EMPLOYMENT AGREEMENT
Execution
Copy
EMPLOYMENT
AGREEMENT
This
Employment Agreement (“Agreement”)
is
made and entered into as of March __, 2008 (“Effective
Date”),
by
and between Tix Corporation, a Delaware corporation (the “Company”),
and
Xxxxx Xxxxxx (“Executive”).
WITNESSETH:
WHEREAS,
the Company desires to employ Executive, and Executive desires to accept
such
employment on the terms and conditions set forth herein.
NOW,
THEREFORE, in consideration of the mutual covenants hereinafter set forth,
the
parties hereto agree as follows:
1. Engagement
and Responsibilities
1.1 Employment.
Upon
the terms and subject to the conditions set forth in this Agreement, and
commencing as of the Effective Date, the Company hereby engages and employs
Executive, with the title and designation “Chief Operating Officer” of Tix
Productions, Inc. (“TPI”).
Executive hereby accepts such engagement and employment pursuant to the terms
hereof.
Executive shall report to the Co- Chief Executive Officers of TPI.
1.2 Term.
Unless
otherwise terminated earlier in accordance with the provisions of this
Agreement, Executive’s employment hereunder shall commence on the Effective Date
and expire on the third anniversary of the Effective Date (the “Term”).
1.3 Duties
and Responsibilities.
Executive shall perform such administrative, managerial and executive duties
for
the Business and TPI as are prescribed by applicable job specifications for,
and
such tasks and responsibilities as are customarily vested in and incidental
to,
the office of Chief Operating Officer, including, without limitation,
implementing the directives and such other duties as may be assigned to him
from
time to time by the Co-Chief Executive Officers of TPI (collectively, the
“Duties”).
1.4 Executive
agrees to devote all of Executive’s business time, energy and efforts to TPI and
will use Executive’s best efforts and abilities faithfully and diligently to
promote TPI. For so long as Executive is employed hereunder, Executive 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 Executive
of the services to the Company otherwise required or contemplated by this
Agreement, the Company expressly acknowledges that Executive may:
1.4.1 make
and
manage personal business investments of Executive’s choice without consulting
the Co-Chief Executive Officers of TPI; and
1.4.2 serve
in
any capacity with any non-profit civic, educational or charitable organization.
1.5 Covenants
of Executive
1.5.1 Best
Efforts.
Executive
shall report directly to the Co-Chief Executive Officers of TPI and shall
devote
his best efforts to TPI. Executive shall perform his duties, responsibilities
and functions hereunder to the best of his abilities in a diligent, trustworthy,
professional and efficient manner.
1.5.2 Records
and Reports.
Executive shall use his best efforts and skills to truthfully, accurately,
and
promptly make, maintain, and preserve all records and reports relating to
TPI,
fully
account for all money, records, equipment, materials, or other property
belonging to TPI
and 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 Co-Chief
Executive Officers of TPI.
Executive agrees that he shall provide
regular reports to the Co-Chief Executive Officers of TPI on all such matters
within the scope of Executive’s employment hereunder.
1.5.3 Rules
and Regulations.
Executive shall obey all orders and special instructions issued by the
Co-Chief
Executive Officers of TPI.
1.5.4 Opportunities.
Executive shall make all business opportunities of which he becomes aware
that
are relevant to TPI and the Business available to the Company, and to no
other
person or entity or to himself individually.
1.5.5 Compliance.
Executive agrees that he shall perform his duties hereunder subject to and
in
compliance with all laws, rules and regulations applicable to TPI (including,
without limitation, any applicable provisions of the Xxxxxxxx-Xxxxx Act,
and any
other laws, rules and regulations applicable to TPI as a wholly owned subsidiary
of a “reporting” company pursuant to federal securities laws).
2. Definitions
For
purposes of this Agreement, the following capitalized terms shall have the
meanings set forth below:
2.1 “Business”
shall
the business and operations of TPI during the Term, comprising the production
and promotion of shows and events, including, without limitation, the historical
business and operations of Magic Arts and NewSpace (in each case, as acquired
by
the Company pursuant to the Merger Agreements), any future shows, events
or
businesses acquired by TPI after the date hereof, and any future shows, events
or businesses acquired by Company through the efforts of Executive during
the
term of Executive’s employment hereunder.
2.2 “Co-Chief
Executive Officers of TPI”
shall
mean, collectively, Xxx X. Xxxxxxxx and Xxxxxx X. Xxxxx.
