EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT ("Agreement") is entered into as of February
10, 1997, by and between Univision Communications Inc., a Delaware corporation
("Company"), and Xxxxx Xxxxxxxx ("Employee").
WITNESSETH:
WHEREAS, Company and Employee desire to set forth the terms and
conditions of Employee's employment with Company.
NOW, THEREFORE, in consideration of the mutual promises and covenants
contained in this Agreement, the Employee and Company agree as follows:
1. TERM. Company agrees to employ Employee and Employee agrees to serve
Company in accordance with the provisions hereof for a term commencing on
February 10, 1997, and ending on February 9, 2000, unless earlier terminated in
accordance with the terms hereof (the "Term").
2. BASE SALARY. On the condition that Employee shall have kept and
performed all of his obligations hereunder, Company shall pay to Employee a base
salary (the "Base Salary") at the annualized rate of $400,000 during the first
twelve months of the Term, $500,000 during the second twelve months of the Term,
and $600,000 during the third twelve months of the Term. Such salary shall be
earned weekly, in arrears, and shall be payable no less frequently than monthly,
in accordance with Company's customary practices. Employee shall be granted a
stock option on 100,000 shares of Company's Class A Common Stock pursuant to the
terms and conditions of Company's 1996 Performance Award Plan at the closing
price for such stock on the New York Stock Exchange on February 10, 1997.
3. BONUSES. Company shall review Employee's performance and the result
of operations and prospects of Company on an annual basis. Following such
review, Company may, in its sole and absolute discretion, grant Employee a
bonus, provided that if and at such time as the Company adopts a bonus plan for
its senior management, Employee's bonus will be determined and paid in
accordance with such plan. In the event this Agreement is not renewed upon
expiration of its Term, Employee will be entitled to consideration for a bonus
based on the last calendar year of the Term.
In addition, Company shall pay Employee within 30 days of the date
hereof a signing bonus of $1,000,000.
4. SPECIFIC POSITION; DUTIES AND RESPONSIBILITIES. Company and Employee
agree that, subject to the provisions of this Agreement, Company will employ
Employee and Employee will serve during the Term as President and Chief
Operating Officer. Employee shall report to Company's Chief Executive Officer,
Mr. A. Xxxxxxx Xxxxxxxxx. Employee agrees to observe and comply with Company's
rules and regulations as adopted by Company and agrees to carry out and perform
orders, directions and policies of Company as they may be, from time to time,
stated either orally or in writing. Employee shall be elected to Company's
Board of Directors as soon as practicable.
5. BENEFITS. Employee shall be entitled to all insurance and other
benefits which Company may provide during the Term (provided Employee is
eligible to participate therein) for senior management and for employees of
Company generally, as are from time to time in effect during the Term (the
"Benefits"). Currently, the Benefits include (i) disability and life insurance
(subject to underwriting requirements), (ii) a vehicle allowance as determined
by Company from time to time, (iii) reimbursement for the cost of an annual
physical examination by a physician of Employee's choice, and (iv) twenty
business days paid vacation each year. In lieu of the vehicle allowance,
Company shall provide Employee with the use of a Lincoln Town Car.
6. BUSINESS EXPENSES. During the Term, to the extent that such
expenditures meet the criteria under the Internal Revenue Code for deductibility
by Company (whether or not fully deductible by Company) for federal income tax
purposes as reasonable and necessary business expenses and are substantiated by
Employee as from time to time required by the Internal Revenue Service and by
policies of Company, Company shall reimburse Employee promptly for all
expenditures made in accordance with rules and policies established from time to
time by Company's Management Committee in pursuance and furtherance of Company's
business and goodwill.
7. PLACE OF EMPLOYMENT. The principal place of employment and the
location of Employee's principal office shall be in Los Angeles, California.
Company currently intends to relocate Employee to New York City at some time
during the Term; the decision to relocate Employee to New York City and timing
of such relocation shall be made by Company in its sole discretion. Employee
shall be expected to engage in temporary travel as Company may reasonably
request or as may be required for the proper rendition of
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services hereunder. Company shall pay the reasonable expenses of Employee's
relocation from Washington D.C. to Los Angeles and from Los Angeles to New
York City if and when Company decides to relocate Employee to New York City.
