Separation and Consulting Agreement - Tickets.com Inc. and Mardan M. Afrasiabi
SEPARATION AND CONSULTING AGREEMENT
This Separation and Consulting Agreement ("Agreement") is entered
into effective as of June 1, 2002, by and between Mardan M. Afrasiabi
("Afrasiabi") and Tickets.com, Inc., a Delaware corporation (the "Company"),
with regard to the following:
R E C I T A L S
A. Afrasiabi and the Company are parties to an Employment Agreement
dated effective as of November 2000, as amended by an Amendment to Employment
Agreement dated April 29, 2002 (collectively, the "Employment Agreement"), a
Proprietary Information and Inventions Agreement dated as of June 23, 1998
("Inventions Agreement") and an Indemnification Agreement dated August 24, 1998
("Indemnification Agreement").
B. Afrasiabi has been granted options to acquire a total of 143,124
shares of the Company's Common Stock (the "Stock Options"), as set forth on
Schedule I hereto.
C. The Company and Afrasiabi have agreed that Afrasiabi will
voluntarily resign from his employment with the Company effective June 1, 2002.
D. In connection with Afrasiabi's separation from the Company, the
Company and Afrasiabi have agreed to the releases, services, payments and
benefits set forth herein.
Therefore, in consideration of the premises recited above, the
mutual exchange of promises contained in this Agreement and other valuable
consideration, the receipt and adequacy of which are hereby acknowledged by the
Company and Afrasiabi, the parties agree as follows:
AGREEMENT
1. Resignation. Afrasiabi hereby voluntarily resigns from his
employment with the Company effective June 1, 2002.
2. Payment and Benefits.
2.1 Salary. The Company agrees to continue to pay Afrasiabi
his regular annual base salary of $200,000 through and including May 31, 2003,
on the Company's regular payroll dates. Such payments shall be after applicable
deductions and withholdings.
2.2 Afrasiabi Consulting. During the period from June 1, 2002
through May 31, 2003, Afrasiabi agrees to make himself available on an
as-requested basis to the Company's officers, directors, employees and agents
for up to an average of two days per month to consult with the Company on such
matters as the Company shall reasonably request. Afrasiabi shall have no
authority to act on behalf of the Company, to bind the Company, or to commit the
Company financially or to obligate the Company in any way unless such authority
is specifically delegated to Afrasiabi by the Company in writing. Afrasiabi
shall not make any representations to the contrary to any person or entity. In
consideration of the payments and
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other consideration provided for herein, Afrasiabi agrees that he will not,
directly or indirectly, during the term of his consultancy with the Company
hereunder, engage or invest in, own, manage, operate, finance, control or
participate in the ownership, management, operation, financing or control of, be
employed by, associated with, or in any manner connected with, or lend his name
or any similar name to, any business whose products or activities compete with
the Company's ticketing products or services.
2.3 Accrued Vacation. On June 1, 2002, upon his resignation,
Afrasiabi will be issued a check by the Company in the amount of his accrued
vacation, less applicable withholdings.
2.4 Stock Options. During the period from June 1, 2002 through
May 31, 2003, the Stock Options shall continue to vest in accordance with their
terms as if Afrasiabi had continued as an employee of the Company during such
period. On May 31, 2003, all of the Stock Options then outstanding, whether
vested or unvested, shall expire and be of no further force or effect.
3. Waiver of Rights Under Employment Agreement; No Other Benefits.
Except for the continuing obligations of Afrasiabi under Sections 3.1, 3.2, 3.3,
3.4, 3.6, 3.7 and 5.8 of the Employment Agreement, which Afrasiabi hereby
reaffirms, the parties agree that the Employment Agreement is terminated in its
entirety as of June 1, 2002, and Afrasiabi expressly waives any notice periods
for termination or resignation under the Employment Agreement. Afrasiabi agrees
that he is not entitled to receive, and will not claim, any damages, profits,
compensation, bonuses, benefits, vacation, stock options or rights other than
(i) what is expressly set forth in this Agreement, the Stock Options and the
Indemnification Agreement, and (ii) salary accrued through June 1, 2002.
