EX-10.4 6 d900301dex104.htm EX-10.4 EX-10.4

Exhibit 10.4

EMPLOYEE MATTERS AGREEMENT

BY AND BETWEEN

THE MADISON SQUARE GARDEN COMPANY

(TO BE RENAMED MADISON SQUARE GARDEN SPORTS CORP.)

AND

MSG ENTERTAINMENT SPINCO, INC.

(TO BE RENAMED MADISON SQUARE GARDEN ENTERTAINMENT CORP.)

Dated as of March 31, 2020

TABLE OF CONTENTS

 

          Page  
ARTICLE I

 

DEFINITIONS

 

Section 1.1

    Definitions      1  

Section 1.2

    General Interpretive Principles      8  
ARTICLE II

 

GENERAL PRINCIPLES

 

Section 2.1

    Assumption and Retention of Liabilities; Related Assets      9  

Section 2.2

    MSGS Participation in Spinco Plans      10  

Section 2.3

    Service Recognition      10  
ARTICLE III

 

U.S. QUALIFIED DEFINED BENEFIT PLAN

 

Section 3.1

    Cash Balance Pension Plan      12  
ARTICLE IV

 

U.S. QUALIFIED DEFINED CONTRIBUTION PLANS

 

Section 4.1

    401(k) Plan      12  

Section 4.2

    Investment and Benefits Committee      12  
ARTICLE V

 

NONQUALIFIED PLANS

 

Section 5.1

    Excess Cash Balance Pension Plan      12  

Section 5.2

    Excess Retirement Plan      13  

Section 5.3

    Excess Savings Plan      13  

Section 5.4

    Transferred Employees      14  

Section 5.5

    No Separation from Service      14  
ARTICLE VI

 

U.S. HEALTH AND WELFARE PLANS

 

Section 6.1

    Health and Welfare Plans Maintained by Spinco Prior to the Distribution Date      14  

Section 6.2

    Flexible Spending Accounts Plan      15  

Section 6.3

    Legal Plan      15  

Section 6.4

    COBRA and HIPAA      15  

Section 6.5

    Liabilities      16  

Section 6.6

    Time-Off Benefits      17  

Section 6.7

    Severance Pay Plans      18  

 

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ARTICLE VII

 

EQUITY COMPENSATION

 

Section 7.1

    Equity Compensation      18  

Section 7.2

    Taxes and Withholding      18  

Section 7.3

    Cooperation      20  

Section 7.4

    SEC Registration      20  

Section 7.5

    Savings Clause      20  
ARTICLE VIII

 

ADDITIONAL COMPENSATION AND BENEFITS MATTERS

 

Section 8.1

    Cash Incentive Awards      20  

Section 8.2

    Individual Arrangements      21  

Section 8.3

    Non-Competition      22  

Section 8.4

    Collective Bargaining      22  

Section 8.5

    Union Dues; Severance and Fringe Benefits      22  

Section 8.6

    Director Programs      22  

Section 8.7

    Sections 162(m)/409A      23  
ARTICLE IX

 

INDEMNIFICATION

 

Section 9.1

    Indemnification      23  
ARTICLE X

 

GENERAL AND ADMINISTRATIVE

 

Section 10.1

    Sharing of Information      23  

Section 10.2

    Reasonable Efforts/Cooperation      24  

Section 10.3

    Non-Termination of Employment; No Third-Party Beneficiaries      24  

Section 10.4

    Consent of Third Parties      24  

Section 10.5

    Access to Employees      24  

Section 10.6

    Beneficiary Designation/Release of Information/Right to Reimbursement      25  

Section 10.7

    Not a Change in Control      25  
ARTICLE XI

 

MISCELLANEOUS

 

Section 11.1

    Effect If Distribution Does Not Occur      25  

Section 11.2

    Complete Agreement; Construction      25  

Section 11.3

    Counterparts      25  

Section 11.4

    Survival of Agreements      25  

Section 11.5

    Notices      25  

Section 11.6

    Waivers      26  

Section 11.7

    Amendments      26  

Section 11.8

    Assignment      26  

Section 11.9

    Successors and Assigns      26  

 

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Section 11.10

   

Subsidiaries

      26  

Section 11.11

   

Title and Headings

      26  

Section 11.12

   

Governing Law

      26  

Section 11.13

   

Waiver of Jury Trial

      27  

Section 11.14

   

Specific Performance

      27  

Section 11.15

   

Severability

      27  

 

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Exhibits

 

Exhibit A

  

MSGS Retained Retirement Plans

Exhibit B

  

Spinco Retained Retirement Plans

Exhibit C

  

MSGS Retained Multi-Employer Benefit Plans

Exhibit D

  

Spinco Retained Multi-Employer Benefit Plans

Exhibit E

  

Spinco Health & Welfare Plans

Exhibit F

  

MSGS Union Relationships

Exhibit G

  

Spinco Union Relationships

Exhibit H

  

FY 2020 Annual Cash Incentive Awards

 

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EMPLOYEE MATTERS AGREEMENT

THIS EMPLOYEE MATTERS AGREEMENT (this “Agreement”), dated as of March 31, 2020, is by and between The Madison Square Garden Company (to be renamed Madison Square Garden Sports Corp. at the Distribution (as defined herein)), a Delaware corporation (“MSGS”), and MSG Entertainment Spinco, Inc. (to be renamed Madison Square Garden Entertainment Corp. at the Distribution), a Delaware corporation and an indirect wholly-owned subsidiary of MSGS (“Spinco” and, together with MSGS, each, a “Party” and collectively, the “Parties”).

RECITALS

WHEREAS, the Board of Directors of MSGS determined that it is in the best interests of MSGS and its stockholders to separate the business of Spinco, as more fully described in Spinco’s registration statement on Form 10 (collectively, the “Spinco Business”), from MSG’s other businesses, on the terms and subject to the conditions set forth in the Distribution Agreement (as defined below);

WHEREAS, in order to effectuate the foregoing, MSGS and Spinco have entered into a Distribution Agreement, dated as of March 31, 2020 (the “Distribution Agreement”), pursuant to which and subject to the terms and conditions set forth therein, the Spinco Business shall be separated from the MSGS Business, and all of the issued and outstanding shares of Spinco Common Stock beneficially owned by MSGS shall be distributed (the “Distribution”) to the holders of the issued and outstanding MSGS Common Stock; and

WHEREAS, MSGS and Spinco have agreed to enter into this Agreement for the purpose of allocating Assets, Liabilities and responsibilities with respect to certain employee compensation and benefit plans, programs and arrangements, and certain employment matters between and among them.

NOW, THEREFORE, in consideration of the premises and of the respective agreements and covenants contained in this Agreement, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereto, intending to be legally bound, agree as follows:

ARTICLE I

DEFINITIONS

Section 1.1 Definitions. As used in this Agreement, the following terms shall have the meanings set forth below:

“401(k) Plan” shall have the meaning ascribed thereto in Section 4.1 of this Agreement.

“Action” means any claim, demand, complaint, charge, action, cause of action, suit, countersuit, arbitration, litigation, inquiry, proceeding or investigation by or before any Governmental Authority or any arbitration or mediation tribunal.

 

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“Actual Benefit Cost” shall have the meaning set forth in Section 6.5(b).

“Agreement” shall have the meaning ascribed thereto in the preamble to this Agreement, including all the exhibits hereto, and all amendments made hereto from time to time.

“Asset” means any right, property or asset, whether real, personal or mixed, tangible or intangible, of any kind, nature and description, whether accrued, contingent or otherwise, and wherever situated and whether or not carried or reflected, or required to be carried or reflected, on the books of any Person.

“Cash Balance Pension Plan” means the MSG Sports & Entertainment, LLC Cash Balance Pension Plan or any successor thereto.

“COBRA” means the continuation coverage requirements for “group health plans” under Title X of the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended, and as codified in Section 4980B of the Code and Sections 601 through 608 of ERISA.

“Code” means the U.S. Internal Revenue Code of 1986, as amended.

“Control” means, as to any Person, the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such Person, whether through the ownership of voting securities or other interests, by contract or otherwise.

“Distribution” shall have the meaning ascribed thereto in the recitals to this Agreement, as the same is further described in the Distribution Agreement.

“Distribution Agreement” shall have the meaning ascribed thereto in the recitals to this Agreement.

“Distribution Date” shall have the meaning ascribed thereto in the Distribution Agreement.

“DOL” means the U.S. Department of Labor.

“Effective Date” shall have the meaning ascribed thereto in Section 6.1(a) of this Agreement.

“Equity Compensation” means, collectively, the MSGS Options, MSGS RSUs, Spinco Options, and Spinco RSUs.

“ERISA” means the Employee Retirement Income Security Act of 1974, as amended.

“Estimated Benefit Cost” shall have the meaning set forth in Section 6.5(b).

 

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“Former MSGS Employee” means:

 

  i.

with respect to an individual whose MSGS Group employment terminated prior to the Distribution Date, any such individual (A) whose last position was in the Corporate Division and who was expected to be employed by the MSGS Group following the Distribution Date, or (B) whose last position was in the Sports division (other than the Sports Properties Group); and

 

  ii.

with respect to an individual whose MSGS Group employment terminated on or after the Distribution Date, any former employee of any member of the MSGS Group.

