Exhibit 10.68
EXECUTIVE EMPLOYMENT AGREEMENT
THIS EXECUTIVE EMPLOYMENT AGREEMENT is made as of September 11, 2000
by and between Xxxxxxx Xxxxx, an individual resident of New York ("Xxxxx"), and
Nexstar Broadcasting of Rochester, L.L.C., a Delaware limited liability company
(the "Company").
The Company desires to retain the services of Xxxxx as the General
Manager of television station WROC, Rochester, NY (the "Station"), and Xxxxx
desires to be employed 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 Xxxxx.
Effective on and as of the date of this Agreement, Xxxxx will serve as the
General Manager of the Station. In this position, Xxxxx 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"). Xxxxx 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 Xxxxx from devoting reasonable time to the supervision of his
personal investments and civic and charitable affairs, so long as such
activities do not materially interfere with the performance of Busch's duties
hereunder.
2. Term of Employment. Except if terminated earlier as provided
below, the Company's employment of Xxxxx under this Agreement will continue
until September 10, 2005; provided, however, that the term of employment under
this Agreement will be automatically renewed for successive one-year periods
unless, at least ninety (90) days prior to the end of the then current term of
employment under this Agreement, Xxxxx 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 Xxxxx under this
Agreement will terminate prior to the end of the term specified in Paragraph 2
only under the following circumstances:
(a) Death. Busch's death, in which case Busch's employment will
terminate on the date of death;
(b) Disability. If, as a result of Busch's illness, physical or
mental disability or other incapacity resulting in Busch's inability to
perform, with or without reasonable
accommodation (as defined under the Americans with Disabilities Act),
Busch'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 Xxxxx (which may occur before or after the end of
such six-month period), Xxxxx has not returned to the performance of
Busch's duties hereunder on a full-time basis, the Company may terminate
Busch's employment hereunder as of 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 the written notice of termination;
(c) Consolidation, Merger or Comparable Transaction. In the event
that Nexstar Broadcasting Group, L.L.C., a Delaware limited liability
company (the "LLC") 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 the beneficial owners of a majority
of the voting power represented by the securities of the LLC have changed
(treating any Person and the affiliates of such Person as being one and the
same Person), or if the LLC sells all or substantially all of its
consolidated assets, then Busch's employment may, by written notice of
termination, be terminated by the Company or Xxxxx simultaneously with the
consummation of such consolidation, merger, share exchange, asset sale,
stock sale or comparable transaction;
(d) Termination by the Company for Cause. The Company may terminate
Busch'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
Company to Xxxxx. Any termination under this Paragraph 3(d) will not also
be deemed to be a termination under Paragraph 3(e). For the purposes of
this Agreement, "Cause" is defined to mean any of the following activities
by Xxxxx: (i) the conviction of Xxxxx 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 Board and which are
consistent with the terms of this Agreement and the office specified in
Xxxxxxxxx 0, (xxx) 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 any of
them; or (iv) any other material breach of a material provision of this
Agreement, the Second Amended and Restated Investors Agreement dated as of
January 5, 1998 (as in effect from time to time, the "Investors Agreement")
among the members of the LLC, or the Second Amended and Restated Limited
Liability Company Agreement dated as of December 31, 1999 (as in effect
from time to time, the "LLC Agreement") among the LLC and its members,
which is not cured within thirty (30) days after written notice thereof to
Xxxxx;
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(e) Termination by the Company Other Than for Cause. The Company may
terminate Busch's employment for any reason or for no reason upon thirty
(30) days prior written notice to Xxxxx, 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 Company to Xxxxx;
(f) Termination by Xxxxx With Good Reason. Xxxxx 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 Xxxxx to the Company. For purposes of this Agreement, "Good
Reason" will mean (i) a material reduction in the duties or position of
Xxxxx, or (ii) a material breach by the Company or the LLC of a material
provision of this Agreement, the Investors Agreement or the LLC Agreement
which adversely affects Xxxxx and which has not been cured by the breaching
entity within thirty (30) days after Xxxxx gives written notice of
noncompliance to such entity;
(g) Termination by Xxxxx Without Good Reason. Xxxxx 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 Xxxxx 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 Xxxxx 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 for purposes of
Paragraph 3(d) or 3(e).
In no event will the termination of Busch's employment affect the rights and
obligations of the parties set forth in this Agreement, except as expressly set
forth herein. Any termination of Busch's employment pursuant to this Paragraph 3
will be deemed to include a resignation by Xxxxx of all positions with the
Company, the LLC and each of their respective subsidiaries and affiliates.
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4. Compensation.
