EMPLOYMENT AGREEMENT
Exhibit
10.2
THIS
EMPLOYMENT AGREEMENT (this “Agreement”)
is
entered into as of August 8, 2007 (the “Execution
Date”),
by
and between Tix Corporation, a Delaware corporation (the “Tix”)
and
Xxxxxx X. Xxxxxxx (the “Executive”).
RECITALS
A. Tix,
Exhibit Merchandising LLC, an Ohio limited liability company (“EM”)
and
the members of EM have entered into that certain Asset Purchase Agreement,
dated
as of August 6, 2007 (the “Purchase
Agreement”)
pursuant to which Tix has agreed to acquire the assets of EM (the “EM
Assets”);
B. The
Executive is currently an officer and employee of EM;
C. Tix
has
formed Exhibit Merchandising LLC, a Nevada limited liability company, (the
“Company”)
to
acquire the EM Assets and operate the business relating to such
Assets.
D. In
connection with the closing of the transactions contemplated by the Purchase
Agreement (the “Closing,”
and
the date on which the Closing occurs, the “Effective
Date”),
Tix
and the Executive desire that, immediately as of the Closing, the Company shall
employ the Executive, and the Executive shall accept such employment, on the
terms and subject to the conditions set forth herein; and
E. This
Agreement will become effective only if the Closing occurs and shall be null
and
void and of no force or effect if the Closing does not occur for any
reason.
AGREEMENT
1. Employment
Term.
Subject
to the provisions for earlier termination hereinafter provided, the Executive’s
employment shall be for a term commencing on the Effective Date and continuing
through the day preceding the third anniversary of the Effective Date (the
“Initial
Termination Date”);
provided,
that
this Agreement shall be automatically extended for an additional three year
period unless the Company elects not to so extend such term by notifying
Executive, in accordance with Section 7, of such election not less than sixty
days prior to the Initial Termination Date (in any case, the “Employment
Period”).
2. Position
and Duties.
(a) Position.
During
the Employment Period, the Executive shall serve as Vice President, Operations,
of the Company and shall perform such employment duties as are usual and
customary for such position. The Executive shall report to the Chief Executive
Officer or the Chief Operating Officer of Tix, as so designated by Tix. The
Company shall retain full direction and control of the means and methods by
which the Executive performs the above services. At the Company’s request, the
Executive shall serve Tix and/or its subsidiaries and affiliates in such other
offices and capacities in addition to the foregoing as Tix shall designate,
provided his duties are substantially similar to those described above. In
the
event that the Executive serves in any one or more of such additional
capacities, the Executive shall not be entitled to any additional compensation
on account of such service beyond that specified in this Agreement.
1
(b) Place
of Employment.
During
the Employment Period, the Executive shall perform the services required by
this
Agreement at the Company’s location in Ohio. Notwithstanding the foregoing, the
Company may from time to time require the Executive to travel temporarily to
other locations on the Company’s business.
(c) Exclusivity.
During
the Employment Period, except for such other activities as the Chief Executive
Officer of the Company may approve in writing, in its sole discretion, the
Executive shall devote his entire business time, attention and energies to
the
business and affairs of the Company, to the performance of the Executive’s
duties under this Agreement and to the promotion of the Company’s interests, and
shall not (i) accept any other employment, directorship or consultancy, or
(ii)
engage, directly or indirectly, in any other business activity (whether or
not
pursued for pecuniary advantage) that is or may be competitive with, or that
might place the Executive in a competing position to, that of the Company.
Notwithstanding the foregoing, the Executive may perform services related to
the
set up and tear down of the Xxxxxxxx Xxxxx exhibit in Australia provided that
such exhibit will pay for Executive’s costs with respect thereto and reimburse
the Company for Executive’s Base Salary for the period Executive spends in
performance of such duties.
3. Compensation.
(a) Base
Salary.
