Exhibit 10.2
EMPLOYMENT
AGREEMENT
This Employment Agreement
(“Agreement”) is between Clear Channel Outdoor Holdings, Inc. (such entity
together with all past, present, and future parents, divisions, operating
companies, subsidiaries, and affiliates are referred to collectively herein as
“Company”) and Scott Wells (“Employee”).
1.
TERM
OF EMPLOYMENT
This Agreement commences March 3, 2015 (“Effective Date”),
and ends on March 2, 2019 (the “Employment Period”), and shall be automatically
extended for additional four (4) year periods, unless either
Company or Employee gives written notice of non-renewal that the Employment
Period shall not be extended, or otherwise terminated in accordance with the
provisions herein. Notice must be provided between August 1st and September 1st prior to
the end of the then applicable Employment Period (the “Notice of Non-Renewal
Period”). The term “Employment Period” shall refer to the Employment Period if
and as so extended.
2.
TITLE
AND EXCLUSIVE SERVICES
(a)
Title
and Duties. Employee’s title is Chief Executive
Officer of Clear Channel Outdoor Americas, and Employee shall perform job
duties that are usual and customary for this position. Employee shall report
to Robert W. Pittman, the Chairman and Chief Executive Officer of Clear Channel
Outdoor Holdings, Inc., and Richard J. Bressler, the Chief Financial Officer of
Clear Channel Outdoor Holdings, Inc., or their successors.
(b)
Exclusive
Services.
Employee shall not be employed or render services elsewhere
during the Employment Period; provided, however, that Employee may (i)
participate in professional, civic or charitable organizations so long as such
participation is unpaid, and (ii) serve on the boards of for-profit
organizations with the prior consent of the Company, which consent shall not be
unreasonably withheld, so long as the activities in (i) and (ii), individually
or in the aggregate, do not interfere with the performance of Employee’s duties
on behalf of the Company.
(c)
Prior
Employment.
Employee affirms that no obligation exists with any prior employer or entity
which would prevent full performance of this Agreement, or subject Company to
any claim with respect to Company’s employment of Employee.
3.
COMPENSATION
AND BENEFITS
(a)
Base
Salary.
Employee shall be paid an annualized salary of Seven Hundred Fifty Thousand
Dollars ($750,000.00) (“Base Salary”), subject to
overtime eligibility, if applicable. The Base Salary shall be payable
in accordance with Company’s regular payroll practices and pursuant to Company
policy, which may be amended from time to time. Employee’s Base Salary shall
not be decreased, and Employee is eligible for salary increases at Company’s
discretion based on Company and/or individual performance.
(b)
Vacation. Employee is
eligible for 20 vacation days per year which shall accrue, may be used, and
shall be paid in accordance with the Employee Guide.
(c)
Annual
Bonus.
Eligibility for an Annual Bonus is based on financial and performance criteria
established by Company and approved in the annual budget, pursuant to the terms
of the applicable bonus plan which operates at the discretion of Company and
its Board of Directors, and is not a guarantee of compensation.
Notwithstanding the foregoing, the target amount of Employee’s Annual Bonus for
purposes of this Agreement shall be not less than one hundred percent (100%) of
Employee’s Base Salary (the “Target Bonus”). The payment of any Bonus shall be
no later than March 15 each calendar year following the year in which the Bonus
was earned, within the Short-Term Deferral period under the Internal Revenue
Code Section 409A (“Section 409A”) and applicable regulations.
(d)
One-Time
Long Term Incentive Grant. As soon as practicable following the Effective Date,
the Company shall recommend to the Board of Directors or the Compensation
Committee of Clear Channel Outdoor Holdings, Inc. (“CCOH”) to grant to Employee
a one-time Long Term Incentive (“LTI”) grant of stock options with an
approximate value of One Million Five
Hundred Thousand
Dollars ($1,500,000.00), based upon current Black-Scholes valuation pursuant to
the Clear Channel Outdoor Holdings, Inc. 2012 Stock Incentive Plan (the “Plan”)
and the award agreement. Fifty percent (50%) of the award shall have
performance-based vesting (such portion, the “Performance Vesting Options”) and
Fifty percent (50%) of the award shall vest over time (the “Time Vesting
Options”). Subject to Section 9(d), the Time Vesting Options shall vest in
equal amounts on the first, second, third and fourth anniversaries of the
Effective Date, so long as Employee remains employed on the vesting date.
Subject to Section 9(d), the Performance Vesting Options shall vest as follows:
(i) 50% of the Performance Vesting Options shall vest on the date that OIBDAN
of Clear Channel Outdoor Americas (“CCOA”) is determined
to be $599,137,000, and (ii) the remaining 50% of the Performance Vesting
Options shall vest on the date that CCOA’s OIBDAN is determined to be $664,137,000,
(each OIBDAN threshold a “Performance Hurdle” based upon the CCOA OIBDAN result
approved by the Compensation Committee each year for purposes of paying
executive incentive compensation), so long as Employee remains employed on the
vesting date. The measurement period for determination of the achievement of
the Performance Hurdle shall be based on the annual period beginning on January
1st of each year and ending on December 31st of each
year. In the event of any divestitures or acquisitions, the parties shall
negotiate and agree to reasonable adjustments to the Performance Hurdle.
