EXHIBIT 10.1
SCHEDULE OF DOCUMENTS OMITTED
PURSUANT TO ITEM 601, INSTRUCTION NO. 2
OF REGULATION S-K
The following documents are substantially identical in all material respects to
Exhibit 10.1 except as to the material details set forth below:
Indemnification Agreements by and between the Company and each of the following:
X.X. Xxxxxxxxx
Xxx Xxxxxxxxx
Xxxxxx X. Xxxxx
Xxxxxx X. Xxxxxx
Xxxxxx X. Xxxxxx
Xxxx X. Xxxxxxxxx
Xxxxx Xxxxx
Xxxxxxxx X. Dam
Xxxxxxxxx Xxxxxx
Xxxxxxx X. Xxxxxxxx
Xxxxxx Xxxxxx
Xxxxxx X. Gaba - Agreement dated October 2, 1996
UNIVISION COMMUNICATIONS INC.
INDEMNIFICATION AGREEMENT
This Indemnification Agreement (this "Agreement") is made as of
September 26, 1996, by and between Univision Communications Inc., a Delaware
corporation (the "Company"), and the individual whose name appears below the
word "Indemnitee" on the signature page hereto (the "Indemnitee"), a director
and/or officer of the Company.
BACKGROUND
A. The Indemnitee has agreed to serve as a director and/or officer
of the Company and in such capacity has rendered and/or will render valuable
services to the Company.
B. The Company has investigated the availability and sufficiency of
liability insurance and Delaware statutory indemnification provisions to provide
its directors and officers with adequate protection against various legal risks
and potential liabilities to which directors and officers are subject due to
their position with the Company and has concluded that insurance and statutory
provisions may provide inadequate and unacceptable protection to certain
individuals requested to serve as its directors and officers.
C. In order to induce and encourage highly experienced and capable
persons such as the Indemnitee to serve as a director and/or officer of the
Company, the Board of Directors has determined, after due consideration and
investigation of the terms and provisions of this Agreement and the various
other options available to the Company and the Indemnitee in lieu of this
Agreement, that this Agreement is not only reasonable and prudent but necessary
to promote and ensure the best interests of the Company and its stockholders.
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AGREEMENT
In consideration of the continued services of the Indemnitee and in
order to induce the Indemnitee to continue to serve as a director and/or
officer, the Company and the Indemnitee agree as follows:
SECTION 1. DEFINITIONS
As used in this Agreement:
(a) A "Change in Control" shall be deemed to have occurred if
(i) any "person" (as that term is used in Sections 13(d) and 14(d) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act")), other than a
trustee or other fiduciary holding securities under an employee benefit plan of
the Company or a corporation owned directly or indirectly by the stockholders of
the Company in substantially the same proportions as their ownership of stock of
the Company, is or becomes the "beneficial owner" (as defined in Rule 13d-3
under the Exchange Act), directly or indirectly, of securities of the Company
representing 20% or more of the total voting power represented by the Company's
then outstanding voting securities, or (ii) during any period of two consecutive
years, individuals who at the beginning of the two year period constitute the
Board of Directors of the Company and any new director whose election by the
Board of Directors or nomination for election by the Company's stockholders was
approved by a vote of at least two-thirds (2/3) of the directors then still in
office who either were directors at the beginning of the period or whose
election or nomination for election was previously so approved, cease for any
reason to constitute a majority of the Board of Directors, or (iii) the
stockholders of the Company approve a merger or consolidation of the Company
with any other corporation, other than a merger or consolidation which would
result in the voting securities of the Company outstanding immediately prior to
such a merger or consolidation continuing to represent (either by remaining
outstanding or by being converted into voting securities of the surviving
entity)
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at least 80% of the total voting power represented by the voting securities
of the Company or the surviving entity outstanding immediately after the
merger or consolidation, or the stockholders of the Company approve a plan of
complete liquidation of the Company or an agreement for the sale or
disposition by the Company (in one transaction or a series of transactions)
of all or substantially all the Company's assets.
(b) The term "Expenses" includes, without limitation, attorneys'
fees, disbursements and retainers, accounting and witness fees, travel and
deposition costs, expenses of investigations, judicial or administrative
proceedings or appeals, amounts paid in settlement by or on behalf of
Indemnitee, and any expenses of establishing a right to indemnification,
pursuant to this Agreement. The term "Expenses" does not include the amount of
judgments, fines, penalties or ERISA excise taxes actually levied against the
Indemnitee.
