Exhibit (c)(3)
STOCKHOLDER AGREEMENT
This STOCKHOLDER AGREEMENT, dated as of August 6, 1998 (this
"Agreement"), is made and entered into by and among SFX Entertainment, Inc., a
Delaware corporation ("Acquiror"), MWE Acquisition Corp., a Delaware
corporation and a direct wholly-owned subsidiary of Acquiror ("Acquisition
Sub"), Xxx Xxxxxxxx ("Stockholder"), and Magicworks Entertainment Incorporated,
a Delaware corporation ("Target").
RECITALS
WHEREAS, concurrently herewith, Acquiror, Acquisition Sub and the
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"); capitalized
terms used but not defined herein and defined in the Merger Agreement have the
respective meanings ascribed to them in the Merger Agreement; and
WHEREAS, as an inducement and a condition to entering into the Merger
Agreement, Acquiror has required that the Stockholder agree, and the
Stockholder 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. Definitions. For purposes of this Agreement:
(a) "Acquisition Proposal" shall mean any agreement, letter
of intent, proposal or offer (other than the transactions contemplated in the
Merger Agreement) involving the Target or any of its Subsidiaries for, or an
inquiry or indication of interest that reasonably could be expected to lead to:
(i) any merger, consolidation, share exchange, recapitalization,
reorganization, dissolution, liquidation, business combination or other similar
transaction with the Target or any of its Subsidiaries, (ii) any sale, lease,
exchange, mortgage, pledge, transfer or other disposition of a material portion
of the assets of the Target and its Subsidiaries, taken as a whole, in a single
transaction or series of transactions or (iii) any tender offer or exchange
offer for all or any portion of the outstanding shares of capital stock of the
Target or any of its Subsidiaries or the filing of a registration statement
under the Securities Act of 1933 in connection therewith, but shall not include
the Offer, the Merger Agreement or Second Transaction (as defined herein).
(b) "Affiliate" of any Person means another Person that
directly or indirectly, through one or more intermediaries, controls, is
controlled by or is under common control with, such first Person.
(c) "Beneficially Own" or "Beneficial Ownership" with respect
to any securities shall mean having "beneficial ownership" of such securities
(as determined pursuant to Rule 13d-3 under the Securities Exchange Act of
1934, as amended (the "Exchange Act")), including pursuant to any agreement,
arrangement or understanding, whether or not in writing. Without duplicative
counting of the same securities by the same holder, securities Beneficially
Owned by a Person shall include securities Beneficially Owned by all other
Persons (who are Affiliates of such Person excluding officers and directors of
the Target) who together with such Person would constitute a "group" within the
meaning of Section 13(d)(3) of the Exchange Act and in any event with respect
to the Stockholder shall include Shares held of record by the Stockholder's
spouse and children.
(d) "Person" shall mean an individual, corporation, limited
liability company, partnership, joint venture, association, trust,
unincorporated organization or other entity.
(e) "Shares" shall mean (i) shares of Target Common Stock and
(ii) shares of preferred stock, par value $.00l per share, of the Target.
(f) "Stockholder's Shares" shall mean all Shares held of
record or Beneficially Owned by the Stockholder, whether currently issued or
hereinafter acquired, and for the purposes of Section 3 of this Agreement shall
also include, without duplication, any securities convertible into, or
exercisable or exchangeable for, Shares, including without limitation the
unsecured senior convertible notes of the Target and any options, warrants or
stock appreciation rights held of record or Beneficially Owned by the
Stockholder (collectively, the "Convertible Securities").
(g) "Termination Date" shall mean the date that the Merger
Agreement has been terminated.
2. Provisions Concerning Shares.
(a) Acquisition Sub hereby agrees to purchase, and
Stockholder agrees to sell, or cause to be sold, all such Stockholder's Shares
(other than the Convertible Securities) at a price per share equal to the Per
Share Amount, subject only to the condition (which may be waived only by
Acquisition Sub in its sole discretion) that Acquisition Sub shall have
accepted for payment and paid for shares of Target Common Stock pursuant to the
Offer (the "Purchase"). The closing of the Purchase shall be effected by the
Stockholder validly tendering (or causing the record holder of such shares to
validly tender) all such Stockholder's Shares (other than the Convertible
Securities) into the Offer, and by Acquisition Sub accepting for payment and
paying for such Shares pursuant to the terms of the Offer. In furtherance of
the foregoing, Stockholder hereby agrees that it shall validly tender and not
withdraw the Stockholder's Shares (other than the Convertible Securities) into
the Offer. Subject to the terms and conditions of the Offer, Acquiror shall
comply, and shall cause Acquisition Sub to comply, with all provisions of
Article I of the Merger Agreement.
