ASSET PURCHASE AGREEMENT
THIS
ASSET PURCHASE AGREEMENT dated as of March 14, 2007 (this “Agreement”)
is
made and entered into by and between Tix Corporation, a Delaware corporation
(“Purchaser”),
and
John’s Tickets LLC, an Ohio limited liability company dba Any Event Tickets
(“Any
Event”)
and
Xxxx Xxxxxxxx, sole member of Any Event (together with Any Event, the
“Seller”),
on
the other hand.
A. Any
Event
is a ticket brokerage firm, with offices located in Las Vegas, Nevada and
Cleveland, Ohio, and Seller wishes to sell to Purchaser the assets listed in
Exhibit
A,
attached hereto (“Seller’s
Assets”).
B. Purchaser
wishes to purchase Seller’s Assets from Seller.
NOW,
THEREFORE, in consideration of the foregoing recitals and the mutual promises
and covenants set forth in this Agreement, and other good and valuable
consideration, the receipt, sufficiency and adequacy of which is hereby
acknowledged, the parties, intending to be legally bound, hereby agree as
follows:
ARTICLE
I
DEFINITIONS
When
used
in this Agreement, the following terms shall have the respective meanings set
forth below:
“Affiliate”
shall
mean with respect to any Person (i) a Person directly or indirectly
controlling, controlled by or under common control with such Person; or
(ii) an officer, director, member or partner of such Person. For these
purposes, control means the possession, direct or indirect, of the power to
direct or cause the direction of the management and policies of a Person,
whether its the ownership of voting securities, by contract or
otherwise.
“Agreement”
shall
mean this Asset Purchase Agreement, including all exhibits and schedules
thereto, as the same may hereafter be amended, modified or supplemented from
time to time.
“Applicable
Law”
shall
mean, with respect to any Person, any statute, law, regulation, order,
injunction, judgment, decree or other requirement of any Authority applicable
to
such Person or any of its Affiliates or any of their respective properties,
and
assets.
“Authority”
shall
mean any governmental, regulatory or administrative body, agency or authority,
any court of judicial authority, any arbitrator or any public, private or
industry regulatory authority.
“Books
and Records”
of
Seller shall mean copies of all books and records, ledgers, employee records,
customer lists, files, correspondence, computer data bases, accounting
information and other records of every kind, whether written, computerized
or
maintained in any other medium, which are owned by Seller or in which Seller
has
any interest, which in each case relates to Seller’s Assets.
“Closing”
shall
mean the consummation of the transactions contemplated in this
Agreement.
“Closing
Date”
shall
mean the date upon which the Closing occurs.
“Domain
Names”
shall
mean the Internet registered domain name xxxxxxxx.xxx currently registered
with
registrar XxXxxxx.xxx, Inc. and all other domain names set forth in Exhibit
A
attached
hereto.
“Indemnified
Party”
shall
have the meaning specified at Section 13.3.
“Indemnifying
Party”
shall
have the meaning specified at Section 13.3.
“Intellectual
Property”
shall
mean all intangible properties relating to Seller’s Assets and in which Seller
has any interest (including the right to use by license or otherwise), and
includes, without limitation, all of the following (to the extent related to
the
foregoing): (i) all trademarks, service marks, trade names, trade dress,
domain names, logos, corporate names, slogans and commercial symbols, all
applications therefor, and all associated goodwill, including, without
limitation, the Domain Names and the Marks; (ii) all copyrights, all
applications therefor and all associated goodwill; (iii) all technical
information, know-how, trade secrets, processes, operating, maintenance and
other manuals, drawings and specifications, and related data, and all associated
goodwill; (iv) all “software” and all documentation thereof (including all
electronic data processing systems and program specifications, functional
specifications, source and object codes, algorithms, architecture, input data,
report layouts and format, record file layouts, diagrams, narrative descriptions
and flow charts) (collectively, “Software”); (v) all other inventions,
discoveries, improvements, processes, formulae (secret or otherwise), data,
drawings, specifications, trade secrets, confidential information, financial,
marketing and business data, pricing and cost models and information, business
and marketing plans, operating procedures, customer and supplier lists, vendor
numbers, knowledge of customer preferences and buying practices and all other
ideas (including those in the possession of third parties, but which are the
property of Seller); (vi) all drawings, records, books or other tangible
media embodying the foregoing; (vii) all rights to obtain and rights to
register patents, trademarks and copyrights; and (viii) all rights to xxx
or recover and retain damages and costs and attorneys fees for present and
past
infringement of any of the foregoing.
“Inventory”
shall
mean all sporting events tickets, concert tickets, tour tickets, theatre
tickets, and all other tickets held by Seller for sale to the general
public.
“Knowledge”
shall
mean, with respect to Seller, the actual knowledge of Seller.
“Licenses
and Permits”
of
Seller shall mean all licenses and permits issued to Seller or in which Seller
has any interest (including the right to use).
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“Lien”
shall
mean any lien, pledge, mortgage, security interest, lease, charge, conditional
sales contract, option, restriction, right of first refusal, or any other
adverse claim or right whatsoever.
“Losses”
shall
mean all damages, awards, judgments, assessments, fines, penalties, charges,
costs, expenses, payments, diminutions in value and other losses, however
suffered or characterized, all interest thereon, all costs and expenses of
investigating any claim, lawsuit or arbitration and any appeal therefrom, all
actual attorneys’ fees incurred in connection therewith, whether or not such
claim, lawsuit or arbitration is ultimately defeated and, subject to
Section 13.4, all amounts paid incident to any compromise or settlement of
any such claim, lawsuit or arbitration.
“Marks”
shall
mean any and all associated rights in and to any Domain Name trademarks (whether
registered or unregistered), trade names, service names, logos and designs,
including, without limitation, all designs, logos or word marks that
incorporate, constitute or comprise the words, phrase or term
“xxxxxxxx.xxx.”
“Order”
shall
mean any decree, order, judgment, writ, award, injunction, rule or consent
of or
by an Authority.
“Person”
shall
mean any entity, corporation, company, association, joint venture, joint stock
company, partnership, trust, organization, individual (including personal
representatives, executors and heirs of a deceased individual), or government
(including agencies, departments, bureaus, boards, divisions and
instrumentalities thereof).
“Purchaser
Documents”
shall
mean this Agreement and all other agreements, instruments and certificates
to be
executed and delivered by Purchaser in connection with this
Agreement.
“Purchase
Price”
shall
have the meaning specified at Section 4.1.
“Registrar”
shall
mean the registrar XxXxxxx.xxx, Inc. (xxx.xxxxxxx.xxx) with which the Domain
Name xxxxxxxx.xxx is registered, and an entity that has responsibility and
procedures in place for effecting transfers of .com domain names from a
registrant to another party and for effecting transfers of .com domain names
to
other registrars. “Registrar” shall also mean and include any registrar in
addition to XxXxxxx.xxx, Inc. with which any of the other Domain Names, or
any
of them, is registered, and an entity that has responsibility and procedures
in
place for effecting transfers of .com domain names from a registrant to another
party and for effecting transfers of .com domain names to other
registrars.
“Required
Contractual Consents”
shall
mean those consents required to be obtained in order to consummate the
transactions contemplated by this Agreement.
“Required
Governmental Approvals”
shall
mean those filings, notices or approvals required to be obtained in order to
consummate the transactions contemplated by this Agreement.
“Securities
Act”
shall
mean the Securities Act of 1933, as amended.
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“Seller
Disclosure Schedule”
shall
mean the schedule(s) entitled “Seller Disclosure Schedule”, dated of even date
herewith. Seller Disclosure Schedule shall be considered a part of this
Agreement.
“Seller
Documents”
shall
mean this Agreement and all other agreements, instruments and certificates
to be
executed by Seller in connection with this Agreement.
“Seller’s
Assets”
shall
mean those assets listed on Exhibit A.
“Software”
shall
have the meaning specified in the definition of Intellectual
Property.
“Tangible
Personal Property”
of
Seller shall mean all equipment, supplies, spare parts, and other tangible
personal property relating to Seller’s Assets.
“Tax”
shall
mean any tax, charge, fee, levy, deficiency or other assessment of whatever
kind
or nature, together with any interest, penalty, addition to tax or additional
amount imposed by any Tax Authority. “Taxing” and “Taxable” shall have the
correlative meanings.
“Tax
Authority”
shall
mean any Authority having jurisdiction over the reporting and payment of any
Taxes.
“Third
Party Claim”
shall
have the meaning specified at Section 13.4.
“Website”
shall
mean the webpages and website associated with the URL and hostname
xxx.xxxxxxxx.xxx and/or any or all websites employing the Domain Name as its
address on the World Wide Web or Internet.
References
in this Agreement to “Articles,”
“Sections,”
“Exhibits”
and
“Schedules,”
shall
be to the Articles, Sections, Exhibits and Schedules of this Agreement, unless
otherwise specifically provided; any of the terms defined in this Agreement
may,
unless the context otherwise requires, be used in the singular or the plural
and
in any gender depending on the reference; the present tense shall include the
past and future tense; the words “herein”, “hereof” and “hereunder” and words of
similar import, when used in this Agreement, shall refer to this Agreement
as a
whole and not to any particular provision of this Agreement; and except as
otherwise specified in this Agreement, all references in this Agreement
(a) to any Person shall be deemed to include such Person’s permitted heirs,
personal representatives, successors and assigns; and (b) to any agreement,
any document or any other written instrument shall be a reference to such
agreement, document or instrument together with all exhibits, schedules,
attachments and appendices thereto, and in each case as amended, restated,
supplemented or otherwise modified from time to time in accordance with the
terms thereof; and (c) to any law, statute or regulation shall be deemed
references to such law, statute or regulation as the same may be supplemented,
amended, consolidated, superseded or modified from time to time.
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ARTICLE
II
SALE
AND PURCHASE OF ASSETS
2.1 Assets
to be Transferred.
Subject
to the terms and conditions set forth in this Agreement and in reliance upon
the
representations and warranties of Seller and Purchaser herein set forth, at
the
Closing, Seller shall sell, transfer, convey, assign and deliver to Purchaser,
by appropriate deeds, bills of sale, assignments and other instruments
satisfactory to Purchaser, and Purchaser shall purchase from Seller, all of
Seller’s right, title and interest, as of the Closing Date, in and to Seller’s
Assets.
For
purposes of this Section 2.1 only, “Seller” shall mean Any Event, Xxxx Xxxxxxxx
and Xxxxxxx Xxxxxxxxx, former President of Any Event. This transfer also
includes the following:
(a) Assignment
and Conveyance of All Rights to Domain Names and Marks:
Seller
hereby grants, assigns, and quitclaims to Purchaser all of its right, title,
and
interest in perpetuity throughout the universe in and to the Domain Names and
the Marks (and their associated goodwill) to the fullest extent possible, and
Seller agrees that all of its right, title, and interest in and to the Domain
Names and the Marks shall be the sole and exclusive property of Purchaser to
be
used in any manner at Purchaser’s sole and absolute discretion. Seller will
cease to maintain an Internet site under the Domain Names effective immediately
and will not register or attempt to register the Domain Names, Marks or any
variants thereof as a domain name or as a trademark or service
xxxx.
(b) The
Marks:
This
assignment and grant of rights in and to the Marks includes all right, title
and
interest that Seller may own in (i) the words “any event”, “any event tickets”
and/or “xxxxxxxx.xxx” as word marks, independent of any design, (ii) the words
“any event”, “any event tickets” or “xxxxxxxx.xxx” as used as part of any
design, (iii) any and all common law rights in the Marks owned by Seller, and
(iv) all designs and logos related to the Marks, and all stylized versions
thereof, together with the right to recover for the past infringements thereof,
and the good will and portion of the business of Seller pertaining to and
symbolized by such trademarks.
(c) The
Domain Names.
This
assignment and grant of rights includes the Domain Names, and such assignment
and grant of rights is subject to and governed by this Agreement and the terms
set forth in the document entitled “Domain Names Assignment” that is attached as
Exhibit C to this Agreement and incorporated herein by this reference. Seller
and Purchaser agree to execute the Domain Names Assignment simultaneous with
the
execution of this Agreement. Effective immediately as of the Closing Date,
Seller shall cease any and all use of the Domain Names.
(d) Copyrights.
