Employment Agreement
Exhibit
10.1
This
Employment Agreement (this “Agreement”), entered into and
made effective as of February 18, 2009 (the “Appointment Date”), is by and
among, LIN TV Corp., a Delaware corporation (“Parent”), and LIN Television
Corporation, a Delaware corporation with its headquarters in Providence, Rhode
Island, and a wholly-owned subsidiary of the Parent (the “Company” and, together with
Parent, the “LIN
Companies”), and Xxxxxxxx X. Xxxxxxx, an
individual whose current residence is 000 Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxx
Xxxxxx 00000 (the “Executive”).
RECITALS:
Whereas,
the board of directors of Parent (the “Board of Parent”) and the
board of directors of the Company, respectively, appointed Executive to the
offices of Vice President Finance of each of the LIN Companies, which
appointment shall become effective on the Appointment Date;
Whereas,
each of Parent and the Company desire that the Company employ Executive as Vice
President Finance of the Company, and Executive desires to be employed by the
Company in such position, in accordance with the terms and subject to the
conditions provided herein;
Now,
Therefore, in
consideration of the foregoing and of the respective covenants and agreements of
the parties herein contained, the parties hereto, intending to be legally bound
hereby, agree as follows:
1. Employment. The
Company shall employ Executive and Executive hereby agrees to serve the LIN
Companies on the terms and conditions set forth herein.
2. Service
Period. The term of this Agreement and Executive’s employment
hereunder (the “Service
Period”) shall be deemed to have commenced as of the Appointment Date and
shall continue thereafter until the effective date of termination pursuant to
the terms and subject to the conditions of this Agreement. For the
avoidance of doubt, Executive’s employment will be on a continuous basis unless
Executive’s employment is terminated pursuant to Section 8 of this
Agreement.
3. Position and
Duties. During the
Service Period, Executive shall serve as the Vice President Finance of each of
the LIN Companies, reporting to the Senior Vice President Chief Financial
Officer (“SVP-CFO”) of
each of the LIN Companies and, subject to the LIN Companies’ respective
Certificates of Incorporation and By-Laws, shall have such authority and duties
as may be granted or assigned from time to time by the SVP-CFO of the LIN
Companies. Subsequent to the filing of the LIN Companies’ annual
report on Form 10-K with the Securities and Exchange Commission (currently
anticipated to be filed on or about March 16, 2009), Executive’s title shall be
changed to Vice President Controller and Executive shall also be considered the
Chief Accounting Officer for the LIN Companies. All other provisions
of this Agreement shall remain unchanged upon this change in title.
1
4. Attention and
Effort. Executive covenants and agrees, at all times during
the Service Period, to devote his full business-time efforts, energies and
skills to his duties as contemplated by Section 3 above, to serve each of the
LIN Companies diligently and to the best of Executive’s ability and at all times
to act in compliance with the rules, regulations, policies and procedures of the
LIN Companies as shall be in effect from time to time. Executive
further covenants and agrees that he will not, directly or indirectly, engage or
participate in any other business, profession or occupation for compensation or
otherwise at any time during the Service Period which conflicts with the
business of the LIN Companies, without the prior written consent of the Board of
Parent; provided, that nothing herein shall preclude Executive from accepting
appointment to or continuing to serve on any board of directors or trustees of
any charitable or not-for-profit organization or from managing his personal,
financial or legal affairs; provided, in each case, and in the aggregate, that
such activities do not materially conflict or interfere with the performance of
Executive’s duties hereunder or conflict with Sections 10, 11 or 12 of this
Agreement in any material respect.
5. Compensation
and Other Benefits.
(a) During
the Service Period, Executive shall be paid by the Company an annual base salary
in an amount equal to One Hundred Eighty Thousand Dollars ($180,000) (the “Base Salary”), payable in
accordance with the Company’s normal payroll practices. The Base
Salary shall be reviewed by the Compensation Committee of the Board of Parent no
less often than once each calendar year and may be increased, but not decreased,
based on such a review.
(b) Executive
shall be eligible to receive, in addition to the Base Salary described above, an
annual bonus payment (a “Performance Bonus”) in an
amount up to Sixty Three Thousand Dollars ($63,000) for such year (a “Performance Bonus Amount”) to
be determined by December 31, 2009, and thereafter, the last day of each
calendar year during the Service Period, or as soon thereafter as practicable,
but in no event later than March 15 of the subsequent calendar year, as
follows:
(i) Executive
shall be eligible to receive a bonus payment in an amount up to 75% of the
Performance Bonus Amount, which bonus payment, if any, shall be determined in
the sole discretion of the SVP-CFO of the LIN Companies and the Compensation
Committee, based upon such factors as each may determine to be relevant, which
may include the performance of the LIN Companies and Executive, general business
conditions, and the relative achievement by Executive or the LIN Companies of
any goals established by the SVP-CFO, the Board of Parent or the Compensation
Committee.
