Service Agreement - Clear Channel Entertainment (UK) and David Ian Lane
DATED 5 OCTOBER 2000
AS AMENDED BY DEED ON 12 JANUARY 2005
CLEARCHANNEL ENTERTAINMENT UK (THEATRICAL PRODUCTIONS) LIMITED
(formerly DAVID IAN PRODUCTIONS LIMITED)
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DAVID IAN LANE
SERVICE AGREEMENT
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THIS AGREEMENT is made on the 5th day of October 2000 and amended by DEED dated
12 January 2005
BETWEEN:
(1) CLEARCHANNEL ENTERTAINMENT UK (THEATRICAL PRODUCTIONS) LIMITED
(formerly DAVID IAN PRODUCTIONS LIMITED) (Company No: 4018696) a
company registered in England, whose registered office is 1 Cluny
Mews, London SW5 9EG ("the Company"); and
(2) DAVID IAN LANE of 12 Little Plucketts Way, Buckhurst Hill, Essex IG9
5QU ("the Executive").
WHEREAS the Board of Directors of the Company ("the Board") has approved the
terms of this Agreement under which the Executive is to be employed
IT IS HEREBY AGREED as follows:
1. APPOINTMENT
The Company shall employ the Executive and the Executive shall serve the
Company as sole CEO of the Clear Channel Entertainment Theatre, UK and
International Division on and subject to the terms and conditions
specified herein ("the Employment"). The Executive may terminate the
Employment by giving to the Company 3 months' notice in writing in the
event that his direct reporting line changes to any person other than the
CEO or COO of Clear Channel Entertainment ("CCE") currently Brian Becker
and Miles Wilkin respectively, provided that such notice shall be given
within one month of such change becoming effective. In the event of the
Executive terminating his employment under this Clause 1, the covenants in
clause 17.1 and the Schedule to this Agreement shall be waived by the
Company.
2. COMMENCEMENT OF EMPLOYMENT
2.1 The Employment will commence on the date of this Agreement ("the
Commencement Date") and shall continue subject always to the employment
being terminated under Clause 18 below until 31 December 2010 (the Term"),
when it shall expire automatically PROVIDED ALWAYS that either the Company
or the Executive may terminate the employment of the Executive at any time
subject to giving to the other twelve months' written notice in accordance
with the provisions of Clause 24 of this Agreement, subject always to the
provisions of Clause 5.2.1 and 5.2.2 of this Agreement.
2.2 The Executive's period of continuous employment began on the date hereof.
3. DUTIES
3.1 The Executive shall oversee the operation of the CCE European theatrical
business, the CCE European sports business, Donington and the CCE London
head office in Grosvenor Street. Theatrical business includes UK theatres
plus numerous West End, touring and European
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productions and also be responsible for all theatrical business throughout
the rest of the world, excluding North America in which capacity subject
to Clause 4.1.4 he shall devote all his time, attention and skill to his
duties hereunder. The Executive shall at all times act in the interests of
the Company and its Associated Companies and hereby agrees that (subject
as hereinafter provided) all existing projects (including but not limited
to all existing tours and productions) shall be developed by him for the
benefit of the Company and its Associated Companies. The Executive shall
faithfully and diligently perform such duties and exercise such powers
consistent therewith as may from time to time be assigned to or vested in
him by the Board or the Company consistent with his appointment hereunder.
The Company and the Executive hereby agree that during the Term all
promotional documentation (including, but not limited to front of house
displays, advertising and marketing materials) for all tours and
productions shall include the wording "David Ian for SFX (Theatre) UK
presents...". However, the Company reserves the right to review and amend
this obligation at the Company's discretion, to include specified wording
in promotional documentation on and at any time after the second
anniversary of the Term.
3.2 The Company reserves the right to assign to the Executive duties of a
different nature either additional to or instead of those referred to in
Clause 3.1 above, PROVIDED THAT he will only be assigned duties which he
can reasonably perform and which are reasonably consistent with his status
hereunder and, PROVIDED ALWAYS THAT any material change to the duties will
require the Executive's prior consent.
3.3 The Executive shall obey the reasonable and lawful orders of the Board,
given by or with the authority of the Board, and shall comply with all the
Company's rules, regulations, policies and procedures from time to time in
force.
3.4 The Executive may be required in pursuance of his duties to perform
services not only for the Company but also for any Associated Company,
without further remuneration (except as otherwise agreed), and to accept
any such office or position in any Associated Company which is consistent
with his position with the Company, as the Board or the Company may from
time to time reasonably require.
3.5 The Executive acknowledges that during the Employment the Company and/or
Associated Company may be subject to a reorganisation or restructuring
(including but not limited to amalgamation or reconstruction as referred
to in Clause 20 below). In the event of such reorganisation or
restructuring, the Executive agrees to comply with the reasonable requests
of the Board regarding such reorganisation or restructuring PROVIDED THAT
his duties with regard to the day-to-day management of the business
carried on by the Company and/or Associated Company immediately before
such reorganisation or restructuring shall not be diminished.
3.6 The Executive's basic working hours shall be 40 hours each week (including
weekends), and such additional hours (without further remuneration) as are
necessary for the proper performance of his duties of employment
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3.7 Where appropriate the Executive shall during the Employment and for the
prohibited period after the termination of the Employment comply with all
applicable rules of the New York Stock Exchange or the exchange or
national market system in which Clear Channel Communications, Inc.'s
("Clear Channel") common stock (or such stock as the Clear Channel common
stock may be converted into as a result of combinations of shares,
recapitalisation, merger or other such events relating to the common stock
of Clear Channel which may occur at any time and from time to time from
and after the date of this Agreement) is then trading, and the rules and
regulations of the Securities Act of 1933, as amended (the "Securities
Act") and the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), and any Company Policy issued in relation to (i) dealings in shares
debentures or other securities of Clear Channel and any Associated
Companies or (ii) unpublished price sensitive information affecting the
securities of any other company. The Executive shall provide all
information and such additional assistance to Clear Channel, SFX
Entertainment, Inc. or the Company as Clear Channel, SFX Entertainment,
Inc. or the Company may reasonably request to allow it to comply fully
with such rules, regulations and policies. For the purposes of this clause
the "prohibited period" shall be from the date of termination of the
Employment until the later of (i) the next announcement of Clear Channel's
or any Associated Company's results pursuant to the Exchange Act or (ii)
such time as when any price sensitive information the Executive has
obtained during the Employment ceases to be price sensitive information,
either through publication or otherwise.
