Employment Agreement
EXHIBIT 10.1
[Execution Version]
This Employment Agreement (this “Agreement”), entered into on November 1, 2006,
and made effective as of July 12, 2006, 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 Xxxxxxx X. Xxxxxxx, an individual residing in the state of
Rhode Island (the “Executive”).
RECITALS:
Whereas, on July 12, 2006 (the “Appointment Date”), the board of directors of
Parent (the “Board of Parent”) appointed Executive to the offices of director, President, and Chief
Executive Officer (“CEO”) of Parent and the board of directors of the Company has appointed
Executive to the same offices in the Company;
Whereas, each of Parent and the Company desire that the Company employ Executive as
CEO and President of the Company, and Executive desires to be employed by the Company in such
positions, 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.
3. Position and Duties.
(a) During the Service Period, Executive shall serve as the President and CEO of each of the
LIN Companies, reporting only to the Board of Parent in his capacity as President and CEO of
Parent and only to the board of directors of the Company in his capacity as President and CEO of
the Company and, subject to the LIN Companies’ respective Certificates of Incorporation and
By-Laws, shall have such authority as may be granted from time to time by the respective boards of
directors and as otherwise is inherent in such positions.
(b) At all times during the Service Period, Parent shall (i) use its best efforts to have
Executive nominated for a seat on the Board of Parent as a member of the management slate therefor,
and (ii) cause Executive to be appointed to the board of directors of the Company.
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 President
and CEO of each of the LIN Companies, 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 of
Five Hundred Thousand Dollars ($500,000) (“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,
annual bonus payments to be determined by December 31 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; which bonus payments (if any), shall be determined as follows:
(i) Executive shall be eligible to receive a bonus payment calculated as set forth in this
paragraph (i) (the “Results Bonus”) using a baseline bonus amount equal to seventy-five percent
(75%) of the Base Salary in effect as of the last day of the calendar year to which the Results
Bonus relates (the “Results Bonus Base Amount”). The amount of the Results Bonus awarded to
Executive, if any, 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)(i)(A) hereto that corresponds to the respective percentages by which Parent has
achieved the EBITDA and revenue targets established by the Board of Parent, with input from
Executive, for the applicable year, as determined by the Compensation Committee of the Board of
Parent (the “Budget Target”). For purposes of determining the Results Bonus Percentage for 2006,
the parties acknowledge and agree that (y) any revenue or EBITDA attributable to any assets of the
LIN Companies that are divested prior to January 1, 2007, or with respect to which a contract to
divest has been entered into prior to January 1, 2007, shall be excluded from the calculation of
actual revenue and EBITDA for such year (and shall be subtracted from the corresponding amount
designated as the Budget Target); and (z) Special Recruitment and Severance Expenses (as defined
below in Section 24) shall be added into the calculation of actual EBITDA results for 2006. The
parties acknowledge and agree that for convenience of reference Schedule 5(b)(i)(B) shows for
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illustrative purposes the amount of the Results Bonus corresponding to each Results Bonus
Percentage reflected on Schedule 5(b)(i)(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)(i)(A) and 5(b)(i)(B), Schedule 5(b)(i)(A) shall
control.
(ii) Executive shall be eligible to receive a bonus payment of up to twenty-five percent (25%)
of the Base Salary in effect as of the last day of the calendar year to which the foregoing bonus
payment relates (the “Performance Bonus”). The award, if any, of a Performance Bonus and the
amount thereof shall be determined by Compensation Committee of the Board of Parent based upon its
assessment of such factors as it 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 Board of Parent or the Compensation
Committee.
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.
7. Incentive Equity. The parties acknowledge that as of the Appointment Date, Parent granted
to Executive an option the (“Option Grant”) to purchase five hundred thousand (500,000) 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 July 11, 2006,
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.
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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
whether 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.
(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, the Results Bonus Base Amount or the target amount for the Performance
Bonus, or (B) the assignment to Executive of any duties inconsistent in any material respect with,
or effect a material diminution of, Executive’s duties,
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titles, offices, or 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.” Notwithstanding the foregoing, the foregoing clause (B) of this
paragraph (ii) shall not apply to Executive’s duties, title, office, responsibilities or status as
a director of the Company or Parent.
