展品10.2
修訂及重訂僱用協議
這份修訂和重訂的雇傭協議（以下簡稱“本協議”）日期為2023年11月16日，由Delaware州公司Homology Medicines, Inc.（以及其任何繼承人）（以下簡稱“公司”）和Paul Alloway博士，JD（以下簡稱“員工”）之間簽訂協議”）是指特拉華州的一家公司clear channel outdoor holdings，inc.（以下簡稱為“CCOH”及此實體以及所有過去、現在和未來的母公司、事業部門、經營公司、子公司和聯屬公司在此集體稱為“權益代理”）和Jason A. Dilger（“雇員”). Effective as of the Effective Date (as defined below), this Agreement supersedes and replaces in its entirety that certain Amended and Restated Employment Agreement between the Company and the Employee, dated January 1, 2022 (the “先前的協議”).
1.雇佣期限
本協議自2025年1月1日開始（「生效日期」）至2028年1月1日結束（「僱用期間」），並自動延長額外三（3）年期，除非公司或員工向對方發出不續約書面通知，指出僱用期間不應延長，或根據本協議條款以其他方式終止。通知必須在6月1日至7月1日之間提供。st st 任期結束前。 “就業期間”指如其所延長的就業期間。
2.標題和專屬服務
(a)職稱與職責在任期間，員工的職稱將繼續為clear channel outdoor控股有限公司的高級副總裁兼首席會計主管，員工將執行該職位通常和慣常的工作職責。
(b)獨家服務員工在任期內不得受聘或提供其他服務；但員工可參與專業、身份幣或慈善組織，只要該參與是無酬的，並且不影響員工履行職責，或構成對員工義務的違反。 第4、5、6條款 或 7 本協議第10條款。
(c)前提條件員工確認不存在任何與先前雇主或實體存在的義務，可能阻礙對本協議的完全履行，或使公司受到因雇用員工而提出任何索賠的影響。
3.酬金和福利
(a)基本薪金在僱用期間內，員工將收取年薪四十三萬五千美元（$435,000.00）（「基本薪金」）。基本工資將按照公司常規的工資支付慣例進行支付，並根據公司政策支付，該政策可能不時修改。員工有資格根據公司酌情考慮的公司和／或個人績效來定期增加薪資。
(b)假期在僱用期間內，員工每年將有二十（20）天的年假，按需要調整比例，並遵守公司的適用政策。
(c)年度獎金。在僱傭期間，僱員將有資格獲得年度獎金（」年度獎金」) 根據 CCOH 薪酬委員會所訂立並在年度預算中批准的財務和績效標準，根據本公司及其董事會決定運作的適用獎金計劃條款，並非作為賠償保證。任何年度獎金須於獲得年獎金之後的每個日曆年 3 月 15 日之內，在第 409A 條所訂明的短期延期內（如下所定義）內。在僱傭期間內，僱員的年度獎金目標須等於僱員基本薪酬的六十五（65%），並按照任何適用獎金年度發生的基本薪金或獎金目標變動按比例計算。
(d)年度長期獎勵. 在僱傭期間，從2025財年開始，員工將有資格獲得年度長期激勵獎（每年稱為“年度LTI獎”），每年擬定目標價值為三十五萬美元（$350,000.00）的年度LTI獎，此類獎項應根據公司2012年修訂和重訂的獎勵計劃或任何適用的後續計劃授予，並根據相關獎勵協議核准，與其他類似職位保持一致，並考慮已展示出的表現和潛力，並經撥款董事會或CCOH的董事會或薪酬委員會批准；前提是，任何此類年度LTI獎的授予日期公正價值不得低於三十二萬五千美元（三百五十千美元）年度LTI獎，每年的年度LTI獎的大約目標價值為三十五萬美元（$350,000.00），並根據公司2012年第二次修訂和重訂的獎勵計劃或任何適用的後續計劃授予，並根據相關獎勵協議核准，與其他相似職位保持一致，並考慮到已證明的表現和潛力，最後，賴CCOH的董事會或薪酬委員會批准；但應當注意的是，任何此等年度LTI獎的授予日期公正價值不得低於三十二萬五千美元（ 325,000美元）在授予日期支付了$325,000.00）
(e)好處在僱用期間內，員工將繼續有資格參加公司提供的各項福利計劃，條件與其他類似員工所享有的一致。
(f)費用在僱用期間內，公司將根據公司政策向員工報銷業務費用，與過去實踐一致。任何會構成非合格透支薪酬的報銷應按照第409A條進行支付。
(g)根據本條款的補償應適用加班資格，如適用，並在所有情況下應扣除適用的薪資稅和其他扣款。
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4.保密信息的未披露
