EXHIBIT 10.46


 


May 20, 2005


Melvin
Flanigan


29538
Ridgeway Drive


Agoura
Hills, California 91301


 


	
  Re:

  	
   

  	
  Employment
  Agreement

  
	
   

  	
   

  	
   

  
	
  Dear
  Mel:

  	
   

  	
   

  
	
   

  	
   

  	
   

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

  
	
   

  
	
  Title:

  	
   

  	
  Executive Vice President,
  Finance, Chief Financial Officer.

  
	
   

  	
   

  	
   

  
	
  Duties:

  	
   

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

  
	
   

  	
   

  	
   

  
	
  Status:

  	
   

  	
  Salary Exempt.

  
	
   

  	
   

  	
   

  
	
  Effective
  Date:

  	
   

  	
  May 20, 2005.

  
	
   

  	
   

  	
   

  
	
  Base
  Salary:

  	
   

  	
  $240,000 per year payable biweekly and subject to
  payroll deductions as may be necessary or customary in respect of the
  Company’s salaried employees in general.

  
	
   

  	
   

  	
   

  
	
  Bonus:

  	
   

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

  
	
   

  	
   

  	
   

  
	
  Stock
  Options:

  	
   

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

  
	
   

  	
   

  	
   

  
	
  Vacation:

  	
   

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

  
	
   

  	
   

  	
   

  
	
  Holidays:

  	
   

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

  
	
   

  	
   

  	
   

  
	
  Severance:

  	
   

  	
  Upon
  the termination of this Agreement by the Company for other than good cause,
  including constructive termination: (A) the Company shall for a period of
  Twelve (12) months; (I) pay to Employee in monthly installments, as severance
  pay, Employee’s full Salary, 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 Five (5) years from such termination (but not in excess of
  the specified maximum term of such option). Constructive Termination
  shall mean any material failure by the Company to fulfill its obligations
  under this Agreement which is not cured within thirty (30) days after receipt
  of written notice from you specifying the nature of the failure, including,
  but not limited to, (a) your removal, other than removal as a result of a
  termination for cause or your voluntary termination, as Executive Vice
  President, Finance, Chief Financial Officer of the Company, (b) any material
  change by the Company in your functions, duties or responsibilities from
  those in which you were engaged under this Agreement without your consent, or
  (c) a material, non-voluntary reduction in your base salary and eligibility
  for bonus amounts.

  
	
   

  	
   

  	
   

  
	
  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.

  
						



 


	
  Insurance:

  	
   

  	
   

  	
   

  	
  Disability

  	
   

  	
   

  
	
  Health

  	
   

  	
  Blue
  Cross

  	
   

  	
  Long
  Term:

  	
   

  	
  Coverage
  through UNUM.

  
	
  Dental:

  	
   

  	
  Aetna

  	
   

  	
  Short
  Term:

  	
   

  	
  Coverage through UNUM.

  
	
  Vision:

  	
   

  	
  Coverage through VSP

  	
   

  	
  Section 125:

  	
   

  	
  Available for dependent
  and health care.

  
	
  Life:

  	
   

  	
  $50,000 coverage -Blue
  Cross

  	
   

  	
  401k Plan:

  	
   

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

  
	
   

  	
   

  	
   

  	
   

  	
  ESPP: Enrollment —
  May and November

  



 


 


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


Termination for Cause.  Your
employment under this Agreement may be terminated immediately by the Company
for “good cause”.  Upon such termination
you will be provided notice specifying the reasons for the termination.  You shall have ten (10) business days from
the date such termination to cure such cause, if curable.  Absent such cure within the cure period, your
employment shall be deemed terminated for good cause on the date of your
termination.  The term “good cause” is
defined as any one or more of the following occurrences:


	
  (I)

  	
   

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

  
	
  (II)

  	
   

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

  
	
  (III)

  	
   

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

  
	
  (IV)

  	
   

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

  



 


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


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


	
  (I)

  	
   

  	
  Consulting. Be reasonably available, by telephone, as a
  consultant to the Company on projects or task you had previously been
  involved in. It is agreed that eight (8) hours per week of consultation, by
  phone, shall be reasonable.

  
	
  (II)

  	
   

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

  
	
  (III)

  	
   

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

  
	
  (IV)

  	
   

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

  



 


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


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


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


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


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


 


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applicable
fee in California Superior Court or, if applicable, other appropriate tribunal
with jurisdiction.


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


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


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


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


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


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


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


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


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


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


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


Sincerely,


 


	
  /s/ Jon Kirchner

  	
   

  	
  /s/ Susan R. Ryan

  	
   

  
	
  Jon Kirchner

  	
   

  	
  Susan R. Ryan

  	
   

  
	
  President and Chief Executive Officer

  	
   

  	
  Director, Human Resources

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Acceptance:

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  /s/ Melvin Flanigan

  	
  June 3, 2005

  	
   

  	
   

  	
   

  
	
  Melvin Flanigan

  	
  Date

  	
   

  	
   

  	
   

  



 


 


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AGREEMENT
OF AT WILL EMPLOYMENT


 


 


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


 


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


 


 


 


 


 


	
  Melvin Flanigan

  	
   

  
	
  Employee Name (PRINT)

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  /s/ Melvin Flanigan

  	
  June 3, 2005

  	
   

  
	
  Employee Signature

  	
  Date

  	
   

  
				



 


 


 


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