EXHIBIT 10.11
XXXXXXX X. XXXXXXXXXX
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT, between Telemundo Holdings, Inc., a
Delaware corporation (the "Company"), and Xxxx Xxxxxxxxxx (the "Executive"),
dated as of November 17, 1999.
1. EMPLOYMENT AND TERM. The Company hereby agrees to employ Executive,
and Executive hereby agrees to enter into such employment as President of the
Company reporting to the Board of Directors of the Company (or, at the
discretion of the Board, the Chief Executive Officer of the Company) for the
period commencing on November 17, 1999 and ending on November 16, 2002, subject,
however, to earlier termination as provided in Section 9 herein (the "Employment
Period"). The Executive also agrees, during the Employment Period, to serve
(without additional compensation) on the Board of Directors (and appropriate
committees thereof) of the Company, if requested by the Board of Directors.
Executive will have duties and responsibilities consistent with his office.
2. TERMS OF EMPLOYMENT. (a) During the Employment Period, Executive
agrees to devote all but a DE MINIMUS amount of his business time and attention
to the business and affairs of the "Telemundo Holdings Group" (as defined below)
and to use his best efforts to perform faithfully and efficiently such
responsibilities. For purposes of this Agreement, the term "Telemundo Holdings
Group" shall mean any and all of the Company and any of its current or future
divisions or subsidiaries.
(b) During the first 12 months of the Employment Period, the
principal place of employment of Executive shall be Los Angeles, California. In
the sole discretion of the Board of Directors of the Company, Executive may be
asked to change his principal place of employment to Hialeah, Florida at any
time after the first 12 months of the Employment Period. Executive understands
and agrees that in connection with his employment hereunder, he may be required
to travel extensively on behalf of the Telemundo Holdings Group.
3. BASE SALARY. During the Employment Period Executive shall receive a
base salary (the "Base Salary") as follows. For the period of the Employment
Period beginning on November 17, 1999 and ending on November 16, 2000, the Base
Salary shall be payable to Executive at an annual rate of $400,000. For the
period of the Employment Period beginning on November 17, 2000 and ending on
November 16, 2001, the Base Salary shall be payable to Executive at an annual
rate of $425,000. For the period of the Employment Period beginning on November
17, 2001 and ending on the last day of the Employment Period, the Base Salary
shall be payable to Executive at an annual rate of $450,000. The Base Salary
shall be payable consistent with the executive payroll practices of the Company.
4. BONUS. (a) For each of the 2000, 2001 and 2002 fiscal years (or
portion thereof) during the Employment Period, Executive will be eligible to
receive, in addition to the Budget Bonus or Revenue Bonus described below, a
performance bonus in an amount equivalent to not more than twenty-five percent
of Executive's then current Base Salary ("Performance Bonus"). All Performance
Bonuses shall be awarded in the sole discretion of the Compensation Committee
based upon its assessment of the Executive's performance of his duties hereunder
during the applicable fiscal year and without regard to the financial condition
or performance of the Company. Executive shall receive the Performance Bonuses
only if Executive is employed by the Company on the last
day of the fiscal year to which the Performance Bonus relates or, with respect
to the 2002 fiscal year, the last day of the Employment Period, all subject to
the provisions of Sections 9(a), 9(c) and 9(d).
(b) For each of the 2000, 2001 and 2002 fiscal years (or portion
thereof) during the Employment Period, Executive will be paid an additional
bonus (the "Budget Bonus") based upon the Company's achievement of targets with
respect to its earnings, before interest, taxes, depreciation and amortization
("EBITDA") during such fiscal year (which fiscal year target shall not be
greater than the Company's budget for EBITDA for such fiscal year), as follows.
During the first quarter of each such fiscal year, the Compensation Committee in
consultation with Executive shall establish a reasonably attainable budgeted
EBITDA target (the "EBITDA Target") for such fiscal year and notify Executive in
writing of the EBITDA Target. Pursuant to subsection (d), the Committee shall
determine the Company's EBITDA for such fiscal year and shall notify Executive
of its determination of the amount of the Company's EBITDA for such fiscal year
and of the amount of Executive's Budget Bonus for such year, which Budget Bonus
shall be equal to (i) no less than 25% of Executive's Base Salary for such
fiscal year if the Company's EBITDA is 100% or more of the EBITDA Target, (ii)
no less than 12.5% of Executive's Base Salary for such fiscal year if the
Company's EBITDA is 90% of the EBITDA Target and (iii) pro rated between 12.5%
and 25% of Executive's Base Salary for such fiscal year if the Company's EBITDA
is more than 90% of the EBITDA Target but less than 100% of the EBITDA Target.
