EXECUTIVE EMPLOYMENT AGREEMENT
Exhibit
10.1
THIS
EXECUTIVE EMPLOYMENT AGREEMENT (the “Agreement”) is made as of July 13, 2009 by
and between Xxxxxx X. Xxxxxx (“Executive”), and Nexstar Broadcasting Group Inc.,
a Delaware corporation (the “Company”).
The
Company desires to retain the services of Executive as Executive Vice President
Chief Financial Officer, and Executive 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 (which will commence on August 3,
2009), the Company will employ Executive. Effective on and as of
August 3, 2009, Executive will serve as Executive Vice President and Chief
Financial Officer. In such position, Executive will perform such
duties of a managerial nature as are assigned to him from time to time by the
Company’s chief executive officer (the “CEO”) and/or its board of directors (the
“Board”). Executive will devote his best efforts to his employment
with the Company and will devote substantially all of his business time and
attention to the performance of his duties under this Agreement; provided that
the foregoing will not preclude Executive from devoting reasonable time to the
supervision of his personal investments, civic and charitable affairs, so long
as such activities do not materially interfere with the performance of
Executive’s duties hereunder.
2. Term
of Employment. Unless terminated earlier as provided in Paragraph 3,
the Company’s employment of Executive under this Agreement will continue until
August 2, 2014, provided, however, that the term of employment under this
Agreement will be automatically renewed for successive one-year periods (the
first of which will commence on August 3, 2014) unless, at least ninety (90)
days prior to the end of the then current term of employment under this
Agreement, Executive or the Company gives written notice to the other of the
notifying party’s intent not to renew the term of employment under this
Agreement as of the end of the then current term.
3.
Termination. The Company’s employment of Executive under this
Agreement will terminate prior to the end of the term specified in Paragraph 2
only under the following circumstances:
(a)
Death. Executive’s death, in which case Executive’s employment will
terminate on the date of death;
(b)
Disability. If Executive’s illness, physical or mental disability or
other incapacity results in Executive’s inability to perform, with or without
reasonable accommodation (as defined under the Americans with Disabilities Act),
Executive’s duties under this Agreement for any period of six (6) consecutive
months, and within thirty (30) days after written notice of termination is given
by the Company to Executive (which may occur before or after the end of such
six-month period), Executive does not return to the performance of Executive’s
duties hereunder on a full-time basis, then the Company may terminate
Executive’s employment hereunder effective on or after the later of (i) the
expiration of such six (6) month period or (ii) the thirty-first (31st) day
after written notice of termination is given by the Company;
(c)
Consolidation, Merger or Comparable Transaction. In the event that
the Company consolidates with or merges with and into any other person, effects
a share exchange, enters into a comparable capital transaction or has any or all
of its equity securities sold to one or more third parties, in each case such
that a person (other than an affiliate of ABRY Partners, LLC (“ABRY”)) becomes
the beneficial owner of a majority of the voting power represented by the
securities of the Company (treating any such person and the affiliates of such
person as being one and the same person), or if the Company sells all or
substantially all of its consolidated assets, then Executive’s employment may,
by written notice of termination, be terminated by the Company or Executive
simultaneously with the consummation of such consolidation, merger, share
exchange, asset sale, stock sale or comparable transaction;
(d)
Termination by the Company for Cause. The Company may terminate
Executive’s employment at any time for Cause (as defined herein), such
termination to be effective as of the date stated in a written notice of
termination delivered by the CEO to Executive. Any termination
pursuant to this Paragraph 3(d) will not also be deemed to be a termination
pursuant to Paragraph 3(e). For the purposes of this Agreement,
“Cause” is defined to mean any of the following activities by
Executive: (i) the conviction of Executive for a felony or a crime
involving moral turpitude or the commission of any act involving dishonesty,
disloyalty or fraud with respect to the Company or any of its subsidiaries or
affiliates, in each instance which has caused or is reasonably likely to cause
material harm to the Company; (ii) substantial repeated failure to perform
