| Delaware | 0-17436 | 27-0118168 | ||
| (State or other jurisdiction | (Commission | (I.R.S. Employer | ||
| of incorporation) | File Number) | Identification No.) | ||
| 650 Madison Avenue | 10022 | |||
| New York, New York | (Zip Code) | |||
| (Address of principal | ||||
| executive offices) |
| o | Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) | |
| o | Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) | |
| o | Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) | |
| o | Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
| Exhibit No. | Description | |
10.1
|
Consultancy Deed, dated January 13, 2010, by and between 19 Entertainment Limited and Simon R. Fuller. | |
10.2
|
Option Agreement, dated January 13, 2010, by and between CKX, Inc., Simon R. Fuller, and XIX Entertainment Limited. | |
10.3
|
Compromise Agreement, dated January 13, 2010, by and between CKX, Inc., 19 Entertainment Limited, and Simon R. Fuller. | |
99.1
|
Press release, dated January 13, 2010, issued by CKX, Inc. |
| CKX, INC. | ||||||
| By: | /s/ Thomas P. Benson | |||||
| Name: | Thomas P. Benson | |||||
| Title: | Chief Financial Officer, Executive Vice President and Treasurer |
|||||
| Exhibit No. | Description | |
10.1
|
Consultancy Deed, dated January 13, 2010, by and between 19 Entertainment Limited and Simon R. Fuller. | |
10.2
|
Option Agreement, dated January 13, 2010, by and between CKX, Inc., Simon R. Fuller, and XIX Entertainment Limited. | |
10.3
|
Compromise Agreement, dated January 13, 2010, by and between CKX, Inc., 19 Entertainment Limited, and Simon R. Fuller. | |
99.1
|
Press release, dated January 14, 2010, issued by CKX, Inc. |
| Page | ||||||
1. |
INTERPRETATION | 1 | ||||
2. |
TERM OF ENGAGEMENT | 3 | ||||
3. |
DUTIES | 3 | ||||
4. |
FEES | 4 | ||||
5. |
EXPENSES | 5 | ||||
6. |
OTHER ACTIVITIES | 5 | ||||
7. |
CONFIDENTIAL INFORMATION AND COMPANY PROPERTY | 5 | ||||
8. |
DATA PROTECTION | 6 | ||||
9. |
INTELLECTUAL PROPERTY | 6 | ||||
10. |
INSURANCE AND LIABILITY | 8 | ||||
11. |
TERMINATION | 8 | ||||
12. |
OBLIGATION UPON TERMINATION | 9 | ||||
13. |
STATUS, INDEMNITY AND REIMBURSEMENT | 10 | ||||
14. |
NOTICES | 10 | ||||
15. |
ENTIRE AGREEMENT AND PREVIOUS CONTRACTS | 11 | ||||
16. |
VARIATION | 11 | ||||
17. |
COUNTERPARTS | 11 | ||||
18. |
THIRD PARTIES | 11 | ||||
19. |
GOVERNING LAW AND JURISDICTION | 12 | ||||
| SCHEDULE SERVICES AND FEES | 13 | |||||
- -
| (1) | 19 ENTERTAINMENT LIMITED, (Company number 01886042) whose registered office is at 100 New Bridge Street, London, EC4V 6JA (the Company); and | |
| (2) | SIMON ROBERT FULLER of 19 The Mall, East Sheen, London, SW14 7EN (the Consultant). |
| 1.1 | The definitions and rules of interpretation in this clause apply in this Deed (unless the context requires otherwise). | ||
| Advance means each non-returnable sum referred to in paragraph 2.3 of the Schedule to this Deed. | |||
| Board means the board of directors of the Company (including any committee of the board duly appointed by it). | |||
| Budget means an annual budget with respect to each element of each of the Programmes, as determined by the Company. | |||
| Business Opportunities means any opportunities which the Consultant conceptualizes, develops, creates or becomes aware of during the Engagement which relate to the business of the Company or any Group Company or to the Programmes or other Intellectual Property Rights of the Company or any Group Company. |
| Capacity means as agent, consultant, director, employee, owner, partner, shareholder or in any other capacity. | |||
| Commencement Date means January 2010. | |||
| Confidential Information means information (whether or not recorded in documentary form, or stored on any magnetic or optical disk or memory) relating to the business, products, affairs and finances of the Company or any Group Company for the time being confidential to the Company or any Group Company and trade secrets including, without limitation, technical data and know-how relating to the business of the Company or of any Group Company or any of its or their business contacts. | |||
| Engagement means the engagement of the Consultant by the Company on the terms of this Deed. | |||
| Executive Producer means the supervision of all aspects of the creation and exploitation of the Programmes, consistent with the Consultants previous practice when acting as an executive producer of and managing the exploitation of the Programmes. | |||
| Fee is as defined in clause 4 of this Deed and in clause 2 of the Schedule. | |||
| Group Company means any one of CKX, Inc. and the Company, and their respective subsidiaries, holding companies or any subsidiary of a holding company (in each case as defined by the Companies Act 2006) and the Group has the corresponding meaning. | |||
| Idol means the television format Pop Idol and all overseas versions of the format (including, without limitation, American Idol), all programmes based on the format, all ancillary exploitation of the format (including all format, programme and artist related recording, touring, management, merchandising and sponsorship opportunities) and all other business opportunities using Intellectual Property Rights associated with Idol. | |||
| If I Can Dream means the internet project scheduled to begin production in 2010 currently entitled If I Can Dream, all ancillary exploitation of the project (including all project and talent related recording, touring, management, merchandising and sponsorship opportunities) and all other business opportunities using Intellectual Property Rights associated with If I Can Dream. | |||
| Intellectual Property Rights means patents, rights to Inventions, copyright and related rights, trade marks, trade names and domain names, rights in get-up, rights in goodwill or to sue for passing off, rights in designs, rights in computer software, database rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications (or rights to apply) for, |
| and renewals or extensions of, such rights and all similar or equivalent rights or forms of protection which may now or in the future exist in any part of the world. | |||
| Invention means any invention, discovery, development, improvement or innovation made by the Consultant in connection with or during the provision of the Services, whether or not patentable or capable of registration, and whether or not recorded in any medium. | |||
| Net Profits means total revenue received by the Group Companies from the Programmes less (i) actual operating expenses from the Programmes (including direct costs of all Group Company employees assigned to such projects consistent with historical practice and budgets); (ii) a fair and reasonable allocation of Group Company overhead relating to services and employees provided in respect of the Programmes based on the proportion of employees at a given location providing services on behalf of the Programmes to the total number of employees at such location; (iii) a fair and reasonable allocation of Group Company employees salaries and costs relating to services provided in respect of the Programmes; (iv) a fair and reasonable amortization charge for any unrecouped historical development costs in connection with If I Can Dream such costs to be amortized in 5 equal amounts over a 5 year period. With respect to the determination of Net Profits relating to Idol, it is acknowledged that operating expenses will include (x) a charge for each of 2010, 2011 and 2012 of $15 million less an amount equal to the amount that the Fox Broadcasting Company or American Idol Productions, Inc. pays to any Group Company in relation to the services of Ryan Seacrest as a host of American Idol for each such year; and (y), a charge for each of 2010, 2011 and 2012 equal to the amount of travel costs paid by any Group Company for the services of Ryan Seacrest on American Idol less any amount reimbursed to any Group Company by any third party. In calculating Net Profits, the amortization charges or other costs incurred in relation to If I Can Dream shall not reduce Net Profits in relation to Idol or So You Think You Can Dance. In calculating Net Profits payments of advances or Fee to the Consultant shall not be treated as operating expenses or otherwise deducted from total revenue. | |||
| Pre-Contractual Statement means any undertaking, promise, assurance, statement, representation. warranty or understanding (whether in writing or not) of any person (whether party to this Deed or not) relating to the Engagement other than as expressly set out in this Deed or any documents referred to in it. | |||
| Programmes means Idol, So You Think You Can Dance and If I Can Dream including all format, project, programme, artist and talent related ancillary exploitations thereof for which the Company or any Group Company receives remuneration (e.g. touring, recording, management, sponsorship, merchandise, and licensing). | |||
| Services means non-exclusive services as Executive Producer and non-exclusive services to be provided by the Consultant in a consultancy capacity for |
| the Company or any Group Company as more particularly described in the Schedule. | |||
| So You Think You Can Dance means the television format So You Think You Can Dance and all overseas versions of the format, all programmes based on the format, all ancillary exploitation of the format (including all format, programme and talent related recording, touring, management, merchandising and sponsorship opportunities) and all other business opportunities using Intellectual Property Rights associated with So You Think You Can Dance. | |||
| Termination Date means the date of termination of this Deed howsoever arising. | |||
| Treaty means the Convention between the Government of the United States of America and the Government of the United Kingdom of Great Britain and Northern Ireland for the Avoidance of Double Taxation and the Prevention of Fiscal Earnings with respect to Income and Capital gains. | |||
| Works means all records, reports, documents, papers, drawings, designs, transparencies, photos, graphics, logos, typographical arrangements, software programs, inventions, ideas, discoveries, developments, improvements or innovations and all materials embodying them in whatever form, including but not limited to hard copy and electronic form, prepared by the Consultant in connection with the Programmes during the provision of the Services. |
| 1.2 | The headings in this Deed are inserted for convenience only and shall not affect its construction. | ||
| 1.3 | A reference to a particular law is a reference to it as it is in force for the time being taking account of any amendment, extension, or re-enactment and includes any subordinate legislation for the time being in force made under it. | ||
| 1.4 | A reference to one gender includes a reference to the other gender. | ||
| 1.5 | The schedule(s) to this Deed form part of (and are incorporated into) this Deed. |
| 2.1 | The Company shall engage the Consultant and the Consultant shall provide the Services on the terms of this Deed. |
| 2.2 | In relation to the Executive Producer services, the Engagement shall be deemed to have commenced on the Commencement Date and (unless terminated earlier pursuant to Clause 11 below) shall continue in relation to each Programme for the life of that Programme, the Consultant being locked for life in respect of each Programme, except to the extent that this Deed is terminated in accordance with the terms hereof. |
| 2.3 | In relation to the Services other than Executive Producer services, the Engagement shall be deemed to have commenced on the Commencement Date and continue for a period of 6 months. |
| 3.1 | During the Engagement the Consultant shall: |
| (a) | provide the Services with all due care, skill and ability and use his best endeavours to promote the interests of the Company and any Group Company in respect of the Programmes; and | ||
| (b) | promptly give to the Board all such information and reports as it may reasonably require in connection with matters relating to the provision of the Services or the business of the Company and any Group Company in relation to the Programmes. |
| 3.2 | If the Consultant is unable to provide the Services due to illness or injury he shall advise the Company of that fact as soon as reasonably practicable and shall provide such evidence of his illness or injury as the Company may reasonably require. | ||
| 3.3 | The Consultant shall comply with all reasonable standards of safety and comply with the Companys health and safety procedures from time to time in force at the premises where the Services are provided and report to the Company any unsafe working conditions or practices. | ||