(c) A "Potential Change in Control" shall be deemed to have
occurred if (i) the Company enters into an agreement or arrangement, the
consummation of which would result in the occurrence of a Change in Control;
(ii) any person (including the Company) publicly announces an intention to take
or to consider taking actions which if consummated would constitute a Change in
Control; (iii) any person (other than a trustee or other fiduciary holding
securities under an employee benefit plan of the Company acting in such capacity
or a corporation owned, directly or indirectly, by the stockholders of the
Company in substantially the same proportions as their ownership of stock of the
Company), who is or becomes the beneficial owner, directly or indirectly, of
securities of the Company representing 10% or more of the combined voting power
of the Company's then outstanding voting securities increases his or her
beneficial ownership of the securities by 5% or more over the percentage so
owned by that person on the date this Agreement is executed; or (iv) the Board
adopts a resolution to the effect that, for purposes of this Agreement, a
Potential Change in Control has occurred.
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(d) The term "Proceeding" shall include any threatened, pending
or completed action, suit or proceeding, whether brought by or in the name of
the Company or otherwise and whether of a civil, criminal or administrative or
investigative nature, by reason of the fact that the Indemnitee is or was a
director, officer, employee or agent of the Company, or is or was serving at the
request of the Company as a director, officer, employee or agent of another
enterprise, whether or not he or she is serving in such capacity at the time any
liability or Expense is incurred for which indemnification or reimbursement is
to be provided under this Agreement.
SECTION 2. INDEMNIFICATION
2.1 INDEMNIFICATION IN THIRD PARTY ACTIONS
The Company shall indemnify the Indemnitee if the Indemnitee is a
party to or is threatened to be made a party to, or is a witness or other
participant in, or is otherwise involved in any Proceeding (other than a
Proceeding by or in the name of the Corporation to procure a judgment in its
favor), by reason of the fact that the Indemnitee is or was a director, officer,
employee or agent of the Company, or is or was serving at the request of the
Company as a director, officer, employee or agent of another enterprise against
all Expenses, judgments, fines, penalties and XXXXX excise tax actually and
reasonably incurred by the Indemnitee in connection with the defense or
settlement of the Proceeding, to the fullest extent permitted by applicable law;
provided that any settlement be approved in writing by the Company.
2.2 INDEMNIFICATION IN PROCEEDINGS BY OR IN THE NAME OF THE COMPANY
The Company shall indemnify the Indemnitee if the Indemnitee is a
party to or is threatened to be made a party to, or is a witness or other
participant in, or is otherwise involved in any Proceeding by or in the name of
the Company to procure a judgment in its favor by reason of the fact that
Indemnitee was or is a director, officer, employee or agent of the Company, or
is or was serving at the request of the Company as a director, officer, employee
or agent of another enterprise, against all Expenses
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actually and reasonably incurred by Indemnitee in connection with the defense
or settlement of the Proceeding, to the fullest extent permitted by
applicable law.
2.3 PARTIAL INDEMNIFICATION
If the Indemnitee is entitled under any provision of this Agreement to
indemnification by the Company for some or a portion of, but not the total
amount of, the Expenses, judgments, fines, penalties or ERISA excise taxes
actually and reasonably incurred by him or her in the investigation, defense,
appeal or settlement of any Proceeding, the Company shall nevertheless indemnify
the Indemnitee for the portion of the Expenses, judgments, fines, penalties or
ERISA excise taxes to which the Indemnitee is entitled.
2.4 INDEMNIFICATION HEREUNDER NOT EXCLUSIVE
The indemnification provided by this Agreement shall not be deemed
exclusive of any other rights to which the Indemnitee may be entitled under the
Articles of Incorporation, the Bylaws, any agreement, any vote of stockholders
or disinterested directors, applicable law, or otherwise, both as to action in
his or her official capacity and as to action in another capacity on behalf of
the Company while holding office.