duties which are reasonably directed by the CEO or the Board and which are
consistent with the terms of this Agreement and the position specified in
Paragraph 1; (iii) gross negligence or willful misconduct with respect to the
Company or any of its subsidiaries or affiliates, in each instance which has
caused or is reasonably likely to cause material harm to the Company; or (iv)
any other material breach by Executive of a material provision of this
Agreement, which is not cured within thirty (30) days after written notice
thereof to Executive;
(e)
Termination by the Company Other Than for Cause. The Company may
terminate Executive’s employment for any reason or for no reason upon thirty
(30) days prior written notice to Executive, subject to payment of the
termination payments specified in Paragraph 6. Such termination will
be effective as of the date stated in a written notice of termination delivered
by the CEO to Executive;
(f)
Termination by Executive With Good Reason. Executive may terminate
his employment hereunder at any time for Good Reason (as defined herein), such
termination to be effective as of the date stated in a written notice of
termination delivered by Executive to the Company (or such earlier date after
the delivery of such notice as the Company may elect). For purposes
of this Agreement, “Good Reason” will mean (i) a material reduction in the
duties or position of Executive, or (ii) a material breach by the Company of a
material provision of this Agreement which adversely affects Executive and which
has not been cured by the breaching entity within thirty (30) days after
Executive gives written notice of noncompliance to the Company;
(g)
Termination by Executive Without Good Reason. Executive may terminate
his employment hereunder for any reason or for no reason upon thirty (30) days
prior written notice to the Company. Such termination will be
effective as of the date stated in a written notice of termination delivered by
Executive to the Company (or such earlier date after the delivery of such notice
as the Company may elect); or
(h)
Retirement. The Company may require Executive to retire upon
attaining age 65 if such action does not violate applicable law; such action
will not be treated as a termination by the Company pursuant to Paragraph 3(d)
or 3(e).
In no
event will the termination of Executive’s employment affect the rights and
obligations of the parties set forth in this Agreement, except as expressly set
forth herein. Any termination of Executive’s employment pursuant to
this Paragraph 3 will be deemed to include a resignation by Executive of all
positions with the Company, the LCC and each of their respective subsidiaries
and affiliates.
4.
Compensation.
(a) Base
Salary. During the term of this Agreement, Executive will be entitled
to receive a base salary (“Base Salary”) at the annual rate specified
below:
|
Period
|
Base
Salary
|
|
From
August 3, 2009 through August 2, 2010
|
$390,000
|
|
From
August 3, 2010 through August 2, 2011
|
$400,000
|
|
From
August 3, 2011 through August 2, 2012
|
$410,000
|
|
From
August 3, 2012 through August 2, 2013
|
$420,000
|
|
After
July20, 2013
|
$430,000
|
(b)
Bonus. After the end of each Company fiscal year during the term of
this Agreement, Executive will be entitled to receive an annual bonus (the
“Bonus”), in an amount, if any, up to the amount specified below (or in excess
of such amount, as the CEO, with the approval of the Compensation Committee of
the Company’s board of directors (the “Compensation Committee”), may determine
is appropriate), pro-rated for any partial fiscal year during which Executive is
employed by the Company pursuant to this Agreement, to be determined by the CEO,
with the approval of the Compensation Committee, based on, among other things,
whether the Company achieved the budgeted revenue and profit goals for such
fiscal year:
|
After
the 2009 fiscal year
|
$195,000
|
|
After
the 2010 fiscal year
|
$200,000
|
|
After
the 2011 fiscal year
|
$205,000
|
|
After
the 2012 fiscal year
|
$210,000
|
|
After
the 2013 fiscal year and thereafter
|
$215,000
|
(c)
Payment. Executive’s Base Salary will be paid ratably during each
12-month period under this Agreement on a basis consistent with other Company
executives. The Bonus provided in Paragraph 4(b), if granted by the
CEO with the approval of the Compensation Committee, will be paid in a single
payment within thirty (30) days after the independent certified public
accountants regularly employed by the Company have made available to the Company
the Company’s audited financial statements for the appropriate fiscal
year. All payments under this Agreement will be subject to
withholding or deduction by reason of the Federal Insurance Contribution Act, as
amended, federal income tax, state income tax and all other applicable laws and
regulations.
