Exhibit 10.70
EXECUTIVE EMPLOYMENT AGREEMENT
THIS EXECUTIVE EMPLOYMENT AGREEMENT (the "Agreement") is made as of
May 1st, 2003 by and between Xxxxx Xxxxx ("Executive"), and Nexstar Broadcasting
Group, L.L.C., a Delaware limited liability company (the "Company").
The Company desires to retain the services of Executive as Senior Vice
President and Regional Manager, 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 May 1,
2003), the Company will employ Executive. Effective on and as of May 1, 2003,
Executive will serve as Senior Vice President and Regional Manager. In such
position, Executive will perform such duties of a managerial nature as are
assigned to him from time to time by the Company's chief executive officer (the
"CEO") and/or its board of directors or sole member (the "Board"). Executive
will devote his best efforts to his employment with the Company and will devote
substantially all of his business time and attention to the performance of his
duties under this Agreement; provided that the foregoing will not preclude
Executive from devoting reasonable time to the supervision of his personal
investments, civic and charitable affairs, so long as such activities do not
materially interfere with the performance of Executive's duties hereunder.
2. Term of Employment. Unless terminated earlier as provided in
Paragraph 3, the Company's employment of Executive under this Agreement will
continue until May 1, 2008, provided, however, that the term of employment under
this Agreement will be automatically renewed for successive one-year periods
(the first of which will commence on May 1, 2008) unless, at least ninety (90)
days prior to the end of the then current term of employment under this
Agreement, Executive or the Company gives written notice to the other of the
notifying party's intent not to renew the term of employment under this
Agreement as of the end of the then current term.
3. Termination. The Company's employment of Executive under this
Agreement will terminate prior to the end of the term specified in Paragraph 2
only under the following circumstances:
(a) Death. Executive's death, in which case Executive's employment
will terminate on the date of death;
(b) Disability. If Executive's illness, physical or mental disability
or other incapacity results in Executive's inability to perform, with or
without reasonable accommodation (as defined under the Americans with
Disabilities Act), Executive's
duties under this Agreement for any period of six (6) consecutive months,
and within thirty (30) days after written notice of termination is given by
the Company to Executive (which may occur before or after the end of such
six-month period), Executive does not return to the performance of
Executive's duties hereunder on a full-time basis, then the Company may
terminate Executive's employment hereunder effective on or after the later
of (i) the expiration of such six-month period or (ii) the thirty-first
(31st) day following the giving by the Company of such written notice of
termination;
(c) Consolidation, Merger or Comparable Transaction. In the event that
the Company 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, 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, 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
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elect). For purposes of this Agreement, "Good Reason" will mean (i) a
material reduction in the duties or position of Executive, or (ii) a
material breach by the Company of a material provision of this Agreement
which adversely affects Executive and which has not been cured by the
breaching entity within thirty (30) days after Executive gives written
notice of noncompliance to such entity;
(g) Termination by Executive Without Good Reason. Executive may
terminate his employment hereunder for any reason or for no reason upon
thirty (30) days prior written notice to the Company. Such termination will
be effective as of the date stated in a written notice of termination
delivered by Executive to the Company (or such earlier date after the
delivery of such notice as the Company may elect); or
(h) Retirement. The Company may require Executive to retire upon
attaining age 65 if such action does not violate applicable law; such
action will not be treated as a termination by the Company pursuant to
Paragraph 3(d) or 3(e).
In no event will the termination of Executive's employment affect the rights and
obligations of the parties set forth in this Agreement, except as expressly set
forth herein. Any termination of Executive's employment pursuant to this
Paragraph 3 will be deemed to include a resignation by Executive of all
positions with the Company, 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 May 1, 2003 through April 30, 2004 ............ $250,000
From May 1, 2004 through April 30, 2005 ............ $260,000
From May 1, 2005 through April 30, 2006 ............ $270,000
From May 1, 2006 through April 30, 2007 ............ $280,000
After May 1, 2007 .................................. $290,000
(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 and the Company's chief operating
officer (the "COO") may determine is appropriate in their sole discretion),
pro-rated for any partial fiscal year during which Executive is employed by
the Company pursuant to this Agreement, to be determined by the CEO and the
COO based on, among other things, whether the Stations achieved the
budgeted revenue and profit goals established for the Stations by the CEO
and the COO for such fiscal year:
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After the 2003 fiscal year ...................................... $100,000
After the 2004 fiscal year ...................................... $105,000
After the 2005 fiscal year ...................................... $110,000
After the 2006 fiscal year ...................................... $115,000
After the 2007 fiscal year and each subsequent fiscal year ...... $120,000
(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 and COO, will be paid in a single payment within thirty (30) days after
the independent certified public accountants regularly employed by the
Company have made available to the Company the Company's audited financial
statements for the appropriate fiscal year. All payments under this
Agreement will be subject to withholding or deduction by reason of the
Federal Insurance Contribution Act, Federal income tax, state income tax
and all other applicable laws and regulations.
