Exhibit 10.1
EXECUTION COPY
EXECUTIVE EMPLOYMENT AGREEMENT
THIS EXECUTIVE EMPLOYMENT AGREEMENT (this "Agreement"), dated as of
September 29, 2003, is by and among Muzak Holdings LLC, a Delaware limited
liability company ("Holdings LLC"), Muzak LLC, a Delaware limited liability
company and a wholly-owned subsidiary of Holdings LLC (the "Company"), and Lon
Otremba ("Executive").
NOW, THEREFORE, in consideration of the mutual covenants contained herein
and other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties hereto, intending to be legally bound,
agree as follows:
1. Employment. The Company will employ Executive, and Executive accepts
employment with the Company, upon the terms and conditions set forth in this
Agreement, for the period beginning on September 29, 2003 and ending upon
termination as provided in Section 7 (the "Employment Period").
2. Position and Duties. During the Employment Period, Executive will (i)
serve on the board of directors (or equivalent supervising body) of Holdings LLC
(the "Board"), (ii) exclusively serve as the President of Holdings LLC and the
Company, and (iii) render such managerial, analytical, administrative,
marketing, creative and other executive services to Holdings LLC, the Company
and their respective subsidiaries (such entities, the "Muzak Entities") as are
from time to time necessary in connection with the management and affairs of the
Muzak Entities, subject to the authority of the Board and to the proviso set
forth in the following sentence. Executive will devote his best efforts and
substantially all of his business time and attention (except for permitted
vacation periods and reasonable periods of illness or other incapacity) to the
business and affairs of the Muzak Entities; provided, that during the Employment
Period, Executive will not directly or indirectly own, manage, control,
participate in, consult with, render services for, or in any other manner engage
in the business of providing business music programming and ancillary
communications products and services including, without limitation, broadcast
data delivery, satellite delivered cable television channels, audio marketing
and in-store advertising services to a diverse customer base that includes,
among others, restaurants, retailers, supermarkets and business offices
(together with all reasonably related activities, the "Business") other than (i)
on behalf of the Muzak Entities or (ii) as a passive owner of less than five
percent (5%) of the outstanding stock of a corporation of any class which is
publicly traded, so long as Executive has no direct or indirect participation in
the business of such corporation. Executive will report solely and directly to
the Board. All employees of Holdings LLC and the Company (with the exception of
William Boyd) will report, directly or indirectly, to Executive. Executive will
perform his duties and responsibilities to the best of his abilities in a
diligent, trustworthy, businesslike and efficient manner.
3. Compensation and Benefits.
(a) Base Salary. During the Employment Period, Executive shall be
entitled to receive $325,000 per annum as base compensation for services (as in
effect from time to time, the "Base Salary"); provided, that effective on
September 29, 2004 and each anniversary of such date, the Base Salary shall
increase by five percent (5%) over the preceding year. The Base Salary will be
payable in regular installments in accordance with the general payroll practices
of the Company.
(b) Annual Bonus. In addition to the Base Salary, the Board may, in
its sole discretion, award a bonus (as in effect from time to time, the "Annual
Bonus") to Executive following the end of each fiscal year of the Company during
the Employment Period, in an amount not to exceed fifty percent (50%) of the
Base Salary as then in effect for such fiscal year (the "Maximum Annual Bonus")
as the Board deems appropriate based upon, among other things, the Company's
overall performance and satisfaction of the personal goals of Executive as
established by the Board in advance of such fiscal year; provided, that for
fiscal year 2003, the Annual Bonus, if awarded, would be determined on a pro
rata basis according to the number of days Executive is employed by the Company
in fiscal year 2003. The Annual Bonus, if awarded, for a fiscal year shall be
paid in a single payment within thirty (30) days after the audited financial
statements for such fiscal year have been delivered and reviewed by the Board.
For any fiscal year which Executive is not employed by the Company at the end of
such fiscal year, Executive shall not be entitled to receive any Annual Bonus;
provided, that if (i) the Company terminates the Executive's employment without
Company's Good Reason (except if termination is a result of death or disability)
or the Executive terminates his employment for Executive's Good Reason and (ii)
Actual EBITDA as of the effective date of Executive's termination equals or
exceeds Targeted EBITDA as of such effective date of Executive's termination,
Executive shall be entitled to receive an Annual Bonus and the Annual Bonus, if
awarded, would be determined on a pro rata basis according to the number of days
Executive is employed by the Company in such fiscal year.