(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 Committees 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.
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:
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(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 Results Bonus and Performance Bonus most recently
awarded to Executive prior to such termination; provided, however, that if such termination occurs
prior to the award of Executive’s initial Results Bonus and Performance Bonus under this Agreement
(or the determination that no such award shall be made), the payment under this clause (B) shall be
the sum of the maximum applicable Performance Bonus plus the Results Bonus that would otherwise be
due had Executive remained employed with the Company (the “Post-Termination Results Bonus”). The
Severance Payment shall be due and payable in twenty-six (26) substantially equal payments
following such termination; provided, however, that the portion of the Severance Payment comprised
of the Post-Termination Results Bonus, if applicable, may be deferred as necessary until the Board
of Parent has determined the amount of such Post-Termination Results Bonus.
(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
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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 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
Results Bonus and Performance Bonus, as applicable, with respect to the fiscal year preceding the
fiscal year in which the termination occurs; (iv) any (A) Results Bonus and 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) Results Bonus and
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.
10. Non-Disclosure.
(a) Executive acknowledges that during the period of his employment with the Company prior to
the Appointment Date, he has had, and thereafter 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
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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
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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.
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
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.
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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.
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
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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.
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
- 11 -
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.
(h) “Special Recruitment and Severance Expenses” shall mean the following expenses of the LIN
Companies: (i) expenses incurred in connection with the
- 12 -
retirement of Xxxx X. Xxxxxxx and related severance payments and expenses and (ii) fees and
expenses incurred with respect to the recruitment and severance in 2006, to the extent applicable,
of senior management of the LIN Companies or directors of Parent or other similar one-time expenses
relating to any corporate restructuring in 2006 approved by the Board of Parent or any committee
thereof, including recruitment and executive search fees and expenses and severance payments and
related expenses.