8. STANDARD TERMS AND CONDITIONS. This Agreement includes the Standard
Terms and Conditions attached hereto and by this reference made a part of this
Agreement. In the event of any conflict between the terms of the Standard Terms
and Conditions and any express term or condition above provided, the express
terms and conditions above provided shall prevail.
9. CHANGE IN CONTROL. In the event that there is a change in control of
the Company during the Term of the Agreement, Employee shall immediately vest in
all unvested options he has been granted, and shall have the right, within 60
days of the date the change in control occurs, to terminate his employment by
the Company. For purposes of this Agreement, a change in control will be deemed
to have occurred at such time as A. Xxxxxxx Xxxxxxxxx owns directly or
indirectly less than 10% of the outstanding voting common stock of the Company.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
UNIVISION COMMUNICATIONS INC.
By: /s/ Xxxxx Xxxxxxxx
---------------------------------
Its:
---------------------------------
"EMPLOYEE"
/s/ Xxxxx Xxxxxxxx
--------------------------------------
XXXXX XXXXXXXX
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STANDARD TERMS AND CONDITIONS
1. EXCLUSIVITY OF SERVICES. So long as this Agreement shall continue in
effect, Employee shall render his services solely and exclusively for Company
and shall devote his full business time, energy and ability to the business,
affairs and interests of Company and matters related thereto, and shall perform
services contemplated hereby in accordance with Company's policies consistent
with Employee's position. Employee agrees to faithfully and diligently promote
the business, affairs and interests of Company.
Without the prior express written authorization of Company, Employee
shall not, directly or indirectly, during the Term: (a) render services to any
other person, firm or corporation; or (b) directly or indirectly engage in any
activity other than the business of Company, whether alone, as a partner, joint
venturer or as an officer, director, employee, agent, consultant or in any other
capacity. Company consents to (i) Employee's rendering services for no
consideration for any charitable organization provided that rendering such
services does not interfere with performance by Employee of his obligations
under this Agreement, and (ii) investments of Employee's personal assets in any
business that is not directly or indirectly involved in any business in which
Company, or any affiliate of Company is involved provided that Employee does not
render any services in connection with or for any such business.
Employee represents to Company that Employee has no other outstanding
commitments inconsistent with any of the terms of this Agreement or service to
be rendered hereunder.
2. TERMINATION. The compensation and other benefits provided for in this
Agreement, and the employment of Employee by Company, shall be terminated prior
to expiration of the Term only as provided below in this Section 2:
(a) DISABILITY.
In the event that Employee shall fail, because of illness, incapacity,
disability or injury, to render the services contemplated by this Agreement
for one hundred and thirty (130) business days either consecutively or in
the aggregate during the Term, Employee's employment hereunder may be
terminated by written notice of termination from Company to Employee. If
Company exercises its right to terminate Employee's services for any such
illness, incapacity, disability or injury, Company shall pay to Employee
any Base
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Salary, Benefits and expense reimbursement that have accrued but remain
unpaid at the time of such termination.
(b) DEATH.
In the event of Employee's death during the Term, this Agreement shall
terminate. Company shall pay to Employee's estate any Base Salary,
Benefits and expense reimbursement that have accrued but remain unpaid at
the time of Employee's death.
(c) FOR CAUSE.
Employee's employment hereunder shall be terminated and all of his
rights to receive Base Salary, Benefits and expense reimbursement, whether
or not accrued, shall terminate and be forfeited upon a determination by
Company of Employee's failure to perform his services hereunder in any
material way; breach of fiduciary duty; Employee's conviction of (or
pleading guilty or NOLO CONTENDERE in respect of) a felony or any lesser
offense involving dishonesty, moral turpitude or Company's or any
affiliate's property; or upon material breach by Employee of any of the
provisions of this Agreement. No termination of Employee's employment
under this Section 2(c) shall limit Company's rights under this Agreement
or at law or in equity.
(d) WITHOUT CAUSE.
In addition to Company's rights pursuant to any other provision of
this Section 2, Company shall have the right to terminate Employee's
employment with Company at any time for any reason or no reason with or
without notice. Notwithstanding any termination pursuant to this
subparagraph (d), Employee shall receive Base Salary under this Agreement
for the remaining unexpired Term subject to the terms and conditions of
Section 2(e) below, and shall immediately vest in all unvested options
granted pursuant to paragraph 1 of the Agreement or otherwise. The
payments provided for in this Section 2(d) shall be in lieu of all other
rights of Employee hereunder and at law or in equity, except that Company
shall pay any Benefits and expense reimbursement that have accrued but
remain unpaid at the time of termination under this Section 2(d).