(ii) Executive
shall be eligible to receive a bonus payment calculated as set forth in this
paragraph (ii) using a baseline bonus amount equal to twenty-five percent (25%)
of the Performance Bonus Amount (the “Results Bonus Base
Amount”). The amount of the bonus awarded to Executive, if
any, under this paragraph (ii) (the “Results Bonus”) shall be an
amount calculated as a percentage of the Results Bonus Base Amount (the “Results Bonus
Percentage”). The Results Bonus Percentage shall be the
percentage set forth on Schedule 5(b)(ii)(A) hereto
that corresponds to the respective percentages by which Parent has achieved the
EBITDA and revenue targets established by the Board of Parent for the applicable
year, as determined by the Compensation Committee of the Board of Parent (the
“Budget
Target”). The parties acknowledge and agree that for
convenience of reference Schedule 5(b)(ii)(B) shows
for illustrative purposes the amount of the Results Bonus corresponding to each
Results Bonus Percentage reflected on Schedule 5(b)(ii)(A), and the
parties further acknowledge that such figures shall be subject to adjustment in
the event of any change to the Results Bonus Base Amount and, in the event of
any conflict between Schedules
5(b)(ii)(A) and 5(b)(ii)(B), Schedule 5(b)(ii)(A)
shall control.
2
6. Benefits and
Expenses. Executive shall receive from the Company such other
benefits as may be granted to senior management of the Company generally,
including health, dental, life and disability insurance and vacation
benefits. In addition, Executive shall be provided with an automobile
allowance in accordance with the Company’s then-current plan. The
Company shall reimburse Executive for all reasonable travel, entertainment and
other expenses which Executive may incur in regard to the business of Company or
Parent, in accordance with and subject to the limitations of the Company’s
standard practices and policies and Executive’s presentation of such documents
and records as Company shall require to substantiate such
expenses. Executive shall be entitled to the same vacation benefits
as are generally available to other executives of the Company.
7. Incentive
Equity. Parent shall grant to Executive an option (the “Option Grant”), as of the
Appointment Date, to purchase 40,000 shares of Parent’s Class A Common Stock,
par value $0.01 per share pursuant to the terms and subject to the conditions of
the LIN TV Corp. Amended and Restated 2002 Stock Plan (the “Option Plan”) and as further
evidenced by that certain Nonqualified Stock Option Letter Agreement, dated on
or about the date hereof, by and between Parent and Executive (the “Option
Agreement”). The Option Grant shall be on the terms and
conditions of the Option Plan and the Option Agreement; provided, however, that (a)
for purposes of the Option Grant, and notwithstanding anything to the contrary
contained in the Option Agreement, the term “Cause” shall have the meaning
ascribed to such term in this Agreement; and (b) in the event of a Change in
Control (as hereinafter defined in Section 24) (and notwithstanding the
definition of such term in the Option Agreement) the vesting of the Option Grant
shall accelerate and shall be deemed fully vested as of such Change in
Control. For the avoidance of doubt, the vesting of the Option Grant
shall not accelerate in the event of any termination of this Agreement,
including upon a termination Without Cause or with Good Reason; provided, however, that if
Executive is able to demonstrate that (i) he was terminated by the LIN Companies
Without Cause in anticipation of a Change in Control and (ii) such
anticipated Change in Control occurs, then Executive will be deemed for purposes
of the Option Grant, to have remained employed through the consummation of the
Change in Control, and the vesting of the Option Grant shall accelerate as
described in the preceding sentence.
8. Termination. This
Agreement and the employment of Executive hereunder may be terminated as
follows:
(a) By the LIN Companies for
“Cause.” Subject to such other terms of this Agreement, the
LIN Companies may terminate this Agreement and the employment of Executive
hereunder for “Cause” by
action of the Board of Parent if the Executive:
(i) has
been convicted of, or entered a pleading of guilty or nolo contendre (or its
equivalent in the applicable jurisdiction) to any criminal offense (whether or
not in connection with the performance by Executive of his obligations and
duties under this Agreement), excluding offenses under road traffic laws, or
misdemeanor offenses, that are subject only to a fine or non-custodial
penalty;
(ii) has
committed an act or omission involving dishonesty or fraud;
(iii) has
willfully refused or willfully failed to perform his obligations and duties
under this Agreement or the duties properly assigned to him in accordance with
the terms and conditions of this Agreement, and Executive has the physical
capacity to perform such obligations or duties; or
(iv) has
engaged in gross negligence or willful misconduct with respect to any of the LIN
Companies or any of their affiliates or subsidiaries.
