EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT, made as of May 28, 1998, between SFX
ENTERTAINMENT, INC., a Delaware corporation (the "Employer"), and XXXXXX X.
XXXXX (the "Executive").
WHEREAS, the Employer has required the services of the Executive in a
senior management position since the formation of the Employer and the
Executive has agreed in principle, as set forth in and in conformity with the
January 15, 1998 minutes of the Board of Directors of the Employer, to provide
such services;
WHEREAS, the terms and conditions of this Employment Agreement satisfy
the parties' obligations as set forth in such minutes;
WHEREAS, the Employer wishes to employ the Executive in a senior
management position and be assured of his services on the terms and subject to
the conditions hereinafter set forth;
WHEREAS, the Executive has served as an executive officer of the
Employer since its formation and in January 1998, in order to retain the
services of the Executive, the Employer reached an agreement in principle to
issue to the Executive shares of stock of the Employer and options to purchase
shares of the Employer; and, pursuant to such agreement, on the review and
recommendation of the Compensation Committee (the "Compensation Committee") of
the Board of Directors of the Employer (the "Board"), the Employer has sold to
the Executive 80,000 shares of Class A Common Stock, par value $.01 per share
(the"Class A Stock"), of the Employer at a purchase price of $2.00 per share
and the Employer has granted to the Executive options to purchase 25,000 shares
of Class A Stock at a purchase price of $5.50 per share;
WHEREAS, the Compensation Committee and the Board approved the terms
and conditions of this Employment Agreement;
NOW, THEREFORE, for good and valuable consideration, the sufficiency
and receipt of which are hereby acknowledged, the Employer and the Executive
agree as follows:
1. Employment. Upon the terms and subject to the conditions of
this Employment Agreement, the Employer hereby employs the Executive and the
Executive hereby accepts employment by the Employer.
2. Term.
2.1 The term of the Executive's employment hereunder shall
commence on June 1, 1998 and continue until the fifth anniversary thereof,
unless terminated earlier in accordance with the provisions of this Employment
Agreement; provided, however, that this Employment Agreement shall
automatically be renewed for additional one-year periods thereafter unless and
until terminated
by the Employer or the Executive as of the end of such five-year initial period
or at the end of any renewal period by written notice given at least 30 days
prior to the scheduled termination or scheduled renewal of this Employment
Agreement. The date of the commencement of employment pursuant to this
Employment Agreement is hereinafter referred to as the "Effective Date," the
term of employment pursuant to this Employment Agreement is hereinafter
referred to as the "Term" and the last date of employment pursuant to this
Employment Agreement is hereinafter referred to as the "Termination Date."
3. Executive's Position, Duties, and Authority.
3.1 The Employer shall employ the Executive, and the Executive
shall serve, as Executive Vice President, General Counsel and Secretary of the
Employer and of any successor by merger, acquisition of substantially all of
the assets of the Employer or otherwise.
3.2 The Executive shall have executive duties, functions,
authority and responsibilities commensurate with the office or offices he from
time to time holds with the Employer.
3.3 The Executive shall serve without additional remuneration as
(a) a member of any committee of the Board, as determined by the Board; and
(b) a director and/or officer of one or more of the Employer's subsidiaries,
if appointed to such position by the Employer.
4. Full-time Services. The Executive shall devote substantially
all of his business time to the business and affairs of the Employer and to the
fulfillment of his duties hereunder in a diligent and competent fashion to the
best of his abilities. Notwithstanding the foregoing, (a) the Executive shall
have the right to continue to fulfill his obligations as a director and officer
of companies in which he currently serves in such capacity, including without
limitation, Sillerman Communications Management Corporation, The Sillerman
Companies, Inc., Sillerman Management Company, Inc. and The Marquee Group, and
(b) shall have the right to devote a portion of his business time to personal
investments and commitments not related to the Prohibited Business (as such
term is defined in Section 16.1 hereof). In addition, except as provided in
Section 16, the Executive may serve on the boards of directors of other
organizations and companies; provided that the service on such other boards of
directors does not interfere with the performance of the Executive's services
hereunder.
