UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 OR 15(d)
of The Securities Exchange Act of 1934
Date of Report (Date of earliest event reported) December 6, 2018
THE MADISON SQUARE GARDEN COMPANY
(Exact name of registrant as specified in its charter)
Delaware | 1-36900 | 47-3373056 | ||
(State or another jurisdiction
of incorporation) |
(Commission
File Number) |
(IRS Employer
Identification No.) |
||
2 Penn Plaza, New York, New York | 10121 | |||
(Address of principal executive offices) | (Zip Code) |
Registrants telephone number, including area (212) 465-6000
Not Applicable
(Former name or former address, if changed since last report.)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
☐ |
Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
☐ |
Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
☐ |
Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
☐ |
Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).
Emerging growth company ☐
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐
Item 5.02 |
Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers. |
On December 6, 2018, the Board of Directors (the Board) of The Madison Square Garden Company (the Company) appointed Victoria Mink to succeed Donna Coleman as Executive Vice President and Chief Financial Officer of the Company effective January 1, 2019. Ms. Coleman will continue in her employment with the Company as Executive Vice President, Finance from January 1, 2019 through March 31, 2019 in order to assist with the transition of the Chief Financial Officer role.
Ms. Mink, 50, has served as the Companys Executive Vice President, Finance, since October 22, 2018. Previously, Ms. Mink served as the Senior Vice President, Chief Accounting Officer for Altice USA from June 2016 to October 2018, where she was responsible for all accounting and financial reporting compliance, including acquisition transactions, a spin-off transaction and an initial public offering. She was also responsible for setting the strategic direction, goals and initiatives for the accounting, accounts payable and financial systems departments, presenting to the audit committee, implementing new accounting policies and compliance with company policies and Sarbanes Oxley. Prior to this, Ms. Mink served as the Senior Vice President, Controller and Principal Accounting Officer for Cablevision Systems Corporation from June 2011 to June 2016. Ms. Mink joined Cablevision Systems Corporation in November 1997. Before joining Cablevision Systems Corporation, Ms. Mink was an audit manager with KPMG LLP.
Employment Agreement with Ms. Mink
In connection with Ms. Minks appointment as Executive Vice President and Chief Financial Officer, Ms. Mink and the Company entered into an employment agreement dated December 6, 2018. The term of the employment agreement will commence on January 1, 2019 (the Effective Date). The employment agreement provides for an annual base salary of not less than $800,000. Ms. Mink will be eligible to participate in the Companys discretionary annual bonus program with an annual target bonus equal to not less than 100% of her annual base salary. The target bonus opportunity for the current fiscal year ending June 30, 2019, will include the portion of the fiscal year prior to the Effective Date during which Ms. Mink was employed as the Companys Executive Vice President, Finance. Ms. Mink will also participate in long-term incentive programs that are made available in the future to similarly situated executives of the Company, subject to Ms. Minks continued employment by the Company. It is expected that Ms. Mink will receive annual grants of cash and/or equity long-term incentive awards with an aggregate target value of not less than $1,100,000 as determined by the Compensation Committee of the Board in its discretion. With respect to the current fiscal year ending June 30, 2019, Ms. Mink will be entitled to a prorated long-term incentive grant with a target value of $683,333. Under the employment agreement, Ms. Mink will be eligible to participate in the Companys standard benefits program, subject to meeting the relevant eligibility requirements, payment of required premiums, and the terms of the plans.
If, on or prior to December 31, 2021 (the Scheduled Expiration Date), Ms. Minks employment with the Company is terminated (i) by the Company other than for cause as defined in the agreement, or (ii) by Ms. Mink for good reason as defined in the agreement (so long as cause does not then exist), then, subject to Ms. Minks execution of a separation agreement with the Company, the Company will provide her with the following benefits and rights: (a) a severance payment in an amount determined at the discretion of the Company, but in no event less than two times the sum of Ms. Minks annual base salary and annual target bonus; (b) any unpaid annual bonus for the fiscal year prior to the fiscal year in which such termination occurred and a prorated annual bonus for the fiscal year in which such termination occurred; (c) each of Ms. Minks outstanding long-term cash awards will immediately vest in full and will be payable to Ms. Mink to the same extent that other similarly situated active executives receive payment; (d) all of the time-based restrictions on each of Ms. Minks outstanding restricted stock or restricted stock units granted to her under the plans of the Company will immediately be eliminated and will be payable or deliverable to Ms. Mink subject to satisfaction of any applicable performance criteria; and (e) each of Ms. Minks outstanding stock options and stock appreciation awards under the plans of the Company will immediately vest.
The employment agreement contains certain covenants by Ms. Mink including a noncompetition agreement that restricts Ms. Minks ability to engage in competitive activities until the first anniversary of a termination of her employment with the Company.
Letter Agreement with Ms. Coleman
On December 10, 2018, Ms. Coleman and the Company entered into a letter agreement (the Letter Agreement) that provides for Ms. Colemans transition to the Executive Vice President, Finance role on January 1, 2019 and retirement from the Company on March 31, 2019, or on Ms. Colemans earlier resignation or termination by the Company for Cause (as defined in the Letter Agreement). Ms. Colemans last date of employment is the Retirement Date.
Ms. Coleman will continue to receive her base salary at its current rate, and remain eligible to participate in the Companys benefit plans, through the Retirement Date. If Ms. Coleman remains employed through December 31, 2018 and executes the Companys standard release of any claims, then (i) all of the time-based restrictions on each of Ms. Colemans outstanding restricted stock units granted to her under the plans of the Company will immediately be eliminated and will be deliverable to Ms. Coleman subject to satisfaction of any applicable performance criteria and (ii) Ms. Coleman will be eligible to receive a prorated bonus for the fiscal year ending June 30, 2019. If the Company terminates Ms. Colemans employment without Cause prior to March 31, 2019, then Ms. Coleman will also be entitled to continue to receive her base salary, and Ms. Colemans prorated bonus will be calculated as if she had remained employed, through March 31, 2019. Ms. Coleman is subject to confidentiality, non-disparagement, non-compete, non-solicitation and certain other covenants pursuant to the Letter Agreement.
The descriptions above do not purport to be complete and are qualified in their entirety by reference to Ms. Minks Employment Agreement and Ms. Colemans Letter Agreement, which are attached as Exhibit 10.1 and Exhibit 10.2, respectively, and incorporated into this Item 5.02 by reference.
Item 9.01 |
Financial Statements and Exhibits. |
(d) |
Exhibits |
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
THE MADISON SQUARE GARDEN COMPANY (Registrant) | ||
By: | /s/ Mark C. Cresitello | |
Name: | Mark C. Cresitello | |
Title: | Senior Vice President, Associate General Counsel and Secretary |
Dated: December 10, 2018
Exhibit 10.1
December 6, 2018
Ms. Victoria M. Mink
The Madison Square Garden Company
Two Pennsylvania Plaza
New York, NY 10121
Dear Victoria:
This letter agreement (the Agreement), effective on January 1, 2019 (the Effective Date), will confirm the terms of your employment with The Madison Square Garden Company (the Company) following the Effective Date.
1. Your title will be Executive Vice President and Chief Financial Officer and you will report to the Chief Executive Officer of the Company. You agree to devote all of your business time and attention to the business and affairs of the Company and to perform your duties in a diligent, competent, professional and skillful manner and in accordance with applicable law. You shall not undertake any outside business commitments without the Companys consent.
2. Your annual base salary will be not less than $800,000 annually, paid bi-weekly, subject to annual review and potential increase by the Compensation Committee of the Board of Directors of the Company (the Compensation Committee) in its discretion. The Compensation Committee will review your compensation package on an annual basis to ensure that you are paid consistently with other similarly situated executives as well as external peers.
