<PAGE>
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
Current Report Pursuant to Section 13 or 15(d) of
The Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): March 29, 1999
Ticketmaster Online-CitySearch, Inc.
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(Exact name of registrant as specified in its charter)
Delaware 0-25041 95-4546874
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(State or other (Commission (IRS Employer
jurisdiction of File Number) Identification No.)
incorporation)
790 E. Colorado Boulevard, Suite 200, Pasadena, CA 91101
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(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: (626) 405-0050
<PAGE>
Item 5. Other Events
On March 29, 1999, Ticketmaster Online-CitySearch, Inc. ("TMCS") and
CityAuction, Inc. ("CityAuction") consummated an Agreement and Plan of
Reorganization (the "Reorganization Agreement") providing for the merger of a
wholly-owned TMCS subsidiary, Nero Acquisition Corporation, Inc. ("Sub") with
and into CityAuction.
Pursuant to the Reorganization Agreement:
(i) Each issued and outstanding share of capital stock of Sub was
converted into one share of Common Stock of CityAuction.
(ii) Each issued and outstanding share of Common Stock of CityAuction was
canceled and converted into the right to receive 0.279971340 shares of Class B
Common Stock of TMCS.
(iii) Each issued and outstanding share of Preferred Stock of CityAuction
was canceled and converted into the right to receive the number of shares of
TMCS Class B Common Stock equal to the number of shares of CityAuction Preferred
Stock held multiplied by 0.013520482 plus the number of shares of CityAuction
Preferred Stock held multiplied by 0.279971340.
The consideration paid by TMCS pursuant to the merger equaled approximately
800,000 shares of TMCS Class B Common Stock, including Class B Common Stock that
was reserved for issuance upon exercise of the CityAuction options assumed by
TMCS. In addition, as part of the merger consideration, TMCS granted CityAuction
employees stock options under its 1998 Stock Option Plan exercisable for an
aggregate of 200,000 shares of TMCS Class B Common Stock, the exercise price for
which equaled $34.00 per share.
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Item 7. Financial Statements and Exhibits.
<TABLE>
<CAPTION>
(c) Exhibits
Exhibit No. Description
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<S> <C>
2.1* Agreement and Plan of Reorganization, dated as of January 8,
1999, by and among Ticketmaster Online-CitySearch, Inc.,
Nero Acquisition Corporation, Inc., CityAuction, Inc.,
Andrew Rebele and Monica Lee, as amended.
4.1 Registration Rights Agreement dated March 29, 1999, by and
among Ticketmaster Online-CitySearch, Inc., Charter Venture
Capital, GCA Investments, John Montgomery, Stephen Walther,
Monica Lee and Andrew Rebele.
99.1 Non-competition Agreement dated March 29, 1999, by and among
Ticketmaster Online-CitySearch, Inc., CityAuction, Inc., and
Andrew Rebele.
99.2 Non-competition Agreement dated March 22, 1999, by and among
Ticketmaster Online-CitySearch, Inc., CityAuction, Inc., and
Monica Lee.
99.3 Employment Agreement dated March 29, 1999, by and between
Ticketmaster Online-CitySearch, Inc. and Andrew Rebele.
99.4 Employment Agreement dated March 29, 1999 by and between
Ticketmaster Online-CitySearch, Inc. and Monica Lee.
</TABLE>
---------------------------------
* Incorporated by reference to exhibits filed with Ticketmaster
Online-CitySearch, Inc.'s Annual Report on Form 10-K for the
year ended December 31, 1998 (File No. 000-25041), as filed
with the Commission on March 31, 1999.
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
TICKETMASTER ONLINE-CITYSEARCH, INC.
Date: April 29, 1999 By: /s/ Douglas McPherson
---------------------------------
Douglas McPherson
Chief Legal Officer and
Vice President, Business Development
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INDEX TO EXHIBITS
<TABLE>
<CAPTION>
Exhibit No. Description
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<S> <C>
2.1* Agreement and Plan of Reorganization, dated as of January 8,
1999, by and among Ticketmaster Online-CitySearch, Inc.,
Nero Acquisition Corporation, Inc., CityAuction, Inc.,
Andrew Rebele and Monica Lee, as amended.
4.1 Registration Rights Agreement dated March 29, 1999, by and
among Ticketmaster Online-CitySearch, Inc., Charter Venture
Capital, GCA Investments, John Montgomery, Stephen Walther,
Monica Lee and Andrew Rebele.
99.1 Non-competition Agreement dated March 29, 1999, by and among
Ticketmaster Online-CitySearch, Inc., CityAuction, Inc., and
Andrew Rebele.
99.2 Non-competition Agreement dated March 22, 1999, by and among
Ticketmaster Online-CitySearch, Inc., CityAuction, Inc., and
Monica Lee.
99.3 Employment Agreement dated March 29, 1999, by and between
Ticketmaster Online-CitySearch, Inc. and Andrew Rebele.
99.4 Employment Agreement dated March 29, 1999 by and between
Ticketmaster Online-CitySearch, Inc. and Monica Lee.
</TABLE>
-----------------------------------------
* Incorporated by reference to exhibits filed with Ticketmaster Online-
CitySearch, Inc.'s Annual Report on Form 10-K for the year ended
December 31, 1998 (File No. 000-25041), as filed with the Commission
on March 31, 1999.
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EXHIBIT 4.1
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (the "Agreement"), is made as of March
29, 1999, by and among Ticketmaster Online-CitySearch, Inc., a Delaware
corporation ("Parent"), and certain former shareholders of CityAuction, Inc., a
California corporation (the "Company"), listed on the signature pages hereto
(the "Shareholders").
WHEREAS:
A. Pursuant to the terms of the Agreement and Plan of Reorganization dated
as of January 8, 1999 (the "Reorganization Agreement"), by and among Parent, the
Company, and Nero Acquisition Corporation, a California corporation and wholly
owned subsidiary of Parent ("Sub"), Sub is being merged with and into the
Company (the "Merger"), with the Company being the surviving corporation.
B. In connection with the Merger, the Shareholders shall receive shares
(the "Shares") of Class B Common Stock of Parent, par value $.01 per share
("Parent Common Stock").
C. The Reorganization Agreement provides for the execution and delivery of
this Agreement at the closing of the transactions contemplated thereby which
grants the Shareholders certain rights to have their Shares registered under the
Securities Act of 1933, as amended.
NOW, THEREFORE, in consideration of the premises and the mutual covenants
contained herein and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereby agree as
follows:
1. DEFINITIONS.
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a. As used in this Agreement, the following terms shall have the
following meanings:
(i) "Lock-up Period" means the time period commencing on the closing
date of Parent's initial public offering and expiring 180 days therefrom.
(ii) "register," "registered," and "registration" refer to a
registration effected by preparing and filing a Registration Statement or
Statements in compliance with the 1933 Act and pursuant to Rule 415 under the
1933 Act or any successor rule providing for offering securities on a continuous
basis ("Rule 415"), and the declaration or ordering of effectiveness of such
Registration Statement by the United States Securities and Exchange Commission
(the "SEC").
(iii) "Registrable Securities" means the Shares and any shares of
capital stock issued or issuable as a dividend on or in exchange for or
otherwise with respect to the Shares, provided, however, that such securities
shall only be treated as Registrable Securities if and so long as they have not
been (A) sold to or through a broker or dealer or underwriter in a public
distribution
<PAGE>
or a public securities transaction, or (B) sold or are, in the opinion of
counsel for Parent, available for sale in a single transaction exempt from the
registration and prospectus delivery requirements of the 1933 Act so that all
transfer restrictions and restrictive legends with respect thereto are removed
upon the consummation such sale.
(iv) "Registration Statement" means a registration statement of
Parent under the 1933 Act.
b. Capitalized terms used herein and not otherwise defined herein shall
have the respective meanings set forth in the Purchase Agreement.
2. REGISTRATION.
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a. Parent shall prepare and file with the SEC a Registration Statement
on Form S-1 (or, another appropriate form in the discretion of Parent as is then
available to effect a registration of the Registrable Securities) covering the
resale of the Registrable Securities as soon as practicable following the
Closing of the Merger.
b. As a condition of Parent's efforts to file a Registration Statement,
the Shareholders shall execute and deliver to Parent, in forms acceptable to
Parent (i) agreements prohibiting the sale or other transfer of the Registrable
Securities until the expiration of the Lock-up Period and (ii) agreements
prohibiting the sale or other transfer of the Registrable Securities during
periods outside of the trading windows applicable to the officers of Parent as
set forth in Parent's Insider Trading Program adopted by Parent's Board of
Directors.
3. OBLIGATIONS OF THE PARENT.
-------------------------
In connection with the registration of the Registrable Securities, Parent
shall have the following obligations:
a. Parent shall prepare promptly and file with the SEC a Registration
Statement with respect to the Registrable Securities as provided in Section
2(a), and thereafter use its reasonable commercial efforts to cause such
Registration Statement relating to Registrable Securities to become effective,
and keep the Registration Statement effective pursuant to Rule 415 at all times
until such date as is the earlier of (i) the date on which all of the
Registrable Securities have been sold and (ii) the date on which the Registrable
Securities (in the opinion of counsel to the Shareholders) may be immediately
sold without restriction (including without limitation as to volume by each
holder thereof) without registration under the 1933 Act (the "Registration
Period").
b. Parent shall prepare and file with the SEC such amendments (including
post-effective amendments) and supplements to the Registration Statement and the
prospectus used in connection with the Registration Statement as may be
necessary to keep the Registration Statement effective at all times during the
Registration Period, and, during such period, comply with the provisions of the
1933 Act with respect to the disposition of all Registrable Securities of the
Company covered by the Registration Statement until such time as all of such
Registrable Securities
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have been disposed of in accordance with the intended methods of disposition by
the seller or sellers thereof as set forth in the Registration Statement.
c. Parent shall furnish to the Shareholders (i) promptly after the
Registration Statement is prepared and publicly distributed, filed with the SEC,
or received by Parent, one copy of the Registration Statement and any amendment
thereto, each preliminary prospectus and prospectus and each amendment or
supplement thereto and (ii) such number of copies of a prospectus, including a
preliminary prospectus, and all amendments and supplements thereto and such
other documents as the Shareholders may reasonably request in order to
facilitate the disposition of the Registrable Securities owned by such
Shareholders. Parent will immediately notify the Shareholders by facsimile of
the effectiveness of the Registration Statement or any post-effective amendment.
