Executive Agreement - EMA Telstar Gruppen AB and Thomas Johansson
EXECUTIVE AGREEMENT
This Agreement is made on 1 October 2004 by and among EMA Telstar Gruppen AB,
corp, reg. no. 556155-2703, Box 241 51,104 51 Stockholm and
Mr Thomas Johansson, 480819-1136, Molna Gard, 181 61 Lidingo, (the "Manager")
The term of the Agreement is October 1, 2004 - December 31, 2007 ("Initial
Term").
1. POSITION
The Manager is hereby employed as Chairman Clear Channel Entertainment, Europe
Music, and CEO & Head Promoter Nordic and based at the Companies' office in
Stockholm. The parties agree that the Manager holds a managerial position and
that the Swedish act on Employment Protection does not apply to the Manager's
employment hereunder.
The employment will start on 1 October 2004 ("Commencement Date") and continue
until terminated in accordance with the provisions of this agreement.
The Manager warrants that he is not prevented from taking up the employment or
from performing his duties in accordance with the terms of this agreement by any
obligation or duty owed to any other patty, whether contractual or otherwise.
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2. RESPONSIBILITIES AND DUTIES
The Manager shall represent Clear Channel Entertainment, Europe Music as
Chairman and is as CEO & Head Promoter Nordic responsible for all promoter
activities within the Nordic region.
The Manager will work any hours which may be reasonably necessary to perform his
duties to the satisfaction of the Board.
3. EXTERNAL FUNCTIONS AND SIDELINE ACTIVITIES
The Manager shall devote all of his working time and capacity to his employment
hereunder. He may not conduct business on his own or through representatives or
receive assignments or in any other way conduct business which may interfere
with his employment hereunder without prior written approval by the Companies.
The Manager's current assignments, which have been approved by the Companies,
are listed in Exhibit 1.
4. CONFIDENTIALITY
The Manager is under an obligation to protect the interests of the Company and
its affiliates at all times and may not disclose to any third party any
confidential or proprietary information regarding the Company or any
affiliate's business.
If the Manager should leave his position with the Company, he will immediately
return all notes, memoranda, documents and records (whether tangible or
electronically stored) concerning the business of the Company or its affiliates.
The responsibilities of the Manager under this Section 4 shall survive the
termination of the Manager's employment hereunder.
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5. SALARY AND OTHER EMPLOYMENT BENEFITS
The Manager will receive the Gross Annual Salary of SEK 2,900,000 payable in
twelve equal monthly instalments.
The Manager is also entitled to a Pension Contribution of SEK 400,000 annually,
paid from Clear Channel Entertainment UK, for The Managers duties as Chairman.
Both above mentioned amounts shall be increased with 5% annually with effect
from 1 October each year.
The amount also includes compensation for any other appointments or
directorships which the Manager may have within the Company or any affiliates.
The Manager shall also be entitled to following Annual Bonuses:
- 2.35% of EMA Telstar Gruppen AB's consolidated EBITDA.
- 20% of the Gross Annual Salary and the Pension Contribution if Europe
Music hit 15% annual growth over the previous year (after any proforma
adjustments).
The bonus is scaled depending on the real growth according to Schedule 2.
The bonuses will be paid no later than at the end of March in fee year following
the relevant bonus year. The bonus year are equivalent to the fiscal year and
the first bonus year will be 2005.
The Manager is also entitled to a Sign On Fee of $200,000, payable upon signing
of this agreement. If the Manager terminates this Agreement prior to the end of
the Initial Term, the Sign On Fee shall be repaid pro rata the number of months
remaining of the Initial Term. Eg. If the Manager terminates his contract after
19.5 months, 50% of the Sign On Fee shall be repaid.
If the Manager has not terminated this Agreement, or it has been terminated by
the Company, other than for the Manager's material breach of contract, prior to
end of the Initial Term, he is entitled to an Additional Bonus equalling to 3
times 2.35% of the average increase of the EBITDA during the Initial Term.