2.5 INDEMNIFICATION OF EXPENSES OF SUCCESSFUL PARTY
Notwithstanding any other provisions of this Agreement, to the extent
that the Indemnitee has been successful in defense of any Proceeding or in
defense of any claim, issue or matter in the Proceeding, on the merits or
otherwise, including the dismissal of a Proceeding without prejudice, the
Indemnitee shall be indemnified against all Expenses incurred in connection
therewith to the fullest extent permitted by applicable law.
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SECTION 3. PRESUMPTIONS
3.1 PRESUMPTION REGARDING STANDARD OF CONDUCT
The Indemnitee shall be conclusively presumed to have met the relevant
standards of conduct as defined by applicable law for indemnification pursuant
to this Agreement, unless a determination that the Indemnitee has not met the
relevant standards is made by (i) the Board of Directors of the Company by a
majority vote of a quorum consisting of directors who were not parties to the
Proceedings, (ii) the stockholders of the Company by majority vote, or (iii) in
a written opinion by independent legal counsel, selection of whom has been
approved by the Indemnitee in writing.
3.2 DETERMINATION OF RIGHT TO INDEMNIFICATION
If a claim under this Agreement is not paid by the Company within 30
days of receipt of written notice, the right to indemnification as provided by
this Agreement shall be enforceable by the Indemnitee in any court of competent
jurisdiction. The burden of proving by clear and convincing evidence that
indemnification or advances are not appropriate shall be on the Company.
Neither the failure of the directors nor stockholders of the Company or
independent legal counsel to have made a determination prior to the commencement
of the action that indemnification or advances are proper in the circumstances
because the Indemnitee has met the applicable standard of conduct, nor an actual
determination by the directors or stockholders of the Company nor independent
legal counsel that the Indemnitee has not met the applicable standard of
conduct, shall be a defense to the action or create a presumption that the
Indemnitee has not met the applicable standard of conduct.
(a) The Indemnitee's Expenses incurred in connection with any
Proceeding concerning his or her right to indemnification or advances in whole
or in part pursuant to this Agreement shall also be indemnified by the Company
regardless of the outcome of the Proceeding, unless a court of competent
jurisdiction determines that each
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of the material assertions made by the Indemnitee in the Proceeding was not
made in good faith or was frivolous.
SECTION 4. ADVANCES OF EXPENSES
The Expenses incurred by the Indemnitee in any Proceeding shall be
paid promptly by the Company in advance of the final disposition of the
Proceeding at the written request of the Indemnitee to the fullest extent
permitted by applicable law. Indemnitee hereby undertakes to repay such amounts
advanced only if, and to the extent that, it shall be determined ultimately that
Indemnitee is not entitled to be indemnified by the Company pursuant to this
Agreement. The advances to be made hereunder shall be paid by the Company to
Indemnitee within (30) days following delivery of the referenced written request
by Indemnitee to the Company.
SECTION 5. CHANGE IN CONTROL
The Company agrees that if there is a Change in Control or a Potential
Change in Control of the Company (other than a Change in Control or Potential
Change in Control which has been approved by a majority of the Company's Board
of Directors who were directors immediately prior to the Change in Control or
Potential Change in Control) then with respect to all matters thereafter arising
concerning the rights of Indemnitee to indemnity payments and Expense advances
under this Agreement or any other agreement, the Company's Articles of
Incorporation, or the Company's Bylaws in effect relating to claims for
indemnifiable events, the Company shall seek legal advice only from independent
counsel selected by Indemnitee, and reasonably satisfactory to the Company, and
who has not otherwise performed services for the Company or Indemnitee within
the last five years (other than in connection with such matters) ("Special
Independent Counsel"). The Special Independent Counsel, among other things,
shall render its written opinion to the Company and Indemnitee as to whether and
to what extent the Indemnitee would be permitted to be indemnified under
applicable law. The
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Company agrees to pay the reasonable fees of the Special Independent Counsel
referred to above and may fully indemnify the Special Independent Counsel
against any and all expenses (including attorneys' fees), claims, liabilities
and damages arising out of or relating to this Agreement.
SECTION 6. INDEMNIFICATION PROCEDURE
6.1 NOTICE
Promptly after receipt by the Indemnitee of notice of the commencement
of any Proceeding, the Indemnitee will, if a claim is to be made against the
Company under this Agreement, notify the Company of the commencement of the
Proceeding. The omission to notify the Company will not relieve it from any
liability which it may have to the Indemnitee otherwise than under this
Agreement.