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(e) COMPLIANCE WITH SECTION 3(g) FOR CONTINUED RECEIPT OF PAYMENTS.
In addition to Company's other remedies at law or in equity, in the
event the Employee fails to comply with Section 3(g) below, Company's
obligation to make payments under Section 2(d) shall terminate. Such
termination shall in no way limit or replace Company's other rights and
remedies at law and in equity.
(f) RESIGNATION FROM BOARDS OF DIRECTORS.
Employee shall resign from Company's and its affiliates boards of
directors upon any termination of Employee's employment pursuant to this
Section 2.
3. MISCELLANEOUS.
(a) SUCCESSION.
This Agreement shall inure to the benefit of and shall be binding upon
Company, its successors and assigns. The obligations and duties of
Employee hereunder shall be personal and not assignable. Company shall
have the right to assign its rights and obligations to any successor or
affiliate.
(b) NOTICES.
Any notice provided for in this Agreement shall be in writing and
sent if to Company to:
A. Xxxxxxx Xxxxxxxxx
1901 Avenue of the Stars
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Fax: (000) 000-0000
With copies to:
Xxxxxx X. Xxxxxx
1901 Avenue of the Stars
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Fax: (000) 000-0000
and
General Counsel
Univision
0000 Xxxxxx Xxxxx Xxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
or at such other address as Company may from time to time in writing
designate, and if to Employee at such
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address as Employee may from time to time in writing designate (or
Employee's business address of record in the absence of such
designation). All notices shall be deemed to have been given
immediately if communicated by telecopy or facsimile transmission and
two business days after they have been deposited, certified mail, return
receipt requested, postage paid and properly addressed to the designated
address of the party to receive the notice.
(c) ENTIRE AGREEMENT.
This instrument contains the entire agreement of the parties relating
to the subject matter hereof and it replaces and supersedes any prior
agreements, undertakings, commitments and practices relating to Employee's
employment by Company and its affiliates. No amendment or modification of
the terms of this Agreement shall be valid unless made in writing and
signed by Employee and Company.
(d) WAIVER.
No failure on the part of any party to exercise or delay in exercising
any right hereunder shall be deemed a waiver thereof or of any other right,
nor shall,any single or partial exercise preclude any further or other
exercise of such or any other right.
(e) CHOICE OF LAW.
To the extent permitted by applicable law, this Agreement shall be
construed in accordance with the laws of the State of New York applicable
to contracts made and to be performed there.
(f) RENEWAL.
Company agrees to give Employee written notice six (6) months prior to
completion of the Term advising Employee whether Company will seek to
negotiate the terms and conditions for an extension of the Term of
Employee's employment. If Company gives Employee such notice advising
Employee that Company will not seek to negotiate an extension of the Term
of Employee's employment, or if Company gives Employee such notice seeking
to negotiate an extension of the Term of Employee's employment and Company
and Employee do not agree on the terms and conditions for an extended Term
of Employee's employment, this Agreement shall expire at the end of the
Term and Company and Employee shall have no further obligations under this
Agreement following the expiration of the Term except to the
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extent specifically provided in this Agreement. If Company gives such
notice to Employee less than six (6) months prior to the end of the Term
or fails to give such notice and if Company and Employee do not
negotiate an extension of the Term of Employee's employment, this
Agreement shall expire at the end of the Term and Company and Employee
shall have no further obligations under this Agreement following
expiration of the Term except as specifically provided in this Agreement
and except that Company shall continue to pay Employee's then current
Base Salary provided for in Section 2 of the main body of this Agreement
after expiration of the Term for the unexpired portion of the six (6)
month period that commenced with the giving of such notice, or for a
period of six (6) months from and after the end of the Term if Company
fails to give such notice. The election to seek an extension of the
Term of Employee's employment shall be at the sole and absolute
discretion of Company. No renewal or extension of this Agreement shall
result in any subsequent renewal or extension of this Agreement unless
such subsequent renewal or extension is by written agreement between
Company and Employee.
