AMENDED AND RESTATED EMPLOYMENT AGREEMENT
AGREEMENT made as of January 1, 1997 (the "Employment
Agreement"), between SFX BROADCASTING, INC., a Delaware corporation (the
"Employer") and ROBERT F.X.
SILLERMAN (the "Executive").
WHEREAS, Employer and Executive entered into a certain
employment agreement dated as of April 1, 1995 (the "Employment Agreement");
and
WHEREAS, Employer and Executive desire to amend and restate
the Employment Agreement to extend the term of employment and to reward the
Executive for his leadership of the Employer as demonstrated by the Employer's
recent growth and financial results;
WHEREAS, the Board of Directors of the Employer (the
"Board"), discussed the necessity of amending the Employment Agreement and
instructed the Compensation Committee of the Board (the "Compensation
Committee") to consider the matter and make a recommendation to the Board; and
WHEREAS, the Compensation Committee and the Board approved
(each with the Executive abstaining) the terms and conditions of this Amended
and Restated Employment Agreement.
NOW, THEREFORE, for good and valuable consideration the
sufficiency and receipt of which is hereby acknowledged, Employer and
Executive agree as follows:
1. Employment. Upon the terms and subject to the
conditions of this Agreement, Employer hereby employs the Executive and the
Executive hereby accepts employment by Employer on the terms hereinafter set
forth.
2. Term.
2.1 The term of the Executive's employment
hereunder shall commence on January 1, 1997 (the "Effective Date") and
continue until the fifth anniversary thereof (the "Term") and shall terminate
at the close of business on December 31, 2002 (the "Termination Date") unless
terminated earlier in accordance with the provisions of this Employment
Agreement.
3. Executive's Position, Duties, and Authority.
3.1 The Employer shall employ the Executive,
and the Executive shall serve, as Executive Chairman of the Board and as a
Chief Executive 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 (i) a member of the Compensation Committee and
Stock Option Committee of the Employer and as a member of any other committee
of the Employer, as determined by the Board; and (ii) 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
Company and to the fulfillment of his duties hereunder in a diligent and
competent fashion to the best of his abilities. Notwithstanding the foregoing,
(i) 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, Sillerman Management Company, Inc. and The Marquee Group, Inc.,
and (ii) shall have the right to devote a portion of his business time to
personal, non-broadcast investments and commitments or to broadcast
investments provided that such investments do not involve the ownership of
radio stations in the top fifty markets in the United States (as determined by
ratings published from time to time by The Arbitron Company). In addition,
except as provided in Section 16, the Executive may serve on 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. Compensation.
6.1 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
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$400,000, payable in monthly installments. Notwithstanding the foregoing, 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 shall not decrease, such Base
Salary, as such salary may have been increased, at any time and from
time-to-time during the Term.
6.2 Loan. On the Effective Date, the
Employer shall make a loan (the "Loan") to the Executive in the amount of
$2,500,000. The Loan shall accrue simple interest from the date of advance at
the rate of 7% per annum and will be repaid, together with the accrued
interest, on the expiration or earlier termination of this Agreement;
provided, however, that should the Term of this Agreement be extended by the
parties beyond five (5) years, the maturity date of the Loan may be extended
by the Board for such additional period as shall be determined by the Board in
its sole discretion. The Employer shall have full recourse to the Executive
and his assets for the repayment of the loan.
7. 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 in accordance
with a formula to be determined by the Board, after and pursuant to the
affirmative recommendation of the Compensation Committee. The Bonus shall be
payable within a reasonable period of time not to exceed ninety (90) days
following the end of each fiscal year of the Employer. To the extent that the
Executive is granted options to acquire shares of the Class A Common Stock of
the Employer (the "Class A Stock"), such options shall have an exercise price
equal to the average closing ask and bid price of the Class A Stock on the
date of the grant and shall be exercisable for 10 years and shall vest on a
schedule to be determined by the Board but in no event shall the vesting
schedule exceed the Term of this Agreement. Notwithstanding the foregoing, in
the event that the Executive ceases to be employed by the Employer for any
reason whatsoever, all options issued pursuant to this Section 7 shall vest
immediately and the Executive shall retain the right to exercise each such
option during the remaining term of each such grant.