(a) Base Salary. During the term of this Agreement, Xxxxx will be
entitled to receive an annual base salary ("Base Salary") at the rate
specified below:
Period Base Salary
------ -----------
From the date of this Agreement through September 10, 2001 ............. $140,000
From September 11, 2001 through September 10, 2002 ..................... $145,000
From September 11, 2002 through September 10, 2003 ..................... $150,000
From September 11, 2003 through September 10, 2004 ..................... $155,000
After September 10, 2004 ............................................... $160,000
(b) Bonus. After the end of each Company fiscal year during the term
of this Agreement, Xxxxx 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 of, as the CEO may determine is appropriate in the
CEO's sole discretion), pro-rated for any partial fiscal year during which
Xxxxx is employed by the Company pursuant to this Agreement, to be
determined by the CEO based on, among other things, whether the Station
achieved the budgeted revenue and profit goals established for the Station
by the CEO for such fiscal year:
After the 2000 fiscal year ............................................. $ 30,000
After the 2001 fiscal year ............................................. $ 35,000
After the 2002 fiscal year ............................................. $ 40,000
After the 2003 fiscal year ............................................. $ 45,000
After the 2004 fiscal year and each subsequent fiscal year ............. $ 50,000
(c) Payment. Busch'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 audited financial statements for the
appropriate fiscal year. All payments under this Agreement will be subject
to
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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. During the term of this Agreement, Xxxxx will be
entitled to receive, at the Company's expense, medical, other insurance
coverage, and paid vacation as described in the Company's employee handbook.
During the term of this Agreement, the Company will reimburse Xxxxx for all
approved business expenses which Xxxxx incurs on the Company's behalf, upon
presentation of appropriate documentation.
6. Termination Payments. Xxxxx (or Busch's estate pursuant to
Paragraph 6(a)) will be entitled to receive the following payments upon
termination of Busch's employment hereunder:
(a) In the event of the termination of Busch'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 Xxxxx Without Good Reason]
Paragraph 3(h) [Retirement]
the Company will pay to Xxxxx (or Busch'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.
(b) In the event of termination of Busch'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 Xxxxx the amounts described in Paragraph 6(a) and will
continue to pay the Base Salary which otherwise would be due to Xxxxx for a
period six (6) 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
in which Xxxxx was a participant at the time of the termination of Busch's
employment under this Agreement (or such other medical coverage as the
Company provides to employees of the Station generally from time to time
during such period).
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Without limiting the remedies available to the Company for breach by Xxxxx of
Paragraph 7 if Xxxxx violates the provisions of Paragraph 7 after the
termination of Busch'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 Xxxxx will forfeit any payments under this Paragraph 6 which are unpaid at
the time such violation occurs.
7. Covenant Not to Compete and Non-Disclosure.
(a) During the term of Busch's employment pursuant to this Agreement
and for a period of one (1) year thereafter, Xxxxx covenants and agrees
that Xxxxx will not within any DMA (as determined from time to time by the
X. X. Xxxxxxx Company) in which the Company operates a television broadcast
facility on the date of termination (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 the date of termination) whether directly or indirectly, with or without
compensation, (x) enter into or engage in the business of television
broadcasting, or (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 existing
customers of the Company. During the one (1) year after Busch's employment
with the Company terminates, neither Xxxxx nor any of Busch's affiliates
will hire, solicit, employ or contract with respect to employment any
officer or employee of the Company. For purposes of this Paragraph 7, the
term "Company" will include the Company, the LLC and each subsidiary or
other affiliate of any of them; 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 Broadcast Partners II, L.P.
("ABRY II") or ABRY Broadcast Partners III, L.P. (together with ABRY II,
"ABRY").
(b) Xxxxx agrees to disclose promptly to the Company and does assign
and agree to assign to the Company, free from any obligation to Xxxxx, all
Busch'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 Xxxxx, solely or in concert with others, during
the term of Busch's employment by the Company, which relate to the
business, activities or facilities of the Company, or resulting from or
suggested by any work Xxxxx may do for the Company or at its request. Xxxxx
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 Busch'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.
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(c) Except as expressly set forth below, Xxxxx agrees, whether during
Busch'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 Busch's responsibilities hereunder, not to disclose to others,
use for Busch's benefit, copy or make notes of any confidential knowledge
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
Busch's knowledge during Busch's employment pursuant to this Agreement or
thereafter. Xxxxx will not be bound to this obligation of confidentiality
and nondisclosure if:
(i) the knowledge or information has become part of the public
domain by publication or otherwise through no fault of Xxxxx;
(ii) the knowledge or information is disclosed to the recipient
by a third party and Xxxxx 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) Xxxxx is required to disclose such information pursuant to
applicable law or by a court of competent jurisdiction.
