EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT (this "Employment Agreement"), made as of May 28,
1998, between SFX ENTERTAINMENT, INC., a Delaware corporation (the "Employer"),
and XXXXXX X. XXXXXX (the "Executive").
WHEREAS, the Executive is currently employed by SFX Broadcasting,
Inc., a Delaware corporation ("SFX Broadcasting");
WHEREAS, SFX Broadcasting has entered into an Agreement and Plan of
Merger, dated as of August 24, 1997, as amended (the "Merger Agreement"), with
SBI Holding Corporation (the "Buyer") and SBI Radio Acquisition Corporation, a
wholly-owned subsidiary of Buyer ("Buyer Sub") pursuant to which Buyer Sub will
merge with and into SFX Broadcasting (the "Merger") and SFX Broadcasting will
become a wholly-owned subsidiary of the Buyer;
WHEREAS, the Merger Agreement provides for SFX Broadcasting to
spin-off the Employer to certain stockholders of SFX Broadcasting on a pro rata
basis (the "Spin-Off");
WHEREAS, the Spin-Off was consummated on April 27, 1998;
WHEREAS, the Employer has required the services of the Executive in a
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 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 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
10,000 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 10,000 shares of
Class A Stock at a purchase price of $5.50 per share; and
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
immediately upon the consummation of the Merger 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 a Vice President and the Chief Financial Officer 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.
5. Business Opportunities. The Executive covenants and agrees that for
so long as he is actively employed by the Employer he shall inform the Employer
of each business opportunity directly related to the business of the Employer
of which he becomes aware, and that he will not, directly or indirectly,
exploit any such opportunity for his own account, nor will he render any
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services to any other person or business, or acquire any interest of any type
in any other business, which is in competition with the Employer; provided,
however, that the foregoing shall not be deemed to prohibit the Executive from
acquiring, solely as an investment, (i) up to 10% of any securities of a
partnership, trust, corporation or other entity so long as he remains a passive
investor in such entity and such entity is not, directly or indirectly, in
competition with the Employer, or (ii) up to .5% of any securities of any
publicly-traded partnership, trust, corporation or other entity provided he
remains a passive investor in such entity.
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 $235,000, 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 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
participate in any pension or profit-sharing 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. 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
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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,
markets, sales, products, key personnel, pricing policies, 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:
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(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 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;
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(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 a Vice President
and the Chief Financial Officer 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 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;
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(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 25,000 shares less the
product of (A) 5,000 shares and (B) the number of full years elapsed under the
Term of this Employment Agreement 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;
(ii) in the event that such termination occurs after the
initial five-year term of this Employment Agreement, immediately vested
exercisable options to purchase 5,000 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 one-half of 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 (a)
25,000 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 and (b) that number of shares of Class A Stock equal to
the number of options granted by the Employer to the Executive in the last year
in which he was granted options at an exercise price equal to the lowest
exercise price of any options granted by the Employer in such year. 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).
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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 the 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 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 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. Option Adjustment. The number of options issuable pursuant to
this Section 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.
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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 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, and (b) unpaid
Bonus in respect of years prior to the year of 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.
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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. 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 engaged in a business which is directly competitive in
any city with any business in which the Employer is engaged on the date of such
termination or in which the Employer has an agreement to engage in business;
provided, however, the Executive shall not be prohibited from engaging in any
otherwise restricted conduct if the competition of such competing entity with
the Employer is insubstantial to the entire business of such entity and the
Executive does not have significant involvement in such competing business.
16.2. The Executive hereby acknowledges that:
(a) the respective times and area provided in Section 16.1, above, are
reasonable in scope and necessary for the protection of the business and good
will of the Employer and that a significant portion of the Base Salary payable
hereunder has been allocated to the provisions of Section 16.1:
(b) since it is the understanding and desire of the parties hereto
that the covenants contained in Section 16.1, above, be enforced to the fullest
extent possible under the laws and public policies applied in each jurisdiction
in which enforcement may be sought, should any particular provision of such
covenant be deemed invalid or unenforceable, such provision shall be deemed
amended to delete therefrom the invalid portion, and the deletion shall apply
only with respect to the operation of such provisions;
(c) to the extent a provision is deemed unenforceable by virtue of its
scope, but may be made enforceable by limitation thereof, such provision shall
be enforceable only to the extent permissible under the laws and public
policies applied in the jurisdiction to which enforcement is sought; and
(d) the Executive's obligation and undertaking provided for in this
Section 16 shall, to the extent applicable, continue beyond the termination of
the Executive's relationship with the Employer hereunder to the extent provided
herein.
16.3. The Executive acknowledges that the services to be rendered by
him hereunder are extraordinary and unique and are vital to the success of the
Employer's business, and that the breach of any of the covenants undertaken
hereunder would cause substantial damage to the Employer impossible to exact
ascertainment. Therefore, in the event of the breach or threatened breach by
the Executive of any of the terms and conditions of this Employment Agreement
to be performed by him, the Employer shall be entitled, in addition to any
other rights or remedies available to it, to
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institute and prosecute proceedings in any court of competent jurisdiction, to
seek immediate injunctive relief with notice but without bond.
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. Xxxxxx
00 Xxxxxxxxx Xxxxx
Xxxxxxxxxx, XX 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.
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 (including the Employment Agreement, made as of May 8, 1998 between the
Employer and the Executive), 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
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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.
18.7 Vacation. The Executive shall be entitled to paid vacation time
at the rate of not less than four weeks per year.
[The remainder of this page has intentionally been left blank.]
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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/ Xxxxxx F.X. Sillerman
-----------------------------
Name:
Title:
/s/ Xxxxxx X. Xxxxxx
-------------------
XXXXXX X. XXXXXX