During
the Employment Period, the Company shall pay the Executive a base salary (the
“Base
Salary”),
initially set at $160,000 per year, subject to annual review in the sole
discretion of the Chief Executive Officer of the Company but not less than
a 6%
increase each year and payable in accordance with the Company’s normal payroll
procedures applicable to similarly situated executives of the Company, as in
effect from time to time.
(b) Annual
Bonus.
In
addition to the Base Salary set forth above, the Executive shall be eligible
to
receive an annual bonus (the “Bonus”),
at
the sole discretion of the Chief Executive Officer of the Company. Within 90
days from the date hereof, Executive and Tix shall in good faith negotiate
a
performance-based Bonus arrangement.
(c) Stock
Options.
Employee shall receive options to purchase 25,000 shares of Tix’s Common Stock
(subject to adjustment for stock splits, stock dividends, recapitalizations,
etc.) on the Effective Date and on each anniversary of the Employment Period
at
an exercise price equal to the then fair market value of Tix’s stock, the terms
of such options to be set forth in a separate Stock Option Agreement. The term
of each option shall be three years.
(d) Incentive,
Savings and Retirement Plans.
During
the Employment Period, the Executive shall be eligible to participate in any
other incentive, savings and retirement plans, policies and programs that are
available generally to similarly situated employees of Tix, provided, that
neither Tix nor the Company shall have any obligation to adopt, maintain or
continue any such plans, policies or programs, provided however, that if the
Company materially reduces or terminates any such plans, policies or programs,
Executive’s Base Salary shall be increased by the amount of the net benefit
which is no longer available to Executive.
2
(e) Welfare
Benefit Plans.
During
the Employment Period, the Executive and the Executive’s legal dependants shall
be eligible for participation in the welfare benefit plans, policies and
programs (including, if applicable, medical, dental, disability, employee life,
group life and accidental death insurance plans and programs) maintained by
Tix
for similarly situated employees, provided,
that
the Company shall have no obligation to adopt, maintain or continue any such
plans, policies or programs.
(f) Expenses.
During
the Employment Period, the Executive shall be entitled to receive prompt
reimbursement of all reasonable business expenses, including a cellular phone,
incurred by the Executive in accordance with Tix expense reimbursement policy
applicable to similarly situated employees of Tix, as in effect from time to
time, provided that the Executive properly substantiates such expenses in
accordance with such policy. Executive shall be entitled to fly Business Class
on international travel.
(g) Paid
Time Off.
During
the Employment Period, the Executive shall be entitled to three weeks paid
vacation.
(h) Executive
Assistant.
Executive shall have an Executive Assistant of his choice with such Assistant’s
employment terms to be approved by Tix.
4. Termination
of Employment.
(a) Death;
Disability.
If the
Executive dies during the Employment Period or the Executive’s Employment is
terminated due to the Executive’s Disability, the Executive or the Executive’s
estate, as applicable, shall be entitled to receive (i) the Executive’s earned
but unpaid Base Salary accrued through such Date of Termination, (ii) accrued
but unpaid vacation time through such Date of Termination, (iii) reimbursement
of any business expenses incurred by the Executive prior to the Date of
Termination that are reimbursable under Section 3(f) above, (iv) any bonuses
required to be paid to the Executive pursuant to this Agreement for any Company
fiscal year ending or anniversary of the Effective Date occurring, respectively,
prior to the Date of Termination, to the extent payable, but not previously
paid, and (v) any vested benefits and other amounts due to the Executive under
any plan, program, policy of, or other agreement with, the Company (together,
the “Accrued
Obligations”),
promptly, or, in the case of benefits described in Section 4(a)(v), as such
obligations become due to the Executive.
(b) Cause.
If the
Executive’s employment becomes terminable by the Company for Cause, the Company
may terminate the Executive’s employment immediately and the Executive shall be
entitled to receive the Accrued Obligations promptly or, in the case of benefits
described in Section 4(a)(v), as such obligations become due to the Executive.
