<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON OCTOBER 8, 1999
REGISTRATION NO. 333-
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------------
FORM S-8
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
----------------
SFX ENTERTAINMENT, INC.
(Exact name of registrant as specified in its charter)
<TABLE>
<S> <C>
DELAWARE 13-977880
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
650 MADISON AVENUE
16TH FLOOR
NEW YORK, NEW YORK 10022
(Address of principal executive offices) (zip code)
</TABLE>
DIRECTOR DEFERRED STOCK OWNERSHIP PLAN
(Full title of the Plan)
ROBERT F.X. SILLERMAN
EXECUTIVE CHAIRMAN
SFX ENTERTAINMENT, INC.
650 MADISON AVENUE, 16TH FLOOR
NEW YORK, NEW YORK 10022
(Name and address of agent for service)
(212) 838-3100
(Telephone number, including area code, of agent for service)
----------------
CALCULATION OF REGISTRATION FEE
- --------------------------------------------------------------------------------
<TABLE>
<CAPTION>
PROPOSED PROPOSED
TITLE OF SECURITIES AMOUNT TO MAXIMUM OFFERING MAXIMUM AGGREGATE AMOUNT OF
TO BE REGISTERED (1) BE REGISTERED (1) PRICE PER SHARE (2) OFFERING PRICE (3) REGISTRATION FEE
<S> <C> <C> <C> <C>
Class A Common Stock,
$.01 par value per share.. 43,635 shares $32.875 $1,434,500 $398.79
</TABLE>
- --------------------------------------------------------------------------------
(1) Shares of Class A common stock of SFX Entertainment, Inc. (the "Company"
or "SFX"), par value $.01 per share (the "Class A Common Stock"), being
registered hereby relate to the SFX Entertainment, Inc. Director Deferred
Stock Ownership Plan (the "Plan"). Pursuant to Rule 416 promulgated under
the Securities Act of 1933, as amended (the "Securities Act"), there are
also being registered such additional shares of Class A Common Stock as
may become issuable pursuant to the anti-dilution provisions of the Plan.
(2) Based upon the average of the high and low prices of the Class A Common
Stock as reported on the New York Stock Exchange on October 6, 1999, in
accordance with Rule 457(c) under the Securities Act.
(3) This amount is the sum of the assumed aggregate price of the Class A
Common Stock being registered hereunder pursuant to the Plan, based upon
the average of the high and low prices of the Class A Common Stock as
reported on the New York Stock Exchange on October 6, 1999, in accordance
with Rule 457(a), (c) and (h) under the Securities Act.
In accordance with the provisions of Section 462 promulgated under the
Securities Act, this Registration Statement will become effective upon filing
with the Securities and Exchange Commission.
This Registration Statement, including all exhibits, contains 25 pages. The
exhibit index may be found on page II-7 of this Registration Statement.
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
The document(s) containing the information specified in Part I of Form S-8
will be sent or given to participants in the Director Deferred Stock Ownership
Plan (the "Plan") as specified by Rule 428(b)(1) of the Securities Act of 1933,
as amended (the "Securities Act"). Such documents are not being filed with or
included in this Form S-8 (by incorporation by reference or otherwise) in
accordance with the rules and regulations of the Securities and Exchange
Commission (the "SEC"). These documents and the documents incorporated by
reference into this Registration Statement pursuant to Item 3 of Part II of
this Registration Statement, taken together, constitute a prospectus that meets
the requirements of Section 10(a) of the Securities Act.
PART II
INFORMATION REQUIRED IN THIS REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The documents listed below are hereby incorporated by reference into this
Registration Statement. All documents subsequently filed by SFX pursuant to
Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), prior to the filing of a post-effective amendment
to the Registration Statement which indicates that all shares of Class A Common
Stock offered hereunder have been sold or which deregisters all shares then
remaining unsold, shall be deemed to be incorporated herein by reference and to
be a part hereof from the date of filing of such documents.
1. SFX's Annual Report on Form 10-K for the fiscal year ended December 31,
1998, filed on March 31, 1999.
2. SFX's Current Report on Form 8-K dated January 31, 1999.
3. The historical financial statements and related notes and audit reports
included on pages F-1 through F-142 in SFX's Current Report on Form 8-K
dated April 14, 1999.
4. SFX's Quarterly Report on Form 10-Q for the fiscal quarter ended March
31, 1999, filed on May 14, 1999.
5. SFX's Current Report on Form 8-K dated June 1, 1999.
6. SFX's Current Report on Form 8-K dated June 22, 1999.
7. SFX's Current Report on Form 8-K dated June 23, 1999.
8. SFX's Quarterly Report on Form 10-Q for the fiscal quarter ended June
30, 1999, filed on August 3, 1999.