3. You will also participate in our discretionary annual bonus program with an annual target bonus opportunity equal to not less than 100% of your annual base salary (with such target bonus opportunity effective for the current fiscal year (ending June 30, 2019) to include the portion of the fiscal year prior to the Effective Date during which you were employed by MSG Sports & Entertainment, LLC). Bonus payments are based on actual salary dollars paid during the year and depend on a number of factors including Company, unit and individual performance. However, the decision of whether or not to pay a bonus, and the amount of that bonus, if any, is made by the Compensation Committee in its sole discretion. Annual bonuses are typically paid early in the subsequent fiscal year. Except as otherwise provided herein, in order to receive a bonus, you must be employed by the Company at the time bonuses are being paid. Notwithstanding the foregoing, if your employment with the Company ends on the Scheduled Expiration Date (as defined below), you shall be paid your bonus for the fiscal year ending June 30, 2021, if any, even if such payment is not made to you prior to the Scheduled Expiration Date, which bonus shall be subject to Company and your business unit performance for that fiscal year as determined by the Company in its sole discretion, but without adjustment for your individual performance.
THE MADISON SQUARE GARDEN COMPANY
TWO PENNSYLVANIA PLAZA, NEW YORK, NY 10121-0091
TEL 212-465-6000
Ms. Victoria M. Mink
Page 2
4. You will also, subject to your continued employment by the Company and actual grant by the Compensation Committee, participate in such equity and other long-term incentive programs that are made available in the future to similarly situated executives at the Company. It is expected that such awards will consist of annual grants of cash and/or equity awards with an annual target value of not less than $1,100,000, all as determined by the Compensation Committee in its discretion. With respect to the Companys current fiscal year (ending June 30, 2019), you will be entitled to a pro-rated long-term incentive grant with a target of $683,333 (based on 2 full months of service with MSG Sports & Entertainment prior to the Effective Date at your previous $800,000 target, and six full months from and after the Effective Date at the new $1,100,000 target). All awards described in this Paragraph, in addition to being subject to actual grant by the Compensation Committee, would be pursuant to the applicable plan document and would be subject to any terms and conditions established by the Compensation Committee in its sole discretion that would be detailed in separate agreements you would receive after any award is actually made; provided, however, that such terms and conditions shall be consistent with those in awards granted to similarly situated executives. Long-term incentive awards are currently expected to be subject to three-year vesting.
5. You will also be eligible to participate in our standard benefits program, subject to meeting the relevant eligibility requirements, payment of the required premiums, and the terms of the plans themselves. We currently offer medical, dental, vision, life, and accidental death and dismemberment insurance; short- and long- term disability insurance; a savings and retirement program; and ten paid holidays. You will also to be eligible for paid time off to be accrued and used in accordance with Company policy.
6. If your employment with the Company is terminated on or prior to December 31, 2021 (the Scheduled Expiration Date) (i) by the Company (other than for Cause); or (ii) by you for Good Reason (other than if Cause then exists); then, subject to your execution and delivery, within 60 days after the date of termination of your employment, and non-revocation (within any applicable revocation period) of the Separation Agreement (as defined below), the Company will provide you with the following:
(a) |
Severance in an amount to be determined by the Company (the Severance Amount), but in no event less than two (2) times the sum of your annual base salary and your annual target bonus as in effect at the time your employment terminates. Sixty percent (60%) of the Severance Amount will be payable to you on the six-month anniversary of the date your employment so terminates (the Termination Date) and the remaining forty percent (40%) of the Severance Amount will be payable to you on the twelve-month anniversary of the Termination Date; |
THE MADISON SQUARE GARDEN COMPANY
TWO PENNSYLVANIA PLAZA, NEW YORK, NY 10121-0091
TEL 212-465-6000
Ms. Victoria M. Mink
Page 3
(b) |
Any unpaid annual bonus for the Companys fiscal year prior to the fiscal year which includes your Termination Date, and a pro rated bonus based on the amount of your base salary actually earned by you during the Companys fiscal year through the Termination Date, each of which will be paid to you when such bonuses are generally paid to similarly situated active executives and will be based on your then current annual target bonus as well as Company and your business unit performance for the applicable fiscal year as determined by the Company in its sole discretion, but without adjustment for your individual performance; |
(c) |
Each of your outstanding long-term cash awards, if any, granted under the plans of the Company shall immediately vest in full and shall be payable to you at the same time as such awards are paid to active executives of the Company and the payment amount of such award shall be to the same extent that other similarly situated active executives receive payment as determined by the Compensation Committee (subject to satisfaction of any applicable performance criteria but without adjustment for your individual performance); |
(d) |
(i) All of the time-based restrictions on each of your outstanding restricted stock or restricted stock unit awards granted to you under the plans of the Company shall immediately be eliminated, (ii) deliveries with respect to your restricted stock that are not subject to performance criteria or are subject to performance criteria that have previously been satisfied (as certified by the Compensation Committee) shall be made immediately after the effective date of the Separation Agreement, (iii) payment and deliveries with respect to your restricted stock units that are not subject to performance criteria or are subject to performance criteria that have previously been satisfied (as certified by the Compensation Committee) shall be made on the 90 th day after the termination of your employment and (iv) payments or deliveries with respect to your restricted stock and restricted stock units that are subject to performance criteria that have not yet been satisfied shall be made on the 90 th day after the applicable performance criteria is certified by the Compensation Committee as having been satisfied; and |
(e) |
Each of your outstanding stock options and stock appreciation awards, if any, under the plans of the Company shall immediately vest and become exercisable, and you shall have the right to exercise each of those options and stock appreciation awards for the remainder of the term of such option or award. |
If you die after a termination of your employment that is subject to this Paragraph 6, your estate or beneficiaries will be provided with any remaining benefits and rights under this Paragraph 6.
THE MADISON SQUARE GARDEN COMPANY
TWO PENNSYLVANIA PLAZA, NEW YORK, NY 10121-0091
TEL 212-465-6000
Ms. Victoria M. Mink
Page 4
7. If you cease to be an employee of the Company prior to the Scheduled Expiration Date as a result of your death or your Disability (as defined in the Companys Long Term Disability Plan), and at such time Cause does not exist then, subject (other than in the case of death) to your execution and delivery, within 60 days after the date of termination of your employment, and non-revocation (within any applicable revocation period) of the Separation Agreement, you or your estate or beneficiary shall be provided with the benefits and rights set forth in Paragraphs 6(b), (d) and (e) above, and each of your outstanding long-term cash awards, if any, granted under the plans of the Company shall immediately vest in full, whether or not subject to performance criteria and shall be payable on the 90 th day after the termination of your employment; provided, that if any such award is subject to any performance criteria, then (i) if the measurement period for such performance criteria has not yet been fully completed, then the payment amount shall be at the target amount for such award and (ii) if the measurement period for such performance criteria has already been fully completed, then the payment of such award shall be at the same time and to the extent that other similarly situated executives receive payment as determined by the Compensation Committee (subject to satisfaction of the applicable performance criteria).
8. For purposes hereof, Separation Agreement shall mean the Companys standard severance agreement (modified to reflect the terms of this Agreement) which will include, without limitation, the provisions set forth in Paragraphs 6, 7 and 9 hereof and Annex A hereto regarding non-compete (limited to one year), non-disparagement, non-hire/non-solicitation, confidentiality (including, without limitation, the last paragraph of Section 3 of Annex A), and further cooperation obligations and restrictions on you (with Company reimbursement of your associated expenses and payment for your services as described in Annex A in connection with any required post-employment cooperation) as well as a general release by you of the Company and its affiliates (and their respective directors and officers), but shall otherwise contain no post-employment covenants unless agreed to by you. The Company shall provide you with the form of Separation Agreement within seven days of your termination of employment. For avoidance of doubt, your rights of indemnification under the Companys Amended and Restated Certificate of Incorporation, under your indemnification agreement with the Company and under any insurance policy, or under any other resolution of the Board of Directors of the Company shall not be released, diminished or affected by any Separation Agreement or release or any termination of your employment.
