Exhibit 10.16
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT is entered into as of August 17, 2000, by and
between, UNIVISION COMMUNICATIONS INC., a Delaware corporation ("Company"), and
C. XXXXXXX XXXXXXXXXX ("Employee").
RECITALS
WHEREAS, Company desires to employ Employee and Employee desires to
accept such employment on the terms and conditions set forth herein;
NOW, THEREFORE, in consideration of the mutual covenants contained
herein, Employee and Company agree as follows:
1. DEFINITIONS/INTERPRETATION. The terms and conditions of Sections
1-10 (the "Express Terms and Conditions"), together with the "Standard Terms and
Conditions" attached hereto and incorporated herein by reference, are
collectively referred to as the "Agreement". All capitalized terms in the
Agreement shall have the meaning set forth in the Express Terms and Conditions,
except as otherwise specifically defined in the Standard Terms and Conditions.
In the event of a conflict, the Express Terms and Conditions shall prevail over
the Standard Terms and Conditions. All references to "Section" are Sections of
the Standard Terms and Conditions unless expressly stated otherwise.
2. EMPLOYMENT/TERM. On the terms and subject to the conditions set
forth in this Agreement, Company hereby employs Employee and Employee hereby
accepts such employment for the period commencing on September 1, 2000, and
ending on August 31, 2002 (the "Term").
3. OPTIONS TO EXTEND THE TERM. The Term of this Agreement shall be
extended for an additional one-year term from September 1, 2002 through August
31, 2003 ("First Option Term") for the compensation described below, unless
Company, in its sole discretion, gives notice to Employee at least ninety (90)
days before the expiration of the Term of Company's intention not to extend the
Term through the First Option Term. The word "Term" as used herein shall include
the First Option Term, if any.
4. BASE SALARY. Company will pay to Employee a base salary (the "Base
Salary") at the annualized rate of Six Hundred Thousand Dollars ($600,000)
during the period from September 1, 2000 through August 31, 2001; Six Hundred
Thousand Dollars ($600,000) during the period from September 1,
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2001 through August 31, 2002; and, if the Term is extended to include the
First Option Term, Six Hundred Thousand Dollars ($600,000) during First
Option Term. Such Base Salary will be earned weekly, in arrears, and be
payable no less frequently than monthly, in accordance with Company's
customary practices.
5. DUTIES. Employee will perform the duties and responsibilities and
render services in the capacity of Executive Vice President and General Counsel,
reporting to the Chief Executive Officer, or in any other senior executive
capacity as Company may from time to time prescribe. Employee will observe and
comply with all rules, regulations, policies, orders and directions, whether
oral or written, as Company may prescribe from time to time ("Company's
Policies").
6. STOCK OPTIONS. On the commencement date of the Term Employee will be
granted a one-time non-statutory stock option to purchase One Hundred Thousand
(100,000) shares of Company's Class A Common Stock (the "Stock") at a purchase
price equal to the closing price of the Stock on the Composite Tape of the NYSE
on the grant date, as published in the Western Edition of the Wall Street
Journal, or if there is no trading of the Stock on the grant date, then the
closing price of the Stock as quoted on such Composite Tape on the next
preceding date on which there is trading of the Stock. The option may be
exercised at the rate of twenty-five (25%) percent of the aggregate grant on and
after each anniversary date of the grant in accordance with the provisions of
Company's 1996 Performance Award Plan (the "Plan"). Such grant is subject to the
terms and conditions of the Plan and Employee signing Company's standard Stock
Option Agreement.
7. BONUSES. Company may or may not, in its sole and absolute
discretion, award Employee a bonus.
8. BENEFITS. Company will provide to Employee all insurance and other
benefits that Company provides to senior executives of Company (the "Benefits");
subject, however, to Employee's eligibility to participate in such Benefits
under Company's Policies.
9. BUSINESS EXPENSES. Company will reimburse Employee for all
reasonable and necessary business expenditures made by Employee in accordance
with Company's Policies, and will reimburse Employee for all reasonable and
necessary expenditures associated with Employee's relocation from New York City
to Employee's place of employment with Company in Los Angeles, California.
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10. PLACE OF EMPLOYMENT. Employee's principal place of employment will
be at the headquarters of Company in Los Angeles, California, or at such other
place as may be mutually determined by Company and Employee. Notwithstanding the
foregoing, Employee will engage in temporary travel as Company may reasonably
request or as may be required to carry out Employee's duties and
responsibilities hereunder.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
UNIVISION COMMUNICATIONS INC.
