EXHIBIT 10.22
EMPLOYMENT AGREEMENT
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THIS EMPLOYMENT AGREEMENT (this "Agreement") is entered into as of November
1, 2000 by and between Telemundo Communications Group, Inc., a Delaware
Corporation (the "Company"), and Xxxxxxx X. Xxxxxxx ("Executive").
The parties hereby agree as follows:
1. TERM OF EMPLOYMENT. The Company hereby employs Executive, and Executive
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hereby accepts such employment, on the terms and subject to the conditions
hereinafter set forth, for a term (the "Employment Period") commencing on
November 1, 2000 and continuing until October 31, 2003. At the option of the
Company (the "Extension Option"), exercisable by delivery of written notice to
Executive at least one hundred and twenty (120) days prior to expiration of the
Employment Period, the Employment Period shall be extended for two (2)
additional years commencing on November 1, 2003 and ending on October 31, 2005
(the "Extension Period"). The Employment Period as extended by the Extension
Period, if any, will be referred to as the "Term". The expiration date of the
Term will be referred to as the "Expiration Date".
2. DUTIES AND PRIVILEGES. During the Term, Executive shall serve as Chief
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Financial Officer and Treasurer of the Company, its subsidiaries and divisions;
oversee all financial affairs of the Company, its subsidiaries and divisions; be
responsible to and report to the Chief Operating Officer of the Company (or, at
the discretion of the Company's Chief Executive Officer, the Chief Executive
Officer of the Company); perform such services as are consistent with
Executive's position hereunder as the Chief Financial Officer and Treasurer;
devote Executive's entire business time, ability and energy exclusively to the
performance of Executive's duties hereunder; and use Executive's best efforts to
advance the interests and businesses of the Company, its subsidiaries and
divisions. The Company shall have the right to transfer or assign this Agreement
to any of its Affiliates, provided that such Affiliate assumes the obligations
of the Company under this Agreement; provided, further, that upon any such
transfer or assignment, there is no Diminution in Duty or Designated Relocation,
as defined in Sections 4(g)(i) and 4(g)(ii).
3. COMPENSATION.
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(a) Base Salary. The Company shall pay to Executive a base salary at the
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rate of $250,000 per year during the period from November 1, 2000 through
October 31, 2001 ("Year 1"); $275,000 per year during the period from November
1, 2001, through October 31, 2002; $300,000 per year during the period from
November 1, 2002 through October 31, 2003; and, if the Extension Option is
exercised by the Company, $325,000 per year during the period of November 1,
2003 through October 31, 2004, and $350,000 per year for the period November 1,
2005 through October 31, 2005.
(b) Annual Bonus. Executive shall be eligible to earn an annual bonus in an
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amount not to exceed fifty percent (50%) of his then-current base salary in Year
1 and an in amount not to exceed sixty percent (60%) of his then-current base
salary for the other years of the Term. Fifty percent (50%) of each year's
annual bonus will be based on the achievement of pre-determined
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performance targets (for the Company and/or Executive) set by the Company, in
its sole discretion but in consultation with Executive, and fifty percent (50%)
will be discretionary, as decided by the Chief Executive Officer and Chief
Operating Officer in their sole discretion, which shall be final and binding.
Any annual bonus due hereunder will be paid within sixty (60) days after the end
of each calendar year, with the bonus due for any partial Contract Year to be
paid on a pro rata basis. The parties' acknowledge that Company has paid to
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Executive a bonus of $100,000 for the year 2000, in full and complete
satisfaction of Company's obligations under Executive's prior employment
agreement, dated as of January 1, 2000.
(c) Special Bonus. In adition to the other compensation payable hereunder,
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Company shall pay to Executive a one-time bonus payment (the "Special Bonus"),
on or before March 1, 2005, in an amount equal to the product of twenty-five
one-hundredths of one percent (0.25%) times the "Company Net Fair Market Value."
(i) The "Company Net Fair Market Value" equals the fair market value
of the Company as of November 1, 2004 ("Special Bonus Calculation Date) minus
$1,089,000,000 and minus all Indebtedness (as defined in the Standard Terms and
Conditions attached hereto as Exhibit "A") of the Company and its subsidiaries
as of the Special Bonus Calculation Date and minus the aggregate value of all
equity contributions made by the Company's shareholders from December 15, 2000
through and including the Special Bonus Calculation Date. The parties will
mutually agree on a method for determining the fair market value of the Company
by no later than March 1, 2002.