In
addition to the foregoing, Seller hereby grants, assigns and quitclaims to
Purchaser all copyrights, if any, whether registered or unregistered, that
are
owned or controlled by Seller in and to the Marks, the Domain Names, the
Software, the Website, or any of the Intellectual Property and all copyrights
owned or controlled by Seller related to the Marks, the Domain Names, the
Software, the Website, or any of the Intellectual Property, throughout the
universe, as well as any derivative rights and copyrights relating thereto.
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2.2 Registrar
and Domain Name Transfer:
Upon
execution of this Agreement, Seller shall request that the Registrar transfer
the Domain Names to Purchaser in accordance with the Registrar’s then-current
domain name transfer procedures. Purchaser shall promptly provide to Seller
and/or Registrar, in accordance with Registrar’s then-current domain name
transfer procedure, any and all information necessary for Seller and Registrar
to effect the Domain Names transfer, including the Purchaser’s account
information and the Purchaser’s registrar information, if different from the
Registrar. After initiating the transfer processes for all Domain Names, Seller
shall promptly reply to any and all requests made by the Registrar to complete
the transfers including, without limitation, any requests for additional
information or documentation. Seller shall promptly provide to Purchaser copies
of all correspondence with the Registrar related to the Domain Names. Seller
shall promptly notify Purchaser of the successful completion of the transfers
as
reflected in the WHOIS databases on Registrar’s web site (located at
xxx.xxxxxxx.xxx or other URL where any other registrar may be found).
2.3 Title
to Seller’s Assets.
Seller’s Assets shall be conveyed free and clear of all liabilities, obligations
and Liens (other than those set forth in the Seller Disclosure Schedules (if
any)).
ARTICLE
III
ASSUMPTION
OF LIABILITIES
Purchaser
shall not assume or be liable for any liabilities or obligations of Seller,
direct or indirect, fixed, contingent or otherwise, known or unknown, which
exist on the Closing Date or which arise thereafter as a result of any act,
omission or circumstance taking place prior to the Closing
Date, including, without limitation, any of Seller’s liabilities or obligations
relating to the past employment or termination of Seller’s employees or relating
to any benefit plan.
ARTICLE
IV
PURCHASE
PRICE, PAYMENT AND RELATED MATTERS
4.1 Purchase
Price.
The
purchase price (the “Purchase
Price”)
for
Seller’s Assets shall be
a cash
payment of $300,000 (“Cash
Payment”)
and
137,500 shares of restricted common stock of Purchaser (the “Shares”).
After
the Closing Date, Purchaser shall conduct an audit of the Seller’s ticket
brokerage business and Inventory, and shall reimburse Seller for the cost of
the
Inventory, the amount of which shall be determined at the conclusion of an
audit
to be performed by Purchaser, pursuant to Section 12.3.
4.2 Status
of Shares.
Seller
acknowledges that (a) the Shares have not been registered by Purchaser
under the Securities Act or with any Authority and are being issued pursuant
to
an exemption from the registration requirements of the Securities Act pursuant
to promulgated thereunder Section 4(2) and Regulation D and (b) the
certificates evidencing the Shares will bear a restricted legend. Seller
acknowledges that the Shares may not be resold or transferred unless the Shares
are first registered in accordance with the Securities Act.
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ARTICLE
V
CLOSING
5.1 Time
and Place.
The
Closing is effective as of March 14, 2007.
Possession and control of Seller’s Assets shall vest in Purchaser as of the
Closing.
5.2 Transactions
at the Closing.
At the
Closing, the following shall occur:
(a) Purchaser
shall deliver the Cash Payment and title to the Shares to the
Seller;
(b) Seller
shall deliver to Purchaser assignments in registrable form of all trademarks,
service marks, copyrights, domain names and registrations or applications for
the same included within Seller’s Assets and a xxxx of sale and assignment of
Seller’s Assets, and such other instruments of sale, transfer, conveyance,
assignment and confirmation, and Seller shall take such further actions, as
Purchaser may reasonably deem necessary or desirable in order to transfer,
convey and assign to Purchaser, and to confirm Purchaser’s title to, all of
Seller’s Assets, to put Purchaser in actual possession and operating control
thereof and to assist Purchaser in exercising all rights with respect thereto;
and
(c) Seller
shall deliver to Purchaser all of the Books and Records relating to Seller’s
Assets.
ARTICLE
VI
REPRESENTATIONS
AND WARRANTIES
OF
SELLER
Seller
hereby represents and warrants to Purchaser that:
6.1 Organization;
Authority; Due Authorization.
(a) Organization
and Good Standing.
Seller
is a limited liability company duly organized, validly existing and in good
standing under the Applicable Laws of the State of Ohio and is qualified to
do
business in Nevada.
(b) Authority
to Execute and Perform Agreements.
Seller
has all power, authority and approvals required to enter into, execute and
deliver this Agreement and all of the other Seller Documents and to perform
fully Seller’s obligations hereunder and thereunder.
(c) Due
Authorization; Enforceability.
Seller
has taken all actions necessary to authorize it to enter into and perform fully
its obligations under this Agreement and all of the other Seller Documents
to be
executed by it and to consummate the transactions contemplated herein and
therein. This Agreement has been duly and validly executed by Seller and
(assuming due authorization, execution and delivery by Purchaser) constitutes
the legal, valid and binding obligation of Seller, enforceable in accordance
with its terms.
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(d) No
Other Marks.
Seller
has no other Domain Names, marks, trademarks, service marks or trade names
used
in connection with Any Event Tickets’ business other than what is listed in
Exhibit
A,
and all
such Domain Names, marks, trademarks, service marks or tradenames are included
within this Asset Purchase Agreement and the Domain Names Assignment attached
hereto as Exhibit
C.
6.2 No
Violation.
Neither
the execution or delivery by Seller of this Agreement or any of Seller Documents
nor the consummation of the transactions contemplated herein or therein will:
(a) violate any provision of the operating agreement or other charter
documents of Seller; (b) result in the creation or imposition of any Lien
upon any of Seller’s Assets; or (c) violate or require any consent or
notice under any Applicable Law or Order to which Seller or any of its
properties is subject.
6.3 Regulatory
and Other Approvals.
To the
knowledge of Seller, no consent, approval, authorization, notice, filing,
exemption or other requirement must, pursuant to any Applicable Law or Order
be
obtained from any Authority or Person or which must otherwise be satisfied
by
Seller in order that (a) the execution or delivery by Seller of this
Agreement or any of the other Seller Documents (b) the consummation of the
transactions contemplated herein or therein or will not (i) violate in any
material respect any Applicable Law, any applicable Order to which Seller is
subject or any License or Permit of Seller; or (ii) result in the creation
or imposition of any Lien upon any of Seller’s Assets.
6.4 Title
to Seller’s Assets.
Seller
has good and marketable title to each of Seller’s Assets and the valid and
enforceable right to receive and/or use each of Seller’s Assets free and clear
of any and all Liens. The delivery to Purchaser of the instruments of transfer
of ownership contemplated by this Agreement will at the Closing vest good and
marketable title to, or the valid and enforceable right to receive and/or use,
each such Seller’s Asset in Purchaser, free and clear of all Liens.
6.5 Litigation.
There
is
no litigation pending or, to the knowledge of Seller, threatened relating to
Seller’s Assets.
6.6 Intellectual
Property.
As of
the date hereof to the knowledge of Seller:
(i) all
Intellectual Property within Seller’s Assets are valid and in full force and
effect and are not subject to any Taxes;
(ii) all
of
the Software of Seller performs in full compliance with all of the
specifications therefore (including, without limitation, functional
specifications) set forth in user manuals, promotional materials or license
agreements;
(iii) accurate
and complete copies of all source codes relating to all versions of each item
of
Software of Seller exist and have been made available to Purchaser;
(iv) there
are
no pending claims, actions, or other adversary proceedings, disputes or
disagreements involving Seller concerning any item of its Intellectual Property,
and, to the Knowledge of Seller, no such action, proceeding, dispute or
disagreement is threatened.
-8-
6.7 Tangible
Personal Property.
As of
the date hereof:
(a) Seller
has good and marketable title owned by it to each item of its Tangible Personal
Property, free and clear of all Liens or other encumbrances; and
(b) each
item
of Tangible Personal Property is in good operating condition and repair, usable
in the ordinary course of business, and the operation thereof as conducted
during the twelve-month period prior to the date hereof, as presently conducted
and as currently proposed to be conducted is not, in any material respect,
in
violation of any applicable law.
6.8 Investment
Representation.
Seller
is and will be acquiring the Shares for investment purposes only and not with
a
view to distribution.
ARTICLE
VII
REPRESENTATIONS
AND WARRANTIES OF PURCHASER
Purchaser
represents and warrants to Seller as follows:
7.1 Due
Incorporation.
Purchaser is a corporation duly organized, validly existing and in good standing
under the Applicable Laws of Delaware.
7.2 Authority
to Execute and Perform Agreements.
Purchaser has all requisite power, authority and approval required to enter
into, execute and deliver this Agreement and the other Purchaser Documents
and
to perform fully its respective obligations hereunder and
thereunder.
7.3 Due
Authorization; Enforceability.
Purchaser has taken all actions necessary to enter into and perform its
obligations under this Agreement including the issuance of the Shares and all
other Purchaser Documents and to consummate the transactions contemplated herein
and therein. This Agreement has been duly and validly executed by Purchaser
and
(assuming the due authorization, execution and delivery by Seller) constitutes
the legal, valid and binding obligations of Purchaser enforceable in accordance
with its terms.
7.4 Capitalization.
The
authorized capital stock of Purchaser consists of (i) 100,000,000 shares of
common stock, par value $0.08, of which 18,440,305 shares are outstanding as
of
the date of this Agreement and (ii) 500,000 shares of preferred stock, par
value
$0.01 per share, none of which are outstanding. The Shares have been duly
authorized, validly issued, fully paid and nonassessable, and have not been
issued in violation of any preemptive right of stockholders.
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ARTICLE
VIII
COVENANTS
AND AGREEMENTS OF THE PARTIES
EFFECTIVE
PRIOR TO CLOSING
The
parties hereto covenant and agree as follows:
8.1 Business
Examinations and Physical Investigations of Seller’s Assets.
Purchaser shall be entitled, through its employees and representatives, to
make
such investigations and examinations of Seller’s Assets and the Books and
Records of Seller as Purchaser may request for the purpose of familiarizing
Purchaser with Seller’s Assets. Any such investigations and examinations shall
be conducted at reasonable times and under reasonable circumstances. No
investigation by Purchaser shall, however, diminish or obviate in any way,
or
affect Purchaser’s right to rely upon, any of the representations, warranties,
covenants or agreements of Seller contained in this Agreement.
8.2 Cooperation
and Consents.
Prior
to the Closing Date, each party shall cooperate with the other to the end that
the parties shall (i) in a timely manner make all necessary filings with,
and conduct negotiations with, all Authorities and other Persons the consent
or
approval of which, or a license or permit from which, is required for the
consummation of the transactions contemplated herein and (ii) provide to
each other party such information as the other party may reasonably request
in
order to enable it to prepare such filings and to conduct such negotiations.
The
parties shall also use their respective best efforts to expedite the review
process and to obtain all such necessary consents, approvals, licenses and
permits as promptly as practicable. To the extent permitted by Applicable Law,
the parties shall request that each Authority or other Person whose review,
consent or approval is requested treat as confidential all information which
is
submitted to it. Seller and Purchaser shall bear their own costs and expenses
incurred or fees paid to Authorities to obtain any governmental approvals and
contractual consents. Each Party shall bear its own costs and expenses
(including fees paid to authorities) incurred to obtain such consents,
approvals, licenses or permits.
8.3 Cooperation
and Further Documentation:
(a) Seller
agrees to execute and deliver without further consideration such further
instruments and other documents, and to cooperate with Purchaser in any manner
as may be reasonably required by Purchaser to effectuate the purpose and intent
of this Agreement, so that the transfer of the Domain Name to Purchaser is
recorded in the appropriate registrar for the Domain Name, including, without
limitation, by completion, signature, response email, online actions,
notarization and/or filing of all documents necessary to record such sale and
transfer and to allow the Domain Name to point to computer servers designated
by
Purchaser. Seller agrees to undertake whatever actions are required by the
Registrar, including, without limitation, the initiation of the transfer process
and removal of any registrar locks, to effectuate the transfer of ownership
of
the Domain Name to Purchaser so that the Purchaser will be the sole registered
owner of the Domain Name and will be registered on whatever ICANN-accredited
domain name registrar that Purchaser shall designate.