(e)
Annual Long Term Incentive. Employee shall be immediately
eligible for additional Long Term Incentive opportunities with an approximate
value of $1,000,000.00 for each award, consistent with other comparable
positions pursuant
to the terms of the award agreement(s), taking
into consideration demonstrated performance and potential, and subject to
approval by the Board of Directors or the Compensation Committee of CCOH, as
applicable.
(f)
Employment
Benefit Plans.
Employee may participate in employee welfare benefit plans in which other
similarly situated employees may participate, according to the terms of
applicable policies and as stated in the Employee Guide.
(g)
Attorneys’
Fees.
Company shall reimburse Employee for attorneys’ fees incurred in the review and
negotiation of this Agreement and related agreements concerning Employee’s
employment by Company up to a maximum reimbursement of Twenty Five Thousand
Dollars ($25,000) in the aggregate, subject to the submission of a summary
invoice from Employee’s attorney, which for the avoidance of doubt shall not
include any confidential or privileged information. Reimbursement shall be
made in lump sum within thirty (30) days of submission of such invoice.
(h)
Travel
and Expenses.
Employee shall be entitled to fly business class on international flights and
for any domestic flight greater than or equal to three (3) hours in duration,
the ticket for such flight shall have the classification of “Y-UP” or similar
full-fare classification allowing for automatic upgrades to business class or
first class. Company shall reimburse Employee for business and travel expenses
consistent with past practice with respect to similarly situated employees
pursuant to Company policy.
(i)
Taxes
and Deductions.
Compensation pursuant to this section shall in all cases be less applicable
payroll taxes and other deductions.
4.
NONDISCLOSURE
OF CONFIDENTIAL INFORMATION
(a)
Company
has provided and shall continue to provide to Employee confidential information
and trade secrets including but not limited to Company’s permits, landlord and
property owner information, marketing plans, growth
strategies, target lists, performance goals, operational strategies,
specialized training expertise, employee development, engineering information,
sales information, terms of negotiated leases, client and customer lists,
contracts, representation agreements, pricing information, production and cost
data, fee information, strategic business plans, budgets, financial statements,
technological initiatives, proprietary research or software purchased or
developed by Company, information about employees obtained by virtue of an
employee’s job responsibilities and other information Company treats as
confidential or proprietary (collectively the “Confidential Information”).
Employee acknowledges that such Confidential Information is proprietary and
agrees not to disclose it to anyone outside Company except to the extent that:
(i) it is necessary in connection with performing Employee’s duties; or (ii)
Employee is required by court order to disclose the Confidential Information,
provided that Employee shall promptly inform Company, shall cooperate with
Company to obtain a protective order or otherwise restrict disclosure, and
shall only disclose Confidential Information to the minimum extent necessary to
comply with the court order. Employee agrees to never use trade secrets in
competing, directly or indirectly, with Company. When employment ends,
Employee will immediately return all Confidential Information to Company.
(b)
The
terms of this Section 4 shall survive the expiration or termination of this
Agreement for any reason. Further, this Section 4 shall not be applied to
interfere with Employee’s Section 10 rights under the National Labor Relations
Act.
5.
NON-INTERFERENCE
WITH COMPANY EMPLOYEES
(a)
To
further preserve Company’s Confidential Information, goodwill and legitimate
business interests, during employment and for twelve (12) months after
employment ends (the “Non-Interference Period”), Employee shall not, directly
or indirectly, hire, engage or solicit any current employee of Company with
whom Employee had contact, supervised, or received Confidential Information
about within the twelve (12) months prior to Employee’s termination, to provide
services elsewhere or cease providing services to Company.
(b)
The
terms of this Section 5 shall survive the expiration or termination of this
Agreement for any reason.
6.
NON-SOLICITATION
OF CLIENTS
(a)
To
further preserve Company’s Confidential Information, goodwill and legitimate
business interests, for twelve (12) months after employment ends (the
“Non-Solicitation Period”), Employee shall not, directly or indirectly, solicit
Company’s clients, governmental or quasi-governmental organizations or their affiliated
agencies, or property owners/tenants, licensors, or property managers with whom
Employee engaged or had contact, or received Confidential Information about
within the twelve (12) months prior to Employee’s termination.
(b)
The
terms of this Section 6 shall survive the expiration or termination of this
Agreement for any reason.
7.
