Exhibit 10.28
SECOND AMENDMENT
TO
EMPLOYMENT
AGREEMENT
This Second
Amendment to the Employment Agreement (this “Second
Amendment”) is effective as of the 31
st
day of December,
2008 (the “Effective Date”) by and between Live Nation
Worldwide, Inc., a Delaware corporation (the
“Company”), and Michael G. Rowles (the
“Employee”).
WHEREAS, the parties entered into
that certain Employment Agreement dated effective as of
March 13, 2006 (the “Agreement”), as amended by
that certain Amendment dated March 29, 2007 (together with the
Agreement, the “Original Agreement”).
WHEREAS, the parties desire to amend
the Original Agreement as set forth below.
NOW, THEREFORE, in consideration of
the mutual covenants and agreements included in this Amendment and
other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the parties, intending to be
legally bound, agree as follows:
1. Section 3(b) of the Original
Agreement is hereby amended by inserting the following sentence
after the first sentence of the Section:
“The annual performance bonus,
if any, shall be paid in one lump sum in the year following the
year in which such performance bonus was earned.”
2. Section 8(d) of the Original
Agreement is hereby amended and restated in its entirety to read as
follows:
“(d) Termination by Company
Without Cause or by Employee for Good Reason. If the
Employee’s employment with the Company is terminated by the
Company without Cause, or by the Employee for Good Reason, the
Company will, within the time period as required under the laws of
the State of California, pay in a lump sum to the Employee his
accrued and unpaid base salary, prorated bonus, if any, (see
Section 3(b) above), unreimbursed expenses and any payments to
which he may be entitled under any applicable employee benefit plan
(according to the terms of such plans and policies). Additionally,
provided that the Employee (i) agrees to provide part-time
consulting services to the Company for a period of twelve
(12) months following the Employee’s termination of
employment (the “Consulting Period”); provided ,
however , that the level of services required to be
performed by the Employee for the Company during the Consulting
Period shall not exceed twenty (20%) percent of the average
level of services performed by the Employee for the Company during
the 36-month period immediately preceding the date of termination
(or for the full period that the
Employee has been performing
services for the Company if such period is less than 36 months),
such that the performance of such services during the Consulting
Period shall not cause the Employee’s termination of
employment to fail to be treated as a “separation from
service,” within the meaning of Section 1.409A-1(h) of
the Treasury Regulations, (ii) agrees not to compete with the
Company, directly or indirectly, during the Consulting Period in
accordance with Section 2(b) above and (iii) signs a
general release of claims within sixty (60) days following the
date of termination in a from and manner satisfactory to the
Company, the Company will pay the Employee severance pay in the
form of continuation of base salary, in accordance with the
Company’s ordinary payroll practices and deductions, for a
period equal to the greater of twelve (12) months or the
remainder of the Employment Period. Subject to Section 8(g)
below, such salary continuation payments shall commence within 60
days following the Employee’s termination date. The amount of
severance pay provided to the Employee under this Section 8(d)
shall not be reduced by any compensation earned by the employee as
a result of employment by another employer during the Consulting
Period or offset against any amount claimed to be owed by the
Employee to the Company.
3. Section 8(e) of the Original
Agreement is hereby amended and restated in its entirety to read as
follows:
“(e) Termination by Employee
Without Cause. If the Employee terminates his employment with the
Company in accordance with Section 7(e) above, and the Company
does not elect to terminate the employment relationship prior to
the expiration of the twelve (12) month notice period (as
permitted under Section 7(e)), the Company will, within the
time period as required under the laws of the State of California,
pay in a lump sum to the Employee his accrued and unpaid base
salary, prorated bonus, if any, (see Section 3(b) above),
unreimbursed expenses and any payments to which he may be entitled
under any applicable employee benefit plan (according to the terms
of such plans and policies). If the Employee terminates his
employment with the Company in accordance with Section 7(e)
above, and the Company does elect to terminate the employment
relationship prior to the expiration of the twelve (12) month
notice period, then, in accordance with Section 7(e), such
termination shall be deemed a termination by the Company without
Cause and Section 8(d) above shall apply.”
4. Section 8 of the Original
Agreement is hereby amended to include the following new
Section 8(g):
“(g) Code Section 409A
Compliance.
(i) To the fullest extent
applicable, amounts and other benefits payable under t