5. Location of Employment. Unless the Executive consents
otherwise in writing, the headquarters for performance of his services
hereunder shall be the principal offices of the Employer in New York, New York,
or at such other location within 25 miles of residence of the Executive as the
Executive shall approve of.
6. Base Salary. During the Term, the Employer shall pay or cause
to be paid to the Executive an initial base salary per annum (the "Base
Salary") which shall initially be $300,000, payable in monthly installments.
Upon each anniversary of the commencement of the Executive's employment
hereunder, the Base Salary then in effect shall be increased by an amount equal
to the
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greater of (a) five percent of the Base Salary then in effect or (b) the
product of (i) the Base Salary then in effect and (ii) the percentage increase
in the Consumer Price Index during the previous twelve full calendar months. In
addition, the Board shall review the Executive's Base Salary at least annually
and may by action of the Board, after and pursuant to the affirmative
recommendation of the Compensation Committee, increase, but not decrease, such
Base Salary, as such salary may have been increased, at any time and from
time-to-time during the Term.
7. Bonus. The Executive shall be entitled to receive an annual
incentive bonus (the "Bonus"), in cash, stock, options or other compensation,
during the continuance of the Executive's employment hereunder as determined by
the Board, after and pursuant to the affirmative recommendation of the
Compensation Committee.
8. Expenses. The Employer shall pay or reimburse the Executive
for all reasonable expenses actually incurred or paid by the Executive during
the Term of employment in the performance of the Executive's services hereunder
upon presentation of expense statements or vouchers or such other supporting
information as the Employer may reasonably require of the Executive.
9. Benefits. During the Term, the Executive shall be eligible to
par now existing or established hereafter, in accordance with and to the extent
that he is eligible under the general provisions thereof. The Executive shall
also be eligible to participate in any group life insurance, hospitalization,
medical, health and accident, disability or similar plan or program of the
Employer, now existing or established hereafter, in accordance with and to the
extent that he is eligible under the general provisions thereof.
10. [Intentionally left blank]
11. Indemnification. The Executive shall be entitled in connection
with his employment hereunder to the benefit of the indemnification provisions
contained on the date hereof in the bylaws and certificate of incorporation of
the Employer, as the same may hereafter be amended (not including any
amendments or additions that limit or narrow, but including any that add to or
broaden, the protection afforded to the Executive), to the fullest extent
permitted by applicable law. The Employer shall in addition cause the Executive
to be indemnified in accordance with Section 145 of the Delaware General
Corporation Law to the fullest extent permitted by such section, to the extent
required to make the Executive whole in connection with any loss, costs or
expense indemnifiable thereunder.
12. Confidential Information.
The Executive acknowledges that his employment by the Employer has
brought and will bring him into close contact with confidential proprietary
information of the Employer, including information regarding costs, profits,
ticipate in any pension or profit-sharing plan or program of the Employer
markets, sales, products, key personnel, pricing policies,
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operational methods, technical processes, other business affairs and methods,
plans for future developments, and other information not readily available to
the public, the disclosure of which to third parties would in each case have a
material adverse effect on the Employer's business operations (the
"Confidential Information"). In recognition of the foregoing, the Executive
covenants and agrees that:
(a) he will keep secret all Confidential Information and will not
intentionally disclose Confidential Information to anyone outside of the
Employer and its representatives other than in the course of performance of his
duties hereunder, either during or for a one year period after the Term except
with the Employer's written consent, provided that (i) the Executive shall have
no such obligation to the extent Confidential Information is or becomes
publicly known other than as a result of the Executive's breach of his
obligations hereunder and (ii) the Executive may, after giving prior notice to
the Employer to the extent practicable under the circumstances, disclose such
matters to the extent required by applicable laws or governmental regulations
or judicial or regulatory process; and
(b) he will, at the Executive's option, either (i) deliver promptly
to the Employer on termination of his employment by the Employer or at any
other time the Employer may so request, and at the Employer's request, all
memoranda, notes, records, reports and other documents (and all copies thereof)
relating to the Employer's business, which he obtained while employed by, or
otherwise serving or acting on behalf of, the Employer and which he may then
possess or have under his control (the "Records"); or (ii) in lieu of subclause
(i) above, the Executive shall destroy all of the Records and shall deliver to
the Employer a certificate to that affect.