4 EXCLUSIVITY OF SERVICE
4.1 During the period of the Employment the Executive shall devote his full
time and attention to his duties hereunder and shall not (without the
prior written consent of the Board) directly or indirectly either on his
own account or on behalf of any other person, company, business entity or
other organisation:
4.1.1 (i) engage in, or (ii) be concerned with, or (iii) provide services
to, (whether as an employee, officer, director, agent, partner,
consultant or otherwise) any other business; or
4.1.2 accept any other engagement or public office;
PROVIDED THAT,
4.1.3 the Executive may hold up to 5% of any securities in a company which
is quoted on any recognised stock exchange; and
4.1.4 the Executive shall, subject to the consent of the Board, have the
right to devote a portion of his business time to the Permitted
Activities PROVIDED ALWAYS THAT:
(i) any involvement by the Executive in the Permitted Activities
does not interfere, directly or indirectly, with the
performance of his duties for and on behalf of the Company
and/or any Associated Company as set out in this Agreement or
otherwise; and
(ii) in the event that new tours of those tours specified in Clause
25.7 are proposed, the Company and/or Associated Company shall
have the right of first refusal to produce and manage such
tours PROVIDED THAT it is within the Executive's power to
grant such a right.
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4.1.5 In addition to the Executive's role as Producer of "Grease" on a
worldwide basis, the Executive may produce up to three additional
productions outside the terms of this Agreement subject to:
(a) the provisions of Clause 4.1.4 of this Agreement; and
(b) CCE having the right to match the Executive's investment in
such production on a pound for pound basis up to a maximum of
50%, if it is within the Executive's power to grant such a
right, and it if is not, up to a maximum of 50% of the
Executive's own investment.
4.2 Subject to any written regulations or consents issued by the Company which
are applicable to him, neither the Executive nor his Immediate Relatives,
nor any company or business entity in which he or they are interested,
shall be entitled to receive or obtain directly or indirectly any
discount, rebate, commission or other benefit in respect of any business
transacted (whether or not by the Executive) by or on behalf of the
Company or any Associated Company, and if the Executive, his Immediate
Relatives or any company or business entity in which he or they is/are
interested, shall directly or indirectly obtain any such discount, rebate,
commission or other benefit the Executive shall forthwith account to the
Company or the applicable Associated Company for the amount received or
value of the benefit so obtained.
4.3 The Executive confirms that he has disclosed fully to the Company all
circumstances in respect of which there is, or there might be, a conflict
of interest between the company or any Associated Company, and the
Executive or his Immediate Relatives, and the agrees to disclose fully to
the Company any such circumstances which may arise or of which he becomes
aware during the Employment.
5. REMUNERATION AND BONUS
5.1 The Company shall pay to the Executive a salary of Pound Sterling 350,000
per annum, payable monthly in arrears by equal instalments. This revised
salary shall take retrospective effect from 1 January 2004. The shortfall
of salary accrued from 1 January 2004 shall be paid in a lump sum upon
execution of the deed between Clear Channel Entertainment UK (Theatrical
Productions) Limited (formerly David Ian Productions Limited) and David
Ian Lane dated 12 January 2005 ("the Deed"). The salary shall be increased
thereafter by 3% on 1 January 2006 and on 1 January in each succeeding
year during the continuation of this Agreement.
5.2.1 The Executive shall be paid a retention bonus of Pound Sterling 500,000 on
execution of the Deed ("the Retention Bonus"). If the Executive terminates
the Employment at any time during the Term in accordance with the
provisions of Clause 1 or Clause 2.1 or Clause 5.5 of this Agreement,
other than in circumstances amounting to repudiation or constructive
dismissal, the Executive agrees to repay to the Company, within 21 days of
the effective date of such termination, a pro rata portion of the
Retention Bonus, less taxes and other withholdings paid on the Retention
Bonus by the Executive, based upon any portion of the 6 year period
running from 1 January 2005 through 31 December 2010 which has not been
completed at the time of termination ("Clawback Payment").
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5.2.2 If the Company terminates the employment of the Executive in accordance
with the provisions of Clause 2.1 of this Agreement for any reason other
than the Executive's misconduct and/or material breach of contract in
accordance with the provisions of Clause 18 of this Agreement, no Clawback
Payment shall be due to the Company from the Executive.
5.3 The Executive will be entitled to a further bonus in each year during the
continuation of this Agreement calculated in accordance with CCE formula
at Schedule 1 of this Agreement. For the purposes of this bonus
calculation, the figure of Pound Sterling 140,000 shall be used as the
benchmark figure at which the Executive achieves 15% EBITDA growth and the
remainder of the table shall be calculated accordingly
5.4 The Executive shall be entitled to further bonuses in respect of "The
Phantom of the Opera" Las Vegas production ("the Production") as follows:
(a) Pound Sterling 50,000 on the signature of the Deed;
(b) Pound Sterling 50,000 shall be payable to the Executive subject to
the Production opening on time and on budget which for the purposes
of this Clause shall mean at the time and subject to the final
budget as agreed between the Parties. This bonus shall be paid
within 60 days of the Production opening; and
(c) a further maximum bonus of Pound Sterling 75,000 shall be payable to
the Executive on 31 December 2006 and on 31 December in each
succeeding year during the continuation of this Agreement based on
the Production having run for 50 weeks in the relevant year and pro
rated on a weekly basis for any lesser period. This payment shall be
conditional on the Production generating a "weekly operating
profit", which for the purposes of this sub clause shall mean that
the Production produces an operating profit above the break even
figure determined from the books and records of CCE. The further
bonus payable under this sub clause (c) shall be reduced by Pound
Sterling 1,500 (being the due proportion of Pound Sterling 75,000
for 50 weeks) for each and any week that the Production produces an
operating profit (or loss) below the break even figure referred to
above.
(d) the Executive shall be entitled to one business class return flight
for his wife and his children and full reimbursement for a family
size hotel suite at the Venetian Hotel in Las Vegas for 21 nights,
during the Production period.