9. SFX's Current Report on Form 8-K dated August 23, 1999.
10. SFX's Current Report on Form 8-K dated August 27, 1999.
11. SFX's Current Report on Form 8-K dated September 17, 1999, as
amended by SFX's Current Report on Form 8-K/A filed on September 30,
1999.
12. The description of SFX's Class A common stock contained in the
registration statement on Form 8-A filed on May 7, 1999.
Any statement contained in a document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified or superseded
for purposes of this Registration Statement to the extent that a statement
contained herein or in any subsequently filed document which also is or is
deemed to be incorporated by reference herein modifies or supersedes such
statement. Any such statement so modified or superseded shall not be deemed,
except as so modified or superseded, to constitute a part of this Registration
Statement.
II-1
<PAGE>
ITEM 4. DESCRIPTION OF SECURITIES
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 145 of the Delaware General Corporation Law empowers a Delaware
corporation to indemnify any person who is, or is threatened to be made, a
party to any threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative (other than an action
by or in the right of the corporation) by reason of the fact that the person is
or was an officer or director of the corporation, or is or was serving at the
request of the corporation as a director, officer, employee or agent of another
corporation or enterprise. The indemnity may include expenses (including
attorney's fees), judgments, fines and amounts paid in settlement actually and
reasonably incurred by the person in connection with the action, suit or
proceeding, provided that he acted in good faith and in a manner he reasonably
believed to be in or not opposed to the best interest of the corporation, and,
with respect to any criminal action or proceeding, had no reasonable cause to
believe his conduct was unlawful. Where an officer or director is successful on
the merits or otherwise in the defense of any action referred to above, the
corporation must indemnify him against the expenses which he actually and
reasonably incurred in connection therewith.
SFX's Certificate of Incorporation provides that no director of SFX will be
personally liable to SFX or its stockholders for monetary damages for breach of
fiduciary duty as a director, except for liability:
o for any breach of the director's duty of loyalty to SFX or its
stockholders;
o for acts or omissions not in good faith or which involve intentional
misconduct or a knowing violation of law;
o under Section 174 of the Delaware General Corporation Law; or
o for any transaction from which the director derived an improper
personal benefit.
In addition to the circumstances in which a director of SFX is not personally
liable as set forth above, no director will be liable to SFX or its stockholders
to such further extent as permitted by any law enacted after the date of SFX's
Certificate of Incorporation, including any amendment to the Delaware General
Corporation Law.
SFX's Certificate of Incorporation requires SFX to indemnify any person who
was, is, or is threatened to be made a party to any action, suit or proceeding,
by reason of the fact that he (a) is or was a director or officer of SFX or (b)
is or was serving at the request of SFX as a director, officer, partner,
venturer, proprietor, trustee, employee, agent, or similar functionary of
another corporation, partnership, joint venture, sole proprietorship, trust,
employee benefit plan, or other enterprise. This indemnification is to be to the
fullest extent permitted by Delaware law. The right to indemnification will be a
contract right and, as such, will run to the benefit of any director or officer
who is elected and accepts the position of director or officer of SFX or elects
to continue to serve as a director or officer of SFX while this provision of
SFX's Certificate of Incorporation is in effect. The right to indemnification
includes the right to be paid by SFX for expenses incurred in defending any such
action, suit or proceeding in advance of its final disposition to the maximum
extent permitted under Delaware law. If a claim for indemnification or
advancement of expenses is not paid in full by SFX within 60 days after a
written claim has been received by SFX, the claimant may, at any time
thereafter, bring suit against SFX to recover the unpaid amount of the claim
and, if successful in whole or in part, expenses of prosecuting his claim. It
will be a defense to any such action that the requested indemnification or
advancement of costs of defense are not permitted under Delaware law, but the
burden of proving this defense will be on SFX. The rights
II-2
<PAGE>
described above do not exclude any other right that any person may have or
acquire under any statute, by-law, resolution of stockholders or directors,
agreement or otherwise.
The Bylaws of SFX require SFX to indemnify its officers, directors,
employees and agents to the full extent permitted by Delaware law. The Bylaws
also require SFX to pay expenses incurred by a director in defending a civil or
criminal action, suit or proceeding by reason of the fact that he is/was a
director (or was serving at SFX's request as a director or officer of another
corporation) in advance of the final disposition of the action, suit or
proceeding, upon receipt of an undertaking by or on behalf of the director to
repay the advance if it ultimately is determined that the director is not
entitled to be indemnified by SFX as authorized by relevant sections of Delaware
law. The indemnification and advancement of expenses provided in the Bylaws are
not to be deemed exclusive of any other rights provided by any agreement, vote
of stockholders or disinterested directors or otherwise.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
ITEM 8. EXHIBITS
See Exhibit Index at page II-7.