(d) Upon termination of employment pursuant to this Agreement, Xxxxx
will deliver to the Company all records, notes, data, memoranda,
photographs, models and equipment of any nature which are in Busch's
possession or control and which are the property of the Company.
(e) 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.
8. Equity Interests.
(a) Contemporaneous with the execution and delivery of this
Agreement, Xxxxx has voluntarily elected to purchase 7,780 Class C-2
Interests of the LLC (the "Class C-2 Interests") at $.3856 per interest
(for an aggregate purchase price of $2999.97 for such Class C-2 Interests).
(b) If Busch's employment with the Company is terminated, except as
contemplated by Paragraph 3(a) [Death] or Paragraph 3(c) [Consolidation,
Merger or Comparable Transaction], then the LLC will have the right,
exercisable at any time within ninety (90) days after the date of
termination of employment, to repurchase for cash the
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percentage of the aggregate amount of all of Busch's Class C-2 Interests at
Busch's original purchase price for such Class C-2 Interests, in accordance
with the following schedule:
Percentage of
Interests Which May be
Repurchased
----------------------
Termination Before September 11, 2001 100%
Termination On or After September 11, 2001
But Before September 11, 2002 90%
Termination On or After September 11, 2002
But Before September 11, 2003 70%
Termination On or After September 11, 2003
But Before September 11, 2004 50%
Termination On or After September 11, 2004
But Before September 11, 2005 25%
Termination On or After September 11, 2005 0%
If Busch's employment is terminated pursuant to Paragraph 3(a) or 3(c),
then the LLC's right to purchase Busch's Class C-2 Interests pursuant to
this Paragraph 8(b) will automatically terminate.
(c) The closing for any purchase and sale of Class C-2 Interests
pursuant to Paragraph 8(b) will be at the principal executive offices of
the Company at a mutually acceptable time, but in no event more than thirty
(30) days after the date an option to purchase is exercised; provided that
to the extent such purchase is prohibited under the Company's, the LLC's or
any of their respective subsidiaries' debt financing agreements, such
purchase will occur not more than thirty (30) days after the date on which
all such prohibitions will have been waived or removed.
(d) Appropriate legends will be placed on any certificate
representing any of Busch's Class C-2 Interests referencing the rights,
restrictions and obligations of the LLC with regard to such Interests.
(e) For purposes of this Agreement, references to Busch's Class C-2
Interests will be deemed to include any Interests of such type directly or
indirectly transferred by Xxxxx to any of Busch's Permitted Transferees (as
that term is defined in the Investors Agreement).
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9. Entire Agreement. This instrument, the LLC Agreement and the
Investors Agreement embody the entire agreement between the parties hereto with
respect to Busch'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 Xxxxx
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 Busch's death or disability this Agreement
may be enforced by Busch'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 Xxxxx except to any other person or entity
which may acquire or conduct the business of the Company, the LLC and/or their
respective 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 Xxxxx, then to Xxxxxxx X. Xxxxx, 0000 Xxxxxxxxx Xxxxx, Xxxx
Xxxxxxx, XX 00000, or as Xxxxx may otherwise specify by prior written
notice to the Company; and
(b) If to the Company, then c/o: Nexstar Broadcasting Group, Inc.,
000 Xxxxxxxx Xxxxxxxxx Xxxx, Xxxxx 000, Xxxxxx Xxxxxx, XX 00000, Attention:
Xxxxx X. Xxxx or as the Company may otherwise specify by prior written
notice to Xxxxx.
12. Amendment; Modification. This Agreement will not be amended,
modified or supplemented other than in a writing signed by the parties hereto.
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
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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. Xxxxx represents and warrants to the Company
that Xxxxx 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 Commonwealth of Massachusetts 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.
(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
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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
Boston, Massachusetts 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, and the LLC, on the one
hand, and one-half by Xxxxx, 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.
21. Joinder. As of the date hereof, Xxxxx agrees to be bound by all
of the terms and conditions set forth in (a) the LLC Agreement, and (b) the
Investors Agreement.
* * * * * *
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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/ Xxxxxxx X. Xxxxx
------------------------------------
Xxxxxxx X. Xxxxx
NEXSTAR BROADCASTING OF ROCHESTER,
L.L.C.
By: /s/ Xxxxx X. Xxxx
------------------------------------
Xxxxx X. Xxxx, President
ACCEPTED AND AGREED:
NEXSTAR BROADCASTING GROUP, L.L.C.
By: /s/ Xxxxx X. Xxxx
----------------------------
Xxxxx X. Xxxx, President