9. Except as otherwise set forth in Paragraphs 6 and 7 hereof, in connection with any termination of your employment, your then outstanding equity and cash incentive awards shall be treated in accordance with their terms and, other than as provided in this Agreement, you shall not be eligible for severance benefits under any other plan, program or policy of the Company. Nothing in this Agreement is intended to limit any more favorable rights that you may be entitled to under your equity and/or cash incentive award agreements, including, without limitation, your rights in the event of a termination of your employment, a Going Private Transaction or a Change of Control (as those terms are defined in the applicable award agreement).
THE MADISON SQUARE GARDEN COMPANY
TWO PENNSYLVANIA PLAZA, NEW YORK, NY 10121-0091
TEL 212-465-6000
Ms. Victoria M. Mink
Page 5
10. For purposes of this Agreement, Cause means your (i) commission of an act of fraud, embezzlement, misappropriation, willful misconduct, gross negligence or breach of fiduciary duty against the Company or an affiliate thereof, or (ii) commission of any act or omission that results in a conviction, plea of no contest, plea of nolo contendere , or imposition of unadjudicated probation for any crime involving moral turpitude or any felony.
For purposes of this Agreement, Good Reason means that (1) without your written consent, (A) your annual base salary or annual target bonus (as each may be increased from time to time in the Compensation Committees sole discretion) is reduced, (B) your title (as in effect from time to time) is diminished, (C) you report to someone other than to the Chief Executive Officer or the Executive Chairman of the Board of the Company, (D) you are no longer the Companys most senior financial officer, (E) the Company requires that your principal office be located outside of the Borough of Manhattan, or (F) the Company materially breaches its obligations to you under this Agreement, (2) you have given the Company written notice, referring specifically to this Agreement and definition, that you do not consent to such action, (3) the Company has not corrected such action within 15 days of receiving such notice, and (4) you voluntarily terminate your employment with the Company within 90 days following the happening of the action described in subsection (1) above.
11. This Agreement does not constitute a guarantee of employment for any definite period. Your employment is at will and may be terminated by you or the Company at any time, with or without notice or reason.
12. The Company may withhold from any payment due to you any taxes required to be withheld under any law, rule or regulation. If any payment otherwise due to you hereunder would result in the imposition of the excise tax imposed by Section 4999 of the Code, the Company will instead pay you either (i) such amount or (ii) the maximum amount that could be paid to you without the imposition of the excise tax, depending on whichever amount results in your receiving the greater amount of after-tax proceeds. In the event that the payments and benefits payable to you would be reduced as provided in the previous sentence, then such reduction will be determined in a manner which has the least economic cost to you and, to the extent the economic cost is equivalent, such payments or benefits will be reduced in the inverse order of when the payments or benefits would have been made to you ( i.e. later payments will be reduced first) until the reduction specified is achieved. If the Company elects to retain any accounting or similar firm to provide assistance in calculating any such amounts, the Company shall be responsible for the costs of any such firm.
13. It is intended that this Agreement will comply with Section 409A to the extent this Agreement is subject thereto, and that this Agreement shall be interpreted on a basis consistent with such intent. If and to the extent that any payment or benefit under this Agreement, or any plan, award or arrangement of the Company or its affiliates, constitutes non-qualified deferred
THE MADISON SQUARE GARDEN COMPANY
TWO PENNSYLVANIA PLAZA, NEW YORK, NY 10121-0091
TEL 212-465-6000
Ms. Victoria M. Mink
Page 6
compensation subject to Section 409A and is payable to you by reason of your termination of employment, then (a) such payment or benefit shall be made or provided to you only upon a separation from service as defined for purposes of Section 409A under applicable regulations and (b) if you are a specified employee (within the meaning of Section 409A as determined by the Company), such payment or benefit shall not be made or provided before the date that is six months after the date of your separation from service (or your earlier death). Any amount not paid or benefit not provided in respect of the six month period specified in the preceding sentence will be paid to you, together with interest on such delayed amount at a rate equal to the average of the one-year LIBOR fixed rate equivalent for the ten business days prior to the date of your employment termination, in a lump sum or provided to you as soon as practicable after the expiration of such six month period. Each payment or benefit provided under this Agreement shall be treated as a separate payment for purposes of Section 409A to the extent Section 409A applies to such payment.
14. To the extent you are entitled to any expense reimbursement from the Company that is subject to Section 409A, (i) the amount of any such expenses eligible for reimbursement in one calendar year shall not affect the expenses eligible for reimbursement in any other taxable year (except under any lifetime limit applicable to expenses for medical care), (ii) in no event shall any such expense be reimbursed after the last day of the calendar year following the calendar year in which you incurred such expense, and (iii) in no event shall any right to reimbursement be subject to liquidation or exchange for another benefit.
15. The Company will not take any action, or omit to take any action, that would expose any payment or benefit to you to the additional tax of Section 409A, unless (i) the Company is obligated to take the action under an agreement, plan or arrangement to which you are a party, (ii) you request the action, (iii) the Company advises you in writing that the action may result in the imposition of the additional tax and (iv) you subsequently request the action in a writing that acknowledges you will be responsible for any effect of the action under Section 409A. The Company will hold you harmless for any action it may take or omission in violation of this Paragraph 15, including any attorneys fees you may incur in enforcing your rights.
16. It is our intention that the benefits and rights to which you could become entitled in connection with termination of employment be exempt from or comply with Section 409A. If you or the Company believes, at any time, that any of such benefit or right is not exempt or does not comply, it will promptly advise the other and will negotiate reasonably and in good faith to amend the terms of such arrangement such that it complies (with the most limited possible economic effect on you and on the Company).
17. This Agreement is personal to you and without the prior written consent of the Company shall not be assignable by you. This Agreement shall inure to the benefit of and be enforceable by your legal representatives. This Agreement shall inure to the benefit of and be binding upon the Company and its successors and assigns. The rights or obligations of the Company under this
THE MADISON SQUARE GARDEN COMPANY
TWO PENNSYLVANIA PLAZA, NEW YORK, NY 10121-0091
TEL 212-465-6000
Ms. Victoria M. Mink
Page 7
Agreement may only be assigned or transferred pursuant to a merger or consolidation in which the Company is not the continuing entity, or the sale or liquidation of all or substantially all of the assets of Company; provided, however, that the assignee or transferee is the successor to all or substantially all of the assets of Company and such assignee or transferee assumes the liabilities and duties of Company, as contained in this Agreement, either contractually or as a matter of law.
18. To the extent permitted by law, you and the Company waive any and all rights to a jury trial with respect to any matter relating to this Agreement (including the covenants set forth in Annex A hereof). This Agreement will be governed by and construed in accordance with the law of the State of New York applicable to contracts made and to be performed entirely within that State.
19. Both the Company and you hereby irrevocably submit to the jurisdiction of the courts of the State of New York and the federal courts of the United States of America in each case located in the City of New York, Borough of Manhattan, solely in respect of the interpretation and enforcement of the provisions of this Agreement, and each party hereby waives, and agrees not to assert, as a defense that either party, as appropriate, is not subject thereto or that the venue thereof may not be appropriate. You and the Company each agree that mailing of process or other papers in connection with any such action or proceeding in any manner as may be permitted by law shall be valid and sufficient service thereof.
20. This Agreement may not be amended or modified otherwise than by a written agreement executed by the parties hereto or their respective successors and legal representatives. The invalidity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any other provision of this Agreement. It is the parties intention that this Agreement not be construed more strictly with regard to you or the Company.
21. This Agreement reflects the entire understanding and agreement of you and the Company with respect to the subject matter hereof and supersedes all prior understandings or agreements relating thereto.
