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EXHIBIT 10.47
EMPLOYMENT AGREEMENT
AGREEMENT, dated as of February 1, 1997 between Ticketmaster
Corporation, an Illinois corporation (the "Company"), and Xxxxxx Xxxxxxx
("Executive").
W I T N E S S E T H:
WHEREAS, prior to the date hereof, Executive has been employed by the
Company and/or certain of its subsidiaries or affiliates in various management
positions; and
WHEREAS, the Company is desirous of continuing to employ Executive, and
Executive is desirous of continuing to be employed by the Company, on the terms
and subject to the conditions set forth in this Agreement;
NOW, THEREFORE, in consideration of the premises, the mutual covenants
and agreements contained herein and other good and valuable consideration, the
receipt and sufficiency of which are hereby mutually acknowledged, the parties
hereto agree as follows:
1. DEFINITIONS. The following terms shall have the indicated meanings
when used in this Agreement, unless the context requires otherwise:
(a) "BASE SALARY AMOUNT" shall mean $155,000 during the first
Contract Year, $165,000 during the second Contract Year, $175,000 during
the third Contract Year and $185,000 during the fourth Contract Year.
(b) "BOARD OF DIRECTORS" shall mean the Board of Directors of the
Company.
(c) "CAUSE" shall have the meaning ascribed to that term in
Section 7.
(d) "CONSULTING PERIOD" shall have the meaning ascribed to that
term in Section 9(a).
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(e) "CONTRACT YEAR" shall mean each year during the term hereof
commencing February 1 and ending on the immediately following January
31, except that the first Contract Year shall commence on the date
hereof and end on January 31, 1998.
(f) "CUSTOMER" shall have the meaning ascribed to that term in
Section 9(d).
(g) "DISABILITY" shall have the meaning ascribed to that term in
Section 6(a).
(h) "DISABILITY PERIOD" shall have the meaning ascribed to that
term in Section 6(a).
(i) "PROPRIETARY INFORMATION OF THE COMPANY" shall have the
meaning ascribed to that term in Section 10(a).
(j) "TICKETMASTER BUSINESSES" shall have the meaning ascribed to
that term in Section 9(b).
2. EMPLOYMENT. The Company hereby employs Executive, and Executive
hereby accepts employment with the Company, on the terms and subject to the
conditions set forth herein.
3. TERM OF EMPLOYMENT. The term of employment hereunder shall commence
on the date hereof and end on January 31, 2001, subject to early termination as
herein provided.
4. POSITION AND DUTIES. Executive shall serve as a Vice President of the
Company. Subject to the authority of the Board of Directors and the Chief
Executive Officer of the Company, the Executive shall have all of the powers and
duties incident to the office of Vice President and such other powers and duties
as may from time to time be prescribed by the Board of Directors or the Chief
Executive Officer of the Company. Executive agrees to serve without further
compensation, if elected or appointed thereto, as an officer or a director of
any of the Company's domestic and foreign subsidiaries and affiliates.
5. EXCLUSIVE DUTIES. During Executive's employment by the Company,
Executive shall devote his entire working time, attention and energies to the
business of the Company and will not take any actions of the kind described in
Sections 9(b), 9(c) and 9(d).
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6. COMPENSATION AND OTHER BENEFITS.
(a) BASE SALARY. During each Contract Year of the term hereof,
the Company shall pay to Executive the Base Salary Amount. The Base
Salary Amount shall be paid to Executive in accordance with the
Company's regular payroll practices with respect to senior management
compensation.
In the event that Executive shall become disabled as a result of
bodily injury or physical or mental illness (whether or not
occupational) to such extent that in the sole opinion of the Board of
Directors, based upon competent medical advice, he can no longer perform
the duties of Vice President of the Company (a "Disability"), the
Company shall only be obligated to continue to pay the Base Salary
Amount to Executive for the 120-day period immediately following the
date of Disability (the "Disability Period"). The right to receive
salary payments during the Disability Period, if applicable, shall
survive any termination of employment by virtue of Disability pursuant
to Section 7.
(b) ANNUAL PERFORMANCE BONUSES. During each Contract Year, the
Company shall pay Executive an annual performance bonus as determined by
the Board of Directors or its Compensation Committee in its sole
discretion, the determination of which shall be based upon such
standards, guidelines and factual circumstances as the Board of
Directors or its Compensation Committee deems relevant, including,
without limitation, the operating results for the Company during such
Contract Year, the importance of the efforts of Executive in achieving
such operating results and the achievement by the Company and/or
Executive of performance goals previously established by the Board of
Directors or its Compensation Committee for such Contract Year;
provided, however, that in no event shall the bonus for any full
Contract Year of the term hereof be less than $27,000 for the first
Contract Year, $27,000 for the second Contract Year, $30,000 for the
third Contract Year and $30,000 for the fourth Contract Year.