13. Termination.
13.1 For purposes of this Employment Agreement the following
definitions shall apply:
13.1.1 "Cause" shall mean:
(a) the Executive is convicted of a felony involving moral
turpitude which would render the Executive unable to perform his duties set
forth in this Employment Agreement; or
(b) the Executive engages in conduct that constitutes willful
gross neglect or willful gross misconduct in carrying out his duties under this
Employment Agreement, resulting, in either case, in material economic harm to
the Employer, unless the Executive believed in good faith that such act or
nonact was in the best interests of the Employer.
13.1.2 A "Change in Control" shall mean the occurrence of any one of
the following events:
(a) any "person," as such term is used in Sections 3(a)(9) and
13(d) of the Securities Exchange Act of 1934, as amended (other than the
Executive or members of management on the date hereof or otherwise appointed
by the Board which is comprised of a majority of "incumbent
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directors" or entities controlled by them), becomes a "beneficial owner," as
such term is used in Rule 13d-3 promulgated under that act, of 25% or more of
the voting power of the Employer;
(b) all or substantially all of the assets or business of the
Employer is disposed of pursuant to a merger, consolidation or other
transaction (unless the shareholders of the Employer immediately prior to such
merger, consolidation or other transaction beneficially own, directly or
indirectly, in substantially the same proportion as they owned the voting power
of the Employer, all of the voting power or other ownership interests of the
entity or entities, if any, that succeed to the business of the Employer);
(c) the Employer combines with another company and is the
surviving corporation but, immediately after the combination, the shareholders
of the Employer immediately prior to the combination hold, directly or
indirectly, 50% or less of the voting power of the combined company; or
(d) the majority of the Board consists of individuals other than
"incumbent directors," which term means members of the Board as of the date of
this Employment Agreement, except that any person who becomes a director
subsequent to such date whose election or nomination was supported by
two-thirds of the directors who then comprise the incumbent directors shall be
considered an incumbent director.
13.1.3 "Constructive Termination Without Cause" shall mean a
termination of the Executive's employment at his initiative as provided in this
Section 13 following the occurrence, without the Executive's written consent,
of one or more of the following events:
(a) a reduction in the Executive's then current Base Salary or
failure by the Employer to fulfill its obligations under Sections 6, 7, 8 or
9 above;
(b) the failure to elect or reelect the Executive to any of the
positions described in Section 3 hereof or the removal of him from any such
position;
(c) a material diminution in the Executive's duties or the
assignment to the Executive of duties which are materially inconsistent with
his duties or which materially impair the Executive's ability to function as
Executive Vice President, General Counsel and Secretary of the Employer; or
(d) the failure of the Employer to obtain the assumption in
writing of its obligation to perform this Employment Agreement by any successor
to all or substantially all of the assets of the Employer within 15 days after
a merger, consolidation, sale or similar transaction.
13.2 Termination by the Employer for Cause.
A termination for Cause shall not take effect unless all of the
provisions of this Section 13.2 are complied with. The Executive shall be given
written notice by the Board of the intention to
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terminate him for Cause, such notice (a) to state in detail the particular act
or acts or failure of failures to act that constitute the grounds on which the
proposed termination for Cause is based and (b) to be given within three months
of the Board learning of such act or acts or failure or failures to act. The
Executive shall have 10 business days after the date that such written notice
has been given to the Executive in which to cure such conduct, to the extent
such cure is possible. If he fails to cure such conduct, the Executive shall
then be entitled to a hearing before the Board. Such hearing shall be held
within 15 business days of such notice to the Executive, provided he requests
such hearing within 10 business days of the written notice from the Board of
the intention to terminate him for Cause. If, within five business days
following such hearing, the Executive is furnished written notice by the Board
confirming that, in its judgment, grounds for Cause on the basis of the
original notice exist, he shall thereupon be terminated for Cause.