22. This Agreement will automatically terminate, and be of no further force or effect, on the Scheduled Expiration Date; provided, however, that the provisions of Paragraphs 6 through 9, 12 through 22 and Annex A, and any amounts earned but not yet paid to you pursuant to the terms of this Agreement as of the Scheduled Expiration Date shall survive the termination of the Agreement and remain binding on you and the Company in accordance with their terms.
THE MADISON SQUARE GARDEN COMPANY
TWO PENNSYLVANIA PLAZA, NEW YORK, NY 10121-0091
TEL 212-465-6000
Ms. Victoria M. Mink
Page 8
Sincerely, |
THE MADISON SQUARE GARDEN COMPANY |
/s/ James L. Dolan |
By: James L. Dolan |
Title: Chief Executive Officer |
Accepted and Agreed: |
/s/ Victoria M. Mink |
Victoria M. Mink |
THE MADISON SQUARE GARDEN COMPANY
TWO PENNSYLVANIA PLAZA, NEW YORK, NY 10121-0091
TEL 212-465-6000
Ms. Victoria M. Mink
Page 9
ANNEX A
ADDITIONAL COVENANTS
(This Annex constitutes part of the Agreement)
You agree to comply with the following covenants in addition to those set forth in the Agreement.
1. CONFIDENTIALITY
You agree to retain in strict confidence and not divulge, disseminate, copy or disclose to any third party any Confidential Information, other than for legitimate business purposes of the Company and its subsidiaries. As used herein, Confidential Information means any non-public information that is material or of a confidential, proprietary, commercially sensitive or personal nature of, or regarding, the Company or any of its subsidiaries or any current or former director, officer or member of senior management of any of the foregoing (collectively Covered Parties). The term Confidential Information includes information in written, digital, oral or any other format and includes, but is not limited to (i) information designated or treated as confidential; (ii) budgets, plans, forecasts or other financial or accounting data; (iii) customer, guest, fan, vendor, sponsor, marketing affiliate or shareholder lists or data; (iv) technical or strategic information regarding the Covered Parties advertising, sports, entertainment, theatrical, or other businesses; (v) advertising, sponsorship, business, sales or marketing tactics, strategies or information; (vi) policies, practices, procedures or techniques; (vii) trade secrets or other intellectual property; (viii) information, theories or strategies relating to litigation, arbitration, mediation, investigations or matters relating to governmental authorities; (ix) terms of agreements with third parties and third party trade secrets; (x) information regarding employees, talent, players, coaches, agents, consultants, advisors or representatives, including their compensation or other human resources policies and procedures; (xi) information or strategies relating to any potential or actual business development transactions and/or any potential or actual business acquisition, divestiture or joint venture, and (xii) any other information the disclosure of which may have an adverse effect on the Covered Parties business reputation, operations or competitive position, reputation or standing in the community.
If disclosed, Confidential Information or Other Information could have an adverse effect on the Companys standing in the community, its business reputation, operations or competitive position or the standing, reputation, operations or competitive position of any of its affiliates, subsidiaries, officers, directors, employees, coaches, consultants or agents or any of the Covered Parties.
Notwithstanding the foregoing, the obligations of this section, other than with respect to subscriber information, shall not apply to Confidential Information which is:
a) already in the public domain or which enters the public domain other than by your breach of this Paragraph 1;
THE MADISON SQUARE GARDEN COMPANY
TWO PENNSYLVANIA PLAZA, NEW YORK, NY 10121-0091
TEL 212-465-6000
Ms. Victoria M. Mink
Page 10
b) disclosed to you by a third party with the right to disclose it in good faith; or
c) specifically exempted in writing by the Company from the applicability of this Agreement.
Notwithstanding anything elsewhere in this Agreement, including this Paragraph 1 and Paragraph 3 below, you are authorized to make any disclosure required of you by any federal, state and local laws or judicial, arbitral or governmental agency proceedings (including making truthful statements in connection with a judicial or arbitral proceeding to enforce your rights under this Agreement, to the extent reasonably required and made in good faith), after, to the extent legal and practicable, providing the Company with prior written notice and an opportunity to respond prior to such disclosure. In addition, this Agreement in no way restricts or prevents you from providing truthful testimony concerning the Company to judicial, administrative, regulatory or other governmental authorities.
2. NON-COMPETE
You acknowledge that due to your executive position in the Company and the knowledge of the Companys and its affiliates confidential and proprietary information which you will obtain during the term of your employment hereunder, your employment by certain businesses would be irreparably harmful to the Company and/or its affiliates. During your employment with the Company and thereafter through the first anniversary of the date on which your employment with the Company has terminated for any reason, you agree not to (other than with the prior written consent of the Company), become employed by any Competitive Entity (as defined below). A Competitive Entity shall mean any (i) any NHL or NBA team located in New York, New Jersey or Connecticut, or (ii) any arena or theater (with at least 1,000 seats) that competes in the same city as any of the Companys arenas or theaters, respectively. Additionally, the ownership by you of not more than 1% of the outstanding equity of any publicly traded company shall not, by itself, be a violation of this Paragraph.
3. ADDITIONAL UNDERSTANDINGS
You agree, for yourself and others acting on your behalf, that you (and they) have not disparaged and will not disparage, make negative statements about (either on the record or off the record) or act in any manner which is intended to or does damage to the good will of, or the business or personal reputations of the Company or any of its incumbent or former officers, directors, agents, consultants, employees, successors and assigns or any of the Covered Parties.
THE MADISON SQUARE GARDEN COMPANY
TWO PENNSYLVANIA PLAZA, NEW YORK, NY 10121-0091
TEL 212-465-6000
Ms. Victoria M. Mink
Page 11
The Company agrees that, except as necessary to comply with applicable law or the rules of the New York Stock Exchange or any other stock exchange on which the Companys stock may be traded (and any public statements made in good faith by the Company in connection therewith), it and its corporate officers and directors, employees in its public relations department or third party public relations representatives retained by the Company will not disparage you or make negative statements in the press or other media which are damaging to your business or personal reputation. In the event that the Company so disparages you or makes such negative statements, then notwithstanding the Additional Understandings provision to the contrary, you may make a proportional response thereto.
In addition, you agree that the Company is the owner of all rights, title and interest in and to all documents, tapes, videos, designs, plans, formulas, models, processes, computer programs,
inventions (whether patentable or not), schematics, music, lyrics and other technical, business, financial, advertising, sales, marketing, customer or product development plans, forecasts, strategies, information and materials (in any medium whatsoever) developed or prepared by you or with your cooperation in connection with your employment by the Company (the Materials). The Company will have the sole and exclusive authority to use the Materials in any manner that it deems appropriate, in perpetuity, without additional payment to you.
If requested by the Company, you agree to deliver to the Company upon the termination of your employment, or at any earlier time the Company may request, all memoranda, notes, plans, files, records, reports, and software and other documents and data (and copies thereof regardless of the form thereof (including electronic copies)) containing, reflecting or derived from Confidential Information or the Materials of the Company or any of its affiliates which you may then possess or have under your control. If so requested, you shall provide to the Company a signed statement confirming that you have fully complied with this Paragraph. Notwithstanding the foregoing, you shall be entitled to retain your contacts, calendars and personal diaries and any materials needed for your tax return preparation or related to your compensation.
In addition, you agree for yourself and others acting on your behalf, that you (and they) shall not, at any time, participate in any way in the writing or scripting (including, without limitation, any as told to publications) of any book, periodical story, movie, play, or other similar written or theatrical work or video that (i) relates to your services to the Company or any of its affiliates or (ii) otherwise refers to the Company or its respective businesses, activities, directors, officers, employees or representatives (other than identifying your biographical information), without the prior written consent of the Company.
