Termination and Release Agreement - Tickets.com Inc. and Thomas R. Pascoe
EXECUTION COPY
TERMINATION AND RELEASE AGREEMENT
This Termination and Release Agreement ("Agreement") is made and
entered into this 7th day of April, 2000, by and between TICKETS.COM (the
"Employer"), a Delaware corporation with offices at 555 Anton Boulevard, 12th
Floor, Costa Mesa, California, 92612-1400, and THOMAS R. PASCOE ("Employee"),
domiciled at 14781 Devonshire, Tustin, California.
WHEREAS, On or about April 29, 1999, Employer and Employee entered into
an Employment Agreement (the "Employment Agreement"), a copy of which is
attached hereto as Exhibit "A";
WHEREAS, Employer and Employee have determined that it is in their
mutual best interests that Employee's termination be treated as for "Good
Reason" as such term is defined in Article IV, Section 4.1(e), of the Employment
Agreement;
WHEREAS, since November 24, 1999, Employee has not been employed in a
position involving management-level job responsibilities and has not been
involved in management-level meetings, has not had decision-making authority,
has not had the authority to gain access to management-level meetings or
otherwise gain access to material non-public information;
WHEREAS, the Employer wishes to provide Employee with certain benefits
in consideration of Employee's promises and covenants as contained herein,
including the Employee's agreement to release all claims against the Employer;
NOW THEREFORE, in consideration of and exchange for the promises,
covenants, and releases contained herein, the parties mutually agree as follows:
1. Resignation. Employee's resignation from all positions he holds with
the Employer shall be effective April 7, 2000 ("Resignation Date").
2. Effective Date. This Agreement shall be effective on the date on
which it is executed by Employee ("Effective Date").
3. Severance. Provided that Employee does not revoke this Agreement as
provided in Paragraph Nine (9), The Employer agrees to:
A. In accordance with the terms of Section 4.5 (b)(i) of the
Employment Agreement, commencing on April 7, 2000 and continuing
for six (6) months thereafter until October 7, 2000,
("Continuation Period") the Employer shall pay Employee's current
monthly salary of Seventeen Thousand, Two Hundred Sixty Six
Dollars and Sixty Seven Cents ($17,266.67), less all required and
customary withholdings and deductions. Said payments shall be
made in accordance with Employer's regularly scheduled payroll
periods and shall be deposited into Employee's accounts, as prior
payroll checks have been handled.
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B. Employer shall continue Employee's insurance benefits through and
including the last day of the month in which the last salary
payment is made to the same extent to which he would have been
eligible to participate in said benefits had he remained employed
by Employer and pursuant to the applicable plan documents.
Thereafter, Employee shall receive a COBRA election notice
regarding Employer's Executive Health Reimbursement Policy.
C. Each of the parties hereby acknowledges that it is their mutual
intention for Employee to receive the benefits granted to
Employee pursuant to the following documents (the "Option
Agreements"):
i. The 1996 Advantix Stock Plan: Stock Option Agreement entered
into between Employer and Employee as of October 1, 1996.
ii. The 1997 Advantix Stock Plan: Stock Option Agreement entered
into between Employer and Employee as of August 4, 1997.
iii. The 1997 Advantix Stock Plan: Stock Option Agreement entered
into between Employer and Employee as of October 15, 1997.
iv. The 1998 Advantix Stock Plan: Stock Option Agreement entered
into between Employer and Employee as of September 14, 1998.
v. The 1999se Advantix Stock Plan: Stock Option Agreement
entered into between Employer and Employee as of September
16, 1999.