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2.3 “Company
Group”
shall
mean the Company and all subsidiaries of the Company, including, without
limitation, TPI.
2.4 “Effective
Date”
shall
mean the date of this Agreement as first set forth above.
2.5 “For
Cause”
shall
mean, in the context of a basis for termination of Executive’s employment with
the Company, that:
2.5.1 Executive
breaches any material obligation, duty or agreement under this Agreement,
which
breach is not cured or corrected within 15 days of written notice thereof
from the Company (except for breaches of Sections 1.4, 7
and
8
of this
Agreement, which cannot be cured and for which the Company need not give
any
opportunity to cure); or
2.5.2 Executive
is grossly negligent in the performance of services to TPI, or commits any
act
of personal dishonesty, fraud, breach of fiduciary duty or trust that causes
or
is likely to cause material harm to the Company or TPI; or
2.5.3 Executive
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; or
2.5.4 Executive
commits any act of personal conduct that gives rise to a material risk of
liability under federal or applicable state law for discrimination or sexual
or
other forms of harassment or other similar liabilities to subordinate employees;
or
2.5.5 Executive
commits continued and repeated substantive violations of specific written
directions of the Co-Chief Executive Officers of TPI, which directions are
consistent with this Agreement and Executive’s position as an executive officer,
or continued and repeated substantive failure to perform duties assigned
by or
pursuant to this Agreement; provided that no discharge shall be deemed for
Cause
under this paragraph unless Executive first receives written notice from
the
Company (or TPI) advising him of the specific acts or omissions alleged to
constitute violations of written directions or a material failure to perform
his
duties, and such violations or material failure continue after he shall have
had
a reasonable opportunity to correct the acts or omissions so complained of;
or
2.5.6 Executive
made any material misrepresentation or omission regarding his employment
history, education or experience in connection with his negotiations to become
an employee of the Company.
Prior
to
any such termination by Company pursuant to paragraphs 2.5.2, 2.5.3, 2.5.4,
2.5.5 and 2.5.6 hereof, any of which may constitute a basis for termination
For
Cause, the Company (or TPI) shall advise Executive in writing within fifteen
(15) days of the occurrence of any such circumstances constituting the basis
for
termination For Cause. For the avoidance of doubt, with respect to any
paragraphs 2.5.2, 2.5.3, 2.5.4, and 2.5.5, if Company (or TPI) fails to inform
Executive in writing of the existence of such circumstances forming the basis
for termination For Cause, as provided herein, the Company (and TPI) shall
automatically forfeit the right thereafter to categorize such circumstances
as a
basis for termination For Cause and terminate Executive’s employment hereunder
pursuant to Section 4.3.
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2.6 “Good
Reason”
shall
mean, in the context of a basis for termination by Executive of his employment
hereunder, without Executive’s consent, (i) modification of Executive’s duties
inconsistent in any material respect with Executive's position (including
titles
and reporting relationships), authority, duties or responsibilities as
contemplated by this Agreement, or any other action by the Company (or TPI)
which results in a significant diminution in such position, authority, duties
or
responsibilities; or (ii) any failure by the Company to comply with any of
the
material provisions regarding Executive's salary, bonuses, perquisites and
other
benefits and amounts payable to Executive under this Agreement.
2.7 “Magic
Arts”
shall
mean Magic Arts & Entertainment - Florida, a Florida corporation.
2.8 “Merger
Agreements”
shall
mean, collectively, (i) that certain Agreement and Plan of Merger, dated
as of
February 29, 2008, by and among Tix Corporation, on the one hand, and Magic
Arts
& Entertainment - Florida, Inc., Xxxxxx X. Xxxxx and Xxx X. Xxxxxxxx, on the
other hand; and (ii) that certain Agreement and Plan of Merger, dated as
of the
date of this Agreement, by and between Tix Corporation and NewSpace Acquisition,
Inc., on the one hand, and NewSpace Entertainment, Inc., Xxxx Xxxxxxx, Xxxxx
Xxxxxx and Xxxxx Xxxxxxx, on the other hand.
2.9 “NewSpace”
shall
mean NewSpace Entertainment, Inc., a Utah corporation.
2.10 “Person”
shall
mean an individual or a partnership, corporation, trust, association, limited
liability company, governmental authority or other entity.
3. Compensation
and Benefits
3.1 Base
Salary.
The
Company shall pay to Executive a salary in installments in the same manner
and
at the same times the Company pays salaries to other senior officers of the
Company, but in no event less frequently than equal monthly installments.