Any individual who is an employee of any member of the Spinco Group on the Distribution Date or a Former Spinco Employee shall not be a Former MSGS Employee.

“Former Spinco Employee” means:

 

  i.

with respect to an individual whose MSGS Group employment terminated prior to the Distribution Date, any such individual (A) whose last position was in the Corporate Division and who was not expected to be employed by the MSGS Group following the Distribution Date, (B) whose last position was in the Sports Properties Group or (C) whose last position was not in the Sports division (except as provided in clauses (A) and (B) of this sentence); and

 

  ii.

with respect to an individual whose Spinco Group employment terminated on or after the Distribution Date, any former employee of any member of the Spinco Group.

Any individual who is an employee of any member of the MSGS Group on the Distribution Date or a Former MSGS Employee shall not be a Former Spinco Employee.

“Governmental Authority” means any federal, state, local, foreign or international court, government, department, commission, board, bureau, agency, official, the NYSE, NASDAQ or other regulatory, administrative or governmental authority.

“Group” means the MSGS Group and/or the Spinco Group, as the context requires.

“HIPAA” means the Health Insurance Portability and Accountability Act of 1996, as amended.

“Information” shall mean all information, whether in written, oral, electronic or other tangible or intangible form, stored in any medium, including non-public financial information, studies, reports, records, books, accountants’ work papers, contracts, instruments, flow charts, data, communications by or to attorneys, memos and other materials prepared by attorneys and accountants or under their direction (including attorney work product) and other financial, legal, employee or business information or data.

“IRS” means the U.S. Internal Revenue Service.

“Law” means all laws, statutes and ordinances and all regulations, rules and other pronouncements of Governmental Authorities having the effect of law of the United States, any foreign country, or any domestic or foreign state, province, commonwealth, city, country, municipality, territory, protectorate, possession or similar instrumentality, or any Governmental Authority thereof.

 

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“Liabilities” means all debts, liabilities, obligations, responsibilities, Losses, damages (whether compensatory, punitive, or treble), fines, penalties and sanctions, absolute or contingent, matured or unmatured, liquidated or unliquidated, foreseen or unforeseen, joint, several or individual, asserted or unasserted, accrued or unaccrued, known or unknown, whenever arising, including without limitation those arising under or in connection with any Law, Action, threatened Action, order or consent decree of any Governmental Authority or any award of any arbitration tribunal, and those arising under any contract, guarantee, commitment or undertaking, whether sought to be imposed by a Governmental Authority, private party, or a Party, whether based in contract, tort, implied or express warranty, strict liability, criminal or civil statute, or otherwise, and including any costs, expenses, interest, attorneys’ fees, disbursements and expense of counsel, expert and consulting fees, fees of third-party administrators and costs related thereto or to the investigation or defense thereof.

“Loss” means any claim, demand, complaint, damages (whether compensatory, punitive, consequential, treble or other), fines, penalties, loss, liability, payment, cost or expense arising out of, relating to or in connection with any Action.

“MSGS” shall have the meaning ascribed thereto in the preamble to this Agreement.

“MSGS Business” means all businesses and operations conducted by the MSGS Group from time to time, whether prior to, at or after the Distribution Date, other than the Spinco Business.

“MSGS Common Stock” means the issued and outstanding Class A Common Stock, par value $0.01 per share, of MSGS and Class B Common Stock, par value $0.01 per share, of MSG.

“MSGS Compensation Committee” means the Compensation Committee of the Board of Directors of MSG.

“MSGS Director” means any individual who is a current or former non-employee director of MSGS as of the Distribution Date.

“MSGS Employee” means any individual who, immediately following the Distribution Date, will be employed by MSGS or any member of the MSGS Group in a capacity considered by MSGS to be common law employment, including active employees and employees on vacation and approved leaves of absence (including maternity, paternity, family, sick, short-term or long-term disability leave, qualified military service under the Uniformed Services Employment and Reemployment Rights Act of 1994, and leave under the Family Medical Leave Act and other approved leaves).

“MSGS Excess Cash Balance Plan” shall have the meaning ascribed thereto in Section 5.1(a) of this Agreement.

“MSGS Excess Savings Plan” shall have the meaning ascribed thereto in Section 5.3(a).

 

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“MSGS Excess Retirement Plan” shall have the meaning ascribed thereto in Section 5.2(a) of this Agreement.

“MSGS Flexible Spending Accounts Plan” shall have the meaning ascribed thereto in Section 6.2 of this Agreement.

“MSGS Group” means, as of the Distribution Date, MSGS and each of its former and current Subsidiaries (or any predecessor organization thereof), and any corporation or entity that may become part of such Group from time to time thereafter. The MSGS Group shall not include any member of the Spinco Group.

“MSGS Health & Welfare Plans” shall have the meaning ascribed thereto in Section 6.1(a) of this Agreement.

“MSGS Liabilities” means all Liabilities assumed or retained by any member of the MSGS Group pursuant to this Agreement.

“MSGS Option” means an option to buy MSGS Class A Common Stock granted pursuant to an MSGS Share Plan (including the options adjusted for the Distribution) and outstanding as of the Distribution Date (or shortly thereafter to the extent necessary to determine any adjustments in connection with the Distribution).

“MSGS Participant” means any individual who, immediately following the Distribution Date, is an MSGS Employee, a Former MSGS Employee or a beneficiary, dependent or alternate payee of any of the foregoing.

“MSGS Plan” means any Plan sponsored, maintained or contributed to by MSGS or any of its Subsidiaries, including the MSGS Retained Retirement Plans, MSGS Share Plans, MSGS Flexible Spending Accounts Plan, MSGS Health & Welfare Plans and MSGS Retained Multi-Employer Benefit Plans.

“MSGS Retained Multi-Employer Benefit Plans” means the multi-employer plans that are listed on Exhibit C.

“MSGS Retained Retirement Plans” means the retirement plans that are listed on Exhibit A.

“MSGS RSU” means a restricted stock unit (including, for the avoidance of doubt, any restricted stock unit that is subject to performance vesting conditions) representing an unfunded and unsecured promise to deliver a share of MSGS Class A Common Stock, or cash or other property equal in value to the share of MSGS Class A Common Stock, that is granted pursuant to an MSGS Share Plan and outstanding as of the Distribution Date (or shortly thereafter to the extent necessary to determine any adjustments in connection with the Distribution).

“MSGS Share Plans” means, collectively, any stock option or stock incentive compensation plan or arrangement, including equity award agreements, maintained before the Distribution Date for employees, officers or non-employee directors of MSGS or its Subsidiaries or affiliates, as amended.

 

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“NASDAQ” means The NASDAQ Stock Market LLC.

“NYSE” means the New York Stock Exchange.

“Participating Company” means MSGS and any Person (other than a natural person) participating in an MSGS Plan.

“Party” and “Parties” shall have the meanings ascribed thereto in the preamble to this Agreement.

“Person” means any natural person, corporation, business trust, limited liability company, joint venture, association, company, partnership or governmental, or any agency or political subdivision thereof.

“Plan” means, with respect to an entity, each plan, program, arrangement, agreement or commitment that is an employment, consulting, non-competition or deferred compensation agreement, or an executive compensation, incentive bonus or other bonus, employee pension, profit-sharing, savings, retirement, supplemental retirement, stock option, stock purchase, stock appreciation rights, restricted stock, other equity-based compensation, severance pay, salary continuation, life, health, hospitalization, sick leave, vacation pay, disability or accident insurance plan, corporate-owned or key-man life insurance or other employee benefit plan, program, arrangement, agreement or commitment, including any “employee benefit plan” (as defined in Section 3(3) of ERISA), entered into, sponsored or maintained by such entity (or to which such entity contributes or is required to contribute).

“Service Crediting Date” shall have the meaning ascribed thereto in Section 2.3(b)(i) of this Agreement.

“Shared Executives” means those individuals who, as of the Distribution Date, are employed in a senior executive capacity by both MSGS and Spinco.

“Spinco” shall have the meaning ascribed thereto in the preamble to this Agreement.

“Spinco Business” means all businesses and operations conducted by the Spinco Group from time to time, whether prior to, at or after the Distribution Date, including (A) the businesses and operations of the Sports Properties Group and (B) the other businesses and operations conducted by the Spinco Group as more fully described in the Spinco Information Statement and excluding the MSGS Business.

“Spinco Common Stock” means the outstanding Class A Common Stock, par value $0.01 per share, of Spinco and Class B Common Stock, par value $0.01 per share, of Spinco.

“Spinco Director” means any individual who is a current non-employee director of Spinco as of the Distribution Date.

 

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“Spinco Employee” means any individual who, immediately following the Distribution Date, will be employed by Spinco or any member of the Spinco Group in a capacity considered by Spinco to be common law employment, including active employees and employees on vacation and approved leaves of absence (including maternity, paternity, family, sick, short-term or long-term disability leave, qualified military service under the Uniformed Services Employment and Reemployment Rights Act of 1994, and leave under the Family Medical Leave Act and other approved leaves).