Afrasiabi acknowledges that the consideration he is receiving under this
Agreement is in lieu of, and he hereby waives any other rights he may have had
under, the Employment Agreement, and any other agreements, express or implied,
he may have had with the Company except for the Indemnification Agreement and
any agreements or resolutions adopted by the Company's Board of Directors
providing rights of indemnification to officers of the Company that were in
effect during the term of Afrasiabi's employment. This Agreement supersedes all
rights and/or benefits Afrasiabi may have or claim arising out of the Employment
Agreement.
4. Return of Company Property; Expenses.
4.1 Prior to June 1, 2002, Afrasiabi shall return to the
Company all Company property and equipment in his possession or under his
control, including, but not limited to, any cell phones, computers and pagers.
4.2 On or before June 1, 2002, Afrasiabi must submit to the
Company all outstanding business expenses incurred prior to June 1, 2002 for
reconciliation and payment. Reimbursement of such business expenses will be made
by June 15, 2002. Expenses submitted thereafter will not be reimbursed, unless
approved in advance by the Company in connection with the Afrasiabi's consulting
services hereunder.
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5. Releases.
5.1 General Release by Afrasiabi. Excepting only the
obligations undertaken by the Company in accordance with this Agreement, the
Stock Options and the Indemnification Agreement, and except for any obligation
to indemnify Afrasiabi pursuant to the Company's Certificate of Incorporation or
Bylaws as in effect as of the date hereof, which obligations shall not be
released or, except as specifically set forth in this Agreement, altered or
amended in any way by this Agreement, and in exchange for the consideration
provided to Afrasiabi in this Agreement, Afrasiabi hereby releases, acquits,
relieves and forever discharges the Company and its successors, heirs, assigns,
employees, officers, directors, agents, representatives, stockholders,
attorneys, affiliated corporations, divisions or organizations, whether
previously or hereinafter affiliated in any manner (collectively, the "Company
Released Parties"), from any and all claims, rights, actions, complaints,
demands, causes of actions, wage claims, obligations, promises, contracts,
agreements, controversies, suits, debts, expenses, damages, attorneys' fees,
costs and liabilities of any nature whatsoever, matured or unmatured, fixed or
contingent, which Afrasiabi ever had, now has, or may claim to have from the
beginning of time to the moment he signs this Agreement against the Company
Released Parties (whether directly or indirectly), or any of them, by reason of
any act, event or omission concerning any matter, cause or thing, including,
without limiting the generality of the foregoing, any claims related to or
arising out of (i) Afrasiabi's employment with the Company or the cessation of
that employment; (ii) any common law torts, including, without limitation,
infliction of emotional distress; (iii) any federal, state or governmental
constitution, statute, regulation or ordinance, including, without limitation,
Title VII of the Civil Rights Act of 1964, the Fair Labor Standards Act of 1938,
the Employee Retirement Income Security Act, the California Labor Code, the
California Fair Employment and Housing Act and the Age Discrimination in
Employment Act of 1967, the Wage, Pay and Collection Act of the State of
Delaware, and any other federal, state or local employment practice legislation;
(iv) any agreement, express or implied, between Afrasiabi and any of the Company
Released Parties; (v) any impairment of his ability to compete in the open labor
market; or (vi) any permanent or temporary disability or loss of future earnings
as a result of injury or disability arising from or associated with his
employment or termination of his employment relationship with the Company.
5.2 Afrasiabi's Release of Unknown Claims. Afrasiabi hereby
waives and relinquishes all rights and benefits afforded by Section 1542 of the
Civil Code of California. Afrasiabi hereby acknowledges that he understands the
significance and consequences of this specific waiver of Section 1542. Section
1542 of the Civil Code of California states as follows:
A general release does not extend to claims which the creditor does
not know or suspect to exist in his favor at the time of executing
the release, which if known by him must have materially affected his
settlement with the debtor.
