Exhibit 10.82
EXECUTIVE EMPLOYMENT AGREEMENT
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THIS EXECUTIVE EMPLOYMENT AGREEMENT (the "Agreement") is made as of
September 1, 2003 by and between G. Xxxxxx Xxxxxxxx ("Executive"), and Nexstar
Broadcasting Group, Inc., a Delaware corporation (the "Company").
Since May 13, 2002, Executive has been employed as Executive Vice
President and Chief Financial Officer of the Company. The Company desires to
continue to employ Executive as Executive Vice President and Chief Financial
Officer, and Executive desires to continue such employment by the Company in
such capacity on the terms and conditions set forth in this Agreement.
In consideration of the mutual promises set forth herein and the
mutual benefits to be derived from this Agreement, the parties hereto, intending
to be legally bound, hereby agree as follows:
1. Positions and Duties. Subject to the terms and conditions of this
Agreement, during the term of this Agreement, the Company will employ Executive.
Effective on and as of the date of this agreement, Executive will serve as
Executive Vice President and Chief Financial Officer of the Company and Nexstar
Broadcasting Group, L.L.C. ("Holdings"). Additionally, the Company shall cause
Executive to be elected Executive Vice President and Chief Financial Officer of
Holdings and any of their wholly-owned direct and indirect subsidiaries,
including any subsidiary which is the holder of any Federal Communications
Commission license to operate television, radio or other broadcast properties.
In such position, Executive will perform such duties of a managerial nature as
are assigned to him from time to time by the Company's chief executive officer
(the "CEO") and/or its board of directors or sole member (the "Board").
Executive will devote his best efforts to his employment with the Company and
will devote substantially all of his business time and attention to the
performance of his duties under this Agreement; provided that the foregoing will
not preclude Executive from devoting reasonable time to the supervision of his
personal investments, civic and charitable affairs, so long as such activities
do not materially interfere with the performance of Executive's duties
hereunder.
2. Term of Employment. Unless terminated earlier as provided in
Paragraph 3, the Company's employment of Executive under this Agreement will
continue until May 12, 2007, provided, however, that the term of employment
under this Agreement will be automatically renewed for successive one-year
periods (the first of which will commence on May 13, 2007) unless, at least
ninety (90) days prior to the end of the then current term of employment under
this Agreement, Executive or the Company gives written notice to the other of
the notifying party's intent not to renew the term of employment under this
Agreement as of the end of the then current term.
3. Termination. The Company's employment of Executive under this
Agreement will terminate prior to the end of the term specified in Paragraph 2
only under the following circumstances:
(a) Death. Executive's death, in which case Executive's employment
will terminate on the date of death;
(b) Disability. If Executive's illness, physical or mental disability
or other incapacity results in Executive's inability to perform, with or
without reasonable accommodation (as defined under the Americans with
Disabilities Act), Executive's duties under this Agreement for any period
of six (6) consecutive months, and within thirty (30) days after written
notice of termination is given by the Company to Executive (which may occur
before or after the end of such six-month period), Executive does not
return to the performance of Executive's duties hereunder on a full-time
basis, then the Company may terminate Executive's employment hereunder
effective on or after the later of (i) the expiration of such six-month
period or (ii) the thirty-first (31st) day following the giving by the
Company of such written notice of termination;
(c) Consolidation, Merger or Comparable Transaction. In the event that
the Company or Holdings consolidates with or merges with and into any other
person, effects a share exchange, enters into a comparable capital
transaction or has any or all of its equity securities sold to one or more
third parties, in each case such that a person (other than an affiliate of
ABRY Partners, LLC ("ABRY")) becomes the beneficial owner of a majority of
the voting power represented by the securities of the Company or Holdings
(treating any such person and the affiliates of such person as being one
and the same person), or if the Company or Holdings sells all or
substantially all of its consolidated assets, then Executive's employment
may, by written notice of termination, be terminated by the Company or
Executive simultaneously with the consummation of such consolidation,
merger, share exchange, asset sale, stock sale or comparable transaction
(for avoidance of doubt, this paragraph 3(c) does not apply to the merger
between the Company and Holdings);
(d) Termination by the Company for Cause. The Company may terminate
Executive's employment at any time for Cause, such termination to be
effective as of the date stated in a written notice of termination
delivered by the CEO to Executive. Any termination pursuant to this
Paragraph 3(d) will not also be deemed to be a termination pursuant to
Paragraph 3(e). For the purposes of this Agreement, "Cause" is defined to
mean any of the following activities by Executive: (i) the conviction of