Executive shall be paid no Budget Bonus for any such fiscal year in which the
Company's EBITDA is less than 90% of the EBITDA Target for such fiscal year.
(c) For each of the 2000, 2001 and 2002 fiscal years (or portion
thereof) during the Employment Period, Executive will be paid an additional
bonus (the "Revenue Bonus") based upon the Company's achievement of targets with
respect to its Net Revenue (as defined below and determined in accordance with
Generally Accepted Accounting Principles and the Company's standard practices
and procedures) during such fiscal year (which fiscal year target shall not be
greater than the Company's budget for Net Revenue for such fiscal year), as
follows (the Performance Bonus, Revenue Bonus and the Budget Bonus are
hereinafter collectively referred to as the "Bonus"). During the first quarter
of each such fiscal year, the Compensation Committee in consultation with
Executive shall establish a reasonably attainable budgeted Net Revenue target
(the "Net Revenue Target") for such fiscal year and notify Executive in writing
of the Net Revenue Target. Pursuant to subsection (d), the Committee shall
determine the Company's Net Revenue for such fiscal year and shall notify
Executive of its determination of the amount of the Company's Net Revenue for
such fiscal year and of the amount of Executive's Revenue Bonus for such year,
which Revenue Bonus shall be equal to (i) no less than 25% of Executive's Base
Salary for such fiscal year if the Company's Net Revenue is 100% or more of the
Net Revenue Target, (ii) no less than 12.5% of Executive's Base Salary for such
fiscal year if the Company's Net Revenue is 92.5% of the Net Revenue Target and
(iii) pro rated between 12.5% and 25% of Executive's Base Salary for such fiscal
year if the Company's Net Revenue is more than 92.5% of the Net Revenue Target
but less than 100% of the Net Revenue Target. Executive shall be paid no Revenue
Bonus for any such fiscal year in which the Company's Net Revenue is less than
92.5% of the Net Revenue Target for such fiscal year. For purposes of this
Agreement, the term "Net Revenue" means the Company's revenue net of the
Company's formula-based allocation of advertising revenue generated pursuant to
that certain umbrella affiliation agreement between Telemundo Group, Inc. and
Telemundo Network Group LLC dated as of August 12, 1998.
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(d) Each Budget Bonus and/or Revenue Bonus shall be paid upon
certification by the Compensation Committee (which the Compensation Committee
will make within 30 days after the certification by the Company's independent
auditors of the financial statements for such fiscal year) that the performance
targets entitling Executive to a Budget Bonus and/or Revenue Bonus with respect
to such fiscal year have been met. If the Compensation Committee so certifies,
the Budget Bonus and/or Revenue Bonus will be paid promptly but in no event
later than ten days after such certification.
(e) For purposes of this Agreement, the "Compensation Committee"
shall mean a committee consisting of at least two (2) directors of the Company,
each of whom is a "non-employee director" within the meaning of Rule 16b-3 under
the Securities Exchange Act of 1934, as amended, and an "outside director"
within the meaning of Section 162(m) of the Internal Revenue Code of 1986, as
amended.
5. EMPLOYEE BENEFIT PLANS; ETC. (a) Executive shall be entitled during
the Employment Period to participate in all retirement, disability, pension,
savings, medical, insurance and other plans of the Company generally available
to senior executives (other than any performance based bonus or stock
appreciation rights (or similar) plans, subject to Section 7 below). Executive
shall be entitled to paid vacations during each year of his employment
consistent with the Company's vacation policy for executive level employees
(which shall provide for at least 20 vacation days per year).
(b) The Company agrees that it will provide Executive, in his
capacity as an officer and, if applicable, as a director, with indemnification
rights which are not materially less favorable to the Executive, in his capacity
as an officer and as a director, than those provided as of the date of this
Agreement in the By-laws of the Company.
6. [Intentionally omitted]
7. STOCK APPRECIATION RIGHTS PROGRAM. The Company shall give good
faith consideration to the implementation, on or before expiration of the first
12 months of the Employment Period, of an equity participation program for
senior executives of the Company involving stock appreciation rights ("Stock
Appreciation Rights Program"); PROVIDED, HOWEVER, that the final decision with
regard to such program implementation, if any, shall be in the Company's sole
discretion. In the event such program is implemented, Executive shall be granted
stock appreciation rights consistent with his position in the Company and
Executive's vesting schedule shall be one (1) year shorter than the average
vesting schedule applicable to all other senior executives of the Company.
