exv10w1



 





Exhibit 10.1




EMPLOYMENT AGREEMENT




     THIS AGREEMENT is made as of February 20, 2007, between MakeMusic, Inc., a Minnesota
corporation (hereinafter called “MakeMusic”), and Ronald B. Raup (hereinafter called “Executive”):



RECITALS




     l.      The following recitals shall be considered a part of this Agreement and explain the
parties’ rights and obligations under this Agreement. Any interpretation or construction of this
Agreement shall be considered in light of these recitals.



     2.      Executive desires to be employed by MakeMusic as its President and Chief Operating Officer
and MakeMusic desires to employ Executive as its President and Chief Operating Officer on the terms
stated in this Agreement.



     3.      Executive recognizes, agrees and understands that execution of this Agreement is an express
condition of becoming and remaining employed by MakeMusic as its President and Chief Operating
Officer.



     NOW, THEREFORE, in consideration of MakeMusic employing Executive as its President and Chief
Operating Officer under this Agreement, increases in compensation, and/or other benefits now or
hereafter paid or made available to Executive by MakeMusic, Executive and MakeMusic agree as
follows:



ARTICLE I

DEFINITIONS




     1.01      Confidential Information. For the purposes of this Agreement, “Confidential
Information” means any information not generally known to the public and proprietary to MakeMusic
and includes, without limitation, trade secrets, inventions, and information pertaining to
research, development, purchasing, marketing, selling, accounting, licensing, business systems,
business techniques, customer lists, prospective customer lists, price lists, business strategies
and plans, pending patentable materials and/or designs, design documentation, documentation of
meetings, tests and/or test standards, or manuals whether in document, electronic, computer or
other form. For example, Confidential Information may be contained in MakeMusic’s customer lists,
prospective customer lists, the particular needs and requirements of customers, the particular
needs and requirements of prospective customers, and the identity of customers or prospective
customers. Information shall be treated as Confidential Information irrespective of its source and
any information which is labeled or marked as being “confidential” or “trade secret” shall be
presumed to be Confidential Information.



     1.02      Invention. For purposes of this Agreement, the term “Invention” means ideas,
discoveries, and improvements whether or not shown or described in writing or reduced to practice
and whether patentable or not, relating to any of MakeMusic’s present or future sales, research, or
other business activities, or reasonably foreseeable business interests of MakeMusic.



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ARTICLE II

EMPLOYMENT, COMPENSATION AND BENEFITS




     2.01      Employment With MakeMusic. MakeMusic hereby employs Executive in the position of
President and Chief Operating Officer of MakeMusic and Executive hereby accepts such employment
with MakeMusic.



     2.02      Duties.





     (a)      Executive agrees, during his employment, to devote his full time and best
efforts to the businesses of MakeMusic, including, without limitation, the
performance of those duties and responsibilities reasonably and customarily
associated with his positions; provided, however, that Executive’s duties and
responsibilities shall be subject to determination by MakeMusic’s Chief Executive
Officer or his designee. Executive shall be granted such powers and authority as
are reasonably and customarily associated with his position.




     (b)      Executive shall report to, and at all times shall be subject to the
direction of MakeMusic’s Chief Executive Officer or his designee.




     (c)      Executive, at all times during his employment with MakeMusic, shall comply
with MakeMusic’s reasonable standards, regulations and policies as determined or set
forth by the MakeMusic from time to time and as applicable to executive employees of
MakeMusic.




     (d)      Executive shall maintain and improve his managerial skills and knowledge of
MakeMusic’s businesses by attending appropriate conventions and seminars, and
participating in other activities reasonably related thereto. MakeMusic shall pay
and/or reimburse those expenses of Executive, approved by MakeMusic, which are
reasonably related to this subparagraph 2.02(d).



     2.03      Outside Activities. MakeMusic acknowledges and agrees that from time to time
Executive may serve as a member of the Board of Directors of one or more nonprofit entities or
businesses other than MakeMusic; provided, however, that Executive provides MakeMusic’s Chief
Executive Officer with information about each proposed directorship, including time required by
such directorship, whether such directorship may involve conflicts of interest with MakeMusic or
their businesses, the types of risks which such directorship may involve, and any other factors
Executive or MakeMusic’s Chief Executive Officer considers material respecting such directorship.
MakeMusic’s Chief Executive Officer shall promptly consider all submissions by Executive pursuant
to this Paragraph 2.03. MakeMusic’s Chief Executive Officer may request in good faith that
Executive not accept a particular directorship, or more than a specific number of directorships, or
that Executive resign from a particular directorship, and Executive agrees to honor such requests.