| 3.4 | The Consultant undertakes to the Company that during the Engagement he shall take all reasonable steps to offer (or cause to be offered) to the Company any Business Opportunities in respect of the Programmes or any Intellectual Property Rights of the Group Companies as soon as practicable after the same shall have come to his knowledge and in any event before the same shall have been offered by the Consultant (or caused by the Consultant to be offered) to any other party provided that nothing in this clause shall require the Consultant to disclose any Business Opportunities to the Company if to do so would result in a breach by the Consultant of any obligation of confidentiality or of any fiduciary duty owed by him to any other person, firm or company. Notwithstanding the foregoing, the Consultant shall be permitted to produce a movie (and any subsequent prequels or sequels) based on the life and times of Elvis Presley, subject to the Consultants entry into definitive documentation with the Company or any Group Company, as appropriate, regarding appropriate licensing of any Group Companys Intellectual Property Rights related to Elvis Presley to be used in such movie (and any subsequent prequels or sequels). | ||
| 3.5 | The Consultant may use another person, firm, company or organisation to perform any administrative, clerical or secretarial functions which are reasonably incidental to the provision of the Services provided that the |
| Company will not be liable to bear the cost of such functions. The Company will bear the cost of the Consultant working with any Company professional advisor or agent in relation to the Programmes to the extent that the retention and use of such professional or agent is approved by the Company. |
| 3.6 | The Consultant shall not (and shall use reasonable endeavours to ensure that his agents and employees shall not): |
| (a) | make or publish any statement to a third party (including but not limited to any journalists or other persons connected in any way with the media, any clients, customers, employees or ex-employees of any Group Company) concerning the terms of this Agreement; or | ||
| (b) | make or publish any derogatory or disparaging statement or do anything in relation to any Group Company or any members, partners, directors, officers, employees, ex-employees, clients, customers or agents of any other Group Company which is intended to or which might be expected to damage or lower their respective reputations, |
| provided that the parties will not be prevented from making a disclosure: |
| 3.6.b.1 | for the purposes of seeking legal or other professional advice from an adviser in relation to this Agreement provided that any such adviser is bound by the same duty of confidence; | ||
| 3.6.b.2 | to the proper authorities as required by law; | ||
| 3.6.b.3 | in the case of the Consultant, to an immediate family member, provided such person agrees to maintain confidentiality on the same terms; or | ||
| 3.6.b.4 | to confirm the authority of the Consultant. |
| 3.7 | The Consultant warrants that he has not done or failed to do anything of which the Company is unaware, including, without limitation, published any statement or authorised or permitted anyone else to do so prior to the date of this Agreement, which would constitute a breach of clause 3.6 if it had occurred after the date of this Agreement. |
| 4.1 | In consideration of the Services to be provided by the Consultant under this Agreement, the Company shall pay the Consultant (i) a non-returnable and non-recoupable signing fee on the date hereof in the amount £250,000 and (ii) the fee set out in the Schedule attached hereto (the Fee). |
| 4.2 | The Company shall be entitled to deduct from the Fee (and any other sums) due to the Consultant any sums that the Consultant may owe to the Company or any Group Company at any time. |
| 5.1 | The Consultant hereby acknowledges and agrees that from time to time the Services will require that he will travel, including travel necessary to attend meetings relating to the Programmes with third party partners, contractual counterparties or other parties, including the Company. The Consultant acknowledges that the Companys policies regarding the pre-booking and documentation of travel arrangements and expenses for which reimbursement may be sought by the Consultant (which policies and procedures may from time to time be changed by the Company). The Consultant agrees that he will comply with the Companys policies and procedures in this regard and that any reimbursement due hereunder shall be requested by the Consultant not later than two months after being incurred. | ||
| 5.2 | The Company agrees that when the Services reasonably require that the Consultant travel, the Consultant shall be entitled to first class flights, first class hotel suite accommodation when traveling to a destination where the Consultant does not have a residence, private car service, private air travel within North America and within Europe; provided however, that any travel costs to be reimbursed hereunder shall be fairly allocated between the Services and to any other business not related to the Company, that the Consultant may be undertaking at the time of such travel. Private air travel between North America and Europe shall be approved by the Company on a case by case basis. | ||
| 5.3 | If the Consultant is required to travel abroad in connection with the provision of the Services, he shall be responsible for any necessary insurances, inoculations and immigration requirements. |
| Nothing in this Deed shall prevent the Consultant from being engaged, concerned or having any financial interest in any Capacity in any other business, trade, profession or occupation during the Engagement provided that such activity does not cause a breach of any of the Consultants obligations under this Deed. |
| 7.1 | The Consultant acknowledges that in the course of the Engagement he will have access to Confidential Information. The Consultant has therefore agreed to accept the restrictions in this clause. | ||
| 7.2 | The Consultant shall not (except in the proper course of his duties) either during the Engagement or at any time after the Termination Date, use or |
| disclose to any firm, person or company (and shall use his best endeavours to prevent the publication or disclosure of) any Confidential Information. This restriction does not apply to: |
| (a) | any use or disclosure authorised by the Company or required by law; or | ||
| (b) | any information which is already in, or comes into, the public domain otherwise than through the Consultants unauthorised disclosure; or | ||
| (c) | information which the Consultant reasonably determines is necessary or required to be shared with the Companys business partners in the Programmes; or | ||
| (d) | information disclosed to the Companys or the Consultants professional advisors on a confidential basis. |
| 7.3 | All documents, manuals, hardware and software provided for the Consultants use by the Company, and any data or documents (including copies) produced, maintained or stored on the Companys computer systems or other electronic equipment (including mobile phones provided by the Company), remain the property of the Company. |
| 8.1 | The Consultant consents to the Company and any Group Company holding and processing data relating to him for legal, personnel, administrative and management purposes and in particular to the processing of any sensitive personal data (as defined in the Data Protection Act 1998) relating to the Consultant. | |
| 8.2 | The Consultant consents to the Company making such information available to, and the transfer of such information outside the European Economic Area to, any Group Company for legal, personnel, administrative and management purposes. |
| 9.1 | The Consultant hereby assigns to the Company all future Intellectual Property Rights in the Works and the Inventions and all materials embodying such rights to the fullest extent permitted by law. Insofar as they do not so vest automatically by operation of law or under this Deed, the Consultant holds legal title in such rights and inventions on trust for the Company. | ||
| 9.2 | The Consultant undertakes: |
| (a) | to notify to the Company in writing full details of all Works and Inventions promptly on their creation; | ||
| (b) | to keep confidential the details of all Inventions; |
| (c) | whenever requested to do so by the Company and in any event on the termination of the Engagement, promptly to deliver to the Company all correspondence, documents, papers and records on all media (and all copies or abstracts of them), recording or relating to any part of the Works and the process of their creation which are in his possession, custody or power; | ||
| (d) | not to register nor attempt to register any of the Intellectual Property Rights in the Works, nor any of the Inventions, unless requested to do so by the Company; and | ||
| (e) | to do all acts necessary to confirm that absolute title in all Intellectual Property Rights in the Works and the Inventions has passed, or will pass, to the Company. |
| 9.3 | The Consultant warrants that: |
| (a) | save where the Work or Invention is incorporated into one of the Programmes he will not give permission to any third party to use any of the Works or the Inventions, nor any of the Intellectual Property Rights in the Works; and | ||
| (b) | the use of the Works or the Intellectual Property Rights in the Works by the Company will not infringe the rights of any third party. |
| 9.4 | The Consultant waives any moral rights in the Works to which he may at any future time be entitled under Chapter IV of the Copyright Designs and Patents Act 1988 or any similar provisions of law in any jurisdiction, including (but without limitation) the right to be identified, the right of integrity and the right against false attribution, and agrees not to institute, support, maintain or permit any action or claim to the effect that any treatment, exploitation or use of such Works or other materials, infringes the Consultants moral rights; provided that nothing contained in this clause shall prevent the Consultant receiving his Created by.. credits or Executive Producer credits on the Programmes. | ||
| 9.5 | The Consultant acknowledges that no further remuneration or compensation other than that provided for in this Deed is or may become due to the Consultant in respect of the performance of his obligations under this clause. | ||
| 9.6 | The Consultant undertakes, at the expense of the Company, at any time either during or after the Engagement, to execute all documents, make all applications, give all assistance and do all acts and things as may, in the opinion of the Company, be necessary or desirable to vest the Intellectual Property Rights in, and register or obtain patents or registered designs in, the name of the Company and to defend the Company against claims that works embodying Intellectual Property Rights or Inventions infringe third party rights, and otherwise to protect and maintain the Intellectual Property Rights in the Works and the Inventions. |
| 9.7 | The Consultant hereby irrevocably appoints the Company to be his attorney to execute and do any such instrument or thing and generally to use his name for the purpose of giving the Company or its nominee the benefit of this clause and acknowledges in favour of a third party that a certificate in writing signed by any director or the secretary of the Company that any instrument or act falls within the authority conferred by this clause shall be conclusive evidence that such is the case. |
| 11.1 | Notwithstanding the provisions of clause 2.2, the Company may terminate the Engagement with immediate effect without notice and without any liability to make any further payment to the Consultant (including the Fee, compensation or damages, other than in respect of amounts accrued prior to the Termination Date) if at any time the Consultant: |
| (a) | is guilty of gross misconduct affecting the business of the Company or any Group Company; or | ||
| (b) | commits any serious breach of the Consultants obligations under this Deed, including failure to perform the Services as set forth herein, and fails to remedy such breach within 30 days after receipt of notice from the Company specifying the breach and requiring remedy of the same; or | ||
| (c) | is convicted of any criminal offense (other than an offense under any road traffic legislation in the United Kingdom or elsewhere for which a fine or non-custodial penalty is imposed); or | ||
| (d) | is declared bankrupt or makes any arrangement with or for the benefit of his creditors or has a county court administration order made against him under the County Court Act 1984; or | ||
| (e) | is unable (including by reason of illness or accident) to provide the Services for an aggregate period of 160 working days in any 52 week period; or | ||
| (f) | is guilty of any fraud or dishonesty or brings the Company or any Group Company into disrepute. |