(ii) If Executive's employment is terminated prior to the Expiration
Date for any reason other than pursuant to Section 4(d), then the amount of the
Special Bonus payable to Executive will be equal to the Executive's vested
portion of such Bonus at the date of such termination. Executive's right to
receive the Special Bonus will vest 5% each February 1, May 1, August 1, and
November 1 (each, a "Vesting Date") during each of Years 1 through 5. The vested
portion of the Special Bonus will be the aggregate percentage vested as of the
Vesting Date immediately preceding the date of termination, and the Special
Bonus Calculation Date will be deemed to be the date on which Executive's
employment was terminated. If the Company does not exercise the Extension
Option, upon expiration of the Term, Executive's vested portion of the Special
Bonus will be 60%, and the Special Bonus Calculation Date will be the Expiration
Date. If Executive's employment is terminated prior to the Expiration Date
pursuant to Section 4(d), Executive will not be deemed to have vested in any
portion of the Special Bonus, and no amount will be owed to Executive pursuant
to this Section 3(c).
(iii) Upon a "Change in Control" of the Company (as defined in Section
4(g)(iii)), the Special Bonus shall become fully vested and shall be payable
within ninety (90) days after the closing of Change in Control transaction.
(iv) In the event that during the Term the Company elects to offer an
equity participation plan to its senior executives, Executive shall participate
in such plan to the same extent as other senior executives of the Company having
similar levels of responsibility and compensation, in place and instead of the
Special Bonus; provided, however, (i) that in no event shall such equity
participation awarded to Executive have a fair market value less than the value
of the Special Bonus (calculated as if the Special Bonus Calculation Date were
the date of the equity grant); and (ii) such equity participation shall vest in
no more than four (4) years. The
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determination of the fair market value of any equity participation granted
hereunder shall be determined in good faith, using customary valuation
techniques.
(d) Other Benefits.
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(i) During the Term, Executive shall be eligible to participate in all
then-operative employee benefit plans adopted and/or implemented by the Company
or its Affiliates that are applicable generally to executives of the Company
with comparable levels of responsibility and seniority ("Executive Benefit
Plans"), subject to the respective terms and conditions of any such Executive
Benefit Plans. Nothing contained in the Agreement shall obligate the Company
and/or any of its Affiliates to adopt or implement any Executive Benefit Plan,
or prevent or limit the Company and/or any of its Affiliates from making any
blanket amendments, changes, or modifications of the eligibility requirements or
any other provisions of, or terminating, any Executive Benefit Plan at any time
(whether during or after the Employment Period), and Executive's participation
in or entitlement under any such Executive Benefit Plan shall at all times be
subject in all respects thereto.
(ii) Executive shall be entitled to four (4) weeks of paid vacation
during each year of his employment by the Company to be taken in a manner
consistent with the Company's vacation policy for senior management level
employees. Executive shall not receive any additional compensation for any
vacation time not used by Executive.
(iii) 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 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.
4. EXPIRATION OF TERM AND TERMINATION.
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(a) Executive's employment by the Company and this Agreement shall
automatically expire and terminate on the Expiration Date, unless sooner
terminated pursuant to the provisions of this Section 4.
(b) Executive's employment by the Company and this Agreement shall
automatically terminate upon Executive's death.
(c) The Company shall have the right and option, exercisable by giving
written notice to Executive, to terminate Executive's employment by the Company
and this Agreement at any time after Executive has been unable to perform the
services or duties required of Executive in connection with Executive's
employment by the Company as a result of physical or mental disability (or
disabilities) which has (or have) continued for a period of twelve (12)
consecutive weeks, or for a period of sixteen (16) weeks in the aggregate,
during any twelve (12) month period.