THE MADISON SQUARE GARDEN COMPANY
TWO PENNSYLVANIA PLAZA, NEW YORK, NY 10121-0091
TEL 212-465-6000
Ms. Victoria M. Mink
Page 12
4. FURTHER COOPERATION
Following the date of termination of your employment with the Company (the Expiration Date), you will no longer provide any regular services to the Company or represent yourself as a Company agent. If, however, the Company so requests, you agree to cooperate fully with the Company in connection with any matter with which you were involved prior to the Expiration Date, or in any litigation or administrative proceedings or appeals (including any preparation therefore) where the Company believes that your personal knowledge, attendance and participation could be beneficial to the Company. This cooperation includes, without limitation, participation on behalf of the Company in any litigation or administrative proceeding brought by any former or existing Company employees, representatives, agents or vendors. The Company will pay you for your services rendered under this provision at the rate of $5,450 per day for each day or part thereof, within 30 days of the approval of the invoice therefor.
The Company will provide you with reasonable notice in connection with any cooperation it requires in accordance with this section and will take reasonable steps to schedule your cooperation in any such matters so as not to materially interfere with your other professional and personal commitments. The Company will reimburse you for any reasonable out-of-pocket expenses you reasonably incur in connection with the cooperation you provide hereunder as soon as practicable after you present appropriate documentation evidencing such expenses. You agree to provide the Company with an estimate of such expense before you incur the same.
5. NON-HIRE OR SOLICIT
You agree not to hire, seek to hire, or cause any person or entity to hire or seek to hire (without the prior written consent of the Company), directly or indirectly (whether for your own interest or any other person or entitys interest) any person who is or was in the prior six months an employee of the Company, or any of its subsidiaries, until the first anniversary of the date of your termination of employment with the Company. This restriction does not apply to any former employee who was discharged by the Company or any of its affiliates. In addition, this restriction will not prevent you from providing references. If you remain continuously employed with the Company through the Scheduled Expiration Date, then this agreement not to hire or solicit will expire on the Scheduled Expiration Date.
6. ACKNOWLEDGMENTS
You acknowledge that the restrictions contained in this Annex A, in light of the nature of the Companys business and your position and responsibilities, are reasonable and necessary to protect the legitimate interests of the Company. You acknowledge that the Company has no adequate remedy at law and would be irreparably harmed if you breach or threaten to breach the provisions of this Annex A, and therefore agree that the Company shall be entitled to injunctive relief, to prevent any breach or threatened breach of any of those provisions and to specific performance of the terms of each of such provisions in addition to any other legal or equitable remedy it may have. You further agree that you will not, in any equity proceeding relating to the enforcement of the provisions of this Annex A, raise the defense that the Company has an adequate remedy at law. Nothing in this Annex A shall be construed as prohibiting the Company from pursuing any other remedies at law or in equity that it may have or any other rights that it
THE MADISON SQUARE GARDEN COMPANY
TWO PENNSYLVANIA PLAZA, NEW YORK, NY 10121-0091
TEL 212-465-6000
Ms. Victoria M. Mink
Page 13
may have under any other agreement. If it is determined that any of the provisions of this Annex A or any part thereof, is unenforceable because of the duration or scope (geographic or otherwise) of such provision or because of applicable rules of professional responsibility, it is the intention of the parties that the duration or scope of such provision, as the case may be, shall be reduced so that such provision becomes enforceable and, in its reduced form, such provision shall then be enforceable and shall be enforced.
7. SURVIVAL
The provisions of this Annex A shall survive any termination of your employment by the Company or the expiration of the Agreement except as otherwise provided herein.
THE MADISON SQUARE GARDEN COMPANY
TWO PENNSYLVANIA PLAZA, NEW YORK, NY 10121-0091
TEL 212-465-6000
Exhibit 10.2
December 6, 2018
Donna Coleman
The Madison Square Garden Company
Two Pennsylvania Plaza
New York, NY 10121
Dear Donna:
As you know, your employment with MSG Sports & Entertainment, LLC ( MSG ) will end as a result of your retirement on March 31, 2019 (the Retirement Date ). We are prepared to provide you with certain Retirement Benefits (as defined in Section 2 below) as set forth in this Agreement (the Agreement ) in consideration of your executing, delivering and complying with the terms, conditions and obligations applicable to you under this Agreement. To receive the Retirement Benefits set forth in Section 2 below, you must return one originally signed copy of this Agreement to Shari Holtzman, Vice President Employment Law, at 2 Penn Plaza, 19 th Floor, New York, New York 10121 no later than December 27, 2018 . This Agreement shall become automatically null and void unless this Agreement is executed by you and returned to Shari Holtzman in accordance with the preceding sentence.
You acknowledge and agree that the Retirement Benefits being provided to you herein are in exchange for your promises, representations, releases, agreements and obligations contained herein and are valuable and sufficient consideration. Now, therefore, you and MSG agree as follows:
1. |
Transition/Retirement/Effect on Benefits |
(a) Transition/Retirement. MSG will continue your employment through March 31, 2019, unless terminated earlier by you as a result of your resignation or by MSG for Cause as defined below. Effective at the close of business on December 31, 2018, you shall step down as Chief Financial Officer of MSG, and between January 1, 2019 and March 31, 2019 your title shall be EVP Finance and you shall be available to provide transitional advice and assistance to your successor (which you may do remotely or in New York City, on occasion, as may be reasonably requested from time to time (in such case with reimbursement for reasonable travel expenses)). Your final date of employment shall be referred to herein as the Retirement Date . As of the Retirement Date, you will cease to accrue credit toward pension vesting or any other benefits.
(b) Cause. For purposes of this Agreement Cause shall mean your (i) commission of an act of fraud, embezzlement, misappropriation, willful misconduct, gross negligence or breach of fiduciary duty against the Company or an affiliate thereof, or (ii) commission of any act or omission that results in a conviction, plea of no contest, plea of nolo contendere , or imposition of unadjudicated probation for any crime involving moral turpitude or any felony.
(c) Compensation. Your existing annual base salary of One Million Two Hundred Thousand Dollars ($1,200,000) will continue through the Retirement Date.
THE MADISON SQUARE GARDEN COMPANY TWO PENNSYLVANIA PLAZA, NEW YORK, NY 10121-0091 |
(d) Retirement Plans. You will continue through the Retirement Date to be eligible to participate, vest and accrue benefits under the Madison Square Garden 401(k) Savings Plan; the MSG Sports & Entertainment, LLC Cash Balance Pension Plan; or any other benefit plan in which you are eligible to participate as a Company employee (the Plans ).
(e) Executive Compensation. Effective as of December 31, 2018, you will not be eligible to receive any new long-term incentive awards ( LTIP ).
(f) Termination. If your employment with MSG is terminated for Cause on or before December 31, 2018, you will not be entitled to any Retirement Benefits as set forth in Section 2 below.
(g) Return of Company Property. You acknowledge and agree that as of the Retirement Date, you will return to MSG all of the Companys (as defined in Section 3(a) below) property, including, without limitation, Confidential and Proprietary Information (as defined in Section 4(b) below), office keys, Company identification cards, access, press and other passes, and all documents, files, equipment, computers, laptops, printers, cell phones, monitors, telephones, BlackBerry or similar devices, smartphones or other personal electronic devices, fax machines, credit cards, computer software, flash drives, discs and access materials and other property prepared by, for or belonging to the Company (all of such property being referred to herein as Company Property ). Notwithstanding the foregoing, you are not required to return your Company-issued iPhone or the Company-issued computer located at your personal residence (subject to the removal of all Company information as of the Retirement Date). You acknowledge and agree that other than for Company business prior to the Retirement Date: (i) you have not and will not utilize the Company Property or make or retain any copies, duplicates, reproductions or excerpts of the Company Property, and (ii) you have not and will not access, utilize or affect in any manner, any of the Company Property, including, without limitation, its electronic communications systems or any information contained therein.
