AGREEMENT
THIS AGREEMENT ("Agreement") is entered into by and between [name]
("Executive") and Ticketmaster Online-CitySearch, Inc., a Delaware corporation
(the "Company"), and is effective December 31, 1999 (the "Effective Date").
WHEREAS, the Company and the Company's ultimate parent company, USA
Networks, Inc. ("USA") have provided the Executive with stock based incentives
with regard to Executive's efforts while employed by the Company and desires to
establish an arrangement for Executive to provide consulting services to the
Company and to USA after Executive separates from the Company for any reason
(except death) on the terms and conditions hereinafter set forth, and Executive
has accepted such stock based incentives and is willing to accept such
consulting agreements on such terms and conditions.
NOW, THEREFORE, in consideration of the mutual agreements hereinafter set
forth, and other good and valuable consideration the receipt and sufficiency of
which are hereby acknowledged by both parties, Executive and the Company have
agreed and do hereby agree as follows:
1. TERM OF AGREEMENT. The term ("Term") of this Agreement shall commence on
the Effective Date and shall expire on the second anniversary of the
separation of Executive from his employment with the Company for any
reason.
2. CONFIDENTIAL INFORMATION. Executive acknowledges that while employed by the
Company Executive will occupy a position of trust and confidence. Executive
shall not, except as may be required to perform Executive's duties
hereunder or as required by applicable law, without limitation in time or
until such information shall have become public other than by Executive's
unauthorized disclosure, disclose to others or use, whether directly or
indirectly, any Confidential Information regarding the Company or any of
its subsidiaries or affiliates. "Confidential Information" shall mean
information about the Company, USA or any of their respective subsidiaries
or affiliates, and their clients and customers that is not disclosed by the
Company or any of its subsidiaries or affiliates for financial reporting
purposes and that was learned by Executive in the course of employment by
the Company or any of its subsidiaries or affiliates, including (without
limitation) any proprietary knowledge, trade secrets, data, formulae,
information and client and customer lists and all papers, resumes, and
records (including computer records) of the documents containing such
Confidential Information. Executive acknowledges that such Confidential
Information is specialized, unique in nature and of great value to the
Company and its subsidiaries or affiliates, and that such information gives
the Company and its subsidiaries or affiliates a competitive advantage.
Executive agrees to deliver or return to the Company, at the Company's
request at any time or upon termination or expiration of Executive's
employment or as soon thereafter as possible, all documents, computer tapes
and disks, records, lists, data, drawings, prints, notes and written
information (and all copies thereof) furnished by the Company and its
subsidiaries or affiliates or prepared by Executive in the course of
Executive's employment by the Company and its subsidiaries or affiliates.
As used in this
Agreement, "subsidiaries" and "affiliates" shall mean any company
controlled by, controlling or under common control with the Company or USA
as the case may be.
3. CONSULTING SERVICES. During the two-year period commencing immediately upon
the termination of Executive's employment for any reason (other than
Executive's death) (the "Consulting Period"), Executive shall be available
for consultation with the Company and its subsidiaries and affiliates
concerning their general operations and the industries in which they engage
in business. In addition, during the Consulting Period, Executive will aid,
assist and consult with the Company and its subsidiaries and affiliates
with respect to their dealings with clients and the enhancement of their
recognition and reputation. During the Consulting Period, Executive shall
devote such time and energies to the affairs of the Company and its
subsidiaries and affiliates as may be reasonably required to carry out his
duties hereunder without jeopardizing Executive's then full-time,
non-Company business employment opportunities; provided, however, that
Executive shall not be obligated to devote more than 50 hours per year to
the performance of such duties. In consideration of Executive's consulting
services, and in consideration of Executive's covenants contained in this
Agreement, the Company shall pay to Executive $_______ during each full
year of the Consulting Period, payable in equal monthly installments. The
Company further agrees to reimburse Executive for all reasonable and
necessary business expenses incurred by Executive in the performance of his
consulting services in accordance with the Company's reimbursement policy,
including, without limitation, the submission of supporting evidence as
reasonably required by the Company.
4. NON-COMPETITION. During the Term, Executive shall not, without the prior
written consent of the Company, directly or indirectly engage in or assist
any activity which is the same as, similar to or competitive with the
Company's Businesses (as defined below) (other than on behalf of the
Company, USA or their respective subsidiaries or affiliates) including,
without limitation, whether such engagement or assistance is an officer,
director, proprietor, employee, partner, investor (other than as a holder
of less than 5% of the outstanding capital stock of a publicly traded
corporation), guarantor, consultant, advisor, agent, sales representative
or other participant, anywhere in the world that the Company or any of its
subsidiaries or affiliates has been engaged, including, without limitation,
the United States, Canada, Mexico, England, Ireland, Scotland, Europe and
Australia. The Company's Businesses are defined as (A) the principal
businesses of the Company as of the date hereof, namely (i) the operation
of Internet websites known as "city guides" which primarily provide local
information and build and/or host infosites for small businesses in a
searchable database format, (ii) the operation of Internet websites which
primarily provide live event ticket sales, and (iii) the operation of
Internet websites which primarily provide classified matchmaking personals
and (B) the principal businesses of the Company at the time that the
Executive ceases to be a Company employee. The determination of the
principal businesses of the Company at the time the Executive ceases to be
a Company employee will be made with reference to the definition of the
principal businesses as of the date hereof in terms of the relative
importance of the businesses to the Company at that time compared to its
other activities.