(d) The Company shall have the right and option, exercisable by giving
written notice to Executive, to terminate Executive's employment by the Company
and this Agreement at any time after the occurrence of any of the following
events or contingencies (any such termination
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being deemed to be a termination "for cause"):
(i) Executive materially breaches, materially repudiates or otherwise
materially fails to comply with or perform any of the terms of this Agreement,
any duties of Executive in connection with Executive's employment by the Company
or any of the Company's policies or procedures, or deliberately interferes with
the compliance by any other employee of the Company with any of the foregoing;
provided, however, that if any action or omission by Executive constituting one
of the foregoing is curable and not "intentional" and does not constitute any of
the events or actions described in clause (ii) below, Executive shall have five
(5) business days to cure such breach following notice thereof from the Company
(which notice shall be written or, if immediate written notice is not possible,
oral notice may be given, provided that such oral notice is confirmed in writing
within the foregoing five (5) business day period.) (For purposes of this clause
(i) and clauses (iii) and (iv) below, an action (or omission) shall be deemed
"intentional" if Executive knows, or reasonably should have known, that such
action (or omission) constitutes a material breach hereof);
(ii) The commission by Executive of a felony (whether or not
prosecuted) or the pleading by Executive of no contest (or similar plea) to any
felony (other than a crime for which vicarious liability is imposed upon
Executive solely by reason of Executive's position with the Company, and not by
reason of Executive's conduct);
(iii) Any act or omission by Executive constituting fraud, gross
negligence or willful misconduct in connection with Executive's employment by
the Company; provided, however, that if any action or omission by Executive
constituting one of the foregoing is curable and not "intentional" and does not
constitute any of the events or actions described in clause (ii) above,
Executive shall have five (5) business days to cure such breach following notice
thereof from the Company (which notice shall be written or, if immediate written
notice is not possible, oral notice may be given, provided that such oral notice
is confirmed in writing within the foregoing five (5) business day period.); or
(iv) Any other act, omission, event or condition constituting cause
for the discharge of an employee under applicable law; provided, however, that
if any such act, omission, event or condition constituting one of the foregoing
is curable and not "intentional" and does not constitute any of the events or
actions described in clause (ii) above, Executive shall have five (5) business
days to cure such breach following notice thereof from the Company (which notice
shall be written or, if immediate written notice is not possible, oral notice
may be given, provided that such oral notice is confirmed in writing within the
foregoing five (5) business day period).
(e) The Company shall have no obligation to renew or extend the Term.
Neither (i) the expiration of the Term, (ii) the failure or refusal of the
Company to renew or extend the Term or Executive's employment by the Company
upon the Expiration Date nor (iii) the termination of this Agreement by the
Company pursuant to any provision of this Section 4, shall be deemed to
constitute a termination of Executive's employment by the Company "without
cause" for the purpose of triggering any rights of or causes of action at law or
equity by Executive.
(f) The Company shall not be obligated to utilize Executive's services or
any of the results and proceeds thereof or to permit Executive to retain any
corporate office or to continue to do so;
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and the Company shall have the unilateral right, at any time, without notice, in
the Company's sole and absolute discretion, to terminate Executive's employment
by the Company, without cause, and for any reason or for no reason (the
Company's "Termination Rights"). The Company's Termination Rights are not
limited or restricted by, and shall supersede, any policy of the Company
requiring or favoring continued employment of its employees during satisfactory
performance, any seniority system or any procedure governing the manner in which
the Company's discretion is to be exercised. No exercise by the Company of its
Termination Rights shall, under any circumstances, be deemed to constitute (i) a
breach by the Company of any term of this Agreement, express or implied
(including, without limitation, a breach of any implied covenant of good faith
and fair dealing), (ii) a wrongful discharge of Executive or a wrongful
termination of Executive's employment by the Company, (iii) a wrongful
deprivation by the Company of Executive's corporate office (or authority,
opportunities or other benefits relating thereto) or (iv) the breach by the
Company of any other duty or obligation, express or implied, which the Company
may owe to Executive pursuant to any principle or provision of law (whether
contract or tort).
(g) Executive shall have the right to terminate his employment hereunder
upon the occurrence of any event that constitutes "Good Reason" (as defined
below) if the Company fails to cure such Good Reason event within ten (10)
business days after receiving written notice from Executive which describes (A)
the alleged Good Reason and (B) the actions Executive believes are necessary to
cure such alleged Good Reason. "Good Reason" means any of the following events:
(A) a "Diminution in Duty," (B) a "Designated Relocation," (C) a "Change in
Control" or (D) any "Other Good Reason Event."
(i) "Diminution in Duty" means that, without Executive's prior written
consent, Executive (A) no longer holds the position of Chief Financial Officer
and Treasurer of the Company or its successor or (B) is required to report to
anyone other than the Chief Executive Officer or Chief Operating Officer of the
Company.
(ii) "Designated Relocation" means 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.
(iii) "Change in Control" means the acquisition by one or more
parties, other than any or all of the "Current Owners" (as defined in the
following sentence), of more than fifty percent (50%) of the outstanding
ownership interests in, or assets of, the Company in a single transaction or
series of related transactions. "Current Owners" means Sony Pictures
Entertainment Inc., Liberty Media Corporation, Council Tree Hispanic
Broadcasters, LLC, BCF Media, LLC, Xxxx-Xxxxxxxxxx Capital, LLC and their
respective "Affiliates." "Affiliate" means, with respect to a party, any other
party which is controlling of, controlled by or under common control with the
subject entity; "control" means the power to direct, directly or indirectly, the
policy and management of a party, whether by stock ownership, contract or
otherwise.
(iv) "Other Good Reason Event" means (A) the Company's exercise of its
Termination Rights under Section 4(f) or (B) any material breach of this
Agreement by Company.