(g) CONFIDENTIALITY/TRADE SECRETS/COMPETITIVE ACTIVITIES/PROPRIETARY
RIGHTS.
(1) Confidentiality
Employee agrees not to make use of, divulge or otherwise
disclose, directly or indirectly any trade secret or other
confidential information concerning the business or policies of
Company or any of its affiliates of which Employee may learn as a
result of Employee's employment during the term of this Agreement or
prior thereto as stockholder, employee, officer or director of or
consultant to Company or its predecessors, except to the extent such
use or disclosure is (i) necessary to the performance of this
Agreement and in furtherance of Company's best interests,
(ii) required by applicable law, (iii) lawfully obtainable from other
sources, or (iv) authorized by Company. The provisions of this
subsection shall survive the expiration, suspension or termination,
for any reason, of this Agreement.
(2) Trade Secrets
Employee, prior to and during the Term, has had and will have
access to and become acquainted with various trade secrets, consisting
of plans, agreements, devices, processes, customer lists,
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contracts, and compilations of information which are owned by
Company or by its affiliates and regularly used in the operation of
their respective businesses and which may give Company an
opportunity to obtain an advantage over competitors, who do not
know or use such trade secrets. Employee agrees and acknowledges
that Employee has been granted access to these valuable trade
secrets only by virtue of the confidential relationship created by
his employment by Company and Employee's prior interest in and
fiduciary relationships to Company. Employee shall not disclose
any of these trade secrets, directly or indirectly, or use them in
any way, either during the Term or at any time thereafter, except
as required in the course of his employment by Company or for its
benefit.
All records, files, documents, drawings, specifications,
software, equipment, and similar items relating to the business of
Company or its affiliates, including without limitation all records
relating to performances and/or customers (the "Documents"), whether
prepared by Employee or otherwise coming into Employee's possession,
shall remain the exclusive property of Company or such affiliates and
shall not be removed from the premises of Company or its affiliates
under any circumstances whatsoever. Upon termination of employment,
Employee agrees to promptly deliver to Company all Documents in the
possession or under the control of Employee.
(3) Competitive Activities
Employee promises and agrees that if Employee's employment under
this Agreement is terminated prior to the expiration of the Term,
Employee shall not during the remainder of the unexpired Term (the
"Cooling-Off Period"), (A) directly or indirectly engage in any
activity competitive with or adverse to Company's Spanish language
broadcasting and cable business in the United States and Puerto Rico
(whether alone, as a partner, joint venturer, officer, director,
employee, consultant or investor of any other entity), including but
not limited to any activity that is competitive with or adverse to
such business that involves (x) representing, as talent agent or
otherwise, any performer or celebrity, (y) the production in the
United States of Spanish language advertising, news or programming of
any kind or the distribution or transmission in or to
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the United States of any such advertising, news or programming
wherever produced, or (z) the advertising, marketing, telemarketing
or sale in any Spanish-language format of any product, institution
or service and (B) influence or attempt to influence present or
future customers, employees, performers or independent contractors
of the Company or any of its affiliates to restrict, reduce, sever
or otherwise alter their relationship with the Company or such
affiliates. Employee further promises and agrees that during the
Cooling-Off Period he shall not (other than in the performance of
his duties under this Agreement) join or participate with any
person who is, or hereafter at any time becomes, employed as an
officer, performer or independent contractor by Company or any of
its affiliates in the conduct of any business, corporation,
partnership, firm or enterprise competing with the business of the
Company or any of its affiliates.