D. Pursuant to the terms of the Employment Agreement and certain
amendments made to the Option Agreements, Employee shall become
immediately vested in fifty percent (50%) of any and all
otherwise unvested options to purchase Common Stock in
Tickets.com, Inc. as of the Resignation Date. With respect to the
order of vesting for such options, Employer agrees that such
options shall vest in the order granted until such time as fifty
percent (50%) of Employee's total unvested options have vested
and become exercisable. For example, in accordance with the
attached Exhibit "B", as of the Resignation Date, Employee shall
have a total of 427,516 unvested options. Pursuant to the
Employment Agreement 50% of such unvested options, or 213,758,
shall immediately vest and become exercisable as of the
Resignation Date. The actual vesting order shall be first with
all unvested options as of the Resignation Date for the grant
made on October 1, 1996 until all unvested options thereunder are
vested. Unvested options under the grant of August 4, 1997 shall
then be taken into account until all unvested options thereunder
have vested. Vesting shall then occur for all unvested options
under the grant of October 15, 1997 and so on to subsequent
option grants until such time as 213, 758 unvested options have
become fully vested and exercisable.
E. Employer represents and warrants that without further action on
the part of Employee, Employer shall take all actions necessary,
including but not limited to the registration of the stock, such
that all of Employee's vested options shall be converted into
stock, and all of Employee's stock shall be immediately available
to Employee at the moment the lock up period, following an
initial public offering, expires.
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F. In the event of any stock split, stock dividend,
reclassification, reorganization or similar event affecting the
stock of Employer occurring on or after April 7, 2000, Employee's
rights under the Option Agreement shall be equitably and
reasonably adjusted so that Employee is not prejudiced
financially, chronologically, procedurally, or in any other
manner with respect to Employee's rights and the value to
Employee under the Option Agreement or under this Agreement.
(e.g., in the event of a stock split, Employee's number of
options shall be proportionally increased and Employee's
price/share decreased). Employer hereby acknowledges and agrees
that Employee's employment and service with Employer were not and
are not terminated for cause. Employer hereby warrants and agrees
that it shall refrain and forebear from exercising any of its
repurchase rights on any options to purchase shares and/or shares
purchased by Employee during the Continuation Period.
G. In accordance with the Employee benefits policies of Tickets.com,
Employer shall pay Employee eight thousand five hundred and
eighty dollars and forty three cents ($8,580.43), which is
payment for 89.24 hours of accrued vacation pay, less applicable
federal, state and local taxes and other appropriate payroll
deductions. This is payment in full for all vacation accrued up
to the Resignation Date, after which date, vacation shall cease
to accrue. Said payments shall be made on the Resignation Date
and shall be mailed to Employee's residence.
4. Release by Employee. Employee agrees for Employee, Employee's heirs,
executors, administrators, successors and assigns to forever release and
discharge the Employer and its subsidiaries, related companies, parents,
successors and assigns, officers, directors, agents, employees and former
employees from any and all claims, debts, promises, agreements, demands, causes
of action, attorneys' fees, losses and expenses of every nature whatsoever,
known or unknown, suspected or unsuspected, filed or unfiled, arising prior to
the Effective Date of this Agreement, or arising out of or in connection with
Employee's employment by and resignation from the Employer or any affiliate of
the Employer. This total release includes, but is not limited to, all claims
arising directly or indirectly from Employee's employment with the Employer and
the resignation of that employment; claims or demands related to salary,
bonuses, commissions, stock, stock options, vacation pay, fringe benefits and
expense reimbursements pursuant to any federal, state or local law or cause of
action, including, but not limited to, breach of contract, breach of the implied
covenant of good faith and fair dealing, infliction of emotional harm, wrongful
discharge, violation of public policy, defamation and impairment of economic
opportunity; violation of the California Fair Employment and Housing Act, the
California Labor Code, the California Constitution; and any claims for violation
of the Civil Rights Act of 1866, Title VII of the Civil Rights Act of 1964, the
Age Discrimination in Employment Act of 1967, the Older Workers' Benefit
Protection Act and the Americans With Disabilities Act of 1990.
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5. Release by Employer. Employer hereby irrevocably and unconditionally
releases, acquits and forever discharges Employee from any and all charges,
complaints, claims, liabilities, obligations, promises, agreements,
controversies, damages, actions, causes of action, suits, rights, demands,
costs, losses, debts and expenses (including attorneys' fees and costs actually
incurred) of any nature whatsoever, known or unknown, suspected or unsuspected,
which Employer now has, owns or holds, or claims to have, own or hold, or which
Employer at any time heretofore had, owned or held, or claimed to have, own or
hold against Employee.