8. EXPENSES. The Company shall reimburse Executive for all reasonable
expenses properly incurred by him in accordance with the policies of the
Telemundo Holdings Group in effect from time to time, on behalf of the Telemundo
Holdings Group in the performance of his duties hereunder, provided that proper
vouchers are submitted to the Company by Executive evidencing such expenses and
the purposes for which the same were incurred. Such expenses shall include,
without limitation, all reasonable and actual moving expenses incurred by
Executive in connection with his relocation to South Florida, including plane
fare and temporary housing expenses while locating a permanent residence, and,
in connection with such relocation, the following non-moving expenses: any real
estate commission payable by Executive in connection with the sale of his
residence and any closing costs payable by Executive in connection with the
purchase of his new
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residence. In the event the Employment Period is not extended after the third
year or terminates for any reason other than Cause, Failure to Relocate or
resignation without Good Reason (except for a resignation without Good Reason
within six months after a Change of Control Transaction (as defined below)) and
in connection therewith Executive (or his family in the case of Executive's
death) relocates elsewhere from South Florida within six (6) months after
November 16, 2002 or the date of termination, if sooner, the Company shall
reimburse Executive for all reasonable and actual moving expenses incurred by
Executive in connection with such relocation.
9. TERMINATION. The Company shall have the right to terminate
Executive's employment only as expressly provided in this Agreement.
(a) DEATH OR DISABILITY. Except as otherwise provided herein,
this Agreement shall terminate automatically upon Executive's death.
The Company may terminate this Agreement after having established
Executive's "Disability" (as defined below), by giving Executive written notice
of its intention to terminate Executive's employment. For purposes of this
Agreement, "Disability" means Executive's inability to perform substantially all
his duties and responsibilities to the Telemundo Holdings Group by reason of a
physical or mental disability or infirmity (i) for a continuous period of twelve
consecutive months or (ii) at such earlier time as Executive submits medical
evidence satisfactory to the Company or the Board of Directors determines in
good faith and upon competent medical advice that Executive has a physical or
mental disability or infirmity that will likely prevent Executive from
substantially performing his duties and responsibilities for twelve consecutive
months or longer. The date of Disability shall be the day on which Executive
receives notice from the Company pursuant to this Section 9.
Upon termination of Executive's employment because of death or
Disability, the Company shall pay Executive or his estate or other personal
representative (i) within 60 days, the amount of Executive's Base Salary earned
up to the date of death or Disability, as the case may be, (ii) all benefits and
other items referred to in Sections 5 and 8 which are due up to the date of
death or Disability and (iii) when otherwise due in accordance with the
provisions of Section 4, the Bonus, if any, earned for the year in which such
termination occurred, without regard to whether Executive is an employee of the
Company on the last day of such fiscal year.
(b) CAUSE AND RESIGNATION WITHOUT GOOD REASON. The Company shall
have the right to terminate Executive's employment for "Cause" as defined below.
Except as provided in Section 15 herein, (i) upon termination of Executive's
employment for Cause or (ii) upon Executive's resigning as an employee without
Good Reason, this Agreement shall terminate and the Executive shall not be
entitled to receive any compensation or other benefits other than (x) Base
Salary earned up to the date of termination or resignation and (y) all benefits
and other items referred to in Sections 5 and 8 which are due up to the date of
termination or resignation. Notwithstanding anything herein to the contrary,
Executive shall have the right to resign without Good Reason and terminate this
Agreement at any time within six months after a "Change of Control Transaction"
(for purposes of this Agreement, a Change of Control Transaction means the sale,
directly or indirectly, of 90% or more of either the stock or assets of the
Company) occurs, without any obligation or liability to the Company, effective
upon thirty days' prior written notice to the Company, in which event this
Agreement shall terminate and the Executive shall not be entitled to receive any
compensation or other benefits, except that the Company shall (x) through
November 16, 2002 (the "Entitlement Date") continue to pay to Executive the Base
Salary in effect immediately prior to the
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date of resignation, such payments to be made in installments at the times such
amounts would have been paid if the Agreement had not been so terminated, (y)
pay to the Executive, when otherwise due in accordance with Section 4, the
Budget Bonus and/or Revenue Bonus, if any, earned for the fiscal year in which
such termination occurs, without regard to whether Executive is employed on the
last day of such fiscal year, multiplied by a fraction, the numerator of which
is equal to the number of days elapsed between the beginning of the fiscal year
in which such termination occurred and the termination date, and the denominator
of which is equal to 365 days and (z) through November 16, 2002 continue
Executive's benefits and other items referred to in Section 5 or, to the extent
the Company is legally unable to provide any such benefits or other items as a
result of Executive no longer being an employee, reimburse Executive for his
cost (not to exceed the actual cost to the Company if he were still an employee)
of obtaining the equivalent coverage and benefits.