(h) Health Coverage. Your Company-sponsored medical, dental and/or vision coverage, if any, will cease as of the last day of the month in which the Retirement Date occurs. You may be eligible to obtain continuation coverage for a period of time thereafter pursuant to the federal COBRA statute by returning an election form and paying the required premiums on a timely basis. Further details regarding COBRA coverage and any necessary forms will be sent to you under separate cover after the Retirement Date.
(i) Life, Disability and AD&D Insurance. Your Company-sponsored life, long-term disability and accidental death and dismemberment ( AD&D ) insurance coverage, if any, will cease as of the Retirement Date. There is a thirty-one- (31-) day grace period after the Retirement Date during which you may convert your Company-sponsored life insurance and supplemental AD&D coverage to a private policy. You may continue to receive such coverage by completing the applicable notice of conversion privilege form (if requested by you) and complying with the applicable requirements. This form will be sent to you under separate cover after the Retirement Date.
(j) Retirement Plans. Any vested benefits that you may have accrued under the Plans, if any, will be payable after the Retirement Date in accordance with the terms of those Plans, as explained in the summary plan descriptions you have previously received. As of the Retirement Date, pursuant to the terms and conditions of the Plans, you will forfeit all benefits that are not vested as of the Retirement Date. You may obtain additional copies of the summary plan descriptions from the Corporate Benefits Department.
(k) Paid Time Off. You will be paid for any accrued and unused paid time off to which you may have been entitled under Company policies (and as limited thereby), if any, through the Retirement Date as soon as reasonably practicable after the Retirement Date.
THE MADISON SQUARE GARDEN COMPANY TWO PENNSYLVANIA PLAZA, NEW YORK, NY 10121-0091 |
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2. |
Retirement Benefits |
Subject to the terms and conditions contained in this Agreement, if you: (i) execute and deliver this Agreement to Shari Holtzman by the date set forth above, (ii) remain employed through at least December 31, 2018, and (iii) do not revoke this Agreement during the revocation period set forth in Section 10(a) below:
(a) Restricted Stock Units. (i) All of the time-based restrictions on each of your outstanding restricted stock unit awards granted to you under the plans of the Company shall immediately be eliminated, (ii) payment and deliveries with respect to your restricted stock units that are not subject to performance criteria or are subject to performance criteria that have previously been satisfied (as certified by the Compensation Committee) shall be made on March 31, 2019, and (iii) payments or deliveries with respect to your restricted stock units that are subject to performance criteria that have not yet been satisfied shall be made on the 90 th day after the applicable performance criteria is certified by the Compensation Committee as having been satisfied (if so certified).
(b) Bonus . You (or, in the event of your death, your estate) will remain eligible to receive a prorated bonus under the MSG Management Performance Incentive Plan ( MPIP ) with respect to the fiscal year ending June 30, 2019, despite you no longer being employed by MSG on the date on which such bonus would typically be paid. Such bonus will be calculated based on actual salary dollars earned during the fiscal year and based on your annual target bonus as well as Company and corporate unit performance, but without adjustment for your individual performance. In the event your employment is terminated by the Company without Cause prior to March 31, 2019, such bonus shall be calculated based on the salary you would have received from the beginning of the fiscal year through March 31, 2019. Such bonus will be paid to you in a lump sum, cash payment, subject to legally required withholding taxes and deductions, if and when bonuses are generally paid to other employees who are eligible to participate in the MPIP with respect to the fiscal year ending June 30, 2019.
(c) Additional Compensation. In the event your employment is terminated by the Company without Cause prior to March 31, 2019, you shall receive continuing payments representing the salary you would have received had your employment continued through March 31, 2019, paid to you in a manner consistent with the Companys regular payroll practices.
(d) No Other Retirement Benefits. For purposes of this Agreement, the retirement benefits set forth in this Section 2 shall be referred to as the Retirement Benefits. The Retirement Benefits represent a complete settlement, release and waiver of any claims for allegedly lost wages, benefits, bonuses, or other compensation, mental, physical or other personal injuries, pain and suffering, and costs in connection with any other relief you may seek or claim you may have against the Company. You agree that no other monies or relief are due to you, other than the payments provided for in this Agreement in consideration of your general release of all claims that you have, may have or may have had against the Releasees (as defined in Section 3(a) below).
3. |
Release |
(a) You, on behalf of yourself, your heirs, executors, administrators and/or assigns, do hereby release and discharge MSG, together with its direct and indirect parent corporations, subsidiaries, affiliates, joint ventures, partners, and related entities, past, present and future, and its or their predecessors, successors and assigns (collectively, the Company ), and its or their officers, directors, employees, consultants, agents, insurers, reinsurers, shareholders, representatives and assigns, past, present and future, (collectively with the Company, the Releasees ), of and from any and all legally waivable suits, debts, complaints, claims, liabilities, demands or causes of action, or any right to any other monetary recovery or personal relief, known or unknown,
THE MADISON SQUARE GARDEN COMPANY TWO PENNSYLVANIA PLAZA, NEW YORK, NY 10121-0091 |
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of whatever nature, which you, or any of your heirs, executors, administrators, and assigns ever had or now have against each or any of the Releasees, based upon or arising from any fact or set of facts, whether known or unknown to you, from the beginning of time to the date of execution of this Agreement, including, without limitation, any and all claims arising out of or relating to your employment by MSG or the Company, or the termination of your employment. Without limiting the generality of the foregoing, this Release includes any claim or right based upon or arising under any federal, state or local fair employment practices or equal opportunity laws, including, but not limited to, any and all claims under the Age Discrimination in Employment Act of 1967 ( ADEA ), the Older Workers Benefit Protection Act, Title VII of the Civil Rights Act of 1964, Section 1981 of the Civil Rights Act of 1870, the Americans with Disabilities Act, the Employee Retirement Income Security Act, the Worker Adjustment and Retraining Notification Act, the Family Medical Leave Act, the New York Human Rights Law, the New York Labor Law, the New York Executive Law, the New York Wage and Hour Laws, the New York Civil Rights Law, the New York City Human Rights Law, the Sarbanes-Oxley Act, each as amended, and any and all other federal, state or local statutory or common law claims, now or hereafter recognized, including but not limited to, any claims for economic loss, compensatory damages, punitive damages, liquidated damages, attorneys fees, expenses and costs.
(b) Notwithstanding the generality of the foregoing, nothing herein constitutes a release or waiver by you of: (i) any claim or right that may arise after the execution of this Agreement; (ii) your right to participate in or cooperate with a proceeding with any federal, state or local government agency enforcing discrimination laws; or (iii) any claim or right you may have under this Agreement.
(c) You further agree and covenant that should any person, organization, or other entity file, charge, claim, sue, or cause or permit to be filed any civil action, suit or legal proceeding, or if any person, organization, or other entity has filed, charged, claimed, sued, or caused or permitted to be filed any civil action, suit or legal proceeding, against any of the Releasees involving any matter occurring at any time in the past, you are not entitled to and will not seek or accept monetary relief in such civil action, suit or legal proceeding.
(d) You affirm that to the best of your knowledge you have reported to the Company in writing any work-related physical or mental injury, illness or impairment which you may have experienced.
4. |
Confidentiality |
(a) Agreement. Except as set forth in Section 6, you hereby agree to keep the existence and terms of this Agreement confidential and not to disclose them to any persons other than to your legal, financial and/or tax advisors or to members of your immediate family (all of whom shall also be bound by the foregoing confidentiality covenant) or as required by law, rule, regulation or judicial process. You agree not to issue any press release or public statement or otherwise disclose any matter arising in connection with this Agreement (other than as provided for herein), unless so issued or disclosed with the prior written consent of the Company. Notwithstanding the foregoing, you are expressly permitted to advise any potential employer or person or entity with whom/which you may enter into a business or other professional relationship that you are subject to the restrictive covenants and other obligations of this Agreement.