Executive’s initial base salary shall be at an annual rate of $185,000 (the
“Base
Salary”).
3.2 Annual
Review.
Executive’s Base Salary shall be reviewed for potential increase by the Company,
based upon the Executive’s performance, not less often than annually. Any
positive adjustments in Base Salary effected as a result of such review shall
be
made by the Company in its sole discretion; provided,
however,
that
during the Term of this Agreement, the Executive shall receive a minimum
increase of three percent (3%) per annum
3.3 Expense
Reimbursement.
Executive shall be entitled to reimbursement from the Company or TPI for
the
reasonable costs and expenses that Executive incurs in connection with the
performance of Executive’s duties and obligations under this
Agreement.
3.4 Benefit
Plans.
Executive shall be entitled to participate in any pension, savings and group
term life, medical, dental, disability and other group benefit plans, which
the
Company makes available to its senior officers generally.
3.5 Vacation.
Executive shall be entitled to four (4) weeks paid vacation each year.
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3.6 Withholding.
The
Company may deduct from any compensation payable to Executive (including
payments made pursuant to Section 3
of this
Agreement in connection with or following termination of employment) amounts
sufficient to cover Executive’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
4. Term
of Employment
Except
as
contemplated in Section 1.2 of this Agreement, Executive’s employment pursuant
to this Agreement shall commence on the Effective Date and shall terminate
on
the earliest to occur of the following:
4.1 upon
the
death of Executive;
4.2 upon
delivery to Executive of written notice of termination by the Company if
Executive shall suffer a physical or mental disability which renders Executive,
in the reasonable judgment of the Chief Executive Officer of the Company,
unable
to perform his duties and obligations under this Agreement for either 60
consecutive days or 120 days in any 12-month period;
4.3 upon
delivery to Executive of written notice of termination by the Company For
Cause;
4.4 upon
delivery to Executive of written notice of termination by the Company without
Cause; or
4.5 upon
delivery to the Company of written notice of termination by Executive for
Good
Reason; provided,
however,
prior
to any such termination by Executive pursuant to this Section 4.5, Executive
shall advise the Company in writing within fifteen (15) days of the occurrence
of any circumstances that would constitute Good Reason, and the Company does
not
cure such circumstances within 15 days following receipt of Executive’s written
notice.
For the
avoidance of doubt, with respect to any specific set of circumstances that
may
constitute a basis for Good Reason, if Executive fails to inform the Company
in
writing, as provided herein, of the existence of such circumstances, Executive
shall automatically forfeit the right thereafter to categorize such
circumstances as Good Reason and terminate his employment hereunder pursuant
to
this Section 4.5.
5. Compensation
and Benefits Following Termination of Employment
5.1 If
Executive’s employment is terminated pursuant to Section 4.1
(death),
Section 4.2
(disability), or Section 4.3 (by the Company For Cause), Executive shall
be
entitled to salary accrued through the date of termination and no other benefits
other than as required under the terms of employee benefit plans in which
Executive was participating as of the date of termination.
5.2 If
Executive’s employment is terminated by the Company pursuant to
Section 4.4
(without
Cause) or by Executive pursuant to Section 4.5 (Good Reason), Executive shall
be
entitled to continue to receive the salary at the rate in effect upon the
date
of termination of employment for six (6) months following the date of
termination of employment, payable in accordance with the Company’s normal
payroll practices and policies, as if Executive’s employment had not
terminated.
Executive shall be entitled to no other post-employment benefits except for
benefits payable under applicable benefit plans in which Executive is entitled
to participate pursuant to Section 3.3 hereof through the date of termination,
subject to and in accordance with the terms of such plans
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5.3 As
a
condition to Executive’s right to receive any benefits pursuant to Section
5.2
of this
Agreement:
5.3.1 Executive
must execute and deliver to the Company a written release in form and substance
satisfactory to the Company, of any and all claims against the Company Group
and
all directors and officers of the Company Group with respect to all matters
arising out of Executive’s employment hereunder, or the termination thereof
(other than claims for entitlements under the terms of this Agreement or
plans
or programs of the Company in which Executive has accrued a benefit);
and
5.3.2 Executive
must not breach any of his covenants and agreements under Sections 7 and
8 of
this Agreement, which continue following termination of his
employment.