“Spinco Excess Cash Balance Plan” shall have the meaning ascribed thereto in Section 5.1(a).

“Spinco Excess Savings Plan” shall have the meaning ascribed thereto in Section 5.3(a).

“Spinco Excess Retirement Plan” shall have the meaning ascribed thereto in Section 5.2(a).

“Spinco Flexible Spending Accounts Plan” shall have the meaning ascribed thereto in Section 6.2 of this Agreement.

“Spinco Group” means, as of the Distribution Date, Spinco and each of its former and current Subsidiaries (or any predecessor organization thereof), and any corporation or entity that may become part of such Group from time to time thereafter. The Spinco Group shall not include any member of the MSGS Group.

“Spinco Health & Welfare Plans” shall have the meaning ascribed thereto in Section 6.1(a) of this Agreement.

“Spinco Information Statement” means the definitive information statement distributed to holders of MSGS Common Stock in connection with the Distribution and filed with the Securities and Exchange Commission (the “SEC”) as Exhibit 99.1 to the registration statement on Form 10 filed with the Commission to effect the registration of the Spinco Class A Common Shares pursuant to the Securities Exchange Act of 1934, as amended, or as an exhibit to a Form 8-K of Spinco.

“Spinco Liabilities” means all Liabilities assumed or retained by any member of the Spinco Group pursuant to this Agreement.

“Spinco Option” means an option to buy Spinco Class A Common Stock granted pursuant to a Spinco Share Plan and granted in connection with the Distribution (or shortly thereafter to the extent necessary to determine any adjustments in connection with the Distribution).

“Spinco Participant” means any individual who, immediately following the Distribution Date, is a Spinco Employee, a Former Spinco Employee or a beneficiary, dependent or alternate payee of any of the foregoing.

“Spinco Plan” means any Plan sponsored, maintained or contributed to by any member of the Spinco Group, including the Spinco Retained Retirement Plans, Spinco Share Plans, Spinco Flexible Spending Accounts Plan, the Spinco Retiree Medical Program, Spinco Health & Welfare Plans and Spinco Retained Multi-Employer Benefit Plans.

 

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“Spinco Retained Multi-Employer Benefit Plans” means the multi-employer plans that are listed on Exhibit D.

“Spinco Retained Retirement Plans” means the retirement plans that are listed on Exhibit B.

“Spinco RSU” means a restricted stock unit (including, for the avoidance of doubt, any restricted stock unit that is subject to performance vesting conditions) representing an unfunded and unsecured promise to deliver a share of Spinco Class A Common Stock, or cash or other property equal in value to the share of Spinco Class A Common Stock, that is granted pursuant to a Spinco Share Plan and granted in connection with the Distribution (or shortly thereafter to the extent necessary to determine any adjustments in connection with the Distribution).

“Spinco Share Plans” means the Spinco 2020 Employee Stock Plan, Spinco 2020 Stock Plan For Non-Employee Directors and any stock plan or stock incentive arrangement, including equity award agreements, entered into by Spinco in connection with the Distribution.

“Subsidiary” has the same meaning as provided in the Distribution Agreement.

“Transition Period” means, with respect to each MSGS Plan in which any Spinco Group member is a Participating Company, the period of time beginning on the Distribution Date and ending on the date Spinco establishes a corresponding Plan and allows participation in such Plan, which shall be no later than the Effective Date. The Transition Period may be extended beyond the Effective Date if both Parties agree to the extension, and such agreement shall not be unreasonably withheld.

“Transition Period End Date” means the last day of each applicable Transition Period.

“U.S.” means the United States of America.

Section 1.2 General Interpretive Principles. Words in the singular shall include the plural and vice versa, and words of one gender shall include the other gender, in each case, as the context requires. The words “hereof,” “herein,” “hereunder,” and “herewith” and words of similar import shall, unless otherwise stated, be construed to refer to this Agreement and not to any particular provision of this Agreement, and references to Article, Section, paragraph and Exhibit are references to the Articles, Sections, paragraphs and Exhibits to this Agreement unless otherwise specified. The word “including” and words of similar import when used in this Agreement shall mean “including, without limitation,” unless otherwise specified. Any reference to any federal, state, local or non-U.S. statute or Law shall be deemed to also refer to all rules and regulations promulgated thereunder, unless the context otherwise requires.

 

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ARTICLE II

GENERAL PRINCIPLES

Section 2.1 Assumption and Retention of Liabilities; Related Assets.

(a) As of the Distribution Date, except as otherwise expressly provided for in this Agreement, MSGS shall, or shall cause one or more members of the MSGS Group to, assume or retain and MSGS hereby agrees to pay, perform, fulfill and discharge, in due course in full (i) all Liabilities under all MSGS Plans (provided that, as between MSGS and Spinco, Spinco shall be responsible for certain of those Liabilities pursuant to Section 2.1(b) of this Agreement), (ii) all Liabilities with respect to the employment, retirement, service, termination of employment or termination of service of all MSGS Employees, Former MSGS Employees, MSGS Directors, their dependents and beneficiaries and other service providers (including any individual who is, or was, an independent contractor, temporary employee, temporary service worker, consultant, freelancer, agency employee, leased employee, on-call worker, incidental worker, or non-payroll worker of any member of the MSGS Group or in any other employment, non-employment, or retainer arrangement or relationship with any member of the MSGS Group), in each case to the extent arising in connection with or as a result of employment with or the performance of services for any member of the MSGS Group, and (iii) any other Liabilities expressly assumed by or retained by MSGS or any of its Subsidiaries under this Agreement, including liabilities retained pursuant to Article V of this Agreement. For purposes of clarification and the avoidance of doubt, (x) the Liabilities assumed or retained by the MSGS Group as provided for in this Section 2.1(a) are intended to be MSGS Liabilities as such term is defined in the Distribution Agreement, and (y) the Parties intend that such Liabilities assumed or retained by the MSGS Group include the retirement benefits and health and welfare plan benefits under the MSGS Plans for all MSGS Employees, Former MSGS Employees, their dependents, beneficiaries, alternate payees and surviving spouses.

(b) As of the Distribution Date, except as otherwise expressly provided for in this Agreement, Spinco shall, or shall cause one or more members of the Spinco Group to, assume or retain and Spinco hereby agrees to pay, perform, fulfill and discharge, in due course in full (i) all Liabilities under all Spinco Plans, (ii) all Liabilities with respect to the employment, service, retirement, termination of employment or termination of service of all Spinco Employees, Former Spinco Employees, their dependents and beneficiaries and other service providers (including any individual who is, or was, an independent contractor, temporary employee, temporary service worker, consultant, freelancer, agency employee, leased employee, on-call worker, incidental worker, or non-payroll worker of any member of the Spinco Group or in any other employment, non-employment, or retainer arrangement or relationship with any member of the Spinco Group), and (iii) any other Liabilities expressly assumed or retained by Spinco or any of its Subsidiaries under this Agreement. For purposes of clarification and the avoidance of doubt, the Liabilities assumed or retained by the Spinco Group as provided for in this Section 2.1(b) are intended to be Spinco Liabilities as such term is defined in the Distribution Agreement.

(c) From time to time after the Distribution, Spinco shall promptly reimburse MSGS, upon MSG’s presentation of such substantiating documentation as Spinco shall reasonably request, for the cost of any Liabilities satisfied by MSGS or its Subsidiaries that are, or that have been made pursuant to this Agreement, the responsibility of Spinco or any of its Subsidiaries.

(d) From time to time after the Distribution, MSGS shall promptly reimburse Spinco, upon Spinco’s presentation of such substantiating documentation as MSGS shall reasonably request, for the cost of any Liabilities satisfied by Spinco or its Subsidiaries that are, or that have been made pursuant to this Agreement, the responsibility of MSGS or any of its Subsidiaries.

 

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Section 2.2 MSGS Participation in Spinco Plans.

(a) During the Transition Period. Except for the Spinco Plans described in Articles III, V, VII and VIII herein, until the Transition Period End Date, MSGS and each member of the MSGS Group that presently participates in a particular Spinco Plan may continue to be a Participating Company in such Spinco Plan, and MSGS and Spinco shall take all necessary action to effectuate each such continuation. MSGS and each member of the MSGS Group shall pay Spinco for any MSGS Employee or Former MSGS Employee’s participation in the Spinco Plans.

(b) After the Transition Period. Except as otherwise expressly provided for in this Agreement, effective as of the Transition Period End Date, MSGS and each member of the MSGS Group shall cease to be a Participating Company in the corresponding Spinco Plan, and MSGS and Spinco shall take all necessary action to effectuate each such cessation.

Section 2.3 Service Recognition.

(a) Pre-Distribution Service Credit. MSGS shall give each MSGS Participant full credit for purposes of eligibility, vesting, determination of level of benefits, and, to the extent applicable, benefit accruals under any MSGS Plan for such MSGS Participant’s service with any member of the Spinco Group prior to the Distribution Date to the same extent such service was recognized by the corresponding Spinco Plans immediately prior to the Distribution Date; provided, however, that such service shall not be recognized to the extent that such recognition would result in the duplication of benefits.