(c) EXPENSES. Executive shall be entitled to receive prompt
reimbursement from the Company for all documented business expenses
incurred by him in the performance of his
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duties hereunder, provided that Executive properly accounts therefor in
accordance with the Company's reimbursement policy, including, without
limitation, the submission of supporting evidence as reasonably
requested by the Company.
(d) FRINGE BENEFITS. During the term hereof, Executive shall be
entitled (i) to participate in and receive benefits substantially
similar to what Executive is currently receiving from the Company so
long as such benefits are provided by the Company to similar level
management employees, (ii) to continue to receive his existing
automobile allowance so long as he continues to use the automobile being
used by him as of the date of this Agreement, and (iii) at such time as
Executive ceases to use the automobile being used by him as of the date
of this Agreement, to receive an automobile allowance in the amount of
$600.00 per month.
(e) VACATIONS. During the term hereof, Executive shall be
entitled to sick leave and paid holidays consistent with the Company's
sick leave and holiday policy for senior management and up to three
weeks paid vacation during each Contract Year (or such other vacation
time as is consistent with the Company's policy for senior management).
7. TERMINATION. The Company or Executive may terminate the employment of
Executive hereunder upon the occurrence of a Disability (as defined in Section
6(a)) for a period of no less than 120 days during any consecutive twelve-month
period. The Company may also terminate the employment of Executive hereunder
upon Executive's death or for Cause. For purposes hereof, "Cause" shall mean (i)
fraud, theft, misappropriation of funds or conviction of a felony, (ii)
Executive's engagement in illegal conduct tending to place Executive or the
Company in disrepute, (iii) dereliction or gross misconduct in Executive's
performance of his duties as an employee of the Company or the failure of
Executive to perform his duties in a manner consistent with the instructions of
the Board of Directors or the Chief Executive Officer of the Company or (iv)
violation by Executive of any of his material covenants contained in this
Agreement, including, without limitation, Section 10.
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8. DEVELOPMENTAL RIGHTS. Executive agrees that any developments by way
of invention, design, copyright, trademark or other matters which may be
developed or perfected by him during the term hereof, and which relate to the
business of the Company or its subsidiaries or affiliates, shall be the property
of the Company without any interest therein by Executive, and he will, at the
request and expense of the Company, apply for and prosecute letters patent
thereon in the United States or in foreign countries if the Company so requests,
and will assign and transfer the same to the Company together with any letters
patent, copyrights, trademarks and applications therefor; provided, however,
that the foregoing shall not apply to an invention that Executive develops
entirely on his own time without using the Company's equipment, supplies,
facilities or trade secret information, except for those inventions that either:
(a) relate at the time of conception or reduction to practice of
the invention to the Company's business, or actual or demonstrably
anticipated research or development of the Company; or
(b) result from any work performed by Executive for the Company.
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9. CONSULTING.
(a) CONSULTING SERVICES. During the six-month 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, as an independent consultant, 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,
consultant 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 as may be reasonably required to carry out his
duties hereunder without jeopardizing Executive's then full-time,
non-Ticketmaster Business employment opportunities; provided, however,
that Executive shall not be obligated to devote more than 50 hours to
the performance of such duties. In consideration of Executive's
consulting services, and in consideration of Executive's covenants
contained in this Section 9, the Company shall pay to Executive $15,000
during 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.
(b) COVENANT NOT TO COMPETE. During the Consulting Period,
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 Ticketmaster Businesses
(other than on behalf of the Company or any of its subsidiaries or
affiliates) including, without limitation, whether such engagement or
assistance is as 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
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any of its subsidiaries or affiliates has been engaged, including,
without limitation, the United States, Canada, Mexico, England, Ireland,
Scotland, Europe and Australia. Nothing herein shall limit Executive's
ability to own interests in or manage entities which sell tickets as an
incidental part of their primary businesses (e.g. cable networks,
on-line computer services, sport teams, arenas, hotels, cruise lines,
theatrical and movie productions and the like) and which do not hold
themselves out generally as competitors of the Company and its
subsidiaries and affiliates. The "Ticketmaster Businesses" shall mean
the computerized sale of tickets for sporting, theatrical, cinematic,
live theatrical, musical or any other events on behalf of various venues
and promoters through distribution channels currently being utilized by
the Company or any of its subsidiaries or affiliates (as such term is
defined in Rule 405 of Regulation C promulgated under the Securities Act
of 1933, as amended).