For purposes of this Agreement, "Cause" shall mean (i) the
willful and continued failure by Executive to perform substantially all his
duties to the Company or the failure by the Executive to comply with the
reasonable written policies and procedures of the Company and the directives of
the Board of Directors (other than any such failure resulting from his death or
Disability), in each case after being given written notice by the Board of a
failure to perform or comply (which notice specifically identifies the manner in
which Executive has failed to perform or comply) and a reasonable opportunity to
cure such noncompliance or nonperformance; (ii) the willful misconduct by
Executive in the performance of his duties to the Company, provided that (for
purposes of clauses (i) and (ii) only and not for any other purpose or
interpretation of this Agreement) an act shall be considered "willful" only if
done in bad faith and not in the best interests of the Company; (iii) the
grossly negligent performance by Executive of his duties to the Company; (iv)
the conviction of Executive by a court of competent jurisdiction of the
commission of (x) a felony or (y) a crime involving moral turpitude; or (v) a
material breach by Executive of Sections 10 or 11 hereof.
(c) TERMINATION WITHOUT CAUSE. Notwithstanding anything to the
contrary contained herein, the Company shall have the right to terminate the
employment of Executive at any time without Cause. Subject to subsection (e)
below, upon a termination without Cause, except as provided in Section 15, this
Agreement shall terminate and the Executive shall not be entitled to receive any
compensation or other benefits, except that the Company shall (i) through the
Entitlement Date continue to pay to Executive the Base Salary in effect
immediately prior to the date of termination, such payments to be made in
installments at the times such amounts would have been paid if the Agreement had
not been so terminated, and (ii) pay to the Executive, when otherwise due in
accordance with Section 4, the Bonus, if any, earned for the fiscal year in
which such termination occurs, without regard to whether Executive is employed
on the last day of such fiscal year, and (iii) through the Entitlement Date
continue Executive's benefits and other items referred to in Section 5 or, to
the extent the Company is legally unable to provide any such benefits or other
items as a result of Executive no longer being an employee, reimburse Executive
for his cost (not to exceed the actual cost to the Company if he were still an
employee) of obtaining the equivalent coverage and benefits. During
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the period in which, Executive receives the payments required by the immediately
preceding sentence, Executive shall be subject to the provisions set forth in
Sections 10 and 11 below (provided, however, in no event shall the restrictions
contained in Sections 10 and 11 continue for more than one year beyond the
termination of Executive's employment). In the event that Company elects not to
extend the Employment Period, then, absent any termination pursuant to Section
9, the Company shall continue paying to Executive his Base Salary during the
period, if any, beginning on the date Executive's employment terminates and
ending on the date which is six months after the date on which the Company gives
its notice of non-renewal to Executive. During the period in which Executive
receives the payments required by the immediately preceding sentence, Executive
shall be subject to the provisions set forth in Sections 10 and 11 below
(provided, however, in no event shall the restrictions contained in Sections 10
and 11 continue for more than one year beyond the termination of Executive's
employment).
(d) TERMINATION FOR GOOD REASON.