(a)公司已經提供並將繼續提供員工機密信息和商業秘密，包括但不限於公司的許可證、房東和業主信息、營銷計劃、增長策略、目標清單、績效目標、運營策略、專業培訓專長、員工培訓、工程信息、銷售信息、租賃條款、客戶名單、合同、代理協議、定價信息、生產和成本數據、費用信息、戰略業務計劃、預算、財務報表、技術倡議、由公司購買或開發的專有研究或軟體、員工根據員工工作職責獲得的信息，以及公司視為機密或專有的其他信息（統稱為「機密信息」）。機密信息不包括任何公司已自願向公眾披露的數據或信息（除非該披露是由員工未經授權進行的），或已由他人獨立開發並向公眾披露，或以其他合法方式進入公共領域的數據或信息。員工承認該機密信息是專有的並同意不將其披露給公司以外的任何人，除非：（i）這是為執行員工的職責而必要；或（ii）員工根據法院命令而被要求披露機密信息，前提是員工應及時通知公司，應配合公司獲取保護令或以其他方式限制披露，並僅在最低程度上披露機密信息以便遵守法院命令。員工同意永不使用商業秘密與公司直接或間接競爭。員工離職時，應立即將所有機密信息退還給公司。機密信息
(b)僱員了解、同意並承認本協議的條文不禁止或限制僱員與 DOJ、SEC、DOL、NLRB、EEOC 或任何其他政府機構溝通，行使僱員根據國家勞動關係法進行受保護的協調活動的權利（如果有）進行受保護的協調活動，以誠信和合理信心向政府機關提出任何違反法律或法規的情況報告，與政府機關合作或參與法律程序有關此類違規，包括提供文件或其他信息，或作出任何其他披露，受到任何適用法律、規則或法規的舉報者條文保護的保護。僱員特此通知，根據《2016 年保護商業秘密法》（DTSA）：(1) 根據聯邦或州營業秘密法，任何個人不會因披露營業秘密（經濟間諜法定義）的披露營業秘密（如經濟間諜法定義）：(a) 直接或間接向聯邦、州或地方政府官員或委員會信任，並僅作報告之目的或調查懷疑違反法律或 (b) 在訴訟或其他程序中提交的投訴或其他文件作出，如該文件以密封形式作出，以免公開；及 (2) 如果僱主報懷疑違反法律的訴訟，則可向個人的律師披露商業秘密，並在法庭程序中使用商業秘密信息，如該個人提交任何包含商業秘密的文件，並沒有披露商業秘密，除法院命令允許的情況外。
(c)本條款的各項規定 第4節 應在任何情況下本協議終止或到期後繼續有效。此外，本條款 第4節 不得用來干涉員工根據《國家勞工關係法》第7條享有的權利。
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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 Employee’s employment with the Company ends for any reason (the “Non-Interference Period”), Employee will not, directly or indirectly, hire, engage or solicit any current employee of Company with whom Employee, within the twelve (12) months prior to Employee’s termination, had contact, supervised or received Confidential Information about, 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 Employee’s employment with the Company ends for any reason (the “Non-Solicitation Period”), Employee will 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, within the twelve (12) months prior to Employee’s termination, engaged, had contact or received Confidential Information about (“Restricted Clients”). For the purposes of this Section 6, “solicit” shall mean (i) inducing or attempting to induce Restricted Clients to diminish or cease doing business with Company; (ii) inducing or attempting to induce Restricted Clients to advertise with or do business with a Competitor (as defined below); or (iii) inducing or attempting to induce Restricted Clients to enter into any transaction which would have an adverse effect on Company.
(b)The terms of this Section 6 shall survive the expiration or termination of this Agreement for any reason.
