EX-10.1






AMENDED AND RESTATED EXECUTIVE EMPLOYMENT AGREEMENT




This AMENDED AND RESTATED EXECUTIVE EMPLOYMENT AGREEMENT, dated effective as of November 18,
2005 (the “Effective Date”) is between Loudeye Corp., a Delaware corporation (the
“Company”), and Chris J. Pollak (“Executive”), and amends and restates that certain
Executive Employment Agreement dated July 21, 2005 (the “Prior Agreement”) in its entirety. This
Agreement replaces and supersedes any employment or compensation agreement previously in effect
between the Company and the Executive.



AGREEMENTS





	 	1.	 	Employment	 





The Company will employ Executive and Executive will accept employment by the Company as Chief
Financial Officer. Executive currently reports to the Chief Executive Officer (“CEO”), and
shall have such responsibilities as are assigned from time to time by the CEO, which relate to the
business of the Company, or any business ventures in which the Company may participate.



As a condition to the effectiveness of this Agreement, Executive has executed a Loudeye Corp.
Proprietary Information and Inventions Agreement, which contains noncompetition and nonsolicitation
obligations, in the form attached as Exhibit A, which is part of this Agreement.




	 	2.	 	Attention and Effort	 





Executive shall devote his entire productive time, ability, attention and effort to the
Company’s business and shall skillfully serve its interests during the term of this Agreement and
shall not engage in any business or employment activity that is not on Company’s behalf (whether or
not pursued for gain or profit); provided, however, that Executive may devote
reasonable periods of time to (a) engaging in personal investment activities that do not involve
Executive providing any advice or services to the businesses that compete with the Company or any
of its subsidiaries; and (b) engaging in charitable or community service activities, so long as
none of the foregoing additional activities materially interfere with Executive’s duties under this
Agreement.




	 	3.	 	Term





Unless earlier terminated with appropriate notice of termination, the initial term of this
Agreement shall be from the date hereof until December 31, 2005; provided, however,
that, unless terminated with appropriate notice, on each January 1 following the date of this
Agreement, beginning with January 1, 2006, this Agreement shall be automatically renewed for
successive one-year terms.




	 	4.	 	Compensation	 





During the term of this Agreement, the Company shall pay or cause to be paid to Executive, and
Executive shall accept in exchange for the services rendered hereunder by him, the following
compensation:




	 	4.1	 	Base Salary	 





Executive’s compensation shall consist of, in part, an annual base salary (the “Base
Salary”) of One Hundred Seventy-Five Thousand Dollars ($175,000) before all customary payroll
deductions. The Base Salary shall be paid to Executive in substantially equal installments and at
the same intervals as other executive of the Company are paid. At the end of each year of
employment (or sooner if determined by the Board), Executive’s Base Salary shall be reviewed by the
CEO in its sole discretion, except that the Executive’s Base Salary shall never be reduced below
One Hundred Seventy-Five Thousand Dollars ($175,000).




	 	4.2.	 	Stock Option Grants





On the Effective Date, Executive shall be entitled to receive a stock option to purchase
150,000 shares (the “Option”) of the Company’s common stock, par value $.001 per share (the
“Common Stock”) under the Company’s 2005 Incentive Award Plan (the “2005 Plan”). The
Option shall be granted under and be subject to the terms of the 2005 Plan and the Company’s
standard form of stock option agreement under the 2005 Plan. The Option shall be an incentive
stock option to the maximum extent allowable under applicable law. The exercise price for the
Option shall be the fair market value of the Common Stock on the Effective Date. The Option shall
vest as follows: 25% of the shares shall vest and be exercisable on the one year anniversary date
of this Agreement and the remaining shares shall vest monthly in equal increments over the next 36
months following the anniversary date of this Agreement.



If, on or after a Change of Control (as defined herein), Executive’s employment with the
Company terminates due to an involuntary termination of Executive by the Company other than for
“Cause” (as defined in Section 6.6) or by Executive for “Good Reason” (as defined in
Section 6.6), then all of Executive’s Company stock options or restricted stock grants shall
immediately accelerate and become fully vested and exercisable immediately upon such termination.