3
(b) By the LIN Companies “Without
Cause.” The LIN Companies may terminate this Agreement and the
employment of Executive hereunder at any time, in Parent’s sole discretion, for
any reason whatsoever or for no reason, which termination shall constitute a
termination “Without
Cause.”
(c) By Executive for Good
Reason. Executive may terminate this Agreement and his
employment hereunder in the event of any of the following (each of which shall
constitute “Good
Reason”) and the LIN Companies shall have failed to have reasonably
remedied such condition within thirty (30) days following written notice from
Executive setting forth in reasonable detail the condition giving rise to such
Good Reason:
(i) either
of the LIN Companies fails to perform its respective obligations or breaches any
of its covenants or warranties under this Agreement;
(ii) the
relocation of Executive’s primary office to a location that is more than
thirty-five (35) miles from both of (A) the Company’s headquarters
in Rhode Island, unless such office is moved closer to Executive’s primary
residence at the time of such relocation, and (B) Executive’s residence at
the time of such relocation; or
(iii) the
Board of Parent or the board of directors of the Company approves, without
Executive’s consent or for reasons other than those set forth in Section 8(a),
(A) a reduction in
Executive’s Base Salary or the Performance Bonus Amount, or (B) the assignment to
Executive of any duties inconsistent in any material respect with, or effect a
material diminution of, Executive’s duties, titles, offices, or responsibilities
(including direct-reporting responsibilities) with the Parent or the Company, or
any demotion of Executive from, or any failure to reelect or reappoint Executive
to any of such positions (except in connection with the termination of
Executive’s employment for disability or Cause or as a result of Executive's
death); provided, however,
that with respect to the foregoing clause (B) if subsequent to a Change
in Control (as hereinafter defined in Section 24), Executive maintains over the
business of the Company substantially the same authority and responsibility with
respect thereto that he held prior to such Change in Control, the requirement
that the Executive report to officers or the board of parent companies, or a
change in the title of Executive, shall not of itself constitute “Good
Reason.”
(d) By Executive Without Good
Reason. Executive may terminate this Agreement and his
employment hereunder at any time, for any reason, upon giving to the LIN
Companies thirty (30) days’ written notice of termination of this Agreement and
Executive’s employment hereunder pursuant to this Section 8(d) (“Notice of Resignation”),
during which notice period Executive’s employment and performance of services
will continue; provided,
however, that Parent may, upon notice to Executive and without reducing
Executive’s compensation during such period, excuse Executive from any or all of
his duties during such period. The effective date of the termination
of Executive’s employment hereunder shall be the date specified in the Notice of
Resignation delivered in accordance with this Section 8(d).
(e) Automatic Termination Upon Death or
Disability. This Agreement and Executive’s employment
hereunder shall terminate automatically upon the death or “total disability” of
Executive. The term “total disability” as used
herein shall mean Executive’s inability, with or without reasonable
accommodations, to perform the duties of Executive contemplated by Section 3
hereof for a period of, or periods aggregating, six (6) months in any twelve
(12) month period as a result of physical or mental illness, loss of legal
capacity or any other cause beyond Executive’s control, unless Executive is
granted a leave of absence by the Board of Parent. All determinations
as to whether Executive has suffered total disability due to physical or mental
illness, loss of capacity or any other medical cause shall be made by a
physician who is mutually agreed upon by Executive and a majority of the members
of the Nominating and Corporate Governance Committee of the Board of
Parent. Executive and the LIN Companies hereby acknowledge that
Executive’s ability to perform the duties set forth in Section 3 hereof is of
the essence of this Agreement. Termination under this Section
8(e) shall be deemed to be effective (i) as of the time of
Executive’s death or (ii) immediately upon
determination of Executive’s total disability, as defined above, by a physician
mutually agreeable to Executive and the Board of Parent.
4
9. Severance for
Termination Without Cause or Resignation With Good Reason.