ITEM 9. UNDERTAKINGS
1. The undersigned Registrant hereby undertakes:
(a) To file, during any period in which offers or sales are being made
of the securities registered hereby, a post-effective amendment to
this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of this Registration Statement (or the
most recent post-effective amendment thereof) which, individually
or in the aggregate, represent a fundamental change in the
information set forth in this Registration Statement;
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in this
Registration Statement or any material change to such information
in this Registration Statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) of this section do
not apply if the registration statement is on Form S-3, Form S-8 or Form F-3,
and the information required to be included in a post-effective amendment by
those paragraphs is contained in periodic reports filed with or furnished to
the SEC by the Registrant pursuant to Section 13 or Section 15(d) of the
Exchange Act that are incorporated by reference in this Registration Statement.
(b) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to
be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
(c) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
2. The undersigned Registrant hereby further undertakes that, for purposes
of determining any liability under the Securities Act, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to Section 15(d) of the Exchange Act) that is
incorporated by reference in this Registration Statement shall be deemed to be
a new registration statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof.
II-3
<PAGE>
3. Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the foregoing provisions, or otherwise, the Registrant
has been advised that in the opinion of the SEC such indemnification is against
public policy as expressed in the Securities Act and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the Registrant of expenses incurred or
paid by a director, officer or controlling person of the Registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the
matter has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such indemnification by it is
against public policy as expressed in the Securities Act and will be governed
by the final adjudication of such issue.
II-4
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of New York, State of New York on this 8th day of
October, 1999.
SFX ENTERTAINMENT, INC.
By: /s/ Howard J. Tytel
--------------------------------
Howard J. Tytel
Executive Vice President,
General Counsel and Secretary
Pursuant to the requirements of the Securities Act, this Registration
Statement has been signed by the following persons in their respective
capacities with the Registrant and on the dates indicated.
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Robert F.X. Sillerman and Howard J. Tytel and
each of them, his true and lawful attorneys-in-fact and agents, with full power
of substitution and resubstitution, for him and his name, place and stead, in
any and all capacities, to sign any and all Registration Statements, or any
amendments thereto, on Form S-8, or other appropriate form in order to register
interests in any plans for the benefit of the employees of SFX Entertainment,
Inc. (the "Registrant") and its subsidiaries pursuant to which the Registrant
intends to offer its Class A common stock, $.01 par value, to participants
under the Director Deferred Stock Ownership Plan and to file such registration
statements or amendments, with the SEC, granting unto said attorneys-in-fact
and agents full power and authority to do and perform each and every act and
thing requisite and necessary to be done in and about the premises, as fully to
all intents and purposes as he might or could do in person, hereby ratifying
and confirming all that said attorneys-in-fact and agents, or their substitute
or substitutes, may lawfully do or cause to be done by virtue hereof.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- --------------------------- ------------------------------------------------ ----------------
<S> <C> <C>
/s/ Robert F.X. Sillerman Executive Chairman, Member of the Office October 8, 1999
- ----------------------- of the Chairman and Director (principal
Robert F.X. Sillerman executive officer)
/s/ Michael G. Ferrel Director October 8, 1999
- -----------------------
Michael G. Ferrel
/s/ Brian Becker Director October 8, 1999
- -----------------------
Brian Becker
/s/ David Falk Director October 6, 1999
- -----------------------
David Falk
/s/ Howard J. Tytel Director October 8, 1999
- -----------------------
Howard J. Tytel
/s/ Thomas P. Benson Chief Financial Officer, Senior Vice President October 8, 1999
- ----------------------- and Director (principal financial and
Thomas P. Benson accounting officer)
/s/ Richard A. Liese Director October 8, 1999
- -----------------------
Richard A. Liese
/s/ D. Geoffrey Armstrong Director October 8, 1999
- -----------------------
D. Geoffrey Armstrong
/s/ James F. O'Grady, Jr. Director October 5, 1999
- -----------------------
James F. O'Grady, Jr.
/s/ Paul Kramer Director October 8, 1999
- -----------------------
Paul Kramer
/s/ Edward F. Dugan Director October 8, 1999
- -----------------------
Edward F. Dugan
/s/ John D. Miller Director October 8, 1999
- -----------------------
John D. Miller
</TABLE>
II-5
<PAGE>
EXHIBIT INDEX
EXHIBIT
NUMBER DESCRIPTION
- -------- ---------------------------------------------------------------
4.1 SFX Entertainment, Inc. Director Deferred Stock Ownership Plan
5.1 Opinion of Winston & Strawn
23.1 Consent of Winston & Strawn (included in Exhibit 5.1 hereto)
23.2 Consent of Ernst & Young LLP
23.3 Consent of Arthur Andersen LLP
23.4 Consent of PricewaterhouseCoopers LLP
23.5 Consent of Deloitte & Touche
23.6 Consent of Smith Partnership
24.1 Power of Attorney (included on Page II-6)
II-6
<PAGE>
Exhibit 4.1
-----------
SFX ENTERTAINMENT, INC.