NON-COMPETITION
AGREEMENT
(a)
To
further preserve Company's Confidential Information,
goodwill, specialized training expertise, and legitimate business
interests, Employee agrees that during employment and for twelve (12) months
after employment ends (the “Non-Compete Period”), Employee shall not perform,
directly or indirectly, the same or similar services provided by Employee for
Company, or in a capacity that would otherwise likely result in the use or
disclosure of Confidential Information, for any entity engaged in a business in
which Company is engaged (including such business that is in the research,
development or implementation stages), and with which Employee participated at
the time of Employee’s termination or within the twelve (12) months prior to
Employee’s termination or about which Employee received Confidential
Information, (“Competitor”), including, but not limited to: JC Decaux
Corporation; Titan Media Company; Fairway Outdoor; Adams Outdoor; Outfront
Media or Lamar Advertising Company, in any geographic region in which Employee
has or had duties or in which Company does business and about which Employee
has received Confidential Information (the “Non-Compete Area”).
Notwithstanding the foregoing, the parties acknowledge and agree that: (i)
nothing contained herein will preclude Employee from purchasing or owning
securities of any Competitor if such securities are publicly traded and
Employee’s holdings do not exceed two percent (2%) of the issued and
outstanding securities of any class of securities of such Competitor, and (ii)
nothing contained herein will prevent Employee from being employed by a
subsidiary, division, affiliate or unit (each, a “Unit”) of any business
organization if that Unit is not a Competitor of the Company, irrespective of
whether some other Unit of such business organization is a Competitor of the
Company, so long as Employee does not provide any services to or for any such
other Unit(s) that is a Competitor of Company and does not disclose any
Confidential Information to any such Unit(s) that is a Competitor of
Company.
(b)
The
terms of this Section 7 shall survive the expiration or termination of this
Agreement for any reason.
8.
TERMINATION
This Agreement
and/or Employee’s employment may be terminated by mutual agreement or:
(a)
Death. The date of
Employee’s death shall be the termination date.
(b)
Disability. Company may
terminate this Agreement and/or Employee’s employment if Employee is unable to
perform the essential functions of Employee’s full-time position for more than
180 days in any 12-month period, subject to applicable law.
(c)
Termination
By Company.
Company may terminate employment with or without Cause. “Cause” means:
(i)
willful
misconduct, including, without limitation, violation of sexual or other
harassment policy, misappropriation of or material misrepresentation regarding
property of Company, other than customary and de minimis use of Company
property for personal purposes;
(ii)
willful
refusal to perform, or repeated failure to perform, the Employee’s lawfully
assigned duties that are consistent with the Employee’s title and authority
(other than by reason of disability);
(iii)
willful
refusal to follow, or repeated failure to follow, the lawfully assigned
directives that are consistent with the Employee’s title and authority;
(iv)
a
felony conviction, a plea of nolo contendere by Employee, or other criminal conduct
by Employee that has or would result in material injury to Company, including
conviction of fraud, theft, embezzlement, or a crime involving moral turpitude;
(v)
a
material breach of this Agreement; or
(vi)
a
material violation of Company’s written employment and management policies that
has or would result in material injury to Company.
If Company elects
to terminate for Cause under (c)(ii), (iii), (v) or (vi), Employee shall have
fifteen (15) days to cure after written notice, except where such cause, by its
nature, is not curable or the termination is based upon a recurrence of an act
previously cured by Employee.
(d)
Termination
by Employee.
Subject to Section 8(e), Employee may terminate Employee’s employment at any time
with “Good Reason,” which is:
(i)
a
material diminution of Employee’s base compensation hereunder;
(ii)
a
requirement by the Company that Employee relocate his residence to a location
more than thirty five (35) miles from the Employee’s residence at such time;
(iii)
a
material diminution in Employee’s duties, authority or responsibilities;
(iv)
a
requirement that Employee report to any person of lesser authority than the
Chairman and Chief Executive Officer of CCOH or the Chief Financial Officer of
CCOH; or
(v)
a
material breach of this Agreement by Company.
If Employee elects
to terminate for Good Reason under this Section 8(d), then (A) Employee must
provide Company with written notice within thirty (30) days of such condition
occurring that Employee intends to terminate Employee’s employment hereunder
for one of the circumstances set forth above, (B) if such circumstance is
capable of being cured, Company shall have thirty (30) days to cure. If
Company has not cured and Employee elects to terminate Employee’s employment,
Employee must do so within ten (10) days after the end of the cure period.
For purposes of clarification, the above-listed conditions shall apply
separately to each occurrence of Good Reason and failure to adhere to such
conditions in the event of Good Reason shall not disqualify Employee from
asserting Good Reason for any subsequent occurrence or condition of Good
Reason.
(e)
Non-Renewal. Following notice
by either party under Section 1, Company shall determine the termination date
and may, in its sole discretion, modify Employee’s duties and/or
responsibilities at any point after such notice has been provided, through the
end of the Employment Period.
9.
COMPENSATION
UPON TERMINATION
(a)
Death. Company shall,
within thirty (30) days, pay to Employee’s designee or, if no person is
designated, to Employee’s estate, Employee’s accrued and unpaid Base Salary and
any unpaid prior year bonus, if any, through the date of termination, any
business expenses incurred by Employee but not yet reimbursed by Company, and
any other payments required under applicable employee benefit plans
(collectively the “Accrued Obligations”).
