Exhibit 10.18


 


EMPLOYMENT
AGREEMENT


 


THIS AGREEMENT is made as of
June 9, 2004, between MakeMusic!, Inc., a Minnesota corporation (hereinafter
called “MakeMusic!”), and Bill Wolff (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
is currently employed by MakeMusic! as its Chief Operating Office and Chief
Financial Officer.


 


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


 


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


 


NOW, THEREFORE, in
consideration of MakeMusic! employing Executive as its Chief Executive Officer
and the continuation of his employment, any promotions, 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,


 


1





















 


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!.


 


ARTICLE II


 


EMPLOYMENT,
COMPENSATION AND BENEFITS


 


2.01 Employment With MakeMusic!.  MakeMusic! hereby employs Executive in the
position of Chief Executive 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
position; provided, however, that Executive’s duties and responsibilities shall
be subject to determination by MakeMusic!’s Board of Directors.  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 Board of Directors.


 


(c) Executive,
at all times during his employment with MakeMusic!, shall comply with
MakeMusic!’s reasonable standards, regulations and policies as determined or


 


2





















 


set forth by
the MakeMusic! Board of Directors 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 Board of Directors 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 the MakeMusic! Board of Directors
considers material respecting such directorship. MakeMusic!’s Board of
Directors shall promptly consider all submissions by Executive pursuant to this
Paragraph 2.03.  MakeMusic!’s Board of
Directors 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.  Executive’s initial annual base salary shall
be calculated on the gross amount of $175,500 per year, less withholding for
income and FICA 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, in
annual base salary may be negotiated between the Executive and MakeMusic!’s
Board of Directors.  Executive may be
entitled to bonuses as determined in the discretion of the MakeMusic! Board.


 


2.05 Stock
Options.  Executive shall
be entitled to receive stock options to purchase an aggregate of 60,000 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!’s Board of Directors. Such
benefits may include, but are not limited to, bonuses, qualified pension or
retirement plans, health insurance and disability plans and deferred
compensation agreements.


 


3





















 


(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!’s Board of Directors.  At present, Executive shall be entitled to 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.


 


(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 Board of Directors, or (b) take
reasonable direction consistent with his position from the MakeMusic!’s Board
of Directors; or


 


4





















 


(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!.


 


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.


 


5





















 


(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


 


 


6





















 


and the
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,


 


7





















 


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 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 the term of this Agreement
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


 


 


8





















 


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 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!.


 


9





















 


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


 


(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.


 


10





















 


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.


 


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”.


 


11





















 


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 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 each member of
MakeMusic!’s Board of Directors.


 


(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.


 


12





















 


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 June
9, 2004, to and including June 9, 2005 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 90 days prior to the
termination of the 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.


 


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


 


 


 


	
  MAKEMUSIC!,
  INC.

  
	
   

  
	
  By

  	
  /s/Ben K.
  Whitney

  	
   

  
	
   

  
	
  Ben Whitney

  
	
   

  
	
  Its: Chair
  Compensation Committee of MakeMusic!’s Board of Directors

  
	
   

  
	
  - and -

  
	
   

  
	
  EXECUTIVE

  
	
   

  
	
   

  
	
  /s/ William
  R. Wolff

  	
   

  
	
   

  	
   

  
	
  Bill Wolff

  	
   

  
				



 


13