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 join and several liability with any LIN Company 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. Legal Fees. The LIN Companies shall reimburse one hundred percent (100%) of Executive’s
reasonable legal fees incurred in connection with the negotiation and execution of this Agreement
up to, but not in excess of, Ten Thousand Dollars ($10,000).
- 13 -
30. 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.
31. 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,
including that certain Severance Agreement, dated as of July 1, 2005, by and among the parties
hereto, which Severance Agreement is hereby terminated.
[The remainder of this page is intentionally blank; signature page follows.]
- 14 -
IN WITNESS WHEREOF, the parties have executed this Agreement on the date first above written.
| Executive: | ||||||
| /s/ Xxxxxxx X. Xxxxxxx | ||||||
| Xxxxxxx X. Xxxxxxx | ||||||
| LIN TV Corp. | ||||||
| By: | /s/ Xxxxxx X. Parent
|
|||||
| Name: Xxxxxx X. Parent | ||||||
| Title: Vice President General Counsel and Secretary | ||||||
| LIN Television Corporation | ||||||
| By: | /s/ Xxxxxx X. Parent
|
|||||
| Name: Xxxxxx X. Parent | ||||||
| Title: Vice President General Counsel and Secretary | ||||||
| By: | /s/ Xxxxxx X. Parent
|
|||||
[Signature Page to Employment Agreement]
| Percentage: | Revenue | Schedule 5(b) (i) (A) | |||||||||||||||||||||||||||||||||||||||||||||||||||
| 94.0 | % | 95.0 | % | 96.0 | % | 97.0 | % | 98.0 | % | 99.0 | % | 100.0 | % | 101.0 | % | 102.0 | % | 103.0 | % | 104.0 | % | 105.0 | % | ||||||||||||||||||||||||||||||
| 89.0 | % | 0 | % | 0 | % | 0 | % | 0 | % | 0 | % | 0 | % | 0 | % | 0 | % | 0 | % | 0 | % | 0 | % | 0 | % | ||||||||||||||||||||||||||||
| 90.0 | % | 0 | % | 25.0 | % | 30.0 | % | 35.0 | % | 40.0 | % | 45.0 | % | 50.0 | % | 55.0 | % | 60.0 | % | 65.0 | % | 70.0 | % | 75.0 | % | ||||||||||||||||||||||||||||
| 91.0 | % | 0 | % | 28.8 | % | 34.0 | % | 33.3 | % | 44.5 | % | 49.8 | % | 55.0 | % | 60.3 | % | 65.5 | % | 70.8 | % | 76.0 | % | 81.3 | % | ||||||||||||||||||||||||||||
| 92.0 | % | 0 | % | 32.5 | % | 38.0 | % | 43.5 | % | 49.0 | % | 54.5 | % | 60.0 | % | 65.5 | % | 71.0 | % | 76.5 | % | 82.0 | % | 87.5 | % | ||||||||||||||||||||||||||||
| 93.0 | % | 0 | % | 36.3 | % | 42.0 | % | 47.8 | % | 53.5 | % | 59.3 | % | 65.0 | % | 70.8 | % | 76.5 | % | 82.3 | % | 88.0 | % | 93.8 | % | ||||||||||||||||||||||||||||
| 94.0 | % | 0 | % | 40.0 | % | 46.0 | % | 52.0 | % | 58.0 | % | 64.0 | % | 70.0 | % | 76.0 | % | 82.0 | % | 88.0 | % | 94.0 | % | 100.0 | % | ||||||||||||||||||||||||||||
| 95.0 | % | 0 | % | 43.8 | % | 50.0 | % | 56.3 | % | 62.5 | % | 68.8 | % | 75.0 | % | 81.3 | % | 87.5 | % | 93.8 | % | 100.0 | % | 106.3 | % | ||||||||||||||||||||||||||||
| 96.0 | % | 0 | % | 47.5 | % | 54.0 | % | 60.5 | % | 67.0 | % | 73.5 | % | 80.0 | % | 86.5 | % | 93.0 | % | 99.5 | % | 106.0 | % | 112.6 | % | ||||||||||||||||||||||||||||
E |
97.0 | % | 0 | % | 51.3 | % | 58.0 | % | 64.8 | % | 71.5 | % | 78.3 | % | 85.0 | % | 91.8 | % | 98.5 | % | 105.3 | % | 112.0 | % | 118.8 | % | |||||||||||||||||||||||||||
B |
98.0 | % | 0 | % | 55.0 | % | 62.0 | % | 69.0 | % | 76.0 | % | 83.0 | % | 90.0 | % | 97.0 | % | 104.0 | % | 111.0 | % | 118.0 | % | 125.0 | % | |||||||||||||||||||||||||||
I |