(c) Release;
Exclusivity of Benefits.
Notwithstanding anything in this Agreement to the contrary, it shall be a
condition to the Executive’s right to receive the amounts due pursuant to
Section 4(a), that the Executive (or his estate) execute, deliver to the Company
and not revoke a general waiver and release of claims in a form prescribed
by
the Company (the “Release”).
Except as expressly provided in this Section 4, upon the termination of the
Executive’s employment, the Company shall have no obligations to the Executive
in connection with his employment with the Company or the termination thereof.
3
(d) Definitions.
“Cause”
shall
mean (i) a material breach of this Agreement by the Executive; (ii) the willful
or repeated failure or refusal by the Executive substantially to perform his
duties hereunder; (iii) the indictment of the Executive for any felony or other
crime involving moral turpitude, (iv) fraud, embezzlement or misappropriation
by
the Executive relating to the Company or its funds, properties, corporate
opportunities or other assets, or (v) the Executive repeatedly acting in a
manner or repeatedly making any statements, in either case, which the Company
reasonably determines to be materially detrimental or damaging to the
reputation, operations, prospects or business relations of the Company.
“Disability”
shall
mean a condition that causes the Executive to become entitled to long-term
disability benefits under an applicable Company plan or, if no such plan applies
to the Executive, Disability shall mean that the Executive is unable, as
determined by the Board, to substantially perform his duties under this
Agreement for 90 days in any 365-day period. If Executive disputes the decision
of the Board, the matter shall be referred to a physician or other professional
mutually acceptable to the parties.
5. Confidential
Information and Employee Developments.
Concurrently herewith, the Executive agrees to execute and comply with the
terms
of the Confidential Information and Employee Development Agreement attached
hereto as Exhibit A (the “Confidentiality
Agreement”).
The
compensation and benefits provided under this Agreement, are hereby acknowledged
by the parties hereto to constitute adequate consideration for the Executive’s
entering into the Confidentiality Agreement.
6. Representations.
(a) No
Violation of Other Agreements.
The
Executive hereby represents and warrants to the Company that (i) he is fully
authorized and empowered to enter into this Agreement and that the performance
of his obligations hereunder will not violate any agreement between him and
any
other person, firm, organization or other entity; and (ii) the Executive is
not
bound by the terms of any agreement with any previous employer (except EM)
or
other party to refrain from competing, directly or indirectly, with the business
of such previous employer or other party that would be violated by the
Executive’s entering into this Agreement and/or providing services to the
Company pursuant to the terms of this Agreement.
(b) No
Disclosure of Confidential Information.
The
Executive hereby represents that the Executive’s performance of his duties under
this Agreement will not require him to, and he shall not, rely on in the
performance of his duties or disclose to the Company or any other person or
entity or induce the Company in any way to use or rely on any trade secret
or
other confidential or proprietary information or material belonging to any
previous employer of the Executive.
4
7. Notice.
Any
notice or other communication required or permitted under this Agreement shall
be effective only if it is in writing and delivered personally or sent by fax,
email or registered or certified mail, postage prepaid, addressed as follows
(or
if it is sent through any other method agreed upon by the parties):
If
to the
Company:
00000
Xxxxxxx Xxxxx, Xxxxx 000
Xxxxxx
Xxxx, XX 00000
Attention:
Chief Executive Officer
If
to the
Executive: to the most current home address on file with the Company’s Human
Resources department, or to such other address as any party hereto may designate
by notice to the other in accordance with this Section 7, and shall be deemed
to
have been given upon receipt.
8. Code
Section 409A
(a) Code
Section 409A Exempt.
To the
extent that any compensation or benefits payable under this Agreement
constitutes “nonqualified deferred compensation” within the meaning of Section
409A of the Code, this Agreement shall be deemed to incorporate the terms and
conditions required by Code Section 409A and Department of Treasury regulations.