5.5 In the event that CCE acquires the whole or part of [***] ("[***]") or the
[***] ("[***]") or enters into a significant transaction with [***] on
completion of such transaction ("Completion"), the Executive shall be
entitled to terminate this Agreement within 90 days of such transaction
closing by giving to the Company not less than 2 months' written notice in
accordance with the provisions of Clause 24 of this Agreement. In the
event of such termination the Clawback Payment shall be due from the
Executive to the Company in accordance with the terms of Clause 5.2.1.
5.6 The remuneration specified in Clause 5.1 and 5.2 above shall be inclusive
of any fees to which the Executive may be entitled as a Director of the
Company or of any Associated Company.
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*** Confidential
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6. CAR AND TRAVEL BENEFITS
6.1 Until termination of the Employment, the Company shall provide the
Executive with a car allowance for the sole and exclusive use of a motor
car at the rate of Pound Sterling 32,000 per annum payable monthly to
cover all the running expenses of such motor car including maintenance and
repairs but not motor tax, insurance premiums, petrol (including business
and personal) and oil which will be separately paid by the Company subject
to the Executive submitting receipts or other appropriate invoices.
6.2 The Executive shall be entitled, for the purposes of the Employment, to
travel first class by train and plane and to stay in deluxe hotel
accommodation and the Company shall pay or reimburse (as appropriate)
against receipts or other appropriate evidence of costs so incurred by the
Executive (excluding any costs incurred in connection with the Executive's
private entertainment, such as his use of mini-bar facilities).
6.3 The Company shall provide the Executive with a mobile telephone and shall
pay all reasonable expenses (including rental) In respect thereof.
7. EXPENSES
The Company shall reimburse to the Executive upon production of reasonably
detailed accounts and vouchers or other reasonable evidence of payment by
the Executive all reasonable travel entertainment and other expense
properly incurred and defrayed by him in the course of the Employment,
subject to the Company's rules, policies and procedures relating to
expenses.
8. DEDUCTIONS
The Company shall be entitled at any time during the Employment, or in any
event on termination, to deduct from the Executive's remuneration
hereunder any monies due from him to the Company including but not limited
to any outstanding loans, advances, relocation expenses, the cost of
repairing any damage or loss to the Company's property caused by him (and
of recovering the same), excess holiday, any sums due from him under
Clause 10 below and any other monies owed by him to the Company solely in
his capacity as an employee.
9. PLACE OF WORK
The Executive's place of work shall be 35-36 Grosvenor Street, London W1X
9SG. In the performance of his duties hereunder, the Executive may be
required to travel both throughout and outside the United Kingdom.
10. SICKNESS BENEFIT
10.1 The Executive shall be entitled to such sickness benefits as are provided
from time to time under the Company's sick pay procedure.
10.2 When calculating the Executive's normal salary, deductions will be made
for any State sickness or other benefits due to the Executive, as well as
normal deductions for tax and National Insurance.
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10.3 The Executive will be paid Statutory Sick Pay ("SSP") when he is eligible
to receive it under the legislation and regulations from time to time in
force. Where Company sick pay and SSP fall to be paid for the same day(s)
of absence, the Executive will receive the higher of the two sums. Further
details about SSP can be obtained from the HR Department.
10.4 The Company reserves the right to require the Executive to undergo a
medical examination by a doctor or consultant nominated by it, in which
event the Company will bear the cost thereof.
10.5 Whilst, during the Employment, the Executive is absent from work on
grounds of sickness or other medical incapacity:
10.5.1 he will continue to be covered by the relevant life assurance,
private medical insurance and permanent health insurance scheme(s);
10.5.2 his entitlement to the use of the Company Car, the payment of the
Company's pension contributions, participation in any incentive or
bonus scheme, and accrual of holiday entitlement shall cease on the
expiry of the relevant period of Company sick pay entitlement
referred to in Clause 10.1 above.
10.6 Any outstanding or prospective entitlement to any sickness benefit,
including but not limited to Company sick pay, private medical insurance
or long-term disability benefits, shall not prevent the Company from
exercising its right to terminate the Employment in accordance with
Clauses 2 or 18 hereof.
11. HOLIDAYS
11.1 The Executive shall be entitled to receive his normal remuneration for all
Bank and Public holidays normally observed in England and a further 25
working day's holiday in each holiday year (the period from January to
December), such days to be taken at times which do not conflict with the
business interests of the Company.
11.2 In the holiday years in which the Employment commences or terminates the
entitlement shall accrue on a pro rata basis for each complete month of
service
11.3 The Company reserves the right, at its sole discretion, to require the
Executive to take all or part of any outstanding holiday during any notice
period or to make a payment in lieu thereof
11.4 Holiday entitlement for one holiday year cannot be taken in subsequent
holiday years. Failure to take holiday entitlement in the appropriate
holiday year will lead to forfeiture of any accrued holiday not taken
without any right to payment in lieu thereof.
12. PENSION AND OTHER BENEFITS
12.1 In addition to the base salary payable under Clause 5.1 above, during the
Executive's Employment under this Agreement the Company shall make monthly
contributions on the Executive's behalf, subject to the Inland Revenue
limits, into such personal pension plan as the Executive shall direct of
an amount equal to ten per cent (10%) of his base salary for the time
being payable under Clause 5.1.
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There is no contracting-out certificate in force for the Employment in
relation to the State Earnings Related Pension Scheme.
12.2 The Executive shall be eligible to participate in Apollo Leisure UK
Limited's private medical insurance scheme for the benefit of himself, his
wife and minor children, permanent health insurance scheme and life
assurance scheme, subject to the terms and conditions of such schemes from
time to time in force. Details of such scheme(s) can be obtained from the
HR Department. The Company reserves the right to terminate or substitute
other scheme(s) for such scheme(s) or amend the scale or level of benefits
of such scheme(s). If any scheme provider (including but not limited to
any insurance company) refuses for any reason (whether based on its own
interpretation of the terms of the insurance policy or otherwise) to
provide any benefits to the Executive, the Company shall not be liable to
provide any such benefits itself or any compensation in lieu thereof.
12.3 Any actual or prospective loss of entitlement to private medical and
permanent health insurance benefits or any other sickness benefit shall
not limit or prevent the Company from exercising its right to terminate
the Employment in accordance with Clauses 2 or 18 hereof.
