Exhibit 10.44


 


	
  

  	
  5171 Claveton Drive

  Agoura Hills, CA 91301

  Phone: 818.706.3525

  Fax: 818.706.1868

  www.dtsonline.com

  
	
  September 24, 2004

  	
   

  



 


 


Don Bird


23309 Chase Street


West Hills, CA 91304


 


Re:          Employment
Agreement


 


Dear Don:


 


Digital Theater Systems, Inc. (“DTS” or the “Company”) is pleased to
extend to you the following employment Agreement.  Unless otherwise set forth in this Agreement, you acknowledge that your
employment with DTS is “at-will”.


 


	
  Title:

  	
  Senior Vice President, Marketing

  
	
   

  	
   

  
	
  Duties:

  	
  You agree to serve the Company as its Senior Vice
  President, Marketing. Your duties are as defined in Company’s job description
  for the position or as otherwise specified by the President and Chief
  Executive Officer of the Company. During the Term of this Agreement, you will
  devote full time to, and use your best efforts to advance, the business and
  welfare of the Company.

  
	
   

  	
   

  
	
  Status:

  	
  Salary Exempt.

  
	
   

  	
   

  
	
  Effective Date:

  	
  September 27, 2004.

  
	
   

  	
   

  
	
  Base Salary:

  	
  $165,000 per year payable biweekly and subject to payroll deductions as may be
  necessary or customary in respect of the Company’s salaried employees in
  general.

  
	
   

  	
   

  
	
  Bonus:

  	
  Participation in the bonus plan will be on a level
  commensurate with other executives, and subject to completion of individual and company milestone
  achievements per mutual agreement on targets.

  
	
   

  	
   

  
	
  Stock Options:

  	
  All Stock options granted to you are conditioned on
  Board of Directors approval and shall vest over four consecutive 12-month
  periods as per your Stock Option Agreement
  with the Company and administered under the respective Company’s Stock Option Plan.

  
	
   

  	
   

  
	
  Vacation:

  	
  Following completion of your first year, you shall
  be provided with One Hundred Sixty (160) hours of vacation which shall be
  automatically replenished upon use. However, vacation hours will not be
  replenished during any period where you are not actively working for the
  Company, until you have resumed actively working for at least one full
  workweek.

  
	
   

  	
   

  
	
  Holidays:

  	
  Per Company’s annual published schedule (commonly 12
  days per year); plan is subject to change. The salary includes holiday pay
  and you are not entitled to any additional salary or compensation for work on
  a holiday.

  
	
   

  	
   

  
	
  Severance:

  	
  Upon the termination of this Agreement by the
  Company for other than good cause: (A) the Company shall for a period of six
  (6) months; (I) pay to Employee in monthly installments, as severance pay,
  Employee’s full Salary with a duty to mitigate as set forth in this
  Agreement, and (II) provide Employee the same level of benefits Employee was
  receiving as of the time of termination of this Agreement, unless otherwise
  required by law, (B) all options granted to you (incentive and nonstatutory)
  shall (I) immediately vest and (II) be exercisable for three (3) years from
  such termination (but not in excess of the specified maximum term of such
  option).

  
	
   

  	
   

  
	
  Benefits:

  	
  The following are the Company supplied Benefits as
  of the date of this Agreement. Benefit coverage is subject to change at company election that may result in
  elimination of benefits or increased co-pay. Unless otherwise set forth
  below, eligibility begins the first day of the month after hire date. Please
  see the applicable plan documents for additional information. In the event of
  any conflict between this description and the plan document, the plan
  document will prevail.

  



 


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  Insurance:

  	
   

  	
   

  	
   

  	
  Disability

  	
   

  	
   

  
	
  Health

  	
   

  	
  Blue Cross

  	
   

  	
  Long Term:

  	
   

  	
  Coverage through UNUM.

  
	
  Dental:

  	
   

  	
  Aetna

  	
   

  	
  Short Term:

  	
   

  	
  Coverage through UMUM.

