Employment Agreement - Tickets.com Inc. and Andrew Donkin
EMPLOYMENT AGREEMENT
This Employment Agreement ("Agreement") is dated effective as of April
24, 2000, between Tickets.com, Inc., a Delaware corporation ("Company"), and
ANDREW DONKIN, ("Executive"). In consideration of the mutual covenants and
agreements set forth herein, the parties hereto agree as follows:
WHEREAS: On October 4, 1999, the Company and Executive entered into an
employment relationship.
WHEREAS: The Company and Executive would now like to restate and
memorialize such relationship in accordance with the terms of this Agreement.
NOW THEREFORE, for good and valuable consideration, the Company and
Executive hereby agree as follows:
ARTICLE I
EMPLOYMENT
The Company hereby employs Executive and Executive accepts employment
with the Company upon the terms and conditions herein set forth.
1.1 Employment. The Company hereby employs Executive, and Executive agrees to
serve as the Company's Senior Vice President, Marketing, or in such other
management position as the Company shall determine, during the term of this
Agreement. Executive agrees to devote Executive's full business time and
attention and best efforts to the affairs of the Company during the term of this
Agreement.
1.2 Term. Subject to the earlier termination of Executive's employment by the
Company pursuant to the provisions hereof, the term of employment of Executive
under this Agreement shall commence on the date hereof and shall continue in
effect for a period of two (2) years, plus any extension as provided below. At
the end of the initial term, or any additional term, this Agreement shall
automatically be extended for an additional one (1) year, unless either
Executive or Company gives written notice to the other of its desire to
terminate this Agreement at least six (6) months prior to the scheduled end of
the term.
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ARTICLE II
COMPENSATION
2.1 Annual Salary. During the employment of Executive, the Company shall pay to
Executive an initial base salary at the annual rate of one hundred and fifty
thousand dollars $150,000 (the "Base Salary"), payable on the Company's regular
payroll dates. The Company may, in its sole and absolute discretion, increase
Executive's Base Salary in light of Executive's performance, inflation and cost
of living, and other factors deemed relevant by the Company; provided, however,
Executive's Base Salary may not be decreased below the initial Base Salary
during the term of this Agreement.
2.2 Bonus. In addition to Executive's Base Salary, Executive shall be entitled
to receive such bonuses, if any, as shall be determined by the Board of
Directors of the Company (the "Board") in its sole and absolute discretion.
2.3 Stock Option. Executive has been granted stock options to purchase shares of
the Company's Common Stock pursuant to the Company's Stock Option Plans. The
options granted to Executive on or prior to the date of this Agreement are
referred to as the "Options". To the extent the Option is outstanding
twenty-four (24) months following a Corporate Transaction or Change in Control
(as defined in Article IV), all option shares at the time subject to the Option
shall automatically vest in full on an accelerated basis so that the Option will
immediately become exercisable for all the option shares as fully vested shares.
Notwithstanding the terms and conditions of the Option agreements and the
applicable stock options plan, Section 4.5 of this Agreement shall govern the
acceleration, if any, of the Option upon the Executive's termination of
employment.
2.4 Reimbursement of Expenses. Executive shall be entitled to receive prompt
reimbursement of all reasonable and necessary expenses incurred by Executive in
performing services hereunder, provided that such expenses are incurred and
accounted for in accordance with the policies and procedures established by the
Company.
2.5 Benefits. Executive shall be entitled to participate in and be covered by
health, insurance, pension and other employee plans and benefits currently or
hereafter established for the employees of the Company generally (collectively
referred to as the "Company Benefit Plans") on at least the same terms as other
employees of the Company, subject to meeting applicable eligibility
requirements.
2.6 Vacations and Holidays. During Executive's employment with the Company,
Executive shall be entitled to accrue vacation leave monthly up to a maximum of
three (3) weeks annually at full pay, or such greater vacation benefits as may
be provided for by the Company's vacation policies applicable to senior
executives. Executive shall be entitled to such holidays as are established by
the Company for all employees.