Parent will promptly file an acceleration request as soon as practicable
following the resolution or clearance of all SEC comments or, if applicable,
following notification by the SEC that the Registration Statement or any
amendment thereto will not be subject to review.
d. Parent shall use reasonable efforts to (i) register and qualify the
Registrable Securities covered by the Registration Statement under such other
securities or "blue sky" laws of such jurisdictions in the United States as the
Shareholders reasonably request, (ii) prepare and file in those jurisdictions
such amendments (including post-effective amendments) and supplements to such
registrations and qualifications as may be necessary to maintain the
effectiveness thereof during the Registration Period, (iii) take such other
actions as may be necessary to maintain such registrations and qualifications in
effect at all times during the Registration Period, and (iv) take all other
actions reasonably necessary or advisable to qualify the Registrable Securities
for sale in such jurisdictions; provided, however, that Parent shall not be
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required in connection therewith or as a condition thereto to (a) qualify to do
business in any jurisdiction where it would not otherwise be required to qualify
but for this Section 3(d), (b) subject itself to general taxation in any such
jurisdiction, (c) file a general consent to service of process in any such
jurisdiction, (d) provide any undertakings that cause the Parent undue expense
or burden, or (e) make any change in its charter or bylaws.
e. In the event the Shareholders select underwriters for the offering,
Parent shall enter into and perform its obligations under an underwriting
agreement, in usual and customary form, including, without limitation, customary
indemnification and contribution obligations, with the underwriters of such
offering.
f. As promptly as practicable after becoming aware of such event, Parent
shall notify the Shareholders of (x) the issuance by the SEC of a stop order
suspending the effectiveness of the Registration Statement, (y) the happening of
any event, of which Parent has knowledge, as a result of which the prospectus
included in the Registration Statement, as then in effect, includes an untrue
statement of a material fact or omission to state a material fact required to be
stated therein or necessary to make the statements therein not misleading, (z)
the occurrence or existence of any pending corporate development that, in the
reasonable discretion of Parent, makes it appropriate to suspend the
availability of the Registration Statement and use its best efforts promptly to
prepare a supplement or amendment to the Registration Statement to correct such
untrue statement or omission, and deliver such number of copies of such
supplement or amendment to the Shareholders,
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<PAGE>
as the Shareholders may reasonably request; provided that, for not more than
twenty (20) consecutive trading days (or a total of not more than thirty (30)
trading days in any twelve (12) month period) (or 60 trading days in any 12
month period, in the case of an event described in clause (z) above that arises
from an acquisition or a probable acquisition or financing, recapitalization,
business combination or other similar transaction), Parent may delay the
disclosure of material non-public information concerning Parent (as well as
prospectus or Registration Statement updating) the disclosure of which at the
time is not, in the good faith opinion of Parent, the best interests of Parent
(an "Allowed Delay"); provided, further, that Parent shall promptly (i) notify
the Shareholders in writing of the existence of (but in no event, without the
prior written consent of the Shareholders, shall Parent disclose to such
Shareholder any of the facts or circumstances regarding) material non-public
information giving rise to an Allowed Delay and (ii) advise the Shareholders in
writing to cease all sales under the Registration Statement until the end of the
Allowed Delay. Upon expiration of the Allowed Delay, Parent shall again be bound
by the first sentence of this Section 3(f) with respect to the information
giving rise thereto.
g. Parent shall use its best efforts to prevent the issuance of any stop
order or other suspension of effectiveness of a Registration Statement, and, if
such an order is issued, to obtain the withdrawal of such order at the earliest
possible moment and to notify each Shareholder who holds Registrable Securities
being sold (or, in the event of an underwritten offering, the managing
underwriters) of the issuance of such order and the resolution thereof.
h. Parent shall permit a single firm of counsel designated by the
Shareholders to review the Registration Statement and all amendments and
supplements thereto (as well as all requests for acceleration or effectiveness
thereof) a reasonable period of time prior to their filing with the SEC, and not
file any document in a form to which such counsel reasonably objects and will
not request acceleration of the Registration Statement without prior notice to
such counsel. The sections of the Registration Statement covering information
with respect to the Shareholders, the Shareholders' beneficial ownership of
securities of Parent or the Shareholders' intended method of disposition of
Registrable Securities shall conform to the information provided to Parent by
each of the Shareholders.
i. Parent shall (i) cause all the Registrable Securities covered by the
Registration Statement to be listed on each national securities exchange on
which securities of the same class or series issued by Parent are then listed,
if any, if the listing of such Registrable Securities is then permitted under
the rules of such exchange, or (ii) secure the designation and quotation, of all
the Registrable Securities covered by the Registration Statement on the Nasdaq
or, if not eligible for the Nasdaq on the Nasdaq SmallCap.
4. OBLIGATIONS OF THE SHAREHOLDERS.
-------------------------------
In connection with the registration of the Registrable Securities, the
Shareholders shall have the following obligations:
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<PAGE>
a. It shall be a condition precedent to the obligations of Parent to
complete the registration pursuant to this Agreement with respect to the
Registrable Securities that the Shareholders shall furnish to Parent such
information regarding themselves, the Registrable Securities held by them and
the intended method of disposition of the Registrable Securities held by them as
shall be reasonably required to effect the registration of such Registrable
Securities and shall execute such documents in connection with such registration
as Parent may reasonably request. At least three (3) business days prior to the
first anticipated filing date of the Registration Statement, Parent shall notify
the Shareholders of the information Parent requires from the Shareholders.
b. The Shareholders, by their acceptance of the Registrable Securities,
agree to cooperate with Parent as reasonably requested by Parent in connection
with the preparation and filing of the Registration Statement hereunder, unless
the Shareholders have notified Parent in writing of the Shareholders' election
to exclude all of their Registrable Securities from the Registration Statement.
c. In the event the Shareholders determine to engage the services of an
underwriter, the Shareholders agree to enter into and perform the Shareholders'
obligations under an underwriting agreement, in usual and customary form,
including, without limitation, customary indemnification and contribution
obligations, with the managing underwriter of such offering and take such other
actions as are reasonably required in order to expedite or facilitate the
disposition of the Registrable Securities.
d. The Shareholders agree that, upon receipt of any notice from Parent
of the happening of any event of the kind described in Section 3(f) or 3(g), the
Shareholders will immediately discontinue disposition of Registrable Securities
pursuant to the Registration Statement covering such Registrable Securities
until the Shareholders' receipt of the copies of the supplemented or amended
prospectus contemplated by Section 3(f) or 3(g) and, if so directed by Parent,
the Shareholders shall deliver to Parent (at the expense of Parent) or destroy
(and deliver to Parent a certificate of destruction) all copies in the
Shareholders' possession, of the prospectus covering such Registrable Securities
current at the time of receipt of such notice.
e. The Shareholders may not participate in any underwritten registration
hereunder unless they (i) agree to sell their Registrable Securities on the
basis provided in any underwriting arrangements in usual and customary form
entered into by Parent, (ii) complete and execute all questionnaires, powers of
attorney, indemnities, underwriting agreements and other documents reasonably
required under the terms of such underwriting arrangements, and (iii) agree to
pay all underwriting discounts and commissions and any expenses in excess of
those payable by Parent pursuant to Section 5 below.
5. EXPENSES OF REGISTRATION.
------------------------
All reasonable expenses, other than underwriting discounts and commissions,
incurred in connection with registrations, filings or qualifications pursuant to
Sections 2 and 3, including, without limitation, all registration, listing and
qualification fees, printers and accounting fees, the
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<PAGE>
fees and disbursements of counsel for Parent, and the reasonable fees and
disbursements of one counsel selected by the Shareholders pursuant to Section
3(h) hereof, up to a maximum of [$20,000], shall be borne by Parent.
6. INDEMNIFICATION.
---------------
In the event any Registrable Securities are included in a Registration
Statement under this Agreement:
a. To the extent permitted by law, Parent will indemnify, hold harmless
and defend (i) each Shareholder who holds such Registrable Securities, (ii) the
directors, officers, partners, employees, agents and each person who controls
any Shareholder within the meaning of the 1933 Act or the Securities Exchange
Act of 1934, as amended (the "1934 Act"), if any, (iii) any underwriter (as
defined in the 1933 Act) for the Shareholders, and (iv) the directors, officers,
partners, employees and each person who controls any such underwriter within the
meaning of the 1933 Act or the 1934 Act, if any (each, an "Indemnified Person"),
against any joint or several losses, claims, damages, liabilities or expenses
(collectively, together with actions, proceedings or inquiries by any regulatory
or self-regulatory organization, whether commenced or threatened, in respect
thereof, "Claims") to which any of them may become subject insofar as such
Claims arise out of or are based upon: (i) any untrue statement or alleged
untrue statement of a material fact in a Registration Statement or the omission
or alleged omission to state therein a material fact required to be stated or
necessary to make the statements therein not misleading; (ii) any untrue
statement or alleged untrue statement of a material fact contained in any
preliminary prospectus if used prior to the effective date of such Registration
Statement, or contained in the final prospectus (as amended or supplemented, if
Parent files any amendment thereof or supplement thereto with the SEC) or the
omission or alleged omission to state therein any material fact necessary to
make the statements made therein, in light of the circumstances under which the
statements therein were made, not misleading; or (iii) any violation or alleged
violation by Parent of the 1933 Act, the 1934 Act, any other law, including,
without limitation, any state securities law, or any rule or regulation
thereunder relating to the offer or sale of the Registrable Securities (the
matters in the foregoing clauses (i) through (iii) being, collectively,
"Violations"). Subject to the restrictions set forth in Section 6(c) with
respect to the number of legal counsel, Parent shall reimburse the Indemnified
Person, promptly as such expenses are incurred and are due and payable, for any
reasonable legal fees or other reasonable expenses incurred by them in
connection with investigating or defending any such Claim. Notwithstanding
anything to the contrary contained herein, the indemnification agreement
contained in this Section 6(a): (i) shall not apply to a Claim arising out of or
based upon a Violation which occurs in reliance upon and in conformity with
information furnished in writing to Parent by any Indemnified Person or
underwriter for such Indemnified Person expressly for use in connection with the
preparation of the Registration Statement or any such amendment thereof or
supplement thereto, if such prospectus was timely made available by Parent
pursuant to Section 3(c) hereof; (ii) shall not apply to amounts paid in
settlement of any Claim if such settlement is effected without the prior written
consent of Parent, which consent shall not be unreasonably withheld; and (iii)
with respect to any preliminary prospectus, shall not inure to the benefit of
any Indemnified Person if the untrue statement or omission of material fact
contained in the preliminary prospectus was corrected on a
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timely basis in the prospectus, as then amended or supplemented, such corrected
prospectus was timely made available by Parent pursuant to Section 3(c) hereof,
and the Indemnified Person was promptly advised in writing not to use the
incorrect prospectus prior to the use giving rise to a Violation and such
Indemnified Person, notwithstanding such advice, used it. Such indemnity shall
remain in full force and effect regardless of any investigation made by or on
behalf of the Indemnified Person.