7.NON-COMPETITION
(a)To further preserve Company’s Confidential Information, goodwill, specialized training expertise, and legitimate business interests, Employee agrees that during Employee’s employment with the Company and for twelve (12) months after Employee’s employment with the Company ends for any reason (the “Non-Compete Period”), Employee will 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, (each such entity, a “Competitor”), including, but not limited to: JC Decaux Corporation; Titan Media Company; Reagan Outdoor; 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 and with which Employee participated at the time of Employee’s termination or within the twelve (12) months prior to Employee’s termination (the “Non-Compete Area”).
(b)The terms of this Section 7 shall survive the expiration or termination of this Agreement for any reason.
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8.TERMINATION
This Agreement and/or Employee’s employment may be terminated at any time by mutual written agreement signed by Employee and an authorized officer of the Company, or as set forth below.
(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 one-hundred and eighty (180) days in any twelve (12)-month period, subject to applicable law.
(c)Termination By Company. Company may terminate Employee’s employment with or without Cause. For purposes of this Agreement, “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, as determined in the reasonable discretion of Company;
(ii)willful and repeated non-performance of duties (other than by reason of disability);
(iii)willful and repeated failure to follow lawful directives;
(iv)a felony conviction, a plea of nolo contendere by Employee, or other conduct by Employee that has or would result in material injury to Company’s reputation, 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 employment and management policies.
If Company elects to terminate for Cause under (c)(i), (ii), (iii), (v) or (vi), Employee shall have ten (10) days to cure, to the reasonable satisfaction of Company, after receiving written notice from the Company, except where such cause, by its nature, is not curable, as reasonably determined by Company, or the termination is based upon a recurrence of an act previously cured by Employee.
(d)Non-Renewal. Following the delivery of a notice of non-renewal of the Employment Period by either party in accordance with Section 1 hereof (each, a “Non-Renewal”), the 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.
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9.COMPENSATION UPON TERMINATION
(a)Death. Upon Employee’s termination of employment due to death, the Company shall, within thirty (30) days of such date of termination, pay to Employee’s designee or, if no person is designated, to Employee’s estate, any earned but unpaid Annual Bonus for the year prior to the year in which termination occurs (the “Prior Year Bonus”). In addition, upon such a termination, the Company shall, within thirty (30) days of such date of termination (or such earlier date as required by applicable law), pay to Employee’s designee or, if no person is designated, to Employee’s estate, (i) Employee’s accrued and unpaid Base Salary through the termination date, (ii) any business expenses incurred by Employee but not yet reimbursed by Company through the termination date, and (iii) any other payments required to be paid or provided under applicable employee benefit plans or equity plans or equity award agreements (excluding any severance payments), which shall be paid or provided in accordance with the terms of such plans, agreements and/or policies (less applicable payroll taxes and other deductions) (the foregoing prongs (i), (ii) and (iii), collectively, the “Accrued Obligations”).
(b)Disability. Upon Employee’s termination of employment due to disability in accordance with Section 8(b) hereof, the Company shall pay to Employee the Prior Year Bonus and the Accrued Obligations.
(c)Termination By Company For Cause. Upon the Company’s termination of Employee’s employment for Cause, the Company shall pay to Employee the Accrued Obligations.
(d)Termination By Company Without Cause; Non-Renewal by Company. Upon the Company’s termination of Employee’s employment (x) without Cause or (y) due to a Non-Renewal by the Company, in each case, Company will pay to Employee the Prior Year Bonus and the Accrued Obligations and, if Employee signs a Severance Agreement and General Release of claims in a form provided by and satisfactory to Company (“Release”) and Employee does not revoke such Release within the revocation time period as permitted by the Release’s terms,
(i)Company will pay to Employee, in periodic payments in accordance with the Company’s ordinary payroll practices and deductions, Employee’s current Base Salary for twelve (12) months following such date of termination (the “Company Termination Severance Pay Period”);
(ii)Employee shall remain eligible to receive a pro-rata portion of the Annual Bonus for the year in which such termination occurs, calculated based upon actual performance and pro-rated to reflect Employee’s period of employment during the applicable performance period through the date of such termination (“Pro-Rata Bonus”, and together with the payments payable under the foregoing subsection (i), the “Company Termination Severance Payments”), which Pro-Rata Bonus (if any) shall be paid at the time that such annual bonuses are paid to other Company employees. Calculation and payment of the bonus, if any, will be pursuant to the Company bonus plan in effect during such termination year; and
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(iii)Notwithstanding anything to the contrary set forth in any equity award agreements between the Company and Employee (except in circumstances where treatment more favorable to Employee is provided in any such equity award agreement), (x) any unvested time-vesting equity awards which are scheduled to vest within the twelve (12) month period following the date of termination shall vest in full on the date of termination pursuant to this Section 9(d); and (y) any outstanding and unvested performance stock units will vest as follows: (i) one-third (1/3) of the target number of shares underlying the performance stock units are eligible to vest if the date of termination is before the date which is two (2) years prior to the Vesting Date (as defined in the applicable award agreement), (ii) two-thirds (2/3) of the target number of shares underlying the performance stock units are eligible to vest if the date of termination is on or after the date which is two (2) years prior to the Vesting Date but before the date which is one (1) year prior to the Vesting Date, and (iii) one hundred percent (100%) of the target number of shares underlying the performance stock units are eligible to vest if the date of termination is on or after the date which is one (1) year prior to the Vesting Date. The portion of the performance stock units eligible to vest pursuant to this Section 9(d) will remain outstanding and eligible to be earned at the end of the applicable performance period based on the relative total shareholder return performance (or other applicable performance metric) as outlined in the applicable award agreement and, if earned, will then be distributed to Employee within sixty (60) days.