5. Fringe
Benefits.
(a)
During the term of this Agreement, Executive will be entitled to receive, at the
Company’s expense, other insurance coverage and paid vacation (initially three
weeks per year) as described in the Company’s employee handbook.
(b)
During the term of this Agreement, the Company will reimburse Executive for all
approved business expenses which Executive incurs on the Company’s behalf, upon
presentation of appropriate documentation.
6.
Termination Payments. Executive (or Executive’s estate if this
Agreement is terminated pursuant to Paragraph 6(a)) will be entitled to receive
the following payments upon termination of Executive’s employment
hereunder:
(a) In
the event of the termination of Executive’s employment pursuant to any of the
following provisions:
|
Paragraph
3(a)
|
[Death]
|
|
Paragraph
3(b)
|
[Disability]
|
|
Paragraph
3(d)
|
[By
the Company For Cause]
|
|
Paragraph
3(g)
|
[By
Executive Without Good Reason]
|
|
Paragraph
3(h)
|
[Retirement]
|
the
Company will pay to Executive (or Executive’s estate, as the case may be) as
soon as practicable following such termination all accrued and unpaid Base
Salary as of the date of termination as provided in Paragraph 4 and an amount
(calculated at the rate of the Base Salary in effect on such date) in respect of
all accrued but unutilized vacation time as of such date.
(b) In
the event of termination of Executive’s employment pursuant to any of the
following provisions:
|
Paragraph
3(c)
|
[Consolidation,
Merger or Comparable Transaction]
|
|
Paragraph
3(e)
|
[By
the Company Other Than For Cause]
|
|
Paragraph
3(f)
|
[Good
Reason]
|
the
Company will pay Executive the amounts described in Paragraph 6(a) and will
continue to pay the Base Salary which otherwise would be due to Executive for a
period one (1) year after the date of such termination. For such
period, the Company will also continue to provide coverage (at the Company’s
expense) under any medical insurance plan available pursuant to Paragraph 5(a)
in which Executive was a participant at the time of the termination of
Executive’s employment under this Agreement (or such other medical coverage as
the Company provides to its employees generally from time to time during such
period).
Without
limiting the remedies available to the Company for breach by Executive of
Paragraph 7, if Executive violates the provisions of Paragraph 7 after the
termination of Executive’s employment with the Company in a manner reasonably
determined by the Board to be injurious to the Company or any of its affiliates,
then Executive will forfeit the right to any payments under this Paragraph 6
which are unpaid at the time such violation occurs.
7.
Covenant Not to Compete and Non-Disclosure.
(a)
During the term of Executive’s employment pursuant to this Agreement and for a
period of one (1) year thereafter, Executive covenants and agrees that Executive
will not within any DMA (as determined from time to time by the X.X. Xxxxxxx
Company or its successor) in which the Company operates a television broadcast
facility on the date that Executive’s employment by the Company terminates (or
in which the Company has agreed to acquire, or the Board has approved pursuing
(and the Company has not abandoned) the acquisition of, a television broadcast
facility on or prior to such date) whether directly or indirectly, with or
without compensation, (x) enter into or engage in the business of television
broadcasting, (y) be employed by, act as a consultant to, act as a director of
or own beneficially five percent (5%) or more of any class of equity or debt
securities of any corporation or other commercial enterprise in the business of
television broadcasting, or (z) solicit or do any business with respect to
television broadcasting with any then-existing customers of the
Company. During the one (1) year after Executive’s employment with
the Company terminates, neither Executive nor any of Executive’s affiliates will
hire, solicit, employ or contract with respect to employment any officer or
employee of the Company. For purposes of this Paragraph 7, the term
“Company” will include the Company and each of its subsidiaries or other
affiliates, and each such entity is an express third-party beneficiary of this
Agreement; provided that the term “Company” will not include any affiliates of
the Company who are affiliates of the Company solely by reason of being
affiliates of ABRY.