To the extent applicable, this Agreement shall be interpreted in accordance
with
Code Section 409A and Department of Treasury regulations and other interpretive
guidance issued thereunder. With respect to any compensation or benefits payable
under this Agreement that may be subject to Code Section 409A and related
Department of Treasury guidance, the Company may in its sole discretion adopt
such amendments to this Agreement or adopt other policies or procedures
(including amendments, policies and procedures with retroactive effect), or
take
such other actions as the Company deems necessary or appropriate to (i) exempt
the compensation and benefits payable under this Agreement from Code Section
409A and/or preserve the intended tax treatment of the compensation and benefits
provided with respect to this Agreement, or (ii) comply with the requirements
of
Code Section 409A and related Department of Treasury guidance.
(b) Specified
Employees.
Notwithstanding anything to the contrary in this Agreement, no compensation
or
benefits shall be paid to the Executive during the 6-month period following
the
Executive’s “separation from service” (within the meaning of Code Section
409A(a)(2)(A)(i)) if the Chief Executive Officer of the Company determines
that
paying such amounts at the time or times indicated in this Agreement would
cause
the Executive to incur additional tax under Code Section 409A. If the payment
of
any such amounts is delayed as a result of the previous sentence, then on the
first day following the end of such 6-month period, the Company will pay the
Executive a lump-sum amount equal to the cumulative amount that would have
otherwise been payable to the Executive during such 6-month period.
9. Effectiveness.
This
Agreement shall become effective as of the Closing Date of the acquisition
of
the EM Assets. Notwithstanding anything contained herein, in the event that
the
Purchase Agreement is terminated or the Closing Date otherwise does not occur,
this Agreement shall automatically, and without notice, terminate without any
obligation on the part of any party hereto and the provisions of this Agreement
shall be of no force or effect.
5
10. Miscellaneous.
(a) Governing
Law.
The
rights and duties of the parties will be governed by the local law of the State
of California, excluding any choice-of-law rules that would require the
application of the laws of any other jurisdiction. Subject to Section 10(e)
below, the parties hereto consent to the jurisdiction of the state and federal
courts located in the state of California to adjudicate any disputes between
such parties.
(b) Captions.
The
captions of this Agreement are not part of the provisions hereof, rather they
are included for convenience only and shall have no force or effect.
(c) Amendment.
The
terms of this Agreement may not be amended or modified other than by a written
instrument executed by the parties hereto or their respective
successors.
(d) Withholding.
The
Company shall withhold from any amounts payable under this Agreement all
federal, state, local and/or foreign taxes, as the Company determines to be
legally required pursuant to any applicable laws or regulations.
(e) Arbitration.
Any
disagreement, dispute, controversy or claim arising out of or relating to this
Agreement, the interpretation hereof, the breach, termination or invalidity
hereof or the employment relationship shall be settled exclusively and finally
by arbitration. Any such arbitration shall be conducted in accordance with
the
[Commercial] Arbitration Rules of the American Arbitration Association. The
arbitration shall be conducted in Los Angeles, California or in such other
city
in the United States as the parties to the dispute may designate by mutual
written consent. Any decision or award of the arbitral tribunal shall be in
the
form of a written opinion and shall be final and binding upon the parties to
the
arbitration proceeding. The arbitral tribunal shall assess any costs associated
with the arbitration.
(f) No
Waiver.
Failure
by either party hereto to insist upon strict compliance with any provision
of
this Agreement or to assert any right such party may have hereunder, including
without limitation, with respect to any of the covenants contained in Section
5
above, shall not be deemed to be a waiver of such provision or right or any
other provision or right of this Agreement.
(g) Severability.