(b) In
the
event that Purchaser determines that it will require from Seller further
documents or instruments to allow it to register the Domain Name or the Marks
or
to apply for and prosecute a trademark or service xxxx application with the
United States Patent and Trademark Office, Seller agrees to execute such other
or additional documents as Purchaser deems necessary to protect and/or enforce
its full and exclusive rights to the Domain Name, Marks, their associated
goodwill, and all other expanded, alternative, similar or derivative domain
names, URLs, trademarks or service marks.
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8.4 No
Solicitation or Negotiation.
Unless
and until this Agreement is terminated, Seller shall not, nor shall it cause,
suffer or permit the directors, managers, officers, employees, representatives,
agents, investment bankers, advisors, accountants or attorneys of Seller to,
initiate or solicit, directly or indirectly, any inquiries or the making of
any
proposal that constitutes or could be reasonably expected to lead to an
acquisition of Seller’s Assets from any Person, or engage in any discussions or
negotiations relating thereto, or accept any such acquisition or otherwise
facilitate, attempt to seek or continue any of the foregoing.
ARTICLE
IX
CONDITIONS
PRECEDENT TO THE OBLIGATION
OF
EACH PARTY TO CLOSE
The
obligations Purchaser to consummate the transactions contemplated herein shall
be subject to the fulfillment, at or prior to the Closing of all of the
conditions set forth below in this ARTICLE IX.
9.1 No
Action or Proceeding.
The
consummation of the transactions contemplated herein shall not violate any
Applicable Law. Further, no legal restraint preventing the consummation of
the
transactions contemplated herein, or imposing material damages in respect
thereof, shall be in effect, nor shall there be any action or proceeding pending
or threatened by any Person which seeks any of the foregoing.
9.2 Governmental
and Other Approvals.
All
Required Governmental Approvals and all Required Contractual Consents shall
have
been obtained without the imposition of any conditions that are or would be
materially burdensome upon the Business. All Required Governmental Approvals
and
Required Contractual Consents shall be in effect and all conditions and
requirements prescribed by any of the same to be satisfied on or prior to the
Closing Date shall have been satisfied.
ARTICLE
X
CONDITIONS
PRECEDENT TO THE OBLIGATION
OF
PURCHASER TO CLOSE
The
obligations of Purchaser to consummate the trans actions contemplated herein
shall be subject to the fulfillment, at or before the Closing Date, of all
of
the conditions set forth below in this ARTICLE X.
10.1 Representations
and Warranties.
The
representations and warranties of Seller contained in this Agreement and in
each
other Seller Document shall have been true and correct when made and shall
be
true and correct in all material respects on and as of the Closing Date with
the
same force and effect as though made on and as of the Closing Date.
10.2 Performance
of Covenants.
Each
obligation of Seller to be performed by it on or before the Closing Date
pursuant to the terms of this Agreement and each other Seller Document shall
have been duly performed on or before the Closing Date.
-11-
ARTICLE
XI
CONDITIONS
PRECEDENT TO THE OBLIGATION
OF
SELLER TO CLOSE
The
obligation of Seller to consummate the transactions contemplated herein shall
be
subject to the fulfillment, at or before the Closing Date, of all the conditions
set forth below in this ARTICLE XI.
11.1 Representations
and Warranties.
The
representations and warranties of Purchaser contained in this Agreement and
in
each other Purchaser Document shall have been true and correct when made and
shall be true and correct in all material respects on and as of the Closing
Date
with the same force and effect as though made on and as of the Closing
Date.
11.2 Performance
of Covenants.
Each of
the obligations of Purchaser to be performed by it on or before the Closing
Date
pursuant to the terms of this Agreement and each other Purchaser Document shall
have been duly performed in all material respects on or before the Closing
Date.
ARTICLE
XII
COVENANTS
AND AGREEMENTS OF THE PARTIES
AFTER
CLOSING
12.1 Cooperation
of Seller.
Seller
shall, and shall cause its employees to, cooperate with Purchaser to provide
such assistance and documentation as may be necessary or appropriate to permit
Purchaser to fully exploit Seller’s Assets.
12.2 Delivery
of Seller’s Assets.
Immediately after the Closing, Seller shall deliver or cause the delivery of
all
Tangible Personal Property, and the Books and Records as instructed by Purchaser
at Purchaser’s cost.
12.3 Audit.
Immediately after the Closing, Purchaser will conduct an audit of the Seller’s
ticket brokerage business and Inventory at Purchaser’s cost. Upon completion of
the audit, Purchaser shall reimburse Seller for the actual costs of the
Inventory.
12.4 Employment
Agreement.
Purchaser shall execute and deliver an Employment Agreement with Xxxx Xxxxxxxx,
substantially in the form as set forth on Exhibit B, and Seller shall assist
Purchaser (or its designee) with the execution and delivery of such Employment
Agreement.
-12-
12.5 Consulting
Agreement.
Purchaser shall execute and deliver a Consulting Agreement with Xxxxxxx
Xxxxxxxxx for a period of 90 days, commencing on March 14, 2007. Purchaser
shall
pay a consulting fee of $150,000 and 25,000 shares of Purchaser’s restricted
common stock for Xx. Xxxxxxxxx’x consulting services. The Consulting Agreement
shall be substantially in the form as set forth on Exhibit D, and Seller and
Xxxx Xxxxxxxx shall assist Purchaser (or its designee) with the execution and
delivery of such Consulting Agreement.
12.6 Shares.
After
the Closing, Purchaser shall deliver a share certificate to the Seller for
the
Shares.
ARTICLE
XIII
INDEMNIFICATION
13.1 Indemnification
by Seller.
Seller
shall indemnify, defend and hold harmless (i) Purchaser, (ii) each of
Purchaser’s Affiliates, assigns and successors in interest to Seller’s Assets,
and (iii) each of their respective shareholders, directors, officers,
managers, employees, agents, attorneys and representatives, from and against
any
and all Losses which may be incurred or suffered by any such party and which
may
arise out of or result from:
(a) provided
Purchaser’s claim therefore is instituted by written notice within the time
period specified in Section 13.5, any breach of any representation,
warranty, covenant or agreement of Seller contained in this Agreement or in
any
other Seller Document including, without limitation, any attempt (whether or
not
successful) by any Person to cause or require Purchaser to pay, perform or
discharge any debt, liability or commitment the existence of which constitutes
a
breach of any such representation, warranty, covenant or agreement;
(b) any
litigation, arbitration, governmental investigation, suit, action or other
proceeding arising prior to the Closing Date, and any liability of Seller
arising prior to the Closing Date;
(c) any
Tax
Liability of Seller;
(d) breach
of
any of the representations or warranties by Seller under Article VI of this
Agreement;
(e) any
and
all actions, suits, proceedings, claims, demands, judgments, costs and expenses,
including, without limitation, legal fees and expenses, incurred in enforcing
this indemnity.
13.2 Indemnification
by Purchaser.
Provided Seller’s claim therefore is instituted by written notice within the
time period specified in Section 13.6, Purchaser shall indemnify, defend
and hold harmless Seller from and against any Losses arising out of or due
to a
breach of any representation, warranty, covenant or agreement of Purchaser
contained in this Agreement or in any Purchaser Document,
and
from any and all actions, suits, proceedings, claims, demands, judgments, costs
and expenses, including, without limitation, legal fees and expenses, incurred
in enforcing this indemnity.
-13-
13.3 Notice
to Indemnifying Party.
Any
party (the “Indemnified
Party”)
seeking indemnification pursuant to Sections 13.1 or 13.2, or pursuant to
any other indemnification covenant contained in this Agreement, shall promptly
give the party from whom such indemnification is sought (the “Indemnifying
Party”)
written notice of the matter with respect to which such indemnification is
sought, which notice shall specify in reasonable detail, if known, the amount
or
an estimate of the amount of the liability arising therefrom and the basis
of
the claim. Such notice shall be a condition precedent to any liability of the
Indemnifying Party for indemnification hereunder, but the failure of the
Indemnified Party to give prompt notice of a claim shall not adversely affect
the Indemnified Party’s right to indemnification hereunder unless the defense of
that claim is materially prejudiced by such failure.
13.4 Third
Party Claims.
(a) Defense
by Indemnifying Party.
In
connection with any claim giving rise to indemnity hereunder resulting from
or
arising out of any claim or legal proceeding by a Person who is not a party
to
this Agreement (a “Third
Party Claim”),
the
Indemnifying Party at its sole cost and expense may, upon written notice to
the
Indemnified Party, assume the defense of any such Third Party Claim (i) if
it acknowledges to the Indemnified Party in writing its obligations to indemnify
the Indemnified Party with respect to all elements of such Third Party Claim
(subject to any limitations on such liability contained in this Agreement)
and
(ii) if it provides assurances, reasonably satisfactory to the Indemnified
Party, that it will be financially able to satisfy such Third Party Claim in
full if the same is decided adversely. If the Indemnifying Party assumes the
defense of any Third Party Claim, it may use counsel of its choice to prosecute
such defense, subject to the approval of such counsel by the Indemnified Party,
which approval shall not be unreasonably withheld or delayed. The Indemnified
Party shall be entitled to participate in (but not control) the defense of
any
such Third Party Claim, with its counsel and at its own expense. If the
Indemnifying Party assumes the defense of any such Third Party Claim, the
Indemnifying Party shall take all steps necessary to pursue the resolution
thereof in a prompt and diligent manner. In the event that the Indemnifying
Party exercises the right to undertake any such defense against any such Third
Party Claim as provided above, the Indemnified Party shall cooperate with the
Indemnifying Party in such defense and make available to the Indemnifying Party
all witnesses, pertinent records, materials and information in the Indemnified
Party’s possession or under the Indemnified Party’s control relating thereto as
are reasonably required by the Indemnifying Party without cost to the
Indemnifying Party. The Indemnified Party shall cooperate with the Indemnifying
Party in such defense and make available to the Indemnifying Party all
witnesses, pertinent records, materials and information in the Indemnified
Party’s possession or under the Indemnified Party’s control relating thereto as
are reasonably required by the Indemnifying Party. The Indemnifying Party shall
be entitled to consent to a settlement of, or the stipulation of any judgment
arising from, any such Third Party Claim, with the consent of the Indemnified
Party, which consent shall not be unreasonably withheld or delayed; provided,
however, that no such consent shall be required from the Indemnified Party
if
(i) the Indemnifying Party pays or causes to be paid all Losses arising out
of such settlement or judgment concurrently with the effectiveness thereof
(as
well as all other Losses theretofore incurred by the Indemnified Party which
then remain unpaid or unreimbursed), (ii) in the case of a settlement, the
settlement is conditioned upon a complete release by the claimant of the
Indemnified Party and (iii) such settlement or judgment does not require
the encumbrance of any asset of the Indemnified Party or impose any restriction
upon its conduct of business.
-14-
(b) Defense
by Indemnified Party.
If the
Indemnifying Party does not assume the defense of any such Third Party Claim,
the Indemnified Party may defend against such Third Party Claim and settle
or
compromise the same, after giving notice thereof to the Indemnifying Party,
on
such terms as the Indemnified Party may deem appropriate, and the Indemnifying
Party shall be entitled to participate in (but not control) such defense with
its own counsel and at its own expense. The Indemnifying Party shall cooperate
with the Indemnified Party in such defense and make available to the Indemnified
Party, at the Indemnifying Party’s expense, all such witnesses, records,
materials and information in the Indemnifying Party’s possession or under the
Indemnifying Party’s control relating thereto as are reasonably required by the
Indemnified Party. If the Indemnifying Party thereafter seeks to question the
manner in which the Indemnified Party defended such Third Party Claim or the
amount or nature of any such settlement, the Indemnifying Party shall have
the
burden to prove by a preponderance of the evidence that the Indemnified Party
did not defend or settle such third-party claim in a reasonably prudent manner.
The Indemnified Party shall not settle or compromise any Third Party Claim
for
which it is entitled to indemnification hereunder, unless suit shall have been
instituted against it and the Indemnifying Party shall not have assumed the
defense of such suit after notification as provided in
Section 13.3.
13.5 Survival
of Representations and Covenants of Seller.
With
the sole exception of those covenants which are to be performed by Seller after
the Closing (which shall survive until a claim thereon is barred by the
applicable statute of limitations (including extensions and waivers thereof)),
each representation, warranty, covenant and agreement of Seller contained herein
shall survive the execution and delivery of this Agreement and the Closing
for a
period of one year and shall thereafter terminate and expire on the first
anniversary of the Closing Date, unless, on or before such date, Purchaser
has
delivered to Seller a written notice of a claim with respect to such
representation, warranty, covenant or agreement.