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ARTICLE III
CONFIDENTIALITY, NONDISCLOSURE AND NON-COMPETITION
3.1 Confidentiality. Executive will not during Executive's employment by the
Company or thereafter at any time disclose, directly or indirectly, to any
person or entity or use for Executive's own benefit any trade secrets or
confidential information relating to the Company's business operations,
marketing data, business plans, strategies, employees, negotiations and
contracts with other companies, or any other subject matter pertaining to the
business of the Company or any of their clients, customers, consultants, or
licensees, known, learned, or acquired by Executive during the period of
Executive's employment by the Company (collectively "Confidential Information"),
except as may be necessary in the ordinary course of performing Executive's
particular duties as an employee of the Company and further excepting any such
information which is or becomes available to the public through no fault of
Executive. For purposes of this Article III, the term "Company" shall mean the
Company and each of its subsidiaries.
3.2 Return of Confidential Material. Executive shall promptly deliver to the
Company on termination of Executive's employment with the Company, whether or
not for cause and whatever the reason, or at any time the Company may so
request, all memoranda, notes, records, reports, manuals, drawings, blueprints,
Confidential Information and any other documents of a confidential nature
belonging to the Company, including all copies of such materials which Executive
may then possess or have under Executive's control. Upon termination of
Executive's employment by the Company, Executive shall not take any document,
data, or other material of any nature containing or pertaining to the
proprietary information of the Company.
3.3 Prohibition on Solicitation of Customers. During the term of Executive's
employment with the Company and for a period of two (2) years thereafter,
Executive shall not, directly or indirectly, either for Executive or for any
other person or entity, solicit any person or entity to terminate such person's
or entity's contractual and/or business relationship with the Company, nor shall
Executive interfere with or disrupt or attempt to interfere with or disrupt any
such relationship. None of the foregoing shall be deemed a waiver of any and all
rights and remedies the Company may have under applicable law.
3.4 Prohibition on Solicitation of Employees, Agents or Independent Contractors
After Termination. During the term of Executive's employment with the Company
and for a period of two (2) years thereafter, Executive will not solicit any of
the employees, agents or independent contractors of the Company to leave the
employ of the Company for a competitive company or business. However, Executive
may solicit any employee, agent or independent contractor who voluntarily
terminates his or her employment with the Company after a period of 90 days have
elapsed since the termination date of such employee, agent or independent
contractor. None of the foregoing shall be deemed a waiver of any and all rights
and remedies the Company may have under applicable law.
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3.5 Non-competition.
(a) Executive acknowledges that: (i) the services to be performed
by Executive under this Agreement are of a special, unique, unusual,
extraordinary, and intellectual character; (ii) the Company has required
that Executive make the covenants set forth in this Section 3.5 as a
condition to the Company's entering into this Agreement; and (iii) the
provisions of this Section 3.5 are reasonable and necessary to protect
the business of the Company.
(b) In consideration of the acknowledgments by Executive, and in
consideration of the compensation and benefits to be paid or provided to
Executive by the Company under this Agreement, Executive covenants that
Executive will not, directly or indirectly:
(i) during the term of Executive's employment with the
Company hereunder and for a period of two (2) years thereafter
(the "Covenant Period"), 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, lend
Executive's name or any similar name to, lend Executive's credit
to, or render services or advice to, any business whose products
or activities compete in the Territory (as defined below),
directly or indirectly, with (i) the Company's ticketing products
or services or (ii) with any products or services of the Company
as of the time of the Executive's termination; provided, however,
that Executive may purchase or otherwise acquire up to (but not
more than) one percent of any class of securities of any
enterprise (but without otherwise participating in the activities
of such enterprise) if such securities are listed on any national
or regional securities exchange or have been registered under
Section 12(g) of the Securities Exchange Act of 1934. Executive
agrees that this covenant is reasonable with respect to its
duration, geographical area, and scope. For purposes hereof,
"Territory" shall mean any county of any state of the United
States of America, including any county in the States of
California, Connecticut, Ohio or New York, and any other states
or international jurisdictions in which the Company is doing
business at the time of Executive's termination.
(ii) at any time during or after the Covenant Period,
disparage the Company, or any of its shareholders, directors,
officers, employees, or agents.
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(c) Executive will, for the Covenant Period, within ten days
after accepting any employment, advise the Company of the identity of
any employer of Executive. The Company may serve notice upon each such
employer that Executive is bound by this Agreement and furnish each such
employer with a copy of this Agreement or relevant portions thereof.