b. In connection with any Registration Statement in which the
Shareholders are participating, the Shareholders agree to indemnify, hold
harmless and defend, to the same extent and in the same manner set forth in
Section 6(a), Parent, each of its directors, each of its officers who signs the
Registration Statement, each person, if any, who controls Parent within the
meaning of the 1933 Act or the 1934 Act, any underwriter and any other
stockholder selling securities pursuant to the Registration Statement or any of
its directors or officers or any person who controls such stockholder or
underwriter within the meaning of the 1933 Act or the 1934 Act (collectively and
together with an Indemnified Person, an "Indemnified Party"), against any Claim
to which any of them may become subject, under the 1933 Act, the 1934 Act or
otherwise, insofar as such Claim arises out of or is based upon any Violation by
such Shareholder, in each case to the extent (and only to the extent) that such
Violation occurs in reliance upon and in conformity with written information
furnished to Parent by such Shareholder expressly for use in connection with
such Registration Statement; and subject to Section 6(c) such Shareholder will
reimburse any legal or other expenses (promptly as such expenses are incurred
and are due and payable) reasonably incurred by them in connection with
investigating or defending any Claim; provided, however, that the indemnity
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agreement contained in this Section 6(b) shall not apply to amounts paid in
settlement of any Claim if such settlement is effected without the prior written
consent of such Shareholder, which consent shall not be unreasonably withheld;
provided, further, however, that the Shareholder shall be liable under this
- -------- ------- -------
Agreement (including this Section 6(b)) for only that amount as does not exceed
the net proceeds to such Shareholder as a result of the sale of Registrable
Securities pursuant to such Registration Statement. Such indemnity shall remain
in full force and effect regardless of any investigation made by or on behalf of
such Indemnified Party. Notwithstanding anything to the contrary contained
herein, the indemnification agreement contained in this Section 6(b) with
respect to any preliminary prospectus shall not inure to the benefit of any
Indemnified Party if the untrue statement or omission of material fact contained
in the preliminary prospectus was corrected on a timely basis in the prospectus,
as then amended or supplemented.
c. Promptly after receipt by an Indemnified Person or Indemnified Party
under this Section 6 of notice of the commencement of any action (including any
governmental action), such Indemnified Person or Indemnified Party shall, if a
Claim in respect thereof is to be made against any indemnifying party under this
Section 6, deliver to the indemnifying party a written notice of the
commencement thereof, and the indemnifying party shall have the right to
participate in, and, to the extent the indemnifying party so desires, jointly
with any other indemnifying party similarly noticed, to assume control of the
defense thereof with counsel mutually satisfactory to the indemnifying party and
the Indemnified Person or the Indemnified Party, as the case may be; provided,
--------
however, that an Indemnified Person or Indemnified Party shall have the right to
- -------
retain its own counsel with the fees and expenses to be paid by the indemnifying
party, if, in the reasonable
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opinion of counsel retained by the indemnifying party, the representation by
such counsel of the Indemnified Person or Indemnified Party and the indemnifying
party would be inappropriate due to actual or potential differing interests
between such Indemnified Person or Indemnified Party and any other party
represented by such counsel in such proceeding. The indemnifying party shall pay
for only one separate legal counsel for the Indemnified Persons or the
Indemnified Parties, as applicable, and such legal counsel shall be selected by
the Shareholders, if the Shareholders are entitled to indemnification hereunder,
or Parent, if Parent is entitled to indemnification hereunder, as applicable.
The failure to deliver written notice to the indemnifying party within a
reasonable time of the commencement of any such action shall not relieve such
indemnifying party of any liability to the Indemnified Person or Indemnified
Party under this Section 6, except to the extent that the indemnifying party is
actually prejudiced in its ability to defend such action. The indemnification
required by this Section 6 shall be made by periodic payments of the amount
thereof during the course of the investigation or defense, as such expense,
loss, damage or liability is incurred and is due and payable.
7. AMENDMENT OF REGISTRATION RIGHTS.
--------------------------------
Provisions of this Agreement may be amended and the observance thereof may
be waived only by the mutual written consent of Parent and the Shareholders.
8. MISCELLANEOUS.
-------------
a. Any notices required or permitted to be given under the terms hereof
shall be sent by certified or registered mail (return receipt requested) or
delivered personally or by courier (including a recognized overnight delivery
service) or by facsimile and shall be effective five days after being placed in
the mail, if mailed by regular U.S. mail, or upon receipt, if delivered
personally or by courier (including a recognized overnight delivery service) or
by facsimile, in each case addressed to a party. The addresses for such
communications shall be:
If to Parent:
Ticketmaster Online - CitySearch, Inc.
790 E. Colorado Blvd., Suite 200
Pasadena, California 91101
Attention: Chief Executive Officer
Facsimile: (626) 405-9929
With copy to:
Wilson Sonsini Goodrich & Rosati, P.C.
650 Page Mill Road
Palo Alto, California 94304-1050
Attention: John T. Sheridan
Facsimile: (650) 496-4088
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If to the Shareholders: to the address set forth immediately below each
Shareholder's name on the signature page to the Purchase Agreement. Each party
shall provide notice to the other party of any change of its address.
b. Failure of any party to exercise any right or remedy under this
Agreement or otherwise, or delay by a party in exercising such right or remedy,
shall not operate as a waiver thereof.
c. This Agreement shall be enforced, governed by and construed in
accordance with the laws of the State of Delaware applicable to agreements made
and to be performed entirely within such State. In the event that any provision
of this Agreement is invalid or unenforceable under any applicable statute or
rule of law, then such provision shall be deemed inoperative to the extent that
it may conflict therewith and shall be deemed modified to conform with such
statute or rule of law. Any provision hereof which may prove invalid or
unenforceable under any law shall not affect the validity or enforceability of
any other provision hereof.
d. This Agreement supersedes all prior agreements and understandings
among the parties hereto with respect to the subject matter hereof.
e. This Agreement shall inure to the benefit of and be binding upon the
successors and assigns of each of the parties hereto.
f. The headings in this Agreement are for convenience of reference only
and shall not limit or otherwise affect the meaning hereof.
g. This Agreement may be executed in two or more counterparts, each of
which shall be deemed an original but all of which shall constitute one and the
same agreement. This Agreement, once executed by a party, may be delivered to
the other party hereto by facsimile transmission of a copy of this Agreement
bearing the signature of the party so delivering this Agreement.
h. Each party shall do and perform, or cause to be done and performed,
all such further acts and things, and shall execute and deliver all such other
agreements, certificates, instruments and documents, as the other party may
reasonably request in order to carry out the intent and accomplish the purposes
of this Agreement and the consummation of the transactions contemplated hereby.
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IN WITNESS WHEREOF, Parent and the undersigned Shareholder have caused this
Agreement to be duly executed as of the date first above written.
TICKETMASTER ONLINE - CITYSEARCH, INC.
By: /s/ Douglas McPherson
-----------------------------------
Douglas McPherson
Chief Legal Officer
SHAREHOLDER
By: /s/ Eric Lassila
-----------------------------------
Name: Eric Lassila
Title: Managing Member
Address: Charter Venture Capital
525 University Ave.
Palo Alto, CA 94301
[Signature Page to Registration Rights Agreement]
-10-
<PAGE>
IN WITNESS WHEREOF, Parent and the undersigned Shareholder have caused this
Agreement to be duly executed as of the date first above written.
TICKETMASTER ONLINE - CITYSEARCH, INC.
By: /s/ Douglas McPherson
-----------------------------------
Douglas McPherson
Chief Legal Officer
SHAREHOLDER
GCA Investments 96
By: /s/ John B. Montgomery
-----------------------------------
Name: John B. Montgomery
Title: General Partner
Address: 1891 Landings Drive
Mountain View, CA 94043
[Signature Page to Registration Rights Agreement]
-10-
<PAGE>
IN WITNESS WHEREOF, Parent and the undersigned Shareholder have caused this
Agreement to be duly executed as of the date first above written.
TICKETMASTER ONLINE - CITYSEARCH, INC.
By: /s/ Douglas McPherson
-----------------------------------
Douglas McPherson
Chief Legal Officer
SHAREHOLDER
By: /s/ John B. Montgomery
-----------------------------------
Name: John Montgomery
Title:
Address: 1780 Bay Laurel Drive
Menlo Park, CA 94025
[Signature Page to Registration Rights Agreement]
-10-
<PAGE>
IN WITNESS WHEREOF, Parent and the undersigned Shareholder have caused this
Agreement to be duly executed as of the date first above written.
TICKETMASTER ONLINE - CITYSEARCH, INC.
By: /s/ Douglas McPherson
-----------------------------------
Douglas McPherson
Chief Legal Officer
SHAREHOLDER
By: /s/ Monica Lee
-----------------------------------
Name: Monica Lee
Title: Director, Business Development
Address: 2286 Jackson St. Apt. #8
San Francisco, CA 94115
[Signature Page to Registration Rights Agreement]
-10-
<PAGE>
IN WITNESS WHEREOF, Parent and the undersigned Shareholder have caused this
Agreement to be duly executed as of the date first above written.
TICKETMASTER ONLINE - CITYSEARCH, INC.
By: /s/ Douglas McPherson
-----------------------------------
Douglas McPherson
Chief Legal Officer
SHAREHOLDER
By: /s/ Stephen Walther
-----------------------------------
Name: Stephen Walther
Title: CTO
Address: 995 Pine St. #204
San Francisco, CA 94108
[Signature Page to Registration Rights Agreement]
-10-
<PAGE>
IN WITNESS WHEREOF, Parent and the undersigned Shareholder have caused this
Agreement to be duly executed as of the date first above written.
TICKETMASTER ONLINE - CITYSEARCH, INC.
By: /s/ Douglas McPherson
-----------------------------------
Douglas McPherson
Chief Legal Officer
SHAREHOLDER
By: /s/ Andrew Rebele
-----------------------------------
Name: Andrew Rebele
Title:
Address:
[Signature Page to Registration Rights Agreement]
-10-
<PAGE>
EXHIBIT 99.1
NON-COMPETITION AGREEMENT
THIS NON-COMPETITION AGREEMENT (the "Agreement") is entered into as of
March 29, 1999 by and among Ticketmaster Online-CitySearch, Inc., a Delaware
corporation ("Parent"), CityAuction, Inc., a California corporation (the
"Company") and Andrew Rebele (the "Manager").
BACKGROUND
----------
A. Parent, Nero Acquisition Corporation ("Sub") and the Company have
entered into an Agreement and Plan of Reorganization dated as of January 8, 1999
(the "Reorganization Agreement"), which provides for the merger (the "Merger")
of Sub with and into the Company. Capitalized terms not otherwise defined in
this Agreement have the meanings defined for them in the Reorganization
Agreement.
B. As a condition to the Merger, to preserve the value of the
business being acquired by Parent, the Reorganization Agreement contemplates,
among other things, that the Manager enter into this Agreement effective upon
the Effective Time of the Merger.
NOW THEREFORE, in consideration of the mutual promises made in this
Agreement, Parent, the Company and the Manager agree as follows:
1. COVENANT NOT TO COMPETE OR SOLICIT.
----------------------------------
(a) For two (2) years after the termination of Manager's
employment with Parent, the Company or any sudsidiary thereof (the "Non-Compete
Period"), the Manager shall not directly or indirectly for himself or on behalf
of or in conjunction with any other person, company, partnership, corporation,
business, group or other entity, without the prior written consent of Parent,
engage anywhere in the world in (whether as an employee, consultant, proprietor,
partner, director or otherwise), or have any ownership interest in (except for
ownership of one percent (1%) or less of the outstanding securities of an entity
whose securities are listed on a national securities exchange), or participate
in the financing, operation, management or control of, any firm, corporation or
business or any business unit of any firm or corporation in any business selling
products or services in direct competition with the Parent's or the Company's
business in the on-line ticketing, city guide, on-line auctions, and/or on-line
classifieds businesses only.