(c) EBITDA Bonus. The business model of Holdings LLC is attached
hereto as Exhibit A (as in effect from time to time, the "Muzak Model");
provided, that the Muzak Model may be subject to adjustment from time to time if
approved in writing by Holdings LLC, the Company, Executive and ABRY Broadcast
Partners III, L.P. ("ABRY"), provided further, that if Actual EBITDA for fiscal
year 2003 is less than Targeted EBITDA for fiscal year 2003, the Company will
modify the Muzak Model to adjust the Targeted EBITDA for the following fiscal
years accordingly. Commencing with fiscal year 2004 and in addition to the Base
Salary and Annual Bonus (if any), if Holdings LLC's EBITDA (on a consolidated
basis) for a fiscal year as set forth in the audited financial statements for
such fiscal year (the "Actual EBITDA") exceeds Holdings LLC's EBITDA (on a
consolidated basis) target set forth in the Muzak Model for such fiscal year
(the "Targeted EBITDA") by at least two and one-half percent (2.5%), Executive
shall be entitled to receive a bonus (as in effect from time to time, the
"EBITDA Bonus") following the end of such fiscal year during the Employment
Period as follows:
(i) if Actual EBITDA exceeds Targeted EBITDA for such fiscal year
by two and one-half percent (2.5%), Executive shall receive an EBITDA Bonus in
an amount equal to $25,000;
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(ii) if Actual EBITDA exceeds Targeted EBITDA for such fiscal
year by more than two and one-half percent (2.5%) but less than or equal to five
percent (5%), Executive shall receive an EBITDA Bonus in an amount equal to
$50,000; or
(iii) if Actual EBITDA exceeds Targeted EBITDA for such fiscal
year by more than five percent (5%), Executive shall receive an EBITDA Bonus in
an amount equal to $100,000.
The EBITDA Bonus, if awarded, for a fiscal year shall be paid in a single
payment within thirty (30) days after the audited financial statements for such
fiscal year have been delivered and reviewed by the Board. For any fiscal year
which Executive is not employed by the Company at the end of such fiscal year,
Executive shall not be entitled to receive any EBITDA Bonus; provided, that if
(i) the Company terminates the Executive's employment without Company's Good
Reason (except if termination is a result of death or disability) or the
Executive terminates his employment for Executive's Good Reason and (ii) Actual
EBITDA as of the effective date of Executive's termination exceeds Targeted
EBITDA as of such effective date of Executive's termination by at least two and
one-half percent (2.5%), Executive shall be entitled to receive an EBITDA Bonus
on a pro rata basis according to the number of days Executive is employed by the
Company in such fiscal year.
(d) Sale of the Company Bonus. For the fiscal years ending on (i)
December 31, 2004, (ii) December 31, 2005, (iii) December 31, 2006, (iv)
December 31, 2007 and (v) December 31, 2008, if (a) Actual EBITDA for such
fiscal year equals at least ninety-five percent (95%) of the Targeted EBITDA for
such fiscal year and (b) the amount of Holdings LLC's indebtedness less cash on
hand (on a consolidated basis) (the "Net Debt Balance") as of the last day of
such fiscal year as set forth in the audited financial statements for such
fiscal year does not exceed by more than five percent (5%) the Net Debt Balance
target set forth in the Muzak Model for the last day of such fiscal year
(collectively, the "Satisfaction of Performance Objectives"), then if (1) a Sale
of the Company is consummated in the subsequent fiscal year and (2) Executive is
still employed by the Company at the time of the consummation of such Sale of
the Company, Executive shall be entitled to receive an amount equal to: (x) the
Sale of the Company Bonus less (y) the aggregate purchase price received by
Executive pursuant to the sale of all of his Incentive Units upon the
consummation of the Sale of the Company; provided, that Executive shall only be
entitled to receive a Sale of the Company Bonus if Executive consummates the
sale of all of his Incentive Units upon the Sale of the Company. The Sale of the
Company Bonus, if awarded, shall be paid in a single payment at the consummation
of (i) the Sale of the Company and (ii) the Executive's sale of all of his
Incentive Units.