13. REASONABLENESS OF RESTRICTIONS
The Executive recognises that, whilst performing his duties for the
Company, he will have access to and come into contact with trade secrets
and confidential information belonging to the Company or to Associated
Companies and will obtain personal knowledge of and influence over its or
their customers and/or employees. The Executive therefore agrees that the
restrictions contained or referred to in Clauses 14 and 17 and the
Schedule are reasonable and necessary to protect the legitimate business
interests of the Company and its Associated Companies both during and
after the termination of the Employment.
14. CONFIDENTIAL INFORMATION
14.1 The Executive shall neither during the Employment (except in the proper
performance of his duties) nor at any time (without limit) after the
termination thereof, directly or indirectly:
14.1.1 use for his own purposes or those of any other person, company,
business entity or other organisation whatsoever; or
14.1.2 disclose to any person, company, business entity or other
organisation whatsoever;
any trade secrets or confidential information relating or belonging to the
Company or its Associated Companies including but not limited to any such
information relating to customers, customer lists or requirements, price
lists or pricing structures, sales and marketing information, business
plans or dealings, employees or officers, source codes and computer
systems, software, services and financial information, any document marked
'Confidential' (or with a similar expression), or any information which
the Executive has been told is confidential or which he might reasonably
expect the Company would regard as confidential, or any information which
has been given to the Company or Associated Company in confidence by
customers, suppliers or other persons.
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14.2 The Executive shall not at any time during the continuance of his
employment with the Company make any notes or memoranda relating to any
matter within the scope of the Company's business' dealings or affairs
otherwise than for the benefit of the Company or any Associated Company.
14.3 The obligations contained in Clause 14.1 shall cease to apply to any
information or knowledge which may subsequently come into the public
domain after the termination of the Employment other than by way of
unauthorised disclosure or which is required to be disclosed by a
competent regulatory, taxation or enforcement authority.
14.4 The Executive shall not make or communicate any statement (whether written
or oral) to any representative of the press, television, radio, or other
media and shall not write any article for the press or otherwise for
publication on any matter connected with or relating to the business of
any company, including but not limited to the business of the Company or
any Associated Company, without obtaining the prior written approval of
the Board PROVIDED ALWAYS that this Clause 14.4 shall not operate so as to
prevent the Executive making or communicating reasonable statements on
matters connected with the business of the SFX Theatre (UK) division.
15. COPYRIGHT, INVENTIONS AND PATENTS
15.1 All records, documents, papers (including copies and summaries thereof)
and other copyright protected works made or acquired by the Executive in
the course of the Employment shall, together with all the worldwide
copyright and design rights in all such works, be and at all times remain
the absolute property of the Company.
15.2 The Executive hereby irrevocably and unconditionally waives all rights
granted by Chapter IV of Part I of the Copyright, Designs and Patents Act
1988 that vest in him (whether before, on or after the date hereof) in
connection with his authorship of any copyright works in the course of his
employment with the Company, wherever in the world enforceable, including
without limitation the right to be identified as the author of any such
works and the right not to have any such works subjected to derogatory
treatment.
15.3 The Executive and the Company acknowledge the provisions of Sections 39 to
42 of the Patents Act 1977 ("the Act") relating to the ownership of
employees' inventions and the compensation of employees for certain
inventions respectively. If the Executive makes any inventions that do not
belong to the Company under the Act, he agrees that he will forthwith
license or assign (as determined by the Company) to the Company his rights
in relation to such inventions and will deliver to the Company all
documents and other materials relating to them. The Company will pay to
the Executive such compensation for the licence or assignment as the
Company will determine in its absolute discretion, subject to Section 40
of the Act.
16. DATA PROTECTION
16.1 The Data Protection Act 1998 (the "Act") sets out principles that should
be followed when processing personal data. One of the ways in which the
Company can take steps to comply with some of these principles is to ask
the Executive to consent to the processing of his employment-
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related personal data. This is not the only way that the Company can
comply with the principles contained in the Act. Please contact the HR
Department for a copy of the Company's Data Protection Policy.
16.2 The Company will hold computer records and personnel files relating to the
Executive. These will include his references, bank details, performance
appraisals, holiday and sickness records, salary reviews and remuneration
details and other employment related records, (which may, where necessary,
include sensitive data relating to the Executive's health, and data held
for ethnic monitoring purposes). The Company requires such personal data
for personnel administration and management purposes and to comply with
its obligations regarding the keeping of employee/worker records. The
Executive's right of access to this data is as prescribed by law. Please
contact the HR Department for details of these rights.
16.3 The Executive hereby expressly agrees that the Company may process
personal data relating to him for personnel administration and management
purposes and may, when necessary for those purposes, make such data
available to its advisers, to parties providing products and/or services
to the Company (such as IT systems suppliers, pension, benefits and
payroll administrators), to regulatory authorities (including the Inland
Revenue), and as required by law. Further, the Executive hereby expressly
agrees that the Company may transfer such data to and from its Associated
Companies including any Associated Companies located outside the European
Economic Area and including but not limited to those Associated Companies
located in the United States of America.
16.4 The Executive may revoke his express consent for the Company to process
personal data relating to his employment relationship with the Company by
writing to the HR Department.
17. POST-TERMINATION OBLIGATIONS
17.1 The Executive agrees that he will observe the post-termination obligations
set out in Schedule 2 hereto.
17.2 The Executive agrees that in the event of receiving from any person,
company, business entity or other organisation an offer of employment
either during the continuance of this Agreement or during the continuance
in force of any of the restrictions set out in the Schedule annexed
hereto, he will forthwith provide to such person, company, business entity
or other organisation making such an offer of employment a full and
accurate copy of Clauses 14 and 17 hereof, and the Schedule annexed
hereto.
18. TERMINATION
18.1 Notwithstanding Clause 2 above, the Company may terminate the Employment
with immediate effect if the Executive shall at any time:
18.1.1 die; or
18.1.2 be guilty of dishonesty, or be guilty of gross misconduct, or gross
incompetence or wilful neglect of duty, or commit any other serious
breach of this Agreement; or
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18.1.3 act in any manner (whether in the course of his duties or
otherwise) which is likely to bring him, the Company or any
Associated Company into disrepute or prejudice the interests of
the Company or any Associated Company.
