EXHIBIT 10.1
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THE SECURITIES REPRESENTED BY THIS NOTE HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933 OR STATE LAW REQUIREMENTS. THE SECURITIES MAY NOT BE
TRANSFERRED EXCEPT IN ACCORDANCE WITH THE REGISTRATION UNDER SUCH ACT AND
APPLICABLE STATE REQUIREMENTS OR AN EXEMPTION THEREFROM.
PROMISSORY NOTE AND STOCK PLEDGE AGREEMENT
$1,985,774 June 19, 2007
FOR VALUE RECEIVED, the undersigned, Xxxxxx Xxx (the "Obligor"),
hereby unconditionally promises to pay to the order of BROADCASTING MEDIA
PARTNERS, INC., a Delaware corporation (together with its successors,
transferees or assigns, collectively referred to as the ("Company")), in lawful
money of the United States, the principal amount (the "principal") set forth on
the upper left hand corner of this promissory note (this "Note", together with
the stock pledge, this "Promissory Note and Stock Pledge Agreement"). The unpaid
principal balance outstanding shall bear interest at an annual rate equal to
4.59%, which interest shall be: (a) adjusted and compounded on a semi-annual
basis and (b) due and payable as provided below. The entire principal balance of
the Note together with accrued interest shall be due and payable on the date
which is six years from the date hereof, unless sooner paid in accordance the
terms hereof.
Installments of payments of principal and interest shall be due and
payable on the date on which the Company pays the Obligor his annual cash bonus
commencing with the annual bonus for the Company's fiscal year beginning January
1, 2008 and each fiscal year thereafter. The amount payable on each bonus
payment date shall equal one-third (1/3) of the annual bonus paid to the
Obligor, and the Company shall be entitled to withhold such payment from the
annual bonus otherwise payable to Obligor. Any payments in respect of this Note
shall first be applied to the payment of accrued interest, and then to unpaid
principal amount. Notwithstanding the foregoing, prior to the date on which the
Note is paid in full, the Company shall declare this Note (or a portion of this
Note) immediately due and payable, without notice or demand, upon ten (10) days
after the date that is 18 months following the date on which Obligor's
employment with the Company has terminated for any reason. To the extent Obligor
sells all, or any portion, of the Shares (as defined below), the Obligor shall
use the after-tax proceeds of such sale of the Shares towards the payment of any
unpaid principal amount and any accrued interest thereon; provided that, to the
extent shares of Company stock owned by the Obligor, including the Shares, are
sold to the Company, any payment due from the Company in respect of any such
sale, net of applicable taxes, shall first be applied to payment of the unpaid
balance of the principal amount of the Note, together with interest accrued
thereon; provided that such application shall first be applied against any
portion of the purchase price which otherwise would be paid by a note (last
installment of the note first) and then any cash payment.
The entire unpaid balance of the principal amount, together with
interest accrued thereon, immediately shall become due and payable in full,
without notice or demand, upon the occurrence of any of the following events:
(i) the filing of a petition in bankruptcy or reorganization (A) by Obligor
under any law of the United States or any state for the relief of debtors, or
(B) against Obligor by any creditor of Obligor, (ii) the application for, or
appointment of, a receiver for the property of, or the offering of a composition
or extension to creditors by, or the making or attempted making of an assignment
for the benefit of creditors by, Obligor, or (iii) the failure of Obligor to
make any principal or interest payment required hereunder within ten (10)
calendar days after such payment is due.
Notwithstanding any other provision of this Promissory Note and
Stock Pledge Agreement, in the event the Company or any affiliate thereof
notifies Obligor of its intent to file a registration statement with the
Securities and Exchange Commission and that as a result of such filing,
applicable law requires that all amounts owing hereunder shall not remain
outstanding, all outstanding amounts owing under this Promissory Note and Stock
Pledge Agreement, including all outstanding principal plus accrued interest to
the date of repayment, will become immediately payable in full on the earlier of
(i) the date immediately preceding the date of the filing of such registration
statement and (ii) 30 days following the receipt by Obligor of such
notification.