(c) SOLICITATION OF EMPLOYEES. During the Consulting Period,
Executive shall not (i) directly or indirectly induce or attempt to
induce (regardless of who initiates the contact) any person then
employed (whether part-time or full-time) by the Company or any of its
subsidiaries or affiliates, whether as an officer, employee, consultant,
adviser or independent contractor, to leave the employ of the Company or
to cease providing or otherwise alter the services then provided to the
Company or to any of its subsidiaries or affiliates or (ii) in any other
manner seek to engage or employ any such person (whether or not for
compensation) as an officer, employee, consultant, adviser or
independent contractor in connection with the operation of any business
which is the same as or similar to any of the Ticketmaster Businesses.
(d) NON-SOLICITATION OF CUSTOMERS. During the Consulting Period,
Executive shall not solicit any Customers of the Company or any of its
subsidiaries or affiliates or encourage (regardless of who initiates the
contact) any such Customers to use the facilities or services of any
Competitor of the Company or any of its subsidiaries or affiliates.
"Customer" shall mean any person who engages the Company or any of its
subsidiaries or affiliates to sell, on its behalf as agent, tickets to
the public.
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10. CONFIDENTIALITY. Executive shall not at any time during or after
termination of employment disclose (except as may be required by law) or use,
except in the pursuit of the business of the Company or any of its subsidiaries
or affiliates, any Proprietary Information of the Company. "Proprietary
Information of the Company" means all information known or intended to be known
only to employees of the Company or any of its subsidiaries or affiliates in a
confidential relationship with the Company or any of its subsidiaries or
affiliates relating to technical matters pertaining to the Ticketmaster
Businesses, but shall not include any information within the public domain.
Executive agrees not to remove any documents, records or other information from
the premises of the Company or any of its subsidiaries or affiliates containing
any such Proprietary Information, except in the pursuit of the business of the
Company or any of its subsidiaries or affiliates, and acknowledges that such
documents, records and other information are the exclusive property of the
Company or its subsidiaries or affiliates. Upon termination of Executive's
employment, Executive shall immediately return all Proprietary Information of
the Company and all copies thereof to the Company.
11. GENERAL PROVISIONS.
(a) EXPENSES. All costs and expenses incurred by either of the
parties in connection with this Agreement and any transactions
contemplated hereby shall be paid by that party.
(b) NOTICES. All notices, demands and other communications
hereunder shall be in writing and shall be given or made (and shall be
deemed to have been duly given or made upon receipt) by delivery in
person, by overnight courier service, by cable, by telecopy, by
telegram, by telex or by registered or certified mail to the respective
parties at the following addresses (or at such other address for a party
as shall be specified in a notice given in accordance with this Section
11(b)):
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(i) If to the Company:
Ticketmaster Corporation
0000 Xxxxxx Xxxxxxxxx
Xxxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: Chairman of the Board
Telecopy No.: (000) 000-0000
With a copy to:
Xxxx, Xxxxxx & Xxxxxxxxx
Xxx Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx Xxxxx Gerber
Telecopy No.: (000) 000-0000
(ii) If to Executive:
Xxxxxx Xxxxxxx
0000 Xxxxxxxx Xxxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Telecopy No.: (___) ________________
(c) HEADINGS. The descriptive headings contained in this
Agreement are for convenience of reference only and shall not affect in
any way the meaning or interpretation of this Agreement.
(d) SUCCESSORS; BINDING AGREEMENT. This Agreement shall be
binding upon and inure to the benefit of the parties hereto and their
respective heirs, devisees, legatees, executors, administrators,
successors and personal or legal representatives. If Executive is
domiciled in a community property state or a state that has adopted the
Uniform Marital Property Act or equivalent or if Executive is domiciled
in a state that grants to his spouse any other marital rights in
Executive's assets (including, without limitation, dower rights or a
right to elect against Executive's will or to claim a forced share of
Executive's estate), this Agreement shall also inure to the benefit of,
and shall also be binding upon, his spouse. If Executive should die
while any amounts would still be payable to his hereunder if he had
continued to live, all such amounts, unless otherwise provided herein,
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shall be paid in accordance with the terms of this Agreement to
Executive's designee or, if there be no such designee, to Executive's
heirs, devisees, legatees or executors or administrators of Executive's
estate, as appropriate.