| 11.2 | This Agreement may also be terminated (i) by the Company as provided in Clause 2.4 of the Fee Schedule attached hereto, and (ii) by the Consultant with respect to certain Services as provided in Clause 2.3 of the Fee Schedule attached hereto. | ||
| 11.3 | The rights of the Company under clause 11.1 are without prejudice to any other rights that it might have at law to terminate the Engagement or to accept any breach of this Deed on the part of the Consultant as having brought the |
| deed to an end. Any delay by the Company in exercising its rights to terminate shall not constitute a waiver thereof. | |||
| 11.4 | The Consultant shall have the right to terminate this Agreement with effect from 31 December 2010 by notice served on the Company at any time between 1 November 2010 and 15 December 2010, PROVIDED THAT this right of termination shall not be exercisable if CKX, Inc. has exercised its option to acquire shares in XIX Entertainment Limited pursuant to the option agreement between CKX, Inc., the Consultant and XIX Entertainment Limited dated January 2010. |
| 12.1 | On the Termination Date the Consultant shall: |
| (a) | immediately deliver to the Company all documents, books, materials, records, correspondence, papers and information (on whatever media and wherever located) relating to the business or affairs of the Company or any Group Company or its or their business contacts, any keys, and any other property of the Company or any Group Company, which is in his possession or under his control; | ||
| (b) | irretrievably delete any information relating to the business of the Company or any Group Company stored on any magnetic or optical disk or memory and all matter derived from such sources which is in his possession or under his control outside the premises of the Company; and | ||
| (c) | provide a signed statement that he has complied fully with his obligations under this clause. |
| 12.2 | Following the Termination Date, the Company shall remain obligated to pay any Fee or other amounts payable hereunder that are accrued and due and payable to the Consultant prior to the Termination Date. |
| 13.1 | The relationship of the Consultant to the Company will be that of independent contractor and nothing in this Deed shall render him or any person, firm, company or organization used by the Consultant pursuant to Clause 3.6 of this Deed an employee, worker, agent or partner of the Company and neither the Consultant nor any person used by the Consultant pursuant to Clause 3.6 of this Deed shall hold himself out as such. | ||
| 13.2 | This Deed constitutes a contract for the provision of services and not a contract of employment and accordingly the Consultant shall be fully responsible for |
| and shall indemnify and keep indemnified the Company and any Group Company for and in respect of: |
| (a) | any sums in respect of income tax or employees National Insurance (excluding penalties and interest) connected with the payments made hereunder that the Company is obliged to account to any tax authority for to the extent that those sums are due and have not been paid by the Consultant under self assessment; and | ||
| (b) | any liability for any employment-related claim or any claim based on worker status (including reasonable costs and expenses) brought by the Consultant against the Company arising out of or in connection with the provision of the Services, except where such claim is as a result of any act or omission of the Company. |
| 13.3 | The Company may at its option satisfy such indemnity (in whole or in part) by way of deduction from payments due to the Consultant. |
| 14.1 | Any notice given under this Deed shall be in writing and signed by or on behalf of the party giving it and shall be served by delivering it personally, or sending it by prepaid recorded delivery or registered post to the relevant party at (in the case of the Company) its registered office for the time being and (in the case of the Consultant) his last known address or by sending it by fax to the fax number notified by the relevant party to the other party. Any such notice shall be deemed to have been received: |
| (a) | if delivered personally, at the time of delivery; | ||
| (b) | in the case of pre-paid recorded delivery or registered post, 48 hours from the date of posting; | ||
| (c) | in the case of fax, at the time of transmission. |
| 14.2 | In proving such service it shall be sufficient to prove that the envelope containing such notice was addressed to the address of the relevant party and delivered either to that address or into the custody of the postal authorities as a pre-paid recorded delivery or registered post or that the notice was transmitted by fax to the fax number of the relevant party). |
| Each party on behalf of itself acknowledges and agrees with the other party that: |
| (a) | this Deed together with any documents referred to in it constitutes the entire agreement and understanding between the Consultant and the Company relating to the Engagement; |
| (b) | in entering into this Deed neither party has relied on any Pre-Contractual Statement; and | ||
| (c) | the only remedy available to either party for breach of this Deed shall be for breach of contract under the terms of this Deed and each party shall have no right of action against any other party in respect of any Pre-Contractual Statement. Nothing in this Deed shall, however, operate to limit or exclude any liability for fraud. |
| No variation of this Deed or of any of the documents referred to in it shall be valid unless it is a deed and signed by or on behalf of each of the parties. |
| This Deed may be executed in any number of counterparts, each of which, when executed and delivered, shall be an original, and all the counterparts together shall constitute one and the same instrument. |
| Other than in respect of Group Companies, the Contracts (Rights of Third Parties) Act 1999 shall not apply to this Deed and no other third party shall have any rights under it. The terms of this Deed or any of them may be varied, amended or modified or this Deed may be suspended, cancelled or terminated by a deed between the parties or this Deed may be rescinded (in each case), without the consent of any third party. |
| 19.1 | This Deed and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with English law. | ||
| 19.2 | The parties irrevocably agree that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with this Deed or its subject matter or formation (including non-contractual disputes or claims). |
| 1. | The Services | |
| 1.1 | The Consultant shall be engaged as Executive Producer of each of the Programmes and shall supervise the creative execution and subsequent exploitation of the Programmes in a first class manner consistent with the highest industry standards. | |
| 1.2 | Subject to 1.4 below, the Consultant in providing the Services shall: |
| (a) | have authority to incur expenditure in the name of or for the account of the Company (or of the relevant Group Company) in respect of the Programmes; | ||
| (b) | have authority to bind the Company (or the relevant Group Company) with respect to any creative decisions regarding the Programmes including (without limitation) format changes, selection of music, talent, hosts, judges, guest judges and production personnel and any sponsor integrations; | ||
| (c) | on behalf of the Company (or relevant Group Company) and either alone or, at the request of the Comapny (or the relevant Group Company) in conjunction with senior management or advisors of the Company, supervise negotiations with broadcasters, sponsors, production partners, distributors, record labels, talent, and touring companies in relation to the Programmes; and | ||
| (d) | provide the Company with regular and timely updates with respect to all of the foregoing. |
| provided, however, that notwithstanding the foregoing the Consultant shall not have any authority to incur, or cause the Company to incur, expenditures in excess of the amounts set forth in the Budget, without the Companys prior written consent. |
| 1.3 | In addition to Services as Executive Producer, the Consultant shall provide creative and strategic advice in relation to the business of a Group Company where the Consultants expertise or business relationships can assist the relevant Group Company. | |
| 1.4 | Notwithstanding anything in this Deed to the contrary, nothing in this Deed shall be deemed to prevent or restrict the Companys ability to exploit, operate or otherwise manage and exercise its rights in respect of the Programmes in any manner that the Company determines in its sole discretion. | |
| 2. | The Fee |
| 2.1 | The Fee for the Services (as referred to in clause 4 of this Deed) shall be calculated as set out in this clause 2 of this Schedule. | |
| 2.2 | In respect of the Services as Executive Producer referred to in clause 1.1 of this Schedule, the Company shall pay to the Consultant as the Fee, a sum equal to ten per cent (10%) of the Net Profits in each calendar year that the Consultant renders Services hereunder. The Company shall calculate the Fee as at 31 December of the relevant year and pay the Fee due to the Consultant (after recoupment of any Advances paid for that calendar year pursuant to 2.3 below) by 31 March of the following year. The Company shall provide to the Consultant a statement showing in reasonable detail the calculation of the Fee. | |
| 2.3 | The Company shall pay the Consultant the following sums (each an Advance) as non-returnable advances against and recoupable from the Fee payable pursuant to clause 2.2 above: |
| (a) | $5,000,000 for the calendar year 2010; | ||
| (b) | for each calendar year of the Engagement after 2010: |
| 2.4 | The total of the Advances payable pursuant to paragraph 2.3 above shall be paid in advance in four equal instalments on 15 January, 1 March, 1 June and 1 September in each year or within five Business Days of the Consultant presenting an invoice for the fees for each period. If the Consultant is unable, for any reason, to provide the Services in respect of American Idol and/or So You Think You Can Dance for more than one-half of the production season, the Fee (including the |
| Advance) shall be reduced on a pro rata daily basis for the entire year and, in the sole discretion of the Company, the Company may terminate this Agreement. |
| 2.5 | In respect of the Services other than as Executive Producer referred to in clause 1.2 of this Schedule, the Company shall pay to the Consultant: |
| (a) | £500,000 on 15 January 2010; | ||
| (b) | £500,000 on 1 March 2010; and | ||
| (c) | £500,000 on 1 May 2010. |
| 2.6 | The Advances and the Fee shall be paid to the Consultant gross, without any deductions for United Kingdom income tax and employees National Insurance Contributions unless the Company shall have been notified by an applicable taxing authority that such withholding is required and that this is the liability of the Company. So long as Consultant has on file a properly completed Internal Revenue Service Form W8-ECI certifying the Fee is effectively connected with a United States trade or business, the Fee shall be paid gross, without deductions for United States Federal income tax, but may be reduced for state or local income tax to the extent required by law. The Fee also excludes Value Added Tax, which shall be payable in addition at the applicable rate upon receipt of a valid VAT invoice from the Consultant. | |
| 3. | The Consultant shall have the right, at his sole cost and expense, to appoint an auditor to inspect and audit the books and records of the Company and each Group Company not more than once per year on reasonable prior notice (but in no event later than twelve months following the conclusion of any calendar year in respect of the prior calendar year) in order to verify the calculation of the Fee. |
Executed as a deed by 19 ENTERTAINMENT LIMITED |
/s/ Robert F.X. Sillerman | |||
| /s/ Howard J. Tytel | ||||
| Director/Secretary | ||||
Signed as a deed by SIMON ROBERT FULLER: |
/s/ Simon Robert Fuller | |||
| SIMON ROBERT FULLER | ||||
in the presence of: |
||||
Witness: /s/ A. R. Stinson |
A. R. Stinson | |||
| Name | ||||
| Address | ||||
| 33 Ransomes Dock | ||||
| 35-37 Parkgate Road, London SW 11 4NP | ||||
| Solicitor | ||||
| Occupation | ||||
| 13 January 2010 | ||||
| Date | ||||
1. |
Definitions | 1 | ||||
2. |
Grant of Option | 5 | ||||
3. |
Exercise of the Option | 5 | ||||
4. |
Purchase Price | 6 | ||||
5. |
Completion | 7 | ||||
6. |
Prohibition on Disposal or Reorganisation | 10 | ||||
7. |
Representation and Warranties; Covenants | 11 | ||||
8. |
Access to Information | 15 | ||||
9. |
Termination | 16 | ||||
10. |
Miscellaneous | 17 |
- -
