Exhibit 10.17
EXECUTION COPY
EXECUTIVE SUBSCRIPTION AGREEMENT
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THIS EXECUTIVE SUBSCRIPTION AGREEMENT is made as of December 31, 1999 by
and between Xxxxxxx Xxxxx, an individual resident of Pennsylvania ("Green"), and
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Nexstar Broadcasting Group, Inc., a Delaware corporation (the "Company").
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The Company desires to provide to Green as its Vice President -- Corporate
Controller, Class C-2 Interests in Nexstar Broadcasting Group, L.L.C., a
Delaware limited liability company (the "LLC") on the terms and conditions set
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forth in this Agreement.
Previously, Green became party to (a) an Executive Employment Agreement
dated as of January 5, 1998 (as in effect from time to time, the "Employment
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Agreement") with the Company, and (b) the Amended and Restated Limited Liability
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Company Agreement dated as of January 5, 1998 (as in effect from time to time,
the "LLC Agreement") among the members of the LLC, and (c) the Second Amended
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and Restated Investors Agreement dated as of January 5, 1998 (as in effect from
time to time, the "Investors Agreement") among the LLC and its members.
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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. Equity Interests.
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(a) Contemporaneous with the execution and delivery of this
Agreement, Green has voluntarily elected to purchase 3,110 Class C-2 Interests
of the LLC (the "Class C-2 Interests") at $.3856 per interest (for an
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aggregate purchase price of $1,199.22 for such Class C-2 Interests).
(b) If Green's employment with the Company is terminated, except as
contemplated by Paragraph 3(a) [Death] of the Employment Agreement or Paragraph
3(c) [Consolidation, Merger or Comparable Transaction] of the Employment
Agreement, 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 percentage of the aggregate amount of all of Green's Class C-2
Interests at Green's original purchase price for such Class C-2 Interests, in
accordance with the following schedule:
Percentage of
Interests Which May be
Repurchased
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Termination Before January 1, 2000 100%
Termination On or After January 1, 2000
But Before January 1, 2001 90%
Termination On or After January 1, 2001
But Before January 1, 2002 70%
Termination On or After January 1, 2002
But Before January 1, 2003 50%
Termination On or After January 1, 2003
But Before January 1, 2004 25%
Termination On or After January 1, 2004 0%
If Green's employment is terminated pursuant to Paragraph 3(a) or 3(c) of
the Employment Agreement, then the LLC's right to purchase Green's Class C-
2 Interests pursuant to this Paragraph 1(b) will automatically terminate.
(c) The closing for any purchase and sale of Class C-2 Interests
pursuant to Paragraph 1(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
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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 Green'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 Green's Class C-2
Interests will be deemed to include any Interests of such type directly or
indirectly transferred by Green to any of Green's Permitted Transferees (as
that term is defined in the Investors Agreement).
2. Entire Agreement. This instrument, the Employment Agreement and
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the Investors Agreement embody the entire agreement between the parties hereto
with respect to Green's employment with the Company, and there have been and are
no other agreements, representations or warranties between the parties regarding
such matters.
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3. No Assignment. This Agreement will not be assigned by Green
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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 Green's death or disability this Agreement
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may be enforced by Green'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 Green except to any other person or entity
which may acquire or conduct the business of the Company, the LLC and/or their
respective subsidiaries.
4. Notices. All notices, requests, demands and other communication
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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 Green, then to Xxxxxxx Xxxxx, Nexstar Broadcasting Group,
Inc., 000 Xxxxxxxx Xxxxxxxxx Xxxx, Xxxxx 000, Xxxxxx Xxxxxx, XX 00000, or
as Green 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 Green.
5. Amendment; Modification. This Agreement will not be amended,
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modified or supplemented other than in a writing signed by the parties hereto.
6. Counterparts. This Agreement may be executed in two or more
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counterparts, each of which will be deemed an original, but all of which
together will constitute but one and the same instrument.
7. Headings. The headings in the Paragraphs of this Agreement are
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inserted for convenience only and will not constitute a part of this Agreement.
8. Severability. The parties agree that if any provision of this
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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.
9. Governing Law. This Agreement will be governed by and construed
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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.