Notwithstanding the provisions of Section 1542, and for the purpose of
implementing a full and complete release and discharge of the Company Released
Parties (except as provided in Section 5.1, above), Afrasiabi expressly
acknowledges that the release contained in this Agreement is intended to include
in its effect, without limitation, all claims covered by the
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release set forth in Section 5.1 above which Afrasiabi does not know or suspect
to exist in his favor.
5.3 Afrasiabi's Covenant To Forebear. Afrasiabi further agrees
not to institute, maintain or aid any action at law or in equity or any legal
proceeding whatsoever against any or all of the Company Released Parties (as
defined in Section 5.1, above), which is based on, in whole or in part, or which
arises out of, or is connected with, the claims hereby released.
5.4 Afrasiabi's Representation and Warranty Regarding
Assignment of Claims. Afrasiabi represents and warrants that he has not assigned
any claims made the subject of Section 5.1 of this Agreement or authorized any
other person or entity to assert any such claim on behalf of him. Further,
Afrasiabi agrees that by the releases contained in this Section 5.1 he waives
any claim for damages incurred at any time after the date on which he signs this
Agreement because of alleged continuing effects of any alleged acts or omissions
involving the Company that occurred on or before the date on which he signs this
Agreement, and any right to sue for monetary or injunctive relief against the
alleged continuing effects of acts or omissions that occurred before the date on
which he signs this Agreement.
6. No Employment Rights. Afrasiabi acknowledges that effective
as of June 1, 2002, he will no longer be an employee of the Company for any
purpose. Nothing in this Agreement shall be construed to continue, create or
imply any contract of employment between Afrasiabi and the Company.
7. Assistance/Cooperation With Litigation. In connection with the
Company's participation in current or future litigation relating to events which
occurred during Afrasiabi's employment or about which Afrasiabi has information,
Afrasiabi agrees to cooperate fully and devote such time as may be reasonably
required in the preparation, prosecution or defense of the Company's case or
cases, including, but not limited to, the execution of truthful declarations or
providing information and/or documents requested by the Company. The Company
shall reimburse Afrasiabi, promptly upon receipt of satisfactory evidence
thereof, for all reasonable expenses (not including any amount for Afrasiabi's
time) incurred by Afrasiabi in connection with such assistance and/or
cooperation with the Company with respect to such litigation.
8. No Admission. Nothing contained in this Agreement or the fact
that the parties have signed this Agreement shall be considered an admission
of any liability whatsoever.
9. Confidentiality.
9.1 As a material inducement to the Company to enter into this
Agreement and as an indivisible part of the consideration to be received for
entering into this Agreement and for the performance of obligations under this
Agreement by each party to this Agreement, Afrasiabi agrees that he will not
disclose, disseminate and/or publicize and cause or permit to be disclosed,
disseminated and/or publicized, any of the specific terms of this Agreement, any
claims or allegations or the basis for any claims or allegations, which were or
could have been made against the Company, or any of its officers, directors,
shareholders,
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employees, representatives, agents, attorneys or affiliated companies, which
concern and are within the scope of this Agreement, directly or indirectly,
specifically or generally, to any person, corporation, association, governmental
agency or other entity except: (a) to the extent necessary to report income to
appropriate taxing authorities; (b) in response to an order of a court of
competent jurisdiction or a subpoena issued under the authority thereof; (c) in
response to any subpoena issued by a state or federal governmental agency; or
(d) as otherwise required by law.
9.2 Afrasiabi further warrants and agrees that he will limit
his comments about his separation from the employment of the Company to the fact
that his situation has been resolved satisfactorily and that he has moved on to
other professional opportunities. Afrasiabi shall not disseminate orally or in
writing any comments which are in any way disparaging to the Company or to the
Company's business, owners, officers, agents, representatives or employees.
10. Fees and Costs. Afrasiabi and the Company agree that in the
event of litigation relating to a breach of this Agreement, the prevailing party
shall be entitled to its attorneys' fees and costs.