  
	
  Vision:

  	
   

  	
  Coverage through VSP

  	
   

  	
  Section 125:

  	
   

  	
  Available for dependent and health care.

  
	
  Life:

  	
   

  	
  $50,000.00 coverage through Blue Cross

  	
   

  	
  40lk Plan:

  	
   

  	
  Enrollment dates 1/1 4/1, 7/1 & 10/1.

  






 


Death or Disability of Employee.  If you die or become disabled prior to the
termination of this Agreement, your employment under this Agreement will
automatically terminate. “Disability” means any physical or mental illness that
renders you unable to perform your agreed-upon services under this Agreement
for ninety (90) consecutive days or an aggregate of one-hundred twenty (120)
days, whether or not consecutive, during any consecutive twelve (12)-month
period. Disability shall be determined by a licensed physician selected by the
Company that is not affiliated with you or the Company. In the event of your
death or disability, the amounts due you pursuant to this Agreement through the
date of your death or disability will be paid to you or your beneficiaries.


 


Termination for Cause. Your
employment under this Agreement may be terminated immediately by the Company
for “good cause” upon ten (10) days advance written notice specifying the
reasons. You shall have ten (10) business days from the date such notice is
given in which to cure such cause. Absent such cure within the cure period,
your employment shall be deemed terminated for good cause on the expiration of
such ten (10) day period. The term “good cause” is defined as any one or more
of the following occurrences:


(I)                      Negligence
or a material violation by you of any duty or any other material or repetitive
misconduct or failure on your part;


(II)                  Your conviction
by, or entry of a plea of guilty or nolo contendere in, a court of competent
and final jurisdiction for any crime punishable by imprisonment in the
jurisdiction involved; or


(III)              Your commission of
an act of fraud, prior to or subsequent to the date of this Agreement, upon the
Company.


(IV)              Failure to execute
and deliver to the Company any document(s) required by all employees of the
Company, or employees of a similar position, at the location you are employed.


 


Nothing in this section or the availability of termination for good
cause is intended to alter the at-will status of employment with the Company.
Either you or the company may terminate the employment relationship at any
time, with or without cause.


 


Employee’s Consideration for Severance. As consideration for receiving severance
pay and benefits provided hereunder, during the period that Employee is
receiving severance pay or benefits hereunder, Employee shall:


(I)                      Mitigation.  (1) In good faith seek new employment at a
level commensurate with Employee’s duties and Salary hereunder, (2) report to
the Company on or before the first day of each month the status of obtaining
such subsequent employment and (3) report on a monthly basis, the amount of
compensation and benefits paid to Employee received from any such subsequent
employment/consultation with others.  
The Company may deduct from severance payments due Employee hereunder,
the amount of salary and benefits actually received by Employee as a result of
such subsequent employment or consultation with others.


(II)                  Consulting.
 Be available, in person and/or by
telephone, as a consultant to the Company on projects or task as defined by the
Company’s CEO or designated representative. 
It is agreed that eight (8) hours per week of consultation, in person
and/or by phone, shall be reasonable.


(III)              Non-Compete.  You agree that for the period commencing on
the date of this Agreement and ending upon the date of the last severance
payment hereunder, Employee shall not, directly or indirectly, as employee,
agent, consultant, stockholder, director, partner or in any other individual or
representative capacity, own, operate, manage, control, engage in, invest in or
participate in any manner in, act as a
consultant or advisor to, render services for (alone or in association with any
person, firm, corporation or entity), or otherwise assist, for compensation or
otherwise, any person or entity that engages in or owns, invests in, operates, manages or controls any
venture or enterprise that is a direct competitor of DTS; provided, however,
that nothing contained in this Agreement shall be construed to prevent you from
investing in the stock of any competing
corporation listed on a national securities exchange or traded in the
over-the-counter market, but only if: (1) you are not involved in the business
of said corporation; and (2) if you and your affiliates collectively do not own
more than an aggregate of 5% of the stock of such corporation, and (3) such investment
does not violate the Company’s Insider Trading Policy.


