EMPLOYMENT AGREEMENT
THIS
EMPLOYMENT AGREEMENT (“Agreement”) is entered into
to be effective as of the 1st day of September 2007, by and
between Tix Corporation, a Delaware corporation (hereinafter
the “Company”), and Kimberly Simon, an individual
(hereinafter “Employee”).
WITNESSETH
WHEREAS,
the Company desires to continue the services of Employee, and
Employee is willing to continue as an employee of the Company,
on the terms and subject to the conditions hereinafter set
forth. This Agreement supersedes and replaces all prior
agreements between the Company and Employee regarding the
subject matter hereof.
NOW,
THEREFORE, for and in consideration of the mutual promises
herein contained, the parties hereto hereby agree as
follows;
1.
Engagement; Nature of Duties .
The Company hereby engages Employee, for the period hereinafter set
forth, to serve as and hold the office of Chief Operating Officer,
and to perform the duties of such offices as provided in the Bylaws
of the Company and as directed by the Board of Directors of the
Company. Employee agrees to serve in such capacity and to do and
perform the service, acts, or things necessary to carry out the
duties of such office, and such other duties, not inconsistent with
such offices and Employee’s position as an executive officer
of the Company. Employee shall report only to the Chief Executive
Officer and the Board of Directors of the Company from time to
time. It is expressly agreed and acknowledged that employment in
the capacity of the aforementioned offices was a material
inducement to Employee to enter into this Agreement.
2.
Term .
The term of employment pursuant to this Agreement shall be for a
period of three (3) years, commencing on September 1,
2007 (the “Commencement Date”), unless sooner
terminated in accordance with the provisions hereof (the
“Term”).
3.
Performance of Duties .
Employee shall devote such time and attention to Employee’s
duties as may be reasonably necessary to perform and carry out such
duties, but in any event, a minimum of 40 hours per
week.
Employee
shall perform her duties hereunder primarily in the Las Vegas,
Nevada area, and shall not be required to perform such duties
on a regular basis at any other location except for site or
location visits to be conducted by Employee from time to time.
Employee shall not be required to relocate without her
consent.
4.
Compensation .
(a)
Base Salary .
The Company shall pay to Employee a base salary in the amount of
Two Hundred Twenty-five Thousand Dollars ($225,000) per year (the
“Base Salary”), payable in periodic installments in
accordance with the Company’s prevailing policy for
compensating personnel, but not less often than semi monthly. On
each yearly anniversary of the Commencement Date (September 1,
2007), the Base Salary shall be increased by eight
percent (8%).
(b)
Discretionary Bonus .
Employee shall be eligible to receive an annual bonus during her
employment at the sole discretion of the Company’s Board of
Directors (or its Compensation Committee). It is expected that in
determining whether to grant a bonus and the amount thereof, if
any, the Board will consider the Company’s results of
operations and Employee’s contribution thereto which may be
based on performance criteria established from time to time by the
Board.
(c)
Stock Compensation .
Effective as of the date hereof, the Company shall grant to
Employee three-year options (the “Options”) to purchase
an aggregate of 300,000 shares of the Company’s Common Stock
in three tranches of 100,000 (each a “Tranche”). All of
the Options shall be exercisable at $7.00 per share, the fair
market value thereof on the date hereof. The First Tranche shall
vest on the first anniversary of the Commencement Date; the second
Tranche on the second anniversary; and the third Tranche on the
third anniversary. Upon termination of this Agreement for any
reason other than for Cause, any Options not previously vested
shall immediately vest and be exercisable for a period of one year
from the date of termination.
5.
Expenses Reimbursement; Automobile .
The services required of Employee by this Agreement shall include
the responsibility and duty of entertaining business associates and
others with whom the Company is, desires to be, or may become
engaged in business or with whom it seeks, now or in the future, to
develop or expand business relationships, or with whom it is
otherwise to the benefit of the Company to establish or maintain
communications. It may also be necessary for Employee to travel
from time to time on behalf of and for the benefit of the Company,
or in furtherance of the Company’s business. It is the
Company’s belief that the performance of Employee’s
duties in such travel and entertainment activities will produce the
maximum benefits which the Company expects to derive from
Employee’s services. Accordingly, the Company shall pay, or
if Employee shall have paid, shall reimburse to Employee, any and
all expenses incurred by her or for his account in the performance
of his duties hereunder, including all expenses for business,
entertainment, promotion and travel by Employee, subject only to
Employee providing appropriate documentation for such expenses. It
is expressly agreed, in connection therewith, that Employee shall
be provided or reimbursed for reasonable travel and accommodations,
but no first-class air travel will be deemed reasonable, (unless
under special price offering). The Company shall provide Employee
with an automobile, reasonably commensurate with Employee’s
office and position, for use by Employee in performing
Employee’s duties hereunder and the Company shall be
responsible for all expenses associated with ownership/leasing of
such automobile, including, but not limited to, costs of licensing
or registration, insurance, maintenance, taxes and gasoline.
Employee shall maintain such records with respect to the use of
such automobile as the Company may reasonably request.
In
the event that Employee shall be deemed to have received
income, for state or federal income tax purposes, by reason of
Employee’s receipt of or reimbursement for any of the
benefits or expenses set forth in this Section 5, the
Company shall pay or reimburse Employee for all taxes required
to be paid by Employee with respect to such
income.
6.
Medical and Life Insurance; Pension Benefits; Tax
Preparation .
