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EXHIBIT 10.34
PARTICIPATION AGREEMENT
AGREEMENT made and entered into as of May 25, 1998, by and between PULITZER
PUBLISHING COMPANY, a Delaware corporation (the "Company"), and ▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇ ("Pulitzer").
1. Retention Award. The Company will pay Pulitzer a retention award of
$900,000 on the earlier of (a) January 1, 2000, or (b), the date of the closing
("Closing") of the acquisition of Pulitzer Broadcasting Company and its
subsidiaries by Hearst-Argyle Television, Inc. pursuant the Agreement and Plan
of Merger dated May 25, 1998, by and among the Company, Pulitzer Inc. and
Hearst-Argyle Television, Inc., provided Pulitzer remains in the continuous
employ of the Company until such earlier date.
2. Transaction Incentive. If the Closing occurs and if Pulitzer remains
in the continuous employ of the Company until the date on which the Closing
occurs, then, in addition to the amount payable to Pulitzer pursuant to
paragraph 1 above, the Company will pay Pulitzer a transaction completion bonus
of $1,000,000. The Compensation Committee of the Board of Directors of the
Company, acting in its sole discretion, may increase the amount of the award.
Subject to the provisions of paragraph 3 below, the amount described in this
paragraph will be payable to Pulitzer on the date of the Closing.
3. Payment. Notwithstanding the foregoing, the Company will defer
payment of any amount described in paragraph 1 and paragraph 2 which constitutes
"applicable employee remuneration" (within the meaning of Section 162(m)(4) of
the Code) to the extent that such amount, when added to the "applicable employee
remuneration" previously paid by the Company to Pulitzer during the year in
which the Closing occurs, exceeds $1,000,000. The deferral amount, together with
interest at a rate to be determined by the Company, will be payable to Pulitzer
as soon as practicable following his termination of employment with the Company
and its affiliates (including, without limitation, Pulitzer Inc.) or following
his earlier death. Payment may be further deferred until the first day of the
year following Pulitzer's termination of employment with the Company and its
affiliates if and to the extent necessary to avoid a loss of deduction by the
Company or any of its affiliates by reason of the application of the limitation
of Section 162(m) of the Code in the termination year. The Board of Directors of
the Company, acting in its sole discretion, may permit or require an accelerated
payment of the deferral amount and/or an installment payout (in lieu of a lump
sum) on such terms and conditions as it deems appropriate, provided, however,
that, without Pulitzer's consent, the Board may not require an installment
payout that is less frequent than quarterly over a period of more than four
years.
4. Death. If the Closing occurs and if Pulitzer dies before the Closing
and while he is still an employee of the Company, then, for the purpose of this
agreement, Pulitzer will be deemed to have lived and to have continued to be
employed by the Company through the date the Closing occurs. In such event,
Pulitzer's estate will be entitled to receive the amounts that otherwise would
have been payable to him hereunder.
5. General Provisions.
(a) Nothing in this agreement is intended to create a contract
of employment between Pulitzer and the Company, or to interfere in any way with
the right of the Company to terminate Pulitzer's employment at any time.
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(b) In connection with the Closing, the Company may assign to
Pulitzer Inc., and Pulitzer Inc. may assume, the Company's obligations to
Pulitzer under this agreement, to the extent not previously satisfied. Pulitzer
will look solely to Pulitzer Inc. and will have no further claim against the
Company for payment of amounts that become due hereunder following any such
assignment and assumption. All payments made pursuant to this agreement will be
subject to applicable withholding taxes.
(c) No amounts paid or payable under this agreement will be
treated as compensation for purposes of calculating Pulitzer's benefits, if any,
under any retirement/pension plan maintained by the Company and/or Pulitzer Inc.
or any of their affiliates (including, without limitation, the Company's
Supplemental Executive Benefit Pension Plan).
(d) This agreement will be governed by and construed in
accordance with the laws of the State of Delaware without regard to its conflict
of laws provisions.
(e) No amendment or modification of this agreement may be made
except by a written instrument signed by the Company and Pulitzer.
(f) All disputes arising under or related to this agreement
will be resolved by arbitration. Such arbitration will be conducted by an
arbitrator mutually selected by the Company (or Pulitzer Inc., if the dispute
relates to an obligation of the Company that is assumed by Pulitzer Inc. at the
Closing) and Pulitzer (or, if the Company or Pulitzer Inc., as the case may be,
and Pulitzer are unable to agree upon an arbitrator within ten days, then the
Company or Pulitzer Inc., as the case may be, and Pulitzer will each select an
arbitrator, and the arbitrators so selected will mutually select a third
arbitrator, who will resolve such dispute). Such arbitration will be conducted
in St. Louis, Missouri in accordance with the applicable rules of the American
Arbitration Association. Any decision rendered by an arbitrator pursuant hereto
may be enforced by a court of competent jurisdiction without review of such
decision by such court. All attorneys' fees and costs of the arbitration will in
the first instance be borne by the respective party incurring such costs and
fees, but the arbitrator will award costs and attorneys' fees to the prevailing
party.
(g) This agreement constitutes the entire agreement between
the parties hereto relating to the matters encompassed hereby and supersedes any
prior oral or written agreements relating thereto.
IN WITNESS WHEREOF, the undersigned have executed this agreement as of
the date first written above.
PULITZER PUBLISHING COMPANY
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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