If any
portion of this Agreement is held to be invalid or unenforceable, or excessively
broad, the remaining covenants and restrictions or portions thereof shall remain
in full force and effect to the fullest degree possible to achieve the purposes
of this Agreement and to afford the Company the maximum protections allowed
by
law, and, if with respect to any covenants contained in Section 5 of this
Agreement, the invalidity or unenforceability is due to the deemed
unreasonableness of time or geographical restrictions, such covenants and
restrictions shall be effective for such period of time and for such area as
may
be determined to be reasonable by a court of competent jurisdiction. The parties
agree that the Court shall construe any invalid or unenforceable provisions
in
the manner that most closely reflects the effect and intent of the original
language.
6
(h) Construction.
The
parties hereto acknowledge and agree that each party has reviewed and negotiated
the terms and provisions of this Agreement and has had the opportunity to
contribute to its revision. Accordingly, the rule of construction to the effect
that ambiguities are resolved against the drafting party shall not be employed
in the interpretation of this Agreement. Rather, the terms of this Agreement
shall be construed fairly as to both parties hereto and not in favor or against
either party by the rule of construction abovementioned.
(i) Assignment.
This
Agreement is binding on and for the benefit of the parties hereto and their
respective successors, heirs, executors, administrators and other legal
representatives. Neither this Agreement nor any right or obligation hereunder
may be assigned by the Executive.
(j) Entire
Agreement.
As of
the Effective Date, this Agreement, together with the Purchase Agreement and
any
Ancillary Agreements (as defined in the Purchase Agreement), constitutes the
final, complete and exclusive agreement and understanding between the Executive
and the Company with respect to the subject matter hereof and replaces and
supersedes any and all other agreements, offers or promises, whether oral or
written, made to the Executive by the Company or any representative thereof.
(k) Counterparts.
This
Agreement may be executed in several counterparts, each of which shall be deemed
an original, but all of which shall constitute one and the same
instrument.
[SIGNATURE
PAGE FOLLOWS]
7
The
Executive acknowledges with the execution of this Agreement that (i) the
Executive has carefully read and understands all the terms herein and, with
respect to the covenants contained in Section 5, agrees that each such covenant
is necessary for the reasonable and proper protection of the Company’s
legitimate interests, and (ii) the Company has been induced to enter this
Agreement and to allow the Executive access to its Confidential Information,
in
significant part, by the Executive’s representations that he will abide by and
be bound by each of the restraints and covenants contained in Section 5 of
the
Agreement. The Executive acknowledges that he has been advised by the Company
to
seek independent legal counsel to review and advise him with respect to this
Agreement, and that he has either done so or has voluntarily elected to forego
such right.
IN
WITNESS WHEREOF, the Executive has hereunto set his hand and, pursuant to the
authorization from the Chief Executive Officer of the Company, the Company
has
caused these presents to be executed in its name on its behalf, all as of the
day and year first above written.
|
THE
COMPANY:
|
TIX CORPORATION | |
| |
|
|
| By: | ||
|
Name:
Title:
|
||
|
EXECUTIVE:
|
||
| |
|
|
|
Xxxxxx
X. Xxxxxxx
|
||
8
EXHIBIT
A
CONFIDENTIALITY,
NON-COMPETE
AND
NON-DISCLOSURE AGREEMENT
This
Confidentiality, Non-Compete and Non-Disclosure Agreement (“Agreement”),
effective as of August 8, 2007, is between Tix Corporation dba Tix4Tonight
(hereinafter “Employer”)
and
Xxxxxx X. Xxxxxxx (“hereinafter Employee”)
(individually a “Party”
and
collectively the “Parties”).
RECITALS
WHEREAS,
Employer is a Nevada corporation which is in the business of booking and
arranging the sale of show tickets, special event tickets, dinner reservations,
and the like and has developed and uses commercially valuable technical and
non-technical information;
WHEREAS,
Employee is employed full-time with Exhibit Merchandising LLC, a Nevada limited
liability company (“EM”) as an employee and will be given access to Employer’s
Confidential Information; and
WHEREAS,
Employer and Employee desire to set forth in writing the terms of their
agreement for confidentiality, non-competition and non-disclosure of
information.