3.6 Enforcement. It is the intent of the parties that the restrictive covenants
contained in this Article III are severable and separate and the
unenforceability of any individual provision shall not effect the enforceability
of any other. If any covenant in this Article III is held to be unreasonable,
arbitrary, or against public policy, such covenant will be considered to be
divisible with respect to scope, time, and geographic area, and such lesser
scope, time, or geographic area, or all of them, as a court of competent
jurisdiction may determine to be reasonable, not arbitrary, and not against
public policy, will be effective, binding and enforceable against the Executive.
3.7 Survival of Obligations. Executive agrees that the terms of this Article III
shall survive the term of this Agreement and the termination of Executive's
employment by the Company.
ARTICLE IV
TERMINATION
4.1 For purposes of this Article IV, the following definitions shall apply to
the terms set forth below:
(a) Cause. "Cause" shall include the following:
(i) habitual neglect or insubordination (defined as a
refusal to execute or carry out directions from the Board or its
duly appointed designees) where Executive has been given written
notice of the acts or omissions constituting such neglect or
insubordination and Executive has failed to cure such conduct,
where susceptible to cure, within thirty (30) days following
notice;
(ii) conviction of any felony or any crime involving
moral turpitude;
(iii) participation in any fraud against the Company;
(iv) willful breach of Executive's duties to the
Company, including but not limited to theft from the Company,
failure to fully disclose personal pecuniary interest in a
transaction involving the Company, violation of the Company's
authority limits on commitments, trading, controls and
notification;
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(v) intentional damage to any property of the Company;
(vi) conduct by Executive which in the good faith,
reasonable determination of the Board demonstrates gross
unfitness to serve including, but not be limited to, gross
neglect, non-prescription use of controlled substances, any
abuse of controlled substances whether or not by prescription,
or habitual drunkenness, intoxication, or other impaired state
induced by consumption of any drug, including alcohol; or
(vii) material breach by the Executive of those
provisions of this Agreement concerning non-competition or the
confidentiality of trade secrets or proprietary or other
information.
(b) Change in Control. "Change in Control" shall mean a change
in ownership or control of the Company effected through either of the
following transactions:
(i) the acquisition, directly or indirectly, by any
person or related group of persons (other than the Company or a
person that directly or indirectly controls, is controlled by,
or is under common control with, the Company) of beneficial
ownership (within the meaning of Rule 13d-3 of the 1934
Securities Exchange Act, as amended) of securities possessing
more than fifty (50%) of the total combined voting power of the
Company's outstanding securities pursuant to a tender or
exchange offer made directly to the Company's stockholders, or
(ii) a change in the composition of the Company's Board
over a period of thirty-six (36) consecutive months or less such
that a majority of the Board members ceases, by reason of one or
more contested elections for Board membership, to be comprised
of individuals who either (a) have been Board members
continuously since the beginning of such period or (b) have been
elected or nominated for election as Board members described in
clause (a) who were still in office at the time the Board
approved such election or nomination.
(c) Corporate Transaction. "Corporate Transaction" shall mean
either of the following stockholder-approved transactions to which the
Company is a party:
(i) a merger or consolidation in which securities
possessing more than fifty percent (50%) of the total combined
voting power of the Company's outstanding securities are
transferred to a person or persons different from the persons
holding those securities immediately prior to such transaction,
or
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(ii) the sale, transfer or other disposition of all or
substantially all of the Company's assets in complete
liquidation or dissolution of the Company.
(d) Disability. "Disability" shall mean a physical or mental
incapacity as a result of which Executive becomes unable to continue the
proper performance of his duties hereunder (reasonable absences because
of sickness for up to two (2) consecutive months excepted; provided,
however, that any new period of incapacity or absences shall be deemed
to be part of a prior period of incapacity or absences if the prior
period terminated within ninety (90) days of the beginning of the new
period of incapacity or absence and the incapacity or absence is
determined by the Company's Board of Directors, in good faith, to be
related to the prior incapacity or absence.) A determination of
Disability shall be subject to the certification of a qualified medical
doctor agreed to by the Company and Executive or, in the event of
Executive's incapacity to designate a doctor, Executive's legal
representative. In the absence of agreement between the Company and
Executive, each party shall nominate a qualified medical doctor and the
two (2) doctors so nominated shall select a third doctor, who shall make
the determination as to Disability.