11. Successors and Assigns. This Agreement, and all the terms and
provisions hereof, shall be binding upon and shall inure to the benefit of the
parties and their respective heirs, legal representatives, successors and
assigns.
12. Waiver. No waiver of any of the provisions of this Agreement
shall be deemed, or shall constitute, a waiver of any other provision, whether
or not similar. No waiver shall constitute a continuing waiver. No waiver shall
be binding unless executed in writing by the party charged with the waiver.
13. Severability. In the event any provision of this Agreement shall
finally be determined by a court of competent jurisdiction to be unlawful, such
provision shall be deemed to be severed from this Agreement and every other
provision of this Agreement shall remain in full force and effect. If, moreover,
any one or more of the provisions contained in this Agreement shall for any
reason be held by a court of competent jurisdiction to be excessively broad, it
shall be construed, by limiting and reducing it, so as to be enforceable to the
extent compatible with the applicable law as it shall then appear.
14. Legal Representation. The parties acknowledge that they have had
the opportunity to receive the advice of independent legal counsel prior to the
execution of this Agreement and the opportunity to receive an explanation from
legal counsel of the legal nature and affect of the Agreement, and each party
has fully exercised that opportunity to the extent desired and understands the
terms and provisions of this Agreement and its nature and affect. Each party
further represents that it is entering into this Agreement freely and
voluntarily, and not relying on the representations of any other party or of the
counsel of any other party. Each party expressly agrees that this Agreement
shall not be construed or interpreted for or against the party drafting the
Agreement.
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15. Notices. All notices, requests, demands and other communications
under this Agreement must be in writing and shall be deemed to have been duly
given (i) on the date of service if served personally on the party to whom
notice is to be given; (ii) on the second business day following delivery to a
courier or messenger service guaranteeing overnight delivery; (iii) on the date
of confirmation of receipt if sent by telecopy or telex; and (iv) on the date of
receipt or refusal indicated on the return receipt if mailed to the party to
whom notice is to be given by first-class mail, registered or certified, postage
prepaid, return receipt requested, and in each case, properly addressed as
follows:
If to the Company: Tickets.com, Inc.
555 Anton Blvd., 11th Floor
Costa Mesa, CA 92626
Attn: Chief Executive Officer
If to Afrasiabi: Mardan M. Afrasiabi
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16. Miscellaneous.
16.1 Entire Agreement. This Agreement and the Inventions
Agreement constitute the entire agreement and supersede all prior written or
oral and all contemporaneous oral agreements, understandings and negotiations
between the parties with respect to the subject matter of this Agreement.
16.2 Counterparts. This Agreement may be executed in one or
more counterparts, each of which shall be deemed an original, and all of which
shall constitute one and the same instrument.
16.3 Amendment. This Agreement may not be amended except by an
agreement in writing signed by the parties to this Agreement or their respective
successors-in-interest and expressly stating that it is an amendment of this
Agreement.
16.4 Governing Law. This Agreement shall be governed in all
respects, including validity, interpretation and effect, by the laws of the
State of California.
16.5 Survival of Representations and Warranties. All
representations and warranties contained in this Agreement shall survive the
execution and delivery of this Agreement.
Any party may change its address for the purpose of this Agreement
by giving the other party written notice of the new address in the manner set
forth above.
[Signature page follows]
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This Agreement has been executed as of the day first hereinbefore
written.
"COMPANY"
TICKETS.COM, INC.,
a Delaware corporation
By: /s/ Ronald Bension
-------------------------------------
Ronald Bension,
Chief Executive Officer
"AFRASIABI"
Mardan M. Afrasiabi
-----------------------------------------
Mardan M. Afrasiabi
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SCHEDULE I
STOCK OPTIONS
No. of Exercise Price
Grant Date Shares Per Share
---------- -------- --------------
09/01/98 13,889 $27.00
04/29/99 13,889 49.50
09/16/99 16,666 72.00
05/15/00 12,500 18.50
09/25/00 3,125 7.75
03/07/01 27,500 5.50
12/18/01 55,555 2.79
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143,124
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