     2.04      Base Salary. Beginning February 20, 2007, Executive’s initial annual base salary
shall be calculated on the gross amount of $185,000 per year, less withholding for income and FICA



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taxes and any other proper deductions. Executive’s base salary will be paid to him in
accordance with MakeMusic’s normal payroll practices. Future increases, if any, to annual base
salary may be negotiated between the Executive and MakeMusic. Executive may be entitled to bonuses
as determined in the sole discretion of MakeMusic.



     2.05      Stock Options. Executive shall be entitled to receive stock options to purchase
an aggregate of 85,000 shares of the MakeMusic’s Common Stock pursuant to the terms and conditions
set forth in the specific stock option agreements executed contemporaneously with the execution of
this Agreement.



     2.06      Fringe Benefits From MakeMusic.





     (a)      In addition to cash compensation, Executive shall be eligible to receive
fringe benefits as they may be made available to executive employees of MakeMusic
and offered to Executive from time to time in the exclusive discretion of MakeMusic.
Such benefits may include, but are not limited to, bonuses, qualified pension or
retirement plans, health insurance and disability plans and deferred compensation
agreements.




     (b)      Executive shall be eligible to participate in any and all other employee
benefit plans and programs offered by MakeMusic from time to time, including, but
not limited to, any medical, dental, short-term disability and life insurance
coverage, stock option, or retirement plans, in accordance with the terms and
conditions of those benefit plans and programs and on a basis consistent with that
customarily provided to MakeMusic’s executive employees.



     2.07      Vacation. In addition to the foregoing compensation and fringe benefits,
Executive shall be entitled to a paid vacation of a duration to be determined by MakeMusic. At
present, Executive shall be entitled to four (4) weeks paid vacation per year. Such vacation shall
be subject to MakeMusic’s paid vacation policies as they may exist from time to time.



     2.08      Expenses. During the term of this Agreement, Executive shall be entitled to
prompt reimbursement by MakeMusic for all reasonable, ordinary and necessary travel, entertainment
and other business related expenses incurred by Executive (in accordance with the policies and
procedures established by MakeMusic for executive employees from time to time) in the performance
of his duties and responsibilities under this Agreement; provided, however, that Executive shall
properly account for such expenses in accordance with federal, state and local tax requirements and
MakeMusic’s policies and procedures.



ARTICLE III

TERMINATION




     3.01      Events of Termination. Executive’s employment with MakeMusic:




     (a)      May be terminated by mutual written agreement of MakeMusic and Executive.



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     (b)      Shall terminate immediately upon the death of Executive.




     (c)      May be terminated upon written notice from MakeMusic to Executive for
cause, which shall mean the following:




     (i)      Failure of Executive to (a) faithfully, diligently or competently
perform the material duties, requirements and responsibilities of his
employment as contemplated by this Agreement or as assigned by MakeMusic’s
Chief Executive Officer of Board of Directors, or (b) take reasonable
direction consistent with his position from the MakeMusic’s Chief Executive
Officer or Board of Directors; or




     (ii)      Failure of Executive to comply with the material, reasonable
policies, regulations and directives of MakeMusic as in effect from time to
time; or




     (iii)      Any act or omission on the part of Executive which constitutes a
failure to comply with material provisions of this Agreement; or




     (iv)      Any act or omission on the part of Executive which is clearly and
materially harmful to the reputations or businesses of MakeMusic, including,
but not limited to, personal conduct of Executive which is inconsistent with
federal and state laws respecting harassment of, or discrimination against,
one or more of MakeMusic’s employees; or




     (v)      Conviction of Executive of, or a guilty or nolo contendere plea by
Executive with respect to, any crime punishable as a felony.




     (d)      May be terminated by MakeMusic or Executive upon 60 days’ written notice to
the other upon the commencement of a bankruptcy case filed by or against MakeMusic
under the United States Code or other similar law.




     (e)      Shall terminate at the end of the month during which Executive reaches the
normal retirement date established by MakeMusic for management employees of
MakeMusic, but in no event earlier than the compulsory retirement age permitted
under federal or similar law for management employees.




     (f)      May be terminated upon 60 days’ written notice from MakeMusic to Executive
without cause.




