**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:**          EmploymentAgreement

 

Dear Don:

 

Digital Theater Systems, Inc. (“DTS” or the “Company”) is pleased toextend to you the following employment Agreement.  Unless otherwise set forth in**this Agreement, you acknowledge that youremployment 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.                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                               |
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| **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.                                                                                                                                                                                                                                                                                                                                                                                                                                                                                    |
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| **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.                                                                                                                                                                                                                                                                                                                                                                                                                                                             |
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| **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 thetermination of this Agreement, your employment under this Agreement willautomatically terminate. “Disability” means any physical or mental illness thatrenders you unable to perform your agreed-upon services under this Agreementfor ninety (90) consecutive days or an aggregate of one-hundred twenty (120)days, whether or not consecutive, during any consecutive twelve (12)-monthperiod. Disability shall be determined by a licensed physician selected by theCompany that is not affiliated with you or the Company. In the event of yourdeath or disability, the amounts due you pursuant to this Agreement through thedate of your death or disability will be paid to you or your beneficiaries.

 

**Termination for Cause**. Youremployment under this Agreement may be terminated immediately by the Companyfor “good cause” upon ten (10) days advance written notice specifying thereasons. You shall have ten (10) business days from the date such notice isgiven 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 ofsuch ten (10) day period. The term “good cause” is defined as any one or moreof the following occurrences:

(I)                      Negligenceor a material violation by you of any duty or any other material or repetitivemisconduct or failure on your part;

(II)                  Your convictionby, or entry of a plea of guilty or nolo contendere in, a court of competentand final jurisdiction for any crime punishable by imprisonment in thejurisdiction involved; or

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

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

 

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

 

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

(I)                      Mitigation.  (1) In good faith seek new employment at alevel commensurate with Employee’s duties and Salary hereunder, (2) report tothe Company on or before the first day of each month the status of obtainingsuch subsequent employment and (3) report on a monthly basis, the amount ofcompensation and benefits paid to Employee received from any such subsequentemployment/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 ofsuch subsequent employment or consultation with others.

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

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

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

(V)                  SeveranceAgreement.  You shall enter into aseverance agreement and general release with the company in the form designatedby the Company.

 

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**Arbitration.**  You and the Company agree that any disputearising under or in connection with this Agreement, including any disputeinvolving your employment or the termination of that employment (whether basedon contract, tort or statutory duty or prohibition, including any prohibitionagainst discrimination or harassment), shall be submitted to bindingarbitration in accordance with California Code of Civil Procedure §§ 1280 – 1294.2before a single neutral arbitrator. You and the Company understand that each iswaiving its rights to a jury trial.

 

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

 

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

 

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

 

The Company will pay the arbitrator’s expenses and fees, all meeting roomcharges and any other expenses that would not have been incurred if the casewere litigated in the judicial forum having jurisdiction over it. Unlessotherwise ordered by the arbitrator pursuant to law or this Agreement, eachparty shall pay its own attorney fees, witness fees and other expenses incurredby 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 orother applicable fee in CaliforniaSuperior Court or, if applicable, other appropriate tribunal with jurisdiction.

 

**Modification and Waiver of Breach.**  Nowaiver or modification of this Agreement shall be binding unless it is in writing signed by youand the Company. No waiver of a breach of this Agreement shall he deemed toconstitute a waiver of a future breach, whether of a similar or dissimilarnature.

 

**Notices.**  All notices and other communications requiredor permitted under this Agreement shall be in writing, served personally on, ormailed by nationally recognized express mail courier. Notices and othercommunications served by express mail courier shall be deemed given 72 hoursafter deposit with such express mail courier duly addressed to whom such noticeor communication is to be given. In the case of (a) the Company, 5171 ClaretonDrive, Agoura Hills, California 91301, Attention: General Counsel, or (b) toyou*,*at the address of recordprovided by you to the Company’s Human Resources department. Either party maychange their address for purposes of this Section by giving written notice, inthe manner stated herein. You agree to promptly update the Company’s HumanResources department with any changes to your contact information.

 

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

 

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

 

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

 

**Severability Clause.** If anyprovision of this Agreement or the application thereof is held invalid, theinvalidity shall not affect other provisions or applications of the Agreementwhich can be given effect without the invalid provisions or applications and tothis end the provisions of this Agreement are declared to be severable.

 

**Complete Agreement.**  This instrument constitutes and contains the entireagreement and understanding concerning your employment and the other subjectmatters addressed in this Agreement between you and the Company, and supersedesand replaces all prior negotiations and all agreements proposed or otherwise,whether written or oral, concerning the subject matters hereof. This is anintegrated document.

 

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**Third Party Beneficiaries.**  This Agreement does not create, and shall notbe**construed as creating, anyrights enforceable by any person not a party to this Agreement, except asexpressly contemplated herein.

 

**Non-transferability of Interest.** None of the rights of Employee toreceive any form of compensation payable pursuant to this Agreement shall beassignable or transferable except through a testamentary disposition or by thelaws of descent and distribution upon the death of Employee. Any attemptedassignment, transfer, conveyance, or other disposition (other than as set forthherein) of any interest in the rights of Employee to receive any form ofcompensation to be made by the Company pursuant to this Agreement shall bevoid.

 

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

 

**At-Will.**  By signing this letter, you understand andagree that your employment with DTS is **“at-will.”** Youremployment with DTS is voluntarily entered into and we recognize you are freeto resign at any time. Similarly, it is recognized that DTS is free to concludean employment relationship at any time we feel is appropriate. While otherterms of your employment may change with or without notice, this at-willrelationship can be changed only in a written agreement signed by you and thePresident & Chief ExecutiveOfficer 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 ATWILL EMPLOYMENT

 

I understand and agree that my employmentwith DTS is on an **at-will** basis. This means that either DTS or I or may terminate theemployment relationship at any time at theirsole discretion without cause.

 

I further understand that while other personnel policies, procedures, and benefits of DTS may change from time to timein DTS’s discretion, this at-will employment relationship can only be changedby an express written employmentagreement 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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