Executive for a felony or a crime involving moral turpitude or the
commission of any act involving dishonesty, disloyalty or fraud with
respect to the Company or any of its subsidiaries or affiliates, in each
instance which has caused or is reasonably likely to cause material harm to
the Company; (ii) substantial repeated failure to perform duties which are
reasonably directed by the CEO or the Board and which are consistent with
the terms of this Agreement and the position specified in Paragraph 1;
(iii) gross negligence or willful misconduct with respect to the Company or
any of its subsidiaries or affiliates, in each instance which has caused or
is reasonably likely to cause material harm to the Company;
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or (iv) any other material breach by Executive of a material provision of
this Agreement, which is not cured within thirty (30) days after written
notice thereof to Executive;
(e) Termination by the Company Other Than for Cause. The Company may
terminate Executive's employment for any reason or for no reason upon
thirty (30) days prior written notice to Executive, subject to payment of
the termination payments specified in Paragraph 6. Such termination will be
effective as of the date stated in a written notice of termination
delivered by the CEO to Executive;
(f) Termination by Executive With Good Reason. Executive may terminate
his employment hereunder at any time for Good Reason, such termination to
be effective as of the date stated in a written notice of termination
delivered by Executive to the Company (or such earlier date after the
delivery of such notice as the Company may elect). For purposes of this
Agreement, "Good Reason" will mean (i) a material reduction in the duties
or position of Executive, or (ii) a material breach by the Company of a
material provision of this Agreement which adversely affects Executive and
which has not been cured by the breaching entity within thirty (30) days
after Executive gives written notice of noncompliance to such entity;
(g) Termination by Executive Without Good Reason. Executive may
terminate his employment hereunder for any reason or for no reason upon
thirty (30) days prior written notice to the Company. Such termination will
be effective as of the date stated in a written notice of termination
delivered by Executive to the Company (or such earlier date after the
delivery of such notice as the Company may elect); or
(h) Retirement. The Company may require Executive to retire upon
attaining age 65 if such action does not violate applicable law; such
action will not be treated as a termination by the Company pursuant to
Paragraph 3(d) or 3(e).
In no event will the termination of Executive's employment affect the rights and
obligations of the parties set forth in this Agreement, except as expressly set
forth herein. Any termination of Executive's employment pursuant to this
Paragraph 3 will be deemed to include a resignation by Executive of all
positions with the Company and Holdings and its subsidiaries and affiliates.
4. Compensation.
(a) Base Salary. During the term of this Agreement, Executive will be
entitled to receive a base salary ("Base Salary") at the annual rate
specified below:
Period Base Salary
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From September 1, 2003 through August 31, 2004 .......$225,000
From September 1, 2004 through August 31, 2005 .......$235,000
From September 1, 2005 through August 31, 2006 .......$240,000
From September 1, 2006 and thereafter ................$250,000
(b) Bonus. After the end of each Company fiscal year during the term
of this Agreement, Executive will be entitled to receive an annual bonus
(the "Bonus"), in an amount, if any, up to the amount specified below (or
in excess of such amount, as the
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CEO may determine is appropriate in his sole discretion), pro-rated for any
partial fiscal year during which Executive is employed by the Company
pursuant to this Agreement, to be determined by the CEO based on, among
other things, whether the Executive has achieved the personal goals
established for the Executive by the CEO for such fiscal year:
After the 2003 fiscal year ...........................$35,000
After the 2004 fiscal year ...........................$40,000
After the 2005 fiscal year ...........................$45,000
After the 2006 fiscal year and each
subsequent fiscal year ..............................$50,000
(c) Payment. Executive's Base Salary will be paid ratably during each
12-month period under this Agreement on a basis consistent with other
Company executives. The Bonus provided in Paragraph 4(b), if granted by the
CEO, will be paid in a single payment within thirty (30) days after the
independent certified public accountants regularly employed by the Company
have made available to the Company the Company's audited financial
statements for the appropriate fiscal year. All payments under this
Agreement will be subject to withholding or deduction by reason of the
Federal Insurance Contribution Act, Federal income tax, state income tax
and all other applicable laws and regulations.
5. Fringe Benefits.
(a) During the term of this Agreement, Executive will be entitled to
receive, at the Company's expense, medical and other insurance coverage and
paid vacation as described in the Company's employee handbook.
(b) During the term of this Agreement, the Company will reimburse
Executive for all approved business expenses which Executive incurs on the
Company's behalf, upon presentation of appropriate documentation.