     (g)      May be terminated by Executive on 60 days’ written notice to MakeMusic.



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     3.02      Compensation Upon Termination of Executive’s Employment. In the event that
Executive’s employment with MakeMusic terminates the following provisions shall govern as
applicable:




     (a)      If termination occurs pursuant to subparagraph 3.01(a), the agreement of
the parties shall control.




     (b)      If termination occurs pursuant to subparagraphs 3.01(b), (c), (e) or (g),
all benefits and compensation shall terminate as of the end of the month in which
the termination occurs.




     (c)      If the termination occurs pursuant to subparagraph 3.01(d), all benefits
and compensation shall terminate as of the termination date.




     (d)      If termination occurs pursuant to subparagraphs 3.01(f), Executive shall
receive cash payments equal to Executive’s annual base salary in effect at the time
of termination of employment. Such payments shall be paid to Executive monthly over
the course of a one-year period. As a condition to Executive’s receipt of such
payments, Executive shall be required to execute, return and not rescind a full and
final release of any and all claims in favor of MakeMusic. Such release agreement
shall be prepared by MakeMusic.




     (e)      All payments made to Executive under this Paragraph 3.02 shall be reduced
by amounts (i) required to be withheld in accordance with federal, state and local
laws and regulations in effect at the time of payment, or (ii) owed to MakeMusic and
by Executive for any amounts advanced, loaned or misappropriated.



     3.03      Return of MakeMusic Property. In the event of termination of Executive’s
employment all corporate documents, records, files, credit cards, computer disks and tapes,
computer access cards, codes and keys, file access codes and keys, building and office access
cards, codes and keys, materials, equipment and other property of MakeMusic which is in Executive’s
possession shall be returned to MakeMusic at their principal business offices on the date of
termination of Executive’s employment, or within one business day thereafter if termination occurs
without notice. Executive may copy, at Executive’s expense, documents, records, materials and
information of MakeMusic only with MakeMusic’s express, written permission.



ARTICLE IV

PROTECTION OF TRADE SECRETS AND

CONFIDENTIAL BUSINESS DATA




     4.01      Confidential Information. The definition of “Confidential Information” as set
forth in Paragraph 1.01 is not intended to be complete. From time to time during the term of his
employment, Executive may gain access to other information not generally known to the public and
proprietary to MakeMusic concerning MakeMusic’s businesses that is of commercial value to
MakeMusic, which information shall be included in the definition under Paragraph 1.01 above,
even though not specifically listed in that Paragraph. The definition of Confidential Information
and the



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provisions of this Article IV apply to any form in which the subject information, trade
secrets, or data may appear, whether written, oral, or any other form of recording or storage.



     4.02      Maintain in Confidence. Executive shall hold the Confidential Information,
including trade secrets and/or data, in the strictest confidence and will never, without prior
written consent of MakeMusic, (directly or indirectly) disclose, assign, transfer, convey,
communicate to or use for his own or another’s benefit or (directly or indirectly) disclose,
assign, transfer, convey, communicate to or use by him, a competitor of MakeMusic or any other
person or entity, including, but not limited to, the press, other professionals, corporations,
partnerships or the public, at any time during his employment with MakeMusic or at any time after
his termination of employment with MakeMusic, regardless of the reason for the Executive’s
termination, whether voluntary or involuntary. Executive further promises and agrees that he will
faithfully abide by any rules, policies, practices or procedures existing or which may be
established by MakeMusic for insuring the confidentiality of the Confidential Information,
including, but not limited to, rules, policies, practices or procedures:




     (a)      Limiting access to authorized personnel;




     (i)     Limiting copying of any writing, data or recording;




     (ii)    Requiring storage of property, documents or data in secure facilities
provided by MakeMusic and limiting safe or vault lock combinations or keys to
authorized personnel; and/or




     (iii)   Checkout and return or other procedures promulgated by MakeMusic from
time to time.