(b) Confidential and Proprietary Information. You hereby represent, warrant and agree that: (i) during the course of your employment, you have had access and will have access to Confidential and Proprietary Information (as defined below), (ii) you have not taken, nor shall you take at any time, including after the Retirement Date, any Confidential and Proprietary Information, and (iii) you shall retain in strict confidence and shall not use for any purpose whatsoever or divulge, disseminate, copy, disclose to any third party, or otherwise use any Confidential and Proprietary Information. As used in this Agreement, Confidential and Proprietary Information means any non-public information that is material or of a confidential, proprietary, commercially sensitive or personal nature of, or regarding, any of the Releasees (in any form including, without
THE MADISON SQUARE GARDEN COMPANY TWO PENNSYLVANIA PLAZA, NEW YORK, NY 10121-0091 |
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limitation, confidential or proprietary information which is written, digital, oral or in any other format), including, without limitation: (i) information designated or treated as confidential; (ii) budgets, plans, forecasts or other financial or accounting data; (iii) customer, guest, fan, vendor, sponsor, marketing affiliate or shareholder lists or data; (iv) technical or strategic information regarding the Releasees advertising, sports, entertainment, theatrical, or other businesses; (v) advertising, sponsorship, business, sales or marketing tactics, strategies or information; (vi) policies, practices, procedures or techniques; (vii) trade secrets or other intellectual property; (viii) information, theories or strategies relating to litigation, arbitration, mediation, investigations or matters relating to governmental authorities; (ix) terms of agreements with third parties and third party trade secrets; (x) information regarding employees, talent, players, coaches, agents, consultants, advisors or representatives, including their compensation or other human resources policies and procedures; (xi) information or strategies relating to any potential or actual business development transactions and/or any potential or actual business acquisition, divestiture or joint venture, and (xii) any other information the disclosure of which may have an adverse effect on the Releasees business reputation, operations or competitive position, reputation or standing in the community.
If disclosed, Confidential and Proprietary Information could have an adverse effect on the Companys standing in the community, its business reputation, operations or competitive position or the standing, reputation, operations or competitive position of any of its affiliates, subsidiaries, officers, directors, employees, coaches, consultants or agents or any of the Releasees.
Notwithstanding the foregoing, the obligations of this Section 4(b), other than with respect to subscriber information, shall not apply to Confidential and Proprietary Information which is: (a) already in the public domain or which enters the public domain other than by your breach of this Section; (b) disclosed to you by a third party with the right to disclose it in good faith; or (c) specifically exempted in writing by the Company from the applicability of this Agreement.
If requested by the Company, you agree to deliver to the Company upon your retirement, or at any earlier time the Company may request, all memoranda, notes, plans, files, records, reports, and software and other documents and data (and copies thereof regardless of the form thereof (including electronic copies)) containing, reflecting or derived from Confidential and Proprietary Information or the Materials (as defined in Section 5(b) below) of the Company or any of its affiliates which you may then possess or have under your control. If so requested, you shall provide to the Company a signed statement confirming that you have fully complied with this Section. Notwithstanding the foregoing, you shall be entitled to retain your contacts, calendars and personal diaries and any materials needed for your tax return preparation or related to your compensation.
5. |
Additional Understandings |
(a) Non-Disparagement. You agree, for yourself and others acting on your behalf, that you (and they) have not disparaged and will not disparage, make negative statements about (either on the record or off the record) or act in any manner which is intended to or does damage to the good will of, or the business or personal reputations of the Company or any of its incumbent or former officers, directors, agents, consultants, employees, successors and assigns or any of the Releasees. The Company agrees that, except as necessary to comply with applicable law or the rules of the New York Stock Exchange or any other stock exchange on which the Companys stock may be traded (and any public statements made in good faith by the Company in connection therewith), it and its corporate officers and directors, employees in its public relations department or third party public relations representatives retained by the Company will not disparage you or make negative statements in the press or other media which are damaging to your business or personal reputation. In the event that the Company so disparages you or makes such negative statements, then notwithstanding anything herein to the contrary, you may make a proportional response thereto.
THE MADISON SQUARE GARDEN COMPANY TWO PENNSYLVANIA PLAZA, NEW YORK, NY 10121-0091 |
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(b) Physical and Intellectual Property. You agree that the Company is the owner of all rights, title and interest in and to all documents, tapes, videos, designs, plans, formulas, models, processes, computer programs, inventions (whether patentable or not), schematics, music, lyrics and other technical, business, financial, advertising, sales, marketing, customer or product development plans, forecasts, strategies, information and materials (in any media whatsoever) developed or prepared by you or with your cooperation in connection with your employment by MSG or the Company (the Materials ). The Company will have the sole and exclusive authority to use the Materials in any manner that it deems appropriate, in perpetuity, without payment to you. You further agree not to utilize any Materials or other Company intellectual property (including, without limitation, any Company name, copyright, trademark, tradename, know-how, or patent) in violation of the Companys rights thereunder, in a manner that violates your other obligations hereunder, or in a manner that would reasonably be confused as your having a continued association with the Company.
(c) Publications. You agree for yourself and others acting on your behalf, that you (and they) shall not, at any time, participate in any way in the writing or scripting (including, without limitation, any as told to publications) of any book, article, periodical, periodical story, movie, play, other written or theatrical work, or video that (i) relates to your services to MSG or any of its affiliates or (ii) otherwise refers to the Company or its respective businesses, activities, directors, officers, employees or representatives (other than identifying your biographical information), without the prior written consent of the Company. You hereby acknowledge that no such consent has been provided.
6. |
Exception for Disclosure Pursuant to Law |
Nothing in this Agreement shall prohibit or restrict you from: (i) making any disclosure of information required or expressly protected by law, including providing truthful testimony if required to do so by court order or legal process; (ii) cooperating, participating or assisting in any investigation or proceeding brought by any federal, state or local regulatory or law enforcement agency or legislative body, any self-regulatory organization, or the Companys legal, compliance or human resources officers; or (iii) making any disclosure otherwise permitted by applicable law.
7. |
Further Cooperation |
Following the Retirement Date, you will no longer provide any regular services to the Company or represent yourself as a Company agent. If, after the Retirement Date, the Company so requests, you agree to cooperate fully with the Company in connection with any matter with which you were involved prior to the Retirement Date, or in any litigation or administrative proceedings or appeals (including any preparation therefor) where the Company believes that your personal knowledge, attendance and participation could be beneficial to the Company. This cooperation includes, without limitation, participation on behalf of the Company in any litigation or administrative proceeding brought by any former or existing Company employees, representatives, agents or vendors. The Company will pay you for your services rendered under this provision at the rate of $6,120 per day for each day or part thereof, within 30 days of the approval of the invoice therefor.
The Company will provide you with reasonable notice in connection with any cooperation it requires in accordance with this Section and will take reasonable steps to schedule your cooperation in any such matters so as not to materially interfere with your other professional and personal commitments. The Company will reimburse you for any reasonable out-of-pocket expenses you reasonably incur in connection with the cooperation you provide hereunder as soon as practicable after you present appropriate documentation evidencing such expenses. You agree to provide the Company with an estimate of such expense before you incur the same.
THE MADISON SQUARE GARDEN COMPANY TWO PENNSYLVANIA PLAZA, NEW YORK, NY 10121-0091 |
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8. |
Restrictive Covenants |
(a) Non-Competition. You acknowledge that due to your executive position in the Company and the knowledge of the Companys and its affiliates confidential and proprietary information which obtained during the term of your employment, your employment by certain businesses would be irreparably harmful to the Company and/or its affiliates. You agree for one (1) year after the Retirement Date not to (other than with the prior written consent of the Company), become employed by any Competitive Entity (as defined below). A Competitive Entity shall mean any (i) any NHL or NBA team located in New York, New Jersey or Connecticut, or (ii) any arena or theater (with at least 1,000 seats) that competes in the same city as any of the Companys arenas or theaters, respectively. Additionally, the ownership by you of not more than 1% of the outstanding equity of any publicly traded company shall not, by itself, be a violation of this Section 8(a).