(a) Subject
to the terms and conditions of this Section 9 set forth below, solely in the
event that this Agreement and Executive’s employment hereunder is terminated
(y) by the LIN
Companies Without Cause pursuant to the terms and subject to the conditions of
Section 8(b) hereof; or (z) by Executive with Good
Reason pursuant to the terms and subject to the conditions of Section 8(c)
hereof, then:
(i) The
Company shall pay to Executive a severance payment (the “Severance Payment”) in an
amount equal to the sum of (A) Executive’s Base Salary in
effect at the time of such termination and (B) the aggregate amount, if
any, of the Performance Bonus most recently awarded to Executive pursuant to
Section 5(b) prior to such termination; provided, however, that if
such termination occurs prior to the award of Executive’s initial Performance
Bonus under this Agreement (or the determination that no such award shall be
made), the payment under this clause (B) shall be the maximum applicable
Performance Bonus that would otherwise be due had Executive remained employed
with the Company. The Severance Payment shall be due and payable in
twenty six (26) substantially equal bi-weekly payments following such
termination; provided,
however, that the payment of the portion of the Severance Payment
comprised of any Performance Bonus based upon the determination of the
achievement of certain results may be deferred as necessary until the Company
has made the necessary determinations.
(ii) In
addition, during the twelve-month period following a termination giving rise to
the Severance Payment, the Company shall continue to pay the employer’s normal
portion of the costs of Executive’s health and dental insurance premiums in an
amount consistent with that paid on the date of termination, provided that
Executive chooses to participate in COBRA or a similar health insurance
continuation program and provides the Company with proof of such
participation. If Executive chooses to receive COBRA coverage from
the Company’s group health plans during this twelve-month period, such coverage
shall count toward the maximum coverage period permitted under such
plan.
(b) The
payment of the Severance Payment and the provision of the benefits described in
this Section 9 are expressly contingent on Executive’s execution of a standard
severance and release agreement containing only a release of any and all claims
by him against the LIN Companies and all predecessors, successors, affiliates
and subsidiaries thereof, except for claims relating to (i) the Severance
Payment and other post-employment payments and benefits due pursuant to the
terms and subject to the conditions of this Agreement; (ii) claims for
benefits under the employee benefit plans of the LIN Companies in which
Executive participates, and (iii) claims for indemnification or insurance, if
applicable, arising following his employment. Notwithstanding
anything to the contrary contained herein, Employer retains the right to
terminate the initiation or continuation of the Severance Payment and other
benefits described in this Section 9 and to recover from Executive any and all
amounts previously paid (as well as to pursue any other remedies available at
law or in equity) if it discovers that Executive engaged in any fraud, theft,
embezzlement, serious or substantial misconduct materially injuring the LIN
Companies’ reputation, or gross negligence while employed by the Company or if
Executive materially breaches this Agreement, including any breach by Executive
of his obligations and covenants under Sections 10, 11, or 12
hereof.
(c) Subject
to such adjustments as may be necessary in accordance with the proviso set forth
in the last sentence of Section 9(a)(i), all payments made under this Section 9
shall be made to Executive at the same interval as payments of salary were made
to Executive immediately prior to termination. Notwithstanding the
foregoing or anything to the contrary contained herein, if the Company
determines that Executive is a “Specified Employee” within the meaning of
Section 409A(a)(2)(B)(i) of the Code (as hereinafter defined), or any successor
thereto or as such may be amended hereafter (“Section 409A”), then to the
extent necessary to satisfy the requirements of Section 409A, any portion of the
severance compensation under this Section 9 that shall constitute deferred
compensation within the meaning of Section 409A shall not be due and payable to
Executive until the date that is six (6) months after the date of termination,
if necessary to avoid tax penalties under Section 409A. In the event
of such delay in payment, on the day following the expiration of such six month
period Executive shall be paid the delayed portion of the severance compensation
plus interest for the period of such delay, which interest shall be calculated
at a rate equal to the interest rate then earned by the LIN Companies’ excess
cash balances on bank deposit.
(d) Except
as expressly provided in paragraph (a) above, upon the termination of this
Agreement and Executive’s employment hereunder (including for Cause or without
Good Reason, or upon death or total disability pursuant, respectively, to
Sections 8(a), 8(d) and 8(e)), Executive shall not be entitled to any payments
hereunder, other than for Accrued Obligations, which the Company shall pay to
Executive in a lump sum immediately following such termination. For
purposes of this Agreement, “Accrued Obligations” shall
mean the sum of (i) any portion of Executive’s accrued but unpaid Base Salary
through the date of death or termination of employment, as the case may be; (ii)
any accrued but unpaid vacation or expense reimbursements; (iii) any then
declared but unpaid Performance Bonus, as applicable, with respect to the fiscal
year preceding the fiscal year in which the termination occurs; (iv) any
(A) Performance Bonus for the fiscal year in which the termination occurs,
as applicable, pro rated for service through the date of termination (and, if
not determined as of the date of termination, such payment, if any, to be due
and payable reasonably following the determination of such amounts) or (B)
Performance Bonus earned for that year if termination occurs at the end of the
year but prior to payment; provided, however, Executive
shall receive no payment under (A) or (B) upon a termination by the LIN
Companies for Cause; and (v) any compensation previously earned but deferred by
Executive (together with interest, to the extent and in the manner applicable
pursuant to terms and subject to the conditions of Section 9(c)) prior to the
date of termination that has not yet been paid.