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(b) If for any reason any Stockholder's Shares (other than
the Convertible Securities) are not purchased in the Offer and either (i) other
shares of Target Common Stock are purchased in the Offer or (ii) the Offer is
not consummated due to a failure of the Minimum Condition, Acquisition Sub
shall purchase, and Stockholder shall sell, all of Stockholder's Shares (other
than the Convertible Securities) at a price per Share equal to the Per Share
Amount within five business days (after obtaining all applicable consents and
approvals) following the expiration of the Offer at a time and place to be
mutually agreed to between Acquisition Sub and Stockholder. Acquiror shall
provide or cause to be provided to Acquisition Sub on a timely basis the funds
sufficient to accept for payment, and pay for, any and all Shares that
Acquisition Sub becomes obligated to accept for payment, and pay for, pursuant
to the Offer or otherwise hereunder.
(c) From and after the date of this Agreement and ending as
of the first to occur of the Effective Time or the four month anniversary of
the Termination Date, at any meeting of the holders of Shares, however called,
or in any other circumstance upon which the vote, consent or other approval of
holders of one or more class or series of Shares is sought, the Stockholder
shall vote or cause to be voted (including by written consent, if applicable)
the issued and outstanding Stockholder's Shares (and each class thereof)
entitled to vote thereon, and those Shares entitled to vote thereon for which
Stockholder has the right to direct or control the vote, (i) in favor of the
Merger, the execution and delivery by the Target of the Merger Agreement and
the approval of the terms thereof and each of the other actions contemplated by
the Merger Agreement and this Agreement and any actions required in furtherance
thereof and hereof, (ii) against any action or agreement that would result in a
breach in any material respect of any covenant, representation or warranty or
any other material obligation or agreement of the Target under the Merger
Agreement or this Agreement and (iii) against the following actions (other than
the Merger and the transactions contemplated by the Merger Agreement): (A) any
Acquisition Proposal other than an Acquisition Proposal with Acquiror or any
Affiliate thereof and (B) to the extent that such are intended to, or could
reasonably be expected to, (1) impede, interfere with, delay, postpone or
materially adversely affect the Merger or the transactions contemplated by the
Merger Agreement or this Agreement or (2) implement or lead to any Acquisition
Proposal (other than an Acquisition Proposal with Acquiror or any Affiliate
thereof): (w) any change in a majority of the persons who constitute the board
of directors of the Target; (x) any change in the present capitalization of the
Target or any amendment of the Target's Certificate of Incorporation or Bylaws;
or (y) any other material change in the Target's corporate structure or
business; provided that if any Second Transaction (as defined in Section 3(c)
of this Agreement) provides for Second Transaction Consideration (as defined in
3(c) of this Agreement) that is less than the Current Transaction Consideration
(as defined in Section 3(a) of this Agreement), as such amounts shall be
determined in accordance with Section 3 of this Agreement, then nothing herein
shall require the Stockholder to vote in favor of the Second Transaction. In
addition to the other covenants and agreements of the Stockholder provided for
elsewhere in this Agreement, during the above-described period the Stockholder
shall not enter into any agreement or understanding with any Person or entity
the effect of which would be inconsistent with or violate the provisions and
agreements contained in this Section 2. Nothing herein shall in any way
restrict or limit the Stockholder from taking any action in his capacity as a
director or officer of the Target or otherwise fulfilling his fiduciary
obligations as a director and officer of the Target.