5.4 In
the
event of termination of Executive’s employment pursuant to
Section 4.3
(by the
Company For Cause), and subject to applicable law and regulations, the Company
shall be entitled offset against any payments due Executive the loss and
damage,
if any, which shall have been suffered by the Company as a result of the
acts or
omissions of Executive giving rise to termination under
Section 4.3.
The
foregoing shall not be construed to limit any cause of action, claim or other
rights, which the Company may have against Executive in connection with such
acts or omissions.
5.5 Executive
acknowledges that the Company has the right to terminate Executive’s employment
without Cause, and both parties hereby agree that such termination shall
not be
a breach of this Agreement or any other express or implied agreement between
the
Company and Executive. Accordingly, in the event of such termination, each
of
the Company and Executive shall be entitled only to those benefits and rights
specifically provided for in this Agreement in the event of such termination,
and shall not have any other rights to any compensation or damages for breach
of
contract.
6. Representations
and Warranties of Executive
Executive
represents and warrants to the Company that:
6.1 Executive
has full power and authority to enter into and fully perform this Agreement,
and
this Agreement does not conflict with or violate any other agreement,
obligation, order or other restriction to which Executive is
subject.
6.2 Executive
is not a party to any litigation, nor is aware of any threatened action,
proceeding or litigation which (a) could in any way involve the Company or
(b) will result in Executive’s inability to perform his obligations
hereunder, including any action which could be reasonably foreseen to require
a
significant amount of Executive’s time.
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6.3 This
Agreement has been duly executed by Executive and constitutes a binding and
valid obligation of Executive, enforceable in accordance with its
terms.
6.4 Executive
has
fully
disclosed in writing any debarment, suspension or material sanctions imposed
within the last ten years by any federal or state governmental agency or
instrumentality or government-sponsored enterprise on either Executive
or
any
company for which Executive
was
a
senior officer with respect to operations under Executive
supervision.
6.5 Executive
has
completely and accurately disclosed to the Company, pursuant to Exhibit
A
attached
hereto, all legal proceedings, orders, bankruptcies, and judgments, which
Executive
has
been
the subject of, during the past five years.
7. Covenant
Not To Solicit;
Non-Compete
If
Executive’s employment is terminated by the Company pursuant to Section 4.3 (for
Cause) or this Agreement expires upon its terms, then during the period from
the
date on which Executive’s employment with the Company is terminated through the
fifth anniversary of such date, except pursuant to the prior written consent
of
the Chief Executive Officer of the Company, Executive shall not, directly
or
indirectly, either as employer, consultant, advisor, agent, investor, principal,
partner, stockholder (except as the holder of less than 1% of the issued
and
outstanding stock of a publicly held corporation), or in any other individual
or
representative capacity, (i) engage or participate in the production or
promotion of any show or event presently owned or produced by the Company
or TPI
(including, without limitation, all shows and events acquired by the Company
pursuant to the Merger Agreements), or hereafter owned, acquired, or produced
by
the Company or TPI during Executive’s employment pursuant to this Agreement (all
such shows and events, the “Non-Compete
Events”);
and
(ii) engage or participate in the exhibition, presentation or promotion of
the
Non-Compete Events in Akron, Boise, Kalamazoo, Salt Lake City, Xxxxxx, Fresno
and Albuquerque, or any other markets in which the Company or TPI exhibits,
presents or promotes the Non-Compete Events during Executive’s employment
pursuant to this Agreement.
8. Confidentiality
Executive
agrees not to disclose or use at any time (whether during or after Executive’s
employment with the Company) for Executive’s own benefit or purposes or the
benefit or purposes of any other Person any information, data, trade secrets
and
confidential or proprietary information relating to the business, operations,
assets and liabilities of the Company Group, including without limitation
all
customers and/or suppliers’ identities, characteristics and agreements,
financial information and projections, employee files, business and marketing
plans, sales activities, pricing methodologies, credit and financial data
and
financial methods (the “Confidential
Material”);
provided,
however,
that
the foregoing shall not apply to information which is not unique to the Company
Group or which is generally known to the industry or the public other than
as a
result of Executive’s breach of this covenant. Executive agrees that upon
termination of his employment with the Company for any reason, he will return
to
the Company immediately all memoranda, books, papers, plans, information,
letters and other data, and all copies thereof or therefrom, in any way relating
to the business of the Company Group, except that he may retain personal
notes,
notebooks, diaries, rolodexes and addresses and phone numbers. Executive
further
agrees that he will not retain or use for his account at any time any trade
names, trademark or other proprietary business designation used or owned
in
connection with the business of any member of the Company Group.
