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Exhibit
10.2
AMENDED AND RESTATED
EMPLOYMENT AGREEMENT
AGREEMENT by and between
LEE ENTERPRISES, INCORPORATED , a Delaware corporation (the
“Company”) and
(the “Executive”), dated as of
, 200 .
RECITAL:
The Board of Directors of the
Company (the “Board”), has determined that it is in the
best interests of the Company and its shareholders to assure that
the Company will have the continued dedication of the Executive,
notwithstanding the possibility, threat or occurrence of a Change
of Control (as defined below) of the Company. The Board believes it
is imperative to diminish the inevitable distraction of the
Executive by virtue of the personal uncertainties and risks created
by a pending or threatened Change of Control and to encourage the
Executive’s full attention and dedication to the Company
currently and in the event of any threatened or pending Change of
Control, and to provide the Executive with compensation and
benefits arrangements upon a Change of Control which ensure that
the compensation and benefits expectations of the Executive will be
satisfied and which are competitive with those of other
corporations. Therefore, in order to accomplish these objectives,
the Board has caused the Company to enter into this
Agreement.
NOW, THEREFORE, IT IS HEREBY
AGREED AS FOLLOWS:
1. Certain Definitions
. (a) The “Effective Date” shall mean the first
date during the Change of Control Period (as defined in
Section 1(b)) on which a Change of Control (as defined in
Section 2) occurs. Anything in this Agreement to the contrary
notwithstanding, if the Executive’s employment with the
Company is terminated prior to the date on which the Change of
Control occurs, and if it is reasonably demonstrated by the
Executive that such termination of employment was (i) at the
request of a third party who has taken steps reasonably calculated
to effect such Change of Control or (ii) otherwise arose in
connection with or anticipation of a Change of Control (such a
termination of employment, an “Anticipatory
Termination”) and if such Change of Control is consummated,
then for all purposes of this Agreement the “Effective
Date” shall mean the date immediately prior to the date of
such termination of employment.
(b) The “Change of
Control Period” shall mean the period commencing on the date
hereof and ending on the third anniversary of the date hereof;
provided, however, that commencing on the date one year after the
date hereof, and on each annual anniversary of such date (such date
and each annual anniversary thereof shall be hereinafter referred
to as the “Renewal Date”), the Change of Control Period
shall be automatically extended so as to terminate three years from
such Renewal Date, unless at least 60 days prior to the Renewal
Date the Company shall give notice to the Executive that the Change
of Control Period shall not be so extended.
(c) “Class B Common
Stock” shall mean the Class B common stock, par value $2.00
per share, of the Company.
(d) “Common
Shares” shall mean the shares of Common Stock and Class B
Common Stock treated as one class.
(e) “Common
Stock” shall mean the common stock, par value $2.00 per
share, of the Company.
2. Change of Control .
For the purpose of this Agreement, a “Change of
Control” shall mean:
(a) The acquisition by any
individual, entity or group (within the meaning of
Section 13(d)(3) or 14(d)(2) of the Securities Exchange Act of
1934, as amended (the “Exchange Act”)) (a
“Person”) of beneficial ownership (within the meaning
of Rule 13d-3 promulgated under the Exchange Act)
(“Beneficial Ownership” of 15% or more of the Common
Shares; provided, however, that for purposes of this subsection
(a), the following acquisitions shall not constitute a Change of
Control: (i) any acquisition directly from the Company,
(ii) any acquisition by the Company, (iii) any
acquisition by any employee benefit plan (or related trust)
sponsored or maintained by the Company or any corporation
controlled by the Company, (iv) any acquisition by a Person of
Beneficial Ownership of less than 25% of the Common Shares if such
Person reports, or is required to report such Beneficial Ownership
on Schedule 13G under the Exchange Act or Schedule 13D of the
Exchange Act (or any comparable or successor report), which
Schedule 13D does not state any present intention to (or reserve
the right to) hold such Common Shares with the purpose or effect of
changing or influencing the control of the Company, nor in
connection with or as a participant in any transaction having such
purpose or effect, or (v) any acquisition pursuant to a