13.6 Survival
of Representations and Covenants of Purchaser.
With
the sole exception of those covenants which are to be performed by Purchaser
after the Closing (which shall survive until a claim thereon is barred by the
applicable statute of limitations), each representation, warranty, covenant
and
agreement of Purchaser contained herein shall survive the execution and delivery
of this Agreement and the Closing for a period of one year and shall thereafter
terminate and expire on the first anniversary of the Closing Date, unless,
on or
before such date, Seller has delivered to Purchaser a written notice of a claim
with respect to such representation, warranty, covenant or
agreement.
13.7 Limitations.
In no
event shall the indemnification obligations of Seller exceed the fair market
value of the Shares at the time of the claim. In addition, those obligations
shall be subject to reduction for any payments received by an Indemnified Party
from any insurer or other third party or the amount of any tax benefits to
an
Indemnified Party.
ARTICLE
XIV
TERMINATION;
REMEDIES
14.1 Termination
Upon Default.
Either
party may terminate this Agreement by giving notice to the other on or prior
to
the Closing Date, without prejudice to any rights or obligations it may have,
if
(i) after written notice of the default and the passage of (A) ten
(10) Days, in the case of a default which is by its nature incapable of being
cured, or (B) thirty (30) Days, or such shorter period as may end upon the
scheduled Closing Date, in the case of a default which by its nature is capable
of being cured, the other party has failed in the due and timely performance
of
any of its covenants or agreements herein contained or there shall have been
a
breach of the other’s warranties or representations herein contained, and
(ii) such failure or breach could reasonably be expected to give the
non-defaulting party grounds not to close pursuant to ARTICLE X or ARTICLE
XI,
as the case may be. In any such event the party who is not guilty of the breach
may, in addition to all of its other rights and remedies, recover all Losses
incurred by it from the party responsible for the breach.
-15-
14.2 Attorneys’
Fees.
If
Seller or Purchaser shall bring an action against the other by reason of any
alleged breach of any covenant, provision or condition hereof, or otherwise
arising out of this Agreement, the unsuccessful party shall pay to the
prevailing party all attorneys’ fees and costs actually incurred by the
prevailing party, in addition to any other relief to which it may be entitled.
As used in this Section 14.2 and elsewhere in this Agreement, “actual
attorneys’ fees” or “attorneys’ fees actually incurred” means the full and
actual cost of any legal services actually performed in connection with the
matter for which such fees are sought calculated on the basis of the usual
fees
charged by the attorneys performing such services, and shall not be limited
to
“reasonable attorneys’ fees” as that term may be defined in statutory or
decisional authority.
ARTICLE
XV
EXPENSES;
CONFIDENTIALITY
15.1 Expenses
of Sale.
Each
party shall bear its own direct and indirect expenses incurred in connection
with the negotiation and preparation of this Agreement and the consummation
and
performance of the transactions contemplated herein and therein.
15.2 Confidentiality.
Subject
to any obligation to comply with (i) any Law (ii) any rule or
regulation of any Authority or securities exchange or (iii) any subpoena or
other legal process to make information available to the Persons entitled
thereto, whether or not the transactions contemplated herein shall be concluded,
all information obtained by any party about any other or any Affiliate of the
other, and all of the terms and conditions of this Agreement, shall, until
the
Closing or termination of this Agreement, be kept in confidence by each party,
and each party shall cause its shareholders, members, partners, directors,
officers, managers, employees, agents and attorneys to hold such information
confidential. Such confidentiality shall be maintained to the same degree as
such party maintains its own confidential information and shall be maintained
until such time, if any, as any such data or information either is, or becomes,
published or a matter of public knowledge; provided, however, that the foregoing
shall not apply to any information obtained by Purchaser through its own
independent investigations of Seller or received by Purchaser from a source
not
known by Purchaser to be bound by a confidentiality agreement with, or other
contractual, legal or fiduciary obligation of confidentiality to, Seller nor
to
any information obtained by Purchaser which is generally known to others engaged
in the trade or business of Seller; and provided, further, that from and after
the Closing, Purchaser shall be under no obligation to maintain confidential
any
such information concerning Seller. In the event either party becomes legally
compelled to disclose any such information, it shall promptly provide the other
with written notice of such requirement so that the other may seek a protective
order or other remedy. If this Agreement shall be terminated for any reason,
each party shall return or cause to be returned to the other all written data,
information, files, records and copies of documents, worksheets and other
materials obtained by such party in connection with this Agreement.
-16-
15.3 Publicity.
Up to
(and including) the Closing Date, no publicity release or announcement
concerning this Agreement or the transactions contemplated herein shall be
issued without advance written approval of the form and substance thereof by
Purchaser and Seller; provided, however, that such restrictions shall not apply
to any disclosure required by Authorities, Applicable Law or the rules of any
securities exchange which may be applicable.
ARTICLE
XVI
NOTICES
16.1 Notices.
All
notices, requests and other communications hereunder shall be in writing and
shall be delivered by courier or other means of personal service (including
by
means of a nationally recognized courier service or a professional messenger
service), or sent by telex or telecopy, in all cases, addressed to:
|
Purchaser:
Tix
Corporation
00000
Xxxxxxx Xxxxx, Xxxxx 000
Xxxxxx
Xxxx, Xxxxxxxxxx 00000
Attention:
Xxxxxxxx X. Xxxxxxx
Telecopy
No: (000) 000-0000
|
|
|
Seller:
John’s
Tickets, LLC
0000
Xxxxx Xxxxxxxx Xxxxx
Xxx
Xxxxx, Xxxxxx 00000
Attention:
Xxxx Xxxxxxxx
Telecopy
No: (000) 000-0000
|
|
All
notices, requests and other communications shall be deemed given on the date
of
actual receipt or delivery as evidenced by written receipt, acknowledgement
or
other evidence of actual receipt or delivery to the address specified above.
In
case of service by telecopy, a copy of such notice shall be personally delivered
or sent by registered or certified mail, in the manner set forth above, within
three (3) business days thereafter. Either party hereto may from time to time
by
notice in writing served as set forth above designate a different address or
a
different or additional person to which all such notices or communications
thereafter are to be given.
-17-
ARTICLE
XVII
MISCELLANEOUS
17.1 Further
Assurances.
Each of
the parties shall use its reasonable and diligent best efforts to proceed
promptly with the transactions contemplated herein, to fulfill the conditions
precedent for such party’s benefit or to cause the same to be fulfilled and to
execute such further documents and other papers and perform such further acts
as
may be reasonably required or desirable to carry out the provisions hereof
and
the transactions contemplated herein.
17.2 Modifications
and Amendments; Waivers and Consents.
At any
time prior to the Closing Date or termination of this Agreement, Purchaser,
on
the one hand, and Seller on the other hand, may, by written
agreement:
(a) extend
the time for the performance of any of the obligations or other acts of the
other party hereto;
(b) waive
any
inaccuracies in the representations and warranties made by the other party
contained in this Agreement or any other agreement or document delivered
pursuant to this Agreement; and
(c) waive
compliance with any of the covenants or agreements of the other party contained
in this Agreement. However, no such waiver shall operate as a waiver of, or
estoppel with respect to, any subsequent or other failure. Whenever this
Agreement requires or permits a waiver or consent by or on behalf of any party
hereto, such waiver or consent shall be given in writing.
17.3 Entire
Agreement.
This
Agreement (including the exhibits hereto, Purchaser Documents and Seller
Disclosure Schedules) and the agreements, documents and instruments to be
executed and delivered pursuant hereto or referred to herein are intended to
embody the final, complete and exclusive agreement among the parties with
respect to the purchase of Seller’s Assets and related transactions; are
intended to supersede all prior agreements, understandings and representations
written or oral, with respect thereto; and may not be contradicted by evidence
of any such prior or contemporaneous agreement, understanding or representation,
whether written or oral.
17.4 Governing
Law and Venue.
This
Agreement shall be governed by and construed in accordance with the laws of
the
State of Nevada applicable to contracts made and to be performed wholly within
the State of Nevada, and without regard to conflicts of law principles. Any
claim, suit, or action to interpret, with respect to any matter arising out
of
or relating to this Agreement shall be commenced only in the state or federal
courts located in Las Vegas, Nevada, and each party hereby consents to the
exclusive jurisdiction of the foregoing courts, and waives any objections to
jurisdiction, venue or forum. The parties agree that they may be served with
process by personal service and/or certified mail.
17.5 Binding
Effect.
This
Agreement and the rights, covenants, conditions and obligations of the
respective parties hereto and any instrument or agreement executed pursuant
hereto shall be binding upon the parties and their respective successors,
assigns and legal representatives. Neither this Agreement, nor any rights or
obligations of any party hereunder, may be assigned by a party without the
prior
written consent of the other party; provided, however, that prior to or
following the Closing, this Agreement and any rights and obligations of
Purchaser hereunder, and under any Purchaser Documents may, without the prior
written consent of Seller, be assigned and delegated by Purchaser to any Person
affiliated with Purchaser or pledged or hypothecated to any lender(s) of
Purchaser or any such Affiliate, and following the Closing, this Agreement
and
any rights and obligations of Purchaser hereunder and under any Purchaser
Documents may also be assigned and delegated by Purchaser, without the prior
written consent of Seller, to any successor-in-interest of Purchaser to Seller’s
Assets or to a substantial portion thereof; provided, however, that no
delegation by Purchaser of any such obligation shall relieve Purchaser of
liability therefor or relieve Purchaser of the obligation to deliver the
Purchase Price at the Closing.
-18-
17.6 Counterparts.
This
Agreement may be executed simultaneously in any number of counterparts, each
of
which shall be deemed an original but all of which together shall constitute
one
and the same instrument. In making proof of this Agreement it shall not be
necessary to produce or account for more than one counterpart.
17.7 Section
Headings.
The
section headings of this Agreement are for convenience of reference only and
shall not be deemed to alter or affect any provision hereof.
17.8 Severability.
In the
event that any provision or any part of any provision of this Agreement shall
be
void or unenforceable for any reason whatsoever, then such provision shall
be
stricken and of no force and effect. However, unless such stricken provision
goes to the essence of the consideration bargained for by a party, the remaining
provisions of this Agreement shall continue in full force and effect, and to
the
extent required, shall be modified to preserve their validity.
17.9 No
Third Party Rights.
Nothing
in this Agreement, whether express or implied, is intended to confer any rights
or remedies under or by reason of this Agreement on any Persons other than
the
parties to it and their respective successors and assigns, nor is anything
in
this Agreement intended to relieve or discharge the obligation or liability
of
any third Persons to any party to this Agreement, nor shall any provision give
any third Persons any right of subrogation or action over against any party
to
this Agreement.
-19-
IN
WITNESS WHEREOF, the parties hereto have duly executed this Agreement as of
the
day and year first above written.
| PURCHASER | ||
| Tix Corporation | ||
| By: | /s/ Xxxxxxxx X. Xxxxxxx | |
|
Name: Xxxxxxxx X. Xxxxxxx |
||
| Title: Chief Executive Officer | ||
|
SELLER
John’s Tickets, LLC, dba Any Event
Tickets
|
||
| By: | /s/ Xxxx Xxxxxxxx | |
|
Name: Xxxx Xxxxxxxx |
||
| Title: Manager | ||
|
/s/
Xxxx Xxxxxxxx
|
||
|
Xxxx Xxxxxxxx |
||
Solely
with respect to the provisions set forth in Section 2.1
of this
Agreement, Xxxxxxx Xxxxxxxxx has executed this Agreement as of the date first
set forth above.
| /s/ Xxxxxxx Xxxxxxxxx | ||
|
Xxxxxxx Xxxxxxxxx |
||
-20-
EXHIBIT
A
SELLER’S
ASSETS
See
attached list of all assets of John’s Tickets, LLC, dba Any Event Tickets, which
is incorporated herein by this reference.
A-1
EXHIBIT
B
EMPLOYMENT
AGREEMENT
This
EMPLOYMENT AGREEMENT (this “Agreement”)
is
entered into as of March 14, 2007 by and between TIX CORPORATION, a Delaware
corporation, with its principal office at 00000 Xxxxxxx Xxxxx, Xxxxx 000, Xxxxxx
Xxxx, Xxxxxxxxxx 00000 (the “Company”),
and
Xxxx Xxxxxxxx (“Employee,”
and
collectively with the Company, the “Parties”),
with
reference to the following facts:
WHEREAS,
the Company desires to employ the Employee, and Employee desires to be employed
by Company pursuant to the terms hereof;
WHEREAS,
Employee desires to commit to an agreement with the Company to serve as the
Premium Ticket Manager; and
NOW,
THEREFORE, the Company and Employee desire to set forth in this Agreement the
terms and conditions of the Employee’s employment with the Company.
