Exhibit (c)(9)
AMENDMENT TO EMPLOYMENT AGREEMENT
This AMENDMENT TO EMPLOYMENT AGREEMENT, dated as of August 6, 1998
(this "Agreement"), is made and entered into by and among SFX Entertainment,
Inc., a Delaware corporation ("Acquiror"), Xxx Xxxxxxxx ("Executive"), and
Magicworks Entertainment Incorporated, a Delaware corporation ("Target").
RECITALS
WHEREAS, Executive is party to that certain Employment Agreement, by
and between Executive and Target, dated as of June 30, 1996, as amended by that
certain First Amendment to Employment Agreement, dated as of July 24, 1998 (as
so amended, the "Employment Agreement"); capitalized terms used but not defined
herein and defined in the Employment Agreement have the respective meanings
ascribed to them in the Employment Agreement;
WHEREAS, concurrently herewith, Acquiror, MWE Acquisition Corp. and
Target are entering into an Agreement and Plan of Merger (as such agreement may
hereafter be amended from time to time, the "Merger Agreement"), pursuant to
which (a) Acquiror will make a cash tender offer (as such offer may be amended
from time to time as permitted by the Merger Agreement (the "Offer") by
Acquisition Sub for all the issued and outstanding shares of common stock, par
value $.001 per share, of Target (the "Target Common Stock"), and (b)
Acquisition Sub will be merged with and into Target (the "Merger"); and
WHEREAS, as an inducement and a condition to entering into the Merger
Agreement, Acquiror has required that the Executive agree, and the Executive
has agreed, to enter into this Agreement;
NOW, THEREFORE, in consideration of the foregoing and the
representations, warranties, covenants and agreements contained herein and the
benefits to be received by the parties under the terms of the Merger Agreement,
the parties hereto, intending to be legally bound, hereby agree as follows:
AGREEMENTS
1. Employment Relationship. Executive hereby represents and warrants
that his employment relationship with Target is pursuant to and governed by the
Employment Agreement. A true and correct copy of the Employment Agreement is
attached hereto as Annex I.
2. Amendments to Employment Agreement.
(a) Effective as of the Acquisition Sub's Election Date (as
defined in the Merger Agreement), Executive and Target hereby amend the terms
of the Employment Agreement as follows:
(i) Section 5.5, "Voluntary Resignation," is deleted in
its entirety.
(ii) A new section 2.4 is added as follows:
"2.4 OPTIONAL EXTENSION. At any time prior to thirty (30)
days before the expiration of the initial Term hereunder, the Company shall be
entitled, at its sole option, to extend the Term for up to an additional two
(2) years beyond the initial Term, upon written notice to the Executive to such
effect (such Term, as so extended, the "Term")."
(iii) A new section 2.5 is added as follows:
"2.5 CONTINUED SEPARATE EXISTENCE. The Company shall be
maintained and operated as a separate subsidiary of SFX Entertainment, Inc. for
a period of not less than one year from the consummation of the Offer (as
defined in the Merger Agreement), during which period Executive shall report
directly to Xxxxxx F.X. Sillerman, Executive Chairman of Acquiror, or Xxxxxxx
Xxxxxxx, Chief Executive Officer of Acquiror."
(b) Except as amended or modified hereunder, the Employment
Agreement shall remain in full force and effect.
3. No Termination. Executive and Target agree, notwithstanding the
terms of the Employment Agreement, that the execution and delivery of the
Merger Agreement and the Transaction Documents (as defined in the Merger
Agreement), and the performance of the Offer, the Merger or the other
transactions contemplated thereby, shall not constitute a termination or
constructive termination of Executive.
4. Representations and Warranties. Executive hereby represents and
warrants to Target and Acquiror that (a) the Executive has the legal capacity,
power and authority to enter into and perform all of the Executive's
obligations under this Agreement and (b) this Agreement has been duly and
validly executed and delivered by the Stockholder and, together with the
Employment Agreement, constitute a valid and binding agreement of the
Executive, enforceable against the Executive in accordance with their
respective terms, subject to applicable bankruptcy, insolvency, moratorium or
other similar laws relating to creditors' rights and general principles of
equity.
5. Miscellaneous.
(a) Entire Agreement. This Agreement, together with the
Employment Agreement, constitute the entire agreement between the parties with
respect to the subject matter hereof and supersedes all other prior agreements
and understandings, both written and oral, between the parties with respect to
the subject matter hereof.