By: /s/ Xxxxxx X. Xxxxxx
-------------------------------
Xxxxxx X. Xxxxxx
Vice President and Secretary
/s/ C. Xxxxxxx Xxxxxxxxxx
----------------------------------
C. Xxxxxxx Xxxxxxxxxx
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STANDARD TERMS AND CONDITIONS
1. EXCLUSIVITY OF SERVICES. Except as approved by the Chief Executive
Officer, which approval may be withdrawn upon reasonable notice to Employee:
(a) FULL TIME. Employee will render services solely and
exclusively for Company and devote Employee's full business time, energy and
ability to Company and faithfully and diligently promote the business affairs
and interests of Company.
(b) PROHIBITED ACTIVITIES. Without the prior express written
consent of Company, which consent may be withheld or rescinded at any time in
the sole discretion of Company, Employee will not, directly or indirectly,
either individually or as an employee, agent, partner, joint venturer
shareholder, consultant, officer, director or in any other capacity: (i) render
services to any other person or entity, except to a charitable organization for
no consideration and then only to the extent it does not interfere with the
business interests of Company and the performance by Employee of Employee's
obligations under this Agreement; or (ii) participate, engage in or have any
financial or other interest in any business which is competitive in any manner
whatsoever with any business in which Company or any of its affiliates is now or
may hereafter become engaged. The foregoing prohibition does not include
ownership by Employee of less than five percent (5%) of the outstanding shares
of any publicly-traded entity, provided that Employee does not otherwise
participate in such entity as a director, officer, employee or in any other
capacity.
(c) NO COMMITMENTS. Employee represents and warrants to
Company that Employee has no outstanding commitments inconsistent with any of
the terms of this Agreement or the services to be rendered by Employee
hereunder.
2. TERMINATION.
(a) EVENTS. This Agreement and Employee's employment by
Company will terminate on the earlier of (i) the expiration of the Term, or (ii)
the first to occur of any of the following:
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(1) DISABILITY.
(i) FAILURE TO RENDER SERVICE. In the event
Employee fails for a period of one hundred twenty (120) business days, either
consecutively or in the aggregate during any twelve- (12-) month period, as a
result of illness, incapacity, Disability, injury, or by reason of any statute,
law, ordinance, regulation, order, judgment or decree, to render the services
contemplated by this Agreement, Company, by written notice to Employee, may
terminate Employee's employment.
(ii) DISABILITY DEFINED. "Disability" shall
for purposes of this Agreement mean a physical or mental condition which
substantially limits a major life activity and which renders Employee unable to
perform the essential functions of Employee's position, even with such
reasonable accommodation by Company that does not impose an undue hardship on
Company. Company reserves the right, in good faith, to make the determination of
Disability under this Agreement based on information supplied by Employee's
medical personnel, as well as information from medical personnel selected by
Company or its insurers.
(2) DEATH. Employee's employment shall automatically
terminate upon the death of Employee.
(3) FOR CAUSE BY COMPANY. Company may terminate
Employee's employment at any time, without notice except as provided below, for
Cause. For purposes of this Section 2(a)(3) the term "Cause" includes, but is
not limited to: habitual neglect of the duties which Employee is required to
perform; willful misconduct; gross negligence; theft, fraud or other illegal
conduct; sexual or other unlawful harassment; conduct which reflects adversely
upon the Company, any affiliate of Company, or any officer, director or Board of
any of them, including, without limitation, making disparaging remarks; arrest
for or conviction of a crime involving moral turpitude; insubordination; any
willful act that is likely to or does in fact have the effect of injuring the
reputation, business or a business relationship of the Company, any affiliate of
Company, or any officer, director or Board of any of them; violation of any
fiduciary duty; violation of any duty of loyalty; or the breach by Employee of
any material term of this Agreement, which breach is not cured within five (5)
business days after written notice thereof to Employee. Termination of
Employee's employment under this Section 2(a)(3) will not limit Company's rights
and remedies against Employee under this Agreement, at law or in equity.
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(4) WITHOUT CAUSE. Company, in its absolute
discretion, may terminate Employee's employment at any time without Cause and
with or without notice.