For purposes of this Agreement, “Change of Control” shall mean the occurrence of any
of the following events:



(i) Any “person” (as such term is used in Sections 13(d) and 14(d) of the Securities Exchange
Act of 1934, as amended) becomes the “beneficial owner” (as defined in Rule 13d-3 under said Act),
directly or indirectly, of securities of the Company representing fifty percent (50%) or more of
the total voting power represented by the Company’s then outstanding voting securities; or



(ii) The consummation of the sale or disposition by the Company of all or substantially all
the Company’s assets in one or a series of related transactions; or



(iii) The consummation of a merger or consolidation of the Company or share exchange involving
any other corporation, other than (A) a merger, consolidation or share exchange which would result
in the voting securities of the Company outstanding immediately prior thereto continuing to
represent (either by remaining outstanding or by being converted into voting securities of the
surviving entity) at least fifty percent (50%) of the total voting power represented by the voting
securities of the Company or such surviving entity outstanding immediately after such merger or
consolidation, or (B) a merger effected solely for purposes of changing the domicile of the
Company.




	 	4.3	 	Bonuses





(a) Executive will receive a bonus of $40,000 upon the earliest of the following: (i) filing
of the Company’s annual report on Form 10-K for the year ended December 31, 2005, (ii) filing of
the Company’s last public filing prior to a Change of Control, or (iii) termination by the Company
of Executive without “Cause” or for failure to meet “performance or quarterly goals”.



(b) Executive’s eligibility for a performance bonus shall be based on the overall performance
of the Company. Each year the Compensation Committee shall set both a performance target and
maximum performance goal for the Company for the fiscal year. The performance target and maximum
performance goal shall be documented in writing and acknowledged by Executive. If, based on the
Company’s audited financial statements, the performance target is met, and if the Company is EBITDA
positive (as determined in accordance with GAAP), Executive shall be eligible for an annual bonus
of up to fifty percent (50%) of his Base Salary. If, based on the Company’s audited financials,
the maximum performance goal is met, and if the Company is EBITDA positive, Executive shall be
eligible for an annual bonus of up to one hundred percent (100%) of his Base Salary. For avoidance
of doubt, executive’s maximum aggregate annual bonus potential under this Section 4.4 is 100% of
his Base Salary. The parties will negotiate in good faith to address any issues of fairness or
consistency if there are changes in GAAP between the time that the targets are established and the
calculation of eligibility for bonus.



The actual amount of any bonus payable to Executive shall be determined by the CEO, in
consultation with the Executive Committee of the Board. Executive understands that in any year no
more than twenty five percent (25%) of that year’s total positive EBITDA balance be distributed as
bonus compensation individually or collectively to the Company’s executive leadership team
(including Executive and the Company’s other senior executives). Any potential bonus amount that
is not payable pursuant to the prior sentence shall not be earned and shall not be accrued by the
Company. For illustration purposes only, if in a given year Executive meets the maximum
performance goal entitling Executive to a performance bonus of $200,000 and the Company’s positive
EBITDA balance as of the applicable year end is $1,000,000, then the maximum bonus amount
distributable to the executive leadership team shall be $250,000, of which Executive would receive
a percentage to be determined by the Compensation Committee of the Board. In this example, the
remaining balance of Executive’s earned bonus would not be earned and would not be accrued by the
Company.




	 	5.	 	Benefits	 





During the term of this Agreement, the Company shall provide Executive with the health and
dental insurance provided to other senior executives. Executive will be entitled to participate,
subject to and in accordance with applicable eligibility requirements, in fringe benefit programs
that may be established by the Company or, to the extent applicable, by the Board. During each
calendar year for the term of this Agreement, Executive shall be entitled to four (4) weeks paid
vacation. Unused vacation time may be accrued during the term of this Agreement, but in no event
shall Executive accrue and carry over more than eight (8) weeks of paid vacation. Any unused
vacation time above the eight weeks that may be carried over is forfeited.




	 	6.	 	Payments and Benefits Upon Termination	 





Executive shall be entitled to the following payments and benefits following termination of
Executive’s employment for the stated reasons, and provided that the Executive signs a release of
all claims or potential claims against the Company.




6.1 Termination Payment



(a) Generally. If Executive’s employment with the Company terminates due to an
involuntary termination by the Company other than for “cause” (as defined in Section 6.6),
then the Company shall make payments in cash to Executive as severance pay equal to three months of
Executive’s annual Base Salary in effect immediately prior to the date of Executive’s termination
(the “Cash Severance”). The Cash Severance due under this Section 6.1(a) shall be
paid in a lump sum. The amount of severance to be paid under this section shall increase to an
amount equal to six months of Executive’s annual Base Salary on January 1, 2006, and to an amount
equal to nine months of Executive’s annual Base Salary on January 1, 2007.