     4.03      Return of Information. Upon termination of the employer-employee relationship,
whether voluntary or involuntary, Executive will return to MakeMusic any and all written or
otherwise recorded form of all Confidential Information (and any copies thereof) in his possession,
custody or control, including, but not limited to, notebooks, memoranda, specifications, customer
lists, prospective or potential customer lists, or price lists, and will take with him, upon
leaving MakeMusic’s place of business or employment with MakeMusic, no such documents, data,
writings, recordings, or reproduction in any form which may have been entrusted or obtained by him
during the course of his employment or to which he had access, possession, custody or control,
except with MakeMusic’s express, written permission. Upon termination of employment, whether
voluntary or involuntary, Executive will deliver to MakeMusic all Confidential Information in
recorded form in his possession, custody or control and shall also deliver any and all property,
devices, parts, mock-ups, and finished or unfinished machinery or equipment in his possession,
custody or control which belongs to MakeMusic. Executive shall also deliver, upon his termination,
whether voluntary or involuntary, all records, drawings, blueprints, notes, notebooks, memoranda,
specifications and documents or dates, in any form, which contain Confidential Information.



     4.04      Irreparable Harm. The parties acknowledge that MakeMusic will suffer irreparable
harm if the Executive breaches Paragraphs 4.02 or 4.03, either during or after his employment.
Accordingly, MakeMusic shall be entitled, in addition to any other right and remedy it



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may have, at
law or equity, to a temporary restraining order and/or injunction, without the posting of a bond or
other security, enjoining or restraining the Executive from any violation of Paragraphs 4.02 or
4.03, and the Executive hereby consents to MakeMusic’s right to seek the issuance of such
injunction. If MakeMusic institutes any such action against Executive, alone or in conjunction
with any third party or parties to enforce any terms or provisions of Paragraphs 4.02 or 4.03, then
the party that prevails in such action shall be entitled to receive from the opposing party (or
parties) in the action the prevailing party’s reasonable attorneys’ fees incurred in such action
and all costs and expenses incurred in connection therewith in accordance with Paragraph 8.02.



ARTICLE V

COVENANT NOT TO COMPETE




     5.01      Noncompete. At no time during Executive’s employment with MakeMusic and for a
period of one year immediately following the termination of Executive’s employment (whether
voluntary or involuntary), will Executive:




     (a)      Acting on behalf of himself, another business or competitor, call upon or
communicate with or attempt to call upon or communicate with any customer or
potential or prospective customer of MakeMusic with whom Executive (or other
employees of MakeMusic under his supervision), during the 12 months prior to his
termination, had contact, for the purpose (either directly or indirectly) of
soliciting, selling or buying any services, merchandise or products similar to or
competitive with the services, merchandise or products sold or purchased by
MakeMusic; and




     (b)      Without the prior written consent of MakeMusic, directly or indirectly
render any services, advice or counsel as an owner, employee, representative, agent,
independent contractor, consultant or in any other capacity, for any third party, if
the rendering of such services, advice or counsel involves, may involve, requires or
is likely to result in the use or disclosure by Executive of any Confidential
Information.



     5.02      Irreparable Harm. The parties acknowledge that MakeMusic will suffer irreparable
harm if Executive breaches Paragraph 5.01. Accordingly, MakeMusic shall be entitled, in addition
to any other right and remedy it may have, at law or equity, to a temporary restraining order
and/or injunction, without the posting of a bond or other security, enjoining or restraining
Executive from any violation of Paragraph 5.01, and Executive hereby consents to MakeMusic’s right
to seek the issuance of such injunction. If MakeMusic institutes any such action against
Executive, alone or in conjunction with any third party or parties to enforce any terms or
provisions of Paragraph 5.01, then the party that prevails in such action shall be entitled to
receive from the opposing party (or parties) in the action the prevailing party’s reasonable
attorneys’ fees incurred in such action and all costs and expenses incurred in connection therewith
in accordance with Paragraph 8.02.


     5.03      Limit to Extent Enforceable. In the event that a court of competent jurisdiction
determines that any of the provisions of Paragraph 5.01 are unreasonable, it may limit such
provision



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to the extent it deems reasonable, without declaring the provision or Paragraph 5.01
invalid in its entirety. This provision shall not be construed as an admission by MakeMusic, but
is only included to provide MakeMusic with the maximum possible protection for its business,
Confidential Information, trade secrets and data, consistent with the right of Executive to earn a
livelihood subsequent to the termination of his employment.



     5.04      Understandings. Executive acknowledges and agrees that MakeMusic informed him
that the restrictive covenants contained in this Agreement would be required as part of the terms
and conditions of his employment under this Agreement, that he signed and returned this Agreement
to MakeMusic prior to commencing employment under this Agreement, he has carefully considered the
restrictions contained in this Agreement and that they are reasonable, and the restrictions in this
Agreement will not unduly restrict him in securing other employment in the event of his termination
from MakeMusic.