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9. Specific
Performance.
Executive acknowledges and agrees that the Company’s remedies at law for a
breach or threatened breach of any of the provisions of Sections 1.4,
7
or
8
hereof
would be inadequate and, in recognition of this fact, Executive agrees that,
in
the event of such a breach or threatened breach, in addition to any remedies
at
law, the Company, without posting any bond, shall be entitled to obtain
equitable relief in the form of specific performance, temporary restraining
order, temporary or permanent injunction or any other equitable remedy which
may
then be available.
10. Arbitration
of Disputes
10.1 Except
as
set forth in Section 10.2
below,
any controversy or claim between the Company and Executive relating to
Executive’s employment with the Company, including but not limited to those
arising out of or relating to this Agreement and those involving conduct
alleged
to be in violation of local, state or federal statutory or common law
(including, but not limited to, any claim of unlawful discrimination,
harassment, retaliation, breach of fiduciary duty, misappropriation of trade
secrets and unfair competition), shall be settled by final and binding
arbitration. The arbitration shall be conducted in accordance with the National
Rules for the Resolution of Employment Disputes of the American Arbitration
Association (“AAA”),
and a
judgment upon any award rendered by the arbitrator may be entered in any
court
having jurisdiction. The arbitration shall be heard in Los Angeles, California.
California Code of Civil Procedure Section 1283.05, which provides for certain
discovery rights, shall apply to any arbitration. The arbitrator shall apply,
as
applicable, federal or California substantive law and law of remedies. The
arbitrator’s remedial authority shall be no greater than that which is available
under the statutory or common law theory asserted. The Company shall bear
the
cost of the arbitrator’s fees and other costs (which do not include attorneys’
fees) unique to arbitration in compliance with applicable law.
10.2 Subsection 10.1
above
does not apply to or cover the following claims: (a) claims for workers’
compensation benefits; (b) claims for unemployment compensation benefits;
(c)
claims brought in court to compel arbitration under this Agreement, to enforce
an arbitration award or to obtain preliminary injunctive and/or other equitable
relief in support of claims to be prosecuted in an arbitration by either
party;
and (d) claims based upon a pension or benefit plan which contains an
arbitration or other dispute resolution procedure, in which case the provisions
of such plan shall apply.
11. Miscellaneous
11.1 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, addressed to the following
addresses:
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11.1.1 If
to the Company, to:
00000
Xxxxxxx Xxxxx, Xxxxx 000
Xxxxxx
Xxxx, XX 00000
Tel:
(000) 000-0000
Fax:
(000) 000-0000
Attn:
Xxxxx Xxxxxxx
with
a copy, which shall not constitute notice to:
Xxxx
& Xxxxx
0000
Xxxxxxx Xxxx Xxxx, Xxxxx 0000
Xxx
Xxxxxxx, XX 00000
Attention:
Xxxxx Xxxxxxxx
Tel:
(000) 000-0000
Fax:
(000) 000-0000
|
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11.1.2 If
to Executive, to:
to
Executive’s address as set forth on the books and records of the
Company
with
a copy, which shall not constitute notice to:
Holland
& Xxxx LLP
Attn:
Xxxxxxx Xxxxxxx
00
X. Xxxxx Xxxxxx, Xxxxx 0000
Xxxx
Xxxx Xxxx, XX 00000
|
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 (or
on
the seventh day if sent to or from an address outside the United States).
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.
11.2 Entire
Agreement.
This
Agreement contains the sole and entire agreement and understanding of the
parties with respect to the entire subject matter of this Agreement, and
any and
all prior discussions, negotiations, commitments and understandings, whether
oral or otherwise. No representations, oral or otherwise, express or implied,
other than those contained in this Agreement have been relied upon by any
party
to this Agreement. Notwithstanding the foregoing, Executive acknowledges
that
the Company has relied on his resume and other documents which may have been
provided by Executive, and oral statements regarding Executive’s employment
history, education and experience, in determining to enter into the Agreement,
and material misrepresentations (or omissions) in connection with such documents
may constitute the basis of termination For Cause, as contemplated by the
definition of For Cause.
-9-
11.3 Severability.
In the
event that any provision or portion of this Agreement shall be determined
to be
invalid or unenforceable for any reason, in whole or in part, the remaining
provisions of this Agreement shall be unaffected thereby and shall remain
in
full force and effect to the fullest extent permitted by law.