(h) If this Agreement, the Term or Executive's employment by the Company is
terminated or
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expires pursuant to any provision of this Section 4 (other than pursuant to
Sections 4(f) or 4(g)), Executive's right to receive salary or other
compensation from the Company and all other rights and entitlements of Executive
pursuant to this Agreement or as an employee of the Company shall forthwith
cease and terminate, and the Company shall have no liability or obligation
whatsoever to Executive, except that:
(i) The Company shall be obligated to pay to Executive not later than
the effective date of such termination all unpaid salary, vacation and
reimbursable expenses which shall have accrued as of the effective date of such
termination; and
(ii) The terms and conditions of applicable Executive Benefit Plans,
if any, shall control Executive's entitlement, if any, to receive benefits
thereunder.
(iii) (i) If Executive's employment hereunder is terminated pursuant
to Section 4(f) or Section 4(g), the Company shall have no obligation or
liability to Executive pursuant to this Agreement or otherwise, except to pay to
Executive: (A) not later than the effective date of such termination all unpaid
vacation which shall have accrued as of the effective date of such termination;
(B) when otherwise due in accordance with Paragraph 2(d) of the attached
Standard Terms and Conditions, business expenses incurred by the Executive; (C)
the then-unpaid balance of any Annual Bonus due under Section 3(b); (D) the
portion of the Special Bonus due pursuant to Section 3(c)(ii); and (E) amounts
equal to the salary and benefits provided in Sections 3(a) and 3(d)(i) until the
Expiration Date, payable in the same installments and on the same dates as if
Executive's employment by the Company had not been terminated; provided,
however, that in the event of a termination by Executive due to a Change in
Control, the amounts payable under clause (E) shall be limited to the salary and
benefits provided in Sections 3(a) and 3(d)(i) for the lesser of twelve (12)
months from the effective date of such termination or the remainder of the Term.
Executive shall have no obligation to mitigate in order to receive the amounts
specified in the precious sentence; provided, however, that if Executive does
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receive compensation from a third party for services rendered (whether as an
employee or as an independent contractor) after such termination and prior to
the Expiration Date, then Company's payment obligations under this Section 4(i)
shall be offset by the amount of compensation so received by Executive.
Executive shall promptly notify the Company in writing of all such other
employment undertaken by Executive and the salary or other compensation received
therefrom. Executive agrees to provide the Company with a copy of any W-2 Wage
and Tax Statements which he receives from any entity other than the Company,
within thirty (30) days after his receipt thereof, during any period in which
the Company is required to pay Executive compensation after termination of
Executive's employment pursuant to Sections 4(f) and 4(g). The payments provided
herein shall be in lieu of all other rights of Executive hereunder and at law or
equity.
(j) Immediately upon any termination of Executive's employment hereunder or
of this Agreement (whether or not pursuant to this Section 4), Executive shall
return to the Company all property of the Company heretofore provided to
Executive by the Company or otherwise in the custody, possession or control of
Executive (including, without limitation, the "Confidential Materials" described
in Paragraph 6(b) of the attached Standard Terms and Conditions), but excluding
Executive's personal files and rolodex to the extent no Confidential Materials
are contained therein. Notwithstanding any provision of this Agreement to the
contrary, no termination of this Agreement or of Executive's employment for any
reason whatsoever shall in
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any manner operate to terminate, limit or otherwise affect the Company's
ownership of any of the rights, properties or privileges granted to the Company
hereunder.
5. EXECUTIVE TRAVEL. In the event that Executive is required to travel by
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airplane on Company business, Executive shall travel as follows: (a) coach class
on all domestic flights less than three (3) hours; (b) business class on all
domestic flights greater than three (3) hours and on all international flights
(including Puerto Rico). Executive may travel first class if business class is
not available on any flight on which Executive is permitted to fly business
class. Executive agrees to comply with all Company travel policies.
6. STANDARD TERMS. Attached as Exhibit A hereto and deemed a part hereof are the
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Company's Standard Terms and Conditions of Employment Agreement, all of which
terms are binding on the parties hereto and incorporated herein by reference.
For convenience, provisions of this Agreement shall be referred to as "Sections"
and provisions of the Standard Terms shall be referred to as "Paragraphs". In
the case of any conflict between the terms of this Agreement and the terms of
Exhibit A hereto, the terms of this Agreement shall govern.
7. EMPLOYMENT EXCLUSIVITY. Notwithstanding anything to the contrary contained
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herein, Executive may, during the term of his employment by the Company, serve
(A) on the board of directors of charitable organizations and (B) the Board of
Directors of JVB Financial Holdings, LLC; provided that no such activity
interferes with the performance of Employee's services hereunder.