5
10. Non-Disclosure.
(a) Executive
acknowledges that during the period of his employment with the Company during
the Service Period he will have, access to trade secrets and other confidential
or proprietary information of the LIN Companies and their respective affiliates
and subsidiaries (“Confidential
Information”). Executive acknowledges that as used herein,
Confidential Information includes, but is not limited to, all methods,
processes, techniques, practices, pricing information, billing histories,
customer lists or requirements, employee lists, salary information, personnel
matters, financial data, operating results, plans, contractual relationships,
projections for new business opportunities for new or developing businesses,
research, reports, and technological innovations in any stage of
development. Confidential Information also includes, but is not
limited to, all notes, records, software, drawings, handbooks, manuals,
policies, contracts, memoranda, sales files, or any other documents generated or
compiled by any employee of the LIN Companies or any of its respective
affiliates or subsidiaries. Notwithstanding the foregoing,
Confidential Information shall not include any data or information that has been
voluntarily disclosed to the public or the LIN Companies’ respective competitors
by either of the LIN Companies (except where such public disclosure has been
made by Executive or another without authorization) or that has been
independently developed and disclosed by others, or that otherwise enters the
public domain through lawful means.
(b) Executive
agrees that, both during the Service Period and after the termination of his
employment hereunder for any reason, he will use his reasonable best efforts and
utmost diligence to preserve, protect, and prevent the disclosure of such
Confidential Information, and that he will not, either directly or indirectly,
use, misappropriate, disclose or aid any other person in disclosing such
Confidential Information, unless done so on behalf of the LIN Companies or to
the extent required by law.
(c) All
Confidential Information is, and shall remain, the exclusive property of the LIN
Companies, and Executive hereby covenants and agrees that he shall promptly
return all such information to the LIN Companies upon termination of this
Agreement or at any other time when requested by the LIN Companies.
11. Non-Competition.
(a) During
the Service Period and for one (1) year after the termination of this Agreement
for any reason, whether with or Without Cause or whether upon resignation with
or without Good Reason, Executive shall not Compete (as hereinafter defined)
with any material business then conducted by the LIN Companies or their
respective affiliates or subsidiaries (collectively, “LIN”) without the prior
written consent of the LIN Companies; except that, notwithstanding this Section
11, Executive may perform any duties on behalf of the LIN Companies as the Board
of Parent shall approve and direct. For purposes of this Agreement,
the term “Compete” shall
mean engaging in a business as a more than five percent (5%) stockholder or
other holder of a five percent (5%) or greater equity interest of any Person (as
hereinafter defined in Section 24) (whether direct or indirect, including the
right to acquire such percentage equity interest), as an employee, a partner, an
agent, a consultant, or any other individual representative capacity of, to or
for any Person, as an officer of any Person, or a member of the board of
directors, board of managers, or other managing body of such Person (unless
Executive’s duties, responsibilities, and activities, including supervisory
activities, for or on behalf of such Person or in such business are not related
in any way to such “competitive” activity) if it involves:
(i) owning
or Managing (as defined below in Section 24) one or more local television
stations in any designated market area in which the Company or any direct or
indirect subsidiary thereof (a “Subsidiary”) owns or Manages,
one or more local television stations (the “Restricted Markets”);
or
(ii) rendering
services or advice pertaining to the business or operation of television
stations in a Restricted Market, or on behalf of, any Person which is in
competition with the Company or any of its affiliates or
subsidiaries.
(b) Upon
and subject to reasonable notice and information being provided to the LIN
Companies by Executive prior to Executive’s entering into a position or
association which may cause Executive to engage in activities in breach of
paragraph (a) above, Parent will conduct a timely review of such proposed
position or association and notify Executive in writing regarding Parent’s view
as to whether Executive will thereby breach the terms and conditions of
paragraph (a) above.
6
12. Non-Solicitation. Executive
agrees that, during the twelve (12) month period immediately following
termination of this Agreement, for whatever reason, with or without Cause or
whether by resignation with or without Good Reason, Executive shall not directly
or indirectly solicit, influence or entice, or attempt to solicit, influence or
entice, or hire any executive, employee, or consultant of LIN to cease his
relationship with LIN or solicit, influence, entice or in any way divert any
customer, distributor, partner, joint venturer or supplier of LIN to terminate
such person’s relationship with LIN, in order to be employed by or do business
with a Person that Competes with the LIN Companies or with any other entity that
derives benefit from the production, marketing, broadcasting or other
distribution or syndication of products, services, programs or other content
that compete with products then produced or services, programs or other content
then being provided, marketed, broadcast, distributed or syndicated by LIN or
the feasibility for production of which LIN is then actually studying or is
preparing to market or is developing; provided, however, that this
Section 12 shall apply only within the geographic area set forth in Schedule 12
hereto.