The Company shall provide or reimburse Employee and
Employee’s spouse for health and long-term care insurance
(premiums up to $10,000 per year), and Employee life insurance
(premiums up to $1,000 per year), and disability insurance (up to
$10,000 per month coverage) (premiums up to $3,000 per year).
Employee shall also have the right to participate in any and all
employee retirement benefits plan or profit-sharing plan which the
Company maintains for its personnel, and in effect at any time
during the period of Employee’s employment hereunder, subject
only to any eligibility restrictions of such plans, the plan
documents and generally applicable policies of the Company.
Employee shall be entitled to reimbursement of up to $4,000 per
year for personal tax consultation and preparation of tax returns
and other forms and filings.
7.
Vacation .
During each year of the Term, Employee shall be entitled to a
vacation of three (3) weeks, without deduction of salary. Such
vacation shall be taken at such time or times during the applicable
year as may be mutually determined by Employee and the Company. Any
additional vacation period shall be determined by the Company
consistent with the general customs and practices of the Company
applicable to its personnel.
8.
Termination .
This Agreement may be terminated by the Company for cause. As used
herein, “cause” shall mean:
(a)
the
commission by Employee of any act of embezzlement, fraud,
larceny or theft on or from the Company or an affiliate of the
Company;
(b)
the
commission by Employee of, or indictment of Employee for a
felony;
(c)
failure
to perform, or materially poor performance of,
Employee’s duties and responsibilities assigned or
delegated under this Agreement, or any material misconduct or
violation of the Company’s policies.
(d)
a
material breach by Employee of any of the covenants, terms or
provisions of this Agreement or any agreement between the
Company and Employee regarding confidentiality,
non-competition or assignment of inventions.
In
addition, this Agreement shall automatically be terminated
upon Employee’s death or permanent disability. As used
herein, “permanent disability” shall mean
Employee’s complete inability to perform
Employee’s duties hereunder, as determined by
Employer’s physician, which inability continues for more
than ninety (90) consecutive days.
In
the event that this Agreement is terminated by the Company for
any reason other than for cause or for death or permanent
disability as defined above, or pursuant to a Change in
Control discussed below, the Company expressly agrees and
acknowledges that Employee shall be entitled to receive the
base salary and benefits described in Sections 4 and 5 of
this Agreement for the remainder of the Term. In the event
Employee does obtain other employment following the
Company’s termination of this Agreement other than for
cause, the Company shall be entitled to a set off or reduction
in the amounts payable to Employee hereunder as a result of
any compensation paid to Employee with respect to such new
employment.
9.
Change in Control .
(a)
Termination following a Change in Control .
If a Change in Control of the Company shall have occurred, Employee
shall be entitled to Termination Benefits (as defined in
Section 9(c)) upon the subsequent termination of
Employee’s employment during the term of this Agreement,
unless such termination is pursuant to Section 8, above, or
upon termination by Employee for Good Reason, as defined in
Section 9(d).
(b)
What Constitutes a “Change in Control”
.
A “Change in Control of the Company” shall be deemed to
have occurred upon the occurrence of any one or more of the
following events:
(i)
any
“person” (as such term is used in
Sections 13(d) and 14(d) of the Securities Exchange Act
of 1934, as amended (the “Exchange Act”), other
than Employee or a trustee or other fiduciary holding
securities under an employee benefit plan of the Company;
hereafter becomes the “beneficial owner” (as
defined in Rule 13d-3 under the Exchange Act), directly
or indirectly, of securities of the Company representing 20%
or more of the combined voting power of the Company’s
then outstanding securities;
(ii)
During
any period (other than any period prior to the execution of
this Agreement), individuals who at the beginning of such
period constitute the Board and any new directors (other than
directors designated by a person who has entered into an
agreement with the Company to effect a transaction described
in clauses (i) or (iii) of this Section 9(b)) whose
election by the Board or nomination for election by the
Company’s stockholders was approved by a vote of at
least two-thirds of the directors then still in office who
either were directors at the beginning of the period or whose
election or nomination for election was previously so
approved, cease for any reason to constitute a majority
thereof; or
(iii)
the
stockholders of the Company approve a merger or consolidation
of the Company with any other corporation, other than a merger
or consolidation which would result in the voting securities
of the Company outstanding immediately prior thereto
continuing to represent (either by remaining outstanding or by
being converted into voting securities of the surviving
entity) at least 80% of the combined voting power of the
voting securities of the Company or such surviving entity
outstanding immediately after such merger or consolidation, or
the stockholders of the Company approve a plan of complete
liquidation of the Company or an agreement for the sale or
disposition by the Company of all or substantially all of the
Company’s assets.
(c)
Termination Benefits .
As used in this Agreement, the term “Termination
Benefits” means the payment provision of all of the
following:
(i)
Employee’s
salary through Employee’s date of termination at the
rate in effect at that time, plus all other amounts, including
bonuses, to which Employee is entitled under this Agreement
and any compensation plan of the Company, at the time such
payments are due but in any event no later than the 30th day
after Employee’s date of termination;
(ii)
a
lump sum Severance Payment (in an amount determined pursuant
to Section 9(c)(vi) below) which amount shall be paid to
Employee not later than the 30th day after Employee’s
date of termination;
(iii)
the
Company shall continue to provide Employee for a period of
eighteen (18) months after Employee’s date of
termination with benefits substantially similar to those
enjoyed by Emp
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