ARTICLE
I
EMPLOYMENT;
TERM; DUTIES
1.1 Employment.
Upon
the terms and conditions hereinafter set forth, the Company employs Employee,
and Employee hereby accepts employment, as Premium Ticket Manager (“Manager”).
1.2 Duties.
Employee shall perform such duties for the Company as listed in the attached
Exhibit A, and other duties that may be assigned to him from time to time by
the
Chief Executive Officer (the “CEO”).
Employee shall report directly to the CEO and Chief Operating Officer
(“COO”).
1.3 Exclusive
Employment.
Employee
agrees to devote all of Employee’s business time, energy and efforts to the
business of the Company and will use Employee’s best efforts and abilities
faithfully and diligently to promote the Company’s business interests. For so
long as Employee is employed by the Company, or for so long as Employee is
receiving severance under Section 4.3.1 of this Agreement, Employee shall
not, directly or indirectly, either as an employee, employer, consultant, agent,
investor, principal, partner, stockholder (except as the holder of less than
1%
of the issued and outstanding stock of a publicly held corporation), corporate
officer or director, or in any other individual or representative capacity,
engage or participate in any business that is in competition in any manner
whatsoever with the business of the Company Group, as such businesses are now
or
hereafter conducted. Subject to the foregoing prohibition and provided such
services or investments do not violate any applicable law, regulation or order,
or interfere in any way with the faithful and diligent performance by Employee
of the services to the Company otherwise required or contemplated by this
Agreement, the Company expressly acknowledges that Employee may:
1.3.1 make
and
manage personal business investments of Employee’s choice without consulting the
Board; and
B-1
1.3.2 serve
in
any capacity with any non-profit civic, educational or charitable organization
without consulting with the Board or Chief Executive Officer.
1.4 Covenants
of Employee.
1.4.1 Reports.
The
Employee shall use his best efforts and skills to truthfully, accurately, and
promptly make, maintain, and preserve all records and reports that the Company
may, from time to time, request or require, fully account for all money,
records, equipment, materials, or other property belonging to the Company of
which he may have custody, and promptly pay and deliver the same whenever he
may
be directed to do so by the Chief Executive Officer.
1.4.2 Rules
and Regulations.
The
Employee shall obey all rules, regulations and special instructions of the
Company and all other rules, regulations, guides, handbooks, procedures,
policies and special instructions applicable to the Company’s business in
connection with his duties hereunder and shall endeavor to improve his ability
and knowledge of the Company’s business in an effort to increase the value of
his services for the mutual benefit of the Company and the
Employee.
1.4.3 Opportunities.
The
Employee shall make all business opportunities of which he becomes aware that
are relevant to the Company’s business available to the Company, and to no other
person or entity or to himself individually.
ARTICLE
II
COMPENSATION
2.1 Base
Salary.
During
the period commencing the date hereof and ending upon the termination of
Employee’s employment (the “Term”),
for
all services rendered by Employee hereunder and all covenants and conditions
undertaken by both Parties pursuant to this Agreement, the Company shall pay,
and Employee shall accept, as compensation, an annual base salary (“Base
Salary”)
of
$80,000. This Base Salary shall be payable in accordance with the normal payroll
practices of the Company.
2.2 Incentive
Compensation.
For the
period between March 1 and February 28 of any calendar year, beginning in 2007
(however for the 2007 calendar year, such period shall commence on March 14)
Employee shall receive 10% of EBITDA relating to the sale of Premium Tickets.
Premium Tickets shall mean tickets that are sold above face value.
Notwithstanding the foregoing, Employee shall not receive any more than $200,000
on a cumulative basis, pursuant to this Section 2.2.
2.3 Performance
and Salary Review.
Employee’s performance will be reviewed on no less than an annual basis. The
Board may, but shall not be obligated to increase Employee’s Base Salary from
time to time.
2.4 Withholding.
The
Company may deduct from any compensation payable to Employee (including payments
made pursuant to Section 2 of this Agreement in connection with or following
termination of employment) amounts sufficient to cover Employee’s share of
applicable federal, state and/or local income tax withholding, old-age and
survivors’ and other social security payments, state disability and other
insurance premiums and payments.
B-2
ARTICLE
III
BENEFITS/BUSINESS
EXPENSES
3.1 Benefits.
During
the Term, Employee shall be entitled to participate in such life, health,
accident, disability and hospitalization insurance plans, pension plans and
retirement plans as the Company makes available to the employees of the Company
as a group.
3.2 Business
Expenses.
Employee will be reimbursed for all reasonable, out-of-pocket business expenses
incurred in the performance of his/her duties on behalf of the Company
consistent with the Company’s policies and procedures, including prior approval
requirements and submission of appropriate supporting
documentation.
ARTICLE
IV
TERMINATION
OF EMPLOYMENT
4.1 Term
of Employment.
Employee’s
employment pursuant to this Agreement shall terminate on the earliest to occur
of the following:
4.1.1 February
28, 2010;
4.1.2 upon
the
death of Employee;
4.1.3 upon
the
delivery to Employee of written notice of termination by the Company if Employee
shall suffer a physical or mental disability which renders Employee, in the
reasonable judgment of the Board, unable to perform his duties and obligations
under this Agreement for either 90 consecutive days or 180 days in any 12-month
period;
4.1.4 upon
delivery to Employee of written notice of termination by the Company For
Cause;
or
4.1.5 upon
delivery of written notice from Employee to the Company for Good
Reason.
4.2 Certain
Definitions.
For
purposes of this Agreement, the following terms shall have the following
meanings:
4.2.1 “For
Cause”
shall
mean, in the context of a basis for termination of Employee’s employment with
the Company, that:
B-3
(a) Employee
materially breaches any obligation, duty or agreement under this Agreement,
which breach is not cured or corrected within 30 days of written notice
thereof from the Company (except for breaches of Sections 1.3 and 5 of this
Agreement, which cannot be cured and for which the Company need not give any
opportunity to cure); or
(b) Employee
commits any act of misappropriation of funds or embezzlement; or
(c) Employee
commits any act of fraud; or
(d) Employee
is convicted of, or pleads guilty or nolo
contendere
with
respect to, theft, fraud, a crime involving moral turpitude, or a felony under
federal or applicable state law.
It
is
understood that, in the context of termination For Cause under Section 4.2.1
of
this Agreement, the failure of Employee to perform assignments and other
responsibilities on a timely basis or on a basis satisfactory to the CEO or
Board shall not, in and of itself, constitute breach of this Agreement; to
constitute a basis of termination For Cause, such failure must be due to the
willful disregard or habitual neglect by Employee of his duties and
responsibilities under this Agreement. Further, the inadvertent and
unintentional violations of rules,
regulations, guides, handbooks, procedures, policies of the Company shall not
be
the basis of termination For Cause.
4.2.2 “Good
Reason”
shall
mean, in the context of a basis for termination by Employee of his employment
with the Company (a) without Employee’s consent, his position or duties are
modified by the Company to such an extent that his duties are no longer
consistent with the position of President of the Company, or (b) there has
been
a material breach by the Company of a material term of this Agreement which
continues uncured following 14 days after written notice by Employee to the
Company of such breach.
4.3 Effect
of Termination.
4.3.1 If
Employee’s employment is terminated
for any
reason, Employee shall be entitled to:
(a) accrued
and unpaid Base Salary through the date of termination;
(b) all
benefits payable under applicable employee benefit plans in accordance with
the
terms of such plans;
(c) accrued
but unused vacation paid out in accordance with legal requirements
(d) reimbursement
for expenses incurred prior to the date of termination in accordance Section
3.2
of this Agreement.
4.3.2 Employee
acknowledges that in the event of termination of his employment for any reason,
Employee shall not be entitled to any severance or other compensation from
the
Company. Without limitation on the generality of the foregoing, this Section
supersedes any plan or policy of the Company that provides for severance to
its
officers or employees, and Employee shall not be entitled to any benefits under
any such plan or policy.
B-4
4.3.3 Employee
shall have no obligation to offset any payments he receives from the Company
following the termination of his employment by any payments he receives from
his
subsequent employer, except that any payments Employee receives under the
employee benefit plans or programs of a subsequent employer shall offset any
payments he receives from comparable employment benefit plan or program of
the
Company.
ARTICLE
V
INVENTIONS;
CONFIDENTIAL/TRADE SECRET INFORMATION; NON-DISCLOSURE; UNFAIR COMPETITION;
CONFLICT OF INTEREST
5.1 Inventions.
All
processes, technologies and inventions relating to the business of the Company
(collectively, “Inventions”),
including new contributions, improvements, ideas, discoveries, trademarks and
trade names, conceived, developed, invented, made or found by the Employee,
alone or with others, during his employment by the Company, whether or not
patentable and whether or not conceived, developed, invented, made or found
on
the Company’s time or with the use of the Company’s facilities or materials,
shall be the property of the Company and shall be promptly and fully disclosed
by Employee to the Company. The Employee shall perform all necessary acts
(including, without limitation, executing and delivering any confirmatory
assignments, documents or instruments requested by the Company) to assign or
otherwise to vest title to any such Inventions in the Company and to enable
the
Company, at its expense, to secure and maintain domestic and/or foreign patents
or any other rights for such Inventions. This Agreement and this subsection
does
not apply to an Invention which qualifies fully as a nonassignable Invention
under Section 2870 of the California Labor Code.
5.2 Confidential/Trade
Secret Information/Non-Disclosure.
5.2.1 Confidential/Trade
Secret Information Defined.
During
the course of Employee’s employment, Employee will have access to various
confidential/trade secret information of the Company. “Confidential/trade
secret information”
is
information that is not generally known to the public and, as a result, is
of
economic benefit to the Company in the conduct of its business. Employee and
the
Company agree that the term “confidential/trade secret” includes but is not
limited to all information developed or obtained by the Company, including
its
affiliates, and predecessors, and comprising the following items, whether or
not
such items have been reduced to tangible form (e.g., physical writing, computer
hard drive, disk, tape, etc.): all methods, techniques, processes, ideas,
research and development, product designs, engineering designs, plans, models,
production plans, business plans, add-on features, trade names, service marks,
slogans, forms, pricing structures, menus, business forms, marketing programs
and plans, layouts and designs, financial structures, operational methods and
tactics, cost information, the identity of and/or contractual arrangements
with
suppliers and/or vendors, accounting procedures, and any document, record or
other information of the Company relating to the above. Confidential/trade
secret information includes not only information directly belonging to the
Company which existed before the date of this Agreement, but also information
developed by Employee for the Company, including its affiliates and its
predecessors and/or their employees during the term of Employee’s employment
with the Company. It does not include any information which (a) was in the
lawful and unrestricted possession of Employee prior to its disclosure to
Employee by the Company or its affiliates or predecessors, (b) is or becomes
generally available to the public by lawful acts other than those of Employee
after receiving it, or (c) has been received lawfully and in good faith by
Employee from a third party who is not and has never been an employee of the
Company or its affiliates or predecessors and who did not derive it from the
Company or its affiliates or predecessors.
B-5
5.2.2 Restriction
on Use of Confidential/Trade Secret Information.
Employee agrees that his use of confidential/trade secret information is subject
to the following restrictions for an indefinite period of time so long as the
confidential/trade secret information has not become generally known to the
public:
(a) Non-Disclosure.
Employee agrees that he will not publish or disclose, or allow to be published
or disclosed, confidential/trade secret information to any person without the
prior written authorization of the Company unless pursuant to Employee’s job
duties to the Company under this Agreement.
(b) Non-Removal/Surrender.
Employee agrees that he will not remove any confidential/trade secret
information from the offices of the Company or the premises of any facility
in
which the Company is performing services, except pursuant to his/her duties
under this Agreement. Employee further agrees that he shall surrender to the
Company all documents and materials in his possession or control which contain
confidential/trade secret information and which are the property of the Company
upon the termination of this Agreement, and that he shall not thereafter retain
any copies of any such materials.
5.2.3 Non-Solicitation
of Customers/Prohibition Against Unfair Competition.
