Ownership by Executive, as a passive\ninvestment, of less than one percent (1%) of the outstanding shares of capital\nstock of any corporation with one or more classes of its capital stock listed on\na national securities exchange or publicly traded in the over-the-counter market\nshall not constitute a breach of this paragraph.\n\n3.      COMPENSATION OF EXECUTIVE.\n\n        3.1 The Company shall pay Executive a base salary of $150,000 per year\n(the \"Base Salary\"), payable in semi-monthly payments in accordance with Company\npolicy. Such salary shall be prorated for any partial year of employment on the\nbasis of a 365-day fiscal year.\n\n        3.2 Executive's compensation may be changed from time to time by mutual\nagreement of Executive and the Company.\n\n        3.3 Executive shall be eligible for an annual performance bonus of up to\n$50,000 payable at the sole discretion of the Company's Board of Directors.\n\n        3.4 All of Executive's compensation shall be subject to customary\nwithholding taxes and any other employment taxes as are commonly required to be\ncollected or withheld by the Company.\n\n        3.5 Executive shall, in accordance with Company policy and the terms of\nthe applicable plan documents, be eligible to participate in benefits under any\nCompany benefit plan\n\n\n                                       2.\n\n\n\nor arrangement which may be in effect from time to time and made available to\nits executive or key management employees.\n\n4.      TERMINATION.\n\n        4.1 TERMINATION. Executive's employment with the Company may be\nterminated under the following conditions:\n\n               4.1.1 DEATH OR DISABILITY. Executive's employment with the\nCompany shall terminate effective upon the date of Executive's death or\n\"Complete Disability.\"\n\n                      4.1.1.1 COMPLETE DISABILITY. \"Complete Disability\" shall\nmean the inability of Executive to perform Executive's duties under this\nAgreement because Executive has become permanently disabled within the meaning\nof any policy of disability income insurance covering employees of the Company\nthen in force. In the event the Company has no policy of disability income\ninsurance covering employees of the Company in force when Executive becomes\ndisabled, the term \"Complete Disability\" shall mean the inability of Executive\nto perform Executive's duties under this Agreement by reason of any incapacity,\nphysical or mental, which the Board, based upon medical advice or an opinion\nprovided by a licensed physician acceptable to the Board, determines to have\nincapacitated Executive from satisfactorily performing all of Executive's usual\nservices for the Company during the foreseeable future. Based upon such medical\nadvice or opinion, the determination of the Board shall be final and binding and\nthe date such determination is made shall be the date of such complete\ndisability for purposes of this Agreement.\n\n               4.1.2 TERMINATION BY THE COMPANY. The Company may terminate\nExecutive's employment under this Agreement at any time and for any reason by\ndelivery of written notice of such termination to the Executive. Any notice of\ntermination given pursuant to this Section 4.1.2 shall effect termination as of\nthe date specified in such notice or, in the event no such date is specified, on\nthe last day of the month in which such notice is delivered or deemed delivered\nas provided in Section 7 below.\n\n               4.1.3 TERMINATION BY EXECUTIVE. Executive may terminate his\nemployment under this Agreement upon twelve (12) months notice to the Company\nfor any reason by delivery of a written notice of such termination to the\nCompany. Any notice of termination given pursuant to this Section 4.1.3 shall\neffect termination as of the date specified in such notice or, in the event no\ndate is specified, on the last day of the month in which such notice is\ndelivered or deemed delivered as provided in Section 7 below.\n\n        4.2 TERMINATION BY MUTUAL AGREEMENT OF THE PARTIES. Executive's\nemployment pursuant to this Agreement may be terminated at any time upon the\nmutual agreement in writing of the parties. Any such termination of employment\nshall have the consequences specified in such agreement.\n\n\n                                       3.\n\n\n\n5.      CONFIDENTIAL AND PROPRIETARY INFORMATION; NONSOLICITATION.\n\n        5.1 Executive agrees to continue to abide by the Proprietary Information\nand Inventions Agreement that he executed upon commencement of employment with\nthe Company, a copy of which is attached hereto as Exhibit A.\n\n        5.2 Executive recognizes that his employment with the Company will\ninvolve contact with information of substantial value to the Company, which is\nnot old and generally known in the trade, and which gives the Company an\nadvantage over its competitors who do not know or use it, including but not\nlimited to, techniques, designs, drawings, processes, inventions, developments,\nequipment, prototypes, sales and customer information, and business and\nfinancial information relating to the business, products, practices and\ntechniques of the Company, (hereinafter referred to as \"Confidential and\nProprietary Information\"). Executive will at all times regard and preserve as\nconfidential such Confidential and Proprietary Information obtained by Executive\nfrom whatever source and will not, either during his employment with the Company\nor thereafter, publish or disclose any part of such Confidential and Proprietary\nInformation in any manner at any time, or use the same except on behalf of the\nCompany, without the prior written consent of the Company.