(b) Post-Distribution Service Crediting for the MSGS Retained Retirement Plans and Spinco Retained Retirement Plans. Each of MSGS and Spinco (acting directly or through their respective Subsidiaries) shall cause each of the MSGS Retained Retirement Plans and the Spinco Retained Retirement Plans, respectively, to provide the following service crediting rules effective as of the Distribution Date:

(i) If an MSGS Employee who participates in, or is eligible to participate but as of June 30, 2021 (the “Service Crediting Date”) is not participating in, any of the MSGS Retained Retirement Plans becomes employed by a member of the Spinco Group on or after the Distribution Date, but on or before the Service Crediting Date, and such MSGS Employee has been continuously employed by the MSGS Group from the Distribution Date through the date such MSGS Employee commences active employment with a member of the Spinco Group, then such MSGS Employee’s service with the MSGS Group following the Distribution Date shall be recognized for purposes of eligibility, vesting and level of benefits under the corresponding Spinco Retained Retirement Plans, in each case to the same extent as such MSGS Employee’s service with the MSGS Group was recognized under the corresponding MSGS Retained Retirement Plans, if any.

 

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(ii) If a Spinco Employee becomes employed by a member of the MSGS Group prior to the Service Crediting Date and such Spinco Employee is continuously employed by the Spinco Group from the Distribution Date through the date such Spinco Employee commences active employment with a member of the MSGS Group, then such Spinco Employee’s service with the Spinco Group following the Distribution Date shall be recognized for purposes of eligibility, vesting and level of benefits under the corresponding MSGS Retained Retirement Plans, in each case to the same extent as such Spinco Employee’s service with the Spinco Group was recognized under the corresponding Spinco Retained Retirement Plans, if any.

(iii) Notwithstanding anything in this Agreement to the contrary, for the period commencing on the Distribution Date until the Service Crediting Date, the MSGS Retained Retirement Plans and the Spinco Retained Retirement Plans (other than the Cash Balance Pension Plan) shall provide that no break in service occurs with respect to any MSGS Employee or Spinco Employee who is hired or rehired by any member of the Spinco Group or the MSGS Group after the termination of such MSGS Employee’s or Spinco Employee’s employment with either the MSGS Group or the Spinco Group within such period.

(iv) Notwithstanding anything in this Agreement to the contrary, the employment service with the MSGS Group or the Spinco Group shall not be double counted or result in duplicative benefits or service crediting under any MSGS Retained Retirement Plan or Spinco Retained Retirement Plan.

(c) Post-Distribution Service Crediting for the MSGS and Spinco Health & Welfare Plans.

(i) If an MSGS Employee who participates in any of the MSGS Health & Welfare Plans becomes employed by a member of the Spinco Group on or after the Distribution Date, but on or before the Service Crediting Date, and such MSGS Employee has been continuously employed by the MSGS Group from the Distribution Date through the date such MSGS Employee commences active employment with a member of the Spinco Group, then such MSGS Employee’s service with the MSGS Group following the Distribution Date shall be recognized for purposes of eligibility under the corresponding Spinco Health & Welfare Plans, in each case to the same extent as such MSGS Employee’s service with the MSGS Group was recognized under the corresponding MSGS Health & Welfare Plan.

(ii) If a Spinco Employee who participates in any of the Spinco Health & Welfare Plans becomes employed by a member of the MSGS Group on or after the Distribution Date, but on or before the Service Crediting Date, and such Spinco Employee has been continuously employed by the Spinco Group from the Distribution Date through the date such Spinco Employee commences active employment with a member of the MSGS Group, then such Spinco Employee’s service with the Spinco Group following the Distribution Date shall be recognized for purposes of eligibility under the corresponding MSGS Health & Welfare Plans, in each case to the same extent as such Spinco Employee’s service with the Spinco Group was recognized under the corresponding Spinco Health & Welfare Plans.

 

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ARTICLE III

U.S. QUALIFIED DEFINED BENEFIT PLAN

Section 3.1 Cash Balance Pension Plan. As of the Distribution Date, a member of the Spinco Group shall retain all of the assets in the trust underlying the Cash Balance Pension Plan, and remain responsible for all Liabilities under the Cash Balance Pension Plan.

ARTICLE IV

U.S. QUALIFIED DEFINED CONTRIBUTION PLANS

Section 4.1 401(k) Plan. On or prior to the Distribution Date, MSGS and Spinco shall take all necessary actions to add MSGS as a contributing employer to the Madison Square Garden 401(k) Savings Plan (the “401(k) Plan”). On and after the Distribution Date, MSGS Participants who, immediately prior to the Distribution Date were participants in, or entitled to, future benefits under the 401(k) Plan shall continue to participate in the 401(k) Plan on the same terms and conditions as applied prior to the Distribution Date, as may be modified from time to time. On and after the Distribution Date, all contributions payable to the 401(k) Plan with respect to MSGS Participants, determined in accordance with the terms of the 401(k) Plan, ERISA and the Code, shall be paid by MSGS to the 401(k) Plan.

Section 4.2 Investment and Benefits Committee. Effective as of the Distribution Date, MSGS shall establish an Investments and Benefits Committee, which, among other things, shall oversee its participation in the 401(k) Plan.

ARTICLE V

NONQUALIFIED PLANS

Section 5.1 Excess Cash Balance Pension Plan.

(a) No later than the Distribution Date, MSGS shall establish and make payments pursuant to a non-qualified defined benefit pension plan (the “MSGS Excess Cash Balance Plan”) to provide non-qualified retirement benefits to MSGS Employees (including Shared Executives) who, immediately prior to the effective date of the MSGS Excess Cash Balance Plan, were entitled to future benefits under the MSG Sports & Entertainment, LLC Excess Cash Balance Plan (the “Spinco Excess Cash Balance Plan”) and shall assume the Liabilities as of the Distribution Date of the Spinco Excess Cash Balance Plan relating to MSGS Employees, Former MSGS Employees and Shared Executives.

(b) As of the effective date of the MSGS Excess Cash Balance Plan, MSGS (acting directly or through its Subsidiaries) shall cause the MSGS Excess Cash Balance Plan to recognize and maintain all existing beneficiary designations with respect to MSGS Employees, Former MSGS Employees and Shared Executives under the Spinco Excess Cash Balance Plan.

(c) The Parties agree that the Liabilities of the Spinco Excess Cash Balance Plan relating to MSGS Employees, Former MSGS Employees and Shared Executives shall be transferred to the MSGS Excess Cash Balance Plan effective as of the Distribution Date.

 

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Section 5.2 Excess Retirement Plan.

(a) No later than the Distribution Date, MSGS shall establish and make payments pursuant to a non-qualified defined benefit pension plan (the “MSGS Excess Retirement Plan”) to provide non-qualified retirement benefits to eligible MSGS Employees and shall assume the Liabilities as of the Distribution Date of the MSG Sports & Entertainment, LLC Excess Retirement Plan (the “Spinco Excess Retirement Plan”) relating to MSGS Employees and, subject to the following sentence, Former MSGS Employees. For the avoidance of doubt, MSGS shall not assume, and Spinco shall remain responsible for, any Liabilities of the Spinco Excess Retirement Plan relating to any individual who is no longer employed by the MSGS Group or the Spinco Group as of the Distribution Date and has already commenced receipt of his or her benefit under such plan.

(b) As of the effective date of the MSGS Excess Retirement Plan, MSGS (acting directly or through its Subsidiaries) shall cause the MSGS Excess Retirement Plan to recognize and maintain all existing beneficiary designations with respect to MSGS Employees and, as applicable pursuant to Section 5.2(a), Former MSGS Employees, under the Spinco Excess Retirement Plan.

(c) The Parties agree that, effective as of the Distribution Date, the Liabilities of the Spinco Excess Retirement Plan relating to MSGS Employees and, as applicable pursuant to Section 5.2(a), Former MSGS Employees, shall be transferred to the MSGS Excess Retirement Plan.

Section 5.3 Excess Savings Plan.

(a) Establishment of the MSGS Excess Savings Plan. No later than the Distribution Date, MSGS shall establish a defined contribution plan for the benefit of MSGS Employees (including Shared Executives) (the “MSGS Excess Savings Plan”) who, immediately prior to the effective date of the MSGS Excess Savings Plan, were participants in, or entitled to future benefits under, the MSG Sports & Entertainment, LLC Excess Savings Plan (the “Spinco Excess Savings Plan”).

(b) Transfer of Spinco Excess Savings Plan Accounts. No later than the Distribution Date, Spinco shall cause the accounts in the Spinco Excess Savings Plan attributable to MSGS Employees, Former MSGS Employees and Shared Executives to be transferred to the MSGS Excess Savings Plan and MSGS shall cause the MSGS Excess Savings Plan to accept such transfer of accounts in accordance with current practice and to assume and to fully perform, pay and discharge all Liabilities of the Spinco Excess Savings Plan relating to the accounts of MSGS Employees, Former MSGS Employees and Shared Executives as of the effective date of the MSGS Excess Savings Plan.

