Employment Agreement - Advantix Inc. and Karen S. Goetz
EMPLOYMENT AGREEMENT
This Employment Agreement ("Agreement") is dated effective as of
April 20, 1999, between Advantix, Inc., a Delaware corporation ("Company"), and
Karen S. Goetz ("Executive"). In consideration of the mutual covenants and
agreements set forth herein, the parties hereto 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 Executive Vice President of TicketsLive Corporation and
President of the Select Technologies Group responsible for managing TicketsLive
licensing business on a worldwide basis, including the U.S. sales, marketing,
sales support and operations of the software licensing business, as well as
directing the Managing Directors of the UK and Asia/Pacific businesses while
working closely with Advantix to ensure coordination of efforts and efficient
use of resources. 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 until the later of (i) March 31, 2000 or (ii) the earlier of
(w) the expiration of the lock up period provided for in that certain
Shareholder Voting Agreement dated March __, 1999 by and among the Company,
TicketsLive Corporation and certain shareholders of TicketsLive Corporation, (x)
the date that Executive exercises her "put" right under that certain Agreement
dated as of March ___1999 by and between the Company and Executive, with respect
to an aggregate of at least $1,000,000 worth of shares (the "Put"), (y) the last
date that Executive has the right to exercise the Put and (z) the first date
upon which Executive has the ability, along with other stockholders of Advantix,
Inc., to exchange her shares of Advantix common stock for cash or publicly
traded stock in connection with an extraordinary corporate transaction involving
Advantix, such as a merger, acquisition of the Company, consolidation or other
business combinations; provided, however, that in any event the initial term of
this Agreement shall terminate no later than March 31, 2001. At the end of the
initial term, or any additional term, this Agreement shall automatically be
extended for an additional one (1) year period, unless either Executive or
Company gives written notice to the other of its desire to terminate this
Agreement at least one hundred twenty (120) days prior to the scheduled end of
that term; provided, however, that if the initial term ends by reason of an
event set forth in Section 1.2(ii) above, there shall be no automatic renewal
extending the term.
1.3 Principal Business Office. Executive's principal business office
during the term of employment will be in Syracuse, New York.
ARTICLE II
COMPENSATION
2.1 Annual Salary. During the employment of Executive, the Company shall
pay to Executive a base salary at the annual rate of $ 175,000 (the "Base
Salary"), payable on the Company's regular payroll dates. Executive's base
salary may not be decreased below the Base Salary during the term of this
Agreement.
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2.2 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.
2.3 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.
2.4 Vacations and Holidays. During Executive's employment with the
Company, Executive shall be entitled to accrue vacation leave monthly up to a
maximum of four (4) 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.
2.5 Automobile. The Company shall continue to provide Executive with the
use of the automobile currently provided for Executive's use by TicketsLive
Corporation through the expiration of the lease thereof in September 1999, and
thereafter the Company shall provide Executive with an automobile allowance of
$600 per month.
ARTICLE III
CONFIDENTIALITY, NONDISCLOSURE AND NONCOMPETITION
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 confidential 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 Advantix, Inc., 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 one (1) year
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
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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 one (1) year 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.
3.5 Noncompetition.
(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 one (1) year 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 the Company's ticketing products or services or;
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.
(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,
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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 not
inconsistent with this Agreement 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;
(v) intentional damage to any material 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) Disability. "Disability" shall mean a physical or mental incapacity
as a result of which Executive becomes unable to continue the proper performance
of her 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.
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(c) Good Reason. "Good Reason" shall mean the assignment of Executive to
a position of materially lesser status than her position as of the date of this
Agreement.
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) 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
Executive for Good Reason, then the Company shall provide Executive:
(i) salary continuation in an amount equal to Executive's then
Base Salary through the later of March 31, 2000 or six (6) months after
the Effective Date, 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) 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.
(c) 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 twelve (12) 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.
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
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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: Advantix, Inc.
4675 MacArthur Court, Suite 1400
Newport Beach, CA 92660
Attn: Chief Executive Officer
To Executive: Karen S. Goetz
8410 Hobnail Road
Manlius, NY 13104
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.
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
reasonable ethics policies of the Company as well as the Company's other
reasonable rules, regulations, policies and procedures. Executive agrees to
comply with all governmental laws and regulations as well as ethics codes
applicable to the profession. In the event that Executive is aware the Company,
or any of its officers or agents, is violating any such laws, ethics codes,
rules, regulations, policies or procedures, Executive agrees to bring all such
actual violations which are material to the attention of the Company immediately
so that the matter may be properly investigated and appropriate action taken.
Executive understands that she 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 her 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.
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5.6 Choice of Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York.
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.
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 her 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 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.
IN WITNESS WHEREOF, the parties have executed this Agreement as of
the
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date first above written.
"COMPANY"
Advantix, Inc., a Delaware corporation
By: /s/ W. THOMAS GIMPLE
-------------------------------------
W. Thomas Gimple
President and Chief Executive Officer
"EXECUTIVE"
/s/ KAREN S. GOETZ
-------------------------------------
Karen S. Goetz
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