\n\n        5.3 While employed by the Company and for one (1) year thereafter, the\nExecutive agrees that in order to protect the Company's Confidential and\nProprietary Information from unauthorized use, that Executive will not, either\ndirectly or through others, solicit or attempt to solicit any employee,\nconsultant or independent contractor of the Company to terminate his or her\nrelationship with the Company in order to become an employee, consultant or\nindependent contractor to or for any other person or business entity; or the\nbusiness of any customer, vendor or distributor of the Company which, at the\ntime of termination or one (1) year immediately prior thereto, was doing\nbusiness with the Company or listed on Company's customer, vendor or distributor\nlist.\n\n6.      ASSIGNMENT AND BINDING EFFECT.\n\n        6.1 This Agreement shall be binding upon and inure to the benefit of\nExecutive and Executive's heirs, executors, personal representatives, assigns,\nadministrators and legal representatives. Because of the unique and personal\nnature of Executive's duties under this Agreement, neither this Agreement nor\nany rights or obligations under this Agreement shall be assignable by Executive.\nThis Agreement shall be binding upon and inure to the benefit of the Company and\nits successors, assigns and legal representatives.\n\n7.      NOTICES.\n\n        7.1 All notices or demands of any kind required or permitted to be given\nby the Company or Executive under this Agreement shall be given in writing and\nshall be personally delivered (and receipted for) or mailed by certified mail,\nreturn receipt requested, postage prepaid, addressed as follows:\n\n\n                                       4.\n\n\n\n               7.1.1  If to the Company:\n\n                      Attn: Chairman of the Board of Directors\n                      P.O. Box 910091\n                      San Diego, CA  92191-0091\n\n               7.1.2  If to Executive:\n\n                      Michael Robertson\n                      5437 Panoramic Lane\n                      San Diego, CA  92121\n\nAny such written notice shall be deemed received when personally delivered or\nthree (3) days after its deposit in the United States mail as specified above.\nEither Party may change its address for notices by giving notice to the other\nParty in the manner specified in this section.\n\n8.      CHOICE OF LAW.\n\n        8.1 This Agreement is made in San Diego, California. This Agreement\nshall be construed and interpreted in accordance with the laws of the State of\nCalifornia.\n\n9.      INTEGRATION.\n\n        9.1 This Agreement contains the complete, final and exclusive agreement\nof the Parties relating to the terms and conditions of Executive's employment.\nThis Agreement supersedes and terminates all prior oral and written employment\nagreements or arrangements between the Parties, including the Offer Letter dated\nJanuary 20, 1999 and the Stock Restriction Agreement dated January 21, 1999.\nThis Agreement does not supersede or alter in any way the terms and conditions\nof the Founder Stock Agreement dated March 18, 1998.\n\n10.     AMENDMENT.\n\n        10.1 This Agreement cannot be amended or modified except by a written\nagreement signed by Executive and the Company.\n\n11.     WAIVER.\n\n        11.1 No term, covenant or condition of this Agreement or any breach\nthereof shall be deemed waived, except with the written consent of the Party\nagainst whom the wavier in claimed, and any waiver or any such term, covenant,\ncondition or breach shall not be deemed to be a waiver of any preceding or\nsucceeding breach of the same or any other term, covenant, condition or breach.\n\n12.     SEVERABILITY.\n\n        12.1 The finding by a court of competent jurisdiction of the\nunenforceability, invalidity or illegality of any provision of this Agreement\nshall not render any other provision of this\n\n\n                                       5.\n\n\n\nAgreement unenforceable, invalid or illegal. Such court shall have the authority\nto modify or replace the invalid or unenforceable term or provision with a valid\nand enforceable term or provision which most accurately represents the parties'\nintention with respect to the invalid or unenforceable term or provision.\n\n13.     INTERPRETATION; CONSTRUCTION.\n\n        13.1 The headings set forth in this Agreement are for convenience of\nreference only and shall not be used in interpreting this Agreement. This\nAgreement has been drafted by legal counsel representing the Company, but\nExecutive has been encouraged, and has consulted with, his own independent\ncounsel and tax advisors with respect to the terms of this Agreement. The\nParties acknowledge that each Party and its counsel has reviewed and revised, or\nhad an opportunity to review and revise, this Agreement, and the normal rule of\nconstruction to the effect that any ambiguities are to be resolved against the\ndrafting party shall not be employed in the interpretation of this Agreement.\n\n14.     REPRESENTATIONS AND WARRANTIES.\n\n        14.1 Executive represents and warrants that he is not restricted or\nprohibited, contractually or otherwise, from entering into and performing each\nof the terms and covenants contained in this Agreement, and that his execution\nand performance of this Agreement will not violate or breach any other\nagreements between Executive and any other person or entity.\n\n15.     LITIGATION COSTS.