(i) Executive shall have the right to terminate his employment
under this Agreement upon the occurrence of any event that constitutes Good
Reason by giving written notice to the Company within thirty days of the
occurrence of such alleged event. Such termination shall take effect no earlier
than six months from the date of such notice. "Good Reason" means any of the
following: (A) a Designated Relocation (as defined below), (B) a Failure to
Adopt SAR Plan (as defined below), (C) Bankruptcy of the Company or (D) any
Other Good Reason Event (as defined below); PROVIDED, HOWEVER, that an Other
Good Reason Event shall not be deemed to have occurred prior to the giving of
written notice by the Executive to the Company generally describing the alleged
Good Reason, and the actions the Executive believes are necessary to cure such
alleged Good Reason, and the Company's failure to so cure within 15 days of
receipt of such notice. The giving of such notice and the action or failure to
take action by the Company shall be irrelevant in determining whether a Good
Reason has in fact occurred. Upon a termination for Good Reason, except as
provided in Section 15, this Agreement shall terminate and the Executive shall
not be entitled to receive any compensation or other benefits, except that the
Company shall (i) through the date which is six months after the date of
termination continue to pay to Executive the Base Salary in effect immediately
prior to the date of termination, such payments to be made in installments at
the times such amounts would have been paid if the Agreement had not been so
terminated, (ii) pay to the Executive, when otherwise due in accordance with
Section 4, the Budget Bonus and/or Revenue Bonus, if any, earned for the fiscal
year in which such termination occurs, without regard to whether Executive is
employed on the last day of such fiscal year, multiplied by a fraction, the
numerator of which is equal to the number of days elapsed between the beginning
of the fiscal year in which such termination occurred and the termination date,
and the denominator of which is equal to 365 days and (iii) through the date
which is six months after the date of termination continue Executive's benefits
and other items referred to in Section 5 or, to the extent the Company is
legally unable to provide any such benefits or other items as a result of
Executive no longer being an employee, reimburse Executive for his cost (not to
exceed the actual cost to the Company if he were still an employee) of obtaining
the equivalent coverage and benefits. During such period, Executive shall be
subject to the provisions set forth in Sections 10 and 11 below (provided,
however, in no event shall the restrictions contained in Sections 10 and 11
continue for more than one year beyond the termination of Executive's
employment).
(ii) A "Designated Relocation" means any of the following: (A)
the Company requiring Executive's work location to be other than within thirty
(30) miles of the Company's current corporate offices in Los Angeles,
California; PROVIDED, HOWEVER, that neither a request or requirement by the
Company that Executive change his principal place of employment to Hialeah,
Florida pursuant to Section 2(b) nor a termination of Executive's employment for
Failure to Relocate (as defined below) shall constitute a Designated Relocation,
or (B) in the event that the Executive relocates to Hialeah, Florida, the
Company requiring Executive's work location to be other than within thirty (30)
miles of the Company's current corporate offices in Hialeah, Florida.
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(iii) A "Failure to Adopt SAR Plan" means the Company's failure
to adopt a Stock Appreciation Rights Program on or before November 16, 2000 or
the failure to grant Executive the participation therein set forth in Section 7
hereof.
(iv) "Other Good Reason Event" means any of the following: (A) a
material breach of this Agreement by the Company (which shall include, without
limitation, any reduction in the amount of any compensation or benefits provided
to Executive under this Agreement) or (B) any termination or attempted
termination by the Company of Executive's employment other than as expressly
permitted in this Agreement. Notwithstanding anything to the contrary contained
herein, in the event Executive terminates his employment under this Agreement
upon the occurrence of an Other Good Reason Event, (A) such termination shall
take effect no earlier than 30 days from the date of the respective notice and
(B) Executive shall not be entitled to receive any compensation or other
benefits, except that the Company shall (i) through the Entitlement Date
continue to pay to Executive the Base Salary in effect immediately prior to the
date of termination, such payments to be made in installments at the times such
amounts would have been paid if the Agreement had not been so terminated, (ii)
pay to the Executive, when otherwise due in accordance with Section 4, the
Budget Bonus and/or Revenue Bonus, if any, earned for the fiscal year in which
such termination occurs, without regard to whether Executive is employed on the
last day of such fiscal year and (iii) through the Entitlement Date continue
Executive's benefits and other items referred to in Section 5 or, to the extent
the Company is legally unable to provide any such benefits or other items as a
result of Executive no longer being an employee, reimburse Executive for his
cost (not to exceed the actual cost to the Company if he were still an employee)
of obtaining the equivalent coverage and benefits.
(e) FAILURE TO RELOCATE. The Company shall have the right to
terminate Executive's employment for "Failure to Relocate" (as defined below) by
providing written notice to the Executive within ninety (90) days of such event.
Such termination shall take effect six months from the date of such notice. Upon
a termination for Failure to Relocate, except as provided in Section 15, this
Agreement shall terminate and the Executive shall not be entitled to receive any
compensation or other benefits, except that the Company shall (i) through the
date of termination continue to pay to Executive the Base Salary in effect
immediately prior to the date of notice, such payments to be made in
installments at the times such amounts would have been paid if the Agreement had
not been so terminated, (ii) pay to the Executive, when otherwise due in
accordance with Section 4, the Budget Bonus and/or Revenue Bonus, if any, earned
for the fiscal year in which such termination occurs, without regard to whether
Executive is employed on the last day of such fiscal year, multiplied by a
fraction, the numerator of which is equal to the number of days elapsed between
the beginning of the fiscal year in which such termination occurred and the
termination date, and the denominator of which is equal to 365 days, and (iii)
pay to the Executive all benefits and other items referred to in Sections 5 and
8 which are due up to the date of termination. During the period in which
Executive receives the payments required by the immediately preceding sentence,
Executive shall be subject to the provisions set forth in Sections 10 and 11
below (provided, however, in no event shall the restrictions contained in
Sections 10 and 11 continue for more than one year beyond the termination of
Executive's employment).