(IV)              Non-Solicitation.
 You agree that you will not interfere
with or disrupt or attempt to disrupt the Company’s business relationship with
its customers or suppliers or solicit any of the employees of the Company to leave
the employment of the Company.


(V)                  Severance
Agreement.  You shall enter into a
severance agreement and general release with the company in the form designated
by the Company.


 


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Arbitration.  You and the Company agree that any dispute
arising under or in connection with this Agreement, including any dispute
involving your employment or the termination of that employment (whether based
on contract, tort or statutory duty or prohibition, including any prohibition
against discrimination or harassment), shall be submitted to binding
arbitration in accordance with California Code of Civil Procedure §§ 1280 – 1294.2
before a single neutral arbitrator. You and the Company understand that each is
waiving its rights to a jury trial.


 


The party demanding arbitration shall submit a written claim to the
other party setting out the basis of the claim. Demands shall be presented in
the same manner as notices under this Agreement. You and the Company will
attempt to reach agreement on an arbitrator within ten (10) business days of
delivery of the arbitration demand. After this ten (10) business day period,
either you or the Company may request a list of seven professional arbitrators
from the American Arbitration Association or another mutually agreed service.
You and the Company will alternately strike names until only one person remains
and that person shall be designated as the arbitrator. The party demanding
arbitration shall make the first strike.


 


The arbitration shall take place in or within five miles of Agoura
Hills, California, at a time and place determined by the arbitrator. Each party
shall be entitled to discovery of essential documents and witnesses and to
deposition discovery, as determined by the arbitrator, taking into account the
mutual desire to have a fast, cost-effective, dispute-resolution mechanism. You
and company will attempt to cooperate in the discovery process before seeking
the determination of the arbitrator. Except as otherwise determined by the
arbitrator, you and the Company will each be limited to no more than three (3)
depositions. The arbitrator shall have the powers provided in California Code
of Civil Procedure §§ 1282.2 – 1284.2 and may provide all appropriate remedies
at law or equity.


 


The arbitrator will have the authority to entertain a motion to dismiss
and/or a motion for summary judgment by either you or the Company and shall
apply the standards governing such motions under California law, unless the
standards of another judicial forum supercede California law. The Arbitrator
shall render, within sixty (60) days of the completion of the arbitration, an
award and a written, reasoned opinion in support of that award. Judgment on the
award may be entered in any court having jurisdiction.


 


The Company will pay the arbitrator’s expenses and fees, all meeting room
charges and any other expenses that would not have been incurred if the case
were litigated in the judicial forum having jurisdiction over it. Unless
otherwise ordered by the arbitrator pursuant to law or this Agreement, each
party shall pay its own attorney fees, witness fees and other expenses incurred
by the party for his or her own benefit. Employee’s share of any filing,
administration or similar fee shall be no more than the then current filing or
other applicable fee in California
Superior Court or, if applicable, other appropriate tribunal with jurisdiction.


 


Modification and Waiver of Breach.  No
waiver or modification of this Agreement shall be binding unless it is in writing signed by you
and the Company. No waiver of a breach of this Agreement shall he deemed to
constitute a waiver of a future breach, whether of a similar or dissimilar
nature.


 


Notices.  All notices and other communications required
or permitted under this Agreement shall be in writing, served personally on, or
mailed by nationally recognized express mail courier. Notices and other
communications served by express mail courier shall be deemed given 72 hours
after deposit with such express mail courier duly addressed to whom such notice
or communication is to be given. In the case of (a) the Company, 5171 Clareton
Drive, Agoura Hills, California 91301, Attention: General Counsel, or (b) to
you, at the address of record
provided by you to the Company’s Human Resources department. Either party may
change their address for purposes of this Section by giving written notice, in
the manner stated herein. You agree to promptly update the Company’s Human
Resources department with any changes to your contact information.


 


Counterparts and Facsimile Signatures. This instrument may be executed in one
or more counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same Agreement. The parties agree
that a signature delivered by facsimile transmission will be treated in all
respects as having the same effect as an original signature.