(d) Stockholder, with respect to the Shares Beneficially
Owned by Stockholder, does hereby constitute and appoint Acquiror, or any
nominee of Acquiror, with full power of
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substitution, from the date hereof to the earlier to occur of the Effective
Time or the four month anniversary of the Termination Date, as its true and
lawful attorney and proxy (its "Proxy"), for and in its name, place and stead,
to demand that the Secretary of the Target call a special meeting of the
stockholders of the Target for the purpose of considering any action related to
the Merger Agreement or the Merger and to vote the Shares as its Proxy, at
every annual, special or adjourned meeting of the stockholders of the Target,
including the right to sign its name (as stockholder) to any consent,
certificate or other document relating to the Target that the laws of the State
of Delaware may permit or require, in connection with the matters described in
the foregoing Section 2(c). The Proxy may not exercise this proxy on any other
matter. The Stockholder may vote the Shares on all such other matters. THIS
PROXY AND POWER OF ATTORNEY IS IRREVOCABLE AND COUPLED WITH AN INTEREST. The
Stockholder represents that any proxies heretofore given in respect of the
Stockholder's Shares are not irrevocable, and that any such proxies are hereby
revoked.
(e) Stockholder hereby permits Acquiror and Acquisition Sub
to publish and disclose in the Offer Documents (including all documents and
schedules filed with the SEC) and, if approval of Target's stockholders is
required under applicable law, in the Proxy Statement its identity and
ownership of the Stockholder's Shares and the nature of its commitments,
arrangements and understandings under this Agreement.
3. Capture.
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(a) In the event that any of the Stockholder's Shares are
sold, transferred, exchanged, canceled or disposed of in connection with or as
a result of any Acquisition Proposal that is in existence on or that otherwise
has been made prior to the first anniversary of the Termination Date (an
"Alternative Disposition"), then, within five business days after the closing
of such Alternative Disposition, the Stockholder shall tender and pay to, or
shall cause to be tendered and paid to, the Acquiror, or its designee, in
immediately available funds, 100% of the Profit realized from such Alternative
Disposition. As used in this Section 3(a), "Profit" shall mean an amount equal
to the excess, if any, of (i) the Alternative Transaction Consideration over
(ii) the Current Transaction Consideration. As used in this Section 3,
"Alternative Transaction Consideration" shall mean all cash, securities,
settlement or termination amounts, notes or other debt instruments, and other
consideration received or to be received, directly or indirectly, by the
Stockholder and his Affiliates (excluding officers and directors of the Target)
in connection with or as a result of such Alternative Disposition or any
agreements or arrangements (including, without limitation, any employment
agreement (except a bona fide employment agreement pursuant to which the
Stockholder is required to devote, and under which Stockholder in good faith
intends to devote, substantially all of his business time and effort to the
performance of executive services for the Target in a manner substantially
similar to Stockholder's current employment arrangements with the Target),
consulting agreement, non-competition agreement, confidentiality agreement,
settlement agreement, loan (or loan forgiveness) agreement or release
agreement) entered into, directly or indirectly, by the Stockholder or his
Affiliates (excluding officers and directors of Target) as a part of or in
connection with the Alternative Disposition or associated Acquisition Proposal.
As used in this Agreement, "Current Transaction Consideration" shall mean the
sum of (x) all amounts to be received, directly or indirectly, by Stockholder
and his Affiliates (excluding officers and directors of the Target) pursuant to
Article II of the Merger Agreement and (y) all other amounts to be received by
Stockholder, directly or indirectly, pursuant to the Offer or any of the other
transactions or agreements contemplated by the Merger Agreement (other than the
employment agreements contemplated by Section 7.02 thereof).
(b) For purposes of determining Profits under this Section 3,
(i) all non-cash items shall be valued based upon the fair market value thereof
as determined by an independent expert selected by Acquiror and who is
reasonably acceptable to Stockholder, (ii) all deferred payments or
consideration shall be discounted to reflect a market rate of net present value
thereof as determined by the above-referenced independent expert, (iii) all
contingent payments will be assumed to have been paid, (iv) if less than all of
the Stockholder's Shares are subject to the Alternative Disposition or Second
Transaction then the Current Transaction Consideration shall be deemed to be an
amount equal to the Current Transaction Consideration multiplied by a fraction,
the numerator of which is the number of the Stockholder's Shares sold,
transferred, exchanged, canceled or disposed of in such Alternative Disposition
or Second Transaction and the denominator of which is the total number of the
Stockholder's Shares, and (v) the principal amount of all loans made to
Stockholder by the acquiror or any Affiliate thereof, or loans to Stockholder
that are forgiven, shall be added to the Alternative Transaction Consideration
or the Second Transaction Consideration (as defined herein), as the case may
be. In the event any contingent payments included in the determination of
Profits ultimately are not paid pursuant to an Alternative Disposition, then
Acquiror shall reimburse Stockholder for any amounts paid to Acquiror hereunder
in respect of such uncollected contingent payments promptly after receipt of
written notice of such non payment.