During the Non-Compete Period, the Manager shall not, directly or
indirectly, without the prior written consent of Parent, (i) solicit, encourage,
hire or take any other action which is intended to induce any employee of the
Company or Parent or any subsidiary thereof to terminate his or her employment
with the Company or Parent or any subsidiary thereof (as the case may be), or
(ii)
<PAGE>
interfere in any manner with the contractual or employment relationship between
the Company and any employee of the Company or Parent and any employee of Parent
or any subsidiary of the Company or Parent and any employee of any such
subsidiary.
(b) The covenants contained in the preceding paragraphs shall be
construed as a series of separate convents, one of each county, city and state
of any geographic area where any business is presently carried on by Parent or
the Company. Except for geographic coverage, each such separate covenant shall
be identical in terms to the covenant contained in the preceding paragraphs.
If, in any judicial proceeding, a court refuses to enforce any of such separate
covenants (or any part thereof), then such unenforceable covenant (or such part)
shall be eliminated from this Agreement to the extent necessary to permit the
remaining separate covenants (or portions thereof) to be enforced. In the event
that the provisions of this Section 1 are deemed to exceed the time, geographic
or scope limitations permitted by applicable law, then such provisions shall be
reformed to the maximum time, geographic or scope limitations, as the case may
be, permitted by applicable laws.
(c) The Manager acknowledges that the Manager's covenant not to
compete or solicit contained in this Section 1 is a condition precedent to the
Merger to preserve the value of the business being purchased by Parent pursuant
to the Merger. The Manager further acknowledges that breach of this Section 1
would cause irreparable injury to Parent and the Company and agrees that in the
event of such breach, Parent and the Company shall each be entitled to seek
injunctive relief without the necessity of proving actual damages.
2. MISCELLANEOUS.
-------------
(a) Severability. If any portion of this Agreement is held by a court
------------
of competent jurisdiction to conflict with any federal, state or local law, such
portion of this Agreement shall be of no force or effect and this Agreement
shall otherwise remain in full force and effect and be construed as if such
portion had not been included in this Agreement.
(b) No Assignment. The Manager shall not assign this Agreement or any
-------------
rights or obligations under this Agreement without the prior written consent of
Parent.
(c) Notice. Any notice or other communication required or permitted
------
under this Agreement shall be made in writing and delivered personally to the
other parties or sent by certified or registered mail, return receipt requested
and postage prepaid to the addresses set forth on the signature page hereto or
such other address as any such party shall have furnished to the other parties
in writing in accordance with this Section 2(c).
(d) Entire Agreement. This Agreement contains the entire agreement
----------------
and understanding of the parties and supersedes all prior discussions,
agreements and understandings relating to the subject matter of this Agreement.
This Agreement may not be changed or modified, except by an agreement in writing
executed by Parent and the Manager.
(e) Effectiveness: Term. This Agreement shall become effective upon
-------------------
the Effective Date and shall continue in full force and effect for two (2) years
from its effectiveness.
-2-
<PAGE>
(f) Other. The waiver of a breach of any term or provision of this
-----
Agreement shall not operate as or be construed to be a waiver of any other
previous or subsequent breach of this Agreement. This Agreement shall be
governed by the laws of the State of California. All captions and section
headings used in this Agreement are for convenient reference only and do not
form a part of this Agreement. This Agreement may be executed in counterparts,
and each counterpart shall have the same force and effect as an original and
shall constitute an effective, binding agreement on the part of each of the
undersigned.
-3-
<PAGE>
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written above.
TICKETMASTER ONLINE-CITYSEARCH, INC. MANAGER
By: /s/ Douglas McPherson /s/ Andrew Rebele
Name: Douglas McPherson Name: Andrew Rebele
Title: VP/CLO Address: 18 Orben Pl.
Address: San Francisco, CA 94115
CITYAUCTION, INC.
By: /s/ Andrew Rebele
Name: Andrew Rebele
Title: President
Address: 153 Kearny St. #207
San Francisco, CA 94108
[SIGNATURE PAGE TO NON-COMPETITION AGREEMENT]
-4-
<PAGE>
EXHIBIT 99.2
NON-COMPETITION AGREEMENT
THIS NON-COMPETITION AGREEMENT (the "Agreement") is entered into as of
March 22, 1999 by and among Ticketmaster Online-CitySearch, Inc., a Delaware
corporation ("Parent"), CityAuction, Inc., a California corporation (the
"Company") and Monica Lee (the "Manager").
Background
A. Parent, Nero Acquisition Corporation ("Sub") and the Company have
entered into an Agreement and Plan of Reorganization dated as of January 8,
1999 (the "Reorganization Agreement"), which provides for the merger (the
"Merger") of Sub with and into the Company. Capitalized terms not otherwise
defined in this Agreement have the meanings defined for them in the
Reorganization Agreement.
B. As a condition to the Merger, to preserve the value of the business
being acquired by Parent, the Reorganization Agreement contemplates, among other
things, that the Manager enter into this Agreement effective upon the Effective
Time of the Merger.
NOW THEREFORE, in consideration of the mutual promises made in this
Agreement, Parent, the Company and the Manager agree as follows:
1. Covenant Not to Compete or Solicit.
----------------------------------
(a) For two (2) years after the termination of Manager's employment
with Parent, the Company or any sudsidiary thereof (the "Non-Compete Period"),
the Manager shall not directly or indirectly for herself or on behalf of
or in conjunction with any other person, company, partnership, corporation,
business, group or other entity, without the prior written consent of Parent,
engage anywhere in the world in (whether as an employee, consultant, proprietor,
partner, director or otherwise), or have any ownership interest in (except for
ownership of one percent (1%) or less of the outstanding securities of an entity
whose securities are listed on a national securities exchange), or participate
in the financing, operation, management or control of, any firm, corporation or
business or any business unit of any firm or corporation in any business
involving the on-line ticketing, city guide, on-line auctions, and/or on-line
classifieds businesses.
During the Non-Compete Period, the Manager shall not, directly or
indirectly, without the prior written consent of Parent, (i) solicit, encourage,
hire or take any other action which is intended to induce any employee of the
Company or Parent or any subsidiary thereof to terminate his or her employment
with the Company or Parent or any subsidiary thereof (as the case may be), or
(ii) interfere in any manner with the contractual or employment relationship
between the Company and any employee of the Company or Parent and any employee
of Parent or any subsidiary of the Company or Parent and any employee of any
such subsidiary.
<PAGE>
(b) The covenants contained in the preceding paragraphs shall be
construed as a series of separate convents, one of each county, city and state
of any geographic area where any business is presently carried on by Parent or
the Company. Except for geographic coverage, each such separate covenant shall
be identical in terms to the covenant contained in the preceding paragraphs. If,
in any judicial proceeding, a court refuses to enforce any of such separate
covenants (or any part thereof), then such unenforceable covenant (or such part)
shall be eliminated from this Agreement to the extent necessary to permit the
remaining separate covenants (or portions thereof) to be enforced. In the event
that the provisions of this Section 1 are deemed to exceed the time, geographic
or scope limitations permitted by applicable law, then such provisions shall be
reformed to the maximum time, geographic or scope limitations, as the case may
be, permitted by applicable laws.
(c) The Manager acknowledges that the Manager's covenant not to compete
or solicit contained in this Section 1 is a condition precedent to the Merger to
preserve the value of the business being purchased by Parent pursuant to the
Merger. The Manager further acknowledges that breach of this Section 1 would
cause irreparable injury to Parent and the Company and agrees that in the event
of such breach, Parent and the Company shall each be entitled to injunctive
relief without the necessity of proving actual damages.
2. Miscellaneous.
-------------
(a) Severability. If any portion of this Agreement is held by a court of
------------
competent jurisdiction to conflict with any federal, state or local law, such
portion of this Agreement shall be of no force or effect and this Agreement
shall otherwise remain in full force and effect and be construed as if such
portion had not been included in this Agreement.
(b) No Assignment. The Manager shall not assign this Agreement or any
-------------
rights or obligations under this Agreement without the prior written consent of
Parent.
(c) Notice. Any notice or other communication required or permitted
------
under this Agreement shall be made in writing and delivered personally to the
other parties or sent by certified or registered mail, return receipt requested
and postage prepaid to the addresses set forth on the signature page hereto or
such other address as any such party shall have furnished to the other parties
in writing in accordance with this Section 2(c).
(d) Entire Agreement. This Agreement contains the entire agreement and
----------------
understanding of the parties and supersedes all prior discussions, agreements
and understandings relating to the subject matter of this Agreement. This
Agreement may not be changed or modified, except by an agreement in writing
executed by Parent and the Manager.
(e) Effectiveness: Term. This Agreement shall become effective upon the
-------------------
Effective Date and shall continue in full force and effect for two (2) years
from its effectiveness.
(f) Other. The waiver of a breach of any term or provision of this
-----
Agreement shall not operate as or be construed to be a waiver of any other
previous or subsequent breach of this
-2-
<PAGE>
Agreement. This Agreement shall be governed by the laws of the State of
California. All captions and section headings used in this Agreement are for
convenient reference only and do not form a part of this Agreement. This
Agreement may be executed in counterparts, and each counterpart shall have the
same force and effect as an original and shall constitute an effective,
binding agreement on the part of each of the undersigned.
-3-
<PAGE>
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written above.
TICKETMASTER ONLINE-CITYSEARCH, INC. MANAGER
By: /s/ Douglas McPherson /s/ Monica Lee
-------------------------------- -------------------------------
Name: Douglas McPherson Name: Monica Lee
Title: VP/CLO Address: 2286 Jackson St. Apt. #8
Address: San Francisco, CA 94115
CITYAUCTION, INC.
/s/ Andrew Rebele
By: -------------------------------
Name: Andrew Rebele
Title: President
Address:
[Signature Page to Non-Competition Agreement]
-4-
<PAGE>
EXHIBIT 99.3
TICKETMASTER ONLINE - CITYSEARCH, INC.
EMPLOYMENT AGREEMENT
This Agreement (the "Agreement") is made as of March 29, 1999 by and
between Ticketmaster Online - CitySearch, Inc., a Delaware corporation (the
"Company"), and Andrew Rebele (the "Executive").
1. Employment and Duties. Effective as of the effective date (the
---------------------
"Effective Date") of the merger transaction (the "Merger") contemplated by that
certain Reorganization Agreement dated January 8, 1999 by and among the Company,
CityAuction, Inc, a California corporation, Executive and Monica Lee, (the
"Reorganization Agreement"), Executive shall be employed as an Executive Vice
President of the Company, reporting directly to the Chief Executive Officer,
President or Chief Operating Officer of the Company, as the Company designates,
and assuming and discharging such responsibilities as are commensurate with such
office and position. Executive shall comply with and be bound by the Company's
operating policies, procedures and practices as in effect from time to time
during the term of Executive's employment hereunder. During the term of
Executive's employment with the Company, Executive shall devote his full
business time, skill and attention to his duties and responsibilities, and shall
perform them faithfully, diligently and competently, and Executive shall use his
best efforts to further the business of the Company and its affiliated entities.