6. Termination Payments. Executive (or Executive's estate pursuant to
Paragraph 6(a)) will be entitled to receive the following payments upon
termination of Executive's employment hereunder:
(a) In the event of the termination of Executive's employment pursuant
to any of the following provisions:
Paragraph 3(a) [Death]
Paragraph 3(b) [Disability]
Paragraph 3(d) [By the Company For Cause]
Paragraph 3(g) [By Executive Without Good Reason]
Paragraph 3(h) [Retirement]
the Company will pay to Executive (or Executive's estate, as the case may
be) as soon as practicable following such termination all accrued and
unpaid Base Salary as of the date of termination as provided in Paragraph 4
and an amount (calculated at the rate of the Base Salary in effect on such
date) in respect of all accrued but unutilized vacation time as of such
date.
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(b) In the event of termination of Executive's employment pursuant to
any of the following provisions:
Paragraph 3(c) [Consolidation, Merger or Comparable
Transaction]
Paragraph 3(e) [By the Company Other Than For Cause]
Paragraph 3(f) [Good Reason]
the Company will pay Executive the amounts described in Paragraph 6(a) and
will continue to pay the Base Salary which otherwise would be due to
Executive for a period of twelve (12) months after the date of such
termination. For such period, the Company will also continue to provide
coverage (at the Company's expense) under any medical insurance plan
available pursuant to Paragraph 5(a) in which Executive was a participant
at the time of the termination of Executive's employment under this
Agreement (or such other medical coverage as the Company provides to its
employees generally from time to time during such period).
Without limiting the remedies available to the Company for breach by Executive
of Paragraph 7, if Executive violates the provisions of Paragraph 7 after the
termination of Executive's employment with the Company in a manner reasonably
determined by the Board to be injurious to the Company or any of its affiliates,
then Executive will forfeit the right to any payments under this Paragraph 6
which are unpaid at the time such violation occurs.
7. Covenant Not to Compete and Non-Disclosure.
(a) For purposes of this Paragraph 7, the term "Company" will include
the Company, Holdings, and each subsidiary or other affiliate of either of
them, and each such entity is an express third party beneficiary of this
Agreement; provided that the term "Company" will not include any affiliates
of the Company who are affiliates of the Company solely by reason of being
affiliates of ABRY.
(b) During the term of Executive's employment pursuant to this
Agreement and for a period of one (1) year thereafter, Executive covenants
and agrees that Executive will not within any DMA (as determined from time
to time by the X. X. Xxxxxxx Company or its successor) in which the Company
operates a television broadcast facility on the date that Executive's
employment by the Company terminates (or in which the Company has agreed to
acquire, or the Board has approved pursuing (and the Company has not
abandoned) the acquisition of, a television broadcast facility on or prior
to such date) whether directly or indirectly, with or without compensation,
(x) enter into or engage in the business of television broadcasting, (y) be
employed by, act as a consultant to, act as a director of or own
beneficially five percent (5%) or more of any class of equity or debt
securities of any corporation or other commercial enterprise in the
business of television broadcasting, or (z) solicit or do any business with
respect to television broadcasting with any then-existing customers of the
Company. During the one (1) year after Executive's employment with the
Company terminates, neither Executive nor any of Executive's affiliates
will hire, solicit, employ or contract with respect to employment any
officer or employee of the Company.
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(c) Executive agrees to disclose promptly to the Company and does
assign and agree to assign to the Company, free from any obligation to
Executive, all Executive's right, title and interest in and to any and all
ideas, concepts, processes, improvements and inventions made, conceived,
written, acquired, disclosed or developed by Executive, solely or in
concert with others, during the term of Executive's employment by the
Company, which relate to the business, activities or facilities of the
Company, or resulting from or suggested by any work Executive may do for
the Company or at its request. Executive further agrees to deliver to the
Company any and all drawings, notes, photographs, copies, outlines,
specifications, memoranda and data relating to such ideas, concepts,
processes, improvements and inventions, to cooperate fully during
Executive's employment and thereafter in the securing of copyright,
trademark or patent protection or other similar rights in the United States
and foreign countries, and to give evidence and testimony and to execute
and deliver to the Company all documents requested by it in connection
therewith.
(d) Except as expressly set forth below, Executive agrees, whether
during Executive's employment pursuant to this Agreement or thereafter,
except as authorized or directed by the Company in writing or pursuant to
the normal exercise of Executive's responsibilities hereunder, not to
disclose to others, use for Executive's or any other Person's benefit, copy
or make notes of any confidential information or trade secrets or any other
knowledge or information of or relating to the business, activities or
facilities of the Company which may come to Executive's knowledge prior to
or during Executive's employment pursuant to this Agreement or thereafter.