6.2 COMPANY PARTICIPATION
With respect to any Proceeding for which indemnification is requested,
the Company will be entitled to participate in the Proceeding at its own expense
and, except as otherwise provided below, to the extent that it may wish, the
Company may assume the defense of the Proceeding, with counsel reasonably
satisfactory to the Indemnitee. After notice from the Company to the Indemnitee
of its election to assume the defense of a Proceeding, during the Company's good
faith active defense the Company will not be liable to the Indemnitee under this
Agreement for any legal or other expenses subsequently incurred by the
Indemnitee in connection with the defense of the Proceeding, other than
reasonable costs of investigation or as otherwise provided below. The Company
shall not settle any Proceeding in any manner which would impose any penalty or
limitation on the Indemnitee without the Indemnitee's written consent. The
Indemnitee shall have the right to employ his or her counsel in any Proceeding
but the fees and expenses of the counsel incurred after notice from the Company
of its assumption of the defense of the Proceeding shall be at the expense of
the Indemnitee, unless (i) the employment of counsel by the Indemnitee has been
authorized by the
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Company, (ii) the Indemnitee shall have reasonably concluded that there may
be a conflict of interest between the Company and the Indemnitee in the
conduct of the defense of a Proceeding, or (iii) the Company shall not in
fact have employed counsel to assume the defense of a Proceeding, in each of
which cases the fees and expenses of the Indemnitee's counsel shall be at the
expense of the Company. The Company shall not be entitled to assume the
defense of any Proceeding brought by or on behalf of the Company or as to
which the Indemnitee has made the conclusion that there may be a conflict of
interest between the Company and the Indemnitee.
6.3 SUBROGATION
In the event of payment of Expenses under this Agreement, the Company
shall be subrogated to the extent of such payment to all of the rights of
recovery of Indemnitee vis a vis a third party, and Indemnitee shall do all
things that may be necessary to secure such rights, including the execution of
such documents necessary to enable the Company effectively to bring suit to
enforce such rights.
SECTION 7. LIMITATIONS ON INDEMNIFICATION
No payments pursuant to this Agreement shall be made by the Company:
(a) to indemnify or advance Expenses to the Indemnitee with respect
to Proceedings initiated or brought voluntarily by the Indemnitee and not by way
of defense, except with respect to Proceedings brought to establish or enforce a
right to indemnification under this Agreement or any other statute or law or
otherwise as required under applicable law, but the indemnification or
advancement of Expenses may be provided by the Company in specific cases if the
Board of Directors finds it to be appropriate;
(b) to indemnify the Indemnitee for any Expenses, judgments, fines,
penalties or ERISA excise taxes for which payment is actually made to the
Indemnitee
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under a valid and collectible insurance policy, except in respect of any
excess beyond the amount of payment under the insurance;
(c) to indemnify the Indemnitee for any Expenses, judgments, fines or
penalties sustained in any Proceeding for an accounting of profits made from the
purchase or sale by Indemnitee of securities of the Company pursuant to the
provisions of Section 16(b) of the Securities Exchange Act of 1934, the rules
and regulations promulgated thereunder and amendments thereto or similar
provisions of any federal, state or local statutory law;
(d) to indemnify the Indemnitee for any Expenses, judgments, fines,
penalties or XXXXX excise taxes resulting from Xxxxxxxxxx's conduct which is
finally adjudged to have been willful misconduct, knowingly fraudulent or
deliberately dishonest; or
(e) if a court of competent jurisdiction shall finally determine that
any indemnification hereunder is unlawful.
SECTION 8. MAINTENANCE OF LIABILITY INSURANCE
8.1 AFFIRMATIVE COVENANT OF THE COMPANY
The Company covenants and agrees that, as long as the Indemnitee shall
continue to serve as a director of the Company and thereafter so long as the
Indemnitee shall be subject to any possible Proceeding, the Company, subject to
subsection 8.3 of this Agreement, shall promptly obtain and maintain in full
force and effect directors' and officers' liability insurance ("D&O Insurance")
in reasonable amounts from established and reputable insurers.