99.0 | % | 0 | % | 58.8 | % | 66.0 | % | 73.3 | % | 80.5 | % | 87.8 | % | 95.0 | % | 102.3 | % | 109.5 | % | 116.8 | % | 124.0 | % | 131.3 | % | |||||||||||||||||||||||||||
T |
100.0 | % | 0 | % | 62.5 | % | 70.0 | % | 77.5 | % | 85.0 | % | 92.5 | % | 100.0 | % | 107.5 | % | 115.0 | % | 122.5 | % | 130.0 | % | 137.5 | % | |||||||||||||||||||||||||||
D |
101.0 | % | 0 | % | 66.3 | % | 74.0 | % | 81.8 | % | 89.5 | % | 97.3 | % | 105.0 | % | 112.8 | % | 120.5 | % | 128.3 | % | 136.0 | % | 143.8 | % | |||||||||||||||||||||||||||
A |
102.0 | % | 0 | % | 70.0 | % | 78.0 | % | 86.0 | % | 94.0 | % | 102.0 | % | 110.0 | % | 118.0 | % | 126.0 | % | 134.0 | % | 142.0 | % | 150.0 | % | |||||||||||||||||||||||||||
| 103.0 | % | 0 | % | 73.8 | % | 82.0 | % | 90.3 | % | 98.5 | % | 106.8 | % | 115.0 | % | 123.3 | % | 131.5 | % | 139.8 | % | 148.0 | % | 156.3 | % | ||||||||||||||||||||||||||||
| 104.0 | % | 0 | % | 77.5 | % | 86.0 | % | 94.5 | % | 103.0 | % | 111.5 | % | 120.0 | % | 128.5 | % | 137.0 | % | 145.5 | % | 154.0 | % | 162.5 | % | ||||||||||||||||||||||||||||
| 105.0 | % | 0 | % | 81.3 | % | 90.0 | % | 98.8 | % | 107.5 | % | 116.3 | % | 125.0 | % | 133.8 | % | 142.5 | % | 151.3 | % | 160.0 | % | 168.8 | % | ||||||||||||||||||||||||||||
| 106.0 | % | 0 | % | 85.0 | % | 94.0 | % | 103.0 | % | 112.0 | % | 121.0 | % | 130.0 | % | 139.0 | % | 148.0 | % | 157.0 | % | 166.0 | % | 175.0 | % | ||||||||||||||||||||||||||||
| 107.0 | % | 0 | % | 38.8 | % | 98.0 | % | 107.3 | % | 116.5 | % | 125.8 | % | 135.0 | % | 144.3 | % | 153.5 | % | 162.8 | % | 172.0 | % | 181.3 | % | ||||||||||||||||||||||||||||
| 108.0 | % | 0 | % | 92.5 | % | 102.0 | % | 111.5 | % | 121.0 | % | 130.5 | % | 140.0 | % | 149.5 | % | 159.0 | % | 168.5 | % | 178.0 | % | 187.5 | % | ||||||||||||||||||||||||||||
| 109.0 | % | 0 | % | 96.3 | % | 106.0 | % | 115.8 | % | 125.5 | % | 135.3 | % | 145.0 | % | 154.8 | % | 164.5 | % | 174.3 | % | 184.0 | % | 193.8 | % | ||||||||||||||||||||||||||||
| 110.0 | % | 0 | % | 100.0 | % | 110.0 | % | 120.0 | % | 130.0 | % | 140.0 | % | 150.0 | % | 160.0 | % | 170.0 | % | 180.0 | % | 190.0 | % | 200.0 | % | ||||||||||||||||||||||||||||
| Dollars: | Revenue | Schedule 5(b) (i) (B) | |||||||||||||||||||||||||||||||||||||||||||||||||||
| 94.0 | % | 95.0 | % | 96.0 | % | 97.0 | % | 98.0 | % | 99.0 | % | 100.0 | % | 101.0 | % | 102.0 | % | 103.0 | % | 104.0 | % | 105.0 | % | ||||||||||||||||||||||||||||||
| 89.0 | % | — | — | — | — | — | — | — | — | — | — | — | |||||||||||||||||||||||||||||||||||||||||
| 90.0 | % | — | 93,750 | 112,500 | 131,250 | 150,000 | 168,750 | 187,500 | 206,250 | 225,000 | 243,750 | 262,500 | 281,250 | ||||||||||||||||||||||||||||||||||||||||
| 91.0 | % | — | 107,813 | 127,500 | 147,188 | 166,875 | 186,563 | 206,250 | 225,938 | 245,625 | 265,313 | 285,000 | 304,638 | ||||||||||||||||||||||||||||||||||||||||
| 92.0 | % | — | 121,875 | 142,500 | 163,125 | 183,750 | 204,375 | 225,000 | 245,625 | 266,250 | 286,875 | 307,500 | 328,125 | ||||||||||||||||||||||||||||||||||||||||
| 93.0 | % | — | 135,938 | 157,500 | 179,063 | 200,625 | 222,188 | 243,750 | 265,313 | 286,875 | 308,438 | 330,000 | 351,563 | ||||||||||||||||||||||||||||||||||||||||
| 94.0 | % | — | 150,000 | 172,500 | 195,000 | 217,500 | 240,000 | 262,500 | 285,000 | 307,500 | 330,000 | 352,500 | 375,000 | ||||||||||||||||||||||||||||||||||||||||