(b)
Disability. Company shall,
within thirty (30) days, pay all Accrued Obligations to the Employee.
(c)
Termination
By Company For Cause.
Company shall, within thirty (30) days, pay all Accrued Obligations to
Employee.
(d)
Termination
By Company Without Cause, Non-Renewal by Company, Termination by Employee for
Good Reason.
If Company terminates employment without Cause or Non-Renews, or if Employee
terminates employment for Good Reason, then Company shall pay all Accrued
Obligations to Employee. In addition, if Employee signs a Severance Agreement
and General Release of claims in a form satisfactory to Company:
(i)
Company
shall pay Employee, in periodic payments in accordance with ordinary payroll
practices and deductions, Employee’s current Base Salary for eighteen (18)
months (the “Severance Payments” or “Severance Pay Period”);
(ii)
Employee
shall be eligible for a pro-rata bonus (“Pro-Rata Bonus”), calculated based
upon performance as of the termination date as related to overall performance
at the end of the calendar year. Employee shall receive such Pro-Rata
Bonus only if Employee would have earned the bonus had Employee remained
employed through the end of the applicable calendar year. Calculation and
payment of the bonus, if any, shall be pursuant to the plan in effect during
the termination year;
(iii)
Company
shall pay Employee a separation bonus in an amount equal to the Target Bonus to
which Employee would be entitled for the year in which Employee’s employment
terminates, payable in a lump sum;
(iv)
Company
shall pay Employee in a lump sum an amount equal to the product of (A) twelve
(12) and (B) the COBRA premiums Employee would be required to pay if Employee
elected pursuant to COBRA to continue the health benefits coverage Employee had
prior to the termination date (less the amount that Employee would have to pay
for such coverage as an active employee) (the “COBRA Payment”), less applicable
federal and state withholdings and all other applicable deductions; provided,
however, that Employee shall be solely responsible for timely enrolling for any
COBRA or Marketplace coverage and paying any required premiums, but shall not
be required to enroll in any such coverage and Company is not placing any
restrictions upon the use by Employee of such payment as a condition upon the
receipt of the payment under this section; and
(v)
Any
unvested Time Vesting Options scheduled to vest within the twelve (12) month
period following the date of termination shall vest in full on the date of
termination. Any unvested Performance Vesting Options shall remain eligible to
vest for the three (3) month period following the date of termination.
The above-described Severance
Agreement and General Release shall be provided to Employee on or before
Employee’s termination date, and must be executed by Employee and irrevocable
by the thirtieth (30th) day following the termination date. The
payments and benefits described above shall be provided to Employee (or shall
begin to be provided to Employee, as applicable) no later than the second
regularly scheduled payroll date following the date that the Severance
Agreement and General Release is effective and irrevocable, subject to Section
18 below; provided, however, in the event that the period in which Employee has
to review and execute the Severance Agreement and General Release begins in one
tax year and ends in a later tax year, the payments and benefits described
above shall be provided to Employee (or shall begin to be provided to Employee,
as applicable) in the later tax year.
(e)
Non-Renewal By Employee. If Employee gives notice of
non-renewal under Section 1, Company shall pay all Accrued Obligations to Employee.
If the termination date is before the end of the then current Employment
Period, then Company shall, in periodic payments in accordance with ordinary
payroll practices and deductions, pay Employee an amount equal to Employee’s
pro-rata Base Salary through the end of the then current Employment Period.
(f)
Employment
by Competitor or Re-hire by Company During Severance Pay Period.
(i)
If
Employee is in breach of any post-employment obligations or covenants, or if
Employee is hired or engaged in any capacity by any Competitor of Company, in
Company’s sole discretion, in any location during any Severance Pay Period,
Severance Payments shall cease. The foregoing shall not affect Company’s right
to enforce the Non-Compete pursuant to Section 7. Employee acknowledges that
each individual Severance Payment received is adequate and independent
consideration to support Employee’s General Release of claims referenced in
Section 9(d), as each is something of value to which Employee would not have
otherwise been entitled at termination had Employee not executed a General
Release of claims.
(ii)
If
Employee is rehired by Company during any Severance Pay Period, Severance
Payments shall cease; however, if Employee’s new Base Salary is less than Employee’s
previous Base Salary, Company shall pay Employee the difference between
Employee’s previous and new Base Salary for the remainder of the Severance Pay
Period.
10.