(b)
Executive agrees to disclose promptly to the Company and does assign and agree
to assign to the Company, free from any obligation to Executive, all Executive’s
right, title and interest in and to any and all ideas, concepts, processes,
improvements and inventions made, conceived, written, acquired, disclosed or
developed by Executive, solely or in concert with others, during the term of
Executive’s employment by the Company, which relate to the business, activities
or facilities of the Company, or resulting from or suggested by any work
Executive may do for the Company or at its request. Executive further
agrees to deliver to the Company any and all drawings, notes, photographs,
copies, outlines, specifications, memoranda and data relating to such ideas,
concepts, processes, improvements and inventions, to cooperate fully during
Executive’s employment and thereafter in the securing of copyright, trademark or
patent protection or other similar rights in the United States and foreign
countries, and to give evidence and testimony and to execute and deliver to the
Company all documents requested by it in connection therewith.
(c)
Except as expressly set forth below, Executive agrees, whether during
Executive’s employment pursuant to this Agreement or thereafter, except as
authorized or directed by the Company in writing or pursuant to the normal
exercise of Executive’s responsibilities hereunder, not to disclose to others,
use for Executive’s or any other Person’s (as defined herein) benefit, copy or
make notes of any confidential information or trade secrets or any other
information of or relating to the business, activities or facilities of the
Company which may come to Executive’s knowledge prior to or during Executive’s
employment pursuant to this Agreement or thereafter. Executive will
not be bound to this obligation of confidentiality and nondisclosure
if:
(i) the
information in question has become part of the public domain by publication or
otherwise through no fault of Executive;
(ii) the
information in question is disclosed to the recipient by a third party and
Executive reasonably believes such third party is in lawful possession of the
information and has the lawful right to make disclosure thereof; or
(iii)
Executive is required to disclose the information in question pursuant to
applicable law or by a court of competent jurisdiction.
(d) Upon
termination of employment pursuant to this Agreement, Executive will deliver to
the Company all records, notes, data, memoranda, photographs, models and
equipment of any nature which are in Executive’s possession or control and which
are the property of the Company.
(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. Entire
Agreement. This instrument embodies the entire agreement between the
parties hereto with respect to Executive’s employment with the Company, and
there have been and are no other agreements, representations or warranties
between the parties regarding such matters.
9. No
Assignment. This Agreement will not be assigned by Executive without
the prior written consent of the Company and any attempted assignment without
such prior written consent will be null and void and without legal effect;
provided that in the case of Executive’s death or disability this Agreement may
be enforced by Executive’s executors, personal representatives or guardians, to
the extent applicable. This Agreement will not be assigned by the
Company without the prior written consent of Executive except to any other
person or entity which may acquire or conduct the business of the Company and/or
their respective subsidiaries.
10.
Notices. All notices, requests, demands and other communications
hereunder will be deemed to have been duly given when (i) delivered by hand or
if mailed, by certified or registered mail, with postage prepaid; (ii) hand
delivered; or (iii) sent overnight mail or overnight courier:
(a) If to
Executive, then to Xxxxxx X. Xxxxxx 0000 Xxxx Xxxx Xxxx, Xxxxxx, XX 00000, or as
Executive may otherwise specify by prior written notice to the Company;
and
(b) If to
the Company, then to Nexstar Broadcasting Group Inc., 0000 Xxxxx X ‘Xxxxxx
Xxxxxxxxx, Xxxxx 0000, Xxxxxx, XX 00000, Attention: Xxxxx X. Xxxx or as the
Company may otherwise specify by prior written notice to Executive.