13.2.1 In the event the Employer terminates the Executive's
employment for Cause, he shall be entitled to:
(a) the Base Salary through the date of the termination of his
employment for Cause; and
(b) a Bonus for the year in which he was terminated equal to the
Bonus for the year prior to such termination, prorated over the time elapsed
during the year in which he was terminated.
13.2.2 In the event the Employer terminates the Executive's
employment for Cause, the Executive shall have no further obligations or
liability to the Employer (except his obligations under Sections 12 and 16,
which shall survive).
13.3 Termination Without Cause or Constructive Termination Without
Cause. In the event the Executive's employment is terminated without Cause,
other than due to disability or death, or in the event there is a Constructive
Termination Without Cause, the Executive shall be entitled to:
(a) the Base Salary through the date of termination of the
Executive's employment;
(b) the Base Salary, at the annualized rate in effect on the date
of termination of the Executive's employment (or in the event a reduction in
Base Salary is the basis for a Constructive Termination Without Cause, then the
Base Salary in effect immediately prior to such reduction), for a period of 36
months following such termination or until the end of the Term, whichever is
longer; provided that, at the Executive's option, the Employer shall pay him
the present value of such salary continuation payments in a lump sum (using as
the discount rate 75% of the prime rate (as published by The Wall Street
Journal) for the first business day of the month in which such termination
occurs);
(c) (i) in the event that such termination occurs during the
initial five-year term of this Employment Agreement, immediately vested options
to purchase shares of Class A Stock in an amount equal to 100,000 shares less
the product of (A) 20,000 shares and (B) the number of full years elapsed under
the Term of this Employment Agreement at an exercise price per share equal
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to the lowest exercise price of any stock option granted by the Employer in the
twelve months prior to termination;
(ii) in the event that such termination occurs after the initial
five-year term of this Employment Agreement, immediately vested exercisable
options to purchase 20,000 shares of Class A Stock at an exercise price per
share equal to the lowest exercise price of any stock option granted by the
Employer in the twelve months prior to termination;
(d) a Bonus for the unexpired Term, based on the Bonus received
for the year prior to termination (the "Base Bonus Amount") multiplied by the
then unexpired Term; provided that, at the Executive's option, the Employer
shall pay him the present value of such salary and bonuses in a lump sum (using
as the discount rate 75% of the prime rate (as published by The Wall Street
Journal) for the first business day of the month in which such termination
occurs); and
(e) all benefits provided in Section 9 hereof until the end of the
Term.
13.4 Termination of Employment Following a Change in Control. If,
following a Change in Control, the Executive's employment is terminated for any
reason other than for Cause, whether voluntary or involuntary or there is a
Constructive Termination Without Cause, the Executive shall be entitled to the
payments and benefits provided in Section 13.3 above, provided that the
payments shall be paid in a lump sum without any discount. In addition, the
Executive shall receive immediately vested 10-year options to purchase 100,000
shares of Class A Stock which shall be exercisable at the lowest exercise price
of any other options the Executive shall own as of the date of the Change in
Control. The Executive shall forfeit any rights granted pursuant to this
Section 13.4 if the Executive accepts a written offer to remain with the
surviving company in an executive position with equivalent duties, authority
and responsibility as the Executive currently holds (other than as a
non-employee director).