transaction which complies with clauses (i), (ii) and
(iii) of subsection (c) of this Section 2;
or
(b) Individuals who, as of
the date hereof, constitute the Board (the “Incumbent
Board”) cease for any reason to constitute at least a
majority of the Board; provided, however, that any individual
becoming a director subsequent to the date hereof whose election,
or nomination for election by the Company’s shareholders, was
approved by a vote of at least a majority of the directors then
comprising the Incumbent Board shall be considered as though such
individual were a member of the Incumbent Board, but excluding, for
this purpose, any such individual whose initial assumption of
office occurs as a result of an actual or threatened election
contest with respect to the election or removal of directors or
other actual or threatened solicitation of proxies or consents by
or on behalf of a Person other than the Board; or
(c) Consummation of a
reorganization, merger, statutory share exchange or consolidation
or similar transaction involving the Company or any of its
subsidiaries, a sale or other disposition of all or substantially
all of the assets of the Company or the acquisition of assets or
stock of another entity by the Company or any of its subsidiaries
(each, a “Business Combination”), in each case, unless,
following such Business Combination, (i) all or substantially
all of the individuals and entities that were the beneficial
owners, respectively, of the Common Shares immediately prior to
such Business Combination beneficially own, directly or indirectly,
more than 60% of the Common Shares or, with respect to an entity
other than the Company, the then outstanding shares of common stock
(or, for a non-corporate entity, equivalent securities) and the
combined voting power of the then-outstanding voting securities
entitled to vote generally in the election of directors (or, for a
non-corporate entity, equivalent governing body) of the entity
resulting
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from such Business Combination
(including, without limitation, an entity which as a result of such
transaction owns the Company or all or substantially all of the
Company’s assets either directly or through one or more
subsidiaries) in substantially the same proportions as their
ownership, immediately prior to such Business Combination of the
Common Shares, (ii) no Person (excluding any corporation
resulting from such Business Combination or any employee benefit
plan (or related trust) of the Company or such corporation
resulting from such Business Combination) beneficially owns,
directly or indirectly, 20% or more of the Common Shares or, with
respect to an entity other than the Company, the then outstanding
shares of common stock of the corporation resulting from such
Business Combination (or, for a non-corporate entity, equivalent
securities) or the combined voting power of the then outstanding
voting securities of such entity, except to the extent that such
ownership existed prior to the Business Combination and
(iii) at least a majority of the members of the board of
directors (or, for a non-corporate entity, equivalent governing
body) of the entity resulting from such Business Combination were
members of the Incumbent Board at the time of the execution of the
initial agreement, or of the action of the Board, providing for
such Business Combination; or
(d) Approval by the
shareholders of the Company of a complete liquidation or
dissolution of the Company.
3. Employment Period .
The Company hereby agrees to continue the Executive in its employ,
and the Executive hereby agrees to remain in the employ of the
Company subject to the terms and conditions of this Agreement, for
the period commencing on the Effective Date and ending on the third
anniversary of such date (the “Employment
Period”).
4. Terms of Employment
. (a) Position and Duties . (i) During the
Employment Period, (A) the Executive’s position
(including status, offices, titles and reporting requirements),
authority, duties and responsibilities shall be at least
commensurate in all material respects with the most significant of
those held, exercised and assigned at any time during the 120-day
period immediately preceding the Effective Date, (B) the
Executive’s services shall be performed at the location where
the Executive was employed immediately preceding the Effective Date
or any office or location less than 35 miles from such location and
(C) the Executive shall not be required to travel on Company
business to a substantially greater extent than required
immediately prior to the Effective Date.