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(c) In the event that after the date of this Agreement, the
amount of Merger Consideration or the consideration payable in respect of the
Warrants, Options and Convertible Notes as currently provided for in the Merger
Agreement is increased (a "Second Transaction"), then, as may be requested by
Acquiror, either (i) Stockholder shall, and shall cause each of its Affiliates
who Beneficially Own any of the Stockholder's Shares to, execute and deliver to
Acquiror such documents or instruments as may be necessary to waive the right
to receive the amount of such increase to the extent that such increase results
in any Profit or (ii) Stockholder shall tender and pay, or cause to be tendered
and paid, to Acquiror or its designee, in immediately available funds, 100% of
the Profit realized from such Second Transaction. As used in this Section 3(c),
"Profit" shall mean an amount equal to the excess, if any, of (y) the Second
Transaction Consideration over (z) the Current Transaction Consideration. As
used in this Agreement, "Second Transaction Consideration" shall mean all cash,
securities, settlement or termination amounts, notes or other debt instruments,
and other consideration received or to be received, directly or indirectly, by
the Stockholder and his Affiliates (excluding officers and directors of the
Target) in connection with or as a result of the Second Transaction or any
agreements or arrangements (including, without limitation, any employment
agreement (except a bona fide employment agreement pursuant to which the
Stockholder is required to devote, and under which Stockholder in good faith
intends to devote, substantially all of his business time and effort to the
performance of executive services for the Target in a manner substantially
similar to Stockholder's current employment arrangements with the Target),
consulting agreement, non-competition agreement, confidentiality agreement,
settlement agreement, loan (or loan forgiveness) agreement or release
agreement) entered into, directly or indirectly, by the Stockholder or his
Affiliates (excluding officers and directors of the Target) with the Target as
a part of or in connection with the Second Transaction.
4. Covenants, Representations and Warranties.
(a) The Stockholder hereby represents, warrants and covenants
to Acquiror and Acquisition Sub that:
(i) Ownership. As of the date of this Agreement, the
Shares set forth on Schedule A hereto constitute all of the issued and
outstanding Shares owned of record or Beneficially Owned by the Stockholder.
Except as otherwise set forth in Schedule A, the Stockholder has sole power of
disposition, sole power of conversion, sole power to demand appraisal rights
and sole power to vote upon and agree to all of the matters set forth in this
Agreement and the Merger Agreement, in each case with respect to all of the
Shares set forth on Schedule A hereto, with no material limitations,
qualifications or restrictions on such rights, subject to applicable securities
laws and the terms of this Agreement.
(ii) Power: Binding Agreement. The Stockholder has
the legal capacity, power and authority to enter into and perform all of the
Stockholder's obligations under this Agreement. This Agreement has been duly
and validly executed and delivered by the Stockholder and constitutes a valid
and binding agreement of the Stockholder, enforceable against the Stockholder
in accordance with its terms, subject to applicable bankruptcy, insolvency,
moratorium or other similar laws relating to creditors' rights and general
principles of equity. There is no beneficiary or holder of a voting trust
certificate or other interest of any trust of which the
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Stockholder is trustee whose consent is required for the execution and delivery
of this Agreement or the consummation by the Stockholder of the transactions
contemplated hereby. If the Stockholder is married and the Stockholder's Shares
constitute community property, this Agreement has been duly authorized,
executed and delivered by, and constitutes a valid and binding agreement of,
the Stockholder's spouse, enforceable against such person in accordance with
its terms. Contemporaneously with the execution of this Agreement, Stockholder
has delivered to Acquiror a legal opinion of Greenberg, Traurig, Hoffman,
Lipoff, Xxxxx & Xxxxxxx, P.A. to the foregoing effect in form reasonably
satisfactory to Acquiror.