8. SUPERSEDING AGREEMENT. This Agreement, including Exhibit A attached hereto
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and incorporated herein by reference, shall constitute the full and entire
understanding of the parties hereto with respect to the subject matter hereof
and shall supersede any prior agreements, negotiations, understandings and
representations (if any) with respect thereto.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement or
caused it to be executed on their behalf as of the date first above written.
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Xxxxxxx X. Xxxxxxx
TELEMUNDO COMMUNICATIONS GROUP, INC.
By:______________________________
Xxxx Xxxxx
Chief Operating Officer
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EXHIBIT A
STANDARD TERMS AND CONDITIONS OF EMPLOYMENT AGREEMENT
1. Definitions. All capitalized terms used herein shall have the meanings
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ascribed to them in the Agreement attached hereto. The following words, terms
and phrases (and variations thereof) used herein shall have the following
meanings:
(a) An "Affiliate" of a party means a Person which, directly or
indirectly, owns or controls, is owned or controlled by, or is under common
ownership or control with, such party.
(b) "Indebtedness" means:
(i) all indebtedness for borrowed money;
(ii) all obligations for the deferred purchase price of property and
assets or services (other than trade payable or other accounts payable incurred
in the ordinary course of business and not past due for more than 90 days after
the date on which such trade payable or account payable is created);
(iii) all obligations evidenced by notes, bonds, debentures, or other
similar instruments, or upon which interest payments are customarily made;
(iv) all obligations created or arising under any conditional sales or
other title retention agreement with respect to property or assets acquired
(even though the rights and remedies of the seller or the lender under such
agreement in the event of default are limited to repossession or sale of such
property or assets);
(v) all obligations as a lessee under any capitalized lease;
(vi) all obligations, contingent or otherwise, under acceptance,
letter of credit or similar facilities (other than letters of credit given in
support of trade payables incurred in the ordinary course of business and with
an expiration date of not more than 90 days after the date on which such letter
of credit was issued); and
(vii) all obligations under any synthetic lease, tax retention
operating lease, off balance sheet loan or similar off balance sheet financing
if the transaction giving effect to such obligation is considered indebtedness
for borrowed money for tax purposes but is classified as an operating lease in
accordance with GAAP.
Notwithstanding the foregoing, no amounts shall be included as Indebtedness
hereunder unless such amounts are actually paid to the Company or one or more of
its subsidiaries or to a third party on behalf of the Company or one or more of
its subsidiaries,
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(c) "Intellectual Property" means any and all intellectual, artistic,
literary, dramatic or musical rights, works or other materials of any kind or
nature (whether or not entitled to protection under applicable copyright laws,
or reduced to or embodied in any medium or tangible form), including, without
limitation, all copyrights, patents, trademarks, service marks, trade secrets,
contract rights, titles, characters, plots, themes, dialogue, stories, scripts,
treatments, outlines, submissions, ideas, concepts, packages, compositions,
artwork and logos, and all audio, visual or audio-visual works of every kind and
in every stage of development, production and completion, and all rights to
distribute, advertise, promote, exhibit or otherwise exploit any of the
foregoing by any means, media or processes now known or hereafter devised.
(d) "Spanish-Language Media Business" means any Person engaging in any
of the following in the United States or its territories or possessions: (i) the
creation, production, distribution, exhibition or other exploitation of
Spanish-language television programs; (ii) Spanish-language television
(including pay, free, over-the-air, cable and satellite); or (iii)
Spanish-language advertising.
(e) "Person" means any individual, corporation, trust, estate,
partnership, joint venture, company, association, league, group, governmental
agency or other entity of any kind or nature.
(f) "Restricted Period" means and shall be limited to the meaning
provided with respect to the first of the following events to occur during the
Employment Period:
(i) if this Agreement and Executive's employment hereunder is
terminated by the Company "for cause" then the term Restricted Period shall mean
and be limited to the term of Executive's employment by the Company plus a
period of time equal to six (6) months immediately following such termination;
or
(ii) if this Agreement and Executive's employment hereunder is
terminated by the Company for any reason other than "for cause" then the phrase
Restricted Period shall mean and be limited to the term of Executive's
employment by the Company.
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2. Compensation; Business Expenses.
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(a) Executive's salary shall be payable in equal installments (not less
frequently than monthly) in accordance with the Company's customary payroll
practices. No additional compensation shall be payable to Executive by reason of
the number of hours worked or by reason of any hours worked on Saturdays,
Sundays, holidays or otherwise. All compensation payable to Executive hereunder
(whether in the form of salary, benefits or otherwise) shall be subject to all
applicable laws, statutes, governmental regulations or orders, the terms of all
applicable Executive Benefit Plans and the terms of all agreements between or
binding upon the Company and Executive requiring the deduction or withholding of
any amounts from such payments, and the Company shall have the right to make
such deductions and withholdings in accordance with the Company's interpretation
thereof in the Company's sole discretion.