Obligor's payment obligations hereunder shall be secured by a pledge
of one hundred sixty thousand eight hundred forty-eight (160,848) shares of the
Class A-1 Common Stock of the Company (the "Shares"). Obligor hereby grants a
first priority security interest in, and pledges, the Shares and all proceeds
thereon (the pledged Shares, together with the property described in the next
paragraph of this Promissory Note and Stock Pledge Agreement, and all proceeds
of the foregoing, being referred to as the "Pledged Collateral") to the Company
to secure the satisfaction by Obligor of all its obligations to the Company
under this Promissory Note and Stock Pledge Agreement; provided, however, that
unless and until Obligor defaults on an obligation hereunder and subject to the
terms of any equity award agreement, equity plan or stockholders agreement
governing the terms and conditions of the Shares, Obligor shall be entitled to
all cash dividends and cash distributions with respect to the pledged Shares,
free and clear of the security interest granted hereby. This pledge shall be
governed by all applicable provisions of, and the Company shall have all rights
and remedies with respect to the Pledged Collateral of a secured party under,
the Uniform Commercial Code as in effect in the State of New York. Concurrently
with the delivery of this Promissory Note and Stock Pledge Agreement to the
Company, Obligor has delivered to the Company the certificates representing the
Shares pledged hereby, together with a stock power therefore duly executed by
Obligor in blank. Obligor agrees to deliver to the Company such other documents
of transfer as the Company may from time to time request to enable the Company
to transfer the pledged Shares into its name or the name of its nominee and to
perfect the Company's security interest in the Pledged Collateral under
applicable laws.
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Obligor agrees that he will not (i) sell or otherwise dispose of, or
grant any option with respect to, any of the Pledged Collateral without the
prior written consent of the Company or (ii) create or permit to exist any lien
upon or with respect to any of the Pledged Collateral, except for the security
interest granted hereby. Notwithstanding the foregoing, Obligor shall be
entitled to arrange with the Company for a sale by Obligor of pledged Shares,
free of the security interest granted hereby, provided that (A) such sale is
permitted pursuant to the Company 2007 Equity Incentive Plan (the "Equity
Plan"), Restricted Stock Award Agreement between Obligor and the Company which
covers the pledged Shares (the "Restricted Stock Award Agreement") or the
Stockholders Agreement by and among the Company, Broadcasting Media Partners
Holdings, Inc., Umbrella Acquisition, Inc. and certain stockholders of the
Company, dated as of March 29, 2007 (the "Stockholders Agreement") and (B)
Obligor directs that the after-tax proceeds of such sale first be used to
satisfy his obligations pursuant to the second paragraph of this Promissory Note
and Stock Pledge Agreement (as described above) and makes such additional
agreements to satisfy such obligations in full as may be required by the
Company.
In the event that, during the term of this Promissory Note and Stock
Pledge Agreement, any stock dividend, reclassification, readjustment or other
change is declared or made in the capital structure of the Company, then the
Company shall have a security interest in all securities (whether shares of
common stock or other securities) issued to or acquired by Obligor by reason of
such event, and such securities shall become part of the Pledged Collateral.
During the term of this Promissory Note and Stock Pledge Agreement
and so long as the Pledged Collateral is owned by Obligor, subject to the terms
of the Equity Plan, Restricted Stock Award Agreement and Stockholders Agreement,
Obligor shall have the right to vote the pledged Shares and exercise any voting
rights pertaining to such Pledged Collateral, and to give consents,
ratifications and waivers with respect thereto.
Obligor hereby acknowledges that the Company's right to recover
amounts payable hereunder shall not be limited to the Pledged Collateral and
that the Company shall have full recourse against any other assets of Obligor.
If for any reason Obligor fails to pay the full amount due hereunder, Obligor's
maximum personal liability shall be an amount equal to 100% of the principal
amount, together with accrued interest thereon.
All or any portion of the principal amount evidenced by this
Promissory Note and Stock Pledge Agreement may be prepaid at any time without
premium or penalty, and any such payment may be made in cash, in shares of Class
A-1 Common Stock of the Company (which shares shall be valued at their Fair
Market Value (as defined in the Equity Plan (as defined below)) at the time of
such payment), other securities of the Company (valued at fair market value), or
any other consideration as the parties shall agree.
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No failure on the part of the Company to exercise, and no delay in
exercising, any right, remedy or power hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise by the Company of any right,
remedy or power hereunder preclude any other or future exercise thereof, or the
exercise of any other right, remedy or power. The rights and remedies as
expressly provided hereunder are cumulative and not exclusive of any other
rights, remedies or powers that the Company would otherwise have.