13. Acknowledgment of
Restrictive Covenants. Executive acknowledges that the
covenants specified in Sections 10, 11, 12, and 15 hereof (collectively, the
“Protective Provisions”)
contain reasonable limitations as to time, geographic area, and scope of
activities to be restricted and that such promises do not impose a greater
restraint on Executive than is necessary to protect the goodwill, Confidential
Information, trade secrets, customer and employee relations, and other
legitimate business interests of the LIN Companies. Executive also
acknowledges and agrees that any violation of the covenants set forth in the
Protective Provisions would bestow an unfair competitive advantage upon any
Person, which might benefit from such violation, and would necessarily result in
substantial and irreparable damage and loss to the LIN Companies.
14. No Inconsistent
Obligation. In order to induce the LIN Companies to enter into
this Agreement, Executive represents and warrants to each of the LIN Companies
that neither the execution nor the performance of this Agreement by Executive
will violate or conflict in any way with any other agreement to which Executive
may be bound, or with any other duties imposed upon Executive by corporate or
other statutory or common law.
15. Intellectual
Property. Executive and the LIN Companies hereby covenant and
agree that all intellectual property of any kind, whether now or later created,
developed or produced, developed by Executive, whether directly or indirectly,
in connection with services rendered by Executive for or on behalf of the LIN
Companies, or from the use of premises or property owned, leased, licensed or
contracted for by the LIN Companies, both prior to and subsequent to the date of
this Agreement, or otherwise developed by Executive during the Service Period
which is in any way related to the Company's business, as conducted or proposed
to be conducted, shall be the property of the Company. Executive
hereby assigns to the Company any and all rights and interests he now has or may
hereafter acquire in and to such intellectual property.
16. Notice. For
purposes of this Agreement, notices and all other communications provided for in
this Agreement shall be in writing and shall be deemed to have been duly given
(a) on the date of delivery when delivered by hand, (b) on the date of
transmission when sent by facsimile transmission during normal business hours
with telephone confirmation of receipt, (c) one day after dispatch when sent by
reputable overnight courier maintaining records of receipt, or (d) three days
after dispatch when sent by registered or certified mail, postage prepaid,
return receipt requested, all addressed as set forth on Schedule 16 attached hereto
or to such other address as either party may have furnished to the other in
writing in accordance herewith, except that notices of change of address shall
be effective only upon receipt.
7
17. Injunctive
Relief; Cumulative Rights. The parties agree that, without
limitation of the rights of the LIN Companies with respect to any other breach
of this Agreement, the harm to each of the LIN Companies arising from any breach
by Executive of the Protective Provisions could not adequately be compensated
for by monetary damages, and accordingly each of the LIN Companies shall, in
addition to any other remedies available to it at law or in equity, be entitled
to seek and, if so ordered by a court of competent jurisdiction, obtain,
preliminary and permanent injunctive relief against such
breach. Executive agrees that the various provisions of this
Agreement shall be construed as cumulative, and no one of them is exclusive of
the other, or exclusive of any rights allowed by law.
18. Withholding. Anything
in this Agreement to the contrary notwithstanding, all payments required to be
made by the Company hereunder to Executive shall be subject to the withholding
of such amounts relating to taxes as the Company may reasonably determine it is
legally required to withhold pursuant to any applicable law or
regulation. In lieu of withholding such amounts, in whole or in part,
the Company may, in its sole discretion, accept other provisions for payment of
taxes and withholdings as required by law, provided it is satisfied that all
requirements of law affecting its responsibilities to withhold have been
satisfied.
19. No
Waiver. No provision of this Agreement may be modified, waived
or discharged unless such waiver, modification or discharge is agreed to in
writing signed by Executive and such officer or director as may be specifically
designated by the Company. No waiver by either party hereto at any
time of any breach by the other party hereto of any condition or provision of
this Agreement to be performed by such other party shall be deemed a waiver of
any similar or dissimilar provision or condition at the same or at any prior or
subsequent time. Except where the context otherwise requires,
wherever used the singular shall include the plural, the plural the singular,
the use of any gender shall be applicable to all genders and the word “or” is
used in the inclusive sense.