(ii) During the Employment
Period, and excluding any periods of vacation and sick leave to
which the Executive is entitled, the Executive agrees to devote
reasonable attention and time during normal business hours to the
business and affairs of the Company and, to the extent necessary to
discharge the responsibilities assigned to the Executive hereunder,
to use the Executive’s reasonable best efforts to perform
faithfully and efficiently such responsibilities. During the
Employment Period it shall not be a violation of this Agreement for
the Executive to (A) serve on corporate, civic or charitable
boards or committees, (B) deliver lectures, fulfill speaking
engagements or teach at educational institutions and
(C) manage personal investments, so long as such activities do
not significantly interfere with the performance of the
Executive’s responsibilities as an employee of the Company in
accordance with this Agreement. It is expressly understood and
agreed that to the extent that any such activities have been
conducted by the Executive prior to the Effective Date, the
continued conduct of such activities (or the conduct of activities
similar in nature and scope thereto)
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subsequent to the Effective Date shall
not thereafter be deemed to interfere with the performance of the
Executive’s responsibilities to the Company.
(b) Compensation .
(i) Base Salary . During the Employment Period, the
Executive shall receive an annual base salary (“Annual Base
Salary”), which shall be paid at a monthly rate, at least
equal to twelve times the highest monthly base salary paid or
payable, including any base salary which has been earned but
deferred, to the Executive by the Company and its affiliated
companies in respect of the twelve-month period immediately
preceding the month in which the Effective Date occurs. The Annual
Base Salary shall be paid at such intervals as the Company pays
executive salaries generally. During the Employment Period, the
Annual Base Salary shall be reviewed no more than 12 months after
the last salary increase awarded to the Executive prior to the
Effective Date and thereafter at least annually. Any increase in
Annual Base Salary shall not serve to limit or reduce any other
obligation to the Executive under this Agreement. Annual Base
Salary shall not be reduced after any such increase and the term
Annual Base Salary as utilized in this Agreement shall refer to
Annual Base Salary as so increased. As used in this Agreement, the
term “affiliated companies” shall include any company
controlled by, controlling or under common control with the
Company.
(ii) Annual Bonus . In
addition to Annual Base Salary, the Executive shall be awarded, for
each fiscal year ending during the Employment Period, an annual
bonus (the “Annual Bonus”) in cash at least equal to
the Executive’s highest bonus under the Company’s
annual incentive plan, or any comparable bonus under any
predecessor or successor plan, for the last three full fiscal years
prior to the Effective Date (or for such lesser number of full
fiscal years prior to the Effective Date for which the Executive
was eligible to earn such a bonus, and annualized in the case of
any pro rata bonus earned for a partial fiscal year) (the
“Recent Annual Bonus”). (If the Executive has not been
eligible to earn such a bonus for any period prior to the Effective
Date, the “Recent Annual Bonus” shall mean the
Executive’s target annual bonus for the year in which the
Effective Date occurs.) Unless the Executive shall elect to defer
the receipt of such Annual Bonus pursuant to an arrangement that
meets the requirements of Section 409A of the Internal Revenue
Code of 1986, as amended (the “Code”) and the
regulations promulgated thereunder (“Section 409A”),
each such Annual Bonus shall be paid in a single sum on or before
the 15 th day
of the third month following the end of the fiscal year in which
the services are rendered that give rise to the Annual Bonus. To
elect to defer receipt of an Annual bonus in accordance with the
preceding sentence, the Executive is required to make his or her
election to defer an Annual Bonus by no later than the last day of
the Company’s fiscal year prior to the fiscal year in which
the services are rendered which give rise to the Annual
Bonus.
(iii) Incentive, Savings
and Retirement Plans . During the Employment Period, the
Executive shall be entitled to participate in all incentive,
savings and retirement plans, practices, policies and programs
applicable generally to other peer executives of the Company and
its affiliated companies, but in no event shall such plans,
practices, policies and programs provide the Executive with
incentive opportunities (measured with respect to both regular and
special incentive opportunities, to the extent, if any, that such
distinction is applicable), savings opportunities and retirement
benefit opportunities, in each case, less favorable, in the
aggregate, than the most favorable of those provided by the Company
and its affiliated companies for the Executive under such
plans,
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practices, policies and programs as in
effect at any time during the 120-day period immediately preceding
the Effective Date or if more favorable to the Executive, those
provided generally at any time after the Effective Date to other
peer executives of the Company and its affiliated
companies.
