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Exhibit 10.1
GATEHOUSE MEDIA, INC.
GATEHOUSE MEDIA OPERATING, INC.
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT ("Agreement") is made and entered into
as of the 9 th day
of January, 2009 by and among GATEHOUSE MEDIA, INC., a Delaware
corporation (" GHS "), GATEHOUSE MEDIA OPERATING, INC., a
Delaware corporation (" Operating " and together with GHS,
the " Company "), and Kirk A. Davis (" Executive
").
WHEREAS in order to induce Executive to serve as the
Company’s President and Chief Operating Officer, the Company
desires to provide Executive with compensation and other benefits
on the terms and conditions set forth in this Agreement; and
WHEREAS, Executive is willing to accept such employment and
perform services for the Company on the terms and conditions herein
set forth.
NOW, THEREFORE, in consideration of the mutual promises,
covenants and agreements herein contained, together with other good
and valuable consideration the receipt of which is hereby
acknowledged, the parties hereto do hereby agree as follows:
1. SERVICES AND DUTIES . The Company hereby employs
Executive, and Executive hereby accepts employment from the Company
in the capacity of its President and Chief Operating Officer.
Executive will report directly to the Company’s Chief
Executive Officer (" CEO "). Executive shall be a full-time
employee of the Company and shall dedicate all of Executive’s
working time to the Company and shall have no other employment and
no other business ventures which are undisclosed to the Company or
which conflict with Executive’s duties under this Agreement.
Executive will perform such duties as are required by the Company
from time to time and normally associated with Executive’s
position, together with such additional duties, commensurate with
the Executive’s position, as may be assigned to the Executive
from time to time by the CEO. Notwithstanding the foregoing,
nothing herein shall prohibit Executive from (i) engaging in
personal investment activities for himself and his family that do
not give rise to any conflict of interests with the Company or its
affiliates, (ii) subject to prior approval of the Board,
accepting directorships unrelated to the Company that do not give
rise to any conflict of interests with the Company or its
affiliates, (iii) engaging in charitable and civic activities,
so long as such outside interests do not interfere with the
performance of his duties hereunder and (iv) engaging in the
activities to the extent set forth in Schedule A .
2. START DATE; EMPLOYMENT-AT-WILL . Executive understands
and agrees (i) that he is an employee-at-will, (ii) that
this Agreement does not constitute, for any reason, a guaranty or
promise of continued employment with the Company (with the
"Company" understood, for purposes of this Section 2, to
include any subsidiary of the Company and any successor in interest
to the Company or to any such subsidiary), (iii) that the
commencement of his employment with the Company does not
constitute, for any reason, a guaranty or promise of continued
employment with the Company and (iv) that the continuation of
his employment with the Company for any period of time does not
constitute, for any reason, a guaranty or promise of continued
employment with the Company. Executive acknowledges that this
Agreement has no term, and that the Company may terminate
Executive’s employment with the Company at any
time, with or without Cause (as defined below),
subject to the Company’s obligations set forth in
Section 5 below. The obligations under this Agreement shall
commence on or about January 9 , 2009 (the actual date
on which Executive is added to the Company’s payroll, the "
Effective Date "). Notwithstanding anything to the contrary
herein, in the event of any termination of Executive’s
employment, Executive shall nevertheless continue to be bound by
the terms and conditions set forth in Sections 6 and 7 hereof,
which provisions, along with Sections 8 and 9 hereof, shall survive
any termination of this Agreement.
3. COMPENSATION .
(a) Base Salary . In consideration of Executive’s
full and faithful satisfaction of Executive’s duties under
this Agreement, the Company agrees to pay to Executive a salary
initially at Executive’s current rate per annum (the "
Base Salary "). The Base Salary will be payable in such
installments as the Company pays its similarly placed employees
(but not less frequently than each calendar month), subject to
usual and customary deductions for withholding taxes and similar
charges, and customary employee contributions to health, welfare
and retirement programs in which Executive is enrolled. The Base
Salary shall be reviewed on an annual basis in accordance with
Executive’s annual performance evaluation and adjusted at the
Company’s sole discretion; provided , however ,
in no event shall the Base Salary be reduced from its level at the
time without Executive’s approval.
(b) Annual Bonus Compensation . In addition to any salary
payable pursuant to Section 3(a) above, Executive shall be
eligible to receive in respect of each fiscal year of the Company a
bonus (for each such fiscal year, a " Bonus "), based on the
achievement, as determined by the Board in its sole discretion, of
certain performance standards as agreed to by Executive and the
Board, payable in such combination of cash and shares of common
stock of GHS ("Common Stock") as determined by the Board, in its
sole discretion under the GateHouse Media, Inc. Stock Incentive
Plan (or any similar or successor plan) (the stock portion of any
such Bonus, the "Restricted Stock Grant"). The number of shares
comprising any Restricted Stock Grant shall be determined by
dividing the applicable portion of the Bonus being awarded in
Common Stock by the fair market value (as determined by the Board
in good faith) of the Common Stock on the date of grant.
The cash portion of each Bonus shall be paid to Executive within
a reasonable time after the end of the fiscal year, but in no event
later than 2 1 / 2 months
following completion of the Company’s fiscal year to which
such Bonus relates (" Outside Payment Date "); the
Restricted Stock Grant portion of each Bonus shall be made on such
date as the Board determines in its discretion, though no later
than the applicable Outside Payment Date. Notwithstanding anything
to the contrary contained herein, no Bonus in respect of any fiscal
year of the Company will be due to Executive unless he is employed
by the Company on the last day of the fiscal year in respect of
which the Bonus is awarded.