For purposes of this Agreement, "Failure to Relocate" shall mean
the Executive's failure (whether by written notice to the Company, failure to
act, or otherwise), following a request by the Company, to change his principal
place of employment to Hialeah, Florida after the first 12 months of the
Employment Period; PROVIDED, HOWEVER, that if the Company does not, within
ninety (90) days after the first event constituting a Failure to Relocate,
exercise its right to terminate the Executive's employment for Failure to
Relocate, then the Company shall not thereafter have the right to
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terminate the Executive's employment for Failure to Relocate.
(f) OFFICER AND BOARD POSITIONS. Upon the termination of
employment with the Company for any reason, Executive shall be deemed to have
resigned any and all of his positions as an officer and a member of the Board of
Directors of the Company and any of its subsidiaries and as a member of any
committees of such Board, effective on the date of termination.
(g) CERTAIN CONDITION. Notwithstanding anything to the contrary
contained in this Section 9, the obligations of the Company under this Section 9
shall continue only so long as the Executive does not breach his obligations
under Section 10 and 11.
(h) CERTAIN EFFECT. As used in this Agreement, termination of
this Agreement shall also result in and mean termination of the Employment
Period hereunder.
(i) MITIGATION OF DAMAGES. In the event of any termination of
Executive's employment by the Company other than for Cause or Failure to
Relocate, Executive shall not be required to seek other employment to mitigate
damages and any income earned by Executive from other employment or self
employment shall not be offset by any obligation of the Company to Executive
under this Agreement.
10. CONFIDENTIALITY, ETC. Executive will not willfully divulge,
furnish or make accessible to anyone (otherwise than in the regular course of
business of the Telemundo Holdings Group) any confidential information, plans or
materials or trade secrets of the Telemundo Holdings Group, or with respect to
any other confidential or secret aspects of the business of the Telemundo
Holdings Group; PROVIDED, HOWEVER, that during his employment, Executive shall
have the latitude customarily given a corporate president to disclose
information in good faith for the benefit of the Company and its stockholders
(taken as a whole). All memoranda, notes, lists, records and other documents or
papers (and all copies thereof), including such items stored in computer
memories, on microfiche or by any other means, made or compiled by or on behalf
of Executive, or made available to him relating to the Telemundo Holdings Group
are and shall be the Company's property and shall be delivered to the Company
promptly upon the termination of his employment with the Company; PROVIDED,
HOWEVER, that (i) this obligation shall not apply to information that (A) is not
confidential (other than as a result of Executive's breach of this Section), (B)
does not contain certain trade secrets of the Company or (C) is limited to
Executive's personal "rolodex" files or papers relating to personal matters,
(ii) Executive shall have the right to retain and use such of the foregoing as
shall be reasonably necessary to enforce his rights under this Agreement and to
comply with and enforce his rights, including the right to defend himself
against claims, provided copies of such retained information are provided to the
Company and the retained information remain subject to the provision of this
Section, and (iii) Executive shall have no obligation to return information that
is no longer in his possession, custody or control. This Section 10 shall
survive the expiration or termination of this Agreement, the Employment Period
and the term of employment; PROVIDED, HOWEVER, that if Executive's employment is
terminated pursuant to Section 9(c) or for any Other Good Reason Event (as
defined in Section 9(d)), then this Section 10 will terminate subject to Section
9(c) on the Entitlement Date.