| (1) | CKX, Inc., a corporation organised under the laws of Delaware whose principal place of business is 650 Madison Avenue, New York, NY 10022 (the Purchaser); | |
| (2) | SIMON ROBERT FULLER, an individual of 19 The Mall, East Sheen, London SW14 (the Seller); and | |
| (3) | XIX Entertainment Limited, a company registered in England (company registration number 07113842) whose registered office is at 12 New Fetter Lane, London, EC4A 1AG (the Company). |
| 1.1 | Definitions. For purposes of this Agreement, the following terms shall have the meanings indicated below: |
| of rights and every consolidation or sub-division or reduction of capital or capital dividend or other reconstruction or adjustment relating to the equity share capital (or any shares stock or securities derived therefrom) and any amalgamation or reconstruction affecting the equity share capital (or any shares stock or securities derived therefrom). | ||
| Seller has the meaning given such term in the preamble hereto. | ||
| Sellers Certificate has the meaning given such term in Section 5.3(c) of this Agreement. | ||
| Shareholders Agreement means that certain Shareholders Agreement by and among the Seller, the Purchaser, the Company and any other shareholders of the Company, in the form attached hereto as Exhibit B and, in the event the Purchaser acquires less than 25% of the issued and outstanding Shares of the Company as of the Completion Date, the changes set forth in the footnotes thereto.. | ||
| Shares has the meaning given such term in the preliminary statement hereto. | ||
| Subsequent Third Party Investment has the meaning given such term in Section 4.2(b)(v) of this Agreement. | ||
| Third Party Investment means the acquisition of not less than five percent (5%) of the issued and outstanding Shares by a Third Party Investor at a purchase price equal to or greater than (i) the Enterprise Value multiplied by (ii) the percentage of issued and outstanding Shares acquired. | ||
| Third Party Investment Option has the meaning given such term in Section 3.1 of this Agreement. | ||
| Third Party Investment Option Purchase Price has the meaning given to such term in Section 6.1 of this Agreement. | ||
| Third Party Investor means a bona fide third party purchaser who, on arms length terms, shall pay in cleared funds for any acquired Shares. | ||
| 1.2 | Construction. |
| (a) | For purposes of this Agreement, whenever the context requires the singular number shall include the plural, and vice versa; the masculine gender shall include the feminine and neuter genders; the feminine gender shall include the masculine and neuter genders; and the neuter gender shall include masculine and feminine genders. |
| (b) | The parties hereto agree that any rule of construction to the effect that ambiguities are to be resolved against the drafting party shall not be applied in the construction or interpretation of this Agreement. | ||
| (c) | As used in this Agreement, the words include and including, and variations thereof, shall not be deemed to be terms of limitation, but rather shall be deemed to be followed by the words without limitation. | ||
| (d) | Except as otherwise indicated, all references in this Agreement to Sections and Exhibits are intended to refer to Sections of this Agreement and Exhibits to this Agreement. The table of contents and headings contained in this Agreement are for convenience of reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement. |
| 2. | Grant of Option |
| 2.1 | In consideration of £500,000 paid on the date hereof in cash by the Purchaser to the Seller (receipt whereof is hereby acknowledged) (the Option Consideration Payment), the Seller hereby grants to the Purchaser an option (the Option) to purchase from Seller on the terms set forth hereunder such number of Shares as shall equal not less than ten percent (10%) and not more than thirty three percent (33%) of the Shares then issued and outstanding immediately following the Completion Date (the Option Shares), and the Seller agrees that, upon receipt of a valid Call Notice from the Purchaser, the Seller shall transfer and sell or cause to be transferred and sold to the Purchaser the Option Shares for the applicable Purchase Price. | |
| 2.2 | The Option Shares shall be sold free from all Encumbrances and with all rights attached thereto at the date hereof and of such exercise, and shall constitute thirty three (33%) of the Shares then issued and outstanding immediately following the Completion Date in the event that the maximum number of Option Shares are acquired as pursuant to Clause 3 below. |
| 3. | Exercise of the Option | |
| 3.1 | At any time following the consummation of a Third Party Investment but prior to the expiration of the Option Period, the Purchaser may exercise the Option (the Third Party Investment Option) by delivering to the Seller a written notice of exercise (the Call Notice), which notice shall be binding and irrevocable. The Seller shall give the Purchaser prompt notice of any Third Party Investment, including prior notice of any proposed completion date in respect of such investment, and copies of all documents, instruments and deeds evidencing such investment. |
| 3.2 | If the Third Party Investment has not occurred prior to February 28, 2010, the Purchaser may exercise the Option (the Independent Option) at any time during the remaining Option Period by delivering to the Seller a Call Notice, which shall be binding and irrevocable. | |
| 3.3 | The Call Notice shall specify (i) the percentage, being not less than ten percent (10%) and not more than thirty three (33%), of the issued and outstanding Shares (determined as of completion) that the Purchaser intends to acquire hereunder (the Purchased Percentage) and (ii) the date on which the exercise of the Option shall be completed (the Completion Date), which date shall be not more than 60 days nor less than 5 days after the date of such notice. | |
| 4. | Purchase Price | |
| 4.1 | Third Party Investment Option Purchase Price. The purchase price to be paid for the Option Shares purchased pursuant to the Third Party Investment Option shall be an amount equal to the Enterprise Value multiplied by the Purchased Percentage (the Third Party Investment Option Purchase Price); provided, however, that in the event a Third Party Investor acquires Shares prior to the Purchasers exercise of the Option for a purchase price less than each Shares pro rata portion of the Enterprise Value, the Purchase Price paid by the Purchaser for the applicable Option Shares pursuant to the Purchasers exercise of the Option shall be an amount equal to the Adjusted Enterprise Value multiplied by the Purchased Percentage. | |
| 4.2 | Independent Option Purchase Price. |
| (a) | The purchase price to be paid for the applicable Option Shares purchased pursuant to the Independent Option shall be an amount mutually agreed upon by the Seller and the Purchaser within 5 days of the Exercise Date (the Independent Option Purchase Price); provided, however, that in the event the Seller and the Purchaser cannot mutually agree upon a purchase price within the allotted period, the Independent Option Purchase Price shall be the fair market value of the applicable Option Shares, as determined in accordance herewith. | ||
| (b) | The fair market value of the applicable Option Shares shall be determined as follows: |
| (i) | The Seller and the Purchaser shall select a mutually acceptable appraiser who shall determine the fair market enterprise value of the Company and the resulting value of the applicable Option Shares. |
| (ii) If the Seller and the Purchaser are unable to agree upon an appraiser within 3 days after the expiration of the period set forth in Section 4.2(a) above, each party shall select an appraiser and provide written notice to the other party within 5 days of the identity of the appraiser so selected by it, which notice shall include the written agreement of such appraiser to serve in that capacity. If both parties so select appraisers, such appraisers shall within 20 days of their appointment provide written copies to both parties of their appraisal. | |||
| (iii) If the difference between the two appraisals is less than or equal to ten percent (10%) of the lower of the two appraisals, the determination of fair market enterprise value shall be deemed to be the average of the two appraisals. | |||
| (iv) If the difference between the two appraisals is greater than ten percent (10%) of the lower of the two appraisals, then the two appraisers shall jointly select a third appraiser. The third appraiser shall be instructed and directed to select one of the appraisals as the most accurate and appropriate appraisal, which selection shall then become final and binding upon the Seller and the Purchaser. | |||
| (v) Notwithstanding the foregoing, if after Completion Date of the consummation of the Independent Option and prior to the first anniversary date of the date hereof, the Seller or the Company consummates a sale of five percent (5%) or more of the then issued and outstanding Shares at a purchase price per Share greater than the Independent Option Price per Share (the Subsequent Third Party Investment, then the Purchaser shall pay to the Seller, as additional purchase price, an amount equal to the difference, on a per Share basis, between the price paid in respect of the Subsequent Third Party Investment and the Independent Option Price (but in no event shall the Purchaser be required to make any payment hereunder based on an enterprise value associated with a Subsequent Third Party Investment that is in excess of the Enterprise Value). | |||
| (vi) All costs and expenses of the appraisers shall be borne by the Purchaser. |
| 4.3 | Payment of Purchase Price. |
| The Purchase Price payable to the Seller at Completion shall be delivered by the Purchaser to the Seller in cash by wire transfer of immediately available funds to an account set forth on written wire transfer instructions provided to the Purchaser by the Seller at least two days prior to the Completion Date. |
| 5. | Completion |
| 5.1 | Completion. Unless otherwise mutually agreed in writing by the Seller and the Purchaser, the Completion shall take place at the offices of Paul, Hastings, Janofsky & Walker (Europe) LLP, having an address of Ten Bishops Square, London, E1 6EG, United Kingdom, on the date specified in the Call Notice when all of the conditions set forth in Section 5.2, 5.3, 5.4, 5.5 and 5.6 below have been satisfied or waived. | |
| 5.2 | Conditions to the Obligations of the Seller and the Purchaser. The respective obligations of each of the Seller and the Purchaser to effect the purchase of the Option Shares are subject to the conditions precedent that (i) no injunction, order, decree or ruling issued by a Governmental Entity, nor any statute, rule, regulation or executive order promulgated or enacted by any Governmental Entity, shall enjoin, make illegal or otherwise materially impair or restrict such assignment, assumption or consummation, as the case may be, (ii) all required consents of any Governmental Entity or any other third party required to be obtained in order to consummate the transactions contemplated by this Agreement shall have been obtained and be in full force and effect, and all required waiting periods and any extensions thereof, shall have expired or been terminated and (iii) no action, suit, investigation or proceeding by any Governmental Entity shall have been instituted or threatened to restrain or prohibit or otherwise challenge the legality or validity of the transactions contemplated by this Agreement. | |
| 5.3 | Additional Conditions to the Obligations of the Purchaser. The obligations of the Purchaser are subject to fulfilment (or written waiver by the Purchaser) at or prior to the Completion Date of each of the following conditions precedent: |
| (a) | Representations and Warranties. The representations and warranties contained in Section 7.1 hereof shall be true and correct in all material respects as of the date of this Agreement and as of the Completion Date as though made at and as of the Completion Date. | ||
| (b) | Performance of Covenants. The Seller and the Company shall have duly performed and complied in all material respects with each covenant and agreement required to be performed or complied with by it under this Agreement, in each case, as and when required to be performed or complied with by it prior to or on the Completion Date. | ||
| (c) | Certificate of the Seller. The Seller shall have delivered to the Purchaser a certificate signed by the Seller to the effect that each of the conditions specified in Sections 5.3(a) and 5.3(b) of this Agreement has been satisfied in all respects (the Sellers Certificate). |