Employee agrees that at no time after his employment with the Company will
he
engage in competition with the Company while making any use of the Company’s
confidential/trade secret information. Employee agrees that, for a period during
which the payments described in Section 4.2 are provided, he will not directly
or indirectly accept or solicit, whether as an employee, independent contractor
or in any other capacity, the business of any customer of the Company with
whom
Employee worked or otherwise had access to the Company’s confidential/trade
secret information pertaining to its business with that customer during the
last
year of his employment with the Company.
5.3 Conflict
of Interest.
During
Employee’s employment with the Company, Employee must not engage in any work,
paid or unpaid, that creates an actual conflict of interest with the Company.
5.4 Non-Solicitation
During Employment.
Employee shall not during his employment inappropriately interfere with the
Company’s business relationship with its customers or suppliers or solicit any
of the employees of the Company to leave the employ of the Company.
B-6
5.5 Non-Solicitation
of Employees.
Employee agrees that, for one year following the termination of his employment,
he shall not, directly or indirectly, ask or encourage any of the Company’s
employees to leave their employment with the Company or solicit any of the
Company’s employees for employment.
5.6 Breach
of Provisions.
If the
Employee breaches any of the provisions of this Section 5, or in the event
that
any such breach is threatened by the Employee, in addition to and without
limiting or waiving any other remedies available to the Company at law or in
equity, the Company shall be entitled to immediate injunctive relief in any
court, domestic or foreign, having the capacity to grant such relief, to
restrain any such breach or threatened breach and to enforce the provisions
of
this Section 5.
5.7 Reasonable
Restrictions.
The
parties acknowledge that the foregoing restrictions, as well as the duration
and
the territorial scope thereof as set forth in this Section 5, are under all
of
the circumstances reasonable and necessary for the protection of the Company
and
its business.
5.8 Definition.
For
purposes of this section 5, the term “Company”
shall
be deemed to include any parent, subsidiary or affiliate of the
Company.
ARTICLE
VI
MISCELLANEOUS
6.1 Binding
Effect; Assignment.
This
Agreement shall be binding upon and inure to the benefit of the Parties and
their respective legal representatives, heirs, distributees, successors and
assigns. Employee may not assign any of his rights and obligations under this
Agreement. The Company may assign its rights and obligations under this
Agreement to any successor entity.
6.2 Notices.
Any
notice provided for herein shall be in writing and shall be deemed to have
been
given or made (a) when personally delivered or (b) when sent by telecopier
and
confirmed within 48 hours by letter mailed or delivered to the party to be
notified at its or his/hers address set forth herein; or three days after being
sent by registered or certified mail, return receipt requested, (or by
equivalent xxxxxxx with delivery documentation such as FEDEX or UPS) to the
address of the other party set forth or to such other address as may be
specified by notice given in accordance with this section 6.2:
|
If
to the Company:
|
Tix
Corporation
00000
Xxxxxxx Xxxxx, Xxxxx 000
Xxxxxx
Xxxx, Xxxxxxxxxx 00000
Telephone: (000)
000-0000
Facsimile: (000)
000-0000
Attention: Xxxxxxxx
X. Xxxxxxx
|
|
|
If
to Employee:
|
Xxxx
Xxxxxxxx
0000
Xxxxx Xxxxxxx Xxxxx
Xxx
Xxxxx, Xxxxxx 00000
Telephone: (000)
000-0000
|
B-7
6.3 Severability.
If any
provision of this Agreement, or portion thereof, shall be held invalid or
unenforceable by a court of competent jurisdiction, such invalidity or
unenforceability shall attach only to such provision or portion thereof, and
shall not in any manner affect or render invalid or unenforceable any other
provision of this Agreement or portion thereof, and this Agreement shall be
carried out as if any such invalid or unenforceable provision or portion thereof
were not contained herein. In addition, any such invalid or unenforceable
provision or portion thereof shall be deemed, without further action on the
part
of the parties hereto, modified, amended or limited to the extent necessary
to
render the same valid and enforceable.
6.4 Waiver.
No
waiver by a party hereto of a breach or default hereunder by the other party
shall be considered valid, unless expressed in a writing signed by such first
party, and no such waiver shall be deemed a waiver of any subsequent breach
or
default of the same or any other nature.
6.5 Entire
Agreement.
This
Agreement sets forth the entire agreement between the Parties with respect
to
the subject matter hereof, and supersedes any and all prior agreements between
the Company and Employee, whether written or oral, relating to any or all
matters covered by and contained or otherwise dealt with in this Agreement.
This
Agreement does not constitute a commitment of the Company with regard to
Employee’s employment, express or implied, other than to the extent expressly
provided for herein.
6.6 Amendment.
No
modification, change or amendment of this Agreement or any of its provisions
shall be valid, unless in writing and signed by the party against whom such
claimed modification, change or amendment is sought to be enforced.
6.7 Authority.
The
Parties each represent and warrant that it/he has the power, authority and
right
to enter into this Agreement and to carry out and perform the terms, covenants
and conditions hereof.
6.8 Attorneys’
Fees.
If
either party hereto commences an arbitration or other action against the other
party to enforce any of the terms hereof or because of the breach by such other
party of any of the terms hereof, the prevailing party shall be entitled, in
addition to any other relief granted, to all actual out-of-pocket costs and
expenses incurred by such prevailing party in connection with such action,
including, without limitation, all reasonable attorneys’ fees, and a right to
such costs and expenses shall be deemed to have accrued upon the commencement
of
such action and shall be enforceable whether or not such action is prosecuted
to
judgment.
6.9 Titles.
The
titles of the sections of this Agreement are inserted merely for convenience
and
ease of reference and shall not affect or modify the meaning of any of the
terms, covenants or conditions of this Agreement.
6.10 Applicable
Law; Choice of Forum.
Any
proceeding between the parties arising out of or relating to this Agreement
shall be brought in the appropriate forum in Las Vegas, Nevada. This Agreement,
and all of the rights and obligations of the parties in connection with the
employment relationship established hereby, shall be governed by and construed
in accordance with the substantive laws of the State of Nevada without giving
effect to principles relating to conflicts of law.
B-8
6.11 Arbitration.
6.11.1 Scope.
To the
fullest extent permitted by law, Employee and the Company agree to the binding
arbitration of any and all controversies, claims or disputes between them
arising out of or in any way related to this Agreement, the employment
relationship between the Company and Employee and any disputes upon termination
of employment, including but not limited to breach of contract, tort,
discrimination, harassment, wrongful termination, demotion, discipline, failure
to accommodate, family and medical leave, compensation or benefits claims,
constitutional claims; and any claims for violation of any local, state or
federal law, statute, regulation or ordinance or common law. For the purpose
of
this agreement to arbitrate, references to “Company” include all parent,
subsidiary or related entities and their employees, supervisors, officers,
directors, agents, pension or benefit plans, pension or benefit plan sponsors,
fiduciaries, administrators, affiliates and all successors and assigns of any
of
them, and this agreement to arbitrate shall apply to them to the extent
Employee’s claims arise out of or relate to their actions on behalf of the
Company.
6.11.2 Arbitration
Procedure.
To
commence any such arbitration proceeding, the party commencing the arbitration
must provide the other party with written notice of any and all claims forming
the basis of such right in sufficient detail to inform the other party of the
substance of such claims. In no event shall this notice for arbitration be
made
after the date when institution of legal or equitable proceedings based on
such
claims would be barred by the applicable statute of limitations. The arbitration
will be conducted in Las Vegas, Nevada, by a single neutral arbitrator and
in
accordance with the then-current rules for resolution of employment disputes
of
the American Arbitration Association (“AAA”).
The
Arbitrator is to be selected by the mutual agreement of the Parties. If the
Parties cannot agree, the Superior Court will select the arbitrator. The parties
are entitled to representation by an attorney or other representative of their
choosing. The arbitrator shall have the power to enter any award that could
be
entered by a judge of the trial court of the State of Nevada, and only such
power, and shall follow the law. The award shall be binding and the Parties
agree to abide by and perform any award rendered by the arbitrator. The
arbitrator shall issue the award in writing and therein state the essential
findings and conclusions on which the award is based. Judgment on the award
may
be entered in any court having jurisdiction thereof. The Company shall bear
the
costs of the arbitration filing and hearing fees and the cost of the
arbitrator.
6.12 This
Agreement shall not be terminated by any voluntary or involuntary dissolution
of
the Company resulting from either a merger or consolidation in which the Company
is not the consolidated or surviving corporation, or a transfer of all or
substantially all of the assets of the Company. In the event of any such merger
or consolidation or transfer of assets, Employee’s rights, benefits and
obligations hereunder shall be assigned to the surviving or resulting
corporation or the transferee of the Company’s assets.
B-9
IN
WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
day
and year first above written.
|
TIX
CORPORATION,
a
Delaware corporation
|
||
| By: | /s/ Xxxxxxxx X. Xxxxxxx | |
|
Name: Xxxxxxxx X. Xxxxxxx |
||
|
Title:
Chief Executive Officer
|
||
| /s/ Xxxx Xxxxxxxx | ||
|
Xxxx Xxxxxxxx |
||
B-10
Exhibit
A to Employment Agreement
Duties
of Premium Ticket Manager of Tix Corporation
Responsibilities
shall include the day-to-day operations and management of the Company’s premium
ticket broker business division, including direction of staff members of the
Company’s premium ticket brokerage division and assistance with any other
business operations as required by either the CEO or COO of the Company.
B-11
EXHIBIT
C
DOMAIN
NAMES ASSIGNMENT
This
Agreement is made and entered into as of March 14, 2007, by and between John’s
Tickets, LLC, an Ohio limited liability company dba Any Event Tickets, Xxxx
Xxxxxxxx and Xxxxxxx Xxxxxxxxx, former President of Any Event (collectively,
“Seller”),
on
the one hand, and Tix Corporation, a Delaware corporation (the “Purchaser”),
on
the other hand, with regard to the registered domain name xxxxxxxx.xxx and
all
other domain names set forth in Exhibit
A
to the
Asset Purchase Agreement, dated as of March 14, 2007 (the “Domain
Names”).
1. Assignment
of Domain Names/Conveyance of All Rights:
For
good and valuable consideration, receipt and sufficiency of which is
acknowledged, Seller hereby grants, assigns, and quitclaims to Purchaser all
of
its right, title, and interest in and to the Domain Names to the fullest extent
possible, and Seller agrees that all of its right, title, and interest in and
to
the Domain Names shall be the sole and exclusive property of Purchaser to be
used in any manner at Purchaser’s sole and absolute discretion. Seller will
cease to maintain Internet sites under the Domain Names effective
immediately.
2. Representations
and Warranties:
Seller
hereby represents, warrants and covenants that: (i) Seller has registered the
Domain Name xxxxxxxx.xxx and used it on the Internet; (ii) Seller has not sold,
transferred, or assigned any or all of its rights in and to the Domain
Names or
the
Marks (as that term is defined in the Agreement to which this Domain Names
Assignment is an exhibit); (iii) Seller has good and valid title to, and is
the
sole and exclusive owner of, the Domain Names, free and clear of any liens,
mortgages or other encumbrances; (iv) Seller is the registered owner of the
Domain Names on the WHOIS database; (v) Seller has a currently valid
registration of the Domain Name of the domain name xxxxxxxx.xxx with the
Registrar (XxXxxxx.xxx, Inc. at xxx.xxxxxxx.xxx), and has a valid registration
of all Domain Names with XxXxxxx.xxx or another Registrar; (vi) to the best
of
Seller’s knowledge, any intellectual property that Seller provides to Purchaser,
including the Domain Names and the Marks, shall be free and clear of third
party
claims and will not, in any way, infringe upon or violate any trademark or
any
copyright or any rights of privacy or publicity, common law rights, or any
other
rights of any third party or constitute a libel or slander against any person,
firm or corporation; (vii) to the best of Seller’s knowledge, the Domain Names
do not infringe the trademark, trade name, service xxxx or related rights of
any
third party; (viii) Seller has received no notice, and Seller has no knowledge,
of any pending or threatened claims or litigation by any third party relating
to
the use, registration, or ownership of the Domain Names; (ix) the registration
and renewal fees charged by the Registrars for the Domain Names are paid at
least through the effective date of this Agreement, and there are no other
amounts due and owing to any third party, including, without limitation, the
Registrar, with respect to the Domain Names through March 14, 2008; (x) Seller
does not represent or warrant that it has any trademark rights in the Marks;
(xi) to Seller’s knowledge, there are no other circumstances that would
interfere with, prohibit or restrict in any way Purchaser’s use of the Domain
Name and/or the consummation of the transaction contemplated by this Agreement;
and (x) Seller has no other Domain Names, marks, trademarks, service marks
or
trade names used in connection with Any Event Tickets’ business other than what
is listed in Exhibit
A,
all
such Domain Names, marks, trademarks, service marks or tradenames are included
within this Agreement and the Asset Purchase Agreement.