11. NO INTERFERENCE; AFFILIATE TRANSACTIONS. (a) During the Employment
Period and for one year after such period, Executive agrees and covenants that
he will not (other than with respect to his duties and responsibilities
hereunder) directly or indirectly, for himself, or as agent of
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or on behalf of, or in conjunction with, any person, firm, corporation, or other
entity, engage or participate in the Company Business (as hereinafter defined),
whether as employee, consultant, partner, principal, shareholder or
representative, or render advisory or other services to or for any person, firm,
corporation or other entity, which is engaged primarily, directly or indirectly,
in the Company Business; PROVIDED, HOWEVER, that (i) Executive may own less than
5% of the common stock of a publicly traded company that is engaged in the
Company Business and (ii) Executive may own Common Stock and securities
convertible into Common Stock (or securities into which Common Stock is
converted in any business combination transaction). For purposes of this Section
11(a), "Company Business" shall mean and be limited to any of (x) the provision
of Spanish language television programming in the United States (which includes
Puerto Rico), (y) the ownership of television broadcast stations, networks or
any over-the-air television signal, and cable in the United States (which
includes Puerto Rico) that broadcast primarily Spanish language programming, and
(z) the sale of television advertising time and programs inside and outside the
United States (which includes Puerto Rico) for Spanish language television
stations, cable and networks.
(b) During the Employment Period and for one year after such
period, Executive agrees and covenants that he will not willfully interfere
directly or indirectly in any way with the Company. "Interfere" means to
influence or attempt to influence, directly or indirectly, present or active
prospective customers, employees, suppliers, performers, directors,
representatives, agents or independent contractors of the Company, or any of its
network affiliates to restrict, reduce, sever or otherwise alter their
relationship with the Telemundo Holdings Group or any of its network affiliates.
(c) Executive agrees that during the Employment Period, he will
not at any time enter into, on behalf of the Telemundo Holdings Group, or cause
the Telemundo Holdings Group to enter into, directly or indirectly, any
transactions (each, a "Transaction") with any business organization in which he
or, to his knowledge after due inquiry, any member of his family may be
interested as a partner, trustee, director, officer, employee, shareholder,
lender of money or guarantor, except to the extent disclosed to the Company and
agreed to by the board of directors of the Company in writing. Executive will
use his best efforts to ensure that any Transaction is disclosed to the Board of
Directors of the Company and approved thereby prior to entering into a contract
relating thereto and/or consummation thereof, as contemplated by the preceding
sentence.
(d) From and after the termination of Executive's employment,
Executive shall not disparage the Company, its officers, directors, employees or
business, nor shall the Company or any of its officers, directors, employees or
agents disparage the Executive or members of his family, and neither party shall
disclose any facts relating to such termination; provided, that nothing
contained in this Section 11(d) shall restrict the parties from making any
statements or disclosure believed necessary to enforce in any judicial or
similar proceeding the provisions of this Agreement or as a party believes may
be required by applicable law.
(e) In the event any court having jurisdiction determines that
any part of this Section 11 is unenforceable, such court shall have the power to
reduce the duration or scope of such provision and such provision, in its
reduced form, shall be enforceable. This Section 11 shall survive the expiration
or termination of this Agreement and the Employment Period; PROVIDED, HOWEVER,
that if Executive's employment is terminated pursuant to Section 9(c) or for any
Other Good Reason Event (as defined in Section 9(d)), then this Section 11 will
terminate, subject to Section 9(c), on the Entitlement Date.
9
12. INJUNCTIVE RELIEF. Executive acknowledges that the provisions of
Sections 10 and 11 herein are reasonable and necessary for the protection of the
Telemundo Holdings Group and that the Telemundo Holdings Group will be
irrevocably damaged if such provisions are not specifically enforced.
Accordingly, Executive agrees that, in addition to any other relief to which the
Company may be entitled in the form of damages, the Company shall be entitled to
seek injunctive relief from a court of competent jurisdiction for the purposes
of restraining Executive from any actual or threatened breach of such
provisions.
13. REMEDIES; SERVICE OF PROCESS.
(a) Except when a party is seeking an injunction or specific
performance hereunder, the parties agree to submit any dispute concerning this
Agreement to binding arbitration. The parties may agree to submit the matter to
a single arbitrator or to several arbitrators, may require that arbitrators
possess special qualifications or expertise or may agree to submit a matter to a
mutually acceptable firm of experts for decision. In the event the parties shall
fail to thus agree upon terms of arbitration within twenty (20) days from the
first written demand for arbitration, then such disputed matter shall be settled
by arbitration under the Rules of Employment Arbitration of the American
Arbitration Association, by three arbitrators appointed in accordance with such
Rules. Such arbitration shall be held in the location of employment of Executive
at the time of the notice of arbitration. Once a matter has been submitted to
arbitration pursuant to this Section, the decision of the arbitrators shall be
final and binding upon all parties. The cost of arbitration shall be shared
equally by the parties and each party shall pay the expenses of his/its
attorneys, except that the arbitrators shall be entitled to award the costs of
arbitration, attorneys and accountants' fees, as well as costs, to the party
that they determine to be the prevailing party in any such arbitration.