Executive will not be bound to this obligation of confidentiality and
nondisclosure if:
(i) the knowledge or information in question has become part of
the public domain by publication or otherwise through no fault of
Executive;
(ii) the knowledge or information in question is disclosed to the
recipient by a third party and Executive reasonably believes such
third party is in lawful possession of the knowledge or information
and has the lawful right to make disclosure thereof; or
(iii) Executive is required to disclose the information in
question pursuant to applicable law or by a court of competent
jurisdiction.
(e) Upon termination of employment pursuant to this Agreement,
Executive will deliver to the Company all records, notes, data, memoranda,
photographs, models and equipment of any nature which are in Executive's
possession or control and which are the property of the Company.
(f) The parties understand and agree that the remedies at law for
breach of the covenants in this Paragraph 7 would be inadequate and that
the Company will be entitled to injunctive or such other equitable relief
as a court may deem appropriate for any breach of these covenants. If any
of these covenants will at any time be adjudged invalid to any extent by
any court of competent jurisdiction, such covenant will be deemed modified
to the extent necessary to render it enforceable.
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8. Equity Interests. The parties agree that upon the closing of the
initial public offering of the Company and the related reorganization of
Holdings and the Company and certain of their subsidiaries (the initial public
offering and the reorganization together, the "IPO"): (i) if Executive is then
employed by the Company and its subsidiaries, Executive will be granted an
option pursuant to the Company's 2003 Long-Term Incentive Plan (the "LTIP") to
purchase 50,000 shares of the Company's Class A common stock (the "Class A
Common") at an exercise price equal to the initial public offering price for the
Class A Common; (ii) such option shall vest ratably over Executive's initial
term of employment under this Agreement (which, for avoidance of doubt, is May
13, 2002 until May 12, 2007); and (iii) if the IPO has not closed by December
31, 2003, then Executive will be eligible, at the discretion of the CEO, to
purchase equity interests of the Company on terms comparable to those pursuant
to which other executive officers of the Company and its subsidiaries have
purchased equity interests. From time to time following the closing of the IPO,
Executive will be eligible for additional option grants pursuant to the LTIP, at
the discretion of the Board. Additional options granted pursuant to the LTIP
would vest over a five (5)-year period as may be determined under the LTIP.
9. Entire Agreement. This instrument embodies the entire agreement
between the parties hereto with respect to Executive's employment with the
Company, and there have been and are no other agreements, representations or
warranties between the parties regarding such matters.
10. No Assignment. This Agreement will not be assigned by Executive
without the prior written consent of the Company and any attempted assignment
without such prior written consent will be null and void and without legal
effect; provided that in the case of Executive's death or disability this
Agreement may be enforced by Executive's executors, personal representatives or
guardians, to the extent applicable. This Agreement will not be assigned by the
Company without the prior written consent of Executive except to any other
person or entity which may acquire or conduct the business of the Company and/or
its subsidiaries.
11. Notices. All notices, requests, demands and other communications
hereunder will be deemed to have been duly given when (i) delivered by hand or
if mailed, by certified or registered mail, with postage prepaid; (ii) hand
delivered; or (iii) sent overnight mail or overnight courier:
(a) If to Executive, then to G. Xxxxxx Xxxxxxxx, 0000 Xxxxxxxxxxx
Xxxxx, Xxxxx, Xxxxx 00000; or as Executive may otherwise specify by prior
written notice to the Company; and
(b) If to the Company, then to Nexstar Broadcasting Group, Inc., 000
Xxxx Xxxxxxx Xxxxxxx, Xxxxx 0000, Xxxxxx, XX 00000, Attention: Xxxxx X.
Xxxx or as the Company may otherwise specify by prior written notice to
Executive.
12. Amendment; Modification. This Agreement will not be amended,
modified or supplemented other than in a writing signed by the parties hereto.
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13. Counterparts. This Agreement may be executed in two or more
counterparts, each of which will be deemed an original, but all of which
together will constitute but one and the same instrument.
14. Headings. The headings in the Paragraphs of this Agreement are
inserted for convenience only and will not constitute a part of this Agreement.
15. Severability. The parties agree that if any provision of this
Agreement will under any circumstances be deemed invalid or inoperative, the
Agreement will be construed with the invalid or inoperative provision deleted,
and the rights and obligations of the parties will be construed and enforced
accordingly.
16. Governing Law. This Agreement will be governed by and construed in
accordance with the internal law of the State of Delaware without giving effect
to any choice of law or conflict provision or rule that would cause the laws of
any jurisdiction other than the State of Delaware to be applied.
17. Legal Fees. In the event of any litigated dispute between or among
any of the parties to this Agreement, the reasonable legal fees and expenses of
the party successful in such dispute (whether by way of a decision by a court or
other tribunal) will be paid promptly by the unsuccessful party upon
presentation by the successful party of an invoice therefor.