(b) Termination Payment on Change of Control. If, on or after a Change of Control,
Executive’s employment with the Company terminates due to (i) a voluntary termination for Good
Reason (as defined in Section 6.6) or (ii) an involuntary termination by the Company other
than for “Cause” (as defined in Section 6.6), then the Company shall pay Executive as
severance an amount equal to six months of Executive’s annual Base Salary in effect immediately
prior to the date of Executive’s termination, plus the bonus due under Section 4.3 (a), to the
extent it has not already been paid. The severance due under this Section 6.1(b) shall be
paid in a lump sum.



6.2 Accrued Benefits



The Company shall pay to Executive the amount of any compensation deferred by Executive and
any accrued vacation pay for the periods of service prior to the date of termination. Such amounts
shall be paid in a lump sum.



6.3 Exclusive Source of Severance Pay



Benefits provided under this Agreement shall replace the amount of any severance payments to
which Executive would otherwise be entitled under any severance plan or policy generally available
to executives of the Company.



6.4 Nonsegregation



No assets of the Company need be segregated or earmarked to represent the liability for
benefits payable hereunder. The rights of Executive to receive benefits hereunder shall be only
those of a general unsecured creditor.



6.5 Withholding



All payments under this Section 6 are subject to applicable federal and state payroll
withholding or other applicable taxes.



6.6 “Cause” and “Good Reason” Definitions



For purposes of this Agreement, “Cause” means (a) violation by Executive of a state or
federal criminal law involving the commission of a crime against the Company, or any felony; (b)
habitual or repeated misuse by Executive of alcohol or controlled substances; (c) fraud,
intentional misrepresentation or dishonesty by Executive with respect to the business of the
Company; (d) any incident materially compromising Executive’s reputation or ability to represent
the Company with the public; (e) any intentional act by Executive that substantially impairs the
Company’s business, goodwill or reputation; or (f) a determination by CEO after the end of each of
two (2) consecutive calendar quarters that the Company (or the Executive) has not substantially met
the quarterly goals as established by the CEO or the Board of Directors.



For purposes of this Agreement, “Good Reason” shall mean, without Executive’s express
written consent: (a) the material reduction of (i) Executive’s duties, benefits, authority or
responsibilities (as determined in good faith by the Board of Directors), or (ii) compensation ;
(b) the relocation of the principal place of Executive’s employment to a location that is more than
fifty (50) miles away from its current location; or (c) the uncured breach of any material
provision of this Agreement by the Company; provided, however, that the Executive
shall not be deemed to have resigned for Good Reason hereunder unless with respect to each of (a)
and (b) and (c) above, the Executive shall have provided written notice to the Company within 60
calendar days after the event that the Executive believes gives rise to the Executive’s right to
terminate employment for Good Reason, describing in reasonable detail the facts that provide the
basis for such belief, and the Company shall have thirty (30) days from the date of such notice to
cure any such material reduction, relocation or breach.



6.7 Termination For Failure to Meet Quarterly Goals



Notwithstanding anything stated elsewhere in this Agreement, the parties agree that if
Executive is terminated by the Company for failing to substantially meet the Quarterly Goals after
the end of each of two successive quarters, Executive shall be entitled to severance under
Section 7.1(a) of this Agreement and bonuses under Section 4.3 (a), but shall not
be entitled to any accelerated vesting of any outstanding options or restricted stock grants.



7. Termination



Employment of Executive pursuant to this Agreement may be terminated as follows:




	 	7.1	 	By the Company	 





The Company may terminate the employment of Executive with or without Cause upon giving
written notice of termination (“Notice of Termination”), which notice shall be effective
immediately if termination is for Cause and thirty (30) days later if termination is not for Cause.
This Agreement shall terminate upon the effective date specified in such Notice of Termination.
Payments due to Executive pursuant to Section 6, if any, shall commence on the effective
date of the Notice of Termination.



7.2 By Executive



Executive may terminate this Agreement upon thirty (30) days’ prior written notice in the form
of a Notice of Termination, and this Agreement shall terminate upon the effective date specified in
such Notice of Termination. Payments due to Executive pursuant to Section 6, if any, shall
commence on the effective date of the Notice of Termination. Notwithstanding the preceding
sentence, the Company shall have the right to accelerate Executive’s termination of employment to
be effective on the date that the Notice of Termination is received by the Company, or any date of
the Company’s choosing between that date and the effective date specified in the Notice of
Termination.