(b) The Company and Executive hereby irrevocably consent to the
jurisdiction of the Courts of the State of Florida and of any Federal Court
located in such State in connection with any action or proceedings for
injunctive relief arising out of or relating to the provisions of Sections 10
and 11 of this Agreement. Executive further agrees that he will not commence or
move to transfer any action or proceeding arising out or relating to the
provisions of Sections 10 and 11 of this Agreement to any Court other than one
located in the State of Florida.
14. SUCCESSORS. This Agreement and the rights and obligations
hereunder are personal to Executive and without the prior written consent of the
Company and Executive shall not be assignable.
15. SURVIVAL OF PROVISIONS. Notwithstanding anything to the contrary
contained herein, the provisions of Sections 5(b), 8, 9, 10, 11, 12, 13, 14, 15
and 17 hereof shall survive the termination or expiration of this Agreement,
irrespective of the reasons therefor.
16. [Intentionally omitted]
17. MISCELLANEOUS. (a) This Agreement shall be governed by and
construed in accordance with the laws of the State of Florida, without reference
to principles of conflict of laws.
(b) All notices and other communications hereunder shall be in
writing and shall be deemed to have been duly given if delivered, telecopied or
mailed, certified or registered mail, return receipt requested:
10
If to Executive:
Xxxx Xxxxxxxxxx
00000 Xxxxxxxxxx Xxxxxx
Xxxxxx Xxxx, Xxxxxxxxxx 00000
Phone: (000) 000-0000
Telecopy No.: (000) 000-0000
If to the Company:
Telemundo Holdings, Inc.
0000 Xxxx 0xx Xxxxxx
Xxxxxxx, Xxxxxxx 00000
Attention: Chief Financial Officer
Phone: (000) 000-0000
Telecopy No.: (000) 000-0000
with a copy to:
Telemundo Holdings, Inc.
0000 Xxxx 0xx Xxxxxx
Xxxxxxx, Xxxxxxx 00000
Attention: General Counsel
Phone: (000) 000-0000
Telecopy No.: (000) 000-0000
or to such other address as either party shall have furnished to the other in
writing in accordance herewith. Notices and communications shall be effective
when actually received by the addressee or upon refusal if properly delivered.
(c) The Company may withhold from any amounts payable under this
Agreement such Federal, state or local taxes as shall be required to be withheld
pursuant to any applicable law or regulation.
(d) Executive represents and warrants that he is not a party to
any agreement, contract or understanding, whether employment or otherwise, which
would in any way restrict or prohibit him from undertaking or performing
employment in accordance with the terms and conditions of this Agreement.
(e) This Agreement sets forth the entire understanding of the
parties with respect to the subject matter hereof, and no statement,
representation, warranty or covenant has been made by either party except as
expressly set forth herein. This Agreement shall not be changed or terminated
orally. This Agreement supersedes and cancels all prior agreements between the
parties, whether written or oral, relating to the employment of Executive. The
headings and captions contained in this Agreement are for convenience only and
shall not be deemed to affect the meaning or construction of any provision
hereof.
11
(f) If, at any time subsequent to the date hereof, any provision
of this Agreement shall be held by any court of competent jurisdiction to be
illegal, void or unenforceable, such provision shall be of no force and effect,
but the illegality or unenforceability of such provision shall have no effect
upon and shall not impair the enforceability of any provision of this Agreement.
(g) The Company's failure to insist upon strict compliance with
any provision hereof shall not be deemed to be a waiver of such provision or any
other provision hereof. Executive's failure to insist upon strict compliance
with any provision hereof shall not be deemed to be a waiver of such provision
or any other provision hereof.
(h) This Agreement shall inure to the benefit of and be binding
upon any successor to the Company and shall inure to the benefit of Executive's
successors, heirs and personal representatives.
12
IN WITNESS WHEREOF, Executive has hereunto set his hand and,
pursuant to the authorization from its Board of Directors, the Company has
caused these presents to be executed in its name and on its behalf, all as of
the day and year first above written.
EXECUTIVE:
/s/ Xxxx Xxxxxxxxxx
-----------------------------------
Xxxx Xxxxxxxxxx
TELEMUNDO HOLDINGS, INC.:
By: /s/ Xxxxx X. Xxxxxxx XX
--------------------------------------
Name: Xxxxx X. Xxxxxxx XX
Title: Chief Financial Officer & Treasurer
13