For purposes of this Agreement, the "Sale of the Company Bonus" shall
be determined as follows:
Satisfaction of Performance Objectives for Consummation of Sale of the Company Sale of the Company Bonus
the fiscal year during the fiscal year
- ------------------------------------------- ------------------------------------ -------------------------
2004 2005 $1,000,000
2005 2006 $3,500,000
2006 2007 $4,500,000
2007 2008 $5,000,000
2008 2009 $5,000,000
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For purposes of this Agreement, (i) "Sale of the Company" means the
sale of Holdings LLC and/or its subsidiaries to one or more Persons (other than
ABRY and/or one or more of ABRY's affiliates) in which the purchaser(s) directly
or indirectly acquires (A) membership interests of Holdings LLC constituting a
majority (by voting power) of the membership interests of Holdings LLC on a
fully-diluted basis (whether by merger, consolidation, sale, transfer,
assignment, pledge or other disposition of any or all of Holdings LLC's
outstanding securities) or (B) all or substantially all of Holding LLC's assets
determined on a consolidated basis (including the equity securities or assets of
Holding LLC's subsidiaries) and (ii) "Person" means an individual, a
partnership, a corporation, an association, a limited liability company, a joint
stock company, a trust, a joint venture, an unincorporated organization or any
other entity (including, without limitation, any governmental entity or any
department, agency or political subdivision thereof).
(e) Reimbursement of Expenses. During the Employment Period, the
Company will reimburse Executive for all reasonable expenses incurred by him in
the course of performing his duties under this Agreement and which are
consistent with the Company's policies in effect from time to time with respect
to travel, entertainment and other business expenses, subject to the Company's
requirements with respect to reporting and documentation of such expenses.
(f) Reimbursement of Relocation Expenses.
(i) During the first twelve (12) months of the Employment Period,
the Company will reimburse Executive for all reasonable expenses incurred by
Executive in the course of Executive's relocation to Fort Mill, South Carolina
(the "Relocation Expenses"), subject to the Company's requirements with respect
to reporting and documentation of such expenses; provided, that such Relocation
Expenses shall not exceed $25,000 in the aggregate. Executive acknowledges and
agrees that the Company may report the foregoing reimbursement of Relocation
Expenses as additional compensation to Executive, if the Company determines the
same may be required by applicable law.
(ii) If during the first twenty-four (24) months of the
Employment Period Executive relocates his family to Fort Mill, South Carolina,
the Company will reimburse Executive for all reasonable expenses incurred by
Executive's family in the course of Executive's family's relocation to Fort
Mill, South Carolina (the "Family Relocation Expenses"), subject to the
Company's requirements with respect to reporting and documentation of such
expenses; provided, that such Family Relocation Expenses shall not exceed an
amount to be mutually agreed upon in advance by the Company and Executive.
Executive acknowledges and agrees that the Company may report the foregoing
reimbursement of Family Relocation Expenses as additional compensation to
Executive, if the Company determines the same may be required by applicable law.
(g) Benefits. During the Employment Period, Executive shall be
entitled to participate in any health insurance plan and other similar benefits
which the Company makes available generally to other Company executives.
Executive shall be entitled to commence participation in any such health
insurance plans or other similar benefits on September 29, 2003. Executive shall
also be entitled to a monthly automobile allowance of $500 or, in lieu thereof
and at Company's sole discretion, the use of an automobile leased by the
Company.
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4. Vacation Days. Executive shall be entitled to four (4) weeks of paid
vacation during each year of the Employment Period, in addition to legal
holidays; provided, however, that no such vacation time shall accrue or be
earned to the extent that such accrual or earning would cause Executive's
accrued or earned, but unused, vacation time to exceed four (4) weeks. Executive
shall make best efforts to schedule vacations so as not to conflict with the
conduct of the Muzak Entities' business, and Executive shall give to the Board
adequate advance notice of his planned vacation days.
5. Board Membership. During the Employment Period, Executive shall serve as
a member of the Board, but only if Executive is then serving as the President of
Holdings LLC and the Company.
6. Equity Investment. During the Employment Period, if the Company proposes
to sell any equity securities of Holdings LLC ("Equity Securities") to any
entity or person, Executive shall be entitled to purchase such Equity Securities
on the same terms and condition as such entity or person in an amount to be
mutually agreed upon by the Company and Executive.
7. Termination. The Employment Period shall terminate under the following
circumstances:
(a) Death. Executive's death, in which case Executive's employment
shall terminate on the date of death.