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8.2 INDEMNITEE NAMED AS INSURED
In all D&O Insurance policies, the Indemnitee shall be named as an
insured in a manner that provides the Indemnitee the same rights and benefits as
are accorded to the most favorably insured of the Company's directors.
8.3 EXEMPTION FROM MAINTENANCE OF INSURANCE
Notwithstanding the foregoing, the Company shall have no obligation to
obtain or maintain D&O Insurance if the Company determines in good faith that
insurance is not reasonably available, the premium costs for insurance are
disproportionate to the amount of coverage provided, the coverage provided by
insurance is so limited by exclusions that it provides an insufficient benefit,
or the Indemnitee is covered by similar insurance maintained by a subsidiary of
the Company.
SECTION 9. MISCELLANEOUS
9.1 AGREEMENT TO SERVE
Indemnitee agrees to serve or continue to serve as a director and/or
officer of the Company for so long as he or she is duly elected or appointed or
until such time as he or she voluntarily resigns. Xxxxxxxxxx agrees to tender
written notice to the Company at least thirty (30) days prior to voluntarily
resigning.
9.2 EFFECT OF THIS AGREEMENT ON EMPLOYMENT AGREEMENT
The terms of any existing employment agreement between the Indemnitee
and the Company shall continue in effect but shall be modified or supplemented
by the terms of this Agreement. Nothing contained in this Agreement is intended
to create in Indemnitee any right of continued employment.
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9.3 SUCCESSORS AND ASSIGNS
This Agreement shall be binding upon, and shall inure to the benefit
of the Indemnitee and his or her heirs, personal representatives and assigns,
and the Company and its successors and assigns.
9.4 SEPARABILITY
Each provision of this Agreement is a separate and distinct agreement
and independent of the others, so that if any provision of this Agreement shall
be held to be invalid or unenforceable for any reason, the invalidity or
unenforceability shall not affect the validity or enforceability of the other
provisions of this Agreement. To the extent required, any provision of this
Agreement may be modified by a court of competent jurisdiction to preserve its
validity and to provide the Indemnitee with the broadest possible
indemnification permitted under applicable law.
9.5 SAVINGS CLAUSE
If this Agreement or any portion of it is invalidated on any ground by
any court of competent jurisdiction, then the Company shall nevertheless
indemnify Indemnitee as to Expenses, judgments, fines, penalties or ERISA excise
taxes with respect to any Proceeding to the full extent permitted by any
applicable portion of this Agreement that shall not have been invalidated or by
any other applicable law.
9.6 INTERPRETATION; GOVERNING LAW
This Agreement shall be construed as a whole and in accordance with
its fair meaning. Headings are for convenience only and shall not be used in
construing meaning. This Agreement shall be governed and interpreted in
accordance with the laws of the State of Delaware.
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9.7 AMENDMENTS
No amendment, waiver, modification, termination or cancellation of
this Agreement shall be effective unless in writing signed by the party against
whom enforcement is sought. The indemnification rights afforded to the
Indemnitee by this Agreement are contract rights and may not be diminished,
eliminated or otherwise affected by amendments to the Company's Certificate of
Incorporation, Bylaws or agreements including D&O Insurance policies.
9.8 COUNTERPARTS
This Agreement may be executed in one or more counterparts, all of
which shall be considered one and the same agreement and shall become effective
when one or more counterparts have been signed by each party and delivered to
the other.
9.9 NOTICES
Any notice to be given hereunder shall be directed as follows (or to
another address as either shall designate in writing):
IF TO UNIVISION COMMUNICATIONS INC.:
1999 Avenue of the Stars, Xxxxx 0000
Xxx Xxxxxxx, XX 00000
Attention: Xxxxxx Xxxxxx
WITH A COPY TO:
0000 Xxxxxx Xxxxx Xxxx, Xxxxx 0000
Xxx Xxxxxxx, XX 00000
Attention: General Counsel
IF TO INDEMNITEE:
At the Indemnitee's most recent address on the books and records of the
Company.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
INDEMNITEE
/S/ Xxxx Xxxx
-------------
Print Name: Xxxx Xxxx
UNIVISION COMMUNICATIONS INC.
By: /s/ X. Xxxxxxx Xxxxxxxxx
------------------------
Title: Chairman, President and CEO
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