(b) Subject to Section 4 of the Agreement, Executive shall be eligible
to participate in fringe benefits, if any, maintained by the Company for
employees generally on the same basis as comparable employees of the Company.
(c) Subject to the requirements of Executive's position and corporate
office, Executive shall be entitled to annual vacations in accordance with the
Company's vacation policy in effect from time to time.
(d) The Company recognizes that, in connection with Executive's
performance of Executive's duties and obligations hereunder, Executive will
incur certain ordinary and necessary expenses of a business character. The
Company shall reimburse to Executive all such business expenses upon the
presentation of itemized statements of such expenses, provided their extent and
nature are approved in accordance with the policies and procedures of the
Company.
3. Right to Insure. The Company shall have the right to secure, in its own
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name or otherwise and at its own expense, life, health, accident or other
insurance covering or otherwise insuring Executive, and Executive shall have no
right, title or interest in or to any such insurance or any of the proceeds or
benefits thereof. Executive shall fully assist and cooperate with the Company in
procuring any such insurance, including, without limitation, by submitting to
such examinations, and by signing such applications and other instruments, as
may reasonably be required by any insurance carrier to which application is made
by the Company for any such insurance.
4. Employment Exclusivity. For such period of time as Executive shall be
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employed by the Company Executive shall not (a) perform services for any Person
other than the Company or its Affiliates without the prior written consent of
the Company, (b) engage in any activity that would interfere with the
performance of Executive's services hereunder or (c) become financially
interested in or associated with, directly or indirectly, any Spanish-Language
Media Business other than the Company.
5. Interest In Other Corporations. Notwithstanding anything to the contrary
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contained in Paragraph 4 hereof, Executive may own up to one percent (l%) of any
class of any
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Person's outstanding securities which are listed on any national securities
exchange, registered under Section 12(g) of the Securities Exchange Act of 1934
or otherwise publicly traded, provided that the holdings of Executive of any
such security of a Spanish-Language Media Business do not represent more than
ten percent (10%) of the aggregate of Executive's investment portfolio at any
time.
6. Ownership of Work Product; Confidentiality; Non-Compete; Etc.
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(a) Executive covenants and agrees that all copyrights, patents, trade
secrets or other intellectual property rights associated with any ideas,
concepts, techniques, inventions, processes or works of authorship developed or
created by Executive within the scope of his employment by the Company
(collectively, the "Work Product") shall belong exclusively to the Company and
shall, to the extent possible, be considered work made by Executive for hire for
the Company within the meaning of the copyright laws of the United States. To
the extent the Work Product may not be considered work made by Executive for
hire for the Company, Executive agrees to assign, and automatically assigns at
the time of creation of the Work Product, without any requirement of further
consideration, any right, title or interest Executive may have in such Work
Product. Upon request of the Company, Executive shall take such further action,
including execution and delivery of instruments of conveyance, as may be
appropriate to give full and proper effect to such assignment. Additionally, the
Company shall reimburse Executive for all reasonable and actual expenses
properly incurred by Executive in connection with Executive's provision of such
assistance; provided, however, that proper vouchers are submitted to the Company
by Executive evidencing such expenses and the purposes for which the same were
incurred.
(b) All information, documents, notes, memoranda and Intellectual
Property of any kind received, compiled, produced or otherwise made available to
Executive during or in connection with Executive's employment by the Company
relating in any way to the business of the Company or of any of its Affiliates
and which has not been previously published or otherwise disclosed to the
general public or not previously made available without restriction to the
receiving party or others ("Confidential Materials") shall be the sole and
exclusive property of the Company and shall in perpetuity (both during and after
Executive's employment by the Company) be maintained in utmost confidence by
Executive and held by Executive in trust for the benefit of the Company.
Executive shall not during the Employment Period or at any time thereafter
directly or indirectly release or disclose to any other Person any Confidential
Materials, except with the prior written consent of the Company and in
furtherance of the Company's business or as required by law.
(c) During the Restricted Period (and, in the case of clause (i) below,
for a period of six (6) months thereafter) Executive shall not (without the
Company's consent), directly or indirectly, nor shall Executive during such time
period authorize or assist any other Person to, solicit, entice, persuade or
induce any Person to do any of the following:
(i) Terminate or refrain from extending or renewing (on the same or
different terms) such Person's employment by, or contractual or business
relationship with, the Company or any of its Affiliates; or
(ii) Engage in any Spanish-Language Media Business in the United
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States for any Person other than the Company or its Affiliates.