20. Severability. If any covenant
or provision hereof is determined to be void or unenforceable in whole or in
part, it shall not be deemed to affect or impair the invalidity of any other
covenant or provision, each of which is hereby declared to be separate and
distinct. If any provision of this Agreement is so broad as to be
unenforceable, such provision shall be interpreted to be only so broad as is
enforceable. If any provision of this Agreement is declared invalid
or unenforceable for any reason other than overbreadth, the offending provision
will be modified so as to maintain the essential benefits of the bargain among
the parties hereto to the maximum extent possible, consistent with law and
public policy.
21. Amendment. No
amendment, modification, waiver, termination or discharge of any provision of
this Agreement, or consent to any departure therefrom by either party hereto,
shall in any event be effective unless the same shall be in writing,
specifically identifying this Agreement and the provision intended to be
amended, modified, waived, terminated or discharged and signed by each of the
LIN Companies and Executive, and each such amendment, modification, waiver,
termination or discharge shall be effective only in the specific instance and
for the specific purpose for which it is given. No provision of this
Agreement shall be varied, contradicted or explained by any oral agreement,
course of dealing or performance or any other matter not set forth in an
agreement in writing and signed by each of the LIN Companies and
Executive.
8
22. Choice of Law and
Forum. This Agreement shall be governed by, and construed in
accordance with, the laws of the State of Rhode Island. Employee
hereby (a) submits to personal jurisdiction in the State of Rhode Island
for any action arising out of or in connection with this Agreement; (b) waives
any and all personal rights under the laws of any state to object to
jurisdiction within the State of Rhode Island; and (c) agrees that for any cause
of action arising out of or in connection with this Agreement, venue is solely
proper in any state or federal court within Rhode Island.
23. Waiver of Jury
Trial. EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST EXTENT
PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT
OF ANY SUIT, ACTION OR PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER
OR IN CONNECTION WITH THIS AGREEMENT.
24. Certain
Definitions. The capitalized terms contained and used in this
Agreement which are defined below shall have the respective meanings ascribed to
them as follows:
(a) “Change in Control” shall mean
the occurrence of any of the following events:
(i) any
sale, lease, exchange, or other transfer (in one transaction or series of
related transactions) of all or substantially all of the assets of Parent to any
Person or group of related Persons for purposes of Section 13(d) of the Exchange
Act, other than one or more members of the Shareholder Group;
(ii) a
majority of the Board of Parent shall consist of Persons who are not Continuing
Directors;
(iii) the
acquisition by any Person or Group (other than (A) one or more members of the
Shareholder Group or (B) with respect to a transferee of shares of Class C
Common Stock, par value $0.01 per share, of Parent, (1) one or more members of the
Shareholder Group or (2) any Person approved by an
affirmative vote of no less than two-thirds of the disinterested members of the
Board of Parent) of the power, directly or indirectly, to vote or direct the
voting of securities having more than 50% of the ordinary voting power for the
election of directors of Parent;
(iv) the
acquisition by any Person or Group of shares of the capital stock of Parent
representing in the aggregate more than 40% of the issued and outstanding shares
of such capital stock and, as of the time of such acquisition, no other Person
or Group holds, in the aggregate, a greater number of such shares of capital
stock;
(v) any
sale, lease, exchange, or other transfer (in one transaction or series of
related transactions) of all or substantially all of the assets of the Company
to any Person or group of related Persons for purposes of Section 13(d) of the
Exchange Act, other than to (A) a wholly-owned subsidiary of Parent or the
Company or (B) one or more members of the Shareholder Group; or
(vi) Parent
shall cease, whether directly or indirectly through one or more wholly-owned
subsidiaries, to have the power to vote or direct the voting of securities
having more than 50% of the ordinary voting power for the election of directors
of the Company.
(b) “Code” shall mean the Internal
Revenue Code of 1986, as amended, and the regulations or other guidelines of
general applicability promulgated thereunder.
(c) “Continuing Directors” shall
mean any Person who (i) was a member of the Board of Parent on the Appointment
Date, (ii) is thereafter nominated for election or elected to the Board of
Parent with the affirmative vote of a majority of the Continuing Directors who
are members of such Board of Parent at the time of such nomination or election,
or (iii) is a member of the Board of Parent and also a member of the
Shareholder Group.
(d) “Group” means any group of
related Persons for purposes of Section 13(d) of the Securities Exchange Act of
1934, as amended.
(e) “Manage” (or “Managing”) means
with respect to the business or operation of a television station, (i) the provision of
management services, (ii) the right to program, or
select a substantial portion of the programming of, such station, including
through a local marketing agreement, time brokerage agreement, joint sales
agreement, shared services agreement, or other similar agreements (collectively,
a “Services Agreement”),
or (iii) the sale of,
or the right to sell, the advertising of such station through a Services
Agreement.