C-1
3. Monetary
Consideration:
Seller
and Purchaser acknowledge that the Asset Purchase Agreement, dated as of March
14, 2007, between Seller and Purchaser (“Main
Agreement”)
provides for consideration for this transfer of rights.
4. Domain
Names Transfer:
Upon
execution of the Main Agreement and this Domain Name Assignment, Seller shall
request that the Registrar transfer the Domain Names to Purchaser in accordance
with the Registrar’s then-current domain name transfer procedures. Purchaser
shall promptly provide to Seller and/or Registrar, in accordance with
Registrar’s then-current domain name transfer procedures, any and all
information necessary for Seller and Registrar to effect the Domain Names
transfers, including the Purchaser’s account information and the Purchaser’s
registrar information, if different from the Registrar. After initiating the
transfer process, Seller shall promptly reply to any and all requests made
by
the Registrar to complete the transfers including, without limitation, any
requests for additional information or documentation. Seller shall promptly
provide to Purchaser copies of all correspondence with the Registrar related
to
the Domain Names. Seller shall promptly notify Purchaser of the successful
completion of the transfers as reflected in the WHOIS database on Registrar’s
web site (located at xxx.xxxxxxx.xxx or other URL where any other registrar
is
located).
5. Registrar
Fees:
Purchaser shall be responsible for payment of, and shall promptly pay, any
and
all Registrar fees associated with the transfer of the Domain Names, if any,
including any transfer fees. If the Registrar requires the transferring
registrant to pay fees to initiate the transfer or consummate the transfer,
then
Seller shall pay such fees and, upon written notice by seller, Purchaser shall
promptly reimburse Seller for such payments.
6. Cooperation
and Further Documentation:
(a)
Seller agrees to execute and deliver without further consideration such further
instruments and other documents, and to cooperate with Purchaser in any manner,
as may reasonably be required by Purchaser to effectuate the purpose and intent
of this Domain Name Assignment, so that the transfer of the Domain Name to
Purchaser is recorded in the appropriate registrar for the Domain Names,
including, without limitation, by completion, signature, response e-mail, online
actions, notarization and/or filing of all documents necessary to record such
sale and transfer and to allow the Domain Names to point to computer servers
designated by Purchaser. Seller agrees to undertake whatever actions are
required by the Registrar, including, without limitation, the initiation of
the
transfer process and removal of any registrar locks, to effectuate the transfer
of ownership of the Domain Name to Purchaser so that the Purchaser will be
the
sole registered owner of the Domain Name and will be registered on whatever
ICANN-accredited domain name registrar that Transferee shall designate. (b)
In
the event that Purchaser determines that it will require from Seller further
documents or instruments to allow it to register the Domain Name or the Marks
or
to apply for and prosecute a trademark or service xxxx application with the
United States Patent and Trademark Office, Seller agrees to execute such other
or additional documents as Purchaser deems necessary to protect and/or enforce
its full and exclusive rights to the Domain Name, Marks, their associated
goodwill, and all other expanded, alternative, similar or derivative domain
names, URLs, trademarks or service marks.
7. Uniqueness
and Remedies:
Seller
and Purchaser acknowledge that the Domain Name and the Marks, and the goodwill,
rights, and privileges flowing from the Domain Name and the Marks, are of a
special, unique, unusual, extraordinary and intellectual character that gives
them a peculiar value, the loss of which would cause irreparable injury and
damage that could not be reasonably or adequately compensated in connection
with
damages asserted in an action at law. In light of the foregoing, Seller
acknowledges that monetary relief would not be an adequate remedy for a breach
or threatened breach by Seller of the provisions of this Domain Name Assignment
and that Purchaser shall be entitled to the enforcement of this Domain Name
Assignment by injunction, specific performance or other equitable relief,
without prejudice to any other rights and remedies that Purchaser may have.
If
either party to this Domain Name Assignment resorts to equitable relief for
breach or threatened breach of any provision of this Domain Name Assignment,
it
shall not be construed to be a waiver of any other rights or remedies that
the
party may have for damages or otherwise.
C-2
8. Indemnification:
The
Seller agrees to indemnify and hold Purchaser and its officers, directors,
affiliates, agents, employees, successors and assigns (the “Indemnified
Parties”),
harmless against all claims, losses, liabilities, damages, deficiencies, costs
and expenses, including reasonable attorneys’ fees and expenses of investigation
and defense incurred, suffered or accrued by the Indemnified Parties, or any
of
them, directly or indirectly,
as a result of or based upon any claim of a third party arising out of or in
connection with any claim that Purchaser’s use of the Domain Name or the Marks
(as authorized or permitted by the Main Agreement and this Domain Name
Assignment) violates the rights of such third party in and to such Domain Name
or Marks and/or as a result of or based upon any breach, inaccuracy or failure
of a representation, warranty or covenant of Seller contained in this Domain
Name Assignment or the Main Agreement.
9. Choice
of Law and Forum Selection:
This
Domain Name Assignment shall be governed by and construed in accordance with
the
laws of the State of Nevada applicable to contracts made and to be performed
wholly within the State of Nevada, and without regard to conflicts of law
principles. Any claim, suit, or action to interpret, with respect to any matter
arising out of or relating to, this Domain Name Assignment or involving the
Domain Name, the Marks or the Website (as defined in the Main Agreement) shall
be commenced only in the state or federal courts located in Las Vegas, Nevada,
and each party hereby consents to the exclusive jurisdiction of the foregoing
courts, and waives any objections to jurisdiction, venue or forum. The parties
agree that they may be served with process by personal service and/or certified
mail.
10. Entire
Agreement:
This
Domain Name Assignment and the Main Agreement contain the entire agreement
of
the parties with respect to the matters contemplated herein. This Domain Name
Assignment and the Main Agreement supersede any and all prior agreements,
negotiations, or understandings between the parties, whether written or verbal,
express or implied. The terms of this Domain Name Assignment or the Main
Agreement cannot be changed or modified unless any such change or modification
is in writing and signed by the parties to be bound.
11. Successors
and Assigns:
This
Domain Name Assignment is binding upon all predecessors-in-interest, successors,
assigns, licensees, partners, venturers, representatives, agents and employees
of the parties.
12. Non-Waiver
of Breach:
No
waiver of any provision hereof can be waived unless such waiver is in writing.
Waiver by one party of performance of any provision hereof shall not invalidate
this Domain Name Assignment, nor shall it be deemed to be a waiver by such
party
of any other provision thereof. No breach of any provision shall invalidate
this
Domain Name Assignment, nor shall it be deemed to be a waiver by such party
of
any other provision hereof.
C-3
13. Authorization:
The
respective undersigned signatories each hereby warrant that he/she is duly
authorized to execute this Domain Name Assignment on behalf of the party for
which he/she has signed.
14. Attorney’s
Fees:
In the
event of litigation in connection with or concerning the subject matter of
this
Agreement, the prevailing party shall be entitled to recover all costs and
expenses incurred by it/him in connection therewith, including without
limitation reasonable attorneys’ fees.
15. Notices:
Delivery:
The
provisions regarding notices in the Main Agreement shall apply.
16. Counterparts:
This
Agreement may be executed in counterparts and by facsimile, and once so signed,
such counterparts shall constitute a single original document.
[REMAINDER
OF THIS PAGE LEFT BLANK; SIGNATURE PAGE FOLLOWS]
C-4
IN
WITNESS WHEREOF, the parties hereto, agreeing to all of the foregoing, have
caused this Domain Name Assignment to be executed by their duly authorized
officers or agents, effective as of the day and year first set forth above,
in
the spaces provided below.
“Seller”
JOHN’S
TICKETS, LLC, dba Any Event Tickets
| By: | /s/ Xxxx Xxxxxxxx | |||
|
Name: Xxxx Xxxxxxxx |
||||
| Title: Manager |
| By: | /s/ Xxxxxxx Xxxxxxxxx | |||
|
Name: Xxxxxxx Xxxxxxxxx |
Subscribed
and sworn to before me this 14th
day
of
March, 2007.
| /s/ | ||||
|
|
Notary
Public, State of Nevada, County, Xxxxx
My
Commission Expires: October 27, 2008
“Purchaser”
Tix
Corporation
| By: | /s/ Xxxxxxxx X. Xxxxxxx | |||
|
Name: Xxxxxxxx X. Xxxxxxx |
||||
| Title: Chief Executive Officer |
Subscribed
and sworn to before me this 14th
day
of
March, 2007.
| /s/ | ||||
|
|
Notary
Public, State of Nevada, County, Xxxxx
My
Commission Expires: October 27, 2008
C-5
EXHIBIT
D
CONSULTING
AGREEMENT
This
Consulting Agreement (this “Agreement”)
is
made and entered into as of March 14, 2007 (the “Effective
Date”)
by and
between Tix Corporation, a Delaware corporation (the “Company”),
00000
Xxxxxxx Xxxxx, Xxxxx 000, Xxxxxx Xxxx, XX 00000 and Xxxxxxx Xxxxxxxxx, an
individual (“Consultant”),
000
Xxxxxxx Xxxxxx, Xxxxx Xxxxx, Flordia 33980, with reference to the following
facts:
|
A.
|
The
Company has entered into an Asset Purchase Agreement with John’s Tickets,
LLC, an Ohio limited liability company dba Any Event Tickets
(“Any
Event Tickets”).
|
|
B.
|
Consultant
has provided services to Any Event Tickets and has previously served
Ideal
Ticket Agency, Inc. as President for a period of 14 years, from 1989
to
2003.
|
|
C.
|
Any
Event Tickets was a ticket brokerage business that operated from
Las
Vegas, Nevada and Cleveland, Ohio (the “Cleveland
Office”).
|
|
D.
|
The
Cleveland Office was the main office from which Any Event Tickets
operated
its ticket brokerage business.
|
|
E.
|
The
Company purchased all assets of Any Event Tickets on March 13, 2007,
and
desires to engage Consultant for consulting
services.
|
Now,
therefore, with reference to the foregoing facts, the Company and Consultant
agree as follows:
1. Engagement
of Consultant.
The
Company hereby engages Consultant and Consultant hereby agrees to hold itself
available to render, and to render at the reasonable request of the Company,
independent advisory and consulting services for the Company to the best of
its
ability, upon the terms and conditions hereinafter set forth. Such consulting
services shall include, but not be limited to, consulting advice and performance
of services as outlined in Section 2 below.
2. Services.
During
the term of Consultant’s engagement, Consultant will provide consulting services
to the Company, which shall include, but not be limited to: (a) assisting the
Company with the transition and continuation of the ticket brokerage business
as
conducted by Any Event Tickets, (b) assisting the Company’s officers and
employees, including Xxxxxxxx X. Xxxxxxx, Chief Executive Officer and Xxxx
Xxxxxxxx, Premium Ticket Manager, with: (i) the continuation and creation of
infrastructure and operation of the Company’s ticket brokerage business from the
Cleveland Office to the office in Las Vegas, Nevada (the “Las
Vegas Office”),
(ii)
the transition to the Las Vegas Office as the Company’s main office, and (iii)
the continued utilization of the existing facility (or facilities) in Cleveland
Office and (c) the integration of the ticket brokerage business in the Cleveland
Office into the operations of the Las Vegas Office (the “Services”).
Consultant shall use his best efforts to help the Company integrate and
transition the business and assets purchased from Any Event
Tickets.
D-1
3. Compensation
3.1 In
consideration of the Services rendered and to be rendered by Consultant, and
the
performance by Consultant with its obligations under this Agreement, the Company
shall to Consultant a consulting fee of $150,000 and 25,000 shares (the
“Shares”)
of the
Company’s common stock, par value $0.08 per share (the “Common
Stock”)
within
a reasonable period of time, not to exceed 90 days after the date of this
Agreement.
3.2 Consultant
represents and warrants to, and agrees with the Company as follows, with respect
to the Shares;
3.2.1 Consultant
is acquiring the Shares for his own account, for investment purposes
only.
3.2.2 Consultant
understands that an investment in the Shares involves a high degree of risk,
and
Consultant has the financial ability to bear the economic risk of this
investment in the Shares, including a complete loss of such investment.