(b) Amendments, Waivers, Etc. This Agreement may not be
amended, changed, supplemented, waived or otherwise modified or terminated,
except upon the execution and delivery of a written agreement executed by the
parties hereto; provided that following the Effective Time (as defined in the
Merger Agreement), the consent of Acquiror shall not be required.
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(c) Notices. All notices, requests, claims, demands and other
communications hereunder shall be in writing and shall be given (and shall be
deemed to have been duly received if so given) by hand delivery, telegram,
telex or telecopy, or by mail (registered or certified mail, postage prepaid,
return receipt requested) or by any courier service, such as Federal Express,
providing proof of delivery. All communications hereunder shall be delivered to
the respective parties at the following addresses or the addresses set forth on
the signature pages hereto:
If to Executive: Xxx Xxxxxxxx
000 X. Xxxxxxxx Xx.
Xxxxxx, Xxxx 00000
Telecopy: (000) 000-0000
copy to: Squire, Xxxxxxx & Xxxxxxx L.L.P.
0000 Xxx Xxxxx
000 Xxxxxx Xxxxxx
Xxxxxxxxx, Xxxx 00000-0000
Telecopy: (000) 000-0000
Attn: Xxxxxxx X. Xxxxxxxxx
If to the Target: Magicworks Entertainment Incorporated
000 Xxxxxxxxxx Xxxxxx
Xxxxx Xxxxx, Xxxxxxx 00000
Telecopy: (000) 000-0000
Attn: Xxxxxx Xxxxxxxx
copy to: Greenberg, Traurig, Hoffman, Lipoff, Xxxxx & Quentel, P.A.
0000 Xxxxxxxx Xxxxxx
Xxxxx, Xxxxxxx 00000
Telecopy: (000) 000-0000
Attn: Xxxx Xxxxxxx
If to Acquiror:
SFX Entertainment, Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Telecopy: (000) 000-0000
Attn: Xxxxxx X. Xxxxx
copy to: Xxxxx & XxXxxxxx
Xxx Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Telecopy: (000) 000-0000
Attn: Xxxx Xxxxxxxx
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or to such other address as the person to whom notice is given may have
previously furnished to the others in writing in the manner set forth above.
(d) Severability. Whenever possible, each provision or
portion of any provision of this Agreement will be interpreted in such manner
as to be effective and valid under applicable law, but if any provision or
portion of any provision of this Agreement is held to be invalid, illegal or
unenforceable in any respect under any applicable law or rule in any
jurisdiction, then such invalidity, illegality or unenforceability will not
affect any other provision or portion of any provision in such jurisdiction,
and this Agreement will be reformed, construed and enforced in such
jurisdiction as if such invalid, illegal or unenforceable provision or portion
of any provision had never been contained herein.
(e) No Waiver. The failure of any party hereto to exercise
any right, power or remedy provided under this Agreement or otherwise available
in respect hereof at law or in equity, or to insist upon compliance by any
other party hereto with its obligations hereunder, and any custom or practice
of the parties at variance with the terms hereof, shall not constitute a waiver
by such party of its right to exercise any such or other right, power or remedy
or to demand such compliance.
(f) No Third Party Beneficiaries. This Agreement is not
intended to be for the benefit of, and shall not be enforceable by, any person
or entity who or which is not a party hereto.
(g) Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Ohio, without giving
effect to the principles of conflicts of law thereof.
(h) Descriptive Headings. The descriptive headings used
herein are inserted for convenience of reference only and are not intended to
be part of or to affect the meaning or interpretation of this Agreement.
(i) Counterparts. This Agreement may be executed in
counterparts, each of which shall be deemed to be an original, but all of
which, taken together, shall constitute one and the same Agreement. This
Agreement shall not be effective as to any party hereto until such time as this
Agreement or a counterpart thereof has been executed and delivered by each
party hereto.
[Signature page follows]
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WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed on this 6th day of August, 1998.
EXECUTIVE
/s/ Xxx Xxxxxxxx
-----------------------------------
SFX ENTERTAINMENT, INC.
By: /s/ Xxxxxx X. Xxxxxx
--------------------------------
Xxxxxx X. Xxxxxx
Chief Financial Officer
MAGICWORKS ENTERTAINMENT INCORPORATED
By: /s/ Xxxx Xxxxxxxx
--------------------------------
Name: Xxxx Xxxxxxxx
Title: Co-Chairman of the Board and
Chief Executive Officer
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