It affirms Nero's "final decision-making authority with respect to music, musicians, instruments, arrangements, rehearsals, staging, guest soloists, and other guest artists."
In fact, Nero's lawyer contends, the new deal represents an advance: instead of being music director, he will now be artistic director.
"What is clear is, not only was he not rejected, he was promoted. He wasn't fired, he was promoted to the chief," Paul R. Rosen said.
ESI had argued that it could no longer afford Nero, proposing a 40 percent pay cut - though it filed for Chapter 11 not for issues relating to Nero and finances, but rather to the Philadelphia Orchestra Association's bankruptcy. In the new agreement, Nero agreed to a few minor trims in compensation and a slight reduction in rehearsal time, which saves ESI money.
Nero's new contract calls for him to be paid between $15,500 and $19,500 per concert - $295,000 for 18 performances. (He earned $513,000 per year under the old deal, but that was for conducting more concerts.) In addition, he will be paid various amounts for music rentals, transportation, and other expenses associated with his responsibilities as music director, programmer, and booker.
"I'm really happy that I and Encore have reached an agreement so that I can continue to lead the orchestra that I have led for the past 33 years," Nero said by e-mail. "I've devoted a large portion of my life to this orchestra and intend to continue to strive for excellence and to raise the level of Pops like no other orchestra in the country."
Pops president Frank Giordano called the new deal "a good agreement" and said ESI could afford its terms. "It achieves what we both hoped it would achieve, Peter and ESI," he said.
The ESI board next week will consider a reorganization plan to exit bankruptcy that would be filed for Frank's consideration shortly thereafter, Giordano said.
Nero will conduct four of the Pops' six scheduled programs next season including repeats - 18 of 24 concerts. Pops conductor Michael Krajewski will lead the March series. Marvin Hamlisch is guest in April.
Asked if Hamlisch could eventually direct the Pops, Giordano said: "Certainly he's one of the conductors we're considering, but we have not made a decision at this time."
A season announcement listing Nero as conductor for all next season's concerts went out weeks ago, and new materials with changes in conductors will be mailed to Pops subscribers, Giordano said.
Rosen said negotiations turned on the fact that Nero was not an employee of ESI, and therefore ESI could not reject his employment. In fact, Rosen said, ESI worked for Nero as the presenter. Nero owns the rights to the name "Peter Nero and the Philly Pops" as well as "Philly Pops," and, Rosen contended, he could have put on concerts under those names without ESI.
Under the new terms, Nero will continue to own, and be compensated for, the use of those two names until June 30, 2013. ESI forfeits the right to the names if it does not make good on its three buyout payments to Nero - which total $150,000 - for the 2013-14 season covered under his previous contract that he will now not conduct.
In addition, ESI must pay Nero $50,000 annually as long as he lives for use of the names. Failure to make payments would result in Nero's being "free once again to exclusively use, exploit, and perform under the names Peter Nero and the Philly Pops, Philly Pops, Peter Nero and the Philadelphia Pops, and Philadelphia Pops."
The agreement refers to additional penalties if ESI fails to make buyout payments. Those remedies, relating to ESI's "assets and operations," are set forth in a separate agreement ESI plans to submit to the court along with a request for the judge to seal its contents.
Nero will not cease to be a Philadelphia presence even after June 30, 2013. The agreement calls for him to lead Independence Day concerts in 2013 and 2014 and perhaps beyond, plus possibly concerts in Trenton, Cape May, and Reading.
Nero is free to accept guest conducting and appearances with other ensembles, the contract states. Nero has said he had routinely turned down outside engagements because of his long partnership with the Pops.
With his new control, Rosen said, "he is back where he was before, so he can get on with his life."
Contact Peter Dobrin at 215-854-5611 or email@example.com. Read his blog at www.philly.com/artswatch.