(iii) No Conflicts. Except for the filing of an
amendment to the Stockholder's Schedule 13D (if any), no filing with, and no
permit, authorization, consent or approval of, any state or federal public body
or authority is necessary for the execution of this Agreement by the
Stockholder and the consummation by the Stockholder of the transactions
contemplated hereby, except where the failure to obtain such consent, permit,
authorization, approval or filing would not interfere with the Stockholder's
ability to perform his obligations hereunder, and none of the execution and
delivery of this Agreement by the Stockholder, the consummation by the
Stockholder of the transactions contemplated hereby or compliance by the
Stockholder with any of the provisions hereof shall (A) result in a violation
or breach of, or constitute (with or without notice or lapse of time or both) a
default (or give rise to any third party right of termination, cancellation,
material modification or acceleration) under any of the terms, conditions or
provisions of any note, bond, mortgage, indenture, license, contract,
commitment, arrangement, understanding, agreement or other instrument or
obligation of any kind to which the Stockholder is a party or by which the
Stockholder or any of his properties or assets may be bound, (B) violate any
order, writ, injunction, decree, judgment, order, statute, rule or regulation
applicable to the Stockholder or any of his properties or assets, in each such
case except to the extent that any conflict, breach, default or violation would
not interfere with the ability of the Stockholder to perform its obligations
hereunder, or (C) to the knowledge of the Stockholder, trigger a "change in
control" or similar provision of any contract, agreement or understanding to
which the Target or any of Target's Subsidiaries is a party, or by which any of
their respective property or assets are bound.
(iv) No Encumbrances. Except as required by Sections
2 and 3 of this Agreement, at all times thereafter during the term hereof, all
of the Stockholder's Shares (excluding Shares identified in Schedule A hereto
as Shares with respect to which Stockholder does not possess sole power to
dispose or direct the disposition) will be held by the Stockholder, or by a
nominee or custodian for the benefit of such Stockholder, free and clear of all
liens, claims, security interests, proxies, voting trusts or agreements,
understandings or arrangements or any other encumbrances whatsoever, except for
any liens, claims, understandings or arrangements that do not limit or impair
Stockholder's ability to perform his obligations under this Agreement.
(v) No Solicitation. The Stockholder shall comply
with the terms of Section 6.06 of the Merger Agreement.
(vi) Restriction on Transfer, Proxies and
Non-Interference. From and after the date of this Agreement and ending as of
the first to occur of the Effective Time or the first anniversary of the
Termination Date, the Stockholder shall not, and shall cause each of his
Affiliates who Beneficially Own any of the Stockholder's Shares not to,
directly or indirectly, without the
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consent of Acquiror, in respect of any Acquisition Proposal or otherwise: (A)
offer for sale, sell, transfer, tender, pledge, encumber, assign or otherwise
dispose of, or enter into any contract, option or other arrangement or
understanding with respect to or consent to the offer for sale, sale, transfer,
tender, pledge, encumbrance, assignment or other disposition of, any or all of
the Stockholder's Shares, or any interest therein, (B) except as provided
herein, grant any proxies or powers of attorney, deposit any Stockholder's
Shares into a voting trust or enter into a voting agreement with respect to any
Stockholder's Shares, (C) enter into any agreement or arrangement providing for
any of the actions described in clause (A) or (B) above or (D) take any action
that could reasonably be expected to have the effect of preventing or disabling
the Stockholder from performing the Stockholder's obligations under this
Agreement.
(vii) Waiver of and Agreement Not to Assert
Appraisal Rights. The Stockholder hereby waives and agrees not to assert, and
shall cause any of its Affiliates who hold of record any of the Stockholder's
Shares to waive and not to assert, any appraisal rights with respect to the
Merger (or any Second Transaction) that the Stockholder or such Affiliate may
now or hereafter have with respect to any Shares (or any other shares of
capital stock of the Target that the Stockholder shall hold of record at the
time that Stockholder may be entitled to assert appraisal rights with respect
to the Merger or any Second Transaction) whether pursuant to Section 262 of the
Delaware General Corporate Law or otherwise.
(viii) Further Assurances. From time to time, at
Acquiror's request and without further consideration, the Stockholder shall
execute and deliver such additional documents as may be necessary or desirable
to consummate and make effective, in the most expeditious manner practicable,
the transactions contemplated by this Agreement. The Stockholder shall
cooperate fully with Target and Acquiror in connection with their respective
efforts to fulfill the conditions to the Offer and the Merger set forth in the
Merger Agreement.