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For avoidance of doubt, Schedule 1, further describes how the Annual Bonus,
Additional Bonus and Sign On fee shall be calculated.
Neither Bonus, Additional Bonus or Sign On Fee will be taken into account for
pension and holiday pay purposes.
The Manager will not be compensated for overtime or travel time.
6. VACATION
The Manager shall be entitled to 30 days vacation per calendar year.
7. TRAVEL EXPENSES
The Manager is entitled to reimbursement for reasonable travel costs and other
expenses in representing the Company and conducting business on behalf of the
Company according to Company policy. The Company will require the Manager to
produce receipts or other documents together with an expense claim as proof that
the Manager has incurred any expenses he claims.
8. PROPRIETARY RIGHTS
Within the limits of the Swedish legislation on the proprietary rights to
inventions made by employees, the Company holds the proprietary right to all
inventions and solutions developed by the Manager while in the service of the
Companies, which relate to the business of products of the Company or which are
invented or developed in the course of his employment. The same applies to
copyright, trade marks, designs and other intellectual property right.
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The Manager will further transfer to the Company all work and intellectual
property rights in respect of what has been produced or processed by the Manager
himself, or together with another, or which may otherwise be considered as a
result of the employment.
The Company shall be entitled to make changes to the work (Sw.: "verk") or other
property (Sw.: "alster") transferred to the Company in accordance with this
clause 8 and shall also be entitled to transfer these rights to another.
Work and Intellectual property means, but is not limited to, ideas, methods,
discoveries, trade marks, copyright computer programmes etc.
9. INITIAL TERM AND NOTICE PERIOD
This Agreement, may be terminated by either party by giving twelve (12) months'
written notice to the other.
The period between the Commencement Date and December 31, 2007 is referred to as
the "Initial Term" to which certain provisions of this agreement relate, such
as Sign On Fee (clause 5 fourth paragraph) and Severance Payment (Clause 10).
During the notice period, the Company may at its sole discretion release the
Manager from his duties and restrict access to the Company premises or property
with immediate effect. Such release will not affect the Manager's right to
employment benefits during the notice period.
The Company shall also have the right to require that paragraph 2 of clause 4 to
be complied with by the Manager at any time during the notice period.
The Manager will immediately resign from any directorship or other appointments
which he holds in the Company or any affiliate, upon receiving notice of
termination of this agreement.
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The Company has the right to dismiss the Manager with immediate effect, if he
has materially neglected his obligations to the Company or otherwise commits a
material breach of this agreement.
The parties shall start to renegotiate this contract no later than 12 month
prior the end of the Initial Term. The negotiation has to be finalised no later
than 6 months prior the end of the Initial Term, unless the parties mutually
agrees otherwise.
10. SEVERANCE PAY
If the Company terminates the Manager's employment to expire prior to the
expiration of the Initial Term, and no other agreement is concluded, the Manager
shall be entitled to the following severance pay. The Manager shall receive the
full Gross Annual Salary at the rate applicable at the date of termination, to
be paid in monthly instalments, plus Annual Bonus and Additional Bonus as
described in clause 5.
The Company will deduct from the Severance Pay, any income or compensation which
the Manager receives from employment or other business that he has procured, as
well as for compensation which, the company can prove, he ought to have
procured, for similar position in a company with similar in size and quality
as the Company.
To enable the Company to provide the compensation, the Manager is obliged to
keep the Company fully informed of his income or remuneration under a new
employment or business.
11. POST-TERMINATION RESTRICTIONS
The Manager acknowledges that, in performing his duties hereunder, he will have
access to confidential information and trade secrets relating to and being the
property of the Company and its affiliates, and will obtain personal knowledge
of, or influence over, the Company's customers, suppliers and employees.