The Obligor hereby waives to the extent not prohibited by applicable
law (i) all presentments, demands for performance, notices of nonperformance
(except to the extent, if any, required by the provisions hereof), protests,
notices of protest and notices of dishonor, (ii) any requirement of diligence or
promptness on the part of the Company in the enforcement of its rights under
this Note, (iii) all notices of every kind which may be required to be given by
any statute or rule of law, (iv) any valuation, stay, appraisement or redemption
laws and (v) any defense of any kind (other than payment) which may now or
hereafter have with respect to its liability under this Promissory Note and
Stock Pledge Agreement.
In the event of default under this Promissory Note and Stock Pledge
Agreement, the Company shall have all rights and remedies provided at law and in
equity.
No interest or other amount shall be payable in excess of the
maximum permissible rate under applicable law, and any interest or other amount
which is paid in excess of such maximum rate shall be deemed to be a payment of
principal hereunder.
This Promissory Note and Stock Pledge Agreement may not be changed,
modified or terminated, except by an agreement in writing signed by both
parties.
All notices, declarations and other communications hereunder shall
be in writing, hand delivered (including delivery by a courier service) as
follows:
If to the Company,
Broadcasting Media Partners, Inc.
c/o Univision Communications, Inc.
1999 Avenue of the Stars, Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attn: General Counsel
with a copy to (which shall not constitute notice):
Weil, Gotshal & Xxxxxx LLP
00 Xxxxxxx Xxxxx, 00xx Xxxxx
Xxxxxxxxxx, Xxxxx Xxxxxx 00000
Facsimile No.: (000) 000-0000
Attention: Xxxxx X. Xxxxxxx, Esq.
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If to the Obligor:
The last address shown on records of the Company.
with a copy to (which shall not constitute notice):
Proskauer Rose LLP
0000 Xxxxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxx, Esq.
or to such other address as the Company or the Obligor shall designate to the
other party from time to time in writing delivered in like manner. Notices shall
be effective upon receipt.
This Promissory Note and Stock Pledge Agreement shall be governed
by, and construed in accordance with, the laws of the State of New York, without
giving effect to the principles of conflict of laws thereof. If any term or
provision of the Promissory Note and Stock Pledge Agreement shall be held
invalid, illegal or unenforceable, the validity of all other terms and
provisions hereof shall in no way be affected thereby.
This Promissory Note and Stock Pledge Agreement shall be binding
upon the successors and assigns of Obligor and shall inure to the benefit of the
Company and its successors and assigns.
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THIS PROMISSORY NOTE AND STOCK PLEDGE AGREEMENT SHALL BE DEEMED TO BE A
CONTRACT MADE UNDER AND GOVERNED BY THE INTERNAL LAWS OF THE STATE OF NEW YORK.
THE OBLIGOR HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES TO THE
FULLEST EXTENT PERMITTED BY LAW ANY RIGHTS IT MAY HAVE TO A TRIAL BY JURY IN
RESPECT OF ANY LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER, OR IN
CONNECTION WITH, THIS NOTE AND STOCK PLEDGE AGREEMENT, OR ANY COURSE OF CONDUCT,
COURSE OF DEALING, STATEMENTS (WHETHER ORAL OR WRITTEN) OR ACTIONS OF THE
COMPANY OR THE OBLIGOR IN CONNECTION THEREWITH. THE OBLIGOR ACKNOWLEDGES AND
AGREES THAT IT HAS RECEIVED FULL AND SUFFICIENT CONSIDERATION FOR THIS PROVISION
AND THAT THIS PROVISION IS A MATERIAL INDUCEMENT FOR THE COMPANY MAKING LOANS TO
THE OBLIGOR.
OBLIGOR: Xxxxxx Xxx
/s/ Xxxxxx Xxx
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(Signature)
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COMPANY SIGNATURE PAGE The Company hereby acknowledges, accepts and agrees as to
its obligations pursuant to paragraph 2 of this Promissory Note and Stock Pledge
Agreement.
BROADCASTING MEDIA PARTNERS, INC.
By:/s/ Xxxxxx X. Xxxxxx
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Title: Senior Executive Vice President,
Chief Strategic Officer and
Chief Financial Officer
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