(e) Good Reason. "Good Reason" shall mean:
(i) assignment of the Executive without Executive's
consent to a position, responsibilities or duties of a
materially lesser status or degree of responsibility than his
position, responsibilities or duties as of the date of this
Agreement;
(ii) relocation of the Executive outside of the Costa
Mesa, California area without Executive's consent;
(iii) a reduction by the Company of the Executive's Base
Salary below the initial Base Salary or, following a Change in
Control, below Executive's Base Salary at the time of the Change
in Control, without Executive's consent;
(iv) a failure by the Company to continue in effect,
without substantial change, any benefit plan or arrangement in
which the Executive was participating or the taking of any
action by the Company which would adversely affect the
Executive's participation in or materially reduce his benefits
under any benefit plan (unless such failure, action or changes
apply equally to substantially all other management employees of
Company); or
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(v) any material breach by the Company of any provision
of this Agreement without the Executive having committed any
material breach of Executive's obligations hereunder, which
breach is not cured within thirty (30) days following written
notice thereof to the Company of such breach; provided, however,
that the events listed herein shall constitute "Good Reason"
only for a period of ninety (90) days following the occurrence
thereof.
4.2 Termination by Company. The Company may terminate Executive's employment
hereunder immediately for Cause. Subject to the other provisions contained in
this Agreement, the Company may terminate this Agreement for any reason other
than Cause upon thirty (30) days' written notice to Executive. The effective
date of termination ("Effective Date") shall be considered to be the date of
notice of termination if for Cause and thirty (30) days subsequent to written
notice of termination for any reason other than Cause; however, the Company may
elect to have Executive leave the Company immediately.
4.3 Termination by Executive. Executive may terminate this Agreement upon thirty
(30) days' written notice to the Company. The effective date of termination
("Effective Date") shall be considered to be thirty (30) days subsequent to
written notice of termination; however, the Company may elect to have Executive
leave the Company immediately.
4.4 Death or Disability of Executive. This Agreement shall terminate immediately
upon the death or Disability of Executive (the "Effective Date").
4.5 Severance Benefits Received Upon Termination.
(a) If Executive's employment is terminated by the Company for
Cause, or Executive terminates this Agreement without Good Reason, then
the Company shall pay Executive's Base Salary through the Effective Date
of such termination plus credit for any vacation earned but not taken
and the Company shall thereafter have no further obligations to
Executive under this Agreement.
(b) Except as otherwise provided in Section 4.5(c) below, if
Executive's employment is terminated by the Company without Cause or as
a result of Disability, or if Executive's employment is terminated by
Employee for Good Reason, then the Company shall provide Executive:
(i) salary continuation in an amount equal to Executive's
then Base Salary for a period of six (6) months, commencing on
the Effective Date, said sum to be paid in equal installments at
the times salary payments are usually made by the Company; and
(ii) if, and only if, such termination occurs more than
six (6) months after Executive commences employment with the
Company, acceleration and
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immediate vesting of fifty percent (50%) of the unvested shares
subject to each of the Executive's options outstanding at the
Effective Date (including the Option described in Section 2.3),
and such accelerated Options as well as any other Options which
have vested shall be exercisable for the three (3)-month period
measured from the date of the Executive's termination, except
for Executive's termination by reason of a disability where the
Options shall remain exercisable for such fully vested shares
until the expiration of the twelve (12)-month period measured
from the date of the Executive's termination of continuous
status as an employee, and shall then expire and be of no
further force or effect;
(iii) health insurance coverage as then in effect for
Executive, Executive's spouse and dependent children for a
period of six (6) months commencing on the Effective Date,
subject to any employee contribution provisions as defined in
the Company Benefit Plans. Subsequent health insurance benefits
will be in accordance with COBRA. The Company shall thereafter
have no further obligations under this Agreement.
