EXHIBIT 10.1
EXECUTIVE EMPLOYMENT AGREEMENT
THIS EXECUTIVE EMPLOYMENT AGREEMENT (the “Agreement”) is made to be effective as of August 21, 2023 (the “Effective Date”) by and between Michael Biard, an individual resident of California (“Executive”), and Nexstar Media Group, Inc., a Delaware corporation (the “Company”).
WHEREAS, the Company desires to retain the services of Executive as President & Chief Operating Officer, and Executive desires to be employed by the Company under the terms and conditions of this Agreement.
NOW THEREFORE, 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:
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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 and each of its subsidiaries and affiliates.
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Vesting may be interpolated for performance between Threshold, Target, and Maximum levels.
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22. Code Section 280G. If Executive receives any payments or distributions pursuant to this Agreement or otherwise (“Payments”) that constitute “parachute payments” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”), and, but for this Paragraph 22, would be subject to the excise tax imposed by Code Section 4999 (“Excise Tax”), then the Payments shall be reduced to the Reduced Amount only if reducing the Payments would provide Executive with a greater net after-tax amount than if no such reduction took place. The "Reduced Amount" shall be a present value amount that maximizes the aggregate present value of the Payments without causing any portion of the Payments to be subject to the Excise Tax, determined in accordance with Code Section 280G(d)(4).
[The remainder of this page is left blank intentionally. Signature page follows.]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed and made effective as of the day and year first above written.
/s/ Michael Biard |
Michael Biard Executive |
ACCEPTED AND AGREED:
NEXSTAR MEDIA GROUP, INC.
/s/ Perry A. Sook |
Perry A. Sook Chairman/CEO/President |
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SCHEDULE A
Target Performance Bonus Criteria:
The CEO and the Compensation Committee of the Board will evaluate and award any Bonus in an amount set forth based on the following criteria for each fiscal year of the Term or any renewal Term:
Fiscal 2023: $1,500,000.00
2024 | |||||
Component | Weight | No Payout | Threshold | Target | Maximum |
Adjusted EBITDA | 50% | <85% of Target | 85% of Target | Budgeted Target | 105% of Target |
Individual Performance | 50% | Discretionary, Performance Areas TBD Annually | |||
Payout Opportunity | 100% | 0% (no Bonus payout) | 50% of Target (e.g., 62.5% of Base Salary) | 100% of Target (e.g. 125% of Base Salary) | 200% of Target (e.g., 250% of Base Salary) |
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2025 & Beyond | |||||
Component | Weight | No Payout | Threshold | Target | Maximum |
Adjusted EBITDA | 65.0% | <85% of Target | 85% of Target | Budgeted Target | 105% of Target |
Individual Performance | 35.0% | Discretionary, Performance Areas TBD Annually | |||
Payout Opportunity | 100% | 0% (no Bonus payout) | 50% of Target (e.g., 62.5% of Base Salary) | 100% of Target (e.g. 125% of Base Salary) | 200% of Target (e.g., 250% of Base Salary) |
Notes:
Adjusted EBITDA is consistent with such budget metric set forth in the annual budget approved by the Board of Directors in Q1 of each fiscal year.
Adjusted EBITDA is defined as operating cash flow minus cash corporate overhead minus non-cash stock compensation minus transaction and one-time expenses plus TV Food Network cash distributions plus pension and other post-employment benefits credits. Adjusted EBITDA shall be determined on an after-Bonus payout basis (e.g., the Bonus will be self-funded/Budget is inclusive of Bonus expense).
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The CEO and Compensation Committee of the Board, in their discretion, may consider adjustments to Adjusted EBITDA for non-standard, non-recurring items, including but not limited to, restructuring costs, acquisition and divestiture impacts, unusual material tax items, changes in accounting principles and guidance, and other non-recurring items.
Individual performance will be earned at the CEO and Compensation Committee’s discretion based on Executives achievement of the objectives established by the CEO and/or the Compensation Committee of the Board at the beginning of the applicable fiscal year.
Payouts for each of the above metrics will be individually calculated, with the total payout to be based on the weighted achievement of each metric.
Payouts will be interpolated for performance between Threshold, Target, and Maximum levels.