11.4 Governing
Law.
This
Agreement shall be construed in accordance with the laws of the State of
California without giving effect to the principles of conflicts of law
thereof.
11.5 Captions.
The
various captions of this Agreement are for reference only and shall not be
considered or referred to in resolving questions of interpretation of this
Agreement.
11.6 Counterparts.
This
Agreement may be executed in any number of counterparts, each of which shall
be
deemed to be an original, but all of which together shall constitute one
and the
same instrument.
11.7 Business
Day.
If the
last day permissible for delivery of any notice under any provision of this
Agreement, or for the performance of any obligation under this Agreement,
shall
be other than a business day, such last day for such notice or performance
shall
be extended to the next following business day (provided, however, under
no
circumstances shall this provision be construed to extend the date of
termination of this Agreement).
11.8 Attorneys’
Fees.
In any
arbitration proceeding or court action relating to this Agreement or Executive’s
employment with the Company, the prevailing party shall be entitled to recover
its reasonable attorneys’ fees and costs.
11.9 Advice
from Independent Counsel.
The
parties hereto understand that this Agreement is legally binding and may
affect
such party’s rights. Each party represents to the other that it has received
legal advice from counsel of its choice regarding the meaning and legal
significance of this Agreement to which it is a party and that it is satisfied
with its legal counsel and the advice received from it.
11.10 Judicial
Interpretation.
Should
any provision of this Agreement require judicial interpretation, it is agreed
that a court interpreting or construing the same shall not apply a presumption
that the terms hereof shall be more strictly construed against any Person
by
reason of the rule of construction that a document is to be construed more
strictly against the Person who itself or through its agent prepared the
same,
it being agreed that all Parties have participated in the preparation of
this
Agreement.
11.11 Waiver
of Jury Trial.
IF
NOTWITHSTANDING THE AGREEMENT THAT ALL DISPUTES BE SUBMITTED TO BINDING
ARBITRATION, A DISPUTE IS SUBMITTED TO A COURT, EACH PARTY HERETO WAIVES
THE
RIGHT TO A TRIAL BY JURY IN ANY DISPUTE IN CONNECTION WITH OR RELATING TO
THIS
AGREEMENT, ANY RELATED AGREEMENT OR ANY MATTERS DESCRIBED OR CONTEMPLATED
HEREIN
OR THEREIN, AND AGREE TO TAKE ANY AND ALL ACTION NECESSARY OR APPROPRIATE
TO
EFFECT SUCH WAIVER. IN THE EVENT OF LITIGATION, THIS AGREEMENT MAY BE FILED
AS
WRITTEN CONSENT TO A TRIAL BY THE COURT.
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11.12 Section
409A.
Notwithstanding the timing of payments set forth in this Agreement, if the
Company determines that Executive is a “specified employee” within the meaning
of Section 409A of the Internal Revenue Code of 1986, as amended, and that,
as a
result of such status, any portion of the payment under this Agreement would
be
subject to additional taxation, the Company will delay paying any portion
of
such payment until the earliest permissible date on which payments may commence
without triggering such additional taxation (with such delay not to exceed
six
months), with the first such payment to include the amounts that would have
been
paid earlier but for the above delay.
IN
WITNESS WHEREOF, this Agreement has been made and entered into as of the
date
and year first above written.
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TIX
CORPORATION,
a
Delaware corporation
|
||
| By: | ||
| Title: | ||
| EXECUTIVE | ||
| Xxxxx Xxxxxx | ||
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EXHIBIT
A
Legal
Proceedings
Executive
hereby represents and warrants to the Company that (i) there has not been
any
bankruptcy petition filed by or against any business of which Executive was
a
general partner or executive officer at the time of bankruptcy or within
two
years prior thereto; (ii) Executive has not been convicted in a criminal
proceeding or been the subject of a pending criminal proceeding (excluding
traffic violations and other minor traffic offenses); and (iii) Executive
has
not been the subject of any order, judgment or decree, not subsequently
reversed, suspended or vacated, of any court of competent jurisdiction,
permanently or temporarily enjoining, barring, suspending or otherwise limiting
Executive’s involvement in any type of business, securities or banking
activities; Executive has not been found by a court of competent jurisdiction
in
a civil action, by the Securities and Exchange Commission or the Commodity
Futures Trading Commission to have violated a federal or state securities
or
commodities laws, where such judgment has not been reversed, suspended or
vacated.
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