7.3 Automatic Termination



This Agreement and Executive’s employment shall terminate automatically upon Executive’s death
or Executive’s inability, for any reason, to perform his duties with the Company for 120 days in
any twelve (12) month period (“Disability”).



7.4 Effect of Termination



Notwithstanding any termination or expiration of this Agreement, the Company shall remain
liable for any rights or payments arising prior to such event to which Executive is entitled under
this Agreement.



8. Golden Parachute Taxes.



In the event that (i) any amounts paid or deemed paid to Executive under this Agreement are
deemed to constitute “excess parachute payments” as defined in Section 280G of the Code (taking
into account any other payments made to Executive under any other agreement and any other
compensation paid or deemed paid to Executive), or if Executive is deemed to receive an “excess
parachute payment” by reason of his vesting in the option grants or restricted stock grants set
forth in Section 4.2, and (ii) such deemed “excess parachute payments” would be subject to
the excise tax of Section 4999 of the Code, then at the election of the Executive, the amount of
any or all of such payments or deemed payments, as selected by Executive, may be reduced (or,
alternatively the provisions of Section 4.2 may be waived so as not act to vest options to
such Executive), so that no such payments or deemed payments shall constitute excess parachute
payments. The determination of whether a payment or deemed payment constitutes an excess parachute
payment shall be made in the sole discretion of the Board.



9. Miscellaneous




9.1 Amendment



This Agreement may not be amended except by written agreement between Executive and an
authorized representative of the Company following approval by the Compensation Committee.



9.2 No Mitigation



All payments and benefits to which Executive is entitled under this Agreement shall be made
and provided without offset, deduction or mitigation on account of income Executive could or may
receive from other employment or otherwise.



9.3 Legal Expenses



In connection with any litigation, arbitration or similar proceeding, whether or not
instituted by the Company or Executive, with respect to the interpretation or enforcement of any
provision of this Agreement, the substantially prevailing party shall be entitled to recover from
the other party all costs and expenses, including reasonable attorneys’ fees and disbursements, in
connection with such litigation, arbitration or similar proceeding.



9.4 Notices



Any notices required under the terms of this Agreement shall be effective hand delivered or
when mailed, postage prepaid, by certified mail and addressed to, in the case of the Company:




Loudeye Corp.




1130 Rainier Avenue South




Seattle, WA 98144




Attention: General Counsel




with a copy to:


Cairncross & Hempelmann, P.S.


524 Second Avenue, Suite 500


Seattle, WA 98104


Attn: Rosemary Daszkiewicz




and to, in the case of Executive:


Chris J. Pollak


     


     



Either party may designate a different address by giving written notice of change of address in the
manner provided above.




9.5 Waiver; Cure



No waiver or modification in whole or in part of this Agreement, or any term or condition
hereof, shall be effective against any party unless in writing and duly signed by the party sought
to be bound. Any waiver of any breach of any provision hereof or any right or power by any party
on one occasion shall not be construed as a waiver of, or a bar to, the exercise of such right or
power on any other occasion or as a waiver of any subsequent breach.



9.6 Binding Effect; Successors



This Agreement shall be binding upon, inure to the benefit of and be enforceable by the
Company and Executive and their respective heirs, legal representatives, successors and assigns.



9.7 Severability



Any provision of this Agreement which is held to be unenforceable or invalid in any respect in
any jurisdiction shall be ineffective in such jurisdiction to the extent that it is unenforceable
or invalid without affecting the remaining provisions hereof, which shall continue in full force
and effect. The enforceability or invalidity of a provision of this Agreement in one jurisdiction
shall not invalidate or render unenforceable such provision in any other jurisdiction.



9.8 Governing Law



This Agreement shall be governed by and construed in accordance with the laws of the state of
Washington applicable to contracts made and to be performed there.



1




SIGNATURE PAGE TO EMPLOYMENT AGREEMENT




The Company and Executive have executed this Agreement at Seattle, Washington as of the
Effective Date.




	 	 	 	Loudeye Corp.






By: /s/ Michael A. Brochu

Michael A. Brochu

Chief Executive Officer





EXECUTIVE




/s/ Chris J. Pollak




	 	 	 	Chris J. Pollak





2




Exhibit A




Form of Proprietary Information and Inventions Agreement




LOUDEYE CORP.