(ix) Waiver of Rights of First Refusal. Set forth on
Schedule B is a complete list of all rights of first refusal, preemptive rights
or similar rights held by the Stockholder and any of its Affiliates to purchase
Shares upon transfer (collectively, "Rights of First Refusal"). From and after
the date of this Agreement and ending as of the first to occur of the Effective
Time or the first anniversary of the Termination Date, the Stockholder shall
not, and shall cause each its Affiliates who hold Rights of First Refusal not
to, directly or indirectly, without the consent of Acquiror, in respect of the
Offer, the Merger, any Acquisition Proposal, any Second Transaction or
otherwise, exercise any of such Rights of First Refusal to purchase or
otherwise acquire Shares.
(b) Acquiror and Acquisition Sub hereby represent, warrant
and covenant to the Stockholder as follows:
(i) Organization, Standing and Corporate Power. Each
of Acquiror and Acquisition Sub is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware, with
adequate corporate power and authority to own its properties and carry on its
business as presently conducted. Each of Acquiror and Acquisition Sub has the
corporate power and authority to enter into and perform all of its obligations
under this Agreement and to consummate the transactions contemplated hereby.
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(ii) Execution, Delivery and Performance by Acquiror
and Acquisition Sub. The execution, delivery and performance of this Agreement
and the consummation of the transactions contemplated hereby have been duly
authorized by the Boards of Directors of Acquiror and Acquisition Sub, and each
of Acquiror and Acquisition Sub has taken all other actions required by law,
its Certificate of Incorporation and its Bylaws (except as described in the
Merger Agreement) to consummate the transactions contemplated by this
Agreement. This Agreement constitutes the valid and binding obligations of
Acquiror and Acquisition Sub and is enforceable in accordance with its terms,
except as enforceability may be subject to bankruptcy, insolvency,
reorganization, moratorium or other similar laws relating to or affecting
creditors' rights generally.
(c) Target hereby represents and warrants to Acquiror and
Acquisition Sub that the Board of Directors of Target (including any committee
of the independent directors thereof) has approved the terms of this Agreement
and the transactions contemplated herein and such approval is sufficient to
render inapplicable to this Agreement and the transactions contemplated herein
the provisions of Section 203 of the Delaware General Corporation Law.
5. Stop Transfer. From and after the date of this Agreement and ending
as of the first to occur of the Effective Time or the first anniversary of the
Termination Date, Stockholder will not request that Target register (and Target
agrees not to register) the transfer (book-entry or otherwise) of any
certificate or uncertificated interest representing any of the Stockholder's
Shares (excluding shares identified in Schedule A as Shares with respect to
which Stockholder does not possess sole power to dispose or direct the
disposition), or as otherwise contemplated hereby.
6. Recapitalization. In the event of a stock dividend or distribution,
or any change in the Shares (or any class thereof) by reason of any split-up,
recapitalization, combination, exchange of shares or the like, the term
"Shares" shall include, without limitation, all such stock dividends and
distributions and any shares into which or for which any or all of the Shares
(or any class thereof) may be changed or exchanged as may be appropriate to
reflect such event.
7. Stockholder Capacity. The Stockholder does not make any agreement
or understanding herein in the Stockholder's capacity as a director or officer
of the Target and nothing herein shall limit or affect any action taken by the
Stockholder in such capacity.
8. Merger Agreement and Options. The Stockholder hereby consents and
agrees to the treatment of each warrant, option or unsecured senior convertible
note of the Target Beneficially Owned by Stockholder or its Affiliates as set
forth in Article II of the Merger Agreement.
9. Miscellaneous.
(a) Entire Agreement. This Agreement constitutes 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 all of the provisions of this
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Agreement other than Sections 4(c), 5 and this Section 9(b) may be amended
without the consent of the Target.