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
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vouchers or such other supporting information as the Employer may reasonably
require of the Executive. The Employer shall make an automobile available for
Executive's exclusive use while employed under this Agreement.
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. Existing Life Insurance. The Employer shall have the
right to obtain up to $5,000,000 of life insurance on the life of Executive
and to be the beneficiary of such policy. The Executive shall cooperate in
assisting the Employer to obtain such insurance. The Employer shall continue
to pay all premiums on such policies and shall maintain such policies, subject
to the insurability of the Executive, if required to keep such policies in
effect during the Term.
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.
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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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(i) 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
(ii) 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:
(i) any "person," as such term is used
in Sections 3(a)(9) and 13(d) of the Securities Exchange Act of 1934
(other than the Executive or entities controlled by the Executive), 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;
(ii) all or substantially all of the
assets or business of 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);
(iii) 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
(iv) the majority of the Board consists
of individuals other than incumbent directors which term means members of
the Board as of the date of the employment agreements, 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.
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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:
(i) a reduction in the Executive's then
current Base Salary or failure by the Employer to fulfill its obligations
under Sections 6, 7, 8 and 9 above;
(ii) the failure to elect or reelect the
Executive to any of the positions described in Section 3 hereof or
removal of him from any such position;
(iii) 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 the Executive Chairman of the Board or a Chief
Executive Officer of the Employer; or
(iv) 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:
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(A) the Base Salary through the date
of the termination of his employment for Cause;
(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 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 6.2, 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 month in which
such termination occurs);
(C) immediately vested options to
purchase shares of Class A Common Stock in an amount equal to 375,000 shares
less the multiple of 75,000 shares times the number of years elapsed under the
Term of this Agreement at an exercise price per share equal to the exercise
price of the last stock option granted prior to termination; and
(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; and further provided that at
the Executive's option, the Employer shall pay him the present value of
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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 month in which
such termination occurs. Notwithstanding the foregoing, in no event shall the
Base Bonus Amount be less than $1,250,000.
(E) all benefits provided in Section 9
hereof until the end of the Term.
(F) the full amount of the Loan,
including any interest earned thereon, shall be forgiven by the Employer and
the Executive shall thereafter have no obligation to repay any such amounts.
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 10 year options
to purchase 350,000 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, the full amount of the Loan, including any
interest earned thereon, shall be forgiven by the Employer and the Executive
shall thereafter have no obligation to repay any such amounts. The Executive
shall forfeit any rights granted pursuant to this Section 13.4 if such
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 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, 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 one-half 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
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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.
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:
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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 Termination Date 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 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. 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, other than such insurance identified in Section 10.
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 owns or operates radio stations in the top
fifty markets in the United States as determined by ratings published from
time to time by The Arbitron Company.
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 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; 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 Broadcasting, Inc.
150 East 58th Street, l9th Floor
New York, New York 10155
Attention: Board of Directors
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17.2 If to the Executive:
Robert F.X. Sillerman
207 East 61st Street
New York, NY 10022
17.3 Copies of all communications given
hereunder shall also be delivered or sent, in like fashion, to Baker &
McKenzie (attention: Michael Burrows, Esq.) at 805 Third Avenue, New York, New
York 10022.
18. General.
18.1 Governing Law. This 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 Agreement.
18.3 Entire Agreement. This 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 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 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. The term "Employer" as used in this Agreement, shall include all
such successors.
18.5 Amendments; Waivers. This 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
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covenant contained in this 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 Agreement.
18.6 Beneficiaries. Whenever this 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.
IN WITNESS WHEREOF, the parties have duly executed this
Agreement as of the date first above written.
SFX BROADCASTING, INC.
By: /s/ Michael G. Ferrel
---------------------------
Name: Michael G. Ferrel
Title: President
/s/ Robert F.X. Sillerman
---------------------------
ROBERT F.X. SILLERMAN
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