In consideration of my employment or consultancy (as the case may be) by Loudeye Corp., a
Delaware corporation (the “Company,” which term includes the Company’s subsidiaries and any
of its affiliates), any opportunity for advancement or reassignment that the Company may offer me,
the compensation paid to me in connection with such employment or consultancy (as the case may be)
and any stock and/or stock options which have been or may be granted to me by the Company, I, Chris
J. Pollak, hereby agree as follows:



1. Whenever used in this Agreement the following terms will have the following meanings:




	 	(a)	 	“Invention(s)” means designs, trademarks, discoveries, formulae,
processes, manufacturing techniques, trade secrets, inventions, improvements, ideas,
business plans or strategies, or copyrightable works, including all rights to obtain,
register, perfect and enforce these proprietary interests; provided that the term
“Inventions” shall not be deemed to include those inventions, if any, listed on
the exhibit attached to this Agreement.






	 	(b)	 	“Proprietary Information” means information or physical material not
generally known or available outside the Company or information or physical material
entrusted to the Company by third parties. This includes, but is not limited to,
Inventions, confidential knowledge, trade secrets, copyrights, product ideas,
techniques, processes, formulas, object codes, mask works and/or any other information
of any type relating to documentation, data, schematics, algorithms, flow charts,
mechanisms, research, manufacture, improvements, assembly, installation, marketing,
forecasts, pricing, customers, the salaries, duties, qualifications, performance levels
and terms of compensation of other employees, and/or cost or other financial data
concerning any of the foregoing or the Company and its operations. Proprietary
Information may be contained in material such as drawings, samples, procedures,
specifications, reports, studies, customer or supplier lists, budgets, cost or price
lists, compilations or computer programs, or may be in the nature of unwritten
knowledge or know-how.






	 	(c)	 	“Company Documents” means documents or other media that contain
Proprietary Information or any other information concerning the business, operations or
plans of the Company, whether such documents have been prepared by me or by others.
“Company Documents” include, but are not limited to, blueprints, drawings,
photographs, charts, graphs, notebooks, customer lists, computer disks, tapes or
printouts, sound recordings and other printed, typewritten or handwritten documents.





2. I understand that the Company is engaged in a continuous program of research, development
and production. I also recognize that the Company possesses or has rights to Proprietary
Information (including certain information developed by me during my employment or consultancy (as
the case may be) by the Company) which has commercial value in the Company’s business that derives,
at least in part, from not being generally known or readily ascertainable.



3. I understand that the Company possesses Company Documents which are important to its
business.



4. I understand and agree that my employment or consultancy (as the case may be) creates a
relationship of confidence and trust between me and the Company with respect to (i) all Proprietary
Information, and (ii) the confidential information of another person or entity with which the
Company has a business relationship and is required by terms of an agreement with such entity or
person to hold such information as confidential. At all times, both during my employment or
consultancy (as the case may be) by the Company and after its termination, I will keep in
confidence and trust all such information, and I will not use or disclose any such information
without the written consent of the Company, except as may be necessary in the ordinary course of
performing my duties to the Company, in which case I shall take reasonable steps to ensure that
such information is maintained in confidence.



5. In addition, I hereby agree as follows:



(a) All Proprietary Information shall be the sole property of the Company and its assigns, and
the Company and its assigns shall be the sole owner of all trade secrets, patents, copyrights and
other rights in connection therewith. I hereby assign to the Company any rights I may presently
have or I may acquire in such Proprietary Information.



(b) All Company Documents, apparatus, equipment and other physical property, whether or not
pertaining to Proprietary Information, furnished to me by the Company or produced by me or others
in connection with my employment or consultancy (as the case may be) shall be and remain the sole
property of the Company. I shall return to the Company all such Company Documents, materials and
property as and when requested by the Company, excepting only (i) my personal copies of records
relating to my compensation; (ii) my personal copies of any materials previously distributed
generally to stockholders of the Company; and (iii) my copy of this Agreement (my “Personal
Documents”). Even if the Company does not so request, I shall return all such Company
Documents, materials and property upon termination of my employment or consultancy (as the case may
be) by me or by the Company for any reason, and, except for my Personal Documents, I will not take
with me any such Company Documents, material or property or any reproduction thereof upon such
termination.



(c) I will promptly disclose to the Company, or any persons designated by it, all Inventions
relating to the subject matter of my employment or consultancy made or conceived, reduced to
practice or learned by me, either alone or jointly with others, prior to the termination of my
employment or consultancy (as the case may be) and for one (1) year thereafter.