The Release shall be provided to Employee on Employee’s termination date, and must be executed by Employee and irrevocable by the sixtieth (60th) day following the termination date. The payments and benefits described in Section 9(d) 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 Release becomes effective and irrevocable, subject to Section 20 below; provided, however, in the event that the period in which Employee has to review and execute the Release begins in one tax year and ends in a later tax year, the payments and benefits described in Section 9(d) 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. Upon the termination of Employee’s employment due to a Non-Renewal by Employee, the Company will pay to Employee the Accrued Obligations and, if the termination date selected by the Company following delivery of such notice of non-renewal by Employee is before the end of the then current Employment Period, and if Employee signs a Release and Employee does not revoke such Release within any time period revocation is permitted by the Release’s terms, then Company will, 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 (such payments, the “Employee Non-Renewal Severance Payments” and such period, the “Employee Non-Renewal Severance Pay Period”, and together with the Company Termination Severance Payments and the Company Termination Severance Pay Period, respectively, the “Severance Payments” and the “Severance Pay Period”).
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(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, the Company shall determine, in its sole discretion, if and when payment of the Severance Payments shall cease. The foregoing shall not affect Company’s right to enforce the non-competition covenant pursuant to Section 7 hereof. Employee acknowledges that each individual Severance Payment received is adequate and independent consideration to support Employee’s Release, as each payment is something of value to which Employee would not have otherwise been entitled at termination had Employee not executed a Release and such Release had not become irrevocable.
(ii)If Employee is rehired by Company during the Severance Pay Period, the Severance Payments shall automatically and immediately cease; however, if Employee’s new Base Salary is less than Employee’s previous Base Salary, Company shall pay to Employee the difference between Employee’s previous and new Base Salary for the remainder of the Severance Pay Period in accordance with the Company’s ordinary payroll practices and deductions.
10.[RESERVED]
11.[RESERVED]
12.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 the 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 the Company; (ii) relate to the 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 12 shall survive the expiration or termination of this Agreement for any reason.
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13.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 the 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.
14.GOVERNING LAW
This Agreement shall be governed by the laws of the State of Texas, and Employee expressly consents to the personal jurisdiction of the Texas state and federal courts for any lawsuit relating to this Agreement.
15.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 will 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.
16.INDEMNIFICATION
Company shall defend and indemnify Employee for acts committed in the course and scope of employment, subject to any limitations under applicable law and the Company’s governance documents. 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.
17.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 Dispute Resolution Section (“Arbitration Agreement”) applies to any dispute arising out of or related to Employee’s employment with Company or termination of employment. Nothing contained in this Arbitration Agreement shall be construed to prevent or excuse Employee from using the Company’s existing internal procedures for resolution of complaints, and this Arbitration Agreement is not intended to be a substitute for the use of such procedures. Except as it otherwise provides, this Arbitration Agreement is intended to apply to the resolution of disputes that otherwise would be resolved in a court of law, and therefore 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 between Employee and Company 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 Arbitration Agreement also applies, without limitation, to disputes between Employee and Company 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, and state statutes, if any, addressing the same or similar subject matters, and all other state statutory and common law claims.