(c) Continuation of Elections. As of the effective date of the MSGS Excess Savings Plan, MSGS (acting directly or through its Subsidiaries) shall cause the MSGS Excess Savings Plan to recognize and maintain all elections, including deferral elections and beneficiary designations, as applicable, with respect to MSGS Employees, Former MSGS Employees and Shared Executives under the Spinco Excess Savings Plan for the remainder of the period or periods for which such elections or designations are by their original terms applicable, to the extent such election or designation is available under the MSGS Excess Savings Plan.

 

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Section 5.4 Transferred Employees. Employees who transfer from Spinco to MSGS between the Distribution Date and June 30, 2021 will not be eligible for an immediate distribution of their account balance from the Spinco Excess Cash Balance Plan, Spinco Excess Retirement Plan or the Spinco Excess Savings Plan; instead, subject to compliance with any applicable requirements of Section 409A of the Code, any such account balance shall be transferred to the MSGS Excess Cash Balance Plan, MSGS Excess Retirement Plan or the MSGS Excess Savings Plan on the date of transfer, and Spinco shall pay MSGS an amount equal to the vested account balance as of the transfer date within 30 days of such transfer date. Employees who transfer from MSGS to Spinco between the Distribution Date and June 30, 2021 will not be eligible for an immediate distribution of their account balance from the MSGS Excess Cash Balance Plan, MSGS Excess Retirement Plan or the MSGS Excess Savings Plan; instead, subject to compliance with any applicable requirements of Section 409A of the Code, any such account balance shall be transferred to the MSGS Excess Cash Balance Plan, Spinco Excess Retirement Plan or the Spinco Excess Savings Plan on the date of transfer, and MSGS shall pay Spinco an amount equal to the vested account balance as of the transfer date within 30 days of such transfer date.

Section 5.5 No Separation from Service. The transactions provided for under this Agreement shall not constitute a separation from service or a termination of employment under the MSGS Excess Cash Balance Plan, Spinco Excess Cash Balance Plan, MSGS Excess Retirement Plan, Spinco Excess Retirement Plan, MSGS Excess Savings Plan or the Spinco Excess Savings Plan, each of which shall provide that no distribution of retirement benefits shall be made to any MSGS Employee or Spinco Employee on account of these transactions.

ARTICLE VI

U.S. HEALTH AND WELFARE PLANS

Section 6.1 Health and Welfare Plans Maintained by Spinco Prior to the Distribution Date.

(a) Establishment of the MSGS Health & Welfare Plans. Spinco or one or more of its Subsidiaries maintain each of the health and welfare plans set forth on Exhibit E attached hereto (the “Spinco Health & Welfare Plans”) for the benefit of eligible MSGS Participants and Spinco Participants. Effective as of January 1, 2021 (the “Effective Date”), MSGS shall, or shall cause one of its Subsidiaries to, adopt health and welfare plans (other than a retiree medical program) for the benefit of eligible MSGS Participants (collectively, the “MSGS Health & Welfare Plans”).

(b) Terms of Participation in MSGS Health & Welfare Plans. MSGS (acting directly or through its Subsidiaries) shall cause all MSGS Health & Welfare Plans, if applicable, to (i) waive all limitations as to preexisting conditions, exclusions, and service conditions with respect to participation and coverage requirements applicable to MSGS Participants, other than limitations that were in effect with respect to MSGS Participants immediately prior to the Effective Date, (ii) waive any waiting period limitation or evidence of insurability requirement that would otherwise be applicable to an MSGS Participant immediately prior to the Effective Date to the extent such MSGS Participant had satisfied any similar limitation under the analogous Spinco Health & Welfare Plan, and (iii) in the case of self-insured MSGS Health &

 

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Welfare Plans, provide credit for all benefits paid to MSGS Participants under the Spinco Health & Welfare Plans for purposes of determining when such persons have reached their lifetime maximums (if any) under the MSGS Health & Welfare Plan. Notwithstanding the foregoing, in the event that any MSGS Participant, Former MSGS Employee, or dependent thereof is confined to a facility for treatment as of the Effective Date, such persons nevertheless shall become covered under MSGS Health & Welfare Plans as of such date, and shall cease being covered under Spinco Health & Welfare Plans as of such date.

Section 6.2 Flexible Spending Accounts Plan. As of the Effective Date, MSGS (acting directly or through its Subsidiaries) shall establish a flexible spending accounts plan (the “MSGS Flexible Spending Accounts Plan”) with features that are comparable to those contained in the flexible spending accounts plan maintained by Spinco for the benefit of MSGS Participants immediately prior to the Effective Date (the “Spinco Flexible Spending Accounts Plan”). Following the Effective Date, MSGS Participants that presently participate in the Spinco Flexible Spending Accounts Plan may submit, for reimbursement in accordance with the Spinco Flexible Spending Accounts Plan, claims for health costs incurred during the 2020 plan year and any applicable grace period thereafter, and Spinco shall be responsible for the payment of such claims. MSGS shall be entitled to retain the net positive balance, if any, of the MSGS Participants’ flexible spending accounts from the 2020 plan year. MSGS shall pay to Spinco the net negative balance, if any, of the MSGS Participants’ flexible spending accounts from the 2020 plan year. As of the Effective Date, MSGS shall be responsible for administering all reimbursement claims of MSGS Participants under the MSGS Flexible Spending Accounts Plan with respect to calendar year 2020 under the MSGS Flexible Spending Accounts Plan.

Section 6.3 Legal Plan. Any case initiated by an MSGS Participant under the Spinco Group Legal Plan prior to the Effective Date will continue under such plan until its completion regardless of whether the MSGS Participant enrolls in the MSGS Group Legal Plan after the Effective Date.

Section 6.4 COBRA and HIPAA. As of the Effective Date, MSGS (acting directly or through its Subsidiaries) shall assume, or shall have caused the MSGS Health & Welfare Plans to assume, responsibility for compliance with the health care continuation coverage requirements of COBRA with respect to MSGS Participants who, as of the day prior to the Effective Date, were covered under a Spinco Health & Welfare Plan pursuant to COBRA or were eligible for COBRA under a Spinco Health & Welfare Plan and incur any COBRA claims after the Effective Date. Spinco shall be responsible for the claims incurred by MSGS Participants prior to the Effective Date, regardless of whether payments for such claims are made or due after the Effective Date. Spinco (acting directly or through its Subsidiaries) shall be responsible for administering compliance with the certificate of creditable coverage requirements of HIPAA applicable to the Spinco Health & Welfare Plans with respect to MSGS Participants for the period ending on the Effective Date. The Parties hereto agree that neither the Distribution nor any transfers of employment directly from the MSGS Group to the Spinco Group or directly from the Spinco Group to the MSGS Group that occur before the Effective Date shall constitute a COBRA “qualifying event” for purposes of COBRA.

 

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Section 6.5 Liabilities.

(a) Insured Benefits. With respect to employee welfare and fringe benefits that are provided through the purchase of insurance, Spinco shall cause the Spinco Health & Welfare Plans to fully perform, pay and discharge all claims of MSGS Participants that are incurred prior to the Effective Date (whether reported or unreported by the Effective Date) for the Spinco Health & Welfare Plans, and MSGS shall pay Spinco for premiums incurred by Spinco in respect of MSGS Participants from the Distribution Date through the Effective Date. MSGS shall cause the MSGS Health & Welfare Plans to fully perform, pay and discharge all claims of MSGS Participants that are incurred on or after the Effective Date. With respect to claims of MSGS Participants that are incurred under such Spinco Health & Welfare Plans prior to the Effective Date (whether reported or unreported by the Effective Date), but after the Distribution Date, and paid by the Spinco Health & Welfare Plans, MSGS, as a Participating Company, shall promptly reimburse Spinco for any administrative or other expenses.

(i) Long-Term Disability. Any MSGS Participant who is on long-term disability leave and receiving long-term disability benefits under the MSG Sports & Entertainment, LLC Long Term Disability Plan as of the Effective Date shall continue to receive benefits under the MSG Sports & Entertainment, LLC Long Term Disability Plan in accordance with the provisions of such Plan following the Effective Date.

(b) Self-Insured Benefits. With respect to employee welfare and fringe benefits that are provided on a self-insured basis, except as otherwise provided herein, MSGS (i) shall pay Spinco the Estimated Benefit Cost (defined below) for each month from the Distribution Date through the Effective Date for each MSGS Participant participating in such benefits (prorated for any partial month based on the number of days in such month) and (ii) acting directly or through its Subsidiaries, shall cause the MSGS Health & Welfare Plans to fully perform, pay and discharge all claims of MSGS Participants that are incurred on or after the Effective Date. The “Estimated Benefit Cost” shall equal the aggregate monthly cost of such self-insured benefits on a per-employee basis, as set forth in Spinco’s applicable annual budget (as may be adjusted quarterly), taking into account relevant claims experience. As soon as administratively practicable after the Effective Date, Spinco and MSGS shall determine the actual cost of providing such self-insured benefits to the MSGS Participants for the period from the Distribution Date through the Effective Date (the “Actual Benefit Cost”), which shall be determined based on the number, and claims experience, of MSGS Participants and Spinco Participants during that period. If the Actual Benefit Cost is greater than the aggregate Estimated Benefit Cost paid by MSGS, then MSGS shall promptly pay Spinco such shortfall, or if the aggregate Estimated Benefit Cost paid by MSGS is greater than the Actual Benefit Cost, then Spinco shall promptly reimburse such excess amount to MSGS. Except as provided otherwise herein, MSGS shall promptly reimburse Spinco for the administrative and other expenses related to self-insured benefit claims of MSGS Participants paid by the Spinco Health & Welfare Plans or Spinco that were incurred prior to the Effective Date (whether reported or unreported by the Effective Date).