(b) Disability. If, as a result of Executive's illness, physical or
mental disability or other incapacity, Executive is unable to perform his duties
under this Agreement for any period of three (3) consecutive months, and within
thirty (30) days after written notice of termination is given by the Company to
Executive (which notice may be given before or after the end of such three-month
period) he shall not have returned to the performance of his duties hereunder on
a full-time basis, the Company may terminate Executive's employment hereunder as
of the latest of (i) the expiration of such three-month period or (ii) the
thirty-first (31st) day following the delivery by the Company of the written
notice of termination.
(c) Consolidation, Merger or Comparable Transaction. In the event that
Holdings LLC consolidates with or merges with or into any other entity, effects
a share exchange, sells or causes the Company to sell all or substantially all
of its and its subsidiaries' consolidated assets or enters into a comparable
capital transaction pursuant to which Holdings LLC is not the continuing or
surviving entity or a sale of a majority of the outstanding voting power of
Holdings LLC's equity securities to a third party occurs such that a majority of
the beneficial ownership of Holdings LLC shall have changed, Executive's
employment may, by written notice of termination, be terminated by the Company
simultaneous with the consummation of such consolidation, merger, share
exchange, asset sale, stock sale or comparable transaction; provided, however,
that if as a result of any such consolidation, merger, share exchange, asset
sale, stock sale or comparable transaction, Holdings LLC's common equityholders
do not, directly or indirectly, receive cash and/or marketable securities having
a value of at least fifty percent (50%) of the value of their common equity of
Holdings LLC held immediately prior to such transaction, then in any such event
a termination of Executive's employment by the Company shall be deemed and
treated as a termination of the Employment Period hereunder by the Company other
than for Company's Good Reason under Section 7(d)(i) for purposes of this
Agreement, including without limitation, for determining termination benefits
under Section 8 hereof.
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(d) Voluntary Termination by the Company. The Company may terminate
Executive's employment, upon written notice to Executive, (i) for Company's Good
Reason or (ii) for any other reason or for no reason, in each case, subject to
payment of the termination payments, if any, specified in Section 8 hereof. For
purposes of this Agreement, "Company's Good Reason" shall mean a material breach
of any material provision of this Agreement, a violation in any material respect
of a written directive of the Board or a violation of a material Company policy
by Executive which, in each instance, has not been cured within ten (10) days
after written notice to Executive.
(e) Termination by Executive With Good Reason. Executive may terminate
his employment hereunder at any time for Executive's Good Reason, with such
termination to be effective as of the date stated in a written notice of
termination delivered by Executive to the Board. For purposes of this Agreement,
"Executive's Good Reason" shall mean (i) any change in Executive's
responsibilities, status, title or duties which represents a reduction in his
responsibilities, status, title or duties as in effect immediately prior thereto
(which shall not include the hiring of subordinates to fill some of such duties
or responsibilities); (ii) any reduction in Executive's compensation; or (iii)
any material breach by Holdings LLC or the Company to comply with any material
provisions of this Agreement; provided that upon the occurrence of any of the
events described in clauses (i) - (iii) above, Executive has provided written
notice to the Company that Executive intends to resign by reason thereof and
Holdings LLC or the Company has not cured such matter within thirty (30) days
following delivery of such notice.
(f) Voluntary Termination by Executive Without Good Reason. Executive
may terminate his employment hereunder for any reason other than Executive's
Good Reason (as defined above), or for no reason, upon thirty (30) days prior
written notice to the Board (provided, that at the Board's election, such
termination shall become effective immediately or at such other time during such
30-day period as the Board may elect).
(g) Retirement. The Company may require Executive to retire upon
attaining age 65 if not violative of applicable law; such a decision shall not
be treated as a voluntary termination by the Company for purposes of Section
7(d)(ii) above.
In no event shall the termination of Executive's employment affect the rights
and obligations of the parties set forth in this Agreement, except as expressly
set forth herein.
8. Termination Payments. Executive (or his estate pursuant to Section 7(a)
hereof) shall be entitled to receive the following payments upon termination of
his employment hereunder:
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(a) In the event of the termination of Executive's employment pursuant
to Section 7(a), 7(c) or 7(f) hereof, or by the Company pursuant to Section
7(d)(i) for Company's Good Reason or pursuant to Section 7(g), the Company shall
pay to Executive (or his estate, as the case may be) as soon as practicable
following such termination any accrued and unpaid Base Salary through the date
of termination as provided in Section 3 hereof.