(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 Stockholder: Xxx Xxxxx
000 Xxxxxxxx Xxxxx
Xxxxx, 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 or Acquisition Sub:
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
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Attn: Xxxx Xxxxxxxx
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) Specific Performance. Each of the parties hereto
recognizes and acknowledges that a breach by the Stockholder of any covenants
or agreements contained in this Agreement will cause the Acquiror and
Acquisition Sub to sustain damages for which they would not have an adequate
remedy at law for money damages, and therefore each of the parties hereto
agrees that, in the event of any such breach, the Acquiror or Acquisition Sub
shall be entitled to the remedy of specific performance of such covenants and
agreements and injunctive and other equitable relief, without the necessity of
posting bond or proving actual damages, in addition to any other remedy to
which they may be entitled, at law or in equity.
(f) Remedies Cumulative. All rights, powers and remedies
provided under this Agreement or otherwise available in respect hereof at law
or in equity shall be cumulative and not alternative, and the exercise of any
such right, power or remedy by any party shall not preclude the simultaneous or
later exercise of any other such right, power or remedy by such party.
(g) 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.
(h) 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; provided that, in the event of
the Stockholder's death, the obligations of the Stockholder hereunder shall
attach to the Stockholder's Shares and shall be binding upon any Person to
which legal or beneficial ownership of such Shares shall pass, whether by
operation of Law or otherwise, including without limitation the Stockholder's
heirs, guardians, administrators or successors.
(i) Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Delaware, without giving
effect to the principles of conflicts of law thereof.
11
(j) Jurisdiction. Each party hereby irrevocably submits to
the exclusive jurisdiction of the Court of Chancery in the State of Delaware in
any action, suit or proceeding arising in connection with this Agreement, and
agrees that any such action, suit or proceeding shall be brought only in such
court (and waives any objection based on forum non convenience or any other
objection to venue therein); provided, however, that such consent to
jurisdiction is solely for the purpose referred to in this paragraph and shall
not be deemed to be a general submission to the jurisdiction of said Court or
in the State of Delaware other than for such purposes. Each party hereto hereby
waives any right to a trial by jury in connection with any such action, suit or
proceeding.
(k) 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.
(1) 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.
(m) Trust Funds. In the event that any party hereto should
receive any funds that are to be paid to another party pursuant to the terms of
this Agreement, then the receiving party shall hold such funds in trust for the
benefit of the party entitled to receive such funds and shall promptly pay such
funds to the party entitled to receive such funds in accordance with this
Agreement.
10. Assignment. Neither this Agreement nor any of the rights,
interests or obligations hereunder shall be assigned by any of the parties
without the prior written consent of the other parties, except that Acquisition
Sub may assign, in its sole discretion, any or all of its rights, interests and
obligations hereunder to Acquiror or to any direct or indirect wholly-owned
subsidiary of Acquiror. Subject to the preceding sentence, this Agreement will
be binding upon, inure to the benefit of and be enforceable by the parties and
their respective successors and assigns. Stockholder agrees that this
Agreement, and the obligations of the Stockholder hereunder, shall attach to
the Stockholder's Shares and shall be binding upon any Person to which legal or
beneficial ownership of such Shares shall pass, whether by operation of Law or
otherwise, including without limitation the Stockholder's heirs, guardians,
administrators or successors.
11. Termination. This Agreement shall terminate without any further
action on the part of any party hereto (a) upon the occurrence of a termination
of the Merger Agreement pursuant to Sections 8.01(a), 8.01(b)(i) (provided that
no Takeover Proposal has been made prior to the date of such termination) or
8.01(b)(ii) thereof; or (b) the date that Acquiror or Acquisition Sub shall
have purchased and paid for all the Stockholder's Shares pursuant to Section 2.
Upon such termination, this Agreement shall forthwith become void and of no
further force or effect.
[Signature page follows]
12
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed as of the date first written above.
STOCKHOLDER
/s/ Xxx Xxxxx
-----------------------------------
Name: Xxx Xxxxx
STOCKHOLDER SPOUSE - if community property State
-----------------------------------
Name:
SFX ENTERTAINMENT, INC.
By: /s/ Xxxxxx X. Xxxxxx
--------------------------------
Xxxxxx X. Xxxxxx
Chief Financial Officer
MWE ACQUISITION CORP.
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
13
SCHEDULE A
Class of Shares Number of Shares Record Owner Beneficial Owner
--------------- ---------------- ------------ ----------------
Common Stock 8,487,012 Xxx Xxxxx Xxx Xxxxx
SCHEDULE B
None
B-1