Notwithstanding the above, Executive shall be free to support and pursue outside
businesses which do not violate the Non-Competition Agreement attached as
Exhibit B, as long as such support and pursuit is done outside of normal
business hours.
2. At-Will Employment. The Company and Executive acknowledge that
------------------
Executive's employment hereunder is and shall continue to be at-will (as defined
under applicable law), and may be terminated at any time, with or without cause,
at the option of either party. If Executive's employment terminates for any
reason, Executive shall not be entitled to any payments, benefits, damages,
awards or compensation other than as specifically provided by this Agreement, or
as may otherwise be established pursuant to the then existing benefit plans or
policies of the Company in effect at the time of such termination. No provision
of this Agreement shall be construed as conferring upon Executive a right to
continue in his position or in any other position with the Company.
3. Salary. In consideration of Executive's services, Executive will be
------
paid a minimum base salary at the rate of $125,000 per year (the "Base Salary")
during the term of his employment, to be paid in installments in accordance with
the Company's standard payroll practices. Executive's Base Salary shall be
reevaluated by the Board of Directors of the Company (or persons appointed by
the Board of Directors), at the same frequency as the Company's other executive
officers. Executive shall receive his salary retroactive to January 1, 1999.
4. Benefits; Expenses. Executive shall be permitted, to the extent
------------------
eligible, to participate in the employee benefit plans and programs maintained
by the Company and offered to employees of comparable position, including
without limitation retirement plans, savings and profit sharing plans,
<PAGE>
stock option, incentive or other bonus plans, group medical, dental, life,
disability and other insurance plans and other similar benefit plans of the
Company, subject in each case to the generally applicable terms and conditions
of the applicable plan or program and to the determination of the Company or any
committee administering such plan or program.
The Company shall reimburse Executive for all reasonable business and
travel expenses actually incurred or paid by Executive in the performance of
Executive's services on behalf of the Company, in accordance with the Company's
expense reimbursement policy as in effect from time to time.
5. Vacation. Executive shall be entitled to paid Company holidays and
--------
vacation in accordance with the Company's policies in effect from time to time
for its executive officers.
6. Stock Options.
-------------
(a) On the Effective Date, the Company shall grant to Executive two
stock options (the "Reorganization Agreement Stock Options") to purchase Class B
Common Stock of the Company under the Company's 1998 Stock Option Plan in
accordance with the terms of the Reorganization Agreement and the vesting
provisions described therein. The vesting commencement date with respect to such
options shall be February 15, 1999.
(b) On the Effective Date, the Company and Executive shall enter into
an amendment agreement to the Restricted Stock Purchase Agreement dated
September , 1998 by and between Executive and CityAuction, Inc. (which
--
agreement is being assumed by the Company upon the closing of the Merger) (the
"Restricted Stock Purchase Agreement"). The amendment will reflect that 50% of
the shares issued to Executive pursuant to such agreement shall be subject to a
right of repurchase by the Company (the "Repurchase Right") for a two year
period after the Effective Date in accordance with the terms set forth in the
Reorganization Agreement.
(c) The Reorganization Agreement Stock Options referred to above
shall reflect that in the event of an Acquisition Event (as defined below),
Executive shall receive six months acceleration of vesting, along with any
additional compensation or acceleration granted to other Company stockholders
and optionholders in their capacity as such as a result of the Acquisition
Event, of the Reorganization Agreement Options held by him. For purposes of this
Section 6(c), an Acquisition Event shall mean the sale of all or substantially
all of the assets of the Company, a merger or consolidation of the Company with
or into any other corporation or corporations, or the merger of any other
corporation or corporations into the Company, or any other corporate
reorganization, in which sale of assets, consolidation, reorganization or merger
the stockholders of the Company receive distributions in cash or securities of
another corporation or corporations as a result of such sale of assets,
consolidation, reorganization or merger, unless the stockholders of the Company
hold as a result of their stock holdings in the Company more than fifty percent
(50%) of the voting equity securities of the successor or surviving corporation
immediately following such merger, sale of assets, reorganization or
consolidation. Neither the Merger nor the transaction contemplated by that
agreement dated February 9, 1999 by and among USA Networks, Inc.
-2-
<PAGE>
("USAi"), Lycos, Inc. ("Lycos") and the Company relating to the combination of
the Company, Lycos and certain businesses of USAi shall be an Acquisition Event.
7. Termination by Company.
----------------------
(a) The Company may terminate the Executive's employment in the event
Executive is unable, for a period of at least three consecutive months, due to
illness, accident or other physical or mental incapacity, to perform his duties
hereunder; provided, that in the event Executive shall become permanently
unable, due to illness, accident or other physical and mental incapacity, to
perform such duties, the Company may forthwith terminate his employment, prior
to the expiration of such three month period;
(b) The Company may terminate the Executive's employment for "Cause"
which is defined as any one or more of the following occurrences:
(i) Executive's conviction by, or entry of a plea of guilty or
nolo contendere in, a court of competent and final jurisdiction for any crime
which constitutes a felony in the jurisdiction involved;
(ii) Executive's commission of an act of fraud or
misappropriation of material property, whether prior to or subsequent to the
date hereof, upon the Company, or any of its respective affiliates;
(iii) A willful breach by Executive of a material provision of
this Agreement;
(iv) Failure of Executive to perform the lawful duties and
responsibilities assigned to him by the Company, as determined by the Company's
Board of Directors in its discretion.
Notwithstanding the foregoing, Executive shall not be deemed to have been
terminated for Cause without (i) reasonable notice to Executive setting forth
the reasons for Company's intention to terminate for Cause and (ii) an
opportunity for Executive, together with his counsel, if any, to be heard.
(c) The Company may terminate Executive's employment for any other reason
upon not less than 30 days advance written notice to Executive.
8. Termination by Executive. Executive may terminate Executive's
------------------------
employment hereunder at any time upon 30 days advance written notice to Company.
9. Effect of Termination.
---------------------
(a) Except as otherwise expressly set forth in this Section 9,
Executive's right to receive salary or any other payments not required by law
shall cease upon the effective date of any termination of Executive's employment
and the Company shall have no further liability or obligation
-3-
<PAGE>
to the Executive, his executors, administrators or assigns hereunder except for
unpaid salary and benefits accrued to the date of termination.
(b) If Executive is terminated without Cause or pursuant to a
Constructive Termination (as defined below), then Executive shall receive (i)
full acceleration of vesting of the shares held by him pursuant to the
Restricted Stock Purchase Agreement, as amended, and (ii) one year accelerated
vesting of the Reorganization Agreement Options held by him. If Executive is
terminated for Cause or terminates as a result of a Voluntary Resignation (as
defined below) or for any other reason, then Executive shall not be entitled to
any accelerated vesting with respect to the shares and options held by him
referenced above. For purposes of this Agreement, (i) a "Voluntary Resignation"
means the Executive's voluntary resignation from employment, excluding a
voluntary resignation as a result of a Constructive Termination and (ii)
"Constructive Termination" means (A) a material reduction in salary and benefits
other than a reduction applied to all employees, (B) a requirement to relocate
without the Executive's consent beyond 50 miles from the principal offices of
the Company in Pasadena, California (except with respect to the relocation of
the Company's headquarters) or CityAuction, Inc.'s offices in San Francisco or
Seattle, (C) a material reduction in responsibilities reasonably accorded or
expected of an Executive Vice President of the Company, (D) the Company
materially breaches the terms of this Agreement or any other agreement between
the Executive and the Company with respect to the payment or vesting of
compensation or benefits or in any other material respect and such breach is not
cured within 30 days after the Company receives written notice thereof, and
(E) the Company requires the Executive, as a condition to his continued
employment with the Company, to perform felonious or fraudulent acts or
omissions; provided, however, that a Constructive Termination shall not include
any matters set forth in (A), (B) and (C) above which are proposed by the
Company and agreed to by Executive.
10. Confidential Information and Noncompetition Agreements. The Company
------------------------------------------------------
and Executive shall execute and deliver contemporaneously with the execution and
delivery of this Agreement, the Confidential Information and Invention
Assignment Agreement and the Noncompetition Agreement attached hereto as
Exhibits A and B, respectively.
11. Successors. The Company shall require any successor or assignee, in
----------
connection with any sale, transfer or other disposition of all or substantially
all of the Company's assets or business, whether by purchase, merger,
consolidation or otherwise, expressly to assume and agree to perform the
Company's obligations under this Agreement in the same manner and to the same
extent that the Company would be required to perform if no such succession or
assignment had taken place. In such event, the term "Company," as used in this
Agreement, shall mean any successor or assignee to the business and assets which
by reason hereof becomes bound by the terms and provisions of this Agreement.
12. Arbitration.
-----------
(a) Any claim, dispute or controversy arising out of this Agreement,
the interpretation, validity or enforceability of this Agreement or the alleged
breach thereof shall be submitted by the parties to binding arbitration by the
American Arbitration Association in California; provided, however, that this
arbitration provision shall not preclude the Company from seeking
-4-
<PAGE>
injunctive relief from any court having jurisdiction with respect to any
disputes or claims relating to or arising out of the misuse or misappropriation
of the trade secrets or confidential and proprietary information of the Company,
or any of its respective affiliates. The losing party to any such arbitration
shall bear all costs of the arbitration, including the reasonable fees and
expenses of counsel and experts retained by both parties. The fees and expenses
of counsel and experts retained by each party shall be paid by the party
retaining such services. Judgment may be entered on the award of the arbitrator
in any court having jurisdiction.
(b) EXECUTIVE HAS READ AND UNDERSTANDS THIS SECTION, WHICH DISCUSSES
ARBITRATION. EXECUTIVE UNDERSTANDS THAT BY SIGNING THIS AGREEMENT, EXECUTIVE
AGREES TO SUBMIT ANY FUTURE CLAIMS ARISING OUT OF, RELATING TO, OR IN CONNECTION
WITH HIS EMPLOYMENT OR TERMINATION THEREOF, OR THE INTERPRETATION, VALIDITY,
CONSTRUCTION, PERFORMANCE OR BREACH OF THIS AGREEMENT, TO BINDING ARBITRATION,
AND THAT THIS ARBITRATION SECTION CONSTITUTES A WAIVER OF EXECUTIVE'S RIGHT TO A
JURY TRIAL AND RELATES TO THE RESOLUTION OF ALL DISPUTES RELATING TO ALL ASPECTS
OF THE EXECUTIVE/COMPANY RELATIONSHIP, INCLUDING BUT NOT LIMITED TO,
DISCRIMINATION CLAIMS.
13. Governing Law. This Agreement shall be governed by and construed in
-------------
accordance with the laws of the State of California applicable to agreements
made and to be performed entirely within such state.
14. Integration. This Agreement and any written Company plans and written
-----------
agreements between the parties that are referenced herein represent the entire
agreement and understanding between the parties hereto as to the subject matter
hereof and supersede all prior or contemporaneous agreements, whether written or
oral. No waiver, alteration, or modification, if any, of the provisions of this
Agreement shall be binding unless in writing and signed by duly authorized
representatives of the parties hereto.