11.
Amendment; Modification. This Agreement will not be amended, modified
or supplemented other than in a writing signed by the parties
hereto.
12.
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.
13.
Headings. The headings in the Paragraphs of this Agreement are
inserted for convenience only and will not constitute a part of this
Agreement.
14.
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.
15.
Governing Law. This Agreement will be governed by and construed in
accordance with the internal law of the State of Delaware without giving effect
to any choice of law or conflict provision or rule that would cause the laws of
any jurisdiction other than the State of Delaware to be applied.
16. 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.
17.
Representations. Executive represents and warrants to the Company
that Executive is not a party to or bound by any employment agreement,
noncompete agreement or confidentiality agreement with any other person or
entity.
18.
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.
19.
Binding Arbitration.
(a)
Generally. The arbitration procedures described in this Paragraph 19
will be the sole and exclusive method of resolving and remedying any claim under
this Agreement (each such claim, a “Dispute”); provided that nothing in this
Paragraph 19 will prohibit a Person from instituting litigation to enforce any
Final Arbitration Award (as defined herein). 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 19 and any Final Arbitration Award (as
defined herein) will be governed by, and will be enforceable pursuant to, the
Uniform Arbitration Act as in effect in the State of Pennsylvania 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 19 by giving
each other Person involved in such Dispute a written notice to that effect (an
“Arbitration Notice”), setting forth any matters which are required to be set
forth therein in accordance with the AAA Rules.
(c)
Selection of Arbitrator. The Persons involved in any Dispute will
attempt to select a single arbitrator by mutual agreement. If no such
arbitrator is selected prior to the 10th business day after the related
Arbitration Notice is given, then an arbitrator which is experienced in matters
of the type which are the subject matter of the Dispute will be selected in
accordance with the AAA Rules.
(d)
Conduct of Arbitration. The arbitration will be conducted in the
Scranton/Xxxxxx-Xxxxx, Pennsylvania, metropolitan area under the AAA Rules, as
modified by any written agreement among the Persons involved in the Dispute in
question. The arbitrator will conduct the arbitration in a manner so
that the final result, determination, finding, judgment or award determined by
the arbitrator (the “Final Arbitration Award”) is made or rendered as soon as
practicable, and the Persons involved will use reasonable efforts to cause a
Final Arbitration Award to occur within ninety (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 19 will be entitled to recover from any
non-prevailing Person(s) its reasonable attorneys’ fees and
disbursements and other out-of-pocket costs in addition to any
damages or other remedies awarded to such prevailing Person, and the
non-prevailing Person(s) also will be required to pay all other costs and
expenses associated with the arbitration; provided that (i) if an arbitrator is
unable to determine that one or more Persons are prevailing Person(s) in any
such arbitration proceeding, then such costs and expenses will be equitably
allocated by such arbitrator upon the basis of the outcome of such arbitration
proceeding, and (ii) if such arbitrator is unable to allocate such costs and
expenses in such a manner, then the costs and expenses of such arbitration will
be paid one-half by the Company, on the one hand, and one-half by Executive, on
the other hand, and each Person involved in such arbitration will pay the
out-of-pocket expenses incurred by it. As part of any Final
Arbitration Award, the arbitrator may designate the prevailing Person(s) for
purposes of this Paragraph 19.
20.
Termination of Previous Agreements. This Agreement replaces and
terminates any previous agreements (including, without limitation, any
supplements, addendums or amendments thereto) entered into between the Executive
and the Company and/or any of its affiliates and predecessors.
IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed as of the day and year first above written.
______________________________
Xxxxxx X.
Xxxxxx
ACCEPTED
AND AGREED:
________________________________
Xxxxx X.
Xxxx
President
and Chief Executive Officer