(c) If within twenty-four (24) months of a Corporate Transaction
or Change in Control the Executive's employment is terminated by the
Company without Cause or by Executive for Good Reason, then the Company
shall provide Executive:
(i) salary continuation in an amount equal to
Executive's then Base Salary for a period of twelve (12) months,
commencing on the Effective Date, said sum to be paid in equal
installments at the times salary payments are usually made by
the Company; and
(ii) if, and only if, such termination occurs more than
six (6) months after Executive commences employment with the
Company, acceleration and immediate vesting of one hundred
percent (100%) of Executive's Options which have not yet vested
by the Effective Date, and such accelerated Options as well as
any other Options which have vested and which are then
exercisable for a period of twelve (12) months following the
Effective Date and shall then expire and be of no further force
or effect; and
(iii) health insurance coverage as then in effect for
Executive, Executive's spouse and dependent children for a
period of twelve (12) months, commencing on the Effective Date,
subject to any employee contribution provisions as defined in
the Company Benefit Plans. Subsequent health insurance benefits
will be in accordance with COBRA. The Company shall thereafter
have no further obligations under this Agreement.
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(d) If Executive's employment is terminated by the Company as a result
of death, then the Company shall pay Executive's Base Salary through the
Effective Date of such termination plus credit for any vacation earned but not
taken and the Company shall provide Executive's spouse and dependent children
health insurance coverage as then in effect for Executive, Executive's spouse
and dependent children for a period of two (2) months, subject to any employee
contribution provisions as defined in the Company Benefit Plans. Health
insurance benefits subsequent to the continuation period will be in accordance
with COBRA. The Company shall thereafter have no further obligations under this
Agreement.
(e) Notwithstanding the foregoing, Executive shall not be entitled to
the severance benefits set forth in this Section 4.5 in the event of Executive's
termination upon expiration of the term of this Agreement.
4.6 Expiration of Term. If Executive's employment is terminated as a result of
the expiration of the term of this Agreement, then the Company shall pay
Executive's Base Salary through the expiration date plus credit for any vacation
earned but not taken and the Company shall thereafter have no further
obligations under this Agreement.
ARTICLE V
GENERAL PROVISIONS
5.1 Notices. All notices, demands, requests, consents, approvals or other
communications (collectively "Notices") required or permitted to be given
hereunder or which are given with respect to this Agreement shall be in writing
and may be personally served or may be deposited in the United States mail,
registered or certified, return receipt requested, postage prepaid, addressed as
follows:
To the Company: Tickets.com, Inc.
555 Anton Boulevard, 12th Floor
Costa Mesa, CA 92626
To Executive: Andrew Donkin
155 Promontory Point West
Newport Beach, CA 92660
or such other address as such party shall have specified most recently by
written notice. Notice mailed as provided herein shall be deemed given on the
fifth business day following the date so mailed or on the date of actual
receipt, whichever is earlier.
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5.2 Proprietary Information and Inventions. Contemporaneously with the execution
of this Agreement, Executive shall execute a Proprietary Information and
Inventions Agreement in the form attached as Exhibit A hereto. The terms of said
agreement are incorporated by reference in this Agreement, and Executive agrees
to be bound thereby.
5.3 Covenant to Notify Management. Executive agrees to abide by the ethics
policies of the Company as well as the Company's other rules, regulations,
policies and procedures. Executive agrees to comply in full with all
governmental laws and regulations as well as ethics codes applicable to the
profession. In the event that Executive is aware or suspects the Company, or any
of its officers or agents, of violating any such laws, ethics codes, rules,
regulations, policies or procedures, Executive agrees to bring all such actual
and suspected violations to the attention of the Company immediately so that the
matter may be properly investigated and appropriate action taken. Executive
understands that he is precluded from filing a complaint with any governmental
agency or court having jurisdiction over wrongful conduct unless Executive has
first notified the Company of the facts and permits it to investigate and
correct the concerns.
5.4 No Waivers. No provision of this Agreement may be modified, waived or
discharged unless such waiver, modification or discharge is agreed to in writing
signed by Executive and the Company. No waiver by either party hereto at any
time of any breach by the other party hereto of, or compliance with, any
condition or provision of this Agreement to be performed by such other party
shall be deemed a waiver of similar or dissimilar provisions or conditions at
the same or at any prior or subsequent time.