18.1.4 become bankrupt, apply for or have made against him a receiving
order under Section 286 Insolvency Act 1986, or have any order
made against him to reach a voluntary arrangement as defined by
Section 253 of that Act; or
18.1.5 be or become of unsound mind; or
18.1.6 for an aggregate period of six months or more in any period of 12
consecutive months (or any other period proscribed by any
applicable law) be incapable of performing his duties hereunder by
reason of ill health or other incapacity (whether accidental or
otherwise); or
18.1.7 be addicted to or abuse in any way an illegal drug or substance;
or
18.1.8 make any material or recurring disparaging oral or written
statements regarding the Company or any Associated Company and,
without limitation, officers, shareholders or the management team
of the Company or any Associated Company; or
18.1.9 after having received a written warning from the Company relating
to the unsatisfactory conduct or poor performance of his duties,
continue the conduct or performance complained of in the written
warning; or
18.1.10 be convicted of an indictable offence other than a minor road
traffic offence; or
18.1.11 be or become prohibited by law from being a director, or
18.1.12 directly or indirectly advise or participate or act in concert
(within the meaning of the City Code on Take-Overs and Mergers)
with any person who makes or is considering making any offer for
the issued share capital of the Company; or
18.1.13 make or be found to have made a material fraudulent
misrepresentation in, or have otherwise materially breached the
Share Sale Agreement of even date herewith, made between by and
among SFX UK Holdings and the Executive relating to the sale and
purchase of the entire issued share capital of the Company (the
"Share Sale Agreement").
Any delay by the Company in exercising such right to termination shall
not constitute a waiver thereof.
18.2 If the Executive's Employment terminates pursuant to Clauses 18.1.1,
18.1.5 or 18.1.6 above, the Executive, his estate, legal representatives
or nominee(s) shall be entitled to receive in full satisfaction of all
obligations due to the Executive under this Agreement, all accrued but
unpaid base salary, any accrued but unpaid bonus in respect of the bonus
year ended prior to the Termination Date and a pro rata bonus payment for
the bonus year in which the Termination Date
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occurs upon payment of which the Company shall have no further obligations
or liabilities to the Executive hereunder.
18.3 If the Executive's Employment terminates pursuant to Clauses 18.1.2
- 18.1.4 or 18.1.7 - 18.1.13 above, the Executive shall be entitled to
receive in full satisfaction of all obligations, due to the Executive
under this Agreement, all accrued but unpaid base salary, any accrued but
unpaid bonus in respect of the bonus year ended prior to the Termination
Date and a pro rata bonus payment for the bonus year in which the
Termination Date occurs.
18.4 On termination of the Employment, the Executive shall forthwith return to
the Company in accordance with its instructions all equipment,
correspondence, records, specifications, software, models, notes, reports
and other documents and any copies thereof and any other property
belonging to the Company or its Associated Companies (including but not
limited to the Company Car, keys, credit cards, equipment and passes)
which are in his possession or under his control. The Executive shall, if
so required by the Company, confirm in writing his compliance with his
obligations under this Clause 18.4.
18.5 The Executive agrees that:
18.5.1(a) the Company may, at its absolute discretion, give to the
Executive a Compensation Payment (which may, at the Company's
discretion, be paid in instalments) in lieu of all or any part
of the unexpired period of the Term (to which, for the avoidance
of doubt, the Executive shall have no entitlement unless and
until the Company notifies the Executive in writing of its
decision to make the Compensation Payment to him) which shall be
in full and final settlement of all claims (including but not
limited to contractual claims) which the Executive may have
against the Company and/or any Associated Company and on payment
of which the Company and/or Associated Company shall have no
further obligations or liabilities to the Executive; and
18.5.1(b) where the Company decides to exercise its power under Clause
18.5.1(a) to make any such payment(s) to the Executive, the
Executive undertakes to take all reasonable and necessary steps
to find alternative employment to commence within a period
equivalent to the unexpired period of the Term or the notice
period set out in Clause 3 above (or where notice has been
served, the unexpired period of notice) commencing on the
Termination Date. The Company may, in its absolute discretion,
reduce the amount or amounts of any such payment(s) by such an
amount as reflects the Executive's actual mitigation. For the
avoidance of doubt, such reduction may result in the cessation
of instalment payments, or the Executive being entitled to no
payment; and/or
18.5.2 the Company may, at its absolute discretion, require the
Executive not to attend at work and/or not to undertake all or
any of his duties hereunder for a single period of 6 months or
any part of the unexpired period of the Term, whichever period
is shorter, PROVIDED ALWAYS that the Company shall continue to
pay the Executive's base
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<PAGE>
salary and contractual benefits. For the avoidance of doubt, the
Executive shall not be entitled to receive any bonus payment for
any period during which he does not attend at work pursuant to
this clause. In the event that the Company instructs the
Executive not to attend work pursuant to this Clause 18.5.2,
then the periods of restriction set out in the Schedule shall be
reduced by any period during which the Executive did not attend
at work and/or did not undertake employment duties pursuant to
Clause 18.5.2.
18.6 The Company shall have the right to suspend the Executive on full pay
pending any investigation into any potential dishonesty, gross misconduct
or any other circumstances which may give rise to a right to the to the
Company to terminate pursuant to Clause 18.1 above.
18.7 The termination of the Employment shall be without prejudice to any right
the Company may have in respect of any breach by the Executive of any of
the provisions of this Agreement which may have occurred prior to such
termination.
18.8 The Executive agrees that he will not at any time after the termination of
the Employment represent himself as still having any connection with the
Company or Associated Company, save as a former employee for the purpose
of communicating with prospective employers or complying with any
applicable statutory requirements.
18.9 The Executive hereby agrees that, in the event of the expiry of the fixed
term of his employment hereunder without it being renewed, he shall have
no claim against the Company under Section 135 Employment Rights Act 1996
in respect of a statutory redundancy payment.
19. DIRECTORSHIPS
19.1 The Executive shall forthwith resign in writing from all directorships,
trusteeships and other offices he may hold from time to time with the
Company or any Associated Company without compensation for loss of office
in the event of:-
19.1.1 the termination of his employment; or
19.1.2 the Company exercising its rights under Clause 18.5 above.
19.2 In the event of the Executive failing to comply with his obligations under
Clause 19.1 above, he hereby irrevocably and unconditionally authorises
the Company to appoint some person in his name and on his behalf to sign
or execute any documents and/or do all things necessary to requisite to
give effect to such resignations as referred to in Clause 19.1 above.