(d) Executive recognizes and agrees that (i) the enforcement of this
Paragraph 6 is reasonably necessary to protect the legitimate business interests
of the Company and that, due to the proprietary nature of the Company's
business, (ii) the restrictions set forth above are reasonable as to duration,
scope and geographic area and that the material breach or threatened breach of
such restrictions will result in irreparable injury to the Company. In the event
that any court or tribunal shall at any time hereafter hold any covenants or
restrictions contained in this Agreement to be unenforceable or unreasonable as
to duration, scope or geographic area, such court shall have the power, and is
specifically requested by Executive and the Company, to declare or determine the
duration, scope or geographic area that it deems to be reasonable or enforceable
and to enforce the restrictions contained therein to such extent.
(e) The Company shall have the right to use Executive's name, approved
biography and/or likeness (such approval not to be unreasonably withheld) in
connection with its business, including in advertising its products and
services, and may grant this right to others, but not for use as an endorsement
(direct or indirect), tie-up or tie-in.
7. Warranties and Covenants. Executive warrants, represents and covenants
------------------------
to the Company as follows:
(a) Executive is free to enter into this Agreement and to perform the
services contemplated hereunder.
(b) Executive is not currently (and will not, to the best knowledge and
ability of Executive, at any time during the Employment Period be) subject to
any agreement, understanding, obligation, claim, litigation, condition or
disability which could adversely affect Executive's performance of any of
Executive's obligations hereunder or the Company's complete ownership and
enjoyment of all of the rights, powers and privileges granted to the Company
hereunder.
(c) No Intellectual Property written, composed, created or submitted by
Executive at any time during Executive's employment by the Company shall, to the
best of Executive's knowledge, violate the rights of privacy or publicity,
constitute a libel or slander or infringe upon the copyright, literary,
personal, private, civil, property or other rights of any Person.
8. Employment after Expiration Date. Executive's employment by the Company
--------------------------------
may be continued beyond the Expiration Date by the express consent of both
parties (which consent each party shall have the right to grant or withhold in
its sole and absolute discretion). In the event of any such continuation of
Executive's employment by the Company beyond the Expiration Date, the
relationship between the Company and Executive shall be that of
employment-at-will that may be terminated by either the Company or Executive at
any time upon ten (10) days' prior written notice, with or without cause, for
any reason or for no reason, and without liability of any nature. Executive's
employment by the Company, if any, after the Expiration Date shall be governed
by all of the terms and conditions of this Agreement not inconsistent with the
at-will nature of such employment.
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9. Intentionally Omitted.
---------------------
10. Equitable Relief. Executive acknowledges that the services to be
----------------
rendered by Executive under this Agreement, and the rights and privileges
granted by Executive to the Company hereunder, are of a special, unique,
extraordinary and intellectual character which gives them a peculiar and special
value, the loss of which cannot be reasonably or adequately compensated in
damages in an action at law, and a breach by Executive of any of the provisions
hereof will cause the Company great and irreparable injury. Executive
acknowledges that the Company shall, therefore, be entitled, in addition to any
other remedies which it may have under this Agreement or at law, to receive
injunctive and other equitable relief (including, without limitation, specific
performance) to enforce any of the rights and privileges of the Company or any
of the covenants or obligations of Executive hereunder. Nothing contained
herein, and no exercise by the Company of any right or remedy, shall be
construed as a waiver by the Company of any other rights or remedies that the
Company may have.
11. Governing Law; Jurisdiction; Venue and Arbitration Proceedings.
--------------------------------------------------------------
(a) This Agreement and all transactions contemplated by this Agreement
shall be governed by, and construed and enforced in accordance with, the laws of
the State of Florida. The parties acknowledge that a substantial portion of the
negotiations and anticipated performance of this Agreement occurred or shall
occur in Miami, Florida. Accordingly, except with respect to claims subject to
arbitration under this Agreement, any civil action or legal proceeding arising
out of or relating to this Agreement shall be brought in the courts of record of
the State of Florida in the City of Miami or the United States District Court
located within the City of Miami. Each party consents to the jurisdiction of
such court in any such civil action or legal proceeding and waives any objection
to the laying of venue of any such civil action or legal proceeding in such
court. Service of any court paper may be effected on such party by mail, as
provided in this Agreement, or in such other manner as may be provided under
applicable laws, rules of procedure or local rules.