18. Representations. Executive represents and warrants to the Company
that Executive is not a party to or bound by any employment agreement,
noncompete agreement or confidentiality agreement with any other person or
entity.
19. Strict Construction. The parties to this Agreement have
participated jointly in the negotiation and drafting of this Agreement. In the
event an ambiguity or question of intent or interpretation arises, this
Agreement will be construed as if drafted jointly by the parties, and no
presumption or burden of proof will arise favoring or disfavoring any party by
virtue of the authorship of any of the provisions of this Agreement.
20. Binding Arbitration.
(a) Generally. The arbitration procedures described in this Paragraph
20 will be the sole and exclusive method of resolving and remedying claims
under this Agreement ("Disputes"); provided that nothing in this Paragraph
20 will prohibit a Person from instituting litigation to enforce any Final
Arbitration Award. Except as otherwise provided in the Commercial
Arbitration Rules of the American Arbitration Association as in effect from
time to time (the "AAA Rules"), the arbitration procedures described in
this Paragraph 20 and any Final Arbitration Award will be governed by, and
will be enforceable pursuant to, the Uniform Arbitration Act as in effect
in the State of Texas from time to time. "Person" for the purposes of this
Agreement means an individual, a partnership, a limited liability company,
a corporation, an association, a joint stock company, a trust, a joint
venture, an unincorporated organization or any governmental entity.
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(b) Notice of Arbitration. If a Person asserts that there exists a
Dispute, then such Person (the "Disputing Person") will give each other
Person involved in such Dispute a written notice setting forth the nature
of the asserted Dispute. If all such Persons do not resolve any such
asserted Dispute prior to the 10th business day after such notice is given,
then any of them may commence arbitration pursuant to this Paragraph 20 by
giving each other Person involved in such Dispute a written notice to that
effect (an "Arbitration Notice"), setting forth any matters which are
required to be set forth therein in accordance with the AAA Rules.
(c) Selection of Arbitrator. The Persons involved in any Dispute will
attempt to select a single arbitrator by mutual agreement. If no such
arbitrator is selected prior to the 10th business day after the related
Arbitration Notice is given, then an arbitrator which is experienced in
matters of the type which are the subject matter of the Dispute will be
selected in accordance with the AAA Rules.
(d) Conduct of Arbitration. The arbitration will be conducted in the
Irving, Texas metropolitan area under the AAA Rules, as modified by any
written agreement among the Persons involved in the Dispute in question.
The arbitrator will conduct the arbitration in a manner so that the final
result, determination, finding, judgment or award determined by the
arbitrator (the "Final Arbitration Award") is made or rendered as soon as
practicable, and the Persons involved will use reasonable efforts to cause
a Final Arbitration Award to occur within 90 days after the arbitrator is
selected. Any Final Arbitration Award will be final and binding upon all
Persons and there will be no appeal from or reexamination of any Final
Arbitration Award, except in the case of fraud, perjury or evident
partiality or misconduct by the arbitrator prejudicing the rights of such
Persons or to correct manifest clerical errors.
(e) Enforcement. A Final Arbitration Award may be enforced in any
state or federal court having jurisdiction over the subject matter of the
related Dispute.
(f) Expenses. Each prevailing Person in any arbitration proceeding
described in this Paragraph 20 will be entitled to recover from any
non-prevailing Person(s) its reasonable attorneys' fees and disbursements
and other out-of-pocket costs in addition to any damages or other remedies
awarded to such prevailing Person, and the non-prevailing Person(s) also
will be required to pay all other costs and expenses associated with the
arbitration; provided that (i) if an arbitrator is unable to determine that
one or more Persons are prevailing Person(s) in any such arbitration
proceeding, then such costs and expenses will be equitably allocated by
such arbitrator upon the basis of the outcome of such arbitration
proceeding, and (ii) if such arbitrator is unable to allocate such costs
and expenses in such a manner, then the costs and expenses of such
arbitration will be paid one-half by the Company, on the one hand, and
one-half by Executive, on the other hand, and each Person involved in such
arbitration will pay the out-of-pocket expenses incurred by it. As part of
any Final Arbitration Award, the arbitrator may designate the prevailing
Person(s) for purposes of this Paragraph 20.
* * * * * *
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IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed as of the day and year first above written.
/s/ G. Xxxxxx Xxxxxxxx
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G. XXXXXX XXXXXXXX
NEXSTAR BROADCASTING GROUP, INC.
By: /s/ Xxxxx X. Xxxx
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Name: Xxxxx X. Xxxx
Title: Chief Executive Officer