(d) Without further compensation, I hereby agree promptly to disclose to the Company, and I
hereby assign and agree to assign to the Company or its designee, my entire right, title, and
interest in and to all Inventions which I may solely or jointly develop or reduce to practice
during the period of my employment or consulting relationship with the Company (i) which pertain to
any line of business activity of the Company, (ii) which are aided by the use of time, material or
facilities of the Company, whether or not during working hours, or (iii) which relate to any of my
work during the period of my employment or consulting relationship with the Company, whether or not
during normal working hours. No rights are hereby conveyed in Inventions, if any, made by me prior
to my employment or consulting relationship with the Company which are identified in a sheet
attached to and made a part of this Agreement, if any (which attachment contains no confidential
information).




NOTICE REQUIRED BY REVISED CODE OF WASHINGTON 49.44.140:



Any assignment of Inventions required by this Agreement does not apply to an
Invention for which no equipment, supplies, facility or trade secret information of
the Company was used and which was developed entirely on the employee’s or
consultant’s own time, unless (a) the Invention relates (i) directly to the business
of the Company or (ii) to the Company’s actual or demonstrably anticipated research
or development or (b) the Invention results from any work performed by the employee
or consultant for the Company.



(e) During or after my employment or consultancy (as the case may be), upon the Company’s
request and at the Company’s expense, I will execute all papers in a timely manner and do all acts
necessary to apply for, secure, maintain or enforce patents, copyrights and any other legal rights
in the United States and foreign countries in Inventions assigned to the Company under this
Agreement, and I will execute all papers and do any and all acts necessary to assign and transfer
to the Company or any person or party to whom the Company is obligated to assign its rights, my
entire right, title and interest in and to such Inventions. This obligation shall survive the
termination of my employment or consultancy (as the case may be), but the Company shall compensate
me at a reasonable rate after such termination for time actually spent by me at the Company’s
request on such assistance. In the event that the Company is unable for any reason whatsoever to
secure my signature to any document reasonably necessary or appropriate for any of the foregoing
purposes, (including renewals, extensions, continuations, divisions or continuations in part), I
hereby irrevocably designate and appoint the Company and its duly authorized officers and agents as
my agents and attorneys-in-fact to act for and in my behalf and instead of me, but only for the
purpose of executing and filing any such document and doing all other lawfully permitted acts to
accomplish the foregoing purposes with the same legal force and effect as if executed by me.



(f) So that the Company may be aware of the extent of any other demands upon my time and
attention, I will disclose to the Company (such disclosure to be held in confidence by the Company)
the nature and scope of any other business activity in which I am or become engaged during the term
of my employment or consultancy (as the case may be). During the term of my employment or
consultancy (as the case may be), I will not engage in any other business activity which is related
to the Company’s business or its actual or demonstrably anticipated business.



6. As a matter of record, I attach hereto as Exhibit A a complete list of all
Inventions (including patent applications and patents) relevant to the subject matter of my
employment or consultancy which have been made, conceived, developed or first reduced to practice
by me, alone or jointly with others, prior to my employment or consultancy (as the case may be)
with the Company that I desire to remove from the operation of this Agreement, and I covenant that
such list is complete. If no such list is attached to this Agreement, I represent that I have no
such Inventions at the time of signing this Agreement. If in the course of my employment or
consultancy with the Company, I use or incorporate into a product or process an Invention not
covered by Paragraph 5(d) of this Agreement in which I have an interest, the Company is hereby
granted a nonexclusive, fully paid-up, royalty-free, perpetual, worldwide license of my interest to
use and sublicense such Invention without restriction of any kind.



7. I represent that my execution of this Agreement, my employment or consultancy (as the case
may be) with the Company and my performance of my proposed duties to the Company in the development
of its business will not violate any obligations I may have to any former employer, or other person
or entity, including any obligations to keep confidential any proprietary or confidential
information of any such employer. I have not entered into, and I will not enter into, any
agreement which conflicts with or would, if performed by me, cause me to breach this Agreement.



8. In the course of performing my duties to the Company, I will not utilize any proprietary or
confidential information of any former employer.



9. I agree that this Agreement does not constitute an employment or consultancy (as the case
may be) agreement for a specific duration.