(b) In the event of the termination of Executive's employment pursuant
to Section 7(b) hereof, the Company shall pay to Executive for a period of
twelve (12) months after the date of termination the amount of the Base Salary
through the end of such twelve (12) month period, less any amounts paid to
Executive pursuant to disability insurance, if any, provided by any of the Muzak
Entities.
(c) In the event of termination pursuant to Section 7(d)(ii) of
Executive's employment other than for Company's Good Reason, or pursuant to
Section 7(e) for Executive's Good Reason, the Company shall continue to pay the
Base Salary for twelve (12) months after the date of termination (the "Severance
Obligations") and Executive shall have no duty to mitigate, and the Company
shall have no right to offset, the Severance Obligations.
(d) Without limiting the remedies available to the Company for breach
by Executive of Section 10 and/or 11 hereof, in the event that Executive
violates the provisions of Section 10 and/or 11 after the termination of his
employment with the Company in a manner reasonably determined by the Company to
be materially injurious to any Muzak-Related Company (as that term is defined in
Section 10), any termination payments provided in this Section 8 remaining
unpaid at the time such violation occurs shall be automatically forfeited.
9. Resignation as Officer or Director. Upon the termination of the
Employment Period, Executive will immediately resign each position (if any) that
he then holds as an officer, director or manager of any of the Muzak Entities
(including, without limitation, his membership on the Board).
10. Confidential Information. Executive acknowledges that the information,
observations and data that (i) have been or may be obtained by him during his
employment or other relationship or interaction with any of the Muzak Entities
or any predecessor thereof (any of the Muzak Entities or any such predecessor
being a "Muzak-Related Company," and collectively, the "Muzak-Related
Companies"), prior to and/or after the date of this Agreement concerning the
business or affairs of the Muzak-Related Companies, and (ii) is treated by the
Muzak-Related Companies as confidential information (collectively, "Confidential
Information") are and will be the property of the Muzak-Related Companies.
Therefore, Executive agrees that he will not disclose to any unauthorized person
or use for his own account any Confidential Information without the prior
written consent of Holdings LLC (by the action of the Board), unless and to the
extent that (x) the aforementioned matters become generally known to and
available for use by the public other than as a result of Executive's acts or
omissions to act, or (y) disclosure of the aforementioned matters is required
under federal or state law or a duly issued subpoena. In the event any
disclosure pursuant to clause (y) above is to be made, Executive will give the
Board reasonable prior notice thereof and will permit the Muzak-Related
Companies to resist or limit the scope of the disclosure to be made. Executive
will deliver or cause to be delivered to Company at the termination of the
Employment Period, or at any other time any of the Muzak Entities or the Board
may request, all memoranda, notes, plans, records, reports, computer tapes and
software and other documents and data (and copies thereof) containing or
relating to Confidential Information or the business of any Muzak-Related
Company, which he may then possess or have under his control.
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11. Non-Compete, Non-Solicitation.
(a) Non-Compete. Executive acknowledges that during his employment or
other relationship or interaction with the Muzak-Related Companies, he has and
will become familiar with trade secrets and other confidential information
concerning the Muzak-Related Companies, and with investment opportunities
relating to the Business, and that his services have been and will be of
special, unique and extraordinary value to the foregoing entities. Therefore,
Executive agrees that, during the Employment Period and thereafter, until the
second (2nd) anniversary of the last day of the Employment Period (the
Employment Period and the remainder of such period being the "Noncompete
Period"), he will not directly or indirectly own, manage, control, participate
in, consult with, render services for, or in any other manner engage in any
business, or as an investor in or lender to any business (in each case
including, without limitation, on his own behalf or on behalf of another entity)
which constitutes or is competitive with all or part of the Business (as and
where the same is actually conducted or, as of the last day of the Employment
Period, is proposed to be conducted by any of Muzak-Related Companies). In
addition, in as much as the Company regularly seeks to acquire additional Muzak
franchises and/or Muzak franchisees, Executive agrees that, during the
Employment Period and thereafter, until the first (1st) anniversary of the last
day of the Employment Period, he will not directly or indirectly acquire or seek
to acquire any Muzak franchise or the assets or ownership interest of any Muzak
franchisee within the United States. Nothing in this Section 11 will prohibit
Executive from being a passive owner of less than five percent (5%) of the
outstanding stock of a corporation engaged in a competing business described
above of any stock which is publicly traded, so long as Executive has no direct
or indirect participation in the management and/or operations of such
corporation. By initialing in the space provided below, Executive acknowledges
that he has read carefully and had the opportunity to consult with legal counsel
regarding the provisions of this Section 11(a). _____ [initial].