CONSULTING
PERIOD
Nothing obligates Company to use Employee’s
services except as it may elect to do so. Any time prior to the Notice of
Non-Renewal Period, Company may elect, in its sole discretion, to place
Employee in a consulting status for eighteen (18) months (the “Consulting
Period”), which is coextensive with and may extend the Employment Period, after
which the Employment Period shall end. Company shall have fully discharged its
obligations hereunder by (i) payment to Employee of the Base Salary for the Consulting
Period, (ii) payment to Employee of the Pro Rata Bonus based upon performance
as of the date on which Employee is placed in a consulting status as related to
overall performance at the end of the calendar year, provided, however, that Employee shall
receive such Pro-Rata Bonus only if Employee would have earned the bonus had
Employee remained in his prior (non-consulting) status through the end of the
applicable calendar year;
(iii) payment to Employee of the Target Bonus for the year in which the Employee
was placed in consulting status in a lump sum on the last day of the Consulting
Period; (iv) payment to Employee of the COBRA Payment in a lump sum within
thirty (30) days following the commencement of the Consulting Period, (v)
continuing the vesting period of any Time Vesting Options for twelve (12)
months only following the commencement of the Consulting Period; and (vi)
continuing the vesting period of the Performance Vesting Options for three (3)
months only following the commencement of the Consulting Period. While Company
retains the exclusive right to Employee’s services during the Consulting Period
and Employee shall perform duties as directed in Company’s discretion, Company
shall limit its requests for services to allow Employee the ability to accept
and perform non-competitive services if Employee so chooses. Notwithstanding
Section 3(f) above, Employee’s participation in Company’s benefit plans may
change or be terminated in accordance with Company’s applicable benefit plans.
During any Consulting Period, any vacation benefits, long term incentive awards
or options shall not continue to vest or accrue except as specifically provided
for herein. This Section does not supersede the termination provisions set
forth in Section 8 (a), (b) or (c) (for cause) of this Agreement. Placement of
Employee in a consulting capacity shall not trigger Good Reason by Employee
under Section 8(d). If Company elects to place Employee in a Consulting
Period, Employee is not entitled to any payments under Section 9(d), and
Sections 5, 6 and 7 shall not apply following the end of the Employment Period.
11.
OWNERSHIP
OF MATERIALS
(a)
Employee
agrees that all inventions, improvements, discoveries, designs, technology, and
works of authorship (including but not limited to computer software) made,
created, conceived, or reduced to practice by Employee, whether alone or in
cooperation with others, during employment, together with all patent,
trademark, copyright, trade secret, and other intellectual property rights
related to any of the foregoing throughout the world, are among other things
works made for hire (the “Works”) and at all times are owned exclusively by
Company, and in any event, Employee hereby assigns all ownership in such rights
to Company. Employee understands that the Works may be modified or altered and
expressly waives any rights of attribution or integrity or other rights in the
nature of moral right (droit morale) for all uses of the Works.
Employee agrees to provide written notification to Company of any Works covered
by this Agreement, execute any documents, testify in any legal proceedings, and
do all things necessary or desirable to secure Company’s rights to the
foregoing, including without limitation executing inventors’ declarations and assignment
forms, even if no longer employed by Company. Employee agrees that Employee
shall have no right to reproduce, distribute copies of, perform publicly,
display publicly, or prepare derivative works based upon the Works. Employee
hereby irrevocably designates and appoints Company as Employee’s agent and
attorney-in-fact, to act for and on Employee’s behalf regarding obtaining and
enforcing any intellectual property rights that were created by Employee during
employment and related to the performance of Employee’s job. Employee agrees
not to incorporate any intellectual property created by Employee prior to
Employee’s employment, or created by any third party, into any Company work
product. This Agreement does not apply to an invention for which no equipment,
supplies, facility, or trade secret information of Company was used and which
invention was developed entirely on Employee’s own time, so long as the
invention does not: (i) relate directly to the business of Company; (ii) relate
to Company’s actual or demonstrably anticipated research or development, or
(iii) result from any work performed by Employee for Company.
(b)
The
terms of this Section 11 shall survive the expiration or termination of this
Agreement for any reason.
12.
PARTIES
BENEFITED; ASSIGNMENTS
This Agreement shall be
binding upon Employee, Employee’s heirs and Employee’s personal representative
or representatives, and upon Company and its respective successors and
assigns. Employee hereby consents to the Agreement being enforced by any successor
or assign of Company without the need for further notice to or consent by
Employee. Neither this Agreement nor any rights or obligations hereunder may
be assigned by Employee, other than by will or by the laws of descent and
distribution.
13.
GOVERNING
LAW
This Agreement shall be
governed by the internal and substantive laws of the State of Texas without
respect to choice of law principles.
14.
LITIGATION
AND REGULATORY COOPERATION
During and after
employment, Employee shall reasonably cooperate in the defense or prosecution
of claims, investigations, or other actions which relate to events or
occurrences during employment. Employee’s cooperation shall include being
available to prepare for discovery or trial and to act as a witness. Company
shall pay an hourly rate (based on Base Salary as of the last day of
employment) for cooperation that occurs after employment, and reimburse for
reasonable expenses, including travel expenses, reasonable attorneys’ fees and
costs.
15.