(f) “Person” shall mean an
individual, a corporation, limited liability company, a partnership, an
association, a trust or any other entity or organization, including any other
form of business entity or any government or political subdivision or an agency
or instrumentality thereof.
(g) “Shareholder Group” shall mean
HM Capital Partners, LLC, and any Person controlling, controlled by or under
common control with it.
9
25. Interpretation. The
headings in this Agreement are inserted for convenience only and shall not
constitute a part hereof. Except where the context requires
otherwise, whenever used in this Agreement, the singular includes the plural,
the plural includes the singular, the use of any gender is applicable to all
genders and the word “or” has the inclusive meaning represented by the phrase
“and/or.” The words “include” and “including” and variations thereof,
shall not be deemed to be terms of limitation, but rather shall be deemed to be
followed by the words “without limitation.” A reference in this
Agreement to a Section, Paragraph, Exhibit or Schedule is to the referenced
Section, Paragraph, Exhibit or Schedule of this Agreement. The
wording of this Agreement shall be deemed to be the wording mutually chosen by
the parties and no rule of strict construction shall be applied against any
party. Unless expressly provided otherwise, all dollar figures in
this Agreement are in the currency of the United States of America.
26. Survival. The
expiration or termination of this Agreement shall not relieve any party of any
obligations that may have accrued hereunder prior to such expiration or
termination. The provisions of Sections 9, 10, 11, 12, 13, 15, 16,
17, 18, 19, and 20 shall survive the expiration or termination of this Agreement
except as otherwise specifically provided in such Sections.
27. Assignment. The
terms and provisions of this Agreement shall inure to the benefit of and be
binding upon the LIN Companies and each of its respective successors and
assigns. Notwithstanding the foregoing or anything to the contrary
contained herein, this Agreement may not be assigned by the LIN Companies
without Executive’s prior written consent unless the LIN Companies retain joint
and several liability with any of the LIN Companies’ assignee for the financial
obligations under this Agreement. This Agreement may not be assigned,
in whole or in part, by Executive without the written consent of each of the LIN
Companies.
28. Indemnification. At
all times during and after the Service Period the LIN Companies shall indemnify
Executive pursuant to the terms and subject to the conditions of the certificate
of incorporation and bylaws, respectively, of each of the LIN Companies, as such
are in effect as of the Appointment Date. Executive shall have the
benefit of continuing directors’ and officers’ insurance coverage at levels no
less favorable than those in effect from time to time for members of the Board
of Parent and the board of directors of the Company and other members of the LIN
Companies’ senior management.
29. Counterparts. This
Agreement may be executed in two or more counterparts, each of which shall be
deemed to be an original but all of which together shall constitute one and the
same instrument. Each party hereto will receive by delivery or by
facsimile or other electronic transmission a duplicate original of the Agreement
executed by each party, and each party agrees that the delivery of the Agreement
by facsimile or other electronic transmission will be deemed to be an original
of the Agreement so transmitted.
30. Entire
Agreement. This Agreement
constitutes the entire agreement between the parties hereto with respect to the
subject matter hereof and supersedes all prior oral or written agreements,
commitments or understandings with respect to the matters provided for
herein.
[The remainder of this page is
intentionally blank; signature page follows.]
10
IN WITNESS WHEREOF, the
parties have executed this Agreement on the date first above
written.
|
Executive:
|
|
By: /s/ Xxxxxxxx X.
Xxxxxxx
|
|
Xxxxxxxx
X.
Xxxxxxx
|
|
XXX
TV Corp.
|
|
By:
/s/ Xxxxxxx X.
Xxxxxxxxxx
|
|
Xxxxxxx
X. Xxxxxxxxxx
Senior
Vice President CFO
|
|
LIN
Television Corporation
|
|
By: /s/ Xxxxxxx X.
Xxxxxxxxxx
|
|
Xxxxxxx
X. Xxxxxxxxxx
|
|
Senior
Vice President CFO
|
11
Schedule
12
Geographic
Scope of Non-Solicitation
The
geographic scope to which Section 12 shall apply shall be defined as all markets
in the United States of America.
12
Schedule
16
Notices
If
to
Executive: To the address as shall most
currently appear on therecords of the
Company
If
to the LIN
Companies:
LIN Television Corporation
0 Xxxxxxxx Xxxxxx, Xxxxx
000
Xxxxxxxxxx,
XX 00000
Attn: General
Counsel
Fax: (000)
000-0000
13
Exhibit
5(b)
Budget-Based
Objectives
[To Be
Determined]