13.4.1 Payment Following a Change in Control. In the event that the
termination of the Executive's employment is as a result of a Change in Control
and the aggregate of all payments or benefits made or provided to the Executive
under this Employment Agreement and under all other plans and programs of the
Employer (the "Aggregate Payment") is determined to constitute a Parachute
Payment, as such term is defined in Section 280G(b)(2) of the Internal Revenue
Code of 1986, as amended (the "Internal Revenue Code"), the Employer shall pay
to the Executive, prior to the time any excise tax imposed by Section 4999 of
the Internal Revenue Code ("Excise Tax") is payable with respect to such
Aggregate Payment, an additional amount which, after the imposition of all
income and excise taxes thereon, is equal to 100% of the Excise Tax on the
Aggregate Payment. The determination of whether the Aggregate Payment
constitutes a Parachute Payment and, if so, the amount to be paid to the
Executive and the time of payment pursuant to this subsection shall be made by
an independent auditor (the "Auditor") jointly selected by the Employer and the
Executive and paid by the Employer. The Auditor shall be a nationally
recognized United States public accounting firm which has not, during the two
years preceding the date of its selection, acted in any way on behalf of the
Employer or any affiliate thereof. If the Executive and the Employer
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cannot agree on the firm to serve as the Auditor, then the Executive and the
Employer shall each select one accounting firm and those two firms shall
jointly select the accounting firm to serve as the Auditor.
13.5 Voluntary Termination. In the event of a termination of
employment by the Executive on his own initiative, other than a termination
that is subject to the provisions of Section 13.8 of this Employment Agreement
and other than a termination due to death or disability or a Constructive
Termination without Cause, the Executive shall have the same entitlements as
provided in Section 13.2 above for a termination for Cause. A voluntary
termination under this Section 13.5 shall be effective upon 30 days prior
written notice to the Employer and shall not be deemed a breach of this
Employment Agreement.
13.6 Stock Options. Notwithstanding anything to the contrary, upon
termination for any reason whatsoever, the Executive shall have the immediate
right to exercise any stock options in full, whether or not such option is
fully exercisable on the date of termination, for the remainder of the original
term of each such stock option.
13.7 No Mitigation; No Offset. In the event of any termination of
employment under this Employment Agreement, the Executive shall be under no
obligation to seek other employment and there shall be no offset against
amounts due the Executive under this Employment Agreement on account of any
remuneration attributable to any subsequent employment that he may obtain.
13.8 Termination After One Year. Notwithstanding anything else
herein contained, and in lieu thereof, on the first anniversary of the
Executive's employment hereunder, by written notice given at least 15 days
prior thereto, the Executive may voluntarily terminate his employment with the
Employer or the Employer may terminate the Executive's employment without Cause
and the Executive shall be entitled to receive the payments described in this
Section 13.8.
(a) In the event that the Executive voluntarily terminates his
employment pursuant to this Section 13.8, then all options to purchase shares
of Class A Stock held by him shall immediately vest (regardless of the original
vesting schedule set forth in any stock option or other instrument) as of the
date of termination and, in addition, he shall be entitled to:
(i) the Base Salary through the date of termination of the
Executive's employment;
(ii) the Base Salary, at the annualized rate in effect on the date
of termination of the Executive's employment, for a period of 24 months
following such termination; provided that, at the Executive's option, the
Employer shall pay him the present value of such salary continuation payments
in a lump sum (using as the discount rate 75% of the prime rate (as published
by The Wall Street Journal) for the first business day of the month in which
such termination occurs); and
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(iii) immediately vested options to purchase 25,000 shares of
Class A Stock at an exercise price per share equal to the lowest exercise price
of any options granted by the Employer during the preceding 12 months.
(b) In the event that the Employer terminates the Executive's
employment pursuant to this Section 13.8, then all options to purchase shares
of Class A Stock held by the Executive shall immediately vest (regardless of
the original vesting schedule set forth in any stock option or other
instrument) as of the date of termination and, in addition, he shall be
entitled to:
(i) the Base Salary through the date of termination of the
Executive's employment;
(ii) the Base Salary, at the annualized rate in effect on the date
of termination of the Executive's employment, for a period of 24 months
following such termination; provided that, at the Executive's option, the
Employer shall pay him the present value of such salary continuation payments
in a lump sum (using as the discount rate 75% of the prime rate (as published
by The Wall Street Journal) for the first business day of the month in which
such termination occurs); and
(iii) immediately vested options to purchase options to purchase
that number of shares of Class A Stock equal to the product of (A) 50,000 and
(B) the number of unexpired years in the initial five-year Term of this
Employment Agreement, at an exercise price per share equal to the lowest
exercise price of any options granted by the Employer during the preceding 12
months.