5. Fringe Benefits.
(a) During the term of this Agreement, Executive will be entitled to
receive, at the Company's expense, medical and other insurance coverage and
paid vacation (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. Executive
will also receive a monthly automobile allowance of $500.00 to pay the
customary costs of a vehicle used by Executive in connection with his
employment with the Company.
6. Termination Payments. Executive (or Executive's estate pursuant to
Paragraph 6(a)) will be entitled to receive the following payments upon
termination of Executive's employment hereunder:
(a) In the event of the termination of Executive's employment pursuant
to any of the following provisions:
Paragraph 3(a) [Death]
Paragraph 3(b) [Disability]
Paragraph 3(d) [By the Company For Cause]
Paragraph 3(g) [By Executive Without Good Reason]
Paragraph 3(h) [Retirement]
the Company will pay to Executive (or Executive's estate, as the case may
be) as soon as practicable following such termination all accrued and
unpaid Base Salary as of the date of termination as provided in Paragraph 4
and an amount (calculated at the rate of the Base Salary in effect on such
date) in respect of all accrued but unutilized vacation time as of such
date.
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(b) In the event of termination of Executive's employment pursuant to
any of the following provisions:
Paragraph 3(c) [Consolidation, Merger or Comparable
Transaction]
Paragraph 3(e) [By the Company Other Than For Cause]
Paragraph 3(f) [Good Reason]
the Company will pay Executive the amounts described in Paragraph 6(a) and
will continue to pay the Base Salary which otherwise would be due to
Executive for a period 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(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 employees of the Stations
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.
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(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 benefit, copy or make notes of any
confidential information or trade secrets or any other knowledge or information
of or relating to the business, activities or facilities of the Company which
may come to Executive's knowledge prior to or during Executive's employment
pursuant to this Agreement or thereafter. Executive will not be bound to this
obligation of confidentiality and nondisclosure if:
(i) the knowledge or information in question has become part of the
public domain by publication or otherwise through no fault of Executive;
(ii) the knowledge or information in question is disclosed to the
recipient by a third party and Executive reasonably believes such third
party is in lawful possession of the knowledge or information and has the
lawful right to make disclosure thereof; or
(iii) Executive is required to disclose the information in question
pursuant to applicable law or by a court of competent jurisdiction.
(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.
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8. Equity Interests. The parties agree that upon the closing of the
initial public offering of Nexstar Broadcasting Group, Inc. ("Group Inc.") and
the related reorganization of the Company and certain of its subsidiaries (the
initial public offering and the reorganization together, the "IPO"): (i) all
references in this Agreement to the Company will apply to Group Inc. as the
successor of the Company; (ii) Executive will be granted an option pursuant to
Group Inc.'s 2002 Long-Term Incentive Plan (the "LTIP") to purchase 50,000
shares of Group Inc.'s Class A common stock (the "Class A Common") at an
exercise price equal to the initial public offering price for the Class A
Common; (iii) such option shall vest ratably over Executive's initial term of
employment under this Agreement (which, for avoidance of doubt, is May 1, 2003
until May 1, 2008); and (iv) if the IPO has not closed by December 31, 2003,
then Executive will be eligible, at the discretion of the CEO, to purchase
equity interests of the Company on terms comparable to those pursuant to which
other executive officers of the Company have purchased equity interests. From
time to time following the closing of the IPO, Executive will be eligible for
additional option grants pursuant to the LTIP, at the discretion of the Board.
Additional options granted pursuant to the LTIP would vest over a five (5)-year
period as set forth in the LTIP.
9. Entire Agreement. This instrument embodies the entire agreement
between the parties hereto with respect to Executive's employment with the
Company, and there have been and are no other agreements, representations or
warranties between the parties regarding such matters.
10. No Assignment. This Agreement will not be assigned by Executive
without the prior written consent of the Company and any attempted assignment
without such prior written consent will be null and void and without legal
effect; provided that in the case of Executive's death or disability this
Agreement may be enforced by Executive's executors, personal representatives or
guardians, to the extent applicable. This Agreement will not be assigned by the
Company without the prior written consent of Executive except to any other
person or entity which may acquire or conduct the business of the Company and/or
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 Executive, then to Xxxxx Xxxxx, 0000 Xxxxxxxxxx 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, L.L.C., 000
Xxxx Xxxxxxx Xxxxxxx, Xxxxx 0000, Xxxxxx, XX 00000, Attention: Xxxxx X.
Xxxx or as the Company may otherwise specify by prior written notice to
Executive.
12. Amendment; Modification. This Agreement will not be amended,
modified or supplemented other than in a writing signed by the parties hereto.
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13. Counterparts. This Agreement may be executed in two or more
counterparts, each of which will be deemed an original, but all of which
together will constitute but one and the same instrument.