\n\n        15.1 Should any litigation, arbitration, or administrative action be\ncommenced between the parties or their personal representatives concerning any\nprovision of this Agreement or the rights and duties of any person in relation\nto this agreement, the party or parties prevailing in such action shall be\nentitled, in addition to such other relief as may be granted to a reasonable sum\nas and for that party's attorney's fees in such litigation which shall be\ndetermined by the court, arbitrator, or administrative agency, in such action or\nin a separate action brought for that purpose.\n\n16.     COUNTERPARTS.\n\n        16.1 This Agreement may be executed in two counterparts, each of which\nshall be deemed an original, all of which together shall contribute one and the\nsame instrument.\n\n17.     ARBITRATION.\n\n        17.1 To ensure rapid and economical resolution of any disputes which may\narise under this Agreement, Executive and the Company agree that any and all\ndisputes or controversies of any nature whatsoever, arising from or regarding\nthe interpretation, performance, enforcement or breach of this Agreement shall\nbe resolved by confidential, final and binding arbitration (rather than trial by\njury or court or resolution in some other forum) to the fullest extent permitted\nby law. Any arbitration proceeding pursuant to this Agreement shall be conducted\nby the American\n\n\n                                       6.\n\n\n\nArbitration Association (\"AAA\") in San Diego under the then existing AAA\narbitration rules. If for any reason all or part of this arbitration provision\nis held to be invalid, illegal, or unenforceable in any respect under any\napplicable law or rule in any jurisdiction, such invalidity, illegality or\nunenforceability will not effect any other portion of this arbitration provision\nor any other jurisdiction, but this provision will be reformed, construed and\nenforced in such jurisdiction as if such invalid, illegal or unenforceable part\nor parts of this provision had never been contained herein, consistent with the\ngeneral intent of the parties insofar as possible.\n\n18.     INJUNCTIVE RELIEF.\n\n        18.1 Executive is obligated under this Agreement to render services and\ncomply with covenants of a special, unique, unusual and extraordinary character,\nthereby giving this Agreement peculiar value, so that the loss of such service\nor violation by Executive of this Agreement, including, but not limited to, the\nProprietary Information and Inventions Agreement, could not reasonably or\nadequately be compensated in damages in an action at law. Therefore,\nnotwithstanding Section 17 herein, in addition to any other remedies or\nsanctions provided by law, whether criminal or civil, and without limiting the\nright of the Company and successors or assigns to pursue all other legal and\nequitable rights available to them, the Company shall have the right during\nExecutive's employment hereunder (or thereafter with respect to obligations\ncontinuing after the termination of this Agreement) to compel specific\nperformance hereof by Executive or to obtain temporary and permanent injunctive\nrelief against violations hereof by Executive, including, but not limited to\nviolations of the Proprietary Information and Inventions Agreement, and, in\nfurtherance thereof, to apply to any court with jurisdiction over the Parties to\nenforce the provisions hereof.\n\n19.     TRADE SECRETS OF OTHERS.\n\n        19.1 It is the understanding of both the Company and Executive that\nExecutive shall not divulge to the Company and\/or its subsidiaries any\nconfidential information or trade secrets belonging to others, including\nExecutive's former employers, nor shall the Company and\/or its affiliates seek\nto elicit from Executive any such information. Consistent with the foregoing,\nExecutive shall not provide to the Company and\/or its affiliates, and the\nCompany and\/or its affiliates shall not request, any documents or copies of\ndocuments containing such information.\n\n20.     ADVERTISING WAIVER.\n\n        20.1 Executive agrees to permit the Company and\/or its affiliates, and\npersons or other organizations authorized by the Company and\/or its affiliates,\nto use, publish and distribute advertising or sales promotional literature\nconcerning the products of the Company and\/or its affiliates, or the machinery\nand equipment used in the manufacture thereof, in which Executive's name and\/or\npictures of Executive taken in the course of Executive's provision of services\nto the Company and\/or its affiliates, appear. Executive hereby waives and\nreleases any claim or right Executive may otherwise have arising out of such\nuse, publication or distribution.\n\n\n                                       7.\n\n\n\n        IN WITNESS WHEREOF, the Parties have executed this Agreement as of the\ndate first above written.\n\n\n\nMP3.COM\n\n\nBy: \/s\/ Paul Ouyang\n   -------------------------------\nIts: CFO\n    ------------------------------\nDated: May 13, 1999\n      ----------------------------\n\nEXECUTIVE:\n\n\/s\/ MICHAEL ROBERTSON\n----------------------------------\nMICHAEL ROBERTSON\n\n\nDated: May 13, 1999\n      ----------------------------\n\n\n<\/pre>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[8267],"corporate_contracts_industries":[9497],"corporate_contracts_types":[9539,9544],"class_list":["post-39376","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-mp3com-inc","corporate_contracts_industries-retail__electronics","corporate_contracts_types-compensation","corporate_contracts_types-compensation__employment"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/39376","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=39376"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=39376"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=39376"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=39376"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}