ARTICLE VI

INVENTIONS




     6.01      Disclosure. Executive shall promptly and fully disclose to MakeMusic and will
hold in trust for MakeMusic’s sole right and benefit, any Invention which Executive, during the
period of his employment, makes, conceives, or reduces to practice or causes to be made, conceived,
or reduced to practice either alone or in conjunction with others that:




     (a)      Relates to any subject matter pertaining to Executive’s employment;




     (b)      Relates to or is directly or indirectly connected with the business, products,
projects, or Confidential Information of MakeMusic; or




     (c)      Involves the use of any time, material or facility of MakeMusic.



     6.02      Assignment of Ownership. Executive hereby assigns to MakeMusic all of
Executive’s right, title, and interest in and to all such Inventions as described in Paragraph 6.01
and, upon MakeMusic’s request, Executive shall execute, verify, and deliver to MakeMusic such
documents including, without limitation, assignments and applications for Letters Patent, and shall
perform such other acts, including, without limitation, appearing as a witness in any action
brought in connection with this Agreement that is necessary to enable MakeMusic to obtain the sole
right, title, and benefit to all such Inventions.



     6.03      Excluded Inventions. It is further agreed, and Executive is hereby so notified,
that the above agreement to assign Inventions to MakeMusic does not apply to any invention for
which no equipment, supplies, facility or Confidential Information of MakeMusic was used, which was
developed entirely on Executive’s own time, and




     (a)      Which does not relate:




     (i)      Directly to the businesses of MakeMusic; or





     (ii)     To MakeMusic’s actual or demonstrably anticipated research or
development; or



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     (b)      Which does not result from any work performed by Executive for MakeMusic.



     6.04      Prior Inventions. Attached to this Agreement and initialed by both parties is a
list of all of the Inventions, by description, if any, in which Executive possesses any right,
title, or interest prior to this employment and the execution of this Agreement, which are not
subject to the terms of this Agreement.



     6.05      Specific Performance; Attorney Fees. Executive expressly acknowledges and agrees
that any violation of any terms of Paragraphs 6.01 or 6.02 may result in the issuance of a
temporary restraining order and/or injunction against Executive to effect specific performance of
the terms of Paragraphs 6.01 or 6.02. If MakeMusic institutes any action against Executive, alone
or in conjunction with any third party or parties, to enforce any term or provision of Paragraphs
6.01 or 6.02, then the party that prevails in such action shall be entitled to receive from the
opposing party (or parties) in the action the prevailing party’s reasonable attorneys’ fees
incurred in such action and all costs and expenses incurred in connection therewith in accordance
with Paragraph 8.02.



ARTICLE VII

ARBITRATION




     7.01      Agreement to Arbitrate. With the exception of MakeMusic’s rights to seek
injunctive relief in connection with breaches by Executive of Paragraphs 4.02, 4.03, 5.01 and/or
6.01 or 6.02 of this Agreement, all disputes or claims arising out of or in any way relating to
this Agreement, including the making of this Agreement, shall be submitted to and determined by
final and binding arbitration before the American Arbitration Association (“AAA”) under the AAA’s
National Rules for the Resolution of Employment Disputes. The award of the arbitrator(s), or a
majority of them, shall be final and judgment upon such award may be entered in any court of
competent jurisdiction. This arbitration provision shall continue in full force and effect after
Executive’s termination of employment under this Agreement.



     7.02      Discovery. In addition to any other procedures provided for under the rules of
the NASD or the AAA, upon written request, each party shall, at least 14 days prior to the date of
any hearing, provide to the opposite party a copy of all documents relevant to the issues raised by
any claim or counterclaim and a list of all witnesses to be called by that party at the hearing and
each party shall be permitted to take one deposition at least 14 days prior to any hearing.



     7.03      Costs. The costs of proceedings under Article VII shall be paid in accordance
with the provisions of Article VIII below.



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ARTICLE VIII

CERTAIN MAKEMUSIC REMEDIES




     8.01      Certain MakeMusic Remedies. The parties acknowledge that MakeMusic will suffer
irreparable harm if the Executive breaches Paragraphs 4.02, 4.03, 5.01 and/or 6.01 or 6.02 of this
Agreement. Accordingly, MakeMusic shall be entitled to seek any right or remedy it may have, under
this Agreement or otherwise, at law or equity, including but not limited to, an injunction,
enjoining or restraining Executive from any violation of Paragraphs 4.02, 4.03, 5.01 and/or 6.01 or
6.02 of this Agreement.