5. NON-SOLICITATION/NON-HIRE OF EMPLOYEES. Executive recognizes that he will
possess confidential information about other employees of the Company and
its subsidiaries or affiliates relating to their education, experience,
skills, abilities, compensation and benefits, and inter-personal
relationships with suppliers to and customers of the Company and its
subsidiaries or affiliates. Executive recognizes that the information he
will possess about these other employees is not generally known, is of
substantial value to the Company and its subsidiaries or affiliates in
developing their respective businesses and in securing and retaining
customers, and will be acquired by Executive because of Executive's
business position with the Company. Executive agrees that, until the first
anniversary of the date the Executive ceases to be an employee of the
Company, Executive will not without the prior written consent of the
Company, directly or indirectly, solicit or recruit any employee of the
Company or any of its subsidiaries or affiliates for the purpose of being
employed by Executive or by any business, individual, partnership, firm,
corporation or other entity on whose behalf Executive is acting as an
agent, representative or employee and that Executive will not hire any such
employee of the Company. Further, Executive will not convey any such
confidential information or trade secrets about other employees of the
Company or any of its subsidiaries or affiliates to any other person except
within the scope of Executive's duties hereunder.
6. REMEDIES FOR BREACH. Executive expressly agrees and understands that the
remedy at law for any breach by Executive of this Agreement will be
inadequate and that damages flowing from such breach are not usually
susceptible to being measured in monetary terms. Accordingly, it is
acknowledged that upon Executive's violation of any provision of this
Agreement the Company shall be entitled to obtain from any court of
competent jurisdiction immediate injunctive relief and obtain a temporary
order restraining any threatened or further breach as well as an equitable
accounting of all profits or benefits arising out of such violation.
Nothing in this Agreement shall be deemed to limit the Company's remedies
at law or in equity for any breach by Executive of any of the provisions of
this Agreement which may be pursued by or available to the Company.
7. SURVIVAL OF PROVISIONS. The obligations contained in this Agreement shall,
to the extent provided in this Agreement, survive the termination or
expiration of Executive's employment with the Company and, as applicable,
shall be fully enforceable thereafter in accordance with the terms of this
Agreement. If it is determined by a court of competent jurisdiction in any
state that any restriction in this Agreement is excessive in duration or
scope or is unreasonable or unenforceable under the laws of that state, it
is the intention of the parties that such restriction may be modified or
amended by the court to render it enforceable to the maximum extent
permitted by the law of that state. Further, in the event that a court of
competent jurisdiction determines that any portion of this Agreement is in
violation of any law or public policy, only the portions of this Agreement
that violate such law or public policy shall be stricken. All portions of
this Agreement that do not violate any statute or public policy shall
continue in full force and effect. Any court order striking any portion of
this Agreement shall modify the stricken terms as narrowly as possible to
give as much effect as possible to the intentions of the parties under this
Agreement.
8. TERMINATION OF PRIOR AGREEMENTS. This Agreement constitutes the entire
agreement between the parties and terminates and supersedes any and all
prior agreements and understandings (whether written or oral) between the
parties with respect to the subject matter of this Agreement.
9. NOTICES. All notices and other communications under this Agreement shall be
in writing and shall be given by first-class mail, certified or registered
with return receipt requested or hand delivery acknowledged in writing by
the recipient personally, and shall be deemed to have been duly given three
days after mailing or immediately upon duly acknowledged hand delivery to
the respective persons named below:
If to the Company: Ticketmaster Online-Citysearch, Inc.
000 X. Xxxxxxxx Xxxx., Xxxxx 000
Xxxxxxxx, XX 00000
Attention: General Counsel
With a copy to
USA Networks, Inc.
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Attention: General Counsel
If to Executive:
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Either party may change such party's address for notices by notice duly
given pursuant hereto.
10. GOVERNING LAW; JURISDICTION. This Agreement and the legal relations thus
created between the parties hereto shall be governed by and construed under
and in accordance with the internal laws of the State of New York without
reference to the principles of conflicts of laws. Any and all disputes
between the parties which may arise pursuant to this Agreement will be
heard and determined before an appropriate federal court in New York City,
or, if not maintainable therein, then in an appropriate New York state
court. The parties acknowledge that such courts have jurisdiction to
interpret and enforce the provisions of this Agreement, and the parties
consent to, and waive any and all objections that they may have as to,
personal jurisdiction and/or venue in such courts.
11. COUNTERPARTS; INCORPORATION BY REFERENCE. This Agreement may be executed in
several counterparts, each of which shall be deemed to be an original but
all of which together will constitute one and the same instrument.
IN WITNESS WHEREOF, the Company has caused this Agreement to be executed
and delivered by its duly authorized officer and Executive has executed and
delivered this Agreement on February 21, 2000.
TICKETMASTER ONLINE-CITYSEARCH, INC.
By:
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Title:
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[Name]