| (d) | Entrance into the Shareholders Agreement. The Seller shall have entered into, and shall have caused the Company, any Third Party Investor and any other shareholders of the Company to enter into, the Shareholders Agreement. The Seller covenants with the Purchaser to procure such parties enter into the Shareholders Agreement. | ||
| (e) | Completion Documents. The Purchaser shall have received each of the Completion Documents to be delivered by the Seller at or prior to the Completion. |
| 5.4 | Additional Conditions to the Obligations of the Seller. The obligations of the Seller are subject to fulfilment (or written waiver by the Purchaser) at or prior to the Completion Date of each of the following conditions precedent: |
| (a) | Representations and Warranties. The representations and warranties contained in Section 7.2 hereof shall be true and correct in all material respects as of the date of this Agreement and as of the Completion Date as though made at and as of the Completion Date. | ||
| (b) | Performance of Covenants. The Purchaser shall have duly performed and complied in all material respects with each covenant and agreement required to be performed or complied with by it under this Agreement, in each case, as and when required to be performed or complied with by it prior to or on the Completion Date. | ||
| (c) | Certificate of the Purchaser. The Purchaser shall have delivered to the Seller a certificate signed by an officer of the Purchaser to the effect that each of the conditions specified in Sections 5.4(a) and 5.4(b) of this Agreement has been satisfied in all respects (the Purchasers Certificate). | ||
| (d) | Entrance into the Shareholders Agreement. The Purchaser shall have entered into the Shareholders Agreement. | ||
| (e) | Completion Documents. The Seller shall have received each of the Completion Documents to be delivered by the Purchaser at or prior to the Completion. |
| 5.5 | Closing Deliveries by the Purchaser. At the Completion, the Purchaser shall deliver to the Seller: |
| (a) | the Purchase Price in accordance with Section 4 of this Agreement; |
| (b) | true and complete copies, certified by the Secretary of the Purchaser, of the resolutions duly and validly adopted by the Board of Directors of the Purchaser evidencing the authorization of the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby; | ||
| (c) | the Purchasers Certificate in accordance with Section 5.4(c) of this Agreement; and | ||
| (d) | such other documents and instruments reasonably requested by the Seller in order to effect the transactions contemplated hereby. |
| 5.6 | Closing Deliveries by the Seller. At the Completion, the Seller shall deliver to the Purchaser: |
| (a) | the certificate or certificates evidencing the Option Shares, duly endorsed in blank or accompanied by a duly executed stock or other transfer power, which Option Shares shall be delivered free and clear of all Encumbrances; | ||
| (b) | a receipt for the Purchase Price; | ||
| (c) | the Sellers Certificate in accordance with Section 5.3(c) of this Agreement; | ||
| (d) | all documents, instruments and deeds required by the Shareholders Agreement; and | ||
| (e) | such other documents and instruments reasonably requested by the Purchaser in order to effect the transactions contemplated hereby. |
| 6. | Prohibition on Disposal or Reorganisation | |
| 6.1 | While the Option entitling the Purchaser to purchase the Option Shares either pursuant to the Third Party Investment Option or the Independent Option remains exercisable: |
| (a) | the Seller shall not without the prior written consent of the Purchaser sell, transfer or otherwise dispose of (including, without prejudice to the generality of the foregoing, accept an offer made to all holders for the class or classes of securities to which the Option Shares belong) or mortgage, charge, pledge or otherwise encumber any of the Option Shares; | ||
| (b) | the Seller and the Company shall ensure that no Reorganisation occurs; and |
| (c) | the Company shall not pay, or agree to pay, annual salary, bonus or other compensation to the Seller in excess of £1 million; provided, however, that nothing contained in this clause shall limit dividends distributable to the Seller in accordance with the Shareholders Agreement. |
| 6.2 | It is hereby acknowledged that the Purchaser may in the Purchasers discretion and with a view to protecting its interests hereunder file a stop notice or notices in respect of the Option Shares. | |
| 7. | Representation and Warranties; Covenants | |
| 7.1 | Representations and Warranties of the Seller. As of the date hereof and at the Completion Date, the Seller hereby represents and warrants to the Purchaser that: |
| (a) | Seller Authority. Each of the Seller and the Company has the full power, authority and legal right to execute, deliver and perform his or its obligations under this Agreement and to consummate the transactions contemplated herein. | ||
| (b) | Enforceability; Binding Effect. This Agreement has been duly authorized and validly executed and delivered by the Seller and the Company and constitutes the valid and legally binding obligation of the Seller and the Company, enforceable against the Seller and the Company in accordance with its terms and conditions, except as may be limited by any bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or similar law affecting creditors rights and remedies generally and, with respect to the enforceability thereof, by general principles of equity, including principles of commercial reasonableness, good faith and fair dealing (regardless of whether enforcement is sought in a proceeding at law or in equity).. | ||
| (c) | Non-contravention. The execution and delivery of this Agreement, and the consummation of the transactions contemplated hereby, by the Seller and the Company will not (i) violate any constitution, statute, regulation, rule, injunction, judgment, order, decree, ruling, charge, or other restriction of any government, governmental agency, or court to which the Seller or the Company is subject, (ii) conflict with, result in a breach of, constitute a default under, result in the acceleration, create in any party the right to accelerate, terminate, modify, or cancel any agreement, contract, lease, license, instrument, or other arrangement to which the Seller or the Company is a party or by which the Seller or the Company is bound or to which any of the Sellers or the Companys assets is subject, or (iii) require the Seller or the Company to |
| give any notice to, make any filing with, or obtain any authorization, consent or approval of any third party. | |||
| (d) | Company Organization and Corporate Power. The Company is a company registered in England with number 07113842, duly organized, validly existing and in good standing under the laws of England. The Company has full power and authority to carry on the business in which it is engaged and to own and use the properties owned and used by it. | ||
| (e) | Title to the Shares. The Seller has good title to the Shares (including the Option Shares), free and clear of any Encumbrances. The Shares (including the Option Shares) have been duly authorized, validly issued and are fully paid and non-assessable. The Shares constitute all of the issued and outstanding equity securities of the Company, and neither the Company nor the Seller is party to any agreement or is otherwise obligated to issues or sell any equity securities of the Company to any Person. | ||
| (f) | Absence of Encumbrances. Neither the Company nor the Seller have Encumbered, secured, mortgaged or charged any of the Shares and none of the Shares are subject to any third party rights. | ||
| (g) | Organizational Documents of the Company. The documents attached hereto as Exhibit A are true and complete copies of the Organizational Documents of the Company. | ||
| (h) | Assets and Liabilities; Contracts. The Company has never traded, has no assets (save for its share capital) nor liabilities (actual or contingent) and has entered into no contracts, commitments or arrangements, save as set forth on Schedule 1 hereto or as notified to the Purchaser from time to time prior to expiry of the Option Period (it being the intention that the Company will commence trading from January 2010). | ||
| (i) | Brokers Fees. Neither the Seller nor the Company has any liability or obligation to pay any fees or commissions to any broker, finder, or agent with respect to the transactions contemplated by this Agreement for which the Purchaser or the Company is or may become liable. | ||
| (j) | Litigation. There are no actions, suits, investigations, or proceedings by or before any Governmental Entity pending, or, to the Sellers knowledge, threatened against the Seller or the Company which in any manner challenges the validity of this Agreement or any action taken by the Seller or the Company pursuant to this Agreement or seeks to prevent, enjoin, alter or materially delay any transaction contemplated hereby. |
| 7.2 | Representations and Warranties of the Purchaser. As of the date hereof and the Completion Date, the Purchaser hereby represents and warrants to the Seller that: |
| (a) | Organization; Good Standing. The Purchaser is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware. | ||
| (b) | Authorization. The Purchaser has all requisite power and authority to execute and deliver, and to perform its respective obligations under this Agreement, and this Agreement has been duly authorized by all necessary action on the part of the Purchaser. | ||
| (c) | Binding Effect; Enforceability. This Agreement has been duly executed and delivered by the Purchaser and is the valid and binding obligation of the Purchaser, enforceable against such party in accordance with its terms, except as may be limited by any bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or similar law affecting creditors rights and remedies generally and, with respect to the enforceability thereof, by general principles of equity, including principles of commercial reasonableness, good faith and fair dealing (regardless of whether enforcement is sought in a proceeding at law or in equity). | ||
| (d) | Non-contravention. The execution and delivery of this Agreement, and the consummation of the transactions contemplated hereby, by the Seller will not (i) violate any constitution, statute, regulation, rule, injunction, judgment, order, decree, ruling, charge, or other restriction of any government, governmental agency, or court to which the Seller is subject, (ii) conflict with, result in a breach of, constitute a default under, result in the acceleration, create in any party the right to accelerate, terminate, modify, or cancel any agreement, contract, lease, license, instrument, or other arrangement to which the Purchaser is a party or by which the Purchaser is bound or to which any of the Purchasers assets is subject, or (iii) require the Purchaser to give any notice to, make any filing with, or obtain any authorization, consent or approval of any third party. | ||
| (e) | Brokers Fees. The Seller has no liability or obligation to pay any fees or commissions to any broker, finder, or agent with respect to the transactions contemplated by this Agreement for which the Purchaser or the Company is or may become liable. | ||
| (f) | Litigation. There are no actions, suits, investigations, or proceedings by or before any Governmental Entity pending, or, to the Sellers knowledge, threatened against the Seller which in any manner challenges the validity of this Agreement or any action taken by the Seller pursuant to this Agreement or |
| 7.3 | Covenants of the Seller and Purchaser. Each of the Seller, the Company and the Purchaser shall use commercially reasonable efforts to take all action and to do all things necessary, proper, or advisable in order to consummate and make effective the transactions contemplated by this Agreement. | |
| 7.4 | Additional Covenants of the Company (and the Seller on Behalf of the Company). For the period commencing on the date hereof and ending on the first to occur of the Completion Date or the Termination Date, the Company shall (and the Seller shall cause the Company to) (i) conduct its business in the ordinary course, consistent with normal practice and (ii) except as expressly required hereby and except as otherwise consented to in advance in writing by the Purchaser (such consent not to be unreasonably withheld or delayed): |
| (a) | not make any material change in the nature and scope of the Business (as defined in the Shareholders Agreement) including amalgamating or merging with any other business or the sale, transfer or disposal of the whole or a substantial part of the Business; | ||
| (b) | not create, allot or issue any Shares or other securities in the capital of the Company, or grant any option or rights to subscribe for or to convert any instrument into any such Shares or securities (except in connection with a Third Party Investment contemplated hereby and in a manner not in contravention of or conflict with the terms and conditions of this Agreement); | ||