6. Waiver of Section 1542. The Employer and Employee hereby state that
it is their mutual intention in executing this Agreement that the same shall be
effective as a bar to each and every claim, demand, cause of action, obligation,
damage, liability, charge, attorneys fees and costs herein above released.
Employer and Employee hereby expressly waive and relinquish all rights and
benefits, if any, arising under the provisions of Section 1542 of the Civil Code
of the State of California which provides:
"SECTION 1542. [CERTAIN CLAIMS NOT AFFECTED BY GENERAL RELEASE.] 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."
7. Acknowledgment of Rights and Waiver of Claims Under the Age
Discrimination in Employment Act ("ADEA"). Employee acknowledges that he is
knowingly and voluntarily waiving and releasing any rights he may have under the
Age Discrimination in Employment Act of 1967 ("ADEA"). He also acknowledges that
the consideration given for the waiver and release in the preceding paragraph
hereof is in addition to anything of value to which he was already entitled.
Employee further acknowledges that he has been advised by this writing, as
required by the Older Workers' Benefit Protection Act, that: (a) his waiver and
release does not apply to any rights or claims that may arise after the
Effective Date of this Agreement; (b) he should consult with an attorney prior
to executing this Agreement; (c) he has at least twenty-one (21) days to
consider this Agreement (although he may by his own choice execute this
Agreement earlier); (d) he has seven (7) days following the execution of this
Agreement by the parties to revoke the Agreement; and (e) this Agreement shall
not be effective until the date upon which the revocation period has expired
("Effective Date").
8. Employee may revoke this Release only by giving Employer formal,
written notice of Employee's revocation of this Release. Any such notice shall
be provided in writing to:
Tickets.com, Inc.
555 Anton Boulevard, 12th Floor
Costa Mesa, CA 92626
Attention: Legal Department
With a copy to:
Robert V. Schnitz, Esq.,
Fisher & Phillips, LLP,
4675 MacArthur Court, Suite 550,
Newport Beach, California 92660
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Any notice as provided hereunder must be received by the close of business on
the seventh (7th) day following Employee's execution of this Release.
9. Employer Property. Employer hereby acknowledges receipt of all
Employer property and documents in Employee's possession including, but not
limited to, Employer files, notes, records, computer recorded information,
tangible property, credit cards, entry cards, pagers, identification badges, and
keys.
10. Confidentiality. The parties agree that they will keep the terms
and amount of this Agreement completely confidential, and that they will not
hereafter disclose any non-public information concerning this Agreement to
anyone; provided, however, that Employee may make such disclosure to his
immediate family, and Employee and the Employer may make such disclosure to
their respective professional representatives (e.g., attorneys, accountants,
auditors, tax preparers), all of whom will be informed of and agree to be bound
by this confidentiality clause, or other such disclosures required by law.
11. Confidential Information and Trade Secrets. Employee acknowledges
and agrees that Employee shall not disclose, directly or indirectly, to any
person or entity or use for Employee's own benefit any trade secrets or
confidential information relating to the Employer'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 Employer or any of their clients, customers, consultants, or
licensees, known, learned, or acquired by Employee during the period of
Employee's employment by the Company (collectively "Confidential Information"),
excepting any such information which is or becomes available to the public
through no fault of Employee.
12. No Solicitation: Employee agrees that after the Resignation Date
and for one (1) year following the Resignation Date, Employee shall not directly
or indirectly solicit or attempt to solicit any business from the Employer or
any of the Employer's customers, producers or brokers, including prospective
customers, with whom the Employer or Employee has or had material contact, for
purposes of providing products or services that are competitive with those
provided by the Employer, provided that "material contact" is agreed to exist
between the Employer or Employee and each customer or potential customer: (1)
with whom the Employer or Employee deals; (2) whose dealings with the Employer
are coordinated or supervised by Employee, or (3) about whom the Employer or
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Employee has obtained confidential information in the ordinary course of
business. Similarly, Employee agrees that after the Resignation Date and for one
(1) year following such resignation of employment, Employee shall not directly
or indirectly solicit or attempt to solicit Employer's current employees.