DIRECTOR DEFERRED STOCK OWNERSHIP PLAN
AS AMENDED AND RESTATED
EFFECTIVE JUNE 1, 1999
1. NAME OF PLAN. This plan shall be known as the "SFX Entertainment, Inc.
Director Deferred Stock Ownership Plan" and is hereinafter referred to as the
"Plan."
2. PURPOSES OF PLAN. The purposes of the Plan are to enable SFX
Entertainment, Inc., a Delaware corporation (the "Company"), to attract and
retain qualified persons to serve as Directors, to enhance the equity interest
of Directors in the Company, to solidify the common interests of its Directors
and stockholders, and to encourage the highest level of Director performance by
providing such Directors with an ongoing proprietary interest in the Company's
performance and progress, by crediting them quarterly with notional shares of
the Company's Class A Common Stock, par value $.01 per share (the "Common
Stock").
3. EFFECTIVE DATE AND TERM. The Plan shall be effective as of January 1,
1998. The Plan shall remain in effect until terminated by action of the Board,
or until no shares of Common Stock remain available under the Plan, if earlier.
4. DEFINITIONS. The following terms shall have the meanings set forth
below:
"Beneficiary" means the person or legal entity the Participant designates
in accordance with Section 7(d) to receive payments under the Plan after the
Participant's death.
"Change of Control" means any of the following events:
(a) The acquisition (other than from the Company) by any person, entity or
"group", within the meaning of Section 13(d)(3) or 14(d)(2) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), (excluding, for this
purpose, the Company or its subsidiaries, or any employee benefit plan of the
Company or its subsidiaries, or Robert F.X. Sillerman or any of his affiliates)
of beneficial ownership (within the meaning of Rule 13d-3 promulgated under the
Exchange Act) of 30% or more of either the then outstanding shares of Common
Stock or the combined voting power of the Company's then outstanding voting
securities entitled to vote generally in the election of directors; or
(b) Individuals who, as of the date hereof, constitute the Board of
Directors (as of the date hereof the "Incumbent Board") cease for any reason to
constitute at least a majority of the Board of Directors, provided that any
person becoming a Director subsequent to the date hereof whose election, or
nomination for election by the Company's shareholders, was approved by a vote of
at least a majority of the Directors then comprising the Incumbent Board (other
than an election or nomination of an individual whose initial assumption of
office is in connection with an actual or threatened election contest relating
to the election of the Directors of the Company, as such terms are used in Rule
l4a-11 of Regulation 14A promulgated under the Exchange Act) shall be, for
purposes of this Plan, considered as though such person were a member of the
Incumbent Board; or
(c) Approval by the stockholders of the Company of a reorganization,
merger, or consolidation, in each case, with respect to which persons who were
the stockholders of the Company immediately prior to such reorganization, merger
or consolidation do not, immediately thereafter, own, directly or indirectly,
more than 50% of the combined voting power entitled to vote generally in the
election of Directors of the reorganized, merged or consolidated company's then
outstanding voting securities, or a liquidation or dissolution of the Company or
of the sale of all or substantially all of the assets of the Company.
(d) "Change of Control Consideration" means, with respect to each share of
Common Stock credited to a Deferred Stock Account, (i) the amount of any cash,
plus the value of any securities and other noncash consideration, constituting
the highest consideration per share of Common Stock paid to any shareholder in
the transaction or series of transactions that results in a Change of Control or
(ii) if no consideration per share of Common Stock is paid to any shareholder in
the transaction or series of
<PAGE>
transactions that results in a Change of Control, the highest reported sales
price, regular way, of a share of Common Stock in any transaction reported on
the Nasdaq Stock Market or on any national exchange on which such shares are
listed during the 60-day period prior to and including the date of a Change of
Control. To the extent that such consideration consists all or in part of
securities or other noncash consideration, the value of such securities or other
noncash consideration shall be determined by the Committee in good faith.
"Committee" means the committee that administers the Plan, as more fully
defined in Section 12.
"Common Stock" has the meaning set forth in Section 2.
"Company" has the meaning set forth in Section 2.
"Deferred Stock Account" means a bookkeeping account maintained by the
Company for a Director representing an unfunded and unsecured promise to deliver
the shares credited to such account pursuant to Section 6.
"Delivery Date" has the meaning set forth in Section 7(a).
"Director" means an individual who is a member of the Board of Directors of
the Company.
"Dividend Equivalent" for a given dividend or distribution means the
fraction of a share of Common Stock (rounded to the nearest one-thousandth) with
a value based on the closing sales price of a share of Common Stock on the date
immediately preceding the payment date for such dividend, equal to the amount of
cash, plus the fair market value on the date of distribution of any property,
that is distributed with respect to one share of Common Stock pursuant to such
dividend or distribution.
"Participant" has the meaning set forth in Section 5.
"Plan Year" means each twelve month period beginning on June 1, 1998, and
ending on the following May 31.