| (c) | not reduce, subdivide or consolidate the share capital of the Company, or vary the rights attaching to any class of shares in the capital of the Company, or redeem, purchase or otherwise acquire any Shares or other securities of the Company; | ||
| (d) | not borrow or the incur indebtedness in the form of borrowing (save for working capital introduced by the Seller) | ||
| (e) | not guarantee, create a surety or indemnity in favour of any person (other than in the ordinary course of business); | ||
| (f) | not mortgage, charge or create any other form of encumbrance in respect of any of the Companys assets (other than in the ordinary course of business)or undertaking; |
| (g) | not make any loan to any Person (other than in the ordinary course of business, but in no event to any Director, officer or employee of the Company); | ||
| (h) | not acquire any assets (other than in the ordinary course of business); | ||
| (i) | not acquire shares, stocks, bonds, debentures, options or other securities in respect of any other Person, or dispose of any such interest (other than in the ordinary course of business); | ||
| (j) | not make or declare any distribution or dividend; | ||
| (k) | not increase the remuneration or benefits of any Director of the Company or connected person of any Director of the Company, or establish any new profit-share, bonus or other incentive schemes for Directors of the Company, shareholders or any of their Affiliates; | ||
| (l) | not establish or amend any pension scheme in relation to the Company or grant any pension rights to any Director of the Company or employee of the Company or any dependents of a Director of the Company or employee of the Company; | ||
| (m) | not enter into any contract (other than a service or employment contract in respect of acting as Director of the Company) with a Director of the Company or with a shareholder of the Company or a connected person (within the meaning of Section 252 of the Companies Act 2006) of a Director of the Company; | ||
| (n) | not apply for the listing of any shares or debt securities of the Company on any recognised stock exchange or the trading of any of its shares or debt securities on a regulated market (as defined by Section 1173(1) of the Companies Act 2006; | ||
| (o) | not enter into or become bound by any transaction, contract, agreement or arrangement with any Affiliate of the Company; and | ||
| (p) | not alter the Companys Organizational Documents. |
| 7.5 | The Seller covenants and agrees with the Purchaser that all Projects created or undertaken by the Seller during the period commencing on the date hereof and ending on the later of (i) the expiration of the Option Period or, if the Option is exercised (ii) the Completion Date shall only be taken up through the Company, except for the Excluded Projects. Notwithstanding the foregoing, the Seller may, and shall, perform his obligations under the Consultancy Deed. |
| 8. | Access to Information | |
| 8.1 | During the Option Period the Seller will use reasonable commercial endeavours to provide such information that the Purchaser reasonably requests to the purposes of, inter alia, complying with relevant regulations and statutes, and also for the purposes of obtaining relevant consents and approvals. | |
| 9. | Termination | |
| 9.1 | Termination. This Agreement may be terminated at any time prior to the Completion Date: | |
| (a) | by mutual agreement of the Seller and the Purchaser; | ||
| (b) | automatically if the Purchaser has not delivered a Call Notice prior to the expiration of the Option Period; | ||
| (c) | by the Seller if a material breach of any provision of this Agreement has been committed by the Purchaser and such breach has not been waived in writing by the Seller or cured by the Purchaser within ten (10) days after receipt of written notice from the Seller requesting such breach to be cured; | ||
| (d) | by the Purchaser if a material breach of any provision of this Agreement has been committed by the Seller and such breach has not been waived in writing by the Purchaser or cured by the Seller within ten (10) days after receipt of written notice from the Purchaser requesting such breach to be cured; | ||
| (e) | by the Purchaser if any of the conditions set forth in Sections 5.2 and 5.3 have not been satisfied on or before the Completion Date or if satisfaction of such a condition is or becomes impossible (other than through the failure of the Purchaser to comply with its obligations under this Agreement) and the Purchaser has not waived such condition in writing on or before such time; | ||
| (f) | by Seller if any of the conditions set forth in Sections 5.2 and 5.4 have not been satisfied on or before the Completion Date or if satisfaction of such a condition is or becomes impossible (other than through the failure of the Seller to comply with its obligations under this Agreement) and the Seller has not waived such condition in writing on or before such time; or | ||
| (g) | by the Seller on the one hand or the Purchaser on the other hand, if any Governmental Entity shall have issued a final permanent order enjoining or otherwise prohibiting the transactions contemplated by this Agreement, and |
| the time for appeal or petition for reconsideration of such order shall have expired. |
| 9.2 | Notice of Termination. Any party desiring to terminate this Agreement pursuant to this Section 9 shall give written notice of such termination to the other party to this Agreement. | |
| 9.3 | Effect of Termination. If this Agreement is terminated, all further obligations of the parties or their respective Affiliates shall be terminated without further liability of any party to the other (except as set forth in Sections 10.2 and 10.11); provided, however, that nothing herein shall relieve any party from liability for its fraudulent or intentional misrepresentation, omission or breach of this Agreement. |
| 10. | Miscellaneous | |
| 10.1 | Notices. All notices, requests, claims, demands and other communications hereunder shall be in writing and shall be deemed to have been duly given when delivered in person, by overnight courier or facsimile to the respective parties as follows: | |
| 10.2 | Press Releases; Confidentiality. Except to the extent required by applicable law or legal process or applicable rules of a stock exchange or national market system, each of the Seller and the Purchaser agree that it will not issue any press release, advertisement or other public announcement with respect to this Agreement or the transactions contemplated hereby without the prior written consent of the party hereto, which consent may be granted or withheld in the sole discretion of the other party. The parties hereto hereby agree that this Agreement and the terms contained herein shall be kept confidential by the parties hereto and their Affiliates and agents except to the extent disclosure is required by applicable law or legal process or applicable rules of a stock exchange or national market system, in which event the disclosing party shall promptly notify the other party of the requirement and the terms thereof prior to submission and the disclosing party shall cooperate to the maximum extent reasonably practicable to prevent or minimize the disclosure of such confidential information. Each party shall be entitled to reveal the contents of this Agreement to its professional advisors and the Seller may disclose this Agreement on a confidential basis to any prospective Third Party Investor. | |
| 10.3 | Amendments and Waivers. No amendment or waiver of any provision of this Agreement shall be effective with respect to any party unless made in writing and signed by such party. Waiver by any party of any breach or failure to comply with any provision of this Agreement by any other party shall not be construed as, or constitute, a continuing waiver of such provision, or a waiver of any other breach of or failure to comply with any other provisions of this Agreement. | |
| 10.4 | Assignability. Neither this Agreement nor any right, remedy, obligation or liability arising hereunder or by reason hereof shall be assignable by the Seller or the Purchaser; provided, however, that the Purchaser may assign its rights, remedies, obligations and liabilities arising hereunder (i) to a purchaser of the 19 Entertainment Limited group of companies or substantially all of their business or assets and (ii) to any Affiliate of CKX, Inc. (a Permitted Assignee); provided, further, that this Agreement may not be further directly or indirectly assigned in connection with a transaction that results in a Change in Control of the Permitted Assignee (a Change in Control Transaction) to a third party that is not (or following such Change of Control, will not be) an Affiliate of the Purchaser, unless the transaction would constitute a sale contemplated by clause (i) above. | |
| 10.5 | Entire Agreement. This Agreement (including the Exhibits and Schedules hereto) constitute the entire agreement among the parties relating to the subject matter hereof and supersede any and all prior agreements or understandings with respect to the subject matter hereof. | |
| 10.6 | Specific Performance. Each party hereto acknowledges and agrees that the other party may be irreparably damaged if any provision of this Agreement is not performed in |
| accordance with its terms or otherwise is breached. Accordingly, each party agrees that the other party shall be entitled to seek injunctive relief, subject to a determination by a court of competent jurisdiction, to prevent any such failure of performance or breach and to enforce specifically this Agreement and any of the terms and provisions hereof. | ||
| 10.7 | Governing Law; Submission to Jurisdiction. |
| (a) | This Agreement shall be governed by English law. | ||
| (b) | The parties hereto hereby agree that the courts of England have exclusive jurisdiction to settle any disputes which may arise out of or in connection with this Agreement (including as to formation, enforceability, validity or interpretation) and submit to the jurisdiction of such courts and agree that accordingly any suit, action or proceeding arising out of or in connection with this Agreement may be brought in such courts. |
| 10.8 | Severability. If one or more of the provisions contained in this Agreement shall, for any reason, be held invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provision hereof. | |
| 10.9 | Third Party Beneficiaries. This Agreement is intended for the benefit of the parties hereto and their respective successors and assigns, and is not for the benefit of, and no provision hereof may be enforced by, any other person or entity. No rights shall arise in favour of any party who is not a party to this Agreement under the Contracts (Rights of Third Parties) Act of 1999. | |
| 10.10 | Counterparts; Execution and Delivery by Facsimile. This Agreement may be executed in two or more counterparts, each of which shall be deemed to be an original, but all of which shall constitute one and the same agreement. This Agreement may be executed and delivered by facsimile, with such delivery to be as effective as delivery of an originally executed counterpart hereof, followed promptly by delivery of an originally executed counterpart. | |
| 10.11 | Expenses. Except as expressly provided in this Agreement, each of the parties hereto shall bear its own costs and expenses (including legal, accounting and investment banking fees and expenses) incurred in connection with this Agreement and the transactions contemplated hereby. |
| /s/ Simon Robert Fuller | ||
| Simon Robert Fuller | ||
| CKX, Inc. | ||
| /s/ Robert F.X. Sillerman | ||
| Name: Robert F.X. Sillerman | ||
| Title: Chairman and Chief Executive Officer | ||
| XIX ENTERTAINMENT LIMITED | ||
| /s/ Simon Robert Fuller | ||
| Name: Simon Robert Fuller | ||
| Title: Authorized Signatory |
| Page no. | ||||
1. |
BACKGROUND | 1 | ||
2. |
REMUNERATION | 1 | ||
3. |
COMPENSATION PAYMENT | 2 | ||
4. |
BENEFITS AND STOCK | 2 | ||
5. |
TAXATION | 2 | ||
6. |
RETURN OF PROPERTY | 3 | ||
7. |
WARRANTIES AND REPRESENTATIONS | 3 | ||
8. |
STATUS, CONFIDENTIALITY AND CONDUCT | 4 | ||
9. |
RELEASE FROM RESTRICTIONS | 5 | ||
10. |
FULL AND FINAL SETTLEMENT | 5 | ||
11. |
COMPLIANCE WITH STATUTORY PROVISIONS | 8 | ||
12. |
THIRD PARTY RIGHTS | 8 | ||
13. |
GENERAL | 8 |
| (1) | 19 ENTERTAINMENT LIMITED, (Company number 01886042) whose registered office is at 100 New Bridge Street, London, EC4V 6JA (19E); | |
| (2) | SIMON ROBERT FULLER of 19 The Mall, East Sheen, London, SW14 7EN (the Employee); | |
| (3) | CKX, Inc., a corporation established under the laws of Delaware, whose principal place of business is 650 Madison Avenue, New York, NY 10022 (CKX and together with 19E, the Company) |