(iv) Welfare Benefit
Plans . During the Employment Period, the Executive and/or the
Executive’s family, as the case may be, shall be eligible for
participation in and shall receive all benefits under welfare
benefit plans, practices, policies and programs provided by the
Company and its affiliated companies (including, without
limitation, medical, prescription, dental, disability, employee
life, group life, accidental death and travel accident insurance
plans and programs) to the extent applicable generally to other
peer executives of the Company and its affiliated companies, but in
no event shall such plans, practices, policies and programs provide
the Executive with benefits which are less favorable, in the
aggregate, than the most favorable of such plans, practices,
policies and programs in effect for the Executive at any time
during the 120-day period immediately preceding the Effective Date
or, if more favorable to the Executive, those provided generally at
any time after the Effective Date to other peer executives of the
Company and its affiliated companies.
(v) Expenses . During
the Employment Period, the Executive shall be entitled to receive
prompt reimbursement for all reasonable expenses incurred by the
Executive in accordance with the most favorable policies, practices
and procedures of the Company and its affiliated companies in
effect for the Executive at any time during the 120-day period
immediately preceding the Effective Date or, if more favorable to
the Executive, as in effect generally at any time thereafter with
respect to other peer executives of the Company and its affiliated
companies.
(vi) Fringe Benefits .
During the Employment Period, the Executive shall be entitled to
fringe benefits, including, without limitation, tax and financial
planning services, payment of club dues, and, if applicable, use of
an automobile and payment of related expenses, in accordance with
the most favorable plans, practices, programs and policies of the
Company and its affiliated companies in effect for the Executive at
any time during the 120-day period immediately preceding the
Effective Date or, if more favorable to the Executive, as in effect
generally at any time thereafter with respect to other peer
executives of the Company and its affiliated companies.
(vii) Office and Support
Staff . During the Employment Period, the Executive shall be
entitled to an office or offices of a size and with furnishings and
other appointments, and to exclusive personal secretarial and other
assistance, at least equal to the most favorable of the foregoing
provided to the Executive by the Company and its affiliated
companies at any time during the 120-day period immediately
preceding the Effective Date or, if more favorable to the
Executive, as provided generally at any time thereafter with
respect to other peer executives of the Company and its affiliated
companies.
(viii) Vacation .
During the Employment Period, the Executive shall be entitled to
paid vacation in accordance with the most favorable plans,
policies, programs and practices of the Company and its affiliated
companies as in effect for the Executive at any time during the
120-day period immediately preceding the Effective Date or, if more
favorable to the Executive, as in effect generally at any time
thereafter with respect to other peer executives of the Company and
its affiliated companies.
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5. Termination of
Employment . (a) Death or Disability . The
Executive’s employment shall terminate automatically upon the
Executive’s death during the Employment Period. If the
Company determines in good faith that the Disability of the
Executive has occurred during the Employment Period (pursuant to
the definition of Disability set forth below), it may give to the
Executive written notice in accordance with Section 12(b) of
this Agreement of its intention to terminate the Executive’s
employment. In such event, the Executive’s employment with
the Company shall terminate effective on the 30th day after receipt
of such notice by the Executive (the “Disability Effective
Date”), provided that, within the 30 days after such receipt,
the Executive shall not have returned to full-time performance of
the Executive’s duties. For purposes of this Agreement,
“Disability” shall mean the absence of the Executive
from the Executive’s duties with the Company on a full-time
basis for 180 consecutive business days as a result of incapacity
due to mental or physical illness which is determined to be total
and permanent by a physician selected by the Company or its
insurers and acceptable to the Executive or the Executive’s
legal representative.
(b) Cause . The
Company may terminate the Executive’s employment during the
Employment Period for Cause. For purposes of this Agreement,
“Cause” shall mean:
(i) the willful and continued
failure of the Executive to perform substantially the
Executive’s duties with the Company or one of its affiliates
(other than any such failure resulting from incapacity due to
physical or mental illness or following the Executive’s
delivery of a Notice of Termination for Good Reason), after a
written demand for substantial performance is delivered to the
Executive by the Board or the Chief Executive Officer of the
Company which specifically identifies the manner in which the Board
or Chief Executive Officer of the Company believes that the
Executive has not substantially performed the Executive’s
duties, or
(ii) the willful engaging by
the Executive in illegal conduct or gross misconduct which is
materially and demonstrably injurious to the Company.