(e) SEVERABILITY. If any provision of this Agreement is held to
be illegal, invalid or unenforceable under existing or future laws
effective during the term of this Agreement, such provisions shall be
fully severable, the Agreement shall be construed and enforced as if
such illegal, invalid or unenforceable provision had never comprised a
part of this Agreement, and the remaining provisions of this Agreement
shall remain in full force and effect and shall not be affected by the
illegal, invalid or unenforceable provision or by its severance from
this Agreement. Furthermore, in lieu of such illegal, invalid or
unenforceable provision, there shall be added automatically as part of
this Agreement a provision as similar in terms to such illegal, invalid
or unenforceable provision as may be possible and be legal, valid and
enforceable.
(f) ENTIRE AGREEMENT. This Agreement constitutes the entire
agreement of the parties hereto with respect to the subject matter
hereof and supersedes all prior agreements and understandings, both
written and oral, between the Company and Executive with respect to the
subject matter hereof.
(g) ASSIGNMENT. This Agreement and the rights and duties
hereunder are not assignable by Executive. This Agreement and the rights
and duties hereunder may not be assigned by the Company without the
express written consent of Executive (which consent may be granted or
withheld in the sole discretion of Executive), except that such consent
shall not be required in order for the Company to assign this Agreement
or the rights or duties hereunder to an affiliate (as such term is
defined in Section 9(b)) of the Company or to a third party in
connection with the merger or consolidation of the Company with, or the
sale of all or substantially all of the assets or business of the
Company to, that third party.
(h) AMENDMENT; WAIVER. This Agreement may not be amended or
modified except by an instrument in writing signed by, or on behalf of,
the Company and Executive. Either party
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to this Agreement may (a) extend the time for the performance of any of
the obligations or other acts of the other party or (b) waive compliance
with any of the agreements or conditions of the other party contained
herein. Any such extension or waiver shall be valid only if set forth in
an instrument in writing signed by the party to be bound thereby. Any
waiver of any term or condition shall not be construed as a waiver of
any subsequent breach or a subsequent waiver of the same term or
condition, or a waiver of any other term or condition, of this
Agreement. The failure of any party to assert any of its rights
hereunder shall not constitute a waiver of any such rights.
(i) GOVERNING LAW. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of Illinois,
applicable to contracts executed in and to be performed entirely within
that state.
(j) JURISDICTION AND VENUE. The parties hereto agree that all
actions or proceedings initiated by either party hereto and arising
directly or indirectly out of this Agreement which are brought pursuant
to judicial proceedings shall be litigated in a Federal or state court
located in the State of Illinois. The parties hereto expressly submit
and consent in advance to such jurisdiction and agree that service of
summons and complaint or other process or papers may be made by
registered or certified mail addressed to the relevant party at the
address to which notices are to be sent pursuant to Section 11(b) of
this Agreement. The parties hereto waive any claim that a Federal or
state court located in the State of Illinois is an inconvenient forum or
an improper forum based on lack of venue.
(k) EQUITABLE RELIEF. Executive acknowledges that the covenants
contained in Sections 9 and 10 are reasonable and necessary to protect
the legitimate interests of the Company, that in the absence of such
covenants the Company would not have entered into this Agreement, that
any breach or threatened breach of such covenants will result in
irreparable injury to the Company and that the remedy at law for such
breach or threatened breach would be inadequate. Accordingly, the
Executive agrees that the Company, in addition to any other rights or
remedies which it may have, shall be entitled
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to seek such equitable and injunctive relief as may be available from
any court of competent jurisdiction to restrain the Executive from any
breach or threatened breach of such covenants.
(l) ATTORNEYS' FEES. If any legal action or other proceeding is
brought for the enforcement of this Agreement, the prevailing party
shall be entitled to recover reasonable attorneys' fees and other costs
incurred in that action or proceeding, in addition to any other relief
to which it may be entitled.
(m) COUNTERPARTS. This Agreement may be executed in one or more
counterparts, and by the parties hereto in separate counterparts, each
of which when executed shall be deemed to be an original while all of
which taken together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the Company and Executive have executed this
Agreement as of the date and year first written above.
TICKETMASTER CORPORATION
By:
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Title:
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Xxxxxx Xxxxxxx
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