10. Legal Fees. In the event of any litigated dispute between or
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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.
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11. Representations. Green represents and warrants to the Company
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that Green is not a party to or bound by any employment agreement, noncompete
agreement or confidentiality agreement with any other person or entity.
12. Strict Construction. The parties to this Agreement have
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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.
13. Binding Arbitration.
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(a) Generally. The arbitration procedures described in this Paragraph
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13 will be the sole and exclusive method of resolving and remedying claims
under this Agreement ("Disputes"); provided that nothing in this Paragraph
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13 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
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this Paragraph 13 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
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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
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Dispute, then such Person (the "Disputing Person") will give each other
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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 13 by
giving each other Person involved in such Dispute a written notice to that
effect (an "Arbitration Notice"), setting forth any matters which are
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required to be set forth therein in accordance with the AAA Rules.
(c) Selection of Arbitrator. The Persons involved in any Dispute
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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
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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
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practicable, and the Persons involved will use reasonable efforts to cause
a Final Arbitration Award to occur
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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
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state or federal court having jurisdiction over the subject matter of the
related Dispute.
(f) Expenses. Each prevailing Person in any arbitration proceeding
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described in this Paragraph 13 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
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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 Green, 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 13.
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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 Xxxxx
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Xxxxxxx Xxxxx
NEXSTAR BROADCASTING GROUP, INC.
By: /s/ Xxxxx X. Xxxx
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Xxxxx X. Xxxx, President
ACCEPTED AND AGREED:
NEXSTAR BROADCASTING GROUP, L.L.C.
By: /s/ Xxxxx X. Xxxx
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Xxxxx X. Xxxx, President
December 31, 1999
ELECTION TO INCLUDE STOCK IN GROSS
INCOME PURSUANT TO SECTION 83(b) OF THE
INTERNAL REVENUE CODE
The undersigned purchased Class C-2 Interests (the "Interests"), of
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Nexstar Broadcasting Group, L.L.C., a Delaware limited liability company (the
"Company"), on the date hereof. Under certain circumstances, the Company has the
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right to repurchase the Interests at cost from the undersigned (or from the
holder of the Interests, if different from the undersigned) should the
undersigned cease to be employed by Nexstar Broadcasting Group, Inc. (the
"Employer"). Hence, the Interests are subject to a substantial risk of
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forfeiture and are nontransferable. The undersigned desires to make an election
to have the Interests taxed under the provision of Code (S)83(b) at the time the
undersigned purchased the Interests.
Therefore, pursuant to Code (S)83(b) and Treasury Regulation (S)1.83-2
promulgated thereunder, the undersigned hereby makes an election, with respect
to the Interests (described below), to report as taxable income for calendar
year 1999 the excess (if any) of the Interests' fair market value on the date
hereof over the purchase price thereof.
The following information is supplied in accordance with Treasury
Regulation (S)1.83-2(e):
1. The name, address and social security number of the undersigned:
Xxxxxxx Xxxxx
000 Xxxxxxxx Xxxxx
Xxxxxx Xxxxxx, XX 00000
SSN: ###-##-####
2. A description of the property with respect to which the election is
being made: 3,110 of the Company's Class C-2 Interests.
3. The date on which the property was transferred: the date hereof. The
taxable year for which such election is made: calendar 1999.
4. The restrictions to which the property is subject: Until January 1,
2004, if the undersigned ceases to be employed by the Employer (except in
certain circumstances) a certain portion of the Interests will be subject to
repurchase by the Company at cost. If the undersigned ceases to be employed by
the Employer (except for certain circumstances) prior to January 1, 2000,
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then all of the Interests will be subject to repurchase by the Company at cost;
if such cessation of the undersigned's employment occurs prior to January 1,
2004, then not less than 25% of the Interests will be subject to repurchase by
the Company at cost.
5. The fair market value on the date hereof of the property with respect
to which the election is being made, determined without regard to any lapse
restrictions: $.3856 per Interest.
6. The amount paid for such property: $.3856 per Interest.
A copy of this election has been furnished to the Secretary of the
Company pursuant to Treasury Regulations (S)1.83-2(e)(7).
/s/ Xxxxxxx Xxxxx
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Xxxxxxx Xxxxx
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