NOW,
THEREFORE, in consideration of Employee’s employment and/or continued employment
with Employer, the recitals listed above, and other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged,
the
parties hereby agree as follows:
SECTION
I
DEFINITIONS
1.1 “Confidential
Information”
shall
include, but not be limited to, any and all of the following:
(a) trade
secrets concerning the business and affairs of the Employer and EM; system
documentation; manuals; data; know-how; formulae; compositions; past, current,
and planned research and development; customer lists and information; vendor
lists and information; price lists; market studies; business plans; methods
and
mechanisms of operations; computer software and programs (including object
code
and source code); database technologies, systems, structures, and architectures
(and related formulae); processes; improvements; devices; inventions;
discoveries; concepts; ideas; designs; and any other information, however
documented, that is a trade secret within the meaning of Nevada Revised Statutes
§ 600A; and
(b) information
concerning the business and affairs of the Employer and EM (which includes
historical financial statements, financial projections and budgets, historical
and projected sales, capital spending budgets and plans, the names and
backgrounds of key personnel, personnel training and techniques and materials,
however documented); and
A
-
1
(c) notes,
analyses, compilations, studies, summaries, and other material prepared by
or
for the Employer containing or based on, in whole or in part, any information
included in the foregoing.
Confidential
Information shall not include information which demonstrably: (a) was known
to
the Employee prior to disclosure by the Employer; provided, that the source
of
such information is not known by the Employee to have been bound by any
obligation of confidentiality or fiduciary duty to the Employer or any of its
subsidiaries or affiliates, or (b) is or becomes generally known in the booking
and ticket sale industry other than by unauthorized disclosure or breach of
fiduciary duty.
1.2 “Employment
Period”
shall
mean the term of Employee’s employment with Employer.
1.3 “Post-Employment
Period”
shall
mean one (1) year from termination of Employee’s employment with Employer for
whatever reason.
SECTION
II
CONFIDENTIALITY
2.1 Acknowledgments
by the Employee.
The
Employee acknowledges that (a) during the Employment Period and as a part of
his
or her employment, the Employee will be afforded access to Confidential
Information; (b) the Confidential Information is unique and valuable and was
developed by the Employer at great cost and over a long period of time; (c)
public disclosure of such Confidential Information could have an adverse effect
on the Employer and its business; (d) as part of the employment relationship,
Employer has invested and will continue to invest time and money in training
Employee for his or her position; (e) the Employer has required that the
Employee make the covenants in this Section II as a condition to its employment
and/or continued employment of Employee; and (f) the provisions of this
Agreement are reasonable and necessary to prevent the improper use or disclosure
of Confidential Information.
2.2 Confidentiality
Agreements by the Employee.
In
consideration of the compensation and benefits to be paid or provided to the
Employee by the Employer under this Agreement, the Employee covenants as
follows:
(a) During
and following the Employment Period, the Employee shall hold in confidence
the
Confidential Information and will not disclose it to any person except with
the
specific prior written consent of the Employer or except as otherwise expressly
permitted by the terms of this Agreement.
(b) Any
trade
secrets of the Employer will be entitled to all of the protections and benefits
under Nevada Revised Statutes Chapter 600A and any other applicable law. If
any
information that the Employer deems to be a trade secret is found by a court
of
competent jurisdiction not to be a trade secret for purposes of this Agreement,
such information will, nevertheless, be considered Confidential Information
for
purposes of this Agreement. The Employee hereby waives any requirement that
the
Employer submit proof of the economic value of any trade secret or post a bond
or other security.
A
-
2
(c) The
Employee will not remove from the Employer’s premises (except to the extent such
removal has been specifically authorized by the Employer) any documents,
correspondence, notes, memorandum, notations, files, manuals, drawings, blue
prints, reports, flow charts, programs, proposals, records, notebooks, computer
software or codes, or any other documentation concerning Employer’s customers,
products, or processes used by Employer in the furtherance of its business,
whether embodied in a disk or in any other form (collectively, the “Proprietary
Items”).