15. Assignment. This Agreement and all rights under this Agreement shall
----------
be binding upon and inure to the benefit of and be enforceable by the parties
hereto and their respective personal or legal representatives, executors,
administrators, heirs, distributees, devisees, legatees, successors and assigns.
The Executive shall not, without the written consent of the Company, assign or
transfer this Agreement or any right or obligation under this Agreement to any
other person or entity. If Executive should die while any amounts are still
payable to Executive hereunder, all such amounts, unless otherwise provided
herein, shall be paid in accordance with the terms of this Agreement to the
Executive's devisee, legatee, or other designee or, if there be no such
designee, to the Executive's estate.
16. Counterparts. This Agreement may be executed in counterparts, which
------------
together will constitute one instrument.
17. Surviving Provisions. Notwithstanding any other provision of this
--------------------
Agreement, the provisions of Sections 4 through 6, and 9 through 16 shall
survive the termination of this Agreement.
-5-
<PAGE>
IN WITNESS WHEREOF, each of the parties has executed this Agreement, in the
case of the Company by its duly authorized officer, as of the day and year first
set forth above.
TICKETMASTER ONLINE - CITYSEARCH, INC.
By: /s/ Douglas McPherson
--------------------------
Title: VP/CLO
-----------------------
EXECUTIVE
/s/ Andrew Rebele
- ------------------------------
Andrew Rebele
-6-
<PAGE>
EMPLOYEE INVENTIONS & CONFIDENTIALITY AGREEMENT
-----------------------------------------------
Andrew Rebele ("Employee"), in consideration of his/her employment and/or
continued employment with CITYSEARCH, INC. ("CitySearch"), a Delaware
corporation, and of the compensation paid for his/her services in the course of
his/her employment, agrees as follows:
1. Employee understands that CitySearch has no interest in and will not
accept disclosure by Employee of any confidential CitySearch information to a
third party.
2. During and after employment by CitySearch, Employee agrees to keep
secret and confidential, and will not disclose, transfer to others or use any
proprietary information relating to the business or affairs of CitySearch
(including its affiliates) or any third parties doing business with CitySearch
which Employee may acquire during the course of his/her employment. Such
information includes, but shall not be limited to, any information, software,
sales approach, manufacturing technique, design, process, formula, development
or experimental work, work in process, business trade secret, or any other
secret or confidential matter relating to the products, services, customers,
suppliers, sales or business affairs of CitySearch, as well as all information
regarding the names, buying habits or practices of any of its customers, its
marketing methods and related data, the names of any of its vendors or
suppliers, cost of materials, the prices it obtains or has obtained or at which
it sells or has sold its product or services, manufacturing and sales costs,
lists or other written or computerized records used in its business,
compensation paid to employees and other terms of employment, and other
confidential information concerning CitySearch's manner of operation, all of
which are acknowledged by the parties hereto to be important and confidential
trade secrets which are necessary for the successful conduct of CitySearch's
business. Employee agrees to notify CitySearch immediately of any unauthorized
release of confidential CitySearch information.
3. Employee agrees that during his/her employment by CitySearch Employee:
(a) will not render services of a business, professional or commercial nature to
any other person or firm, whether for compensation or otherwise, if it
interferes with Employee's job duties at CitySearch in any way; (b) will notify
CitySearch if rendering any services of a business, professional or commercial
nature to any other person or firm; (c) will not engage in any activity
competitive with or adverse to CitySearch's business or welfare, whether alone,
as a partner, or as an officer, director, employee or shareholder of any other
corporation; and (d) will not undertake planning for or organization of any
business activity competitive with CitySearch or combine or conspire with other
employees or representatives of CitySearch for the purpose of organizing any
such competitive business.
4. Employee agrees that during his/her employment by CitySearch and for a
period of one year thereafter, Employee will not, directly or indirectly, either
for himself/herself or for others, do any of the following: (a) solicit, divert
or take away or attempt to solicit, divert or take away any of CitySearch's
customers; or (b) induce or influence any person who is engaged as an employee
or otherwise by CitySearch to terminate his/her employment or other engagement;
or (c) undertake any employment or activity competitive with CitySearch wherein
the fulfillment of the duties of the competitive employment or activity would
call upon Employee to reveal or use any of its proprietary information.
5. Employee recognizes that his/her knowledge of some of CitySearch's
proprietary information may be so sensitive and so inter-related with his/her
job activities that it will be difficult for Employee to work for another in
similar employment without disclosure, advertent or inadvertent, of such
proprietary information. Employee understands that he/she has the right to use
or practice any skills or expertise generally associated with Employee's
employment not special or unique to CitySearch.
6. All inventions, discoveries, developments and improvements conceived
or made by Employee, alone or with others, prior to Employee's employment by
CitySearch are listed and described on the reverse side of this page. To the
best of Employee's knowledge this list is complete (or if no items are so
listed, Employee has nothing to so disclose). Employee understands that his/her
failure to list any item will require that Employee demonstrate through clear,
tangible evidence that Employee or his/her assigns own any item which CitySearch
believes it owns. If it is
<PAGE>
determined that Employee owns any unlisted item, and CitySearch has expended
monies to develop it, CitySearch shall be entitled to the use of same without
royalty payments to Employee or his/her assigns.
7. Employee will promptly and fully inform CitySearch of all inventions,
discoveries, developments and improvements that Employee may conceive, discover,
develop or make during Employee's employment, whether made solely or jointly
with others, and whether or not patentable, if such conception, discovery or
making involves the use of CitySearch's time, facilities, resources, equipment
or personnel (collectively, "Inventions"). Employee acknowledges and agrees that
all such Inventions relating to any work Employee performs for CitySearch or any
business in which CitySearch is or intends to be engaged are "works for hire"
under applicable law and shall belong to CitySearch. Employee further agrees to
assign, and does hereby assign, to CitySearch all right, title and interest in
and to any and all such Inventions and agrees to execute all documents deemed
necessary or desirable by CitySearch in connection therewith, including patent
and/or copyright assignments, and to cooperate both during and after Employee's
employment with CitySearch, at CitySearch's expense, in all further actions
deemed necessary or desirable to confirm, register, protect or enforce
CitySearch's right therein. Employee acknowledges that the foregoing assignment
does not include any Invention unrelated to CitySearch's business or research
which meets the requirements of Section 2870 of the California Labor Code.
8. Employee also shall assign in writing any right to or interest
Employee has in any CitySearch inventions to the United States government, if
requested by CitySearch. This obligation will continue at all times after the
termination of Employee's employment. If CitySearch cannot for any reason,
including any mental or physical incapacity, secure Employee's signature to
apply for or pursue any application for any United States or foreign letters
patent, copyright, or trademark registrations (or on any document transferring
ownership thereof) covering CitySearch inventions, Employee hereby irrevocably
designates and appoints CitySearch and its officers and agents as Employee's
agent and attorney in fact, to act for and in Employee's behalf and stead to
execute and file any such applications and documents, and to do all other
lawfully permitted acts to further the prosecution and issuance of letters
patent, copyright, or trademark registrations or transfers thereof with the same
legal force and effect as if executed by Employee. This appointment is coupled
with an interest in the CitySearch inventions and will survive Employee's death
or disability. Employee hereby quitclaims to CitySearch all claims of any nature
whatsoever Employee may now or hereafter have for infringement of any patents,
copyright, or trademark resulting from or relating to any such application for
letters patent, copyright, or trademark registrations.
9. Upon termination of employment, or on demand at any time prior
thereto, Employee agrees to deliver promptly to CitySearch all devices, data,
models, samples, tools, equipment, designs, notes, reports, proposals, lists,
books, correspondence, specifications, drawings, blueprints, sketches, materials
and other written and graphical records (including all copies thereof) in
Employee's possession or under his/her control relating to any product,
business, work, customer, supplier, or other aspect of CitySearch.
10. This Agreement contains the entire understanding of the parties
concerning inventions and confidentiality, and supersedes any and all other
agreements between them, whether oral or written, implied or express. Even
though CitySearch may fail to insist on strict compliance with any of the
conditions of this Agreement, such failure shall not be deemed a waiver of any
of the terms or conditions of this Agreement. Any modification to this Agreement
will be effective only if in writing and fully executed by Employee and
CitySearch.
11. Employee understands that his/her obligations hereunder shall continue
in effect beyond his/her employment and shall be binding upon Employee's
assigns, heirs, executors, administrators and legal representatives.
12. Employee represents that his/her performance of the terms of this
Agreement and of his/her employment with CitySearch will not breach any
agreement to keep in confidence proprietary information acquired by Employee in
confidence or in trust prior to Employee's employment by CitySearch. Employee
further agrees to notify all of Employee's present, future and prospective
employers of the existence of this Agreement, and recognizes CitySearch's right
to do the same.
<PAGE>
13. The provisions of this Agreement are severable; and if any one or more
provisions may be determined to be unenforceable, in whole or in part, the
remaining provisions, and any partially unenforceable provisions to the extent
enforceable in any jurisdiction, shall nevertheless be binding and enforceable.
14. This Agreement shall be governed by and construed, interpreted and
enforced under the laws of the State of California and the United States without
regard to conflict of laws provisions thereof. The sole jurisdiction and venue
for actions related to the subject matter hereof shall be California state and
U.S. federal courts having within their jurisdiction the location of
CitySearch's principal place of business. Employee consents to the jurisdiction
of such courts. In the event of a breach or threatened breach of this Agreement,
Employee acknowledges and agrees that due to the unique nature of the
confidential CitySearch information, there can be no adequate remedy at law for
any breach of Employee's obligations hereunder, that any such breach may allow
Employee or third parties to compete unfairly with CitySearch resulting in
irreparable harm to CitySearch and, therefore that upon any such breach or
threat thereof, CitySearch shall be entitled to preliminary and/or permanent
injunctive relief and/or other appropriate equitable relief in addition to
whatever remedies it may have at law. All remedies of CitySearch shall be
cumulative and nothing shall prohibit CitySearch from pursuing any other legal
or equitable remedy available to CitySearch under this Agreement, at law, in
equity, or otherwise. In addition, the prevailing party in any legal dispute
hereunder shall be entitled to collect from the other party its reasonable
attorney's fees and expenses.
15. Employee acknowledges that nothing herein shall be construed as any
assurance, promise, or guarantee of employment or continued employment.
/s/ Andrew Rebele
- ------------------------------------- -----------------------------------
Employee Witness
Print Name: Print Name:
Andrew Rebele
- ------------------------------------- -----------------------------------
Date: 3/28 , 1999 Date: , 19
-------------------------- -- ------------------------ --
<PAGE>
EXHIBIT 99.4
TICKETMASTER ONLINE - CITYSEARCH, INC.
EMPLOYMENT AGREEMENT
This Agreement (the "Agreement") is made as of March 29, 1999 by and
between Ticketmaster Online - CitySearch, Inc., a Delaware corporation (the
"Company"), and Monica Lee (the "Executive").