"Plan Quarter" means each of the three month periods of a Plan Year
beginning on June 1, September 1, December 1, and March 1; provided, that the
last Plan Quarter with respect to a Director who ceases to be a Participant
during a Plan Quarter shall begin on the first day of such Plan Quarter and end
on the day such Director ceases to be a Participant.
"Share Amount" means fifty percent (50%) of a Director's quarterly
retainer, or such larger percentage that a Director elects, that is payable in
shares of Common Stock under the Plan.
The "Value" of a share of Common Stock as of the first day of a given Plan
Quarter shall mean the closing price of a share of Common Stock on the last
trading day of the immediately preceding Plan Quarter as reported on the Nasdaq
National Market System (or, if the Common Stock is not listed on the Nasdaq
National Market System, on any national securities exchange on which the Common
Stock is listed).
5. ELIGIBLE PARTICIPANTS. Each individual who is a non-employee Director on
January 1, 1998, and each individual who becomes a Director of, but is not
otherwise employed by, the Company or any of its subsidiaries thereafter, during
the term of the Plan, shall be a participant ("Participant") in the Plan, in
each case during such period as such individual remains a Director. After a
Participant has ceased to be a Director, and until delivery of all the shares
credited to his or her a Deferred Stock Account, the individual shall become an
inactive Participant ("Inactive Participant").
6. ACCOUNTS, CREDIT OF SHARES. (a) The Company shall maintain a Deferred
Stock Account for each Participant. As part of the compensation payable to each
Participant for service on the Board, the Deferred Stock Account of each
Participant shall be credited with notional shares of Common Stock as set forth
in this Section 6.
(b) The Deferred Stock Account of each of the three Participants as of
January 1, 1998 shall be credited as of such date with five thousand four
hundred and fifty-five (5,455) shares of Common Stock, representing the retainer
for such Participants payable through May 31, 1999.
<PAGE>
(c) At least ten days prior to the beginning of each Plan Year beginning on
and after June 1, 1999, each Participant shall provide the Company with a
written notice setting forth the Share Amount which such Director elects to have
payable in shares of Common Stock pursuant to the Plan. In the event that a
Participant does not make such an election prior to the ten days before a
particular Plan Year, then the Share Amount with respect to such Participant
shall be equal to fifty percent (50%) of such Participant's quarterly retainer.
A Participant may amend his or her Share Amount for subsequent Plan Quarters by
providing the Company with written notice of the amended Share Amount at least
ten days prior to any Plan Quarter.
(d) In the event that a Director ceases to be a Participant during the
first Plan Year or any subsequent Plan Quarter, the number of shares credited to
the Director's Deferred Stock Account shall be not be reduced or forfeited,
regardless of the fact that the Director did not serve the Company for the
entire Plan Year or Plan Quarter, whichever shall apply.
(e) As of the first day of each Plan Quarter beginning on and after June 1,
1998, each Deferred Stock Account that has not, as of such date, been delivered
in full pursuant to Section 7 shall be credited with a number of shares equal
to:
(i) the number of notional shares of Common Stock having a Value equal to
the Share Amount for such Plan Quarter; plus
(ii) the number of notional shares equal to (A) the number of notional
shares of Common Stock credited as of the last day of the prior Plan Quarter
reduced by (B) the number of notional shares of Common Stock that were
actually delivered during the immediately preceding Plan Quarter to the
Director (or his or her Beneficiary, estate or legal guardian, as applicable)
before the record date for dividends or distributions in such prior Plan
Quarter, multiplied by (C) the Dividend Equivalent for each dividend paid or
other distribution made with respect to the Common Stock, the record date for
which occurred during such preceding Plan Quarter and at a time when such
individual was a Participant or an Inactive Participant.
(f) The Deferred Stock Account shall represent only an unsecured and
unfunded promise by the Company to deliver shares of Common Stock in the future
under the terms of the Plan.
7. DELIVERY OF SHARES. (a) Unless the Director has made either one or both
elections described in Sections 7(b) and 7(c) below, shares of Common Stock
equal to the notional shares credited to a Director's Deferred Stock Account
shall be delivered as soon as practicable after (i) June 1, 1999 for the number
of notional shares of Common Stock credited pursuant to Section 6(b), as
adjusted pursuant to Section 6(d), (ii) for all other notional shares, the date
which is twelve (12) months from the first day of the Plan Quarter as of which
such notional shares were initially credited to such Director's Deferred Stock
Account, or (iii) the date the Director ceases to be a Director for any reason
if that is earlier (the "Delivery Date"); provided, however, that if the number
of shares so credited includes a fractional share, such number shall be rounded
to the nearest whole number of shares.