 

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(i) Short-Term Disability.

(A) Any MSGS Participant who is on short-term disability leave and receiving short-term disability benefits under the Sports & Entertainment, LLC Short Term Disability Plan as of the Effective Date shall continue to receive short-term disability benefits under the MSG Sports & Entertainment, LLC Short Term Disability Plan. MSGS, as a Participating Company, shall reimburse Spinco for all administrative and other expenses paid by the MSG Sports & Entertainment, LLC Short Term Disability Plan or Spinco after the Effective Date. MSGS shall continue to pay any short-term disability benefits owed to an MSGS Participant under the MSG Sports & Entertainment, LLC Short Term Disability Plan.

(B) Any MSGS Participant who is on a short-term disability leave as of the Effective Date, and who but for the transactions contemplated under the Distribution Agreement would have become eligible for long-term disability benefits in accordance with the provisions of the MSG Sports & Entertainment, LLC Long Term Disability Plan, will continue to be eligible for long-term disability benefits under the MSG Sports & Entertainment, LLC Long Term Disability Plan.

(c) Incurred Claim Definition. For purposes of this Section 6.5, a claim or Liability is deemed to be incurred (i) with respect to medical, dental, vision and/or prescription drug benefits, upon the rendering of health services or provision of supplies giving rise to such claim or Liability; (ii) with respect to life insurance, accidental death and dismemberment and business travel accident insurance, upon the occurrence of the event giving rise to such claim or Liability; (iii) with respect to disability benefits, upon the date of an individual’s disability, as determined by the disability benefit insurance carrier or claim administrator, giving rise to such claim or Liability; and (iv) with respect to a period of continuous hospitalization (or any medical or other service or supply performed or provided during the period of continuous hospitalization), upon the date of admission to the hospital.

(d) Retiree Medical Program. Notwithstanding the foregoing, Spinco shall retain all Liabilities under the Spinco Retiree Medical Program, whether incurred before, on or after the Distribution Date, with respect to qualifying MSGS Participants and Spinco Participants.

Section 6.6 Time-Off Benefits. MSGS shall credit each MSGS Participant with the amount of accrued but unused vacation time, sick time and other time-off benefits as such MSGS Participant had with the Spinco Group as of the Distribution Date or as of an employee’s transfer date for a Spinco Employee who becomes an MSGS Employee prior to the Service Crediting Date. Spinco shall credit each Spinco Participant with the amount of accrued but unused vacation time, sick time and other time-off benefits as of an employee’s transfer date for an MSGS Employee who becomes a Spinco Employee prior to the Service Crediting Date. Notwithstanding the above, MSGS shall not be required to credit any MSGS Participant and Spinco shall not be required to credit any Spinco Participant with any accrual to the extent that a benefit attributable to such vacation time, sick time and other time-off benefits is paid by the Spinco Group or MSGS Group, respectively.

 

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Section 6.7 Severance Pay Plans. The Parties acknowledge and agree that the transactions contemplated by the Distribution Agreement will not constitute a termination of employment of any Spinco Participant or MSGS Participant for purposes of any policy, plan, program or agreement of MSGS or Spinco or any member of the MSGS Group or Spinco Group that provides for the payment of severance, separation pay, salary continuation or similar benefits in the event of a termination of employment.

ARTICLE VII

EQUITY COMPENSATION

Section 7.1 Equity Compensation. The Parties, including through instructions with their respective administrators and recordkeepers, shall use commercially reasonable efforts and shall cooperate in good faith to take all actions reasonably necessary or appropriate for the adjustment of the Equity Compensation under the MSGS Share Plans, for the issuance of the Equity Compensation under the Spinco Share Plans, and to coordinate the tax treatment of such Equity Compensation as set forth in this Article VII, all in a manner consistent with the resolutions adopted by the MSGS Compensation Committee in connection with the Distribution and the provisions of this Article VII.

Section 7.2 Taxes and Withholding.

(a) Options.

(i) Exercise Price.

(A) Upon the exercise of an MSGS Option, whether by an MSGS Employee, Former MSGS Employee, MSGS Director, Spinco Employee, Former Spinco Employee or Spinco Director, the Parties shall take steps to ensure that the exercise price is delivered to MSG.

(B) Upon the exercise of a Spinco Option, whether by an MSGS Employee, Former MSGS Employee, MSGS Director, Spinco Employee, Former Spinco Employee or Spinco Director, the Parties shall take steps to ensure that the exercise price is delivered to Spinco.

(ii) Taxes.

(A) Upon exercise of an MSGS Option or Spinco Option, the employer or, in the case of a Former MSGS Employee or Former Spinco Employee, the former employer of such holder shall fund any employer taxes.

(B) Upon exercise of an MSGS Option or Spinco Option, the Parties shall take steps to ensure that the applicable withholding amount is remitted in cash to the employer or, in the case of a Former MSGS Employee or Former Spinco Employee, the former employer of such holder.

 

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(b) [Intentionally Omitted.]

(c) Restricted Stock Units.

(i) Settlement.

(A) After the Distribution Date, MSGS shall be responsible for all Liabilities under MSGS RSUs, whether such MSGS RSUs are held by MSGS Employees, Former MSGS Employees, Spinco Employees, Former Spinco Employees and individuals who received such MSGS RSUs in their capacity as MSGS Directors. MSGS shall settle, and satisfy any dividend obligations with respect to, such MSGS RSUs in accordance with the terms of its 2015 Employee Stock Plan and its 2015 Stock Plan for Non-Employee Directors.

(B) After the Distribution Date, Spinco shall be responsible for all Liabilities under Spinco RSUs, whether such Spinco RSUs are held by MSGS Employees, Former MSGS Employees, Spinco Employees or Former Spinco Employees. Spinco shall settle, and satisfy any dividend obligations with respect to, such Spinco RSUs in accordance with the terms of its 2020 Employee Stock Plan.

(ii) Taxes.

(A) Upon settlement of any MSGS RSU or Spinco RSU, other than an MSGS RSU that is held by an individual who received such MSGS RSU in his capacity as an MSGS Director, the employer, or, in the case of a Former MSGS Employee or Former Spinco Employee, the former employer, of such holder shall fund any employer taxes.

(B) Upon settlement of any MSGS RSU or Spinco RSU, other than an MSGS RSU that is held by an individual who received such MSGS RSU in his capacity as an MSGS Director, the Parties shall take steps to ensure that the applicable withholding amount is remitted in cash to the employer, or, in the case of a Former MSGS Employee or Former Spinco Employee, the former employer of such holder.

(C) MSGS will be responsible for any tax reporting obligations associated with any MSGS RSUs that are held by an individual who received such MSGS RSU in his capacity as an MSGS Director.

(d) Tax Deductions. With respect to the Equity Compensation held by individuals who are MSGS Employees or MSGS Directors at the time the Equity Compensation becomes taxable and individuals who are Former MSGS Employees at such time, MSGS shall claim any federal, state and/or local tax deductions after the Distribution Date, and Spinco shall not claim such deductions. With respect to the Equity Compensation held by individuals who are employees of the Spinco Group at the time the Equity Compensation becomes taxable and individuals who are Former Spinco Employees at such time, Spinco shall claim any federal, state

 

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and/or local tax deductions after the Distribution Date, and MSGS shall not claim such deductions. If either MSGS or Spinco determines in its reasonable judgment that there is a substantial likelihood that a tax deduction that was assigned to MSGS or Spinco pursuant to this Section 7.2 will instead be available only to the other party (whether as a result of a determination by the IRS, a change in the Code or the regulations or guidance thereunder, or otherwise), it will notify the other party and both Parties will negotiate in good faith to resolve the issue in accordance with the following principle: the party entitled to the deduction shall pay to the other party an amount that places the other party in a financial position equivalent to the financial position the party would have been in had the party received the deduction as intended under this Section 7.2. Such amount shall be paid within 90 days of filing the last tax return necessary to make the determination described in the preceding sentence.

Section 7.3 Cooperation. In addition to any cooperation principles governed by Article X, if, after the Distribution Date, MSGS or Spinco identify an administrative error in the individuals identified as holding Equity Compensation, the amount of Equity Compensation so held, the vesting level of such Equity Compensation, or any other similar error, MSGS and Spinco shall mutually cooperate in taking such actions as are necessary or appropriate to place, as nearly as reasonably practicable, the individual and MSGS and Spinco in the position in which they would have been had the error not occurred. Each of the Parties shall establish an appropriate administration system in order to handle in an orderly manner exercises of MSGS Options and Spinco Options and the settlement of MSGS RSUs and Spinco RSUs. Each of the Parties will work together to unify and consolidate all indicative data and payroll and employment information on regular timetables and make certain that each applicable entity’s data and records with respect to Equity Compensation are correct and updated on a timely basis. The foregoing shall include employment status and information required for tax withholding/remittance, compliance with trading windows and compliance with the requirements of the Securities Exchange Act of 1934 and other applicable Laws.