INDEMNIFICATION
Company shall defend and
indemnify Employee to the maximum extent permitted under applicable law for
acts committed in the course and scope of employment, which indemnification
shall include at a minimum, indemnification rights, and cost reimbursements.
Employee shall indemnify Company for claims of any type concerning Employee’s
conduct outside the scope of employment, or the breach by Employee of this
Agreement.
16.
DISPUTE
RESOLUTION
(a)
Arbitration. This Agreement
is governed by the Federal Arbitration Act, 9 U.S.C. § 1 et seq. and
evidences a transaction involving commerce. This Agreement applies to any
dispute arising out of or related to this Agreement or Employee's employment
with Company or termination of employment. Nothing contained in this Agreement
shall be construed to prevent or excuse Employee from using the Company’s
existing internal procedures for resolution of complaints, and this Agreement
is not intended to be a substitute for the use of such procedures. Except as
it otherwise provides, this Agreement is intended to apply to the resolution of
disputes that otherwise would be resolved in a court of law, and therefore this
Agreement requires all such disputes to be resolved only by an arbitrator
through final and binding arbitration and not by way of court or jury trial.
Such disputes include without limitation disputes arising out of or relating to
interpretation or application of this Agreement, including the enforceability,
revocability or validity of the Agreement or any portion of the Agreement. The
Agreement also applies, without limitation, to disputes regarding the
employment relationship, trade secrets, unfair competition, compensation,
breaks and rest periods, termination, or harassment and claims arising under
the Uniform Trade Secrets Act, Civil Rights Act of 1964, Americans With
Disabilities Act, Age Discrimination in Employment Act, Family Medical Leave
Act, Fair Labor Standards Act, Employee Retirement Income Security Act, and
state statutes, if any, addressing the same or similar subject matters, and all
other state statutory and common law claims (excluding workers compensation,
state disability insurance and unemployment insurance claims). Claims may be
brought before an administrative agency but only to the extent applicable law
permits access to such an agency notwithstanding the existence of an agreement
to arbitrate. Such administrative claims include without limitation claims or
charges brought before the Equal Employment Opportunity Commission (www.eeoc.gov), the U.S. Department of Labor (www.dol.gov), the National Labor Relations
Board (www.nlrb.gov), the Office of
Federal Contract Compliance Programs (www.dol.gov/esa/ofccp). Nothing in this
Agreement shall be deemed to preclude or excuse a party from bringing an
administrative claim before any agency in order to fulfill the party's
obligation to exhaust administrative remedies before making a claim in
arbitration. Disputes that may not be subject to pre-dispute arbitration
agreement as provided by the Dodd-Frank Wall Street Reform and Consumer
Protection Act (Public Law 111-203) are excluded from the coverage of this
Agreement.
(b)
The
Arbitrator shall be selected by mutual agreement of Company and Employee.
Unless Employee and Company mutually agree otherwise, the Arbitrator shall be
an attorney licensed to practice in the location where the arbitration
proceeding shall be conducted or a retired federal or state judicial officer
who presided in the jurisdiction where the arbitration shall be conducted. If
for any reason the parties cannot agree to an Arbitrator, either party may
apply to a court of competent jurisdiction with authority over the location
where the arbitration shall be conducted for appointment of a neutral
Arbitrator. The court shall then appoint an Arbitrator, who shall act under
this Agreement with the same force and effect as if the parties had selected
the Arbitrator by mutual agreement. The location of the arbitration proceeding
shall be no more than 45 miles from the place where Employee last worked for
Company, unless each party to the arbitration agrees in writing otherwise.
(c)
A
demand for arbitration must be in writing and delivered by hand or first class
mail to the other party within the applicable statute of limitations period.
Any demand for arbitration made to Company shall be provided to Company's Legal
Department, 200 East Basse Road, San Antonio, Texas 78209. The Arbitrator
shall resolve all disputes regarding the timeliness or propriety of the demand
for arbitration.
(d)
In
arbitration, the parties shall have the right to conduct adequate civil discovery,
bring dispositive motions, and present witnesses and evidence as needed to
present their cases and defenses, and any disputes in this regard shall be
resolved by the Arbitrator. The Federal Rules of Civil Procedure shall govern
any depositions or discovery efforts, and the arbitrator shall apply the
Federal Rules of Civil Procedure when resolving any discovery disputes. However, there shall be no right or
authority for any dispute to be brought, heard or arbitrated as a class,
collective or
representative
action or as a class
member in any purported class, collective action or representative proceeding
(“Class Action Waiver”). Notwithstanding any other clause
contained in this Agreement, the preceding sentence shall not be severable from
this Agreement in any case in which the dispute to be arbitrated is brought as
a class, collective or representative action. Although an Employee shall not
be retaliated against, disciplined or threatened with discipline as a result of
Employee’s exercising his or her rights under Section 7 of the National Labor
Relations Act by the filing of or participation in a class, collective or
representative action in any forum, Company may lawfully seek enforcement of
this Agreement and the Class Action Waiver under the Federal Arbitration Act
and seek dismissal of such class, collective or representative actions or
claims. Notwithstanding any
other clause contained in
this Agreement, any claim that all or part of the Class Action Waiver is
unenforceable, unconscionable, void or voidable may be determined only by a
court of competent jurisdiction and not by an arbitrator.