20. LIQUIDATION FOR RECONSTRUCTION OR AMALGAMATION
The Executive shall have no claim against the Company if the Employment is
terminated by reason of the liquidation of the Company for the purposes of
amalgamation or reconstruction provided that he is offered employment with
any concern or undertaking resulting from such amalgamation or
reconstruction on terms and conditions which, taken as a whole, are not
less favourable than the terms of this Agreement.
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<PAGE>
21. GRIEVANCE AND DISCIPLINARY PROCEDURES
If the Executive has any grievance relating to the Employment, he should
raise it with the Chairman of SFX Europe and thereafter (if the matter is
not resolved) with the Board. In such a case the Board will deal with the
matter by discussion and majority decision of those present and voting.
The disciplinary procedure applicable to the Executive is such procedure
as is set out from time to time in the Company's Employee Handbook. For
the avoidance of doubt, the disciplinary procedure does not form part of
the Executive's contract of employment.
22. SEVERABILITY
The various provisions and sub-provisions of this Agreement and the
Schedule attached hereto are severable and if any provision or
sub-provision is held to be unenforceable by any court of competent
jurisdiction then such unenforceability shall not affect the
enforceability of the remaining provisions or sub-provisions in this
Agreement or the Schedule.
23. WARRANTY
23.1 The Executive represents and warrants that he is not prevented by any
agreement, arrangement, contract (including but not limited to the
employment agreement dated May 1999 between Magnum Productions (Theatre)
Limited (formerly David Ian Productions Limited) and the Executive),
understanding, Court Order or otherwise, which in any way directly or
indirectly restricts or prohibits him from fully performing the duties of
the company, or any of them, in accordance with the terms and conditions
of this Agreement.
24. NOTICES
24.1 Any notice, direction or instruction required or permitted to be given
hereunder shall be given in writing and may be given by telegram,
facsimile transmission, mail (if by registered mail and if postage is
pre-paid and a return receipt is requested), or by hand delivery, to (a)
in the case of the Company to its Registered Office for the time being and
(b) in the case of the Executive, to his last known address.
24.2 If notice, direction or instruction is given by telegram or facsimile
transmission or a similar method or by hand delivery, it shall be deemed
to have been given or made on the day on which it was given, and if
mailed, it shall be deemed to have been given or made on the third
business day following the day after which it was mailed.
24.3 For the purposes of this Clause 24, "business day" means a day on which
banks are open for business in the place of both the posting and the
address of the notice.
25. DEFINITIONS
In this Agreement the following words and cognate expressions shall have
the meaning set out below:
25.1 an "Associated Company" includes any firm, company, corporation or other
organisation:
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<PAGE>
25.1.1 which is directly or indirectly controlled by the Company;
25.1.2 which directly or indirectly controls the Company; or
25.1.3 which is directly or indirectly controlled by a third party who
also directly or indirectly controls the Company; or
25.1.4 of which the Company or any other Associated Company owns or has a
beneficial interest in 20% or more of the issued share capital or
20% or more of its capital assets; or
25.1.5 which is the successor in title or assign of the firms, companies,
corporations or other organisations referred to above.
25.2 "The Board" shall mean the Board of Directors of the Company.
25.3 "Compensation Payment" means a sum calculated as follows:
A X Pound Sterling B less C
------
365
"A" is the number of days of the unexpired Term.
"B" is the Executive's annual base salary referred to Clause 5.1 above
on the date when he is notified in writing by the Company that it
will be making him a Compensation Payment. For the avoidance of
doubt, this shall not be include the value of any bonus, incentive
or commission entitlement, benefits or holiday entitlement which
would have accrued to the Executive had he been employed until the
expiry of the expiry of the Term.
"C" any reduction made pursuant to Clause 18.5.1(b).
25.4 "Control" has the meaning ascribed by Section 416 Taxes Act 1988 (as
amended).
25.5 "HR Department" shall mean the Human Resources Department of Apollo
Leisure (UK) Limited.
25.6 "Immediate Relatives" shall include the Executive's wife, children under
18 years of age, brothers and sisters and the aforesaid relatives by
marriage.
25.7 "Permitted Activities" shall mean the Executive's current level of
involvement at the date hereof as producer, co-producer and/or manager of
touring productions of "Grease", "SNF", "Barnum" and "Happy Days" in the
UK.
25.8 "Retail Price Index" shall refer to the percentage increase figure
calculated over the preceding 12 months and defined by the Office of
National Statistics.
25.9 "SFX (Theatre) UK division" shall mean such division of the SFX Group
which is from time to time concerned with the theatre business in the UK.
25.10 "Termination Date" shall mean the date upon which the Executive's
employment with the Company terminates.
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<PAGE>
26. CONSTRUCTION
26.1 The provisions of the Schedule attached hereto and any additional terms
endorsed in writing by or on behalf of the parties hereto shall be read
and construed as part of this Agreement and shall be enforceable
accordingly.
26.2 The benefit of each agreement and obligation of the Executive under Clause
14 and the Schedule attached hereto of this Agreement may be assigned to
and enforced by any other member of the Clear Channel Communications Inc
and all of its subsidiaries from time to time and such agreements and
obligations shall operate and remain binding, notwithstanding the
termination of this Agreement.
27. PRIOR AGREEMENTS
27.1 This Agreement together with the 2 side letters dated 12 January 2005
attached to this Agreement as Schedules 3 and 4 cancel and are in
substitution for all previous letters of engagement, agreements and
arrangements (whether oral or in writing) relating to the subject-matter
hereof between the Company and the Executive all of which shall be deemed
to have been terminated by mutual consent.
27.2 The Executive hereby agrees to waive all claims and rights of action
(whether under statute, common law or otherwise) in any jurisdiction in
the world, howsoever arising (including but not limited to contractual
claims, breach of contract, tort and the Executive's prospective
entitlement to bring such claims) which the Executive has or may have
against the Company or any Associated Company, its officers, employees or
shareholders, arising from or connected with the Executive's previous
contract of employment with the Company or Associated Company, or the
termination thereof.
27.3 This Agreement and an Opt-Out Agreement of even date made between the
Executive and the Company ("the Opt-Out Agreement") constitute the entire
terms and conditions of the Executive's Employment and, save for as
provided otherwise in the Opt-Out Agreement, no waiver or modification
thereof shall be valid unless in writing, signed by the parties and only
to the extent therein set forth.