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(b)The following claims are excluded from this Arbitration Agreement: workers compensation, state disability insurance, unemployment insurance claims, and claims for benefits under employee benefit plans covered by the Employee Retirement Income Security Act that contain an appeal procedure or other exclusive and/or binding dispute resolution procedure in the respective plan. Disputes that may not be subject to pre-dispute arbitration agreements as provided by the Dodd-Frank Wall Street Reform and Consumer Protection Act (Public Law 111-203) are also excluded from the coverage of this Arbitration Agreement. Nothing in this Arbitration Agreement prevents Employee from making a report to or filing a claim or charge with a government agency, including without limitation the Equal Employment Opportunity Commission, U.S. Department of Labor, U.S. Securities and Exchange Commission, National Labor Relations Board, or Office of Federal Contract Compliance Programs. Nothing in this Arbitration Agreement prevents the investigation by a government agency of any report, claim or charge otherwise covered by this Agreement. This Arbitration Agreement also does not prevent federal administrative agencies from adjudicating claims and awarding remedies based on those claims, even if the claims would otherwise be covered by this Arbitration Agreement. Nothing in this Arbitration 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. The Company will not retaliate against Employee for filing a claim with an administrative agency or for exercising rights (individually or in concert with others) under Section 7 of the National Labor Relations Act.
(c)An arbitrator (the “Arbitrator”) shall be selected by mutual agreement of the Company and the Employee. Unless the Employee and Company mutually agree otherwise, the Arbitrator shall be an attorney licensed to practice in the location where the arbitration proceeding will be conducted or a retired federal or state judicial officer who presided in the jurisdiction where the arbitration will 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 will be conducted for appointment of a neutral Arbitrator. The court shall then appoint an Arbitrator, who shall act under this Arbitration 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 forty-five (45) miles from the place where the Employee last worked for the Company, unless each party to the arbitration agrees in writing otherwise.
(d)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 the Company shall be provided to the Company’s Legal Department, 4830 North Loop 1604 West, Suite 111, San Antonio, Texas 78249 . The Arbitrator shall resolve all disputes regarding the timeliness or propriety of the demand for arbitration.
(e)In arbitration, the parties will 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.
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(f)Class Action Waiver. In the event of any dispute, controversy or claim arising out of employment with, or otherwise relating to Employee’s relationship with Company, claims may only be brought by Employee or by Company in the Employee’s individual capacity, and not as a plaintiff or class member in any purported class, collective, or other joint proceeding. In that regard, Employee specifically agrees not to file, initiate directly or indirectly, join or participate in any class, collective, or other representative proceeding against Company and its respective directors, officers, agents, representatives and employees. If a class, collective, or other representative proceeding is filed purporting to include Employee, Employee shall promptly take all steps to refrain from opting in or to opt-out and will otherwise exclude Employee from the proceeding, as applicable. Claims covered by this waiver may not be joined or consolidated with claims of other individuals without the consent of both Company and Employee. Notwithstanding any other clause contained in this Agreement, the foregoing class action waiver shall not be severable from this Arbitration Agreement in any case in which the dispute to be arbitrated is brought as a class, collective or representative action. Although an Employee will not be retaliated against, disciplined or threatened with discipline as a result of Employee’s exercising Employee’s 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, the Company may lawfully seek enforcement of this Arbitration Agreement and the foregoing 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 Arbitration Agreement, any claim that all or part of the foregoing class action waiver is unenforceable, unconscionable, void or voidable may be determined only by a court of competent jurisdiction and not by an arbitrator.
(g)Each party will pay the fees for 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, the Company will pay the Arbitrator’s and arbitration fees. If under applicable law the Company is not required to pay all of the Arbitrator’s and/or arbitration fees, such fee(s) will be apportioned between the parties by the Arbitrator in accordance with applicable law.
(h)Within thirty (30) days of the close of the arbitration hearing, any party will 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 will 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.
(i)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.
(j)This Section 17 is the full and complete agreement relating to the formal resolution of employment-related disputes. In the event any portion of this Section 17 is deemed unenforceable and except as set forth in Section 17(f), the remainder of this Agreement will be enforceable.
(k)This Section 17 shall survive the expiration or termination of this Agreement for any reason.