(e)
Each
party shall pay the fees for his, her or its own attorneys, subject to any
remedies to which that party may later be entitled under applicable law. However,
in all cases where required by law, Company shall pay the Arbitrator’s and
arbitration fees. If under applicable law Company is not required to pay all
of the Arbitrator’s and/or arbitration fees, such fee(s) shall be apportioned
between the parties by the Arbitrator in accordance with applicable law.
(f)
Within
thirty (30) days of the close of the arbitration hearing, any party shall have
the right to prepare, serve on the other party and file with the Arbitrator a
brief. The Arbitrator may award any party any remedy to which that party is
entitled under applicable law, but such remedies shall be limited to those that
would be available to a party in a court of law for the claims presented to and
decided by the Arbitrator. The Arbitrator shall issue a decision or award in
writing, stating the essential findings of fact and conclusions of law. Except
as may be permitted or required by law, neither a party nor an Arbitrator may
disclose the existence, content, or results of any arbitration hereunder without
the prior written consent of all parties. A court of competent jurisdiction
shall have the authority to enter a judgment upon the award made pursuant to
the arbitration.
(g)
Injunctive
Relief.
A party may apply to a court of competent jurisdiction for temporary or
preliminary injunctive relief in connection with an arbitrable controversy, but
only upon the ground that the award to which that party may be entitled may be
rendered ineffectual without such provisional relief.
(h)
This
Section 16 is the full and complete agreement relating to the formal resolution
of employment-related disputes. In the event any portion of this Section 16 is
deemed unenforceable and except as set forth in Section 16(d), the remainder of
this Agreement shall be enforceable.
(i)
Any
arbitration proceeding or hearing described in this Section 16 shall take place
in the city in which the events which formed the basis of the arbitration
occurred, and the parties each expressly agree and consent to venue for
arbitration in such location.
(j)
This
Section 16 shall survive the expiration or termination of this Agreement for
any reason.
17.
REPRESENTATIONS
AND WARRANTIES OF EMPLOYEE
Employee shall keep all
terms of this Agreement confidential, except as may be disclosed to Employee’s
spouse, accountants or attorneys. Employee represents that Employee is under
no contractual or other restriction inconsistent with the execution of this
Agreement, the performance of Employee’s duties hereunder, or the rights of
Company. Employee authorizes Company to inform any prospective employer of the
existence and terms of this Agreement without liability for interference with
Employee’s prospective employment. Employee represents that Employee is under
no disability that prevents Employee from performing the essential functions of
Employee’s position, with or without reasonable accommodation.
18.
SECTION
409A COMPLIANCE
(a)
Notwithstanding
anything to the contrary in this Agreement, no severance payments or benefits
to be paid or provided to the Employee, if any, under this Agreement that, when
considered together with any other severance payments or separation benefits,
are considered deferred compensation under Section 409A of the Code and the
final regulations and any guidance promulgated thereunder (“Section 409A”)
(together, the “Deferred Payments”) will be paid or provided until the Employee
has a “separation from service” within the meaning of Section 409A. Similarly,
no severance payable to the Employee, if any, under this Agreement that
otherwise would be exempt from Section 409A pursuant to Section 1.409A-1(b)(9)
of the Treasury Regulations will be payable until the Employee has a
“separation from service” within the meaning of Section 409A and Section
1.409A-1(h) of the Treasury Regulations.
(b)
It
is intended that none of the severance payments or benefits under this
Agreement will constitute Deferred Payments but rather will be exempt from
Section 409A as a payment that would fall within the “short-term deferral
period” as described in paragraph (d) below or resulting from an involuntary
separation from service as described in paragraph (e) below. In no event will
the Employee have discretion to determine the taxable year of payment of any
Deferred Payment or payment made upon a separation from service. Any severance
payments or benefits payable pursuant to this Agreement will be payable as
provided in Section 9(d).
(c)
Notwithstanding
anything to the contrary in this Agreement, if the Employee is a “specified
employee” within the meaning of Section 409A at the time of the Employee’s
separation from service (other than due to death), then the Deferred Payments,
if any, that are payable within the first six (6) months following the
Employee’s separation from service, will become payable on the date six (6)
months and one (1) day following the date of the Employee’s separation from
service. All subsequent Deferred Payments, if any, will be payable in
accordance with the payment schedule applicable to each payment or benefit.
Notwithstanding anything herein to the contrary, in the event of the Employee’s
death following the Employee’s separation from service, but before the six (6)
month anniversary of the separation from service, then any payments delayed in
accordance with this paragraph will be payable in a lump sum as soon as
administratively practicable after the date of the Employee’s death and all
other Deferred Payments will be payable in accordance with the payment schedule
applicable to each payment or benefit. Each payment and benefit payable under
this Agreement is intended to constitute a separate payment under Section
1.409A-2(b) of the Treasury Regulations.