The
Employee recognizes that, as between the Employer and the Employee, all of
the
Proprietary Items, whether or not developed by the Employee, are the exclusive
property of the Employer. Upon termination of this Agreement by either party,
or
upon the request of the Employer during the Employment Period, the Employee
will
return to the Employer all of the Proprietary Items in the Employee’s possession
or subject to the Employee’s control, and the Employee shall not retain any
copies, abstracts, sketches, or other physical embodiment of any of the
Proprietary Items.
2.3 Disputes
or Controversies.
The
Employee recognizes that should a dispute or controversy arising from or
relating to this Agreement be submitted for adjudication to any court,
arbitration panel, or other third party, the preservation of the secrecy of
Confidential Information may be jeopardized. All pleadings, documents,
testimony, and records relating to any such adjudication will be maintained
in
secrecy and will be available for inspection by the Employer, the Employee,
and
their respective attorneys and experts, who will agree, in advance and in
writing, to receive and maintain all such information in secrecy, except as
may
be limited by them in writing.
SECTION
III
NON-COMPETITION
AND NON-INTERFERENCE
3.1 Acknowledgments
by the Employee.
The
Employee acknowledges that: (a) the services to be performed by him or her
under
this Agreement are of a special, unique, unusual, extraordinary, and
intellectual character; (b) the Employer’s business is regional in scope; (c)
the Employer competes with other businesses that are or could be located in
any
part of Nevada; (d) the Employer has required that the Employee make the
covenants set forth in this Section III as a condition to its employment and/or
continued employment of Employee; and (e) the provisions of this Section III
are
reasonable and necessary to protect the Employer’s business.
3.2 Covenants
of the Employee.
In
consideration of continued employment of Employee by Employer, the
acknowledgments by the Employee, and the compensation and benefits to be paid
or
provided to the Employee by the Employer, the Employee covenants that he or
she
will not, directly or indirectly:
(a) during
the Employment Period and the Post-Employment Period, engage or invest in,
own,
manage, operate, finance, control, participate in the ownership, management,
operation, financing, or control of, be employed by, associated with, or in
any
manner connected with, any business whose products or activities compete in
whole or in part with the products or activities of the Employer within Nevada;
provided, however, that the Employee 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;
A
-
3
(b) whether
for the Employee's own account or for the account of any other person, at any
time during the Employment Period and the Post-Employment Period, solicit
business of the same or similar type being carried on by the Employer, from
any
person known by the Employee to be a customer or vendor of the Employer, whether
or not the Employee had personal contact with such person during and by reason
of the Employee's employment with the Employer;
(c) whether
for Employee’s own account or for the account of any other person, at any time
during the Employment Period and the Post-Employment Period, use information
obtained while employed by Employer to obtain favorable treatment from any
person known by the Employee to be a vendor or supplier of the Employer, whether
or not the Employee had personal contact with such person during and by reason
of the Employee’s employment with the Employer;
(d) whether
for the Employee’s own account or the account of any other person (i) at any
time during the Employment Period and the Post-Employment Period, solicit,
employ, or otherwise engage as an employee, independent contractor, or
otherwise, any person who is or was an employee of the Employer at any time
during the Employment Period (not including a relative of Employee) or in any
manner induce or attempt to induce any employee of the Employer to terminate
his
employment with the Employer; or (ii) at any time during the Employment Period
and the Post Employment Period, interfere with the Employer’s relationship with
any person, including any person who at any time during the Employment Period
was an employee, vendor, or customer of the Employer; or
(e) at
any
time during or after the Employment Period, disparage the Employer or any of
its
shareholders, directors, officers, employees, or agents.
3.3 Notice
to Future Employers.