| 1. | BACKGROUND |
| 1.1 | The Employee was employed by 19E from 26 February 1985 until the termination of his employment by mutual agreement on January 2010 (the Termination Date). | ||
| 1.2 | The parties have entered into this Agreement (the Agreement) to record and implement the terms relating to the termination of the Employees employment and, among other matters, the waiver of all claims the Employee has or might have against the Company or any Group Company arising out of the employment or its termination (the Terms). |
| 2. | REMUNERATION |
| 2.1 | The Employee will be paid his normal salary and receive his contractual benefits from 19E up to and including the Termination Date (subject to any appropriate deductions for income tax and National Insurance Contributions). | ||
| 2.2 | Within 14 days of the latest to occur of (i) the Termination Date, and (ii) receipt by 19E of original copies of the Employees acceptance of the Terms and the letter from his adviser in the attached form set out in Schedule 1 (his adviser being identified in that letter (the Adviser)), to the extent it has not already done so 19E will make to the Employee a payment reimbursing the Employee for his final expenses incurred up to the Termination Date, provided 19E has prior to payment received valid receipts or satisfactory evidence of expenditure in accordance with 19Es current expenses policy or any terms relating to expenses agreed between the parties. | ||
| 2.3 | Any sums due from the Employee to the Company will be deducted from his final salary payment or, in the event the cut off date for administering salary and benefits has passed, the Compensation Payment (as defined in clause 3 below). |
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| 3. | COMPENSATION PAYMENT |
| 3.1 | Subject to and conditional upon the terms of this Agreement (including, without limitation, the conditions in this clause 3.1), and within one business day of the latest condition to occur of: |
| 3.1.1 | the Termination Date; | ||
| 3.1.2 | issue by 19E to the Employee of a P45 (which 19E undertakes to do promptly); and | ||
| 3.1.3 | receipt by 19E of a copy of this Agreement signed by the Employee and a signed letter from his Adviser in the attached form set out in Schedule 1, |
| 19E will pay to the Employee: | |||
| 3.1.4 | £480,000 as compensation for loss of office (the Compensation Payment). | ||
| 4. | BENEFITS, STOCK AND CREDITS |
| 4.1 | Save as specifically referred to in clause 4.2 below, the Employees entitlement to receive any benefits from the Company by virtue of his employment ceased on the Termination Date. | ||
| 4.2 | The Company agrees and shall procure that all unvested stock and options held by the Employee in CKX shall be accelerated and vest on the Termination Date and thereafter the Employee shall be entitled to such stock and options without restriction as to vesting, in accordance with the terms of such securities. It is acknowledged that the Employee has: |
| 4.2.1 | 100,000 options for common stock, par value $0.01 per share, of CKX, (CKX Stock) granted on 19 July 2007 of which 60,000 are already vested and 40,000 will vest on the Termination Date; | ||
| 4.2.2 | 200,000 shares of CKX Stock granted on 15 April 2008, all of which have vested; and | ||
| 4.2.3 | 250,000 options for CKX Stock granted on 13 March 2009 all of which will vest on the Termination Date. |
| 4.3 | The Amended and Restated Lock In Put and Call Agreement dated 8 June 2009 between the Employee and CKX shall remain in full force and effect notwithstanding anything contained in this Agreement. | ||
| 4.4 | The Company agrees to use commercially reasonable endeavours to procure that the Employees credit as creator or executive producer of any television format or |
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| programme given or contracted for prior to the date hereof will be maintained for the life of such format or programme. At the Employees request (and at the Employees sole cost) the Company shall use commercially reasonable endeavours to enforce and procure that each relevant Group Company shall enforce a third partys obligation to provide such credits for the Employee. |
| 5. | TAXATION |
| 5.1 | The first £30,000 of the Compensation Payment will be paid without deduction of income tax and employees National Insurance Contributions on the basis that the parties believe it is a payment pursuant to Sections 401 to 405 of the Income Tax (Earnings and Pensions) Act 2003. The balance of the sums payable to the Employee under clauses 3.1.4 and 8.1 of these Terms (including, without limitation, the balance of the Compensation Payment) will be subject to appropriate deductions for income tax and employees National Insurance Contributions. | ||
| 5.2 | In the event that any liability for further income tax or employees National Insurance Contributions (together, the Tax and Contributions ) arises out of or in connection with the Compensation Payment, and/or the payments made to or value of any benefits provided to the Employee pursuant to this Agreement, the Employee will be responsible for and indemnify 19E in respect of the payment of any such Tax and Contributions. |
| 6. | RETURN OF PROPERTY |
| 6.1 | The Employee confirms that upon request he shall return to the Company all property belonging to the Company or the Group or relating to its or their business, in his possession or control. The Employee will not keep or make any copy of anything returned pursuant to this clause 6.1. | ||
| 6.2 | By signing the enclosed copy of this letter the Employee resigns as a director of each Group Company of which he is a director. The Employee will immediately and as of the Termination Date do all such things as may be necessary to resign all other directorships or offices (if any) which he holds by virtue of his employment with the Company. The Employee irrevocably appoints the Company to be his attorney in his name and on his behalf to sign, execute or do any such instrument or thing and generally to use his name in order to give the Company (or its nominee) the full benefit of the provisions of this clause. |
| 7. | WARRANTIES AND REPRESENTATIONS |
| 7.1 | The Employee warrants and represents to the Company that he: |
| 7.1.1 | is not aware of any matters relating to any acts or omissions by him or any director, officer, employee or agent of the Company (or any Group Company) which if not already disclosed to the Company would or might affect its decision to enter into this Agreement, to the Terms of |
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| this Agreement or make any of the payments or provide any of the benefits referred to in this Agreement; and |
| 7.1.2 | has not presented an originating application or claim form to any office of the Employment Tribunals or issued a claim form in the High Court or County Court in connection with this employment or its termination or issued any equivalent or similar proceedings against any Protected Persons in any other jurisdiction, nor has anyone acting on his behalf presented nor will he or they present any such complaint or present or issue an originating application or claim form or issue any equivalent or similar proceedings. |
| 8. | STATUS, CONFIDENTIALITY AND CONDUCT |
| 8.1 | In consideration of the payment to the Employee by 19E of £500,000 (less deductions for income tax and employees National Insurance Contributions) which payment will be paid by 19E within 14 days of the conditions listed in clause 3.1 being met, the Employee covenants with the Company and all Group Companies that he will abide by the provisions of this clause 8. | ||
| 8.2 | The Employee accepts and agrees that his express and implied duties relating to confidential information, including but not limited to the duties regarding confidentiality set forth in clause 13 of his service agreement with 19E dated 17 March 2005 (the Service Agreement) and those duties set forth in paragraph 1 of the Confidentiality, Non-Competition, Non-Solicitation, and Non-Recruitment Agreement between the Employee and CKX dated 17 March 2005 (the Non-Compete Agreement) continue after the Termination Date. | ||
| 8.3 | The Employee shall not and the Company shall ensure that its officers and employees shall not: |
| 8.3.1 | make or publish any statement to a third party (including but not limited to any journalists or other persons connected in any way with the media, any clients, customers, employees or ex-employees of the Company or any other Group Company) concerning the Terms of this Agreement or the circumstances surrounding the termination of the Employees employment (other than a joint press release, in form and substance reasonably satisfactory to the Company and the Employee, that shall be released promptly following the execution and delivery of this Agreement); or | ||
| 8.3.2 | make or publish any derogatory or disparaging statement or do anything in relation to the Employee, the Company, any Group Company or any members, partners, directors, officers, employees, ex-employees, clients, customers or agents of the Company or any other Group Company which is intended to or which might be expected to damage or lower their respective reputations, |
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| provided, that the parties will not be prevented from making a disclosure: |
| (i) | for the purposes of seeking legal or other professional advice from an adviser (including, without limitation, the Adviser) in relation to this Agreement provided that any such adviser is bound by the same duty of confidence; | ||
| (ii) | to the proper authorities as required by law; or | ||
| (iii) | in the case of the Employee, to an immediate family member, provided such person agrees to maintain confidentiality on the same terms. |
| 8.4 | The Employee warrants that he has not published any statement or authorised or permitted anyone else to do so prior to the date of this Agreement, which would constitute a breach of clauses 8.2 or 8.3 if it had occurred after the date of this Agreement. |
| 9. | RELEASE FROM RESTRICTIONS | |
| 9.1 | The Company agrees that with effect from the Termination Date the Company releases the Employee from and shall procure that each Group Company shall release the Employee from: |
| 9.1.1 | the covenants and restrictions contained in paragraph 1 and 2 of Schedule 1 to the Service Agreement; | ||
| 9.1.2 | the covenants and restrictions contained in paragraph 2 of the Non-Compete Agreement excluding sub-paragraph 2.2(v); and | ||
| 9.1.3 | the covenants and restrictions contained in clause 5.1 of the Share Purchase Agreement dated 17 March 2005 between the Employee, Fuller Nominees Limited and Ingenious Ventures Limited (1) CKX UK Holdings Limited (2) and CKX (then known as Sports Entertainment Enterprises, Inc) (3). |
| 9.2 | The Company (on behalf of itself and all Group Companies) consents to the use by the Employee of the name XIX for the Employees new business ventures. Any use of such name by the Employee or by corporations or other entities owned (in whole or in part) by the Employee shall not constitute a breach of paragraph 2.2(v) of the Non-Compete Agreement. | |
| 10. | FULL AND FINAL SETTLEMENT |
| 10.1 | The Terms under this Agreement are offered without any admission of liability on the part of: (i) the Company; (ii) any other Group Company; and, (iii) its or their respective members, partners, directors, officers, employees and agents ((i)-(iii) together, in their respective capacities as such, the Protected Persons), and are |
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| in full and final settlement of all claims in all jurisdictions, whether known or not under contract, tort, statute or otherwise which the Employee has at the date of this Agreement or which may arise in future against the Protected Persons arising out of or in connection with or as a consequence of the Employees employment and/or its termination including, without limitation, any claim: |
| 10.1.1 | for unfair dismissal, under the Employment Rights Act 1996; | ||
| 10.1.2 | for wrongful dismissal or breach of contract, including, without limitation, in relation to any alleged or actual bonus, commission, carried interest, profit-sharing or incentive payments or other variable forms of remuneration arising pursuant to the employment; | ||
| 10.1.3 | (save as specifically referred to in clauses 4.2 and 4.3) in relation to any alleged or actual entitlement to shares, stocks or membership in any entity, howsoever granted | ||
| 10.1.4 | for a statutory redundancy payment, under the Employment Rights Act 1996, or any other type of redundancy payment; | ||
| 10.1.5 | in relation to unauthorised deductions from wages, under the Employment Rights Act 1996; | ||