28. GOVERNING LAW AND JURISDICTION
This Agreement is governed by and construed in accordance with the laws of
England. The parties hereto submit to the exclusive jurisdiction of the
English Courts.
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<PAGE>
DATED 2005
DEED
AMENDING A
SERVICE AGREEMENT
DATED 5 OCTOBER 2000
CLEAR CHANNEL ENTERTAINMENT UK (1)
(THEATRICAL PRODUCTIONS) LIMITED
(FORMERLY DAVID IAN PRODUCTIONS LIMITED)
DAVID IAN LANE (2)
<PAGE>
DATE
2005
PARTIES
(1) CLEAR CHANNEL ENTERTAINMENT UK (THEATRICAL PRODUCTIONS) LIMITED (formerly)
DAVID IAN PRODUCTIONS LIMITED) (Company Number 4018696) whose registered
office is at 1 Cluny Mews London SW5 9EG ("the Company"); and
(2) DAVID IAN LANE of 12 Little Plucketts Way, Buckhurst Hill, Essex, IG9 5QU
("the Executive").
INTRODUCTION
(A) The parties entered into a service agreement dated 5 October 2000 in
respect of the Executive's employment with the Company ("the Service
Agreement").
(B) The parties wish to vary the Service Agreement in the manner set out in
the following provisions of this Deed.
OPERATIVE PROVISIONS
1 In Clause 1 there shall be substituted for the words "Managing Director of
the SFX (Theatre) UK Division" the words "sole CEO of the Clear Channel
-Entertainment Theatre, UK and International Division".
2 The following words shall also be added to the end of Clause 1:
"The Executive may terminate the Employment by giving to the Company
3 months' notice in writing in the event that his direct reporting
line changes to any person other than the CEO or COO of Clear
Channel Entertainment ("CCE") currently Brian Becker and Miles
Wilkin respectively, provided that such notice shall be given within
one month of such change becoming effective." In the event of the
Executive terminating his employment under this Clause 1, the
covenants in Clause 17.1 and the Schedule to the Service
Agreement shall be waived by the Company.
<PAGE>
3 In Clause 2.1 there shall be substituted for the words "for a period of
five years, expiring on the fifth anniversary of the Commencement Date"
the words "until 31 December 2010 when it shall expire automatically
PROVIDED ALWAYS that either the Company or the Executive may terminate
this employment of the Executive at any time subject to giving to the
other twelve months' written notice in accordance with the provision of
Clause 24 of the Service Agreement, subject always to the provisions of
Clauses 5.2.2 and 5.2.3 of this Agreement".
4 In Clause 3.1 there shall be substituted for the words "be employed in
the post of sole Managing Director of the SFX (Theatre) UK division the
words "oversee the operation of the CCE European theatrical business, the
CCE European sports business, Donington and the CCE London head office in
Grosvenor Street". Theatrical business includes UK theatres plus numerous
West End, touring and European productions and also be responsible for all
theatrical business throughout the rest of the world, excluding North
America."
5 A new Clause 4.1.5 shall be added as follows:
"In addition to the Executive's role as Producer of "Grease" on a
worldwide basis, "the Executive may produce up to three additional
productions outside the terms of the Service Agreement subject to:
(a) the provisions of Clause 4.1.4 of the Service Agreement (other
than Clause 4.1.4(ii) which shall be deleted); and
(b) CCE having the right to match the Executive's investment in
such production on a pound for pound basis up to a maximum of
50 %, if it is within the Executive's power to grant such a
right, and if it is not, up to a maximum of 50 % of the
Executive's own investment."
6 Clause 5.1 shall be deleted and substituted with the following wording:
"The Company shall pay to the Executive a salary of Pound Sterling
350,000 per annum, payable monthly in arrears by equal instalments.
This revised salary shall take retrospective effect from 1 January
2004. The shortfall of salary accrued from 1 January 2004 shall be
paid in a lump sum upon execution of the deed between Clear Channel
Entertainment UK (Theatrical Productions) Limited (formerly David
Ian Productions Limited) and David Ian Lane dated 2005 ("the
Deed").
<PAGE>
The salary shall be increased thereafter by 3% on 1 January 2006 and
on 1 January in each succeeding year during the continuation of this
Agreement"
7 Clause 5.2 shall be deleted and substituted with the following:
5.2.2 "The Executive shall be paid a retention bonus of Pound
Sterling 500,000 on the date hereof ("the Retention Bonus"). If the
Executive terminates the employment at any time during its term in
accordance with the provisions of Clause 1 or Clause 2.1 or Clause
5.5 of this Agreement, other than in circumstances amounting to
repudiation or constructive dismissal, the Executive agrees to repay
to Company, within 21 days of the effective date of such
termination, a pro rata portion of the Pound Sterling 500,000
payment paid to Executive on 1 January 2005, less taxes and other
withholdings paid on the retention bonus amount by the Executive,
based upon any portion of the 6 year period running from 1 January
2005 through 31 December 2010 which has not been completed at the
time of the termination ("Clawback Payment").
5.2.3 If the Company terminates the employment of the Executive in
accordance with the provisions of Clause 2.1 of this Agreement for
any reason other than the Executive's misconduct and/or material
breach of contract in accordance with the provisions of Clause 18 of
this Agreement, no Clawback Payment shall be due to the Company from
the Executive."
8 A new clause 5.3 shall be inserted as follows:
"The Executive will be entitled to a further bonus in each year
during the continuation of this Agreement calculated in accordance
with CCE formula at Appendix 1 of the Deed. For the purposes of this
bonus calculation, the figure of Pound Sterling 140,000 shall be
used as the benchmark figure at which the Executive achieves 15%
EBITDA growth and the remainder of the table shall be calculated
accordingly."
9 A new clause 5.4 shall be inserted as follows;
"The Executive shall be entitled to further bonuses in respect of
"The Phantom of the Opera" Las Vegas production ("the Production")
as follows:
<PAGE>
(a) Pound Sterling 50,000 on the signature of the Deed.
(b) Pound Sterling 50,000 shall be payable to the Executive
subject to the Production opening on time and on budget which
for the purposes of this Clause shall mean at the time and
subject to the final budget as agreed between the Parties.