(b) Except as otherwise provided in Section 7(c) below, and subject to
Section 11 below, a Director may make an irrevocable election in writing on the
form attached hereto as Appendix I to receive delivery of the shares of Common
Stock on the date that is between two (2) years and five (5) years after the
first day of the Plan Quarter as of which such notional shares were initially
credited to such Director's Deferred Stock Account or following the date of the
Director's death, if that occurs earlier. Any such election must be made at
least ten (10) days in advance of the Plan Quarter in which such notional shares
were initially credited to the Deferred Stock Account of the electing Director.
(c) Subject to Section 11 below, a Participant whose Deferred Stock Account
was credited with five thousand four hundred and fifty-five (5,455) shares of
Common Stock as of January 1, 1998 pursuant to Section 6(b) above may make an
irrevocable election in writing not later than December 31, 1998 on the form
attached hereto as Appendix 2 to defer delivery of such shares to a date that is
between one (1) year and four (4) years after the Delivery Date that would
otherwise occur pursuant to Section 7(a) above or following the date of the
Director's death, if that occurs earlier.
(d) Each Director may, by written notice to the Committee, designate any
person or legal entity as the Director's Beneficiary to receive payments upon
the Director's death. A Director may revoke or change the Beneficiary
designation at any time by written notice to the Committee. The last such
designation received by the Committee shall control any prior designation;
provided, however, that no designation shall be effective unless received by the
Committee prior to a Director's death. The form of notice to designate a
Beneficiary or change a Beneficiary shall be prescribed by the Committee. If the
Director does not designate a Beneficiary, then any shares that are to be
delivered after the Director has died or become legally incompetent shall be
delivered to the
<PAGE>
Director's estate or legal guardian, as the case may be. References to a
Director, Participant or Inactive Participant in this Plan shall be deemed to
refer to the Director's Beneficiary, estate or legal guardian, where
appropriate.
8. SHARE CERTIFICATES; VOTING AND OTHER RIGHTS. The certificates for shares
delivered to a Director pursuant to Section 7 above shall be issued in the name
of the Director, and the Director shall be entitled to all rights of a
shareholder with respect to Common Stock for all such shares issued in his or
her name, including the right to vote the shares, and the Director shall receive
all dividends and other distributions paid or made with respect thereto.
9. GENERAL RESTRICTIONS. (a) Notwithstanding any other provision of the
Plan or agreements made pursuant thereto, the Company shall not be required to
issue or deliver any certificate or certificates for shares of Common Stock
under the Plan prior to fulfillment of all of the following conditions:
(i) Listing or approval for listing upon official notice of issuance of
such shares on the Nasdaq Stock Market, or such other securities exchange as
such shares of Common Stock shall trade;
(ii) Any registration or other qualification of such shares under any state
or federal law or regulation, or the maintaining in effect of any such
registration or other qualification which the Committee shall, in its
absolute discretion upon the advice of counsel, deem necessary or advisable;
and
(iii) Obtaining any other consent, approval, or permit from any state or
federal governmental agency which the Committee shall, in its absolute
discretion after receiving the advice of counsel, determine to be necessary
or advisable.
(b) Nothing contained in the Plan shall prevent the Company from adopting
other or additional compensation arrangements for the Participants.
(c) No Common Stock delivered to a Director pursuant to the Plan may be
sold until at least six months after the Delivery Date; provided, however, that
the six month period shall not apply to any person not subject to the reporting
requirement of Section 16(a) of the U.S. Security and Exchange Act of 1934.
10. SHARES AVAILABLE. Subject to Section 11 below, the maximum number of
notional shares of Common Stock which may be credited to Deferred Stock Accounts
pursuant to the Plan is 40,000. Shares of Common stock issuable under the Plan
may be taken from authorized but unissued or treasury shares of the Company or
purchased on the open market.
11. CHANGE IN CAPITAL STRUCTURE; CHANGE OF CONTROL. (a) In the event that
there is, at any time after the Board adopts the Plan, any change in the Common
Stock by reason of any stock dividend, stock split, combination of shares,
exchange of shares, warrants or rights offering to purchase Common Stock at a
price below its fair market value, reclassification, recapitalization, merger,
consolidation, spin-off or other change in capitalization of the Company,
appropriate adjustment shall be made in the number and kind of notional shares
or other property subject to the Plan and the number and kind of shares or other
property held in the Deferred Stock Accounts, and any other relevant provisions
of the Plan by the Committee, whose determination shall be binding and
conclusive on all persons.
(b) Without limiting the generality of the foregoing, and notwithstanding
any other provision of this Plan, in the event of a Change of Control, the
following shall occur on the date of the Change of Control (the "Change of
Control Date"): (i) the last day of the then current Plan Quarter shall be
deemed to occur on the Change of Control Date; (ii) the Company shall
immediately pay to each Director in a lump sum the Change of Control
Consideration multiplied by the number of notional shares of Common Stock held
in each Director's Deferred Stock Account immediately before such Change of
Control (including notional shares of Common Stock credited to each Directors
Deferred Stock Account as a result of the Change of Control); and (iii) the Plan
shall be terminated.