     8.02      Payment of Fees and Expenses. If any party initiates or becomes a party to a
formal proceeding in law or equity, or under Article VII, involving this Agreement, and if either
party obtains a substantial portion of the relief requested by that party (the “prevailing party”),
then the non-prevailing party shall pay all of its and the prevailing party’s reasonable costs and
expenses, including reasonable attorneys’ fees and expenses, incurred with respect to such
proceeding. If neither party obtains a substantial portion of the relief requested each shall bear
its/his own expenses. In the event Executive is terminated pursuant to Paragraph 3.01 (c) and
determines to challenge MakeMusic’s determination of cause, MakeMusic and Executive shall each bear
its/his own expenses in connection with any proceeding initiated by Executive with respect to the
determination as to “Cause”.



ARTICLE IX

INDEMNIFICATION




     9.01      Indemnification. As to acts or omissions of Executive which are within the scope
of Executive’s authority as an officer, director, or employee of MakeMusic and/or any affiliate of
MakeMusic, MakeMusic shall indemnify Executive, and his legal representatives and heirs, to the
maximum extent permitted by Minnesota law.



ARTICLE X

MISCELLANEOUS




     10.01      Survival of Provisions. The parties agree that Articles 4 – 10 of this
Agreement shall survive termination of this Agreement and termination of Executive’s employment for
any reason.



     10.02      Governing Law. This Agreement shall be governed according to the laws of the
State of Minnesota.



     10.03      Successors. This Agreement is personal to Executive and Executive may not
assign or transfer any part of his rights or duties hereunder, or any compensation due to him
hereunder, to any other person. This Agreement may be assigned by MakeMusic. This Agreement is
binding on any successors or assigns of MakeMusic.



     10.04      Waiver. The waiver by any party of the breach or nonperformance of any
provision of this Agreement by any other party will not operate or be construed as a waiver of any
future



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breach or nonperformance under any provision of this Agreement or any similar agreement with any
other employee.



     10.05      Notices. Any and all notices referred to herein shall be deemed properly given
only if in writing and delivered personally or sent postage prepaid, by certified mail, return
receipt requested, as follows:




     (a)      To MakeMusic by notice to MakeMusic’s Chief Executive Officer.




     (b)      To Executive at his home address as it then appears on the records of MakeMusic,
it being the duty of the Executive to keep MakeMusic informed of his current home
address at all times.



     The date on which notice to MakeMusic or Executive shall be deemed to have been given if mailed as
provided above shall be the date on the certified mail return receipt. Personal delivery to
Executive shall be deemed to have occurred on the date notice was delivered to Executive personally
or deposited in a mail box or slot or left with security or administrative personnel, at
Executive’s residence by a representative of MakeMusic or any messenger or delivery service.



     10.06      Term. This Agreement shall be effective from February 20, 2007, to and
including February 19, 2008 at which time the Agreement and Executive’s employment with MakeMusic
will be automatically renewed for a consecutive one-year term, unless Executive’s employment is
terminated pursuant to Article III or the parties have negotiated a new or amended employment
agreement or either party has provided the other with written notice non-renewal at least 90
calendar days prior to the expiration of the then-current term.



     10.07      Modification. This Agreement supersedes any and all prior oral and written
understandings, if any, between the parties relating to the subject matter of this Agreement. This
Agreement sets forth the entire understandings and agreements between the parties and is the
complete and exclusive statement of the terms and conditions thereof, that there are no other
written or oral agreements in regard to the subject matter of this Agreement other than those
agreements, plans, programs and policies expressly referred to herein. This Agreement shall not be
changed or modified except by a written document signed by the parties hereto.



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IN WITNESS WHEREOF, the parties have hereunto set their hands as of the date written above.




	 	 	 	 	 
	 	MAKEMUSIC, INC.

 	 
	 	By  	/s/ John
Paulson	 
	 	 	John Paulson 	 
	 	 	Its:  Chief Executive Officer 	 
	 





	 	 	 	 	 
	 	- and -	 
	 	 	 
	 	EXECUTIVE

 	 
	 	/s/ Ronald
B. Raup	 
	 	Ronald B. Raup 	 
	 	February 26, 2007	 
		 	 	 
	 




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