Section 7.4 SEC Registration. The Parties mutually agree to use commercially reasonable efforts to maintain effective registration statements with the Securities and Exchange Commission with respect to the long-term incentive awards to the extent any such registration statement is required by applicable Law.

Section 7.5 Savings Clause. The Parties hereby acknowledge that the provisions of this Article VII are intended to achieve certain tax, legal and accounting objectives and, in the event such objectives are not achieved, the Parties agree to negotiate in good faith regarding such other actions that may be necessary or appropriate to achieve such objectives.

ARTICLE VIII

ADDITIONAL COMPENSATION AND BENEFITS MATTERS

Section 8.1 Cash Incentive Awards.

(a) Cooperation. The Parties shall use commercially reasonable efforts and shall cooperate in good faith to take all actions reasonably necessary or appropriate to achieve the treatment of annual cash incentive awards established under MSG’s 2015 Cash Incentive Plan (or the comparable non-executive annual incentive plan maintained by MSG) as approved by the MSGS Compensation Committee prior to the Distribution in accordance with the terms of such Plans and the award agreements issued thereunder, including as set forth in this Section 8.1.

 

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(b) Liability.

(i) Effective as of the Distribution Date, Spinco shall assume or retain, as applicable, responsibilities for all Liabilities, and fully perform, pay and discharge all Liabilities when such Liabilities become due, relating to any annual cash incentive awards, or portion of any such incentive awards, including awards established under MSG’s 2015 Cash Incentive Plan (or the comparable non-executive annual incentive plan maintained by MSG), that any Spinco Participant is eligible to receive with respect to any performance period that ends after the Distribution Date and, effective as of the Distribution Date, MSGS shall have no obligations with respect to any such incentive awards. As soon as reasonably practicable, but in any event within 30 days, following the date that MSGS or Spinco pays an annual cash incentive award established with respect to the fiscal year ending June 30, 2020 to a MSGS Participant or Spinco Participant who, immediately prior to the Distribution, was a “corporate” employee of MSGS (including Shared Executives), the Parties shall cooperate to ensure that each Party is responsible for (and reimburses as applicable) the portion of the Liability with respect to such award accrued as of the Distribution Date (after giving effect to the portion of such Liability allocated to MSG Networks Inc.) reflected on Exhibit H, except as otherwise agreed between the Parties.

(ii) MSGS acknowledges and agrees that, except as otherwise provided herein, it shall have full responsibility with respect to any Liabilities and the payment or performance of any obligations arising out of or relating to any incentive, commission or other similar compensatory arrangement previously provided by any member of the MSGS Group or Spinco Group to any MSGS Participant.

(iii) Spinco acknowledges and agrees that, except as otherwise provided herein, it shall have full responsibility with respect to any Liabilities and the payment or performance of any obligations arising out of or relating to any incentive, commission or other similar compensatory arrangement previously provided by any member of the MSGS Group or Spinco Group to any Spinco Participant.

Section 8.2 Individual Arrangements.

(a) MSGS Individual Arrangements. MSGS acknowledges and agrees that, except as otherwise provided herein, it shall have full responsibility with respect to any Liabilities and the payment or performance of any obligations arising out of or relating to any employment, separation, severance, consulting, non-competition, retention or other compensatory arrangement previously provided by any member of the MSGS Group or Spinco Group to any MSGS Participant.

(b) Spinco Individual Arrangements. Spinco acknowledges and agrees that, except as otherwise provided herein, it shall have full responsibility with respect to any Liabilities and the payment or performance of any obligations arising out of or relating to any employment, separation, severance, consulting, non-competition, retention or other compensatory arrangement previously provided by any member of the MSGS Group or Spinco Group to any Spinco Participant.

 

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(c) [Intentionally Omitted].

(d) Effect of the Distribution on Severance. The Parties acknowledge and agree that the transactions contemplated by the Distribution Agreement will not constitute a termination of employment of any Spinco Participant for purposes of any policy, plan, program or agreement of MSGS or Spinco or any member of the MSGS Group or Spinco Group that provides for the payment of severance, separation pay, salary continuation or similar benefits in the event of a termination of employment.

(e) Rangers and Knicks Arrangements. As of the Distribution Date, MSGS shall assume the compensation and/or salary arrangements, and any agreements and assets related thereto, in respect of Glen Sather, Kevin Stevens, Bradley Richards, Daniel Girardi, Kevin Shattenkirk, Scott Arniel and Darryl Williams. As of the Distribution Date, MSGS shall assume the compensation and/or salary arrangements, and any agreements and assets related thereto, in respect of Joakim Noah, Zach Randolph, David Fizzdale, Steve Mills and Keith Smart.

Section 8.3 Non-Competition. For the purpose of any non-compete provision in any MSGS Plan or any award thereunder, Spinco shall not be regarded as a “competitive entity.” For the purpose of any non-compete provision in any Spinco Plan or any award thereunder, MSGS shall not be regarded as a “competitive entity.” This Section 8.3 shall apply only so long as MSGS and Spinco remain under common Control.

Section 8.4 Collective Bargaining. To the extent any provision of this Agreement is contrary to the provisions of any collective bargaining agreement to which MSGS or Spinco or any of their respective Subsidiaries is a party, the terms of such collective bargaining agreement shall prevail. Should any provisions of this Agreement be deemed to relate to a topic determined by an appropriate authority to be a mandatory subject of collective bargaining, MSGS or Spinco may be obligated to bargain with the union representing affected employees concerning those subjects.

Section 8.5 Union Dues; Severance and Fringe Benefits. MSGS and its Subsidiaries shall retain responsibility for the payment of dues and severance and fringe benefit payments on behalf of MSGS Employees with respect to the unions set forth on Exhibit F. Spinco and its Subsidiaries shall retain responsibility for the payment of dues and severance and fringe benefit payments on behalf of Spinco Employees with respect to the unions set forth on Exhibit G.

Section 8.6 Director Programs. MSGS shall retain responsibility for the payment of any fees and MSGS RSUs payable in respect of service on the MSGS Board of Directors that are payable but not yet paid as of the Distribution Date, and Spinco shall have no responsibility for any such payments (to an individual who is a member of the Spinco Board of Directors as of the Distribution Date or otherwise).

 

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Section 8.7 Sections 162(m)/409A. Notwithstanding anything in this Agreement to the contrary (including the treatment of supplemental and deferred compensation plans, outstanding long-term incentive awards and annual incentive awards as described herein), the Parties agree to negotiate in good faith regarding the need for any treatment different from that otherwise provided herein to ensure that (i) a federal income tax deduction for the payment of such supplemental or deferred compensation or long-term incentive award, annual incentive award or other compensation is not limited by reason of Section 162(m) of the Code, if applicable, and (ii) the treatment of such supplemental or deferred compensation or long-term incentive award, annual incentive award or other compensation does not cause the imposition of a tax under Section 409A of the Code.

ARTICLE IX

INDEMNIFICATION

Section 9.1 Indemnification. All Liabilities retained or assumed by or allocated to MSGS or the MSGS Group pursuant to this Agreement shall be deemed to be “MSGS Liabilities” (as defined in the Distribution Agreement) for purposes of Article III of the Distribution Agreement, and all Liabilities retained or assumed by or allocated to Spinco or the Spinco Group pursuant to this Agreement shall be deemed to be “Spinco Liabilities” (as defined in the Distribution Agreement) for purposes of Article III of the Distribution Agreement.

ARTICLE X

GENERAL AND ADMINISTRATIVE

Section 10.1 Sharing of Information. MSGS and Spinco (acting directly or through their respective Subsidiaries) shall provide to the other and their respective agents and vendors all Information as the other may reasonably request to enable the requesting Party to administer efficiently and accurately each of its Plans, to assist Spinco in obtaining its own insurance policies to provide benefits under Spinco Plans, and to determine the scope of, as well as fulfill, its obligations under this Agreement; provided, however, that, in the event that any Party reasonably determines that any such provision of Information could be commercially detrimental to such Party or any member of its Group, violate any Law or agreement to which such Party or member of its Group is a party, or waive any attorney-client privilege applicable to such Party or member of its Group, the Parties shall provide any such Information and the Parties shall take all reasonable measures to comply with the obligations pursuant to this Section 10.1 in a manner that mitigates any such harm or consequence to the extent practicable, and the Parties agree to cooperate with each other and take such commercially reasonable steps as may be practicable to preserve the attorney-client privilege with respect to the disclosure of any such Information. Such Information shall, to the extent reasonably practicable, be provided in the format and at the times and places requested, but in no event shall the Party providing such Information be obligated to incur any out-of-pocket expenses not reimbursed by the Party making such request or make such Information available outside of its normal business hours and premises. Any Information shared or exchanged pursuant to this Agreement shall be subject to the same confidentiality requirements set forth in Section 4.4 of the Distribution Agreement.