(c) If the notional shares of Common Stock credited to the Deferred Stock
Accounts are converted pursuant to this Section 11 into another form of
property, references in the Plan to the Common Stock shall be deemed, where
appropriate, to refer to such other form of property, with such other
modifications as may be required for the Plan to operate in accordance with its
purposes. Without limiting the generality of the foregoing, references to
delivery of certificates for shares of Common Shares shall be deemed to refer to
delivery of cash and the incidents of ownership of any other property held in
the Deferred Stock Accounts.
<PAGE>
12. ADMINISTRATION; AMENDMENT. (a) The Plan shall be administered by a
committee consisting of directors who are not eligible to participate in the
Plan (the "Committee"), which shall have full authority to construe and
interpret the Plan, to establish, amend and rescind rules and regulations
relating to the Plan, and to take all such actions and make all such
determinations in connection with the Plan as it may deem necessary or
desirable.
(b) The Board may from time to time make such amendments to the Plan as it
may deem proper and in the best interest of the Company. No amendment to the
Plan shall be made more than once in any six-month period that would change the
amount, price or timing of the grants of Common Stock hereunder other than to
comport with changes in the Internal Revenue Code of 1986, as amended, or the
regulations thereunder.
(c) The Board may terminate the Plan at any time.
(d) Notwithstanding any other provision of the Plan, neither the Board nor
the Committee shall be authorized to exercise any discretion with respect to the
selection of persons to receive credits of notional shares of Common Stock under
the Plan or concerning the amount or timing of such credits under the Plan, and
no amendment or termination of the Plan shall adversely affect any Director's
Deferred Stock Account without that Director's express written consent.
13. MISCELLANEOUS. (a) Nothing in the Plan shall be deemed to create any
obligation on the part of the Board to nominate any Director for reelection by
the Company's shareholders or to limit the rights of the shareholders to remove
any Director.
(b) The Company shall have the right to require, prior to the issuance or
delivery of any shares of Common Stock pursuant to the Plan, that a Director
make arrangements satisfactory to the Committee for the withholding of any taxes
required by law to be withheld with respect to the issuance or delivery of such
shares, including without limitation by the withholding of shares that would
otherwise be so issued or delivered, by withholding from any other payment due
to the Director, or by a cash payment to the Company by the Director.
14. GOVERNING LAW. The Plan and all actions taken thereunder shall be
governed by and construed in accordance with the laws of the State of Delaware.
<PAGE>
Exhibit 5.1
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[Letterhead of Winston & Strawn]
October 8, 1999
SFX Entertainment, Inc.
650 Madison Avenue
New York, New York 10022
Re: Registration Statement on Form S-8 of SFX Entertainment, Inc.
Relating to Director Deferred Stock Ownership Plan
Ladies and Gentlemen:
We have acted as special counsel to SFX Entertainment, Inc., a Delaware
corporation (the "Company"), in connection with the registration on Form S-8 of
43,635 shares (the "Shares") of Class A Common Stock, par value $.01 per share
(the "Class A Common Stock"), of the Company under the Company's Director
Deferred Stock Ownership Plan (the "Plan").
This opinion letter is delivered in accordance with the requirements of
Item 601(b)(5) of Regulation S-K under the Securities Act of 1933, as amended
(the "Act"). In connection with this opinion letter, we have examined and are
familiar with originals or copies, certified or otherwise identified to our
satisfaction, of (i) the Registration Statement relating to the Shares to be
filed with the Securities and Exchange Commission (the "Commission") on October
8, 1999 (the "Registration Statement"), (ii) the Amended and Restated
Certificate of Incorporation, as currently in effect, of the Company, (iii) the
By-laws, as currently in effect, of the Company, and (iv) resolutions of the
Board of Directors of the Company relating to, among other things, the issuance
and sale of the Shares and the filing of the Registration Statement. We have
also examined such other documents as we have deemed necessary or appropriate as
a basis for the opinions set forth below.
In our examination, we have assumed the legal capacity of all natural
persons, the genuineness of all signatures, the authenticity of all documents
submitted to us as certified or photostatic copies, and the authenticity of the
originals of such latter documents. As to any facts material to this opinion
letter which we did not independently establish or verify, we have relied upon
oral or written statements and representations of officers and other
representatives of the Company and others.
Based upon and subject to the foregoing, we are of the opinion that the
Shares, when issued and delivered in accordance with the terms and conditions of
the Plan and upon receipt by the Company of the full consideration for the
Shares as determined pursuant to the Plan, shall be legally issued, fully paid
and non-assessable.
We hereby consent to the filing of this opinion letter with the Commission
as an exhibit to the Registration Statement. In giving such consent, we do not
concede that we are experts within the meaning of the Act or the rules and
regulations thereunder or that this consent is required by Section 7 of the Act.