1. Employment and Duties. Effective as of the effective date (the
---------------------
"Effective Date") of the merger transaction (the "Merger") contemplated by that
certain Reorganization Agreement dated January 8, 1999 by and among the Company,
CityAuction, Inc, a California corporation, Executive and Andrew Rebele, (the
"Reorganization Agreement"), Executive shall be employed as Director of Business
Development of the Company, reporting directly to Andrew Rebele and assuming and
discharging such responsibilities as are commensurate with such office and
position. Executive shall comply with and be bound by the Company's operating
policies, procedures and practices as in effect from time to time during the
term of Executive's employment hereunder. During the term of Executive's
employment with the Company, Executive shall devote her full business time,
skill and attention to her duties and responsibilities, and shall perform them
faithfully, diligently and competently, and Executive shall use her best efforts
to further the business of the Company and its affiliated entities.
Notwithstanding the above, Executive shall be free to support and pursue outside
businesses which do not violate the Non-Competition Agreement attached as
Exhibit B, as long as such support and pursuit is done outside normal business
hours.
2. At-Will Employment. The Company and Executive acknowledge that
------------------
Executive's employment hereunder is and shall continue to be at-will (as defined
under applicable law), and may be terminated at any time, with or without cause,
at the option of either party. If Executive's employment terminates for any
reason, Executive shall not be entitled to any payments, benefits, damages,
awards or compensation other than as specifically provided by this Agreement, or
as may otherwise be established pursuant to the then existing benefit plans or
policies of the Company in effect at the time of such termination. No provision
of this Agreement shall be construed as conferring upon Executive a right to
continue in his position or in any other position with the Company.
3. Salary. In consideration of Executive's services, Executive will be
------
paid a minimum base salary at the rate of $85,000 per year (the "Base Salary")
during the term of her employment, to be paid in installments in accordance with
the Company's standard payroll practices. Executive's Base Salary shall be
reevaluated by the Board of Directors of the Company (or persons appointed by
the Board of Directors), at the same frequency as the Company's other executive
officers. Executive shall receive her salary retroactive to January 1, 1999.
<PAGE>
4. Benefits; Expenses. Executive shall be permitted, to the extent
------------------
eligible, to participate in the employee benefit plans and programs maintained
by the Company and offered to employees of comparable position, including
without limitation retirement plans, savings and profit sharing plans, stock
option, incentive or other bonus plans, group medical, dental, life, disability
and other insurance plans and other similar benefit plans of the Company,
subject in each case to the generally applicable terms and conditions of the
applicable plan or program and to the determination of the Company or any
committee administering such plan or program.
The Company shall reimburse Executive for all reasonable business and
travel expenses actually incurred or paid by Executive in the performance of
Executive's services on behalf of the Company, in accordance with the Company's
expense reimbursement policy as in effect from time to time.
5. Vacation. Executive shall be entitled to paid Company holidays and
--------
vacation in accordance with the Company's policies in effect from time to time
for its executive officers.
6. Stock Options.
-------------
(a) On the Effective Date, the Company shall grant to Executive two
stock options (the "Reorganization Agreement Stock Options") to purchase Class B
Common Stock of the Company under the Company's 1998 Stock Option Plan in
accordance with the terms of the Reorganization Agreement and the vesting
provisions described therein. The vesting commencement date with respect to such
options shall be February 15, 1999.
(b) On the Effective Date, the Company and Executive shall enter into
an amendment agreement to the Restricted Stock Purchase Agreement dated
September , 1998 by and between Executive and CityAuction, Inc. (which
--
agreement is being assumed by the Company upon the closing of the Merger) (the
"Restricted Stock Purchase Agreement"). The amendment will reflect that 50% of
the shares issued to Executive pursuant to such agreement shall be subject to a
right of repurchase by the Company (the "Repurchase Right") for a two year
period after February 15, 1999 in accordance with the terms set forth in the
Reorganization Agreement.
(c) The Reorganization Agreement Stock Options referred to above
shall reflect that in the event of an Acquisition Event (as defined below),
Executive shall receive six months acceleration of vesting, along with any
additional compensation or acceleration granted to other Company stockholders
and optionholders in their capacity as such as a result of the Acquisition
Event, of the Reorganization Agreement Options held by her. For purposes of this
Section 6(c), an Acquisition Event shall mean the sale of all or substantially
all of the assets of the Company, a merger or consolidation of the Company with
or into any other corporation or corporations, or the merger of any other
corporation or corporations into the Company, or any other corporate
reorganization, in which sale of assets, consolidation, reorganization or merger
the stockholders of the Company receive distributions in cash or securities of
another corporation or corporations as a result of such
-2-
<PAGE>
sale of assets, consolidation, reorganization or merger, unless the stockholders
of the Company hold as a result of their stock holdings in the Company more than
fifty percent (50%) of the voting equity securities of the successor or
surviving corporation immediately following such merger, sale of assets,
reorganization or consolidation. Neither the Merger nor the transaction
contemplated by that agreement dated February 9, 1999 by and among USA Networks,
Inc. ("USAi"), Lycos, Inc. ("Lycos") and the Company relating to the combination
of the Company, Lycos and certain businesses of USAi shall be an Acquisition
Event.
7. Termination by Company.
----------------------
(a) The Company may terminate the Executive's employment in the event
Executive is unable, for a period of at least three consecutive months, due to
illness, accident or other physical or mental incapacity, to perform her duties
hereunder; provided, that in the event Executive shall become permanently
unable, due to illness, accident or other physical and mental incapacity, to
perform such duties, the Company may forthwith terminate her employment, prior
to the expiration of such three month period;
(b) The Company may terminate the Executive's employment for "Cause"
which is defined as any one or more of the following occurrences:
(i) Executive's conviction by, or entry of a plea of guilty or
nolo contendere in, a court of competent and final jurisdiction for any crime
which constitutes a felony in the jurisdiction involved;
(ii) Executive's commission of an act of fraud or
misappropriation of material property, whether prior to or subsequent to the
date hereof, upon the Company, or any of its respective affiliates;
(iii) A willful breach by Executive of a material provision of
this Agreement; and
(iv) Failure of Executive to perform the lawful duties and
responsibilities assigned to her by the Company, as determined by the Company's
Board of Directors in its discretion.
Notwithstanding the foregoing, Executive shall not be deemed to have been
terminated for Cause without (i) reasonable notice to Executive setting forth
the reasons for Company's intention to terminate for Cause and (ii) an
opportunity for Executive, together with her counsel, if any, to be heard.
(c) The Company may terminate Executive's employment for any other reason
upon not less than 30 days advance written notice to Executive.
8. Termination by Executive. Executive may terminate Executive's
------------------------
employment hereunder at any time upon 30 days advance written notice to Company.
-3-
<PAGE>
9. Effect of Termination.
---------------------
(a) Except as otherwise expressly set forth in this Section 9,
Executive's right to receive salary or any other payments not required by law
shall cease upon the effective date of any termination of Executive's employment
and the Company shall have no further liability or obligation to the Executive,
her executors, administrators or assigns hereunder except for unpaid salary and
benefits accrued to the date of termination.
(b) If Executive is terminated without Cause or pursuant to a
Constructive Termination (as defined below), then Executive shall receive (i)
full acceleration of vesting of the shares held by her pursuant to the
Restricted Stock Purchase Agreement, as amended, and (ii) one year accelerated
vesting of the Reorganization Agreement Options held by her. If Executive is
terminated for Cause or terminates as a result of a Voluntary Resignation (as
defined below) or for any other reason, then Executive shall not be entitled to
any accelerated vesting with respect to the shares and options held by her
referenced above. For purposes of this Agreement, (i) a "Voluntary Resignation"
means the Executive's voluntary resignation from employment, excluding a
voluntary resignation as a result of a Constructive Termination and (ii)
"Constructive Termination" means (A) a material reduction in salary and benefits
other than a reduction applied to all employees, (B) a requirement to relocate
without the Executive's consent beyond 50 miles from the principal offices of
the Company in Pasadena, California (except with respect to the relocation of
the Company's headquarters) or CityAuction, Inc.'s offices in San Francisco or
Seattle, (C) a material reduction in responsibilities reasonably accorded or
expected of a Director of Business Development of the Company, (D) the Company
materially breaches the terms of this Agreement or any other agreement between
the Executive and the Company with respect to the payment or vesting of
compensation or benefits or in any other material respect and such breach is not
cured within 30 days after the Company receives written notice thereof and (E)
the Company requires the Executive, as a condition to his continued employment
with the Company, to perform felonious or fraudulent acts or omissions;
provided, however, that a Constructive Termination shall not include any matters
set forth in (A), (B) and (C) above which are proposed by the Company and agreed
to by Executive.
10. Confidential Information and Noncompetition Agreements. The Company
------------------------------------------------------
and Executive shall execute and deliver contemporaneously with the execution and
delivery of this Agreement, the Confidential Information and Invention
Assignment Agreement and the Noncompetition Agreement attached hereto as
Exhibits A and B, respectively.
11. Successors. The Company shall require any successor or assignee, in
----------
connection with any sale, transfer or other disposition of all or substantially
all of the Company's assets or business, whether by purchase, merger,
consolidation or otherwise, expressly to assume and agree to perform the
Company's obligations under this Agreement in the same manner and to the same
extent that the Company would be required to perform if no such succession or
assignment had taken place. In such event, the term "Company," as used in this
Agreement, shall mean any successor or assignee
-4-
<PAGE>
to the business and assets which by reason hereof becomes bound by the terms and
provisions of this Agreement.
12. Arbitration.
-----------
(a) Any claim, dispute or controversy arising out of this Agreement,
the interpretation, validity or enforceability of this Agreement or the alleged
breach thereof shall be submitted by the parties to binding arbitration by the
American Arbitration Association in California; provided, however, that this
arbitration provision shall not preclude the Company from seeking injunctive
relief from any court having jurisdiction with respect to any disputes or claims
relating to or arising out of the misuse or misappropriation of the trade
secrets or confidential and proprietary information of the Company, or any of
its respective affiliates. The losing party to any such arbitration shall bear
all costs of the arbitration, including the reasonable fees and expenses of
counsel and experts retained by both parties. The fees and expenses of counsel
and experts retained by each party shall be paid by the party retaining such
services. Judgment may be entered on the award of the arbitrator in any court
having jurisdiction.
(b) EXECUTIVE HAS READ AND UNDERSTANDS THIS SECTION, WHICH DISCUSSES
ARBITRATION. EXECUTIVE UNDERSTANDS THAT BY SIGNING THIS AGREEMENT, EXECUTIVE
AGREES TO SUBMIT ANY FUTURE CLAIMS ARISING OUT OF, RELATING TO, OR IN CONNECTION
WITH HIS EMPLOYMENT OR TERMINATION THEREOF, OR THE INTERPRETATION, VALIDITY,
CONSTRUCTION, PERFORMANCE OR BREACH OF THIS AGREEMENT, TO BINDING ARBITRATION,
AND THAT THIS ARBITRATION SECTION CONSTITUTES A WAIVER OF EXECUTIVE'S RIGHT TO A
JURY TRIAL AND RELATES TO THE RESOLUTION OF ALL DISPUTES RELATING TO ALL ASPECTS
OF THE EXECUTIVE/COMPANY RELATIONSHIP, INCLUDING BUT NOT LIMITED TO,
DISCRIMINATION CLAIMS.