 

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Section 10.2 Reasonable Efforts/Cooperation. Each of the Parties hereto will use its commercially reasonable efforts to promptly take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable under applicable Laws and regulations to consummate the transactions contemplated by this Agreement, including adopting plans or plan amendments. Each of the Parties hereto shall cooperate fully on any issue relating to the transactions contemplated by this Agreement for which the other Party seeks a determination letter or private letter ruling from the IRS, an advisory opinion from the DOL or any other filing, consent or approval with respect to or by a Governmental Authority.

Section 10.3 Non-Termination of Employment; No Third-Party Beneficiaries. No provision of this Agreement or the Distribution Agreement shall be construed to create any right, or accelerate entitlement, to any compensation or benefit whatsoever on the part of any MSGS Employee or Spinco Employee or other future, present, or former employee of any member of the MSGS Group or Spinco Group under any MSGS Plan or Spinco Plan or otherwise. This Agreement is solely for the benefit of the Parties hereto and their respective successors and permitted assigns. Nothing in this Agreement, express or implied, is intended to or shall confer upon any other person or persons (including any employee or former employee of MSGS or Spinco or either of their respective Subsidiaries or any beneficiary or dependent thereof) any rights, benefits or remedies of any nature whatsoever under or by reason of this Agreement. No provision in this Agreement shall modify or amend any other agreement, plan, program, or document unless this Agreement explicitly states that the provision “amends” that other agreement, plan, program, or document. This shall not prevent the Parties entitled to enforce this Agreement from enforcing any provision in this Agreement, but no other person shall be entitled to enforce any provision in this Agreement on the grounds that it is an amendment to another agreement, plan, program, or document unless the provision is explicitly designated as such in this Agreement, and the person is otherwise entitled to enforce the other agreement, plan, program, or document. If a person not entitled to enforce this Agreement brings a lawsuit or other action to enforce any provision in this Agreement as an amendment to another agreement, plan, program, or document, and that provision is construed to be such an amendment despite not being explicitly designated as one in this Agreement, that provision in this Agreement shall be void ab initio, thereby precluding it from having any amendatory effect. Furthermore, nothing in this Agreement is intended to confer upon any employee or former employee of MSGS, Spinco or either of their respective Subsidiaries any right to continued employment, or any recall or similar rights to an individual on layoff or any type of approved leave.

Section 10.4 Consent of Third Parties. If any provision of this Agreement is dependent on the consent of any third party and such consent is withheld, the Parties hereto shall use their reasonable best efforts to implement the applicable provisions of this Agreement to the fullest extent practicable. If any provision of this Agreement cannot be implemented due to the failure of such third party to consent, the Parties hereto shall negotiate in good faith to implement the provision in a mutually satisfactory manner.

Section 10.5 Access to Employees. Following the Distribution Date, MSGS and Spinco shall, or shall cause each of their respective Subsidiaries to, make available to each other those of their employees who may reasonably be needed in order to defend or prosecute any legal or administrative action (other than a legal action between any member of the MSGS Group and any member of the Spinco Group) to which any employee, director or Plan of the MSGS Group or Spinco Group is a party and which relates to their respective Plans prior to the Distribution Date.

 

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Section 10.6 Beneficiary Designation/Release of Information/Right to Reimbursement. To the extent permitted by applicable Law and except as otherwise provided for in this Agreement, all beneficiary designations, authorizations for the release of information and rights to reimbursement made by or relating to Spinco Participants under MSGS Plans shall be transferred to and be in full force and effect under the corresponding Spinco Plans until such beneficiary designations, authorizations or rights are replaced or revoked by, or no longer apply to, the relevant Spinco Participant.

Section 10.7 Not a Change in Control. The Parties hereto acknowledge and agree that the transactions contemplated by the Distribution Agreement and this Agreement do not constitute a “change in control” for purposes of any MSGS Plan or Spinco Plan.

ARTICLE XI

MISCELLANEOUS

Section 11.1 Effect If Distribution Does Not Occur. Notwithstanding anything in this Agreement to the contrary, if the Distribution Agreement is terminated prior to the Distribution Date, then all actions and events that are, under this Agreement, to be taken or occur effective immediately prior to or as of the Distribution Date, or otherwise in connection with the Distribution, shall not be taken or occur except to the extent specifically agreed to in writing by MSGS and Spinco and neither Party shall have any Liability to the other Party under this Agreement.

Section 11.2 Complete Agreement; Construction. This Agreement, including the Exhibits, shall constitute the entire agreement between the Parties with respect to the subject matter hereof and shall supersede all previous negotiations, commitments and writings with respect to such subject matter.

Section 11.3 Counterparts. This Agreement may be executed in one or more counterparts, all of which shall be considered one and the same agreement, and shall become effective when one or more such counterparts have been signed by each of the Parties and delivered to the other Party.

Section 11.4 Survival of Agreements. Except as otherwise contemplated by this Agreement, all covenants and agreements of the Parties contained in this Agreement shall survive the Distribution Date.

Section 11.5 Notices. All notices and other communications hereunder shall be in writing, shall reference this Agreement and shall be hand delivered or mailed by registered or certified mail (return receipt requested) to the Parties at the following addresses (or at such other addresses for a Party as shall be specified by like notice) and will be deemed given on the date on which such notice is received:

To MSG:

The Madison Square Garden Company (or, after the applicable name change, Madison Square Garden Sports Corp.)

Two Penn Plaza

New York, New York 10121

Attention: General Counsel

 

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To Spinco:

MSG Entertainment Spinco, Inc. (or, after the applicable name change, Madison Square Garden Entertainment Corp.)

Two Penn Plaza

New York, New York 10121

Attention: General Counsel

Section 11.6 Waivers. The failure of any Party to require strict performance by any other Party of any provision in this Agreement will not waive or diminish that Party’s right to demand strict performance thereafter of that or any other provision hereof.

Section 11.7 Amendments. Subject to the terms of Sections 11.8 and 11.10 hereof, this Agreement may not be modified or amended except by an agreement in writing signed by each of the Parties.

Section 11.8 Assignment. This Agreement shall not be assignable, in whole or in part, directly or indirectly, by any Party without the prior written consent of the other Party, and any attempt to assign any rights or obligations arising under this Agreement without such consent shall be void; provided that either Party may assign this Agreement to a purchaser (by merger, sale of assets or otherwise) of all or substantially all of the properties and assets of such Party so long as such purchaser expressly assumes, in a written instrument in form reasonably satisfactory to the non-assigning Party, the due and punctual performance or observance of every agreement and covenant of this Agreement on the part of the assigning Party to be performed or observed. Any arrangement in violation of the provisions of this Section 11.8 shall be void.

Section 11.9 Successors and Assigns. The provisions to this Agreement shall be binding upon, inure to the benefit of and be enforceable by the Parties and their respective successors and permitted assigns.

Section 11.10 Subsidiaries. Each of the Parties shall cause to be performed, and hereby guarantees the performance of, all actions, agreements and obligations set forth herein to be performed by any entity that is contemplated to be a Subsidiary of such Party after the Distribution Date.

Section 11.11 Title and Headings. Titles and headings to Sections herein are inserted for convenience of reference only and are not intended to be a part of or to affect the meaning or interpretation of this Agreement.

Section 11.12 Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS MADE AND TO BE PERFORMED IN THE STATE OF NEW YORK.

 

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Section 11.13 Waiver of Jury Trial. The Parties hereby irrevocably waive any and all right to trial by jury in any legal proceeding arising out of or related to this Agreement.

Section 11.14 Specific Performance. From and after the Distribution, in the event of any actual or threatened default in, or breach of, any of the terms, conditions and provisions of this Agreement, the Parties agree that the Party to this Agreement who is or is to be thereby aggrieved shall have the right to specific performance and injunctive or other equitable relief of its rights under this Agreement, in addition to any and all other rights and remedies at law or in equity, and all such rights and remedies shall be cumulative. The Parties agree that, from and after the Distribution, the remedies at law for any breach or threatened breach of this Agreement, including monetary damages, are inadequate compensation for any Loss, that any defense in any action for specific performance that a remedy at law would be adequate is hereby waived, and that any requirements for the securing or posting of any bond with such remedy are hereby waived.

Section 11.15 Severability. In the event any one or more of the provisions contained in this Agreement should be held invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions contained herein and therein shall not in any way be affected or impaired thereby. The Parties shall endeavor in good faith negotiations to replace the invalid, illegal or unenforceable provisions with valid provisions, the economic effect of which comes as close as possible to that of the invalid, illegal or unenforceable provisions.

[signature page follows]

 

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IN WITNESS WHEREOF, the Parties have caused this Agreement to be duly executed as of the date first above written.

 

THE MADISON SQUARE GARDEN COMPANY

(to be renamed Madison Square Garden Sports Corp.)

By:  

/s/ Andrew Lustgarten

  Name:   Andrew Lustgarten
  Title:   President

MSG ENTERTAINMENT SPINCO, INC.

(to be renamed Madison Square Garden Entertainment Corp.)

By:  

/s/ James L. Dolan

  Name:   James L. Dolan
  Title:   Executive Chairman and Chief Executive Officer

[Signature Page to Employee Matters Agreement]