EXHIBIT 10.26
NON-COMPETITION AGREEMENT
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THIS NON-COMPETITION AGREEMENT (the "Agreement") is made and entered
into this 12th day of August, 1998, by and among CitySearch, Inc., a Delaware
corporation (the "Company"), Ticketmaster Corporation, an Illinois corporation
("Ticketmaster"), Ticketmaster Multimedia Holdings, Inc., a Delaware corporation
("TMOL"), and Xxxxxx Xxxxxx ("Executive"), with reference to the following
facts:
A. TMOL and CitySearch are agreeing to combining their businesses
pursuant to an Agreement and Plan of Reorganization (the "Merger
Agreement") dated as of the date hereof.
B. Executive is the President and a stockholder of the Company.
C. It is a condition to Ticketmaster's and TMOL's willingness to agree to
proceed with the business combination that TMOL and Executive enter
into this Agreement.
D. It is a condition to Executive's willingness to enter into this
Agreement that Ticketmaster agree to be bound by the terms hereof.
NOW, THEREFORE, in consideration of the premises, mutual covenants,
and agreements contained herein and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties agree as
follows:
1. COVENANT NOT TO COMPETE: For the period from and including the
date of this Agreement to the date that is two years and six
months from the date of this Agreement, Executive will not,
without prior written consent of TMOL and the Company, directly
engage in or assist any activity that is the same as or that
materially competes with the Business (other than on behalf of
the Company, TMOL or any of their respective 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 or
other entity), guarantor, consultant, advisor, agent, sales
representative or other participant, anywhere in the world;
provided that if such activity of Executive is with Digital City,
Inc. or the Sidewalk division of Microsoft Corporation, such
period shall extend to the date three years and sixth months from
the date of this Agreement (such two and one-half or three and
one-half year periods, as applicable, being referred to herein as
the "Term"). The "Business" shall mean (i) the production and
delivery of local city guides on the World Wide Web (or its
equivalent) providing arts and entertainment, food and drink, or
yellow pages business information and (ii) sale of tickets to
live events through any distributed channels. As consideration
for this Agreement,
Ticketmaster shall pay to Executive in cash (the "Payment") the
sum of $ 250,000 immediately upon the signing of this Agreement;
provided, that, in the event that the Merger Agreement is
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terminated prior to the Effective Time (as such term is defined
in the Merger Agreement), Executive shall, as soon as reasonably
practicable, repay to Ticketmaster that portion of the Payment
actually received by Executive (i.e., less any withholding taxes
or other amounts deducted or withheld). Executive acknowledges
and agrees that the Payment constitutes adequate independent
consideration for Executive's obligations hereunder.
2. SOLICITATION OF EMPLOYEES: For a period of one year following
the date of termination of Executive's employment with the
Company for any reason, Executive shall not directly or
indirectly solicit or attempt to solicit any senior employee of
the Company, or TMOL, or any of their respective subsidiaries to
leave the employ of the Company or TMOL or to cease providing or
otherwise alter the services then provided to the Company, TMOL
or any of their respective subsidiaries or affiliates in
connection with the operation of any business (whether or not the
same as or similar to the Business).
3. NON-SOLICITATION OF CUSTOMERS: For a period of one year
following the date of termination of Executive's employment with
the Company for any reason, Executive shall not, directly or
indirectly, on his own behalf or otherwise, solicit any
customers, advertisers, or other clients of the Company or TMOL
or any of their respective subsidiaries or affiliates or
encourage any such customers, advertisers, or clients to use the
facilities or services of any competitor of the Company, TMOL or
any of their respective subsidiaries.
4. EQUITABLE RELIEF: Executive acknowledges that the covenants
contained in Paragraphs 1, 2 and 3, hereof are reasonable and
necessary to protect the legitimate interests of TMOL and the
Company, that in the absence of such covenants, TMOL would not
have agreed to proceed with the Merger, that any breach or
threatened breach of such covenants will result in irreparable
injury to TMOL, and the Company and that the remedy at law for
such breach or threatened breach would be inadequate.
Accordingly, the Executive agrees that each or either of TMOL or
the Company, in addition to any other rights or remedies which it
may have, shall be entitled 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.
5. COMPLETE AGREEMENT; MODIFICATIONS: Except as specifically
provided herein, this Agreement and any documentation referred to
herein
constitute the parties' entire agreement with respect to the
subject matter hereof and supersede all agreements,
representations, warranties, statements, promises, and
understandings, whether oral or written with respect to the
subject matter hereof. This Agreement may be executed in
counterparts and may not be amended, altered, or modified except
by a writing signed by the parties; provided that this Agreement
may be terminated at the Executive's discretion if the Payment is
not made within two days following the execution of the Merger
Agreement.
6. GOVERNING LAW; JURISDICTION: All questions with respect to this
Agreement and the rights and liabilities of the parties will be
governed by the laws of the State of Delaware. 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 Delaware, or, if not maintainable therein, then
in an appropriate Delaware State Court. The parties hereto
acknowledge that such courts, as applicable, 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 any such
court.
7. SEVERABILITY: The validity, legality, or enforceability of the
remainder of this Agreement will not be affected even if one or
more of the provisions of this Agreement is held invalid,
illegal, or unenforceable in any respect. Further, if the period
of time, the extent of the geographic area, or the scope of
proscribed activities covered by this Agreement should be deemed
unenforceable, then this Agreement shall be construed to cover
the maximum period of time, geographic area or scope of
proscribed activities (not to exceed the maximum period of time
or scope set forth herein) as may be valid under the applicable
law, and each of the parties hereto shall request any court
considering the enforceability of this Agreement to construe
and/or reform it so as to render it enforceable to the maximum
extent as provided above.
TICKETMASTER TMOL
By:/s/ Xxxxxx X. Xxxxxxx By:/s/ Xxxxxx X. Xxxxxxx
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Name:Xxxxxx X. Xxxxxxx Name:Xxxxxx X. Xxxxxxx
Title:C.O.O. Title:
COMPANY EXECUTIVE
By:/s/ Xxxxxxx XxXxxxxxx /s/ Xxxxxx Xxxxxx
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Name: Xxxxxxx XxXxxxxxx
Title:Chief Legal Officer
* * * NON-COMPETITION AGREEMENT * * *