13. Governing Law. This Agreement shall be governed by and construed in
-------------
accordance with the laws of the State of California applicable to agreements
made and to be performed entirely within such state.
14. Integration. This Agreement and any written Company plans and written
-----------
agreements between the parties that are referenced herein represent the entire
agreement and understanding between the parties hereto as to the subject matter
hereof and supersede all prior or contemporaneous agreements, whether written or
oral. No waiver, alteration, or modification, if any, of the provisions of this
Agreement shall be binding unless in writing and signed by duly authorized
representatives of the parties hereto.
15. Assignment. This Agreement and all rights under this Agreement shall
----------
be binding upon and inure to the benefit of and be enforceable by the parties
hereto and their respective personal or legal representatives, executors,
administrators, heirs, distributees, devisees, legatees, successors and assigns.
The Executive shall not, without the written consent of the Company, assign or
transfer this Agreement or any right or obligation under this Agreement to any
other person or entity. If Executive should die while any amounts
-5-
<PAGE>
are still payable to Executive hereunder, all such amounts, unless otherwise
provided herein, shall be paid in accordance with the terms of this Agreement to
the Executive's devisee, legatee, or other designee or, if there be no such
designee, to the Executive's estate.
16. Counterparts. This Agreement may be executed in counterparts, which
------------
together will constitute one instrument.
17. Surviving Provisions. Notwithstanding any other provision of this
--------------------
Agreement, the provisions of Sections 4 through 6, and 9 through 16 shall
survive the termination of this Agreement.
-6-
<PAGE>
IN WITNESS WHEREOF, each of the parties has executed this Agreement, in the
case of the Company by its duly authorized officer, as of the day and year first
set forth above.
TICKETMASTER ONLINE - CITYSEARCH, INC.
By: /s/ Douglas McPherson
--------------------------
Title: VP/CLO
-----------------------
EXECUTIVE
/s/ Monica Lee
- ------------------------------
Monica Lee
-7-
<PAGE>
EMPLOYEE INVENTIONS & CONFIDENTIALITY AGREEMENT
-----------------------------------------------
Monica Lee ("Employee"), in consideration of his/her employment and/or
continued employment with CITYSEARCH, INC. ("CitySearch"), a Delaware
corporation, and of the compensation paid for his/her services in the course of
his/her employment, agrees as follows:
1. Employee understands that CitySearch has no interest in and will not
accept disclosure by Employee of any confidential CitySearch information to a
third party.
2. During and after employment by CitySearch, Employee agrees to keep
secret and confidential, and will not disclose, transfer to others or use any
proprietary information relating to the business or affairs of CitySearch
(including its affiliates) or any third parties doing business with CitySearch
which Employee may acquire during the course of his/her employment. Such
information includes, but shall not be limited to, any information, software,
sales approach, manufacturing technique, design, process, formula, development
or experimental work, work in process, business trade secret, or any other
secret or confidential matter relating to the products, services, customers,
suppliers, sales or business affairs of CitySearch, as well as all information
regarding the names, buying habits or practices of any of its customers, its
marketing methods and related data, the names of any of its vendors or
suppliers, cost of materials, the prices it obtains or has obtained or at which
it sells or has sold its product or services, manufacturing and sales costs,
lists or other written or computerized records used in its business,
compensation paid to employees and other terms of employment, and other
confidential information concerning CitySearch's manner of operation, all of
which are acknowledged by the parties hereto to be important and confidential
trade secrets which are necessary for the successful conduct of CitySearch's
business. Employee agrees to notify CitySearch immediately of any unauthorized
release of confidential CitySearch information.
3. Employee agrees that during his/her employment by CitySearch Employee:
(a) will not render services of a business, professional or commercial nature to
any other person or firm, whether for compensation or otherwise, if it
interferes with Employee's job duties at CitySearch in any way; (b) will notify
CitySearch if rendering any services of a business, professional or commercial
nature to any other person or firm; (c) will not engage in any activity
competitive with or adverse to CitySearch's business or welfare, whether alone,
as a partner, or as an officer, director, employee or shareholder of any other
corporation; and (d) will not undertake planning for or organization of any
business activity competitive with CitySearch or combine or conspire with other
employees or representatives of CitySearch for the purpose of organizing any
such competitive business.
4. Employee agrees that during his/her employment by CitySearch and for a
period of one year thereafter, Employee will not, directly or indirectly, either
for himself/herself or for others, do any of the following: (a) solicit, divert
or take away or attempt to solicit, divert or take away any of CitySearch's
customers; or (b) induce or influence any person who is engaged as an employee
or otherwise by CitySearch to terminate his/her employment or other engagement;
or (c) undertake any employment or activity competitive with CitySearch wherein
the fulfillment of the duties of the competitive employment or activity would
call upon Employee to reveal or use any of its proprietary information.
5. Employee recognizes that his/her knowledge of some of CitySearch's
proprietary information may be so sensitive and so inter-related with his/her
job activities that it will be difficult for Employee to work for another in
similar employment without disclosure, advertent or inadvertent, of such
proprietary information. Employee understands that he/she has the right to use
or practice any skills or expertise generally associated with Employee's
employment not special or unique to CitySearch.
6. All inventions, discoveries, developments and improvements conceived
or made by Employee, alone or with others, prior to Employee's employment by
CitySearch are listed and described on the reverse side of this page. To the
best of Employee's knowledge this list is complete (or if no items are so
listed, Employee has nothing to so disclose). Employee understands that his/her
failure to list any item will require that Employee demonstrate through
<PAGE>
clear, tangible evidence that Employee or his/her assigns own any item which
CitySearch believes it owns. If it is determined that Employee owns any unlisted
item, and CitySearch has expended monies to develop it, CitySearch shall be
entitled to the use of same without royalty payments to Employee or his/her
assigns.
7. Employee will promptly and fully inform CitySearch of all inventions,
discoveries, developments and improvements that Employee may conceive, discover,
develop or make during Employee's employment, whether made solely or jointly
with others, and whether or not patentable, if such conception, discovery or
making involves the use of CitySearch's time, facilities, resources, equipment
or personnel (collectively, "Inventions"). Employee acknowledges and agrees that
all such Inventions relating to any work Employee performs for CitySearch or any
business in which CitySearch is or intends to be engaged are "works for hire"
under applicable law and shall belong to CitySearch. Employee further agrees to
assign, and does hereby assign, to CitySearch all right, title and interest in
and to any and all such Inventions and agrees to execute all documents deemed
necessary or desirable by CitySearch in connection therewith, including patent
and/or copyright assignments, and to cooperate both during and after Employee's
employment with CitySearch, at CitySearch's expense, in all further actions
deemed necessary or desirable to confirm, register, protect or enforce
CitySearch's right therein. Employee acknowledges that the foregoing assignment
does not include any Invention unrelated to CitySearch's business or research
which meets the requirements of Section 2870 of the California Labor Code.
8. Employee also shall assign in writing any right to or interest
Employee has in any CitySearch inventions to the United States government, if
requested by CitySearch. This obligation will continue at all times after the
termination of Employee's employment. If CitySearch cannot for any reason,
including any mental or physical incapacity, secure Employee's signature to
apply for or pursue any application for any United States or foreign letters
patent, copyright, or trademark registrations (or on any document transferring
ownership thereof) covering CitySearch inventions, Employee hereby irrevocably
designates and appoints CitySearch and its officers and agents as Employee's
agent and attorney in fact, to act for and in Employee's behalf and stead to
execute and file any such applications and documents, and to do all other
lawfully permitted acts to further the prosecution and issuance of letters
patent, copyright, or trademark registrations or transfers thereof with the same
legal force and effect as if executed by Employee. This appointment is coupled
with an interest in the CitySearch inventions and will survive Employee's death
or disability. Employee hereby quitclaims to CitySearch all claims of any nature
whatsoever Employee may now or hereafter have for infringement of any patents,
copyright, or trademark resulting from or relating to any such application for
letters patent, copyright, or trademark registrations.
9. Upon termination of employment, or on demand at any time prior
thereto, Employee agrees to deliver promptly to CitySearch all devices, data,
models, samples, tools, equipment, designs, notes, reports, proposals, lists,
books, correspondence, specifications, drawings, blueprints, sketches, materials
and other written and graphical records (including all copies thereof) in
Employee's possession or under his/her control relating to any product,
business, work, customer, supplier, or other aspect of CitySearch.
10. This Agreement contains the entire understanding of the parties
concerning inventions and confidentiality, and supersedes any and all other
agreements between them, whether oral or written, implied or express. Even
though CitySearch may fail to insist on strict compliance with any of the
conditions of this Agreement, such failure shall not be deemed a waiver of any
of the terms or conditions of this Agreement. Any modification to this Agreement
will be effective only if in writing and fully executed by Employee and
CitySearch.
11. Employee understands that his/her obligations hereunder shall continue
in effect beyond his/her employment and shall be binding upon Employee's
assigns, heirs, executors, administrators and legal representatives.
12. Employee represents that his/her performance of the terms of this
Agreement and of his/her employment with CitySearch will not breach any
agreement to keep in confidence proprietary information acquired by Employee in
confidence or in trust prior to Employee's employment by CitySearch. Employee
further agrees to notify all of Employee's present, future and prospective
employers of the existence of this Agreement, and recognizes CitySearch's right
to do the same.
<PAGE>
13. The provisions of this Agreement are severable; and if any one or more
provisions may be determined to be unenforceable, in whole or in part, the
remaining provisions, and any partially unenforceable provisions to the extent
enforceable in any jurisdiction, shall nevertheless be binding and enforceable.
14. This Agreement shall be governed by and construed, interpreted and
enforced under the laws of the State of California and the United States without
regard to conflict of laws provisions thereof. The sole jurisdiction and venue
for actions related to the subject matter hereof shall be California state and
U.S. federal courts having within their jurisdiction the location of
CitySearch's principal place of business. Employee consents to the jurisdiction
of such courts. In the event of a breach or threatened breach of this Agreement,
Employee acknowledges and agrees that due to the unique nature of the
confidential CitySearch information, there can be no adequate remedy at law for
any breach of Employee's obligations hereunder, that any such breach may allow
Employee or third parties to compete unfairly with CitySearch resulting in
irreparable harm to CitySearch and, therefore that upon any such breach or
threat thereof, CitySearch shall be entitled to preliminary and/or permanent
injunctive relief and/or other appropriate equitable relief in addition to
whatever remedies it may have at law. All remedies of CitySearch shall be
cumulative and nothing shall prohibit CitySearch from pursuing any other legal
or equitable remedy available to CitySearch under this Agreement, at law, in
equity, or otherwise. In addition, the prevailing party in any legal dispute
hereunder shall be entitled to collect from the other party its reasonable
attorney's fees and expenses.
15. Employee acknowledges that nothing herein shall be construed as any
assurance, promise, or guarantee of employment or continued employment.
/s/ Monica Lee
- ------------------------------------ ___________________________________
Employee Witness
Print Name: Print Name:
Monica Lee
- ------------------------------------ ___________________________________
Date: March 28 , 1999 Date: , 19
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