(d)
Any
amount paid under this Agreement that satisfies the requirements of the
“short-term deferral” rule set forth in Section 1.409A-1(b)(4) of the Treasury
Regulations will not constitute Deferred Payments for purposes of paragraph (a)
above.
(e)
Any
amount paid under this Agreement that qualifies as a payment made as a result
of an involuntary separation from service pursuant to Section
1.409A-1(b)(9)(iii) of the Treasury Regulations that does not exceed the
Section 409A Limit (as defined below) will not constitute Deferred Payments for
purposes of paragraph (a) above.
(f)
The
foregoing provisions are intended to comply with or be exempt from the
requirements of Section 409A so that none of the payments and benefits to be
provided under the Agreement will be subject to the additional tax imposed
under Section 409A, and any ambiguities herein will be interpreted to so comply
or be exempt. The Company and the Employee agree to work together in good
faith to consider amendments to this Agreement and to take such reasonable
actions which are necessary, appropriate or desirable to avoid imposition of
any additional tax or income recognition before actual payment to the Employee
under Section 409A. In no event will the Company reimburse the Employee for
any taxes that may be imposed on the Employee as a result of Section 409A.
(g)
For
purposes of this Agreement, “Section 409A Limit” will mean the lesser of two
(2) times: (i) the Employee’s annualized compensation based upon the annual
rate of pay paid to the Employee during the Company’s taxable year preceding
the Company’s taxable year of the Employee’s termination of employment as
determined under Section 1.409A-1(b)(9)(iii)(A)(1) of the Treasury Regulations
and any Internal Revenue Service guidance issued with respect thereto; or (ii)
the maximum amount that may be taken into account under a qualified plan
pursuant to Section 401(a)(17) of the Code for the year in which the Employee’s
employment is terminated.
19.
MISCELLANEOUS
This Agreement is not
effective unless fully executed by all parties, including the Chairman &
Chief Executive Officer. This Agreement contains the entire agreement of the
parties and supersedes any prior written or oral agreements or understandings
between the parties. No modification shall be valid unless in writing and
signed by the parties, relating to the subject matter of this Agreement, unless
otherwise noted herein. This Agreement may be executed in counterparts, a
counterpart transmitted via electronic means, and all executed counterparts,
when taken together, shall constitute sufficient proof of the parties’ entry
into this Agreement. The parties agree to execute any further or future documents
which may be necessary to allow the full performance of this Agreement. The
failure of a party to require performance of any provision of this Agreement
shall not affect the right of such party to later enforce any provision. A
waiver of the breach of any term or condition of this Agreement shall not be
deemed a waiver of any subsequent breach of the same or any other term or
condition. If any provision of this Agreement shall, for any reason, be held
unenforceable, such unenforceability shall not affect the remaining provisions
hereof, except as specifically noted in this Agreement, or the application of
such provisions to other persons or circumstances, all of which shall be
enforced to the
greatest extent permitted by law.
Company and Employee agree that the restrictions contained in Section 4, 5, 6,
7, and 12 are material terms of this Agreement, reasonable in scope and
duration and are necessary to protect Company’s Confidential Information,
goodwill, specialized training expertise, and legitimate business interests.
If any restrictive covenant is held to be unenforceable because of the scope,
duration or geographic area, the parties agree that the court or arbitrator may
reduce the scope, duration, or geographic area, and in its reduced form, such
provision shall be enforceable. Should Employee violate the provisions of
Sections 5, 6, or 7, then in addition to all other remedies available to
Company, the duration of these covenants shall be extended for the period of
time when Employee began such violation until Employee permanently ceases such
violation. Employee agrees that no bond shall be required if an injunction is
sought to enforce any of the covenants previously set forth herein. In the
event that Employee’s employment continues for any period of time following the
end of the Employment Period, unless and until agreed to in a new executed
agreement, such employment or continuation thereof is “at-will” and may be
terminated at any time by either party. The headings in this Agreement are
inserted for convenience of reference only and shall not control the meaning of
any provision hereof. Employee acknowledges receipt of the iHeartMedia
Employee Guide (“Employee Guide”), Code of Conduct and other Company policies
(available on Company’s intranet website) and agrees to review and abide by
their terms, which along with any other policy referenced in this Agreement may
be amended from time to time at Company’s discretion. Employee understands
that Company policies do not constitute a contract between Employee and
Company. Any conflict between such policies and this Agreement shall be
resolved in favor of this Agreement.
Upon full execution by all
parties, this Agreement shall be effective on the Effective Date in Section 1.
EMPLOYEE:
/s/Scott
Wells___________________________ Date:
3/1/15___________________
Scott
Wells
COMPANY:
/s/
William B. Feehan_____________________
Date: 3/3/15__________________
William
B. Feehan