 


Construction of Agreement.  This Agreement shall be construed in
accordance with, and governed by, the internal laws of the State of California
and both parties irrevocably agree to the exclusive jurisdiction and venue of
the state and local courts of the County of Los Angeles, California.


 


Legal Fees.  If any legal action, arbitration or other
proceeding is brought for the enforcement of this Agreement, or because of any
alleged dispute, breach, default or misrepresentation in connection with this
Agreement, the successful or prevailing party shall be entitled to recover
reasonable attorneys’ fees and other costs incurred in that action or proceeding, in addition to any other relief
to which it may be entitled.


 


Severability Clause. If any
provision of this Agreement or the application thereof is held invalid, the
invalidity shall not affect other provisions or applications of the Agreement
which can be given effect without the invalid provisions or applications and to
this end the provisions of this Agreement are declared to be severable.


 


Complete Agreement.  This instrument constitutes and contains the entire
agreement and understanding concerning your employment and the other subject
matters addressed in this Agreement between you and the Company, and supersedes
and replaces all prior negotiations and all agreements proposed or otherwise,
whether written or oral, concerning the subject matters hereof. This is an
integrated document.


 


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Third Party Beneficiaries.  This Agreement does not create, and shall not
be construed as creating, any
rights enforceable by any person not a party to this Agreement, except as
expressly contemplated herein.


 


Non-transferability of Interest. None of the rights of Employee to
receive any form of compensation payable pursuant to this Agreement shall be
assignable or transferable except through a testamentary disposition or by the
laws of descent and distribution upon the death of Employee. Any attempted
assignment, transfer, conveyance, or other disposition (other than as set forth
herein) of any interest in the rights of Employee to receive any form of
compensation to be made by the Company pursuant to this Agreement shall be
void.


 


Other Agreements.  A condition of employment with DTS is a signed
Confidentiality and Non-Disclosure Agreement, Employee Invention Agreement, the
DTS Worldwide Business Conduct Policy, and receiving satisfactory confirmation
of an employee background check. Your failure to agree to these conditions and
complete these documents in a timely manner may result in your termination for
good cause. You also understand and agree that, except as expressly provided in
this Agreement, you are subject to
all of the Company’s general business and human resources polices and
procedures as they presently exist or as they
may exist in the future and failure to abide by such provisions may result in
your termination for good cause. Provided, however, that the at-will status of
employment may only be changed as provided below.


 


At-Will.  By signing this letter, you understand and
agree that your employment with DTS is “at-will.” Your
employment with DTS is voluntarily entered into and we recognize you are free
to resign at any time. Similarly, it is recognized that DTS is free to conclude
an employment relationship at any time we feel is appropriate. While other
terms of your employment may change with or without notice, this at-will
relationship can be changed only in a written agreement signed by you and the
President & Chief Executive
Officer of DTS.


 


Sincerely,


 


 


	
  /s/ Jon Kirchner

  	
   

  	
  /s/ Susan R. Ryan

  	
   

  
	
  Jon Kirchner

  	
  Susan R. Ryan

  
	
  President and Chief Executive Officer

  	
  Director, Human Resources

  



 


 


Acceptance:


 


 


	
  /s/ Don Bird

  	
  10/1/04

  	
   

  	
   

  
	
  Don Bird

  	
  Date

  	
   

  	
   

  



 


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AGREEMENT OF AT
WILL EMPLOYMENT


 


I understand and agree that my employment
with DTS is on an at-will basis. This means that either DTS or I or may terminate the
employment relationship at any time at their
sole discretion without cause.


 


I further understand that while other personnel policies, procedures, and benefits of DTS may change from time to time
in DTS’s discretion, this at-will employment relationship can only be changed
by an express written employment
agreement signed by me and an officer of DTS.


 


 


	
  Donald M Bird
  Jr.

  	
   

  
	
  Employee Name (PRINT)

  
	
   

  
	
   

  
	
  /s/ Donald M Bird
  Jr.

  	
  10/01/04

  	
   

  
	
  Employee Signature

  	
  Date

  	
   

  



 


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