For purposes of this
provision, no act or failure to act, on the part of the Executive,
shall be considered “willful” unless it is done, or
omitted to be done, by the Executive in bad faith or without
reasonable belief that the Executive’s action or omission was
in the best interests of the Company. Any act, or failure to act,
based upon authority given pursuant to a resolution duly adopted by
the Board, or if the Company is not the ultimate parent corporation
of the affiliated companies and is not publicly-traded, the board
of directors of the ultimate parent of the Company (the
“Applicable Board”) or upon the instructions of the
Chief Executive Officer of the Company or a senior officer of the
Company or based upon the advice of counsel for the Company shall
be conclusively presumed to be done, or omitted to be done, by the
Executive in good faith and in the best interests of the Company.
The cessation of employment of the Executive shall not be deemed to
be for Cause unless and until there shall have been delivered to
the Executive a copy of a resolution duly adopted by the
affirmative vote of not less than three-quarters of the entire
membership of the Applicable Board (excluding the Executive, if the
Executive is a member of the Applicable Board) at a meeting of the
Applicable Board called and held for such purpose (after reasonable
notice is provided to the Executive and the Executive is given an
opportunity, together
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with counsel for the Executive, to be
heard before the Applicable Board), finding that, in the good faith
opinion of the Applicable Board, the Executive is guilty of the
conduct described in subparagraph (i) or (ii) above, and
specifying the particulars thereof in detail.
(c) Good Reason . The
Executive’s employment may be terminated during the
Employment Period by the Executive for Good Reason or by the
Executive voluntarily without Good Reason, in accordance with the
notice requirements of Section 5(d). For purposes of this
Agreement, “Good Reason” means actions taken by the
Company resulting in a material negative change in the employment
relationship. For these purposes, a “material negative change
in the employment relationship” shall include, without
limitation:
(i) the assignment to the
Executive of duties materially inconsistent with the
Executive’s position (including status, offices, titles and
reporting requirements), authority, duties or responsibilities as
contemplated by Section 4(a) of this Agreement, or a material
diminution in such position, authority, duties or responsibilities
or a material diminution in the budget over which the Executive
retains authority;
(ii) a material diminution in
the authorities, duties or responsibilities of the person to whom
the Executive is required to report, including a requirement that
the Executive report to an officer or employee instead of reporting
directly to the Applicable Board;
(iii) a reduction of five
(5) percent or greater of (A) any element of the
compensation and benefits required to be provided to the Executive
in accordance with any of the provisions of Section 4(b);
(B) the Executive’s aggregate annual cash compensation,
which for this purpose shall include, without limitation, Base
Salary and Annual Bonus; or (C) the benefits, in the
aggregate, required to be provided to the Executive in accordance
with the provisions of this Agreement;
(iv) the Company’s
requiring the Executive (A) to be based at any office or
location other than as provided in Section 4(a)(i)(B) hereof
resulting in a material increase in the Executive’s commute
to and from the Executive’s primary residence (for this
purpose an increase in the Executive’s commute by 30 miles or
more shall be deemed material) or (B) to be based at a
location other than the principal executive offices of the Company
if the Executive was employed at such location immediately
preceding the Effective Date;
(v) any other action or
inaction that constitutes a material breach by the Company of this
Agreement; or
(vi) any failure by the
Company to comply with and satisfy Section 11(c) of this
Agreement.
In order to invoke a
termination for Good Reason, the Executive shall provide written
notice to the Company of the existence of one or more of the
conditions described in clauses (i) through (vi) within
90 days following the Executive’s knowledge of the initial
existence of such condition or conditions, and the Company shall
have 30 days following receipt of such written notice
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(the “Cure Period”) during
which it may reme
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