14. Headings. The headings in the Paragraphs of this Agreement are
inserted for convenience only and will not constitute a part of this Agreement.
15. Severability. The parties agree that if any provision of this
Agreement will under any circumstances be deemed invalid or inoperative, the
Agreement will be construed with the invalid or inoperative provision deleted,
and the rights and obligations of the parties will be construed and enforced
accordingly.
16. Governing Law. This Agreement will be governed by and construed in
accordance with the internal law of the State of Delaware without giving effect
to any choice of law or conflict provision or rule that would cause the laws of
any jurisdiction other than the State of Delaware to be applied.
17. Legal Fees. In the event of any litigated dispute between or among
any of the parties to this Agreement, the reasonable legal fees and expenses of
the party successful in such dispute (whether by way of a decision by a court or
other tribunal) will be paid promptly by the unsuccessful party upon
presentation by the successful party of an invoice therefor.
18. Representations. Executive represents and warrants to the Company
that Executive is not a party to or bound by any employment agreement,
noncompete agreement or confidentiality agreement with any other person or
entity.
19. Strict Construction. The parties to this Agreement have
participated jointly in the negotiation and drafting of this Agreement. In the
event an ambiguity or question of intent or interpretation arises, this
Agreement will be construed as if drafted jointly by the parties, and no
presumption or burden of proof will arise favoring or disfavoring any party by
virtue of the authorship of any of the provisions of this Agreement.
20. Binding Arbitration.
(a) Generally. The arbitration procedures described in this Paragraph
20 will be the sole and exclusive method of resolving and remedying claims
under this Agreement ("Disputes"); provided that nothing in this Paragraph
20 will prohibit a Person from instituting litigation to enforce any Final
Arbitration Award. Except as otherwise provided in the Commercial
Arbitration Rules of the American Arbitration Association as in effect from
time to time (the "AAA Rules"), the arbitration procedures described in
this Paragraph 20 and any Final Arbitration Award will be governed by, and
will be enforceable pursuant to, the Uniform Arbitration Act as in effect
in the State of 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.
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(b) Notice of Arbitration. If a Person asserts that there exists a
Dispute, then such Person (the "Disputing Person") will give each other
Person involved in such Dispute a written notice setting forth the nature
of the asserted Dispute. If all such Persons do not resolve any such
asserted Dispute prior to the 10th business day after such notice is given,
then any of them may commence arbitration pursuant to this Paragraph 20 by
giving each other Person involved in such Dispute a written notice to that
effect (an "Arbitration Notice"), setting forth any matters which are
required to be set forth therein in accordance with the AAA Rules.
(c) Selection of Arbitrator. The Persons involved in any Dispute will
attempt to select a single arbitrator by mutual agreement. If no such
arbitrator is selected prior to the 10th business day after the related
Arbitration Notice is given, then an arbitrator which is experienced in
matters of the type which are the subject matter of the Dispute will be
selected in accordance with the AAA Rules.
(d) Conduct of Arbitration. The arbitration will be conducted in the
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 90
days after the arbitrator is selected. Any Final Arbitration Award will be
final and binding upon all Persons and there will be no appeal from or
reexamination of any Final Arbitration Award, except in the case of fraud,
perjury or evident partiality or misconduct by the arbitrator prejudicing
the rights of such Persons or to correct manifest clerical errors.
(e) Enforcement. A Final Arbitration Award may be enforced in any
state or federal court having jurisdiction over the subject matter of the
related Dispute.
(f) Expenses. Each prevailing Person in any arbitration proceeding
described in this Paragraph 20 will be entitled to recover from any
non-prevailing Person(s) its reasonable attorneys' fees and disbursements
and other out-of-pocket costs in addition to any damages or other remedies
awarded to such prevailing Person, and the non-prevailing Person(s) also
will be required to pay all other costs and expenses associated with the
arbitration; provided that (i) if an arbitrator is unable to determine that
one or more Persons are prevailing Person(s) in any such arbitration
proceeding, then such costs and expenses will be equitably allocated by
such arbitrator upon the basis of the outcome of such arbitration
proceeding, and (ii) if such arbitrator is unable to allocate such costs
and expenses in such a manner, then the costs and expenses of such
arbitration will be paid one-half by the Company, on the one hand, and
one-half by Executive, on the other hand, and each Person involved in such
arbitration will pay the out-of-pocket expenses incurred by it. As part of
any Final Arbitration Award, the arbitrator may designate the prevailing
Person(s) for purposes of this Paragraph 20.
* * * * * *
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the day and year first above written.
/s/ Xxxxx Xxxxx
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XXXXX XXXXX
NEXSTAR BROADCASTING GROUP, L.L.C.
By: /s/ Xxxxx X. Xxxx
______________________________
Its: Chief Executive Officer
_____________________________
