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EXHIBIT 10.28
SEVERANCE COMPENSATION AGREEMENT dated as of September 5, 1996, between LIN
Television Corporation, a Delaware corporation (the "Company"), and C. Xxxxxx
Xxxxx, Xx. (the "Executive").
WHEREAS the Company currently employs the Executive and has determined
that the Executive's services are important to the stability and continuity of
the management of the Company;
WHEREAS the Company has determined that it is in its best interest to
reinforce and encourage the Executive's continued disinterested attention and
undistracted dedication to the Executive's duties in the potentially disturbing
circumstances of a possible change in control of the Company by providing some
degree of personal financial security; and
WHEREAS to induce the Executive to remain in the employ of the Company,
the Company has determined that it is desirable to pay the Executive the
severance compensation set forth below if the Executive's employment with the
Company terminates in one of the circumstances described below following a
change in control of the Company;
NOW, THEREFORE, in consideration of the premises and the mutual covenants
contained in this Agreement, it is agreed upon between the Company and the
Executive as follows:
I. DEFINITIONS. In addition to other words and terms defined elsewhere in
this Agreement, the following words and terms shall have the following
meanings:
A. "Cause" shall mean:
1. the willful and continued failure of Executive to perform
substantially Executive's duties with the Company (other than
any such failure resulting from incapacity due to physical or
mental illness), after a written demand for substantial
performance is delivered to Executive by the Board or an
elected officer of the Company which specifically identifies
the manner in which the Board or the elected officer believes
that Executive has not substantially performed Executive's
duties; or
2. (A) the conviction of, or plea of nolo contendre to, a felony
or (B) the willful engaging by Executive in gross misconduct
which is materially and demonstrably injurious to the Company;
in each case above, after Executive is provided an opportunity to
be heard upon 30 days written notice and a good faith determination
of Cause by at least 3/4 of the Disinterested Directors.
B. "Change in Control" shall mean any of the following events:
1. any "person" (as defined in Section 3(a)(9) of the Securities
Exchange Act of 1934, as amended (the "Act") and as used in
Sections 13(d) and 14(d) thereof, including a "group" (as
defined in Section 13(d) of the Act) but excluding AT&T, the
Company, any subsidiary thereof and any trustee or fiduciary
on behalf of any Company Executive benefit plan) becomes the
"beneficial owner" (as defined in Rule 13d-3 under the Act) of
securities of the Company having at least 25% of the voting
power of the Company's then outstanding securities (unless the
event causing the 25% threshold to be crossed is an
acquisition of
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securities directly from the Company) but only if at the time
of such person becoming the beneficial owner of the requisite
voting power, AT&T designees no longer hold a majority of the
seats on the Board of Directors; or
2. the shareholders of the Company shall approve any merger or
other business combination of the Company, any sale of all or
substantially all of the Company's assets in one or a series
of related transactions or any combination of the foregoing
transactions (the "TRANSACTIONS"), other than a Transaction
immediately following which the shareholders of the Company
immediately prior to the Transaction (including AT&T), any
subsidiary thereof and any trustee or fiduciary on behalf of
any Company Executive benefit plan own greater than 50% of the
voting securities of the surviving company (or its parent)
(and, in a sale of assets, of the purchaser of the assets)
immediately following the Transaction; provided, however, that
a Transaction which would otherwise not result in a Change in
Control because of the resulting ownership of more than 50% of
the voting securities of the surviving company, its parent, or
a purchaser of the assets will, nonetheless, be deemed to be a
Change in Control but only in connection with a termination
for Good Reason under Section 1(d)(iv); or
3. within any 24 month period, the persons who were directors
immediately before the beginning of such period (the
"DISINTERESTED DIRECTORS") shall cease (for any reason other
than death) to constitute at least a majority of the Board or
the board of directors of a successor to the Company. For this
purpose, any director who was not a director at the beginning
of such period shall be deemed to be a Disinterested Director
if such director was elected to the Board by, or on the
recommendation of or with the approval of, at least two-thirds
of the directors who then qualified as Disinterested Directors
(so long as such director was not nominated by a person who
has entered into an agreement or threatened to effect a Change
of Control).
C. "Date of Termination" shall mean the date on which a Notice of
Termination is given.