This bonus shall be paid within 60 days of the Production
opening; and
(c) A further maximum bonus of Pound Sterling 75,000 shall be
payable to the Executive on 31 December 2006 and on 31
December in each succeeding year during the continuation of
this Agreement based on the Production having run for 50 weeks
in the relevant year and pro rated on a weekly basis for any
lesser period. This payment shall be conditional on the
Production generating a "weekly operating profit", which for
the purposes of this sub clause shall mean that the Production
produces an operating profit above the break even figure
determined from the books and records of CCE. The further
bonus payable under this sub clause (c) shall be reduced by
Pound Sterling 1,500 (being the due proportion of Pound
Sterling 75,000 for 50 weeks) for each and any week that the
Production produces an operating profit (or loss) below the
break even figure referred to above.
(d) the Executive shall be entitled to one business class return
flight for his wife and his children and full reimbursement
for a family size hotel suite at the Venetian Hotel in Las
Vegas for 21 nights, during the Production period."
10 A new clause 5.5 shall be inserted as follows:
"In the event that CCE acquires the whole or part of [***]
("[***]") or the [***] ("[***]") or enters into a significant
transaction with [***] on completion of such transaction
("Completion"), the Executive shall be entitled to terminate
this Agreement within 90 days of such transaction closing by
giving to the Company not less than 2 months' written notice in
accordance with the provisions of Clause 24 of the Service
Agreement. In the event of such termination the Clawback
________________
*** Confidential
<PAGE>
Payment shall be due from the Executive to the Company in
accordance with the terms of Clause 5.2.2".
11 Clause 5.3 shall be re-numbered accordingly.
12 Clause 6.1 shall be deleted and substituted with the following wording;
"Until termination of the Employment, the Company shall provide the
Executive with a car allowance for the sole and exclusive use of a
motor car at the rate of Pound Sterling 32,000 per annum payable
monthly to cover all the running expenses of such motor car
including maintenance and repairs but hot motor tax; insurance
premiums, petrol (including business and personal) and oil which
will be separately paid by the Company subject to the Executive
submitting receipts or other appropriate invoices."
13 In clause 12.1 there shall be substituted for the words and figure "five
per cent (5%)" the words and figure "ten per cent (10%)".
14 Except as expressly varied by this Deed, the Service Agreement shall
remain in full force and effect.
IN WITNESS whereof this Deed has been executed the day and year first
above written
<PAGE>
ATTESTATIONS
EXECUTED as a DEED by )
for and on behalf of
CLEAR CHANNEL ENTERTAINMENT UK /s/ MILES WILKIN
(THEATRICAL PRODUCTIONS) LIMITED
)
(FORMERLY DAVID IAN PRODUCTIONS
by its duly authorised officer )
Director
In the presence of
Witness: [ILLEGIBLE]
Occupation: PA
Address: 39 Heathfield Road, Kaston Village BR26B6
EXECUTED as a DEED by )
DAVID IAN LANE )
in the presence of: ) /s/ DAVID IAN LANE
Witness: A S FAIRHALL
Address: 5 Ospringe Street, Faversham, Kent ME138TJ
Occupation: PA
<PAGE>
[CLEAR CHANNEL ENTERTAINMENT LOGO]
July 1, 2005
Mr. David Ian Lane
12 Little Plucketts Way
Buckhurst Hill
Essex
IG9 5QU
This will confirm the second AMENDMENT made this 1st day of July 2005 to the
SERVICE AGREEMENT made 5th day of October 2000 and amended by DEED the 12th day
of January 2005.
BETWEEN:
(1) CLEARCHANNEL ENTERTAINMENT UK (THEATRICAL PRODUCTIONS)
LIMITED (formerly DAVID IAN PRODUCTIONS LIMITED) (Company No:
4018696) a company registered in England, whose registered
office is 1 Cluny Mews, London SW5 9EG ("the Company"); and
(2) DAVID IAN LANE of 12 Little Plucketts Way, Buckhurst Hill,
Essex IG9 5QU ("the Executive").
WHEREAS the Board of Directors of the Company ("the Board") has approved the
terms of this Agreement under which the Executive is to be employed.
IT IS HEREBY AGREED as follows:
1. In Clause 1 there shall be substituted for the words "sole CEO of
the Clear Channel Entertainment Theatre., UK and International
Division" the words "CEO of the Clear Channel Entertainment
Theatre., UK and International Division and Global Chairman of
Theatre".
2. Clause 5.3 shall be deleted and substituted with the following:
"In 2005, the Executive will be entitled to a further bonus in each
year during the continuation of the Agreement calculated in
accordance with CCE formula at Appendix 1 of the Deed. For the
purposes of this bonus calculation, the figure of Pound Sterling
140,000 shall be used as the benchmark figure at which the employee
achieves 15% EBITDA growth and the remainder of the table shall be
calculated accordingly. For calendar year 2006 and for the
continuation of the Agreement, the Executive will be entitled to a
further bonus in accordance with CCE formula at Appendix 2 of the
Deed. For the purposes of this bonus calculation, the figure of
Pound Sterling 175,000 shall be used as the benchmark figure at
which the employee achieves 15% EBITDA growth and the remainder of
the table shall be calculated accordingly."
Clear Channel Entertainment (713) 693-8600 Tel - (713) 693-8672 Fax
2000 West Loop South - Suite 1300 - Houston, TX 77027 - www.clearchannel.com
<PAGE>
Mr. David Ian Lane
Second Amendment
July 1, 2005
Page 2
3. Appendix 1 shall be deleted and substituted with Appendix 1 herein.
4. A new clause 5.4 shall be inserted as follows:
"The Executive will be entitled to a further bonus of Pound
Sterling 25,000 if the actual EBITDA results for North American
Theatrical exceeds the June 2005 forecasted EBITDA."
5. All other terms and conditions of the Service Agreement remain in
full force and effect.
ATTESTATIONS
EXECUTED as a DEED by )
MILES WILKIN ) /s/ MILES WILKIN
for and on behalf of )
CLEAR CHANNEL ENTERTAINMENT UK
LIMITED
By its duly authorized officer and director
in the Presence of
Witness:
Occupation:
Address:
EXECUTED as a DEED by )
DAVID IAN LANE )
in the presence of: ) /s/ DAVID IAN LANE
Witness: A S FAIRHALL
Address: 5 Ospringe Street, Faversham, Kent ME138TJ
Occupation: PA