For example, if the Company achieves Adjusted EBITDA equal to 95% of its budgeted target in fiscal 2024, and Executive’s achievement of individual performance objectives is determined to be at target levels for that year, the Bonus for fiscal 2024 will equal 91.67% of the target amount (41.67% with respect to Adjusted EIBTDA and 50% with respect to individual performance).
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EXHIBIT A
This Amendment to Executive Employment Agreement (“Amendment” is made as of _____________ (the “Effective Date”) by and between Michael Biard (“Executive” and Nexstar Media Group, Inc., a Delaware corporation (the “Company”). All capitalized terms used herein but not otherwise defined herein shall have the meanings set forth in that certain Executive Employment Agreement dated as of August 21, 2023, by and between Executive and the Company (the “Original Agreement”).
WHEREAS, Executive and the Company are parties the Original Agreement;
WHEREAS, Executive has relocated to Texas consistent with the terms of the Original Agreement; and
WHEREAS, Executive and the Company desire to amend the Original Agreement in connection with Executive’s relocation, consistent with the terms of the Original Agreement.
NOW, THEREFORE, in consideration of the mutual promises set forth herein and the mutual benefits to be derived from this Amendment, the parties hereto, intending to be legally bound, hereby agree as follows:
1. Covenant Not to Compete. As of the Effective Date, Paragraph 7(a) of the Original Agreement is deleted in its entirety and replaced with the following:
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, whether directly or indirectly, with or without compensation, become 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 (e.g. Sinclair Broadcast Group, Gray Television, etc.) or a diversified media company competitive with the Covered Entities (e.g. Netflix, Turner Broadcasting, Disney, Paramount Global, FOX, Comcast, Warner Bros. Discovery, Google, Apple TV) without written approval by the Company. During the one (1) year after Executive’s employment with the Company terminates, neither Executive nor any of Executive’s affiliates or representatives will hire, solicit, employ, or contract with respect to employment any officer or employee of the Covered Entities. 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.
2. Governing Law. As of the Effective Date, Paragraph 15 of the Original Agreement is deleted in its entirety and replaced with the following:
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Governing Law. This Agreement shall be governed by and construed in accordance with the internal law of the State of California 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 California to be applied.
3. Binding Arbitration. As of the Effective Date, Paragraph 19(a) of the Original Agreement is deleted in its entirety and replaced with the following:
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 as well as all claims, disputes, issues, or controversies between Executive and the Company or other employees of the Company arising out of or relating to Executive’s employment with the Company or the termination of such employment (each such claim, a “Dispute”); provided that nothing in this Paragraph 19 will prohibit a party from instituting litigation to enforce any Final Arbitration Award (as defined herein). Except as otherwise provided in the Employment 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 Texas from time to time. Questions of arbitrability (that is whether an issue is subject to arbitration under this agreement) shall be decided by the arbitrator. Likewise, procedural questions which arise out of the dispute and bear on its final disposition are matters for the arbitrator to decide.
4. Conduct of Arbitration. As of the Effective Date, Paragraph 19(d) of the Original Agreement is deleted in its entirety and replaced with the following:
Conduct of Arbitration. The arbitration will be conducted in the Dallas, Texas, metropolitan area under the AAA Rules, as modified by any written agreement among the parties 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 parties involved will use all 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 parties 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 parties or to correct manifest clerical errors.
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5. No Other Changes. All other terms and conditions of the Original Agreement will remain unchanged.
6. Headings. The headings in the Paragraphs of this Amendment are inserted for convenience only and will not constitute a part of this Agreement.
7. Severability. The parties agree that if any provision of this Amendment is under any circumstances deemed invalid or inoperative, the Amendment will be construed with the invalid or inoperative provision deleted, and the rights and obligations of the parties will be construed and enforced accordingly.
8. Governing Law. This Amendment is governed by and construed in accordance with the internal law of the State of Texas 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 Texas to be applied.
9. Amendment; Modification. This Amendment may not be amended, modified or supplemented other than in a writing signed by the parties hereto.
10. Entire Agreement. The Original Agreement as amended by this Amendment is hereby ratified in full and embodies the entire agreement between the parties hereto with respect to the subject matter hereof and thereof, and there have been and are no other agreements, representations or warranties between the parties regarding such matters.
11. Counterparts. This Amendment 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.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as of the day and year first written above.
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Michael Biard Executive |
ACCEPTED AND AGREED:
NEXSTAR MEDIA GROUP, INC.
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Perry A. Sook Chairman/CEO/President |
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