(4) Proprietary Rights
Employee acknowledges and agrees that he is the Company's
employee for hire. In this regard, all right, title and interest of
every kind and nature whatsoever, whether now known or unknown, in and
to any property (intellectual or otherwise), including without
limitation any inventions, patents, trademarks, copyrights, films,
scripts, ideas, writings and discoveries, invented, created, written,
developed, furnished, produced, disclosed or acquired by Employee,
alone or in collaboration with others, during Employee's employment by
Company or within the one (1) year period thereafter (qualified by the
last sentence of this paragraph), which relates to or may be useful in
connection with the actual business or activities of Company, shall be
and remain, as between Employee and Company, the sole and exclusive
property of Company for any and all purposes and uses whatsoever
(including any of Employee's right, title and interest in and to any
domestic or foreign applications for patent or trademark, as well as
any divisions, continuations, reissues, revivals, renewals or
extensions thereof), and to the extent protectible under copyright
law, shall be deemed for such purposes as works made for hire for
Company. Employee further agrees that, at Company's request, whether
during or subsequent to employment by the Company, that Employee shall
do any and all acts, and execute and deliver to
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Company (in form satisfactory to the Company) such instruments or
documents, as may be deemed by Company as necessary or desirable to
evidence, effectuate, secure, maintain, or establish the terms of
this Agreement or Company's ownership of any of the foregoing, all
without charge; but notwithstanding that no such instruments or
documents are executed, Company, as Employee's employer, shall be
deemed the owner thereof immediately upon the discovery, invention,
creation, etc. thereof. Any invention, patent, trademark or other
property relating to Company's actual or contemplated business or
activities, that is discovered, invented, created, etc. by
Employee, alone or in collaboration with others, within one (1)
year after the termination of Employee's employment by Company for
any reason, shall be deemed to be within the provisions of this
paragraph, unless Employee can prove that the same was conceived
and made following said termination.
(h) SEVERABILITY.
If this Agreement shall for any reason be or become unenforceable in
any material respect by any party, this Agreement shall thereupon terminate
and become unenforceable by the other party as well. In all other
respects, if any provision of this Agreement is held invalid or
unenforceable, the remainder of this Agreement shall nevertheless remain in
full force and effect, and if any provision is held invalid or
unenforceable with respect to particular circumstances, it shall
nevertheless remain in full force and effect in all other circumstances, to
the fullest extent permitted by law. Further, in the event that any
portion of the second paragraph of Section 1 or any portion of Section 3(g)
of these Standard Terms and Conditions is more restrictive than permitted
by applicable law, such provisions shall be deemed and construed as limited
to the extent, but only to the minimum extent, necessary to permit their
enforcement under such law. In particular, the parties acknowledge that
the duration and geographic scope of such provisions may be so limited to
permit the greatest possible enforcement thereof.
(i) WITHHOLDING.
All compensation payable hereunder shall be subject to applicable
taxes, withholding, premium charges, co-payment of benefits, self-insured
retentions and other normal employee deductions.
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(j) REMEDIES.
Each of the parties to this Agreement will be entitled to enforce its
rights under this Agreement specifically, to recover damages by reason of
any breach of any provision of this Agreement and to exercise all other
rights existing in its favor. The parties hereto agree and acknowledge
that money damages may not be an adequate remedy for certain breaches of
the provisions of this Agreement and that any party may, in such cases, and
in its sole discretion, apply to any court of law or equity or competent
jurisdiction for specific performance and/or injunctive relief in order to
enforce or prevent any violations of the provisions of this Agreement.
Such specific performance and/or injunctive relief shall be available
without the posting of any bond or other security. In this connection, the
parties agree that the services to be rendered by Employee hereunder are of
a special, unique and extraordinary nature, which gives them a peculiar
value and that a breach by Employee will cause Company great and
irreparable injury and harm. Except when a party is seeking an injunction
or specific performance hereunder, the parties agree they shall submit any
controversy or claim arising out of or relating to this Agreement, its
enforcement or interpretation, or because of an alleged breach, default, or
misrepresentation in connection with any of its provisions, or arising out
of or relating in any way to the employment of Employee or the termination
thereof to binding arbitration. In the event the parties shall fail to
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 the American Arbitration Association, by
a single arbitrator appointed in accordance with such Rules. Such
arbitration shall be held in New York City. Once a matter has been
submitted to arbitration pursuant to this section, the decision of the
arbitrator reached and promulgated as a result thereof shall be final and
binding upon all parties and each party shall pay the fees and expenses of
such party's attorneys and accountants and one-half of the arbitrator's
fees and expenses, except that the arbitrator shall be entitled to award
the costs of arbitration, attorneys' and accountants' fees, as well as
costs, to the party that the arbitrator determines to be the prevailing
party in any such arbitration. The Company shall pay Employee's reasonable
travel expenses in connection with any arbitration and preparation
therefor. In reaching a decision the arbitrator shall have no authority to
ignore, change, modify, add to or delete from any
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provision of this Agreement, but instead is limited solely to interpreting
this Agreement in accordance with the laws of New York.
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