(b) Non-Solicitation. During the Noncompete Period, Executive will not
directly or indirectly (i) induce or attempt to induce any employee or full-time
independent contractor of any Muzak-Related Company to leave the employ or
contracting relationship with such entity, or in any way interfere with the
relationship between any such entity and any employee or full-time independent
contractor thereof, (ii) solicit for employment or as an independent contractor
any person who was an employee or full-time independent contractor of any
Muzak-Related Company, at any time during the Employment Period, or (iii) induce
or attempt to induce any customer, supplier or other business relation of any
Muzak-Related Company to cease doing business with such entity or in any way
interfere with the relationship between any such customer, supplier or other
business relation and such entity. By initialing in the space provided below,
Executive acknowledges that he has read carefully and had the opportunity to
consult with legal counsel regarding the provisions of this Section 11(b). _____
[initial].
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12. Enforcement. The parties hereto agree that if, at the time of
enforcement of Section 10 or 11, a court holds that any restriction stated in
any such Section is unreasonable under circumstances then existing, then the
maximum period, scope or geographical area reasonable under such circumstances
will be substituted for the stated period, scope or area. Because Executive's
services are unique and because Executive has access to information of the type
described in Sections 10 and 11, the parties hereto agree that money damages
would be an inadequate remedy for any breach of Section 10 or 11. Therefore, in
the event of a breach or threatened breach of Section 10 or 11, any
Muzak-Related Company, may, in addition to other rights and remedies existing in
their favor, apply to any court of competent jurisdiction for specific
performance and/or injunctive or other relief in order to enforce, or prevent
any violations of, the provisions of Section 10 or 11, without posting a bond or
other security. The provisions of Sections 10, 11, and 12 are intended to be for
the benefit of the Company, Holdings LLC, each of the other Muzak Entities, and
their respective successors and assigns, each of which may enforce such
provisions and each of which (other than Holdings LLC and the Company) is an
express third-party beneficiary of such provisions and this Agreement generally.
Sections 10, 11, and 12 will survive and continue in full force in accordance
with their terms notwithstanding any termination of the Employment Period. By
initialing in the space provided below, Executive acknowledges that he has read
carefully and had the opportunity to consult with legal counsel regarding the
provisions of this Section 12. _____ [initial].
13. Representations. Executive represents and warrants to the Company and
Holdings LLC that Executive is not a party to or bound by any employment
agreement, noncompete agreement or confidentiality agreement with any other
person.
14. Key-Man Life Insurance. Executive agrees to submit to any requested
physical examination in connection with any of the Muzak Entities' purchase of a
"key-man" insurance policy. Executive agrees to cooperate fully in connection
with the underwriting, purchase and/or retention of any such key-man insurance
policy by any Muzak Entity.
15. Miscellaneous.
(a) Notices. All notices, demands or other communications to be given
or delivered under or by reason of the provisions of this Agreement shall be in
writing and shall be deemed to have been given when delivered personally to the
recipient, sent to the recipient by reputable overnight courier service (charges
prepaid), or mailed to the recipient by certified or registered mail, return
receipt requested and postage prepaid. Such notices, demands and other
communications shall be sent to the address indicated below:
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Notices to Executive:
--------------------
Lon Otremba
318 Kenmore Road
Douglaston, NY 11363
with a copy (which shall not constitute notice
to Executive) to:
-----------------------------------------------------
Franklin, Weinrib, Rudell & Vassallo, P.C.
488 Madison Avenue
New York, NY 10022
Attention: Daniel M. Wasser, Esq.
Notices to Holdings LLC or the Company:
Muzak LLC
3318 Lakemont Boulevard
Fort Mill, SC 29708
Attn: General Counsel
with copies (which shall not constitute notice
to any Muzak-Related Company) to:
-----------------------------------------------------
ABRY Partners, LLC
111 Huntington Avenue
30th Floor
Boston, MA 02199-7610
Attention: Peni Garber
and
Kirkland & Ellis LLP
Citigroup Center
153 East 53rd Street
New York, New York 10022
Attention: John L. Kuehn, Esq.
Lisa M. Anastos, Esq.
or to such other address or to the attention of such other person as the
recipient party has specified by prior written notice to the sending party.