13.9 Option Adjustment. The number of options issuable pursuant to
this Article 13 and the per share exercise price thereof shall be subject to
appropriate adjustment to give effect to any increase or decrease in the number
of issued shares resulting from a reorganization, recapitalization, stock
split, spin-off or other similar action.
14. Disability.
14.1 If during his active employment hereunder the Executive shall
become physically or mentally disabled, whether totally or partially, so that
he is prevented from performing his usual duties for a period of six
consecutive months, the Employer shall, nevertheless, pay the Executive his
full Base Salary and Bonus in respect of the period ending on the last day of
the sixth consecutive month of disability (such last day being referred to
herein as the "Disability Date") and the following additional provisions shall
apply:
14.2 If the Executive has not resumed his usual duties on or prior
to the Disability Date, the Executive's employment shall terminate and the
Employer shall pay, unless prior to the date the Executive became physically or
mentally disabled a notice of termination was delivered to the Executive, 75%
of his Base Salary from the Disability Date through the end of the Term
(without giving effect to any early termination provisions contained in this
Employment Agreement) and, except as provided in Section 14.4, the Employer
shall have no obligation to pay Bonus to the Executive in respect of periods
after the Disability Date. Any Base Salary payable pursuant to this
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Section 14.2 shall be reduced by the amount of any benefits payable to the
Executive under any group or individual disability insurance plan or policy,
the premiums for which are paid primarily by the Employer;
14.3 Unless the Employer exercises its option under Section 14.4 to
restore the Executive to his full compensation, duties, functions, authority
and responsibilities hereunder, the Executive shall have no obligations or
liabilities hereunder from and after the Disability Date (except for his
obligations under Sections 12 and 16, which shall survive); and
14.4 If during the Term and subsequent to a Disability Date, the
Executive shall recover fully from a disability, the Employer, by action of the
Board, shall have the right (exercisable within sixty days after notice from
the Executive of such recovery), but not the obligation, to restore the
Executive to employment and to full compensation and his full level of duties,
functions, authority and responsibilities hereunder.
15. Death of Executive.
15.1 Upon the Executive's death, whether prior to or subsequent to
his Disability Date and prior to the delivery of a notice of termination, this
Employment Agreement and all of the Employer's obligations to pay salary and
Bonus hereunder shall terminate, except as provided in Sections 15.2 through
15.4.
15.2 The Executive's estate or designated beneficiary shall be
entitled to receive (a) any unpaid portions of the Executive's Base Salary in
respect of the period ending on the Executive's date of death, (b) unpaid Bonus
in respect of years prior to the year of death, and (c) immediately vested
options to purchase 20,000 shares of Class A Stock at an exercise price equal
to the exercise price of the last stock option granted by the Employer to the
Executive prior to the Executive's death. In addition, the Employer shall pay
to such estate or beneficiary an amount equal to the present value of all the
remaining Base Salary, calculated assuming annual compound interest at 75% of
the prime rate (as published in The Wall Street Journal) for the first business
day of the month in which the Executive's death occurs
15.3 The Base Salary and Bonus payable pursuant to this Section 15
shall be reduced by the value of any benefits payable to the Executive's estate
or designated beneficiary under any life insurance plan or policy the premiums
for which are paid primarily by the Employer.
16. Non-competition.
16.1 During the Term, the Executive will not, without the prior
written approval of the Board, become employed by, or become an officer,
director, or general partner of, any partnership, corporation or other entity
which acts as a promoter, producer or venue operator in the live entertainment
business or which acts as a marketing and management company specializing in
the representation of team sports athletes (the "Prohibited Business");
provided that nothing herein shall
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prohibit the Executive from continuing to fulfill his obligations as an
officer, director or partner of companies or entities in which he currently
serves in any such capacities.