5.5 Beneficial Interests. This Agreement shall inure to the benefit of and be
enforceable by Executive's personal and legal representatives, executors,
administrators, successors, heirs, distributees, devisees and legatees. If
Executive should die while any amounts are still payable to him hereunder, all
such amounts, unless otherwise provided herein, shall be paid in accordance with
the terms of this Agreement to Executive's devisee, legatee, or other designee
or, if there be no such designee, to Executive's estate.
5.6 Choice of Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of California
5.7 Statute of Limitations. Executive and the Company hereby agree that there
shall be a one year statute of limitations for the filing of any requests for
arbitration or any lawsuit relating to this Agreement or the terms or conditions
of Executive's employment by the Company. If such a claim is filed more than one
year subsequent to Executive's last day of employment it shall be precluded by
this provision, regardless of whether or not the claim has accrued at that time.
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5.8 Right to Injunctive and Equitable Relief. Executive's obligations under
Article III are of a special and unique character which gives them a peculiar
value. The Company cannot be reasonably or adequately compensated for damages in
an action at law in the event Executive breaches such obligations. Therefore,
Executive expressly agrees that the Company shall be entitled to injunctive and
other equitable relief without bond or other security in the event of such
breach in addition to any other rights or remedies which the Company may possess
or be entitled to pursue. Furthermore, the obligations of Executive and the
rights and remedies of the Company under Article III are cumulative and in
addition to, and not in lieu of, any obligations, rights, or remedies created by
applicable law.
5.9 Severability or Partial Invalidity. The invalidity or unenforceability of
any provisions of this Agreement shall not affect the validity or enforceability
of any other provision of this Agreement, which shall remain in full force and
effect.
5.10 Counterparts. This Agreement may be executed in counterparts, each of which
shall be deemed an original, but all of which taken together shall constitute
but one and the same instrument.
5.11 Attorneys' Fees. In the event any action in law or equity, arbitration or
other proceeding is brought for the enforcement of this Agreement or in
connection with any of the provisions of this Agreement, the prevailing party
shall be entitled to his or its attorneys' fees and other costs reasonably
incurred in such action or proceeding.
5.12 Entire Agreement. This Agreement, along with the Proprietary Information
and Inventions Agreement by and between Executive and the Company of even date
herewith (the "Proprietary Information Agreement"), constitutes the entire
agreement of the parties and supersedes all prior written or oral and all
contemporaneous oral agreements, understandings, and negotiations between the
parties with respect to the subject matter hereof. This Agreement, along with
the Proprietary Information Agreement, is intended by the parties as the final
expression of their agreement with respect to such terms as are included herein
and therein and may not be contradicted by evidence of any prior or
contemporaneous agreement. The parties further intend that this Agreement, along
with the Proprietary Information Agreement, constitutes the complete and
exclusive statement of their terms and that no extrinsic evidence may be
introduced in any judicial proceeding involving such agreements.
5.13 Assignment. This Agreement and the rights, duties, and obligations
hereunder may not be assigned or delegated by any party without the prior
written consent of the other party and any attempted assignment or delegation
without such prior written consent shall be void and be of no effect.
Notwithstanding the foregoing
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provisions of this Section 5.13, the Company may assign or delegate its rights,
duties, and obligations hereunder to any affiliate or to any person or entity
which succeeds to all or substantially all of the business of the Company
through merger, consolidation, reorganization, or other business combination or
by acquisition of all or substantially all of the assets of the Company.
5.14 Dispute Resolution. Except as provided in Section 5.8, any controversy,
dispute, claim or other matter in question arising out of or relating to the
interpretation, performance or breach of this Agreement shall be finally
determined, at the request of any party, by binding arbitration conducted in
accordance with the then existing rules for commercial arbitration of the
American Arbitration Association, and judgment upon any award rendered by the
arbitrator may be entered in any court having jurisdiction thereof. Such
arbitration shall be conducted in Orange County, California. The arbitrator
shall award to the prevailing party, in addition to the costs of the proceeding,
that party's reasonable attorney's fees. The Company reserves the right to seek
judicial provisional remedies and equitable relief regarding any breach or
threatened breach of Executive's obligations regarding the matters set forth in
Article III hereof.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
COMPANY
/S/
By:
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Tim Kelly
President
EXECUTIVE
/S/
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Andrew Donkin
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