The Manager further acknowledges that, in the event of termination of the
employment hereunder, it is unlikely that he will be able to perform his duties
in any
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subsequent employment efficiently or properly without the deliberate or
subconscious recourse to or use of such confidential information or trade
secrets. Accordingly, and regardless of whether the notice of termination is
made by the Company or the Manager, and the Manager has not received written
notice from the Company relieving him from the competition limitation set forth
in this Section, the Manager undertakes for a period of two (2) year following
(i) the termination of the employment, not to either directly or indirectly, as
a director, principal, partner, agent, consultant or employee, whether on his
own behalf or as an agent for any other person, firm, company or other
organization, (i) (1) engage in any business or activity which competes with
that of the Company or its affiliates, or (2) solicit attempt to solicit, accept
or facilitate the acceptance of orders from, or supply, any goods or services to
any of the Company's customers or suppliers (being customer or supplier at or
prior to termination of employment) in competition with those supplied by the
Company or its affiliates from or to, as the case may be, any person, firm,
company or other organisation, nor (ii) induce or procure, or attempt to induce
or procure, any person who is an employee of the Company or its affiliates to
leave their employment with the Company and not to be involved in the acceptance
of such person into the employment of the Manager's new business or company, or
in any other way we such employees services.
If termination of this agreement is made by the Company or the Manager and if
the Manager has not been relieved from the post-termination restrictions by the
Company, the Company shall compensate the Manager for the restrictions in (i)
(1) and (2) and (ii) in proceeding section above. The compensation shall
correspond to 80% of the Gross Annual Salary including pension as provided at
the date of termination of the employment, paid in twenty four (24) monthly
installments. From this compensation shall be deducted the compensation which
the Manager receives from new employment or other business which he has
procured, as well as for compensation which, the company can prove, he ought to
have procured, for similar position in a company with similar in size and
quality as the Company. The Manager will furthermore not receive any
compensation during the period which Severance Pay is
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provided by the Company (if any), although the restrictions set out in this
clause 11 will apply.
The Company may at any time release the Manager from the obligations under item
i(1) and (2) and (ii) above, by giving 3 months written notice. In such case,
the Company will have no further obligation to pay compensation to the Manager
under this clause 11.
If the Company or the group of companies, that the Company belongs to, is sold,
the Manager is automatically relieved from the Post-Termination Restrictions.
All other obligations hereunder remain in place.
12. DATA PROTECTION
The Manager consents to the processing and disclosure of personal data
(including sensitive data, such as medical and health data, where necessary) in
relation to the Manager both inside and, where necessary, outside the European
Economic Area for the purposes of administrating the employment relationship,
including but not limited to; salary administration, pension administration,
health administration health insurance/ benefits, training and appraisal,
including performance records and disciplinary records, equal opportunities
monitoring, any Company benefit administration, and for the purpose of any
potential sale of the shares of the Company or any group company or other change
of control or any potential transfer of the Manager's employment.
Disclosure may include, in the case of sale, change of control or transfer,
disclosure to the potential purchaser or investor and their advisors.
The Manager is entitled to receive information about the processing of his
personal data and to request that any incorrect data be rectified.
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13. ENTIRE AGREEMENT AND AMENDMENTS
This Agreement constitutes the entire agreement between the parties and
supersedes all previous agreements and understandings among the Company and the
Manager with respect to its subject matter. Any amendment to this Agreement
shall be in writing and signed by the parties hereto or their duly authorized
representatives.
14. GOVERNING LAW
This Agreement shall be governed by and construed in accordance with the laws of
Sweden.
15. ARBITRATION
Any dispute, controversy or claim arising out of or relating to this Agreement,
the breach, termination or invalidity hereof shall, unless resolved by agreement
between the parties, be finally settled by arbitration in accordance with the at
each time applicable Swedish Arbitration Act. The place of arbitration shall be
Stockholm and the language of the proceedings English. The arbitral tribunal
shall be composed of 3 arbitrators.
If the aggregate cost for the arbitration exceeds four times the "base amount"
(basbelopp) under the Act on National Insurance, the excess amount shall
irrespective of the outcome, be paid by the Company.
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Stockholm, on 21st / Feb 2005 Stockholm, on 25/1 2005
/s/ Thomas Johansson /s/ [ILLEGIBLE]
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Thomas Johansson