Employee Initials: /s/ JAD Company Initials: /s/ DS
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18.REPRESENTATIONS AND WARRANTIES OF EMPLOYEE
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 represents that Employee is under no disability that prevents Employee from performing the essential functions of Employee’s position, with or without reasonable accommodation.
19.TAX WITHHOLDING
Notwithstanding any other provision of this Agreement, the Company may withhold from amounts payable under this Agreement all federal, state, local and foreign taxes that are required to be withheld by applicable laws or regulations.
20.SECTION 409A COMPLIANCE
(a)Notwithstanding anything to the contrary in this Agreement, no severance payments or benefits to be paid or provided to Employee, if any, under this Agreement that, when considered together with any other severance payments or separation benefits, are considered deferred compensation (together, the “Deferred Payments”) under Section 409A of the Internal Revenue Code of 1986, as amended, and the regulations and guidance promulgated thereunder (collectively “Section 409A”) will be paid or provided until Employee has a “separation from service” within the meaning of Section 409A. Similarly, no severance payable to 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 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 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 Employee is a “specified employee” within the meaning of Section 409A at the time of 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 Employee’s separation from service, will become payable on the date six (6) months and one (1) day following the date of 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 Employee’s death following 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 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.
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(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. Company and 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 Employee under Section 409A. In no event will Company reimburse Employee for any taxes that may be imposed on 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) Employee’s annualized compensation based upon the annual rate of pay paid to Employee during Company’s taxable year preceding Company’s taxable year of 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 Employee’s employment is terminated.
21.EARLY RESOLUTION CONFERENCE
For purposes of obtaining subsequent employment, while employed by Company, or during any postemployment Non-Compete Period and/or Severance Pay Period, Employee will: (a) give Company written notice at least fifteen (15) days prior to being engaged by any entity or individual, and (b) provide Company with sufficient information about the entity or individual engaging Employee and the services Employee shall perform to enable Company to determine if such engagement would likely lead to a violation of this Agreement, thereby allowing the parties the opportunity to discuss and/or resolve any issues raised by Employee’s new engagement. The foregoing shall not affect Company’s right to enforce the Non-Compete pursuant to Section 7.
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22.MISCELLANEOUS
This Agreement contains the entire understanding of the parties with respect to the subject matter hereof for the period defined and, upon the Effective Date, supersedes and nullifies all prior or contemporaneous conversations, negotiations, or agreements (oral or written) regarding the subject matter of this Agreement, including, without limitation, the Prior Agreement and any term sheet referring to the terms herein. To the extent this Agreement has been executed prior to its Effective Date and other agreements are in place as of the date of execution, such other agreements remain in place until the Effective Date has been reached, and the terms of this Agreement shall not be in effect unless and until the Effective Date has been reached. This Agreement may not be modified or amended except in writing signed by Employee and an authorized officer of the Company. 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 applicable 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 will be required if an injunction is sought to enforce any of the covenants previously set forth herein. Employee’s employment during the Employment Period and for any period thereafter is “at-will” and may be terminated at any time by either party. To the extent that any subsequent agreement, plan or document applying or pertaining to Employee contains restrictive covenants of a similar nature and subject as those contained in Sections 5, 6 and/or 7 of this Agreement, the Company and Employee hereby acknowledge and agree that the terms of this Agreement shall prevail and control over such agreement, plan or document. The headings in this Agreement are inserted for convenience of reference only and shall not control the meaning of any provision hereof. Nothing in this Agreement shall be construed to control or modify which Company entity is the Employee’s legal employer for purposes of any laws or regulations governing the employment relationship. Employee acknowledges receipt of the Company’s Employee Guide, Code of Conduct and other Company policies, including, without limitation, the Company’s clawback policy (available on the 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.
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Upon full execution by all parties, this Agreement shall be effective on the Effective Date.
| EMPLOYEE: | |||||||||||
| /s/ Jason A. Dilger | Date: | 10/25/2024 | |||||||||
| Jason A. Dilger | |||||||||||
| COMPANY: | |||||||||||
| /s/ David Sailer | Date: | 10/25/2024 | |||||||||
| Name: David Sailer | |||||||||||
| Title: Chief Financial Officer - Clear Channel Outdoor Holdings, Inc. | |||||||||||
[Signature Page to A&R Employment Agreement]