D. "Good Reason" shall have the following definition:
1. Executive's annual salary or target bonus opportunity is
reduced below the higher of (A) the amount of annual salary or
target bonus opportunity in effect immediately prior to the
Change in Control or (B) the highest amount of annual salary
or target bonus opportunity in effect at any time thereafter;
2. (A) any failure by the Company to continue in effect or
provide plans or arrangements pursuant to which the Executive
will be entitled to receive grants relating to the securities
of the Company (or any parent company) (including, without
limitation, stock options, stock appreciation rights,
restricted stock or other equity based awards) of the same
type as the Executive was participating in immediately prior
to the Change in Control (hereinafter referred to as
"Securities Plans") or providing substitutes for such
Securities Plans which in the aggregate provide substantially
similar economic benefits; or (B) the taking of any action by
the Company which would adversely effect the Executive's
participation in, or benefits under, any such Securities Plan
or its substitute if in the Aggregate the Executive is not
provided substantially similar economic benefits; provided,
however, that for these purposes, any determination of whether
Good Reason exists under (A) or (B) of this subsection (ii)
because the Executive is or is not provided substantially
similar
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economic benefits in the aggregate will be made with due
consideration given to such Executive's base salary, other
cash compensation and any other equity based incentive
programs to which the Executive is also entitled to receive,
and not solely on the basis of whether the Executive is or is
not entitled or eligible to receive equity based incentive
compensation;
3. Executive's duties and responsibilities or, in the aggregate,
the program of retirement and welfare benefits offered to
Executive are materially and adversely diminished in
comparison to the duties and responsibilities or the program
of benefits, in the aggregate, enjoyed by Executive on the
Effective Date; provided, however, that Good Reason shall not
be deemed to exist solely as a result of changes in
Executive's duties and responsibilities which are directly
caused by the Company's ceasing to be a publicly held company
or its becoming a wholly-owned subsidiary of another company;
4. in the event of a Transaction that is deemed to be a Change in
Control solely as a result of Section 1(b)(ii) of this
Agreement, Executive is removed from the position he held with
the Company prior to such Transaction (or fails to hold the
comparable position in the parent company following such
Transaction) or his duties or responsibilities are adversely
diminished in a manner that would be Good Reason under Section
1(d)(iii) above;
5. Executive is required to be based at a location more than 50
miles from the location where Executive was based and
performed services on the Effective Date, or if Executive is
required to substantially increase his or her business travel
obligations.
Executive must give notice in writing within 90 days after the
Executive has knowledge of the event forming the basis of Good
Reason, setting forth the particulars of such event and the reason
why he believes in good faith that Good Reason exists. The Company
shall have 30 days within which to cure such event if it disagrees
with the Executive.
II. SEVERANCE COMPENSATION TRIGGER. Executive will be entitled to severance
compensation as set forth in section 3 ("Severance Compensation") in the
event Executive's employment is terminated within two years after a Change
in Control (i) by the Company without Cause, or (ii) by Executive within
90 days after Executive has knowledge of the occurrence of an event
constituting Good Reason.
Notwithstanding the foregoing, Executive will not be entitled to
Severance Compensation in the event of a termination of employment on
account of:
A. DEATH or DISABILITY (illness or injury preventing Executive from
performing his duties, as they existed immediately prior to the
illness or injury, on a full time basis for 180 consecutive
business days);
B. RETIREMENT (voluntary late, normal or early retirement under a
pension plan sponsored by the Company, as defined in such plan); or
C. QUALIFIED SALE OF BUSINESS (the sale of a business unit in which
Executive was employed before such sale and Executive has been
offered employment with the purchaser of such business unit on
substantially the same terms under which he worked for the Company,
including severance protection).