Notwithstanding the foregoing, Employee may solicit any employee who voluntarily
terminates his or her employment with the Employer after a period of ninety (90)
days have elapsed since the termination date of such employee.
13. Arbitration. The parties agree that any controversy or claim
arising out of or relating to this Agreement, or any dispute arising out of the
interpretation or application of this Agreement, shall be resolved by binding
arbitration before a retired Superior Court Judge and shall be conducted in
accordance with the provisions of the California Arbitration Act and the
California Code of Civil Procedure. Notwithstanding the foregoing, Employer
shall have the right to obtain a temporary restraining order or preliminary
injunction in order to enforce its rights under Paragraphs Seven (7), Eight (8),
and Nine (9) of the Agreement in order to protect its rights until such time as
an arbitrator makes a final decision.
14. Entire Agreement. This Agreement embodies the entire agreement of
all the parties hereto who have executed it and supersedes any and all other
agreements, understandings, negotiations, or discussions, either oral or in
writing, express or implied, between the parties to this Agreement. The parties
to this Agreement each acknowledge that no representations, inducements,
promises, agreements or warranties, oral or otherwise, have been made by them,
or anyone acting on their behalf, which are not embodied in this Agreement; that
they have not executed this Agreement in reliance on any representation,
inducement, promise, agreements, warranty, fact or circumstances, not expressly
set forth in this Agreement; and that no representation, inducement, promise,
agreement or warranty not contained in this Agreement including, but not limited
to, any purported settlements, modifications, waivers or terminations of this
Agreement, shall be valid or binding, unless executed in writing by all of the
parties to this Agreement. This Agreement may be amended, and any provision
herein waived, but only in writing, signed by the party against whom such an
amendment or waiver is sought to be enforced.
15. Binding Nature. This Agreement, and all the terms and provisions
contained herein, shall bind the heirs, personal representatives, successors and
assigns of each party, and inure to the benefit of each party, its agents,
directors, officers, employees, servants, successors, and assigns.
16. Construction. This Agreement shall not be construed in favor of one
party or against the other.
17. Partial Invalidity. Should any portion, word, clause, phrase,
sentence or paragraph of this Agreement be declared void or unenforceable, such
portion shall be considered independent and severable from the remainder, the
validity of which shall remain unaffected.
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18. Compliance with Terms. The failure to insist upon compliance with
any term, covenant or condition contained in this Agreement shall not be deemed
a waiver of that term, covenant or condition, nor shall any waiver or
relinquishment of any right or power contained in this Agreement at any one time
or more times be deemed a waiver or relinquishment of any right or power at any
other time or times.
19. Enforcement Costs. The parties agree that in the event either party
breaches any provision of this Agreement, the prevailing party shall be entitled
to all costs and attorney's fees to the extent permitted by law incurred in
conjunction with enforcement of this Agreement.
20. Governing Law and Jurisdiction. This Agreement shall be interpreted
under the law of the State of California, both as to interpretation and
performance.
21. Section Headings. The section and paragraph headings contained in
this Agreement are for reference purposes only and shall not affect in any way
the meaning or interpretation of this Agreement.
22. Counterparts. This Agreement may be executed in two counterparts,
each of which shall be deemed an original, all of which together shall
constitute one and the same instrument.
23. No Admissions. It is understood and agreed by the parties that this
Agreement represents a compromise and settlement for various matters and that
the promises and payments and consideration of this Agreement shall not be
construed to be an admission of any liability or obligation by either party to
the other party or any other person.
24. Voluntary and Knowing. This Agreement is executed voluntarily and
without any duress or undue influence on the part or behalf of the parties
hereto.
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IN WITNESS WHEREOF, the parties have executed this Agreement on the respective
dates set forth below.
Dated: April 7, 2000 TICKETS.COM
By: /s/ JOHN M. MARKOVICH
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John M. Markovich
Executive Vice President
Chief Financial Officer
Dated: April 7, 2000 /s/ THOMAS R. PASCOE
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(Signature)
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