(5) FOR CAUSE BY EMPLOYEE. Employee may terminate
this Agreement at any time, without notice except as provided below, for Cause.
For purposes of this Section 2(a)(5), the term "Cause" means the breach by
Company of any material term of this Agreement, which breach is not cured within
five (5) business days after written notice thereof to Company.
(b) EFFECT. Effective as of the date of the termination of
Employee's employment pursuant to this Section 2 and except as provided below,
Employee's right to receive Base Salary, Benefits, expense reimbursement and
other amounts (such as bonuses) will cease, provided that Company will pay to
Employee such amounts, if any, which Employee has earned but are unpaid.
Notwithstanding the foregoing, and subject to Employee's compliance with the
conditions of Section 2(c) and 4 and execution of full release and settlement of
all claims in connection with Employee's employment, in the event Employee's
employment is terminated pursuant to Section 2(a)(4) or Section 2(a)(5) Company
will pay Employee Base Salary for the unexpired Term remaining after the date of
such termination and any stock options granted to Employee shall vest and be
exercisable in accordance with the provisions of Company's Stock Option
Agreement executed by Employee in connection with the grant of such stock
options. Such payments will be in lieu of all other rights of Employee under
this Agreement, at law or in equity, except as provided in the first sentence of
this Section 2(b).
(c) POST TERMINATION CONDITIONS. Upon termination of
Employee's employment, Employee will cooperate with and assist Company regarding
any litigation, contract negotiation or other matter in which the benefit of
Employee's knowledge or expertise may be requested by Company, including,
without limitation, assisting Company, at Company's request, in the preparation
of litigation (including testifying).
3. RENEWAL.
(a) NOTICE. Unless this Agreement has been terminated pursuant
to Section 2, no later than ninety (90) days prior to the expiration of the Term
Company will give Employee written notice advising Employee whether or not
Company will seek to negotiate an extension of the Term ("Extension Notice").
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(b) EFFECT. If Company gives Employee an Extension Notice
informing Employee that Company will not seek to renew or extend the term of the
Agreement, or if Company fails to give an Extension Notice then, upon expiration
of the Term (unless Employee is sooner terminated in accordance with the
provisions of Section 3), Employee's employment will terminate and Employee's
right to receive Base Salary, Benefits, expense reimbursement and other amounts
will cease. Upon such expiration of the Term (i) Company will pay to Employee
all Base Salary, Benefits, expense reimbursement and other amounts, if any,
earned by Employee but unpaid as of the date of such expiration and (ii) Company
will continue to pay Employee's then-current Base Salary at an annualized rate
(A) for a period of ninety (90) days if no Extension Notice was given to
Employee, or (B) if the Extension Notice is given by Company less than ninety
(90) days prior to the expiration of the Term, for a period of ninety (90) days
MINUS the number of days from the date the Extension Notice was given to
Employee until the expiration date of the Term. In any event, Company's election
not to renew or extend Employee's employment will not relieve Employee of any
continuing obligations under the Agreement.
If Company gives Employee an Extension Notice informing
Employee that Company will seek to renew or extend the Term and if Company and
Employee fail to agree on the terms and conditions of an extended term prior to
the expiration of the Term then, upon the expiration of the Term, (unless
Employee is sooner terminated in accordance with the provisions of Section 3),
Employee's employment will terminate and Employee's right to receive Base
Salary, Benefits, expense reimbursement and other amounts will cease. Upon such
expiration of the Term (i) Company will pay to Employee all Base Salary,
Benefits, expense reimbursement and other amounts, if any, earned by Employee
but unpaid as of the date of such expiration and (ii) if the Extension Notice is
given less than ninety (90) days prior to the expiration of the Term, Company
will continue to pay Employee's then-current Base Salary at an annualized rate
for a period of ninety (90) days MINUS the number of days from the date the
Extension Notice was given to Employee until the expiration date of the Term.
(c) COMPANY'S DISCRETION. The election to seek an extension of
the Term will be at the sole and absolute discretion of Company. No renewal or
extension of this Agreement will result in any subsequent renewal or extension
of this Agreement unless such subsequent renewal or extension is by written
agreement between Company and Employee.