III. Severance Compensation.
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A. In the event of a Severance Compensation Trigger, the Executive
shall be entitled to the Severance Compensation provided below:
1. In lieu of any further salary payments to the Executive for
periods subsequent to the Date of Termination, the Company
shall pay to the Executive not later then the tenth day
following the Date of Termination a lump sum severance payment
equal to the sum of:
(x) an amount equal to two times (2x) the Executive's annual
base salary in effect on the Date of Termination (the
"Base Salary"),
(y) an amount equal to two times (2x)
(1) the bonus compensation paid to the Executive with
respect to the last complete fiscal year, and
(2) the contribution, if any, paid by the Company for
the benefit of the Executive to any 401(k) Plan
in the last complete fiscal year,
(z) the present value, determined as of the Date of
Termination, of the sum of:
(3) all benefits which have accrued to the Executive
but have not vested under the LIN Television
Corporation Retirement Plan (the "Retirement
Plan") as of the Date of Termination, and
(4) all additional benefits which would have accrued
to the Executive under the Retirement Plan if the
Executive had continued to be employed by the
Company on the same terms the Executive was
employed on the Date of Termination from the Date
of Termination to the date 12 months after the
Date of Termination.
For purposes of this Section, the present value of a future
payment shall be calculated by reference to the actuarial
assumptions (including assumptions with respect to interest
rates) in use immediately prior to the Change in Control for
purpose of calculating actuarial equivalents under the
Retirement Plan.
2. The Company shall arrange to provide the Executive for a
period of 24 months following the Date of Termination or until
the Executive's earlier death, with life, health, disability
and accident insurance benefits and the package of "executive
benefits" substantially similar to those which the Executive
was receiving immediately prior to the Notice of Termination,
or immediately prior to a Change in Control, if greater
provided however, that Executive shall be obliged to continue
to pay that proportion of premiums paid by the Executive
immediately prior to the change in control.
3. The Company shall accelerate the exercise date of all stock
options granted to the Executive under the 1994 Stock
Incentive Plan and the 1994 Stock Adjustment Plan (the
"Options") which are not exercisable on the Date of
Termination, to the end that such Options shall be immediately
exercisable.
4. The Executive shall have the right within one year following
the later of the Change in Control or the exercise of each
Option to sell to the Company shares of Common Stock acquired
at any time upon exercise of an Option at a price
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equal to the average market price of the Common Stock for the
30 day period ending on the date prior to the date of the
Change in Control.
B. If the Severance Compensation under this Section 3, either alone or
together with other payments to the Executive from the Company,
would constitute an "excess parachute payment" (as defined in
Section 280G of the Code), such Severance Compensation shall be
reduced to the largest amount that will result in no portion of the
payments under this Section 3 being subject to the excise tax
imposed by Section 4999 of the Code or being disallowed as
deductions to the Company under Section 280G of the Code.
IV. No Obligation To Mitigate Damages; No Effect on Other Contractual Rights.
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A. The Executive shall not be required to mitigate damages or the
amount of any payment provided for under this Agreement by seeking
other employment or otherwise, nor shall the amount of any payment
provided for under this Agreement be reduced by any compensation
earned by the Executive as the result of employment by another
employer after the termination of the Executive's employment, or
otherwise.
B. The provisions of this Agreement, and any payment provided for
hereunder, shall not reduce any amounts otherwise payable, or in any
way diminish the Executive's existing rights, or rights which would
accrue solely as a result of the passage of time, under any Benefit
Plan, Incentive Plan or Securities Plan, employment agreement or
other contract, plan or arrangement of the Company.
V. Successors.
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A. The Company will require any successors or assign (whether direct or
indirect, by purchase, merger, consolidation or otherwise) to all or
substantially all the business and/or assets of the Company by
agreement in form and substance satisfactory to the Executive,
expressly, absolutely and unconditionally to assume and agree to
perform this Agreement in the same manner and to the same extent
that the Company would be required to perform it if no such
succession or assignment had taken place. Any failure of the Company
to obtain such agreement prior to the effectiveness of any such
succession or assignment shall be a material breach of this
Agreement and shall entitle the Executive to terminate the
Executive's employment for Good Reason. As used in this Agreement,
the "Company" shall mean the Company as hereinbefore defined and any
successor or assign to its business and/or assets as aforesaid which
executes and delivers the agreement provided for in this Section 5
or which otherwise becomes bound by all the terms and provisions of
this Agreement by operation of law.
B. This Agreement shall inure to the benefit of and be enforceable by
the Executive's personal and legal representatives, executors,
administrators, successors, heirs, distributees, divisees and
legatees. If the Executive should die while any amounts are still
payable to the Executive under, all such amounts, unless otherwise
provided herein, shall be paid in accordance with the terms of this
Agreement to the Executive's devisee, legatee, or other designee or,
if there be no such designee, to the Executive's estate.