Very truly yours,
/s/ Winston & Strawn
<PAGE>
Exhibit 23.2
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Consent of Independent Auditors
We consent to the incorporation by reference of our reports dated: (i) February
25, 1999 with respect to the consolidated financial statements of SFX
Entertainment, Inc. and (ii) October 2, 1997 with respect to the consolidated
financial statements of Delsener/Slater Enterprises, Ltd. and Affiliated
Companies, included in the SFX Entertainment, Inc. Form 10-K for the year ended
December 31, 1998 filed with the Securities and Exchange Commission and to the
incorporation by reference of our reports dated: (i) December 13, 1996 with
respect to the consolidated financial statements of PACE Entertainment
Corporation and Subsidiaries, (ii) May 22, 1998 with respect to the combined
financial statements of the Contemporary Group, (iii) November 20, 1997 with
respect to the combined financial statements of The Album Network, Inc. and
Affiliated Companies, (iv) March 20, 1998 with respect to the consolidated
financial statements of BG Presents, Inc. and Subsidiaries, (v) March 13, 1998
with respect to the combined financial statements of Concert/Southern Promotions
and Affiliated Companies, (vi) April 10, 1998 with respect to the combined
financial statements of Falk Associates Management Enterprises, Inc., (vii) May
1, 1998 with respect to the combined financial statements of Blackstone
Entertainment LLC, (viii) March 5, 1998 with respect to the consolidated
financial statements of The Marquee Group, Inc. and Subsidiaries, (ix) May 21,
1998 with respect to the combined financial statements of Alphabet City Sports
Records, Inc. and Alphabet City Industries, Inc., (x) June 3, 1998 with respect
to the consolidated financial statements of Cambridge Holding Corporation, Inc.
and (xi) July 6, 1998 with respect to the combined financial statements of
Tollin-Robbins Entertainment, included in the SFX Entertainment, Inc. Form 8-K
dated April 14, 1999 filed with the Securities and Exchange Commission, in the
Registration Statement (Form S-8) pertaining to the 1999 Stock Option and
Restricted Stock Plan of SFX Entertainment, Inc. and the Registration Statement
(Form S-8) pertaining to the Director Deferred Stock Ownership Plan of SFX
Entertainment, Inc.
/s/ Ernst & Young
New York, New York
October 6, 1999
<PAGE>
Exhibit 23.3
------------
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this registration statement of SFX Entertainment, Inc. of our
reports on the consolidated financial statements of PACE Entertainment
Corporation and subsidiaries dated December 15, 1997 (except with respect to the
matters discussed in Note 12, as to which the date is December 22, 1997) and the
Pavilion Partners dated December 15, 1997 (except with respect to the matters
discussed in Note 11, as to which the date is December 22, 1997) which appears
in the Current Report on Form 8-K of SFX Entertainment, Inc. dated April 14,
1999.
/s/ ARTHUR ANDERSEN LLP
ARTHUR ANDERSEN LLP
Houston, Texas
October 6, 1999
<PAGE>
Exhibit 23.4
------------
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of SFX Entertainment, Inc. of our report dated December
12, 1996, relating to the financial statements of Pavilion Partners, which
appears in the Current Report on Form 8-K of SFX Entertainment, Inc. dated April
14, 1999.
/s/ PricewaterhouseCoopers LLP
PricewaterhouseCoopers LLP
Houston, Texas
October 7, 1999
<PAGE>
Exhibit 23.5
------------
CONSENT OF INDEPENDENT AUDITORS
We consent to the use of our joint report dated July 27, 1999 with respect to
the financial statements of Apollo Leisure Group plc as of November 28, 1998 and
for each of the two years then ended incorporated by reference in the
Registration Statement and related Prospectus on Form S-8 to be filed by SFX
Entertainment, Inc., with respect to its 1999 Stock Option and Restricted Stock
Plan and in the Registration Statement and related Prospectus on form S-8 to be
filed by SFX Entertainment, Inc., with respect to its Directors' Deferred Stock
Ownership Plan.
/s/ Deloitte & Touche
Deloitte & Touche
Chartered Accountants
Bracknell, England
October 6, 1999
<PAGE>
Exhibit 23.6
------------
CONSENT OF INDEPENDENT AUDITORS
We consent to the use of our joint report dated July 27, 1999 with respect to
the financial statements of Apollo Leisure Group plc as of November 28, 1998 and
for each of the two years then ended incorporated by reference in the
Registration Statement and related Prospectus on Form S-8 to be filed by SFX
Entertainment, Inc., with respect to its 1999 Stock Option and Restricted Stock
Plan and in the Registration Statement and related Prospectus on form S-8 to be
filed by SFX Entertainment, Inc., with respect to its Directors' Deferred Stock
Ownership Plan.
/s/ Smith Partnership
Smith Partnership
Chartered Accountants
Manchester, England
October 6, 1999