(d) EXCLUSIVITY. During the Term and, if Company has given
Employee an Extension Notice prior to the expiration of the Term, for a period
of ninety (90) days thereafter, Employee shall not directly or indirectly enter
into any
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discussions or negotiations with anyone other than Company for the performance
of services by Employee after the expiration of the Term. Employee will
negotiate in good faith exclusively with Company if Company elects to seek an
extension or renewal of Employee's Employment Agreement prior to the expiration
of the Term.
4. CONFIDENTIALITY/TRADE SECRETS/UNFAIR COMPETITION; COMPETITIVE
ACTIVITIES; PROPRIETARY RIGHTS.
(a) CONFIDENTIALITY/TRADE SECRETS/UNFAIR COMPETITION.
(1) DEFINED. In the performance of Employee's duties,
Employee may have access to, receive and be entrusted with trade secrets and
other confidential information regarding marketing, sales, financial,
management, administrative, production and distribution information, customer
lists, plans, processes and specifications presently owned, or at any time in
the future developed by Company or its affiliates or its or their agents or
consultants, actually or potentially used in the operation of Company's
business, or obtained form third parties under an agreement of confidentiality,
and that is not otherwise part of the public domain (collectively the
"Confidential Material").
(2) PROHIBITIONS. Employee acknowledges and agrees
that all Confidential Material is considered secret and is made available to
Employee in strictest confidence. Except in the performance of Employee's duties
or as may be required by applicable law, Employee shall not, directly or
indirectly for any reason whatsoever, disclose, duplicate or use any such
Confidential Material, unless such Confidential Material ceases (through no
fault of Employee) to be confidential because it has become part of the public
domain. All records, files, drawings, documents, equipment and other tangible
items, and all copies thereof, wherever located, relating in any way to the
Confidential Material or otherwise to Company's business, which Employee
prepares, uses or encounters, shall be and remain Company's sole and exclusive
property and shall be included in the Confidential Material.
(3) DELIVERY. Upon termination of this Agreement by
any means, or whenever requested by Company, Employee shall promptly deliver to
Company any and all of the Confidential Material, and all copies thereof, not
previously delivered to Company, that may be or at any previous time has been in
Employee's possession or under Employee's control. Employee hereby acknowledges
that the sale or unauthorized use, duplication or disclosure of any Confidential
Material by any means whatsoever and any time before, during or after employment
with Company shall constitute a material breach of this Agreement and unfair
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competition; and Employee agrees not to engage in unfair competition either
during the time employed by Company or at any time thereafter in perpetuity.
(b) COMPETITIVE ACTIVITIES.
(1) SOLICITATION. Employee covenants and agrees that
during the Term and for a period of six (6) months after the termination of
Employee's employment under this Agreement, Employee shall not directly or
indirectly influence or attempt to influence or solicit present or future
customers, employees, performers or independent contractors of Company or any of
its affiliates to restrict, reduce, sever or otherwise alter their relationship
with Company or such affiliates.
(2) COOLING-OFF. Employee further covenants and
agrees that if Employee's employment is terminated prior to the expiration of
the Term pursuant to Section 2(a)(4) (without Cause) or any breach or other
early termination of the Agreement by Employee, during the remainder of the
unexpired Term (the "Cooling-Off Period"), Employee will not directly or
indirectly engage in the "Business" (as defined at the end of this Section
4(b)(2)) in the United States and Puerto Rico and any other country in which the
Company or any of its affiliates engages in such Business (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 of advertising,
news or programming of any kind or the distribution or transmission of any such
advertising, news or programming wherever produced, or (z) the advertising,
marketing, telemarketing or sale of any product, institution or service.
Employee also covenants and agrees that during the Cooling-Off Period Employee
will not (other than in the performance of Employee's duties under this
Agreement) join or participate with any person who is, or hereafter at any time
is engaged by Company or any of its affiliates as an officer, performer or
independent contractor in the conduct of any business, corporation, partnership,
firm or enterprise competing with the business of the Company or any of its
affiliates. For purposes of this subsection, "Business" means any and all forms
of media, communication and entertainment, including, without limitation,
television, radio, the internet (including e-services and e-commerce), music,
movies, theater, print and visual/audio entertainment via all methods of
delivery whether now known or hereafter developed or conceived.
(c) PROPRIETARY RIGHTS.
(1) WORKS MADE FOR HIRE. Employee acknowledges and
agrees that Employee is Company's employee "for hire." In this regard, all
right,
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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 trademarks, copyrights, films, scripts, ideas, writings
and discoveries, 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 subparagraph (3) below), 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 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.