16.2 Subject to the following proviso, for a period of one year
following the termination of the Executive's employment hereunder the Executive
will not become employed by, or become an officer, director or general partner
of, any partnership, corporation or other entity which is primarily engaged in
the Prohibited Business; provided however, that during such one year period the
Employer shall employ the Executive as a consultant with compensation at a rate
equal to fifty percent of the Employer's Base Salary immediately prior to such
termination. If the Employer elects not to employ the Executive as a consultant
for such one year period as provided herein, the provisions of this Section
16.2 shall not apply and the Executive shall be free to engage in any activity
referred to herein.
17. Notices. All notices, requests, consents and other
communications, required or permitted to be given hereunder, shall be in
writing and shall be deemed to have been duly given if delivered personally
or sent by prepaid telegram, or mailed first class, postage prepaid, by
registered or certified mail, as follows (or to such other or additional
address as either party shall designate by notice in writing to the other in
accordance herewith):
17.1 If to the Employer:
SFX Entertainment, Inc.
000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Board of Directors
17.2 If to the Executive:
Xxxxxx X. Xxxxx
00 Xxxxxxx Xxxx
Xxxxx Xxxx, Xxx Xxxx 00000
17.3 Copies of all communications given hereunder shall also be
delivered or sent, in like fashion, to Xxxxx & XxXxxxxx (attention: Xxxxxxx
Xxxxxxx, Esq.) at 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000.
18. General.
18.1 Governing Law. This Employment Agreement shall be governed by
and construed and enforced in accordance with the internal laws of the State of
New York.
18.2 Captions. The section headings contained herein are for
reference purposes only and shall not in any way affect the meaning or
interpretation of this Employment Agreement.
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18.3 Entire Agreement. This Employment Agreement including any
Exhibits attached hereto sets forth the entire agreement and understanding of
the parties relating to the subject matter hereof, and supersedes all prior
agreements, arrangements and understandings, written or oral, between the
parties, except as specifically provided herein.
18.4 Successors and Assigns. This Employment Agreement, and the
Executive's rights and obligations hereunder, may not be assigned by the
Executive, except that the Executive may designate pursuant to Section 18.6 one
or more beneficiaries to receive any amounts that would otherwise be payable
hereunder to the Executive's estate. This Employment Agreement shall be binding
on any successor to the Employer, whether by merger, acquisition of
substantially all of the Employer's assets or otherwise, as fully as if such
successor were a signatory hereto and the Employer shall cause such successor
to, and such successor shall, expressly assume the Employer's obligations
hereunder. Notwithstanding anything else herein contained, the term "Employer"
as used in this Employment Agreement, shall include all such successors.
18.5 Amendments; Waivers. This Employment Agreement cannot be
changed, modified or amended, and no provision or requirement hereof may be
waived, without an affirmative vote of the Board after the affirmative
recommendation of the Compensation Committee of the Board, and the consent in
writing of the Executive and the Employer. The failure of a party at any time
or times to require performance of any provision hereof shall in no manner
affect the right of such party at a later time to enforce the same. No waiver
by a party of the breach of any term or covenant contained in this Employment
Agreement, whether by conduct or otherwise, in any one or more instances, shall
be deemed to be, or construed as, a further or continuing waiver of any such
breach, or a waiver of the breach of any other term or covenant contained in
this Employment Agreement.
18.6 Beneficiaries. Whenever this Employment Agreement provides for
any payment to the Executive's estate, such payment may be made instead to such
beneficiary or beneficiaries as the Executive may have designated in a writing
filed with the Employer. The Executive shall have the right to revoke any such
designation and to redesignate a beneficiary or beneficiaries by written notice
to the Employer (and to any applicable insurance company) to such effect.
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IN WITNESS WHEREOF, the parties have duly executed this Employment
Agreement as of the date first above written.
SFX ENTERTAINMENT, INC.
By: /s/ Xxxxxxx X. Xxxxxx
----------------------
Name: Xxxxxxx X. Xxxxxx
Title: President and Chief
Executive Officer
/s/ Xxxxxx F.X. Sillerman
-------------------------
XXXXXX F.X. SILLERMAN
13