(b) Amendment and Waiver. No modification, amendment or waiver of any
provision of this Agreement will be effective unless such modification,
amendment or waiver is approved in writing by Holdings LLC, the Company,
Executive and ABRY, if ABRY (directly or indirectly) then holds any equity
securities of Holdings LLC. The failure of any party to enforce any of the
provisions of this Agreement will in no way be construed as a waiver of such
provisions and will not affect the right of such party thereafter to enforce
each and every provision of this Agreement in accordance with its terms.
(c) Severability. Without limiting Section 12, whenever possible, each
provision of this Agreement will be interpreted in such a manner as to be
effective and valid under applicable law, but if any provision of this Agreement
is held to be invalid, illegal or unenforceable in any respect under any
applicable law or rule in any jurisdiction, such invalidity, illegality or
unenforceability will not affect the validity, legality or enforceability of any
other provision of this Agreement in such jurisdiction or affect the validity,
legality or enforceability of any provision in any other jurisdiction, but this
Agreement will be reformed, construed and enforced in that jurisdiction as if
such invalid, illegal or unenforceable provision had never been contained in
this Agreement.
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(d) Entire Agreement. Except as otherwise expressly set forth herein,
this agreement and the other agreements referred to herein 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.
(e) Successors and Assigns. This Agreement will bind and inure to the
benefit of and be enforceable by Holdings LLC, the Company and Executive and
their respective assigns; provided, that Executive may not assign his rights
under this Agreement without the prior written consent of each of Holdings LLC,
the Company and ABRY, if ABRY (directly or indirectly) then holds any equity
securities of Holdings LLC.
(f) Counterparts. This Agreement may be executed simultaneously in two
or more counterparts, any one of which need not contain the signatures of more
than one party, but all such counterparts taken together will constitute one and
the same Agreement.
(g) Descriptive Headings; Interpretation. The descriptive headings of
this Agreement are inserted for convenience only and do not constitute a
substantive part of this Agreement.
(h) GOVERNING LAW. ALL ISSUES AND QUESTIONS CONCERNING THE
CONSTRUCTION, VALIDITY, INTERPRETATION AND ENFORCEMENT OF THIS AGREEMENT WILL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE DOMESTIC LAWS OF THE STATE OF
SOUTH CAROLINA, WITHOUT GIVING EFFECT TO ANY CHOICE OF LAW OR CONFLICT PROVISION
OR RULE (WHETHER OF THE STATE OF SOUTH CAROLINA OR ANY OTHER JURISDICTION) THAT
WOULD CAUSE THE LAWS OF ANY JURISDICTION OTHER THAN THE STATE OF SOUTH CAROLINA
TO BE APPLIED. IN FURTHERANCE OF THE FOREGOING, THE INTERNAL LAW OF THE STATE OF
SOUTH CAROLINA WILL CONTROL THE INTERPRETATION AND CONSTRUCTION OF THIS
AGREEMENT, EVEN IF UNDER THAT JURISDICTION'S CHOICE OF LAW OR CONFLICT OF LAW
ANALYSIS, THE SUBSTANTIVE LAW OF SOME OTHER JURISDICTION WOULD ORDINARILY APPLY.
(i) WAIVER OF JURY TRIAL. EACH PARTY TO THIS AGREEMENT HEREBY WAIVES,
TO THE EXTENT PERMITTED BY APPLICABLE LAW, TRIAL BY JURY IN ANY LITIGATION IN
ANY COURT WITH RESPECT TO, IN CONNECTION WITH, OR ARISING OUT OF THIS AGREEMENT
OR ANY ANCILLARY AGREEMENT OR THE VALIDITY, PROTECTION, INTERPRETATION,
COLLECTION OR ENFORCEMENT THEREOF.
11
(j) No Strict Construction. The parties hereto have participated
jointly in the negotiation and drafting of this Agreement. In the event an
ambiguity or question of intent or interpretation arises, this Agreement shall
be construed as if drafted jointly by the parties hereto, and no presumption or
burden of proof shall arise favoring or disfavoring any party by virtue of the
authorship of any of the provisions of this Agreement.
* * * * *
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IN WITNESS WHEREOF, the parties hereto have executed this Executive
Employment Agreement as of the date first written above.
-------------------------------------
LON OTREMBA
MUZAK HOLDINGS LLC
By:
----------------------------
Name:
Title:
MUZAK LLC
By:
----------------------------
Name:
Title:
EXHIBIT A
MUZAK MODEL
See attached.