| 95.0 | % | — | 164,063 | 187,500 | 210,938 | 234,375 | 257,813 | 281,250 | 304,688 | 328,125 | 351,563 | 375,000 | 398,438 | ||||||||||||||||||||||||||||||||||||||||
| 96.0 | % | — | 178,125 | 202,500 | 226,875 | 251,250 | 275,625 | 300,000 | 324,375 | 348,750 | 373,125 | 397,500 | 421,875 | ||||||||||||||||||||||||||||||||||||||||
E |
97.0 | % | — | 192,188 | 217,500 | 242,813 | 268,125 | 293,438 | 318,750 | 344,063 | 369,375 | 394,688 | 420,000 | 445,313 | |||||||||||||||||||||||||||||||||||||||
B |
98.0 | % | — | 206,250 | 232,500 | 258,750 | 285,000 | 311,250 | 337,500 | 363,750 | 390,000 | 416,250 | 442,500 | 468,750 | |||||||||||||||||||||||||||||||||||||||
I |
99.0 | % | — | 220,313 | 247,500 | 274,688 | 301,875 | 329,063 | 356,250 | 383,438 | 410,625 | 437,813 | 465,000 | 492,188 | |||||||||||||||||||||||||||||||||||||||
T |
100.0 | % | — | 234,375 | 262,500 | 290,625 | 318,750 | 346,875 | 375,000 | 403,125 | 431,250 | 459,375 | 487,500 | 515,625 | |||||||||||||||||||||||||||||||||||||||
D |
101.0 | % | — | 248,438 | 277,500 | 306,563 | 335,625 | 364,688 | 393,750 | 422,813 | 451,875 | 480,938 | 510,000 | 539,063 | |||||||||||||||||||||||||||||||||||||||
A |
102.0 | % | — | 262,500 | 292,500 | 322,500 | 352,500 | 382,500 | 412,500 | 442,500 | 472,500 | 502,500 | 532,500 | 562,500 | |||||||||||||||||||||||||||||||||||||||
| 103.0 | % | — | 276,563 | 307,500 | 338,438 | 369,375 | 400,313 | 431,250 | 462,188 | 493,125 | 524,063 | 555,000 | 585,938 | ||||||||||||||||||||||||||||||||||||||||
| 104.0 | % | — | 290,625 | 322,500 | 354,375 | 386,250 | 418,125 | 450,000 | 481,875 | 513,750 | 545,625 | 577,500 | 609,375 | ||||||||||||||||||||||||||||||||||||||||
| 105.0 | % | — | 304,688 | 337,500 | 370,313 | 403,125 | 435,938 | 468,750 | 501,563 | 534,375 | 567,188 | 600,000 | 632,813 | ||||||||||||||||||||||||||||||||||||||||
| 106.0 | % | — | 318,750 | 352,500 | 386,250 | 420,000 | 453,750 | 487,500 | 521,250 | 555,000 | 588,750 | 622,500 | 656,250 | ||||||||||||||||||||||||||||||||||||||||
| 107.0 | % | — | 332,813 | 367,500 | 402,188 | 436,875 | 471,563 | 506,250 | 540,938 | 575,625 | 610,313 | 645,000 | 679,688 | ||||||||||||||||||||||||||||||||||||||||
| 108.0 | % | — | 346,875 | 382,500 | 418,125 | 453,750 | 489,375 | 525,000 | 560,625 | 596,250 | 631,875 | 667,500 | 703,125 | ||||||||||||||||||||||||||||||||||||||||
| 109.0 | % | — | 360,938 | 397,500 | 434,063 | 470,625 | 507,188 | 543,750 | 580,313 | 616,875 | 653,438 | 690,000 | 726,563 | ||||||||||||||||||||||||||||||||||||||||
| 110.0 | % | — | 375,000 | 412,500 | 450,000 | 487,500 | 525,000 | 562,500 | 600,000 | 637,500 | 675,000 | 712,500 | 750,000 | ||||||||||||||||||||||||||||||||||||||||
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.
Schedule 16
Notices
If to Executive:
|
To the address as shall most currently appear on the records of the Company | |
| With a copy to: | ||
| Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx LLP | ||
| 0000 Xxxxxx xx xxx Xxxxxxxx | ||
| Xxx Xxxx, XX 00000-0000 | ||
| Attn: Xxxxxxx X. Xxxxx, Esq. | ||
| Fax: 000-000-0000 | ||
If to the LIN Companies:
|
LIN Television Corporation | |
| 0 Xxxxxxxx Xxxxxx, Xxxxx 000 | ||
| Xxxxxxxxxx, XX 00000 | ||
| Attn: General Counsel | ||
| Fax: (000) 000-0000 |