The
Employee will, while the covenant under this Section III is in effect, give
notice to the Employer, within ten days after accepting any other employment,
of
the name and address of the Employee’s new employer. The Employer may notify
such employer that the Employee is bound by this Agreement and, at the
Employer’s election, furnish such employer with a copy of this Agreement or
relevant portions thereof.
SECTION
IV
REMEDIES
FOR BREACH
Employee
acknowledges that the injury that would be suffered by the Employer as a result
of a breach of the provisions of this Agreement would be irreparable and that
an
award of monetary damages to the Employer for such a breach would be an
inadequate remedy. Consequently, the Employer will have the right, in addition
to any other rights it may have, to obtain injunctive relief to restrain any
breach or threatened breach or otherwise to specifically enforce any provision
of this Agreement and the Employer will not be obligated to post bond or other
security in seeking such relief.
A
-
4
SECTION
V
OTHER
PROVISIONS
5.1 Waiver.
The
rights and remedies of the parties to this Agreement are cumulative and not
alternative. Neither the failure nor any delay by either party in exercising
any
right, power, or privilege under this Agreement will operate as a waiver of
such
right, power, or privilege, and no single or partial exercise of any such right,
power, or privilege will preclude any other or further exercise of such right,
power, or privilege or the exercise of any other right, power, or privilege.
To
the maximum extent permitted by applicable law, (a) no claim or right arising
out of this Agreement can be discharged by one party, in whole or in part,
by a
waiver or renunciation of the claim or right unless in writing signed by the
other party; (b) no waiver that may be given by a party will be applicable
except in the specific instance for which it is given; and (c) no notice to
or
demand on one party will be deemed to be a waiver of any obligation of such
party or of the right of the party giving such notice or demand to take further
action without notice or demand as provided in this Agreement.
5.2 Amendments
and Modifications.
This
Agreement may not be amended or modified orally, but only by an agreement in
writing signed by the parties hereto.
5.3 Governing
Law.
This
Agreement will be governed by the laws of the State of Nevada without regard
to
conflicts of laws principles.
5.4 Section
Headings, Construction.
The
headings of sections in this Agreement are provided for convenience only and
will not affect its construction or interpretation. All references to
“Section”
or
“Sections”
refer
to the corresponding Section or Sections of this Agreement unless otherwise
specified. All words used in this Agreement will be construed to be of such
gender or number as the circumstances require. Unless otherwise expressly
provided, the word “including” does not limit the preceding words or
terms.
5.5 Severability.
If any
provision of this Agreement is held invalid or unenforceable by any court of
competent jurisdiction, the other provisions of this Agreement will remain
in
full force and effect. Any provision of this Agreement held invalid or
unenforceable only in part or degree will remain in full force and effect to
the
extent not held invalid or unenforceable.
5.6 Binding
Effect.
Each
covenant and condition of this Agreement shall be binding on and inure solely
to
the benefit of the parties hereto and their respective successors, assigns,
heirs, and legal representatives, including any entity with which the Employer
may merge or consolidate or to which all or substantially all of its assets
may
be transferred.
5.7 Entire
Agreement.
This
Agreement contains the entire agreement between the parties with respect to
the
subject matter hereof and supersedes all prior agreements and understandings,
oral or written, between the parties hereto with respect to the subject matter
hereof.
5.8 Acknowledgment.
Employee acknowledges that he or she has read this Agreement, that he or she
signs the same out of his or her own free will and choice, and that he or she
is
not under any duress, suggestion or undue influence. Employee further
acknowledges that this Agreement was fully discussed with Employee prior to
Employee accepting employment with Employer.
A
-
5
IN
WITNESS WHEREOF, the parties have executed and delivered this Agreement as
of
the date above first written above.
|
EMPLOYER
|
EMPLOYEE
|
|||
| Tix Corporation dba Tix4Tonight | ||||
| By: | ||||
|
Name:
Title:
|
Xxxxxx
X. Xxxxxxx
|
|||
A
-
6