Consultant has adequate means for providing for its current financial needs
and
has no need for liquidity with respect to this investment.
3.2.3 Consultant
has such knowledge and experience in financial and business matters that it
is
capable of evaluating the merits and risks of an investment in the Shares and
in
protecting its own interest in connection with this transaction.
3.2.4 Consultant
understands that the Shares have not been and will not be registered under
the
Securities Act of 1933, as amended (the “Securities
Act”),
or
under any state securities laws. Consultant is familiar with the provisions
of
the Securities Act and Rule 144 thereunder and understands that the restrictions
on transfer on the Securities may result in Consultant being required to hold
the Shares for an indefinite period of time.
3.2.5 Consultant
is an “accredited investor” as such term is defined in Regulation D under the
Securities Act.
3.2.6 Consultant
agrees not to sell, transfer, assign, gift, create a security interest in,
or
otherwise dispose of, with or without consideration (collectively, “Transfer”)
any of
the Shares except pursuant to an effective registration statement under the
Securities Act or an exemption from registration. As a further condition to
any
such Transfer, except in the event that such Transfer is made pursuant to an
effective registration statement under the Securities Act, if in the reasonable
opinion of counsel to the Company any Transfer of the Shares by the contemplated
transferee thereof would not be exempt from the registration and prospectus
delivery requirements of the Securities Act, the Company may require the
contemplated transferee to furnish the Company with an investment letter setting
forth such information and agreements as may be reasonably requested by the
Company to ensure compliance by such transferee with the Securities
Act.
D-2
3.2.7 Consultant
has had the opportunity to ask questions of, and to receive answers from,
appropriate executive officers of the Company with respect to the terms and
conditions of the transactions contemplated hereby and with respect to the
business, affairs, financial condition and results of operations of the Company.
Consultant has had access to such financial and other information as is
necessary in order for Consultant to make a fully informed decision as to
investment in the Company, and has had the opportunity to obtain any additional
information necessary to verify any of such information to which Consultant
has
had access.
3.2.8 Consultant
acknowledges that any certificate evidencing the Common Stock will have a legend
to the following effect:
THE
SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933 (THE “ACT”) OR ANY APPLICABLE STATE SECURITIES LAWS AND
MAY NOT BE EXERCISED, SOLD, PLEDGED OR TRANSFERRED IN THE ABSENCE OF AN
EFFECTIVE REGISTRATION STATEMENT FOR SUCH SECURITIES UNDER THE ACT OR UNLESS
AN
EXEMPTION FROM SUCH REGISTRATION IS AVAILABLE.
4. Term.
The
engagement of Consultant shall commence on the date of this Agreement and shall
continue until the earliest to occur of the following:
4.1 90
days
after the Effective Date;
4.2 Upon
death or disability of Consultant;
4.3 By
the
Company “with cause,” effective upon delivery of written notice to Consultant
given at any time (without any necessity for prior notice) if any one or more
of
the following shall occur:
4.3.1 a
material breach of this Agreement by Consultant, which breach has not been
cured
within 5 days after a written demand for such performance is delivered to
Consultant by the Company that reasonably identifies the manner in which the
Company believes that Consultant has breached this Agreement;
4.3.2 any
material act or event which inhibit Consultant from fully performing its
responsibilities to the Company in good faith;
4.3.3 a
felony
indictment or conviction of Consultant;
4.3.4 breach
of
the confidentiality obligations of Consultant under this Agreement or violation
of any xxxxxxx xxxxxxx law (including “tipping”);
4.3.5 Consultant
commits any act of dishonesty, gross carelessness or gross misconduct;
or
4.4 Upon
notice from the Company to Consultant other than pursuant to Section 4.2 or
4.3.
D-3
The
termination of Consultant’s engagement shall not terminate the rights and
obligations of the parties under Sections 3.2, 4, 5, 6 and 9-23.
5. Representations
and Warranties.
Consultant represents and warrants to the Company that: (a) Consultant is under
no contractual restriction or other restrictions or obligations that are
inconsistent with this Agreement, the performance of its duties and the
covenants hereunder; and (b) Consultant is under no physical or mental
disability that would interfere with him/her keeping and performing all of
the
agreements, covenants and conditions to be kept or performed hereunder.
6. Independent
Contractor.
It is
expressly agreed that Consultant is acting as an independent contractor in
performing its services hereunder, and this Agreement is not intended to, nor
does it create, an employer-employee relationship nor shall it be construed
as
creating any joint venture or partnership between the Company and Consultant.
Consultant shall be responsible for all applicable federal, state and other
taxes related to Consultant’s consulting fee and the Company shall not withhold
or pay any such taxes on behalf of Consultant, including without limitation
social security, federal, state and other local income taxes. Since Consultant
is acting solely as an independent contractor under this Agreement, Consultant
shall not be entitled to insurance or other benefits normally provided by
Company to its employees. Consultant shall be relying upon the Company to supply
accurate data and information without independent verification.
7. Assignment.
The
Company is entering into this Agreement in reliance upon and in consideration
of
the skills and qualifications of Consultant. Consultant may not assign or
delegate any of its rights or obligations under this Agreement without the
prior
written consent of the Company, which consent may be withheld for any
reason.
8. Disclaimer
of Responsibility for Acts of Company.
The
obligations of the Consultant described in this Agreement consist solely of
the
Services to Company. In no event shall Consultant be required by this Agreement
to act as the agent of Company or otherwise to represent or make decisions
for
Company. All final decisions with respect to acts of Company or its affiliates,
whether or not made pursuant to or in reliance on information or advice
furnished by Consultant hereunder, shall be those of Company or such affiliates
and Consultant shall under no circumstances be liable for any expense incurred
or loss suffered by Company as a consequence of such decisions.
9. Indemnity.
Each
party agrees to indemnify, defend and hold the other party (and its directors,
officers, employees and agents) harmless against any and all claims, loss,
cost,
liability, or expense (including, without limitation, reasonable attorneys’ fees
and costs) incurred, sustained and/or paid by such other party arising out
of
(a) any breach by such party of any of its representations, warranties or
covenants made under or in connection with this Agreement, or (b) the gross
negligence or willful misconduct of such party in its performance under this
Agreement.
10. Confidentiality.
Consultant recognizes that during the course of Consultant’s activities on
behalf of the Company, it will accumulate certain proprietary and confidential
information and trade secrets used in the Company’s business and will have
divulged to it certain confidential and proprietary information and trade
secrets about the business, operations and prospects of the Company, which
constitute valuable business assets of the Company. Consultant hereby
acknowledges and agrees that such information, except for information which
is
in the public domain prior to Consultant’s receipt thereof, or which
subsequently becomes part of the public domain other than by Consultant’s breach
of a confidentiality obligation, or which Consultant can clearly demonstrate
was
in its possession prior to receipt thereof from the Company and was developed
by
Consultant or received by Consultant from a third-party without breach of such
third-parties confidentiality obligations with respect thereto (“Proprietary
Information”)
is
confidential and proprietary and constitutes trade secret information and the
Proprietary Information belongs to the Company and not to Consultant. Consultant
agrees, to the extent not prohibited by law, that it shall not, at any time
prior to termination of this Agreement or thereafter disclose, divulge or make
known, directly or indirectly, to any person, or otherwise use or exploit in
any
manner any Proprietary Information obtained by Consultant under this Agreement,
except in connection with and to the extent required by its performance of
its
duties hereunder for the Company and except that Consultant shall have no
liability for unintentional, inadvertent immaterial disclosures more than one
year after termination of this Agreement. Upon termination of this Agreement,
Consultant shall deliver to the Company all tangible displays and repositories
of Proprietary Information.
D-4
11. Publication
and Release of Information. Consultant
shall not disseminate, publish or publicly release any press release or other
document regarding the Company that has not been approved in advance by the
Company in writing. Furthermore, Consultant shall not make any statement or
assertion regarding the Company that may be inconsistent with or contrary to
information disclosed in the Company’s filings with the Securities and Exchange
Commission.
12. Complete
Agreement.
This
Agreement supersedes any and all of the other agreements, either oral or in
writing, between the Parties with respect to the subject matter hereof and
contains all of the covenants and agreements between the parties with respect
to
such subject matter in any manner whatsoever. Each party to this Agreement
acknowledges that no representations, inducements, promises or agreements,
oral
or otherwise, have been made by any party, or anyone herein, and that no other
agreement, statement or promise not contained in this Agreement shall be valid
or binding.
13. Amendment.
No
amendment to this Agreement shall be valid unless such amendment is in writing
and is signed by authorized representatives of all the parties to this
Agreement.
14. Waiver.
Any of
the terms and conditions of this Agreement may be waived at any time and from
time to time in writing by the party entitled to the benefit thereof, but a
waiver in one instance shall not be deemed to constitute a waiver in any other
instance. A failure to enforce any provision of this Agreement shall not operate
as a waiver of this provision or of any other provision hereof.
15. Notices.
All
notices, requests, demands and other communications (collectively, “Notices”)
given
pursuant to this Agreement shall be in writing, and shall be delivered by
personal service, courier, facsimile transmission or by United States first
class, registered or certified mail, postage prepaid, addressed to the party
at
the address set forth in the introductory paragraph of this Agreement. Any
Notice, other than a Notice sent by registered or certified mail, shall be
effective when received; a Notice sent by registered or certified mail, postage
prepaid return receipt requested, shall be effective on the earlier of when
received or the third day following deposit in the United States mails. Any
party may from time to time change its address for further Notices hereunder
by
giving notice to the other party in the manner prescribed in this
Section.
D-5
16. Severability.
In the
event that any provision of this Agreement shall be held to be invalid, illegal
or unenforceable in any circumstances, the remaining provisions shall
nevertheless remain in full force and effect and shall be construed as if the
unenforceable portion or portions were deleted.
17. Assignment.
This
Agreement shall be binding upon and inure to the benefit of the parties and
their respective successors and permitted assigns. Any attempt by either party
to assign any rights, duties or obligations which may arise under this Agreement
without the prior written consent of the other party shall be void.
18. Governing
Law.
The
validity, interpretation and construction of this Agreement and each part
thereof will be governed by the laws of the State of Nevada.
19. Attorneys’
Fees.
In the
event a dispute arises with respect to this Agreement, the party prevailing
in
such dispute shall be entitled to recover all expenses, including, without
limitation, reasonable attorneys’ fees and expenses incurred in ascertaining
such party’s rights, in preparing to enforce or in enforcing such party’s rights
under this Agreement, whether or not it was necessary for such party to
institute suit.
20. Counterparts.
This
Agreement may be executed in any number of counterparts, each of which may
be
deemed an original and all of which together will constitute one and the same
instrument.
21. Headings.
The
section headings in this Agreement are solely for convenience of reference
and
shall be given no effect in the construction or interpretation of this
Agreement.
22. Arbitration.
The
parties agree that all controversies which may arise between them concerning
any
transaction, the construction, performance or breach of this or any other
agreement between them, whether entered into prior, on or subsequent to the
date
hereof, or any other matter, including but not limited to, securities activity,
investment advice or in any way related thereto, shall be determined by
arbitration in accordance with the rules of the American Arbitration
Association. This shall inure to the benefit of and be binding on the Company,
its officers, directors, agents, independent contractors, employees, controlling
persons, sureties and any person acting on its behalf as to this Agreement
and
shall inure to the benefit of and be binding on the Consultant, its officers,
directors, agents, independent contractors, employees, controlling persons,
sureties and any person acting on its behalf as to this Agreement. Any award
rendered in arbitration may be enforced in any court of competent
jurisdiction.
23. Arbitration
Disclosures.
Arbitration is final and binding on the parties. The parties are waiving their
right to seek remedies in court, including the right to jury trial.
Pre-arbitration discovery is generally more limited than and different from
court proceedings. The arbitrators’ award is not required to include factual
findings or legal reasoning and any party’s right to appeal or to seek
modification of rulings by the arbitrators is strictly limited. The panel of
arbitrators will typically include a minority of arbitrators who were or are
affiliated with the securities industry.
D-6
IN
WITNESS WHEREOF, the parties execute this Agreement as of the date first above
written.
| Company: | ||
| TIX CORPORATION | ||
| |
|
|
| By: | /s/ Xxxxxxxx X. Xxxxxxx | |
|
Xxxxxxxx X. Xxxxxxx |
||
| Chief Executive Officer | ||
| Consultant: | ||
| |
|
|
| /s/ Xxxxxxx Xxxxxxxxx | ||
|
XXXXXXX XXXXXXXXX |
||
X-0