C. In the event of a liquidation of the Company, the payment provided
for hereunder shall be made before any property or asset of the
Company is distributed to any holder of common stock.
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VI. EMPLOYMENT. The Executive agrees to be bound by the terms and conditions
of this Agreement and to remain in the employ of the Company during any
period following any public announcement by any person of any proposed
transaction or transactions which, if effected, would result in a Change
in Control until a Change in Control has taken place or, in the opinion of
the Board of Directors of the Company, such person has abandoned or
terminated its efforts to effect a Change in Control. Subject to the
foregoing, nothing contained in this Agreement shall impair or interfere
in any way with the right of the Executive to terminate the Executive's
employment or the right of the Company to terminate the employment of the
Executive with or without cause prior to a Change in Control. Nothing
contained in this Agreement shall be construed as a contract of employment
between the Company and the Executive or as a right of the Executive to
continue in the employ of the Company or as a limitation of the right of
the Company to discharge the Executive with or without cause prior to a
Change in Control.
VII. LEGAL FEES. In the event that any legal action is required to enforce the
Executive's rights under this Agreement, the Executive, if the Executive
is the prevailing party, shall be entitled to recover from the Company any
expenses for attorneys' fees and disbursements reasonably incurred by the
Executive.
VIII. CHOICE OF LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware.
IX. CONFIDENTIALITY: Executive shall not, without the prior written consent of
the Company, divulge, disclose or make accessible to any other person,
partnership, corporation or other entity any Confidential Information
pertaining to the business of the Company, except (i) while employed by
the Company, or (ii) when required by law to do so. For these purposes,
"Confidential Information" shall mean non-public information concerning
the financial data, strategic business plans, product development (or
other proprietary product data), customer lists, marketing plans and any
other non-public, proprietary and confidential information of the Company
and its subsidiaries that is not otherwise available to the public or has
not become publicly available through any breach of fiduciary duty.
X. NONSOLICITATION: For a period of one year following the Executive's
termination of employment, the Executive shall not contact, communicate
with or solicit in any fashion any employee, consultant, customer or
advertiser who, at the time of such termination and at any time during the
preceding twelve-month period was employed by, employed or otherwise had
business dealings with, the Company for the purpose of causing such
employee, consultant, customer or advertiser (i) to terminate such
person's relationship with the Company or (ii) to be employed by, to
employ or otherwise to have business dealings with any business, whether
or not incorporated, in any television markets served by the Company at
the time of termination.
XI. RELEASE. As a condition to the receipt of any payments hereunder, the
Executive shall deliver to the Company, in form and substance reasonably
acceptable to the Company, a written release of the Company, its officers,
directors and shareholders from all claims of whatever nature, other than
as arising under the terms hereof or under any benefit plans of the
Company to which the Executive is otherwise entitled.
XII. NOTICE. For purpose of this Agreement, notices and all other
communications provided for in the Agreement shall be in writing and shall
be deemed to have been duly given when delivered or mailed by United
States registered mail, return receipt requested, postage prepaid. Notice
may be given to either party at the present principal place of business of
the Company or such other place as the party to receive such notice shall
notify the other.
XIII. MODIFICATION OR WAIVER. No provisions of this Agreement may be modified,
waived or discharged unless such waiver, modification or discharge is
agreed to in writing and signed by
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the Executive and the Company. No waiver by a party hereto at any time of
any breach by another party hereto of, or compliance with, any condition
or provision of this Agreement to be performed by such other party shall
be deemed a waiver of similar or dissimilar provisions or conditions.
XIV. ENTIRE AGREEMENT. No agreements or representations, oral or otherwise,
express or implied, with respect to the subject matter hereof have been
made by any of the parties which are not set forth expressly in this
Agreement.
XV. COUNTERPARTS. This Agreement may be executed in one or more counterparts,
each of which shall be deemed to be an original but all of which together
will constitute one and the same instrument.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
LIN TELEVISION CORPORATION, EXECUTIVE,
By /s/ Xxxxx X. Xxxxxxx Name /s/ C. Xxxxxx Xxxxx, Xx.
Title Vice-President-Finance