10. This Agreement shall be effective as of the first day of my employment or consultancy (as
the case may be) by the Company and the obligations hereunder will continue beyond the termination
of my employment and will be binding on my heirs, assigns and legal representatives. This Agreement
is for the benefit of the Company, its successors and assigns (including all subsidiaries,
affiliates, joint ventures and associated companies) and is not conditioned on my employment for
any period of time or compensation arising therefrom. I agree that the Company is entitled to
communicate any obligations under this Agreement to any future or prospective employer of mine or
business retaining me as a consultant.



11. During the term of my employment or consultancy (as the case may be) and for one (1) year
thereafter, I will not, without the Company’s written consent, directly or indirectly be employed
or involved with any business developing or exploiting any products or services that are
competitive with products or services (a) being commercially developed or exploited by the Company
during my employment or consultancy (as the case may be) and (b) on which I worked or about which I
learned Proprietary Information during my employment or consultancy (as the case may be) with the
Company. During the term of my employment or consultancy (as the case may be) and for one year
thereafter I shall not directly or indirectly contact, solicit, induce, or attempt to induce any
customer or identified prospective customer, vendor, business relation or contractor of the Company
for the purposes of diverting sales from the Company, terminating such person or entity’s
relationship with the Company, or diminishing in any respect the business being done by the Company
with such person or entity.



12. During the term of my employment or consultancy (as the case may be) and for one (1) year
thereafter, I will not personally or through others recruit, solicit or induce in any way any
employee, advisor or consultant of the Company to terminate his relationship with the Company.



13. I acknowledge that any violation of this Agreement by me will cause irreparable injury to
the Company and I agree that the Company will be entitled to extraordinary relief in court,
including, but not limited to, temporary restraining orders, preliminary injunctions and permanent
injunctions without the necessity of posting a bond or other security and without prejudice to any
other rights and remedies that the Company may have for a breach of this Agreement.



14. I agree that any dispute in the meaning, effect or validity of this Agreement shall be
resolved in accordance with the laws of the State of Washington without regard to the conflict of
laws provisions thereof. I further agree that if one or more provisions of this Agreement are held
to be unenforceable under applicable Washington law, such provision(s) shall be modified solely to
the extent necessary to render the same enforceable and the balance of the Agreement shall be
interpreted consistent with such provision as modified and shall be enforceable in accordance with
its terms.



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15. I HAVE READ AND UNDERSTOOD THIS AGREEMENT. THIS AGREEMENT MAY ONLY BE MODIFIED BY
A SUBSEQUENT WRITTEN AGREEMENT EXECUTED BY AN AUTHORIZED OFFICER OF THE COMPANY AND APPROVED BY THE
COMPENSATION COMMITTEE.



	 	 	 	 	 	 	 
	Dated: November 18, 2005
	 	 	 	 
	 
	 	 	 	 	 	 
	
 
	 	 	 	By:
	 	/s/ Chris J. Pollak

Signature
	
 
	 	 	 	Name:
	 	Chris J. Pollak
	 
	 	 	 	 	 	 
	Accepted and Agreed to:

	 	

	 	

	 	

	 
	 	 	 	 	 	 
	LOUDEYE CORP.

	 	

	 	

	 	

	 
	 	 	 	 	 	 
	By:

	 	/s/ Michael A. Brochu

Michael A. Brochu

Chief Executive Officer
	 	





	 	











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Exhibit A




LOUDEYE CORP



Ladies and Gentlemen:



1. The following is a complete list of all inventions or improvements relevant to the subject
matter of my employment or consultancy (as the case may be) by Loudeye Corp (the “Company”)
that have been made or conceived or first reduced to practice by me, alone or jointly with others,
prior to my employment or consultancy (as the case may be) by the Company that I desire to remove
from the operation of the Proprietary Information and Inventions Agreement entered into between the
Company and me.



	 	 	 
	X

	 	No inventions or improvements.

Any and all inventions regarding:
	 

	 	

	 
	 	 
	
 
	 	Additional sheets attached.
	 

	 	







2. I propose to bring to my employment or consultancy (as the case may be) the following
materials and documents of a former employer:



	 	 	 	 	 	 	 
	X

	 	No materials or documents.

See below:
	 	



	 	



	 

	 	

	 	

	 	

	 
	 	 	 	 	 	 
	
 
	 	 	 	By:
	 	/s/ Chris J. Pollak

Signature
	
 
	 	 	 	Name:
	 	Chris J. Pollak
	 
	 	 	 	 	 	 







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