(c) Withholding . All taxable compensation payable to
Executive pursuant to this Section 3 or otherwise pursuant to
this Agreement shall be subject to customary withholding taxes and
such other employment taxes as are required under Federal law or
the law of any state or governmental body to be collected with
respect to compensation paid to an employee.
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4. BENEFITS AND PERQUISITES .
(a) Retirement and Welfare Benefits . During the Term,
Executive will be entitled to all the usual benefits offered to
employees at Executive’s level, including vacation, sick
time, participation in the Company’s medical, dental and
insurance programs, as well as the ability to participate in the
Company’s 401(k) retirement savings plan, subject to the
applicable limitations and requirements imposed by the terms of
such benefit plans, in each case in accordance with the terms of
such plans as from time to time in effect. Nothing in this
Section 4, however, shall require the Company to maintain any
benefit plan or provide any type or level of benefits to its
employees, including Executive; provided, however, during the Term,
Executive shall be entitled to not less than four ( 4
) weeks paid vacation annually; it being understood that
Executive shall be entitled to an additional week in calendar year
2009, which week was "carried over" from previous years.
(b) Reimbursement of Expenses . The Company shall
reimburse Executive for any expenses reasonably and necessarily
incurred by Executive in furtherance of Executive’s duties
hereunder, including travel, meals and accommodations, upon
submission by Executive of vouchers or receipts and in compliance
with such rules and policies relating thereto as the Company may
from time to time adopt.
5. TERMINATION . Executive’s employment with the
Company may be terminated (x) by the Company for Cause (as
defined below), effective on the date on which a written notice to
such effect is delivered to Executive; (y) by the Company at
any time without Cause, effective on the date on which a written
notice to such effect is delivered to Executive; or (z) by
Executive at any time, effective on the date on which a written
notice to such effect is delivered to the Company.
(a) For Cause Termination . If Executive’s
employment with the Company is terminated by the Company for Cause,
Executive shall not be entitled to any further compensation or
benefits other than accrued but unpaid Base Salary (payable as
provided in Section 3(b)) and accrued and unused vacation pay
through the date of such termination (collectively, the "
Accrued Benefits "). If the definition of "Cause" set forth
below conflicts with such definition in any stock incentive plan or
agreement of the Company or any of its affiliates, the definition
set forth herein shall control.
(b) Termination by Company without Cause, "Change of
Control" . If Executive’s employment is terminated by the
Company other than for Cause, including within 12 months of a
"change of control", then Executive shall be entitled to, upon
Executive’s providing the Company with a signed release of
claims in a form adopted by the Company’s Board of Directors
from time to time and subject to Executive’s continued
compliance with the provisions of Sections 6 and 7 hereof:
(i) the Accrued Benefits, (ii) an amount equal to twelve
(12) months Base Salary payable in the same manner as provided
under Section 3(a), (iii) any declared Bonus not yet
paid, and (iv) continuation of Executive’s coverage
under the Company’s medical plan at the same levels as such
benefits that have been provided to Executive, and in connection
therewith Executive shall periodically pay to the Company amounts
equivalent to that which he paid as required employee contributions
immediately prior to the date of termination, until the earlier of
(A) the period of time it takes Executive to become eligible
for the medical benefits
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program of a new employer (subject to
Section 6(a) hereof) or (B) twelve (12) months from
the date of such termination. Executive acknowledges that
executive’s termination of employment on the date of such
termination shall constitute a "qualifying event" for the purposes
of the Consolidated Omnibus Budget Reconciliation Act of 1986
("COBRA"). Executive further acknowledges on behalf of himself and
his dependents that any period with respect to which any of them
would be eligible to elect COBRA shall be reduced by the period of
post-termination medical benefit continuation provided under this
subsection. Executive acknowledges that the Company may terminate
Executive without Cause at any time, and that the Company shall
have no obligations under such circumstances to Executive beyond
the specific obligations set forth in this Section 5(b); and
any other binding agreement or arrangement between Executive and
the Company.
(c) Resignation, Death or Disability . If
Executive’s employment is terminated by reason of
Executive’s death, Disability or voluntary resignation,
Executive shall not be entitled to receive any further compensation
or benefits under this Agreement or otherwise other than the
Accrued Benefits. During any period that Executive fails to perform
his duties hereunder as a result of disability or incapacity,
Executive shall continue to receive his Base Salary and all other
benefits and all other compensation pursuant to this Agreement
unless and until his employment is terminated pursuant to this
Section 5.
(d) Definitions . For purposes of this Agreement:
"Cause" means (i) conviction of, guilty plea concerning or
confession of any felony, (ii) any act of dishonesty committed
by Executive in connection with the Company’s or its
subsidiaries’ business, (iii) any material breach by
Executive of this Agreement, after written notice thereof from the
Board is given in writing and such breach is not cured to the
satisfaction of the Company within a reasonable period of time (not
greater than 30 days) under the circumstances, (iv) any
material breach of any reasonable and lawful rule or directive of
the Company, (v) the gross or willful neglect of duties or
gross misconduct
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