| 10.1.6 | for unlawful detriment, under the Employment Rights Act 1996; | ||
| 10.1.7 | in relation to working time or holiday pay, under the Working Time Regulations 1998 or contractually; | ||
| 10.1.8 | for equal pay, less favourable treatment or detriment, direct or indirect discrimination, harassment or victimisation on any unlawful ground, including, but not limited to, sex, pregnancy or maternity status, marital or civil partnership status, race, colour, nationality, ethnic or national origin, disability, part-time or fixed-term status, sexual orientation, transsexualism, age, religion, religious or philosophical belief or non-belief, under the applicable Act or Regulations set out in clause 11.1 of this Agreement; | ||
| 10.1.9 | in relation to protected disclosures (whistleblowing) under the Employment Rights Act 1996 and the Public Interest Disclosure Act 1998; | ||
| 10.1.10 | in respect of the infringement of the statutory employment rights set out in the Trade Union and Labour Relations (Consolidation) Act 1992; | ||
| 10.1.11 | for failure to comply with obligations under the Human Rights Act 1998; |
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| 10.1.12 | for failure to comply with obligations under the Data Protection Act 1998; | ||
| 10.1.13 | in relation to personal injuries of which the Employee is currently aware; | ||
| 10.1.14 | in relation to written reasons for dismissal, written particulars or itemised payslips, under the Employment Rights Act 1996; | ||
| 10.1.15 | in relation to the national minimum wage, under the National Minimum Wage Act 1998; | ||
| 10.1.16 | in relation to the right to be accompanied at disciplinary and grievance meetings, under the Employment Rights Act 1999; and | ||
| 10.1.17 | of any type under the federal, state, and local laws, statutes, regulations, ordinances, and common law of the United States and each of the states thereof, including but not limited to claims under Title VII of the Civil Rights Act of 1964, the Americans With Disabilities Act, and the Employee Retirement Income Security Act of 1974; |
| but excluding any claim: |
| (i) | for any personal injury of which the Employee is currently unaware; | ||
| (ii) | for the sums and benefits due to the Employee pursuant to this Agreement or to enforce any other term of this Agreement; and | ||
| (iii) | under and pursuant to the terms and conditions of (x) any D&O insurance policy maintained by or on behalf of the Company that is applicable to the Employee and (y) any indemnification provision contained in the Articles or Bylaws of the Company that are applicable to the Employee. |
| 10.2 | The Employee confirms that the Employee is aware of no other claim or grounds to make a claim against the Protected Persons in relation to the employment or its termination howsoever arising. The Employee represents and warrants that: |
| 10.2.1 | the Employee has instructed the Adviser to advise as to whether the Employee has or may have any claims, including statutory claims, against the Protected Persons arising out of or in connection with the Employees employment or its termination; | ||
| 10.2.2 | the Employee has provided the Adviser with all available information which the Adviser requires or may require in order to advise whether the Employee has any such claims; |
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| 10.2.3 | the Adviser has advised the Employee that on the basis of the information available to the Adviser the Employees only claims or particular complaints against the Protected Persons, whether statutory or otherwise, arising out of or in connection with the Employees employment or its termination are those listed in clause 10.1 of this Agreement and that (save for those excepted pursuant to clauses 4.2, 4.3 and 10.1 (i), (ii) and (iii)) the Employee has no other claim against them arising out of or in connection with the Employees employment or its termination; and | ||
| 10.2.4 | the Adviser is a relevant independent adviser as defined in the Acts and Regulations set out in clause 11.1 of this Agreement. |
| 11. | COMPLIANCE WITH STATUTORY PROVISIONS |
| 11.1 | This Agreement satisfies the conditions regulating compromise agreements under the Employment Rights Act 1996, the Disability Discrimination Act 1995, the Sex Discrimination Act 1975 (in relation to claims under that Act and the Equal Pay Act 1970), the Race Relations Act 1976, the Trade Union and Labour Relations (Consolidation) Act 1992, the Working Time Regulations 1998, the National Minimum Wage Act 1998, the Part-Time Workers (Prevention of Less Favourable Treatment) Regulations 2000, the Fixed-Term Employees (Prevention of Less Favourable Treatment) Regulations 2002, the Employment Equality (Sexual Orientation) Regulations 2003, the Employment Equality (Religion or Belief) Regulations 2003 and the Employment Equality (Age) Regulations 2006. | ||
| 11.2 | The Employee confirms that: |
| 11.2.1 | he has received advice from the Adviser as to the Terms and effect of this Agreement and in particular its effect on his ability to pursue his rights before an Employment Tribunal; and | ||
| 11.2.2 | he will procure that the Adviser signs the Certificate in Schedule 1. |
| 12. | THIRD PARTY RIGHTS |
| 12.1 | Each Protected Person (as applicable) shall have the right under the Contracts (Rights of Third Parties) Act 1999 to enforce the rights referred to in these Terms. Except as set out in this clause 11, a person who is not a party to these Terms may not enforce any of its provisions under the Contracts (Rights of Third Parties) Act 1999. |
| 13. | GENERAL |
| 13.1 | In these Terms, Group Company means any one of CKX and 19E, and their respective subsidiaries, holding companies or any subsidiary of a holding company (in each case as defined by the Companies Act 2006) and the Group has the corresponding meaning. |
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| 13.2 | In this Agreement, references to statutory provisions shall be construed as references to those provisions as respectively replaced or amended or re-enacted from time to time. | ||
| 13.3 | This Agreement is governed by and construed in accordance with the law of England and Wales. Each party irrevocably agrees to submit to the exclusive jurisdiction of the courts of England and Wales over any claim or matter arising under or in connection with this Agreement. | ||
| 13.4 | These Terms may be executed in one or more counterparts which, when taken together, shall be deemed to constitute the entire agreement between the parties. | ||
| 13.5 | Notwithstanding that this Agreement is marked without prejudice and subject to contract, it will, when dated and signed by all the parties named below and accompanied by the certificate in Schedule 1 signed by the Adviser become an open and binding agreement between the parties. | ||
| 13.6 | This Agreement may not be modified except by an instrument in writing signed by the duly authorised representatives of the parties. | ||
| 13.7 | Each party on behalf of itself and (in the case of the Company, as agent for any Group Companies) acknowledges and agrees with the other party (the Company acting on behalf of itself and as agent for each Group Company) that: |
| 13.7.1 | this Agreement (together with any documents referred to in it) constitute(s) the entire agreement and understanding between the Employee and the Company and any Group Company and supersedes any previous agreement between them relating to his employment by the Company (which shall be deemed to have been terminated by mutual consent upon the terms of this Agreement); | ||
| 13.7.2 | in entering into this Agreement neither the Employee, the Company nor any Group Company has relied on any Pre-Contractual Statement; and | ||
| 13.7.3 | the only remedy available to a party for breach of this Agreement shall be for breach of contract under the terms of this Agreement and it shall have no right of action against any other party in respect of any Pre-Contractual Statement, |
| provided that nothing in this Agreement shall, however, operate to limit or exclude any liability for fraud. Pre-Contractual Statement means any undertaking, promise, assurance, statement, representation, warranty or understanding (whether in writing or not) of any person (whether party to this Agreement or not) relating to the Employees employment or its termination other than as expressly set out in this Agreement or any documents referred to in it. |
| 13.8 | For a period of 3 months after the Termination Date, the Employee agrees to make himself available to, and to cooperate with, the Company, any Group |
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| Company and its or their advisers in connection with the preparation of (i) financial statements and results for the year ended December 31, 2009 (including with respect to any related audit of any applicable Group Company) and (ii) any applicable regulatory filings and/or disclosure documents in respect of such year. The Company shall reimburse the Employee for any and all costs, including the reasonable cost of counsel, reasonably incurred in connection with this clause 13.8. | |||
| 13.9 | Except as otherwise prohibited or limited by law, CKX shall indemnify the Employee against all losses, claims, expenses, or other liabilities of any nature arising by reason of the fact that prior to the date hereof he: was a director, officer, employee, or agent of CKX, in each case to the fullest extent permitted under the Delaware General Corporation Law, as the same exists or may hereafter be amended. No repeal or modification of the provisions of the Delaware General Corporation Law shall adversely affect any right or protection thereunder in respect of any events, circumstances, acts or omissions occurring or existing prior to the time of such repeal or modification, including, without limitation, any right to indemnification and/or advancement of expenses for any threatened, pending or completed action, suit or proceeding, as applicable, commenced after such repeal or modification to enforce this Clause 13.9 with regard to events, circumstances, acts or omissions occurring or existing prior to such repeal or modification, to the extent the foregoing is permissible under the Delaware General Corporation Law as so repealed or modified. Without limiting the generality of the foregoing, the Employee shall be entitled to the benefit of the provisions relating to indemnification and advancement of defense costs and expenses contained in the bylaws and certificate of incorporation of CKX that are applicable to the Employee, as the same in the future may 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 Employee), to the fullest extent permitted by applicable law. The indemnification obligations of CKX shall survive from the date hereof and continue until three (3) months after the expiration of any applicable statute of limitations with respect to any claim made against the Executive for which the Employee is or may be entitled to indemnification (the Survival Period), and shall survive after the Survival Period with respect to any indemnification claim as to which CKX has received notice on or prior to the end of the Survival Period. The Group Companys belief regarding a statute of limitations applicable to a claim, any position taken by CKX in response to a claim, or the determination of any judicial, quasi-judicial, or arbitral body in connection with a claim and any statute of limitations applicable to a claim(s) shall in no event relieve it from its obligation to indemnify the Employee. Anything in this Agreement to the contrary notwithstanding, this Clause 13.9 shall survive the termination of this Agreement for any reason. |
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| 1. | I am a relevant independent adviser as defined in the Acts and Regulations (as set out in clause 11.1 of the Agreement between 19 Entertainment Limited, Simon Robert Fuller and CKX, Inc., to which this Certificate is annexed). | |
| 2. | I have advised the Employee of the Terms and the effect of the Agreement and in particular its effect on his ability to pursue a claim before an Employment Tribunal. | |
| 3. | There is in force a contract of insurance covering the risk of a claim by the Employee in respect of loss arising in consequence of my advice. |
Advisers signature |
/s/ Andy Stinson | |
Advisers name |
Andy Stinson | |
Title |
Solicitor | |
Advisers business address |
33 Ransomes Dock 35-37 Parkgate Road London SW11 4NP |
|
Date |
13 January 2010 | |
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SIGNED by |
) | ||||
Duly authorised for and on behalf of |
) | ||||
19 ENTERTAINMENT LIMITED |
) | /s/ Robert F.X. Sillerman | |||
SIGNED by SIMON ROBERT FULLER |
/s/ Simon Robert Fuller | ||||
SIGNED by CKX, INC. |
/s/ Robert F.X. Sillerman | ||||