(2) ASSIGNMENT. Employee hereby assigns to Company
all of Employee's right, title and interest, now owned or hereafter acquired by
Employee, in and to all of the foregoing. Employee agrees that, at Company's
request, whether during or subsequent to employment by Company, that Employee
shall do any and all acts, and execute and deliver to Company (in a form
satisfactory to 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 earlier of the discovery or creation thereof.
(3) DEEMED CREATIONS. Any patent, trademark,
copyright or other property relating to Company's actual or contemplated
business or activities, that is discovered, 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 Section 4(c), unless Employee can prove that the same was
conceived and made after such termination.
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5. CONFLICTS OF INTEREST. Employee represents and warrants that
Employee is familiar with the provisions of Sections 317 and 507 of the
Communications Act of 1934, as amended, recognizes Employee's responsibilities
and personal liabilities thereunder, and will fully comply with those provisions
during the Term. Specifically, Employee will not, without the prior knowledge
and written consent of Company in each instance: (a) engage in any business or
economic activity that would create a conflict of interest in the selection of
broadcast matter; (b) accept any favors, loans, entertainment or anything of
value from persons seeking the airing of any matter in return therefor; or (c)
promote over the air any activity or matter in which Employee or any affiliate
of Employee has a direct or indirect financial interest. Employee will provide
Company with such information and execute such certifications as Company may
from time to time reasonably require to enable Company to discharge its
obligations under the above-referenced statutory provisions.
6. 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 are personal and not assignable. Company will
have the right to assign its rights and obligations to any successor or
affiliate of Company.
(b) NOTICES. Any notice provided for in this Agreement shall
be in writing and sent:
If to Company to:
Xxxxxx X. Xxxxxx
Univision Communications Inc.
1999 Avenue of the Stars
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Fax: (000) 000-0000
With copies to:
Legal Department
Univision Communications Inc.
0000 Xxxxxx Xxxxx Xxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Fax: (000) 000-0000
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or at such other address as Company may from time to time in writing designate;
and, if to Employee, at such 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 will be deemed to have been given immediately if
communicated by telecopy or facsimile transmission, and two (2) business days
after they have been deposited, in the United States mail, certified, return
receipt requested, postage paid and properly addressed to the designated address
of the party to receive the notice (or on the date the return receipt is signed,
if later than two (2) business days).
(c) ENTIRE AGREEMENT. This instrument constitutes and contains
the entire agreement and final understanding concerning Employee's employment
and the other subject matters addressed herein between the parties. It is
intended by the parties as a complete and exclusive statement of the terms of
their agreement, and supersedes and replaces all prior negotiations and all
agreements, proposed or otherwise, whether written or oral, concerning the
subject matters hereof. Any representation, warranty, covenant or agreement not
specifically included in this Agreement will not be binding upon or enforceable
against either party. This is a fully-integrated agreement. No amendment or
modification of the terms of this Agreement will 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 will be deemed a waiver thereof or of
any other right, nor will any single or partial exercise preclude any further or
other exercise of such or any other right.
(e) CHOICE OF LAW. This Agreement shall be governed by and
construed in accordance with the internal laws of the State of California
applicable to contracts made and to be performed in such State and without
regard to conflicts of law doctrines, except to the extent that federal law
preempts certain matters.
(f) SEVERABILITY. If this Agreement for any reason is or
becomes unenforceable in any material respect by any party, it 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 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. In the event that
any portion of the second paragraph of Section 1 or any portion of Section 4 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
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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.
(g) WITHHOLDING. All compensation payable hereunder shall be
subject to applicable taxes, withholding, premium charges, co-payment of
benefits, self-insured retentions and other normal deductions.
(h) REMEDIES. Each of the parties to this Agreement will be
entitled to enforce its rights under this Agreement to recover damages by reason
of any breach of any provision of this Agreement and to exercise all other
rights at law or in equity 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 its sole
discretion apply to any court of law or equity or competent jurisdiction for
injunctive relief in order to enforce or prevent any violations of the
provisions of this Agreement. Such 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 under this Agreement 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.
(i) SURVIVAL. The provisions of Sections 2(b)(c), 3(d),
4(a)(b)(c), and 6(d)(e)(f)(h)(i) will survive the expiration or earlier
termination of this Agreement.
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