(b) Non-Solicitation/Non-Hire. You agree not to hire, seek to hire, or cause any person or entity to hire or seek to hire (without the prior written consent of the Company), directly or indirectly (whether for your own interest or any other person or entitys interest) any person who is or was in the prior six months an employee of the Company, or any of its subsidiaries, until the first anniversary of the date of your termination of employment with the Company. This restriction does not apply to any former employee who was discharged by the Company or any of its affiliates. In addition, this restriction will not prevent you from providing references.
You acknowledge that these Non-Competition/Non-Solicitation/Non-Hire provisions are reasonable and necessary, and do not impose a greater restraint than necessary to protect the Companys legitimate business interests.
9. |
Right to Counsel/Voluntary Waiver |
The Company advises you to consult with a lawyer before executing this Agreement and you acknowledge that you: (i) have been provided with a period of at least twenty-one (21) days to do so, (ii) have read this Agreement (including, but not limited to, the Release in Section 3(a) above), (iii) fully understand the terms of this Agreement, and (iv) have executed this Agreement knowingly and voluntarily and without coercion, whether express or implied.
10. |
Revocation |
(a) Right to Revoke. You may revoke this Agreement within seven (7) days after the date on which you sign it. This Agreement will not be binding or enforceable until that seven- (7-) day period has expired. If you decide to revoke this Agreement, you must notify us of your revocation in a letter signed by you and received by Shari Holtzman no later than 5:00 p.m. on the seventh (7 th ) day after you signed this Agreement. A letter of revocation that is not received by the seventh (7 th ) day after you have signed the Agreement will be invalid and will not revoke this Agreement.
(b) Effective Date of Agreement. If you have not revoked this Agreement in accordance with this Section 10, the eighth (8 th ) day after the date on which you sign the Agreement shall be the Effective Date of the Agreement.
11. |
Choice of Law/Forum/Waiver of Jury Trial/Contract Interpretation/Indemnification |
(a) This Agreement shall be deemed to be made under, and in all respects shall be interpreted, construed and governed by and in accordance with, the laws of the State of New York without reference to its conflict of law principles.
THE MADISON SQUARE GARDEN COMPANY TWO PENNSYLVANIA PLAZA, NEW YORK, NY 10121-0091 |
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(b) You and the Company hereby irrevocably submit to the jurisdiction of the New York Supreme Court located in Manhattan and the United States District Court for the Southern District of New York solely in respect of the interpretation and enforcement of the provisions of this Agreement, and you and the Company hereby waive, and agree not to assert, as a defense that you or it are not subject thereto or that the venue thereof may not be appropriate. You and the Company hereby agree that mailing of process or other papers in connection with any such action or proceeding in any manner as may be permitted by law shall be valid and sufficient service thereof.
(c) You and the Company hereby waive any right to a jury trial on any issue in any controversy relating to, arising out of, pertaining to or affecting this Agreement, your employment by MSG or the Company, and/or the termination of your employment, including but not limited to, any federal or state statutory or common law claims, including, but not limited to, any right to a jury trial provided by statute, the Seventh Amendment to the United States Constitution, or any other authority.
(d) You agree that the language of all parts of this Agreement shall be construed as a whole, and according to their fair meaning and not strictly for or against you or the Company.
(e) To the extent you were covered by the Companys indemnification or D&O policies or any applicable law regarding indemnification during the term of your employment, any such indemnification and related rights with respect to such period will not be affected by the termination of your employment (except as may be provided by any applicable law). In addition, the terms and conditions the Indemnification Agreement between you and The Madison Square Garden Company, dated November 17, 2015, shall remain in full force and effect after the termination of your employment.
12. |
Additional Provisions |
(a) Breach of Agreement. You hereby acknowledge and agree that your breach or threatened breach of Sections 4, 5, 7 or 8 of this Agreement will cause irreparable harm to the Company for which monetary damages alone will not provide an adequate remedy. Accordingly, the Company, in addition to any other rights or remedies available to it under this Agreement or otherwise, will be entitled to an injunction to be issued by any court of competent jurisdiction restraining you from committing or continuing any violation of these provisions, without the necessity of showing actual damage and without any bond or other security being required.
(b) Withholdings. The Company may withhold from any payment due hereunder any taxes or other withholdings that are required to be withheld under any law, rule or regulation.
(c) Non-Admission of Liability. The parties agree and acknowledge that the agreement by MSG described herein, and the settlement and termination of any asserted or unasserted claims against any of the Releasees, are not and shall not be construed to be an admission of any violation of any federal, state or local statute or regulation, or of any duty owed, contractual or otherwise, by any of the Releasees to you.
(d) Entire Agreement. This Agreement sets forth the entire agreement of the parties concerning the subject matter, and supersedes any and all prior agreements, discussions, understandings, promises and expectations, except as provided in Section 11(e) above. This Agreement may be modified only by a written instrument signed by you and by MSG.
(e) Successors and Assigns. The provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns, provided that you may not assign this Agreement without the express written consent of MSG.
THE MADISON SQUARE GARDEN COMPANY TWO PENNSYLVANIA PLAZA, NEW YORK, NY 10121-0091 |
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(f) Severability. In the event any paragraph, section, sentence, provision, or clause of this Agreement, or portion thereof, shall be determined to be illegal, invalid, or unenforceable, the remainder of this Agreement, and the remainder of any such paragraph, section, sentence, provision, or clause shall not be affected and shall be given full effect without regard to the illegal, invalid or unenforceable portion, provided, however, if Section 3(a) above is held illegal, invalid or unenforceable, MSG shall be released from any obligations under Section 2.
(g) Counterparts . This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same agreement.
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Acknowledgments and Waivers Including Express Waiver Under the ADEA |
By signing below, you certify and acknowledge as follows:
(a) That you have read the terms of this Agreement, and that you understand their terms and effects, including the fact that under this Agreement you have agreed to RELEASE AND FOREVER DISCHARGE the Releasees from any legal action arising out of or relating to your employment by MSG or the Company, or the termination of your employment, up and through the date of your execution of this Agreement, including any and all claims relating to age discrimination under the ADEA;
(b) That you have signed this Agreement voluntarily and knowingly in exchange for the consideration described herein, which you acknowledge is adequate and satisfactory to you and which you acknowledge is in addition to any other benefits to which you are otherwise entitled;
(c) That you have been and are hereby advised in writing to consult with an attorney prior to signing this Agreement, and that you have been given an adequate opportunity to do so;
(d) That under this Agreement you do not waive rights or claims that may arise after the date this Agreement is executed;
(e) That MSG has provided you with a period of at least twenty-one (21) days within which to consider this Agreement, and that you have signed on the date indicated below after concluding that this Agreement is satisfactory to you;
(f) That if you choose to execute this Agreement before the expiration of the twenty-one- (21-) day period, you do so freely, voluntarily and with full knowledge of your rights; and
(g) That this Agreement may be revoked by you within seven (7) calendar days after you execute this Agreement, in accordance with Section 10(a) above, and it shall not become effective until the expiration of such seven- (7-) day revocation period.
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THE MADISON SQUARE GARDEN COMPANY TWO PENNSYLVANIA PLAZA, NEW YORK, NY 10121-0091 |
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We wish you luck in your future endeavors.
Sincerely yours, |
/s/ Sandra P. Kapell |
Sandra P. Kapell |
Executive Vice President, Chief Administrative Officer |
Accepted and Agreed to:
/s/ Donna Coleman |
Donna Coleman |
Date: December 10, 2018
THE MADISON SQUARE GARDEN COMPANY TWO PENNSYLVANIA PLAZA, NEW YORK, NY 10121-0091 |
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