(b) (i) In the event there is any dispute arising out of or related to
Executive's employment by the Company (including termination of such
employment), which the parties are unable to resolve through direct discussion
or mediation, regardless of the kind or type of dispute, Executive and the
Company hereby agree to submit all such disputes exclusively to final and
binding arbitration pursuant to the provisions of the Federal Arbitration Act,
or any successor or replacement statute, upon a request submitted in writing to
the other party within one year of the date when the dispute first arose, or
within one year of the termination of Executive's employment by the Company,
whichever occurs first; provided, however, that if any such dispute arises under
a statute providing for a longer time to file a claim, the limitations period of
that statute shall govern. Any such arbitration shall be (x) held within Miami,
Florida, (y) administered by the American Arbitration Association (the "AAA")
under its then prevailing National Rules for the Resolution of Employment
Disputes and (z) decided by one (1) arbitrator appointed in accordance with such
Rules. The fees of such arbitrator and the cost related to the arbitration
hearing shall be paid by the Company. Each party shall pay the expenses of
his/its attorneys, except that the arbitrator shall, as provided by law, be
entitled to award the costs of arbitration, attorney's and expert's fees, as
well as costs, to the party that the arbitrator determines to be the prevailing
party in any such arbitration. The AAA maintains a web site (xxxx://xxx.xxx.xxx)
------------------
that contains a copy of its National Rules for the Resolution of
13
Employment Disputes. The parties may conduct reasonable discovery, including
depositions, before the arbitration hearing. The arbitrator shall be empowered
to award either party any remedy at law or in equity otherwise available had the
claim been litigated in court. Judgment upon the award rendered by the
arbitrator as provided herein shall be final and binding upon all parties and
may be entered by any court having jurisdiction thereof. Failure to timely
request arbitration as provided herein shall constitute a waiver of all rights
to raise any claims in any forum arising out of any dispute that was subject to
arbitration under this Agreement. The limitations period set forth in this
Paragraph shall not be subject to tolling, equitable or otherwise.
(ii) The claims subject to arbitration under this Agreement include,
but are not limited to, any claims relating to Executive's employment or the
termination thereof, including claims that Executive may have against the
Company and/or its Affiliates and/or their respective officers, directors,
employees, successors or assigns for breach of contract (express or implied),
discrimination (including, but not limited to, race, color, religion, sex,
national origin, age, disability, sexual orientation, marital status, and arrest
and court record), compensation and benefits claims, tort claims, and claims for
violation of any federal, state or local law, statute, regulation or ordinance.
However, nothing in this Agreement shall be construed as precluding (a) either
party from filing criminal charges, as applicable, or (b) the Executive from
filing a charge with the Equal Employment Opportunity Commission ("EEOC"), the
National Labor Relations Board ("NLRB"), the Workers Compensation Appeals Board
or other federal, state or local agencies, seeking administrative assistance in
resolving claims. However, any claim that cannot be resolved administratively
through such an agency shall be subject to arbitration as provided herein.
Notwithstanding anything to the contrary contained herein, requests for
injunctive relief by either party shall NOT be submitted to arbitration, and the
parties hereby stipulate to stay any related arbitration proceeding until any
such requests for injunctive relief are resolved. This Paragraph shall survive
the expiration or termination of this Agreement and/or the cessation of
Executive's employment by the Company, however the same shall occur.
(c) Except as provided herein with respect to arbitration proceedings,
if any civil action or other legal proceeding is brought for the enforcement of
this Agreement, or because of an alleged dispute, breach, default or
misrepresentation in connection with any provision of this Agreement, the
successful or prevailing party or parties shall be entitled to recover
reasonable attorneys' fees, court costs and all expenses even if not taxable as
court costs (including, without limitation, all such fees, taxes, costs and
expenses incident to appellate, bankruptcy and post-judgment proceedings),
incurred in that civil action or legal proceeding, in addition to any other
relief to which such party or parties may be entitled. Attorneys' fees shall
include, without limitation, paralegal fees, investigative fees, administrative
costs and all other charges reasonably billed by the attorney to the prevailing
party.
12. Notices. All notices, requests, consents and other communications
required or permitted under this Agreement shall be in writing (including
electronic transmission) and shall be (as elected by the person giving such
notice) hand delivered by messenger or courier service, electronically
transmitted, or mailed (airmail if international) by registered or certified
mail (postage prepaid), return receipt requested, addressed to:
(a) if to the Company:
-----------------
14
Telemundo Communications Group, Inc.
0000 Xxxx 0xx Xxxxxx
Xxxxxxx, Xxxxxxx 00000
Attention: General Counsel
Telecopier: (000) 000-0000
(b) if to Executive:
---------------
Xxxxxxx X. Xxxxxxx
____________________________
____________________________
or to such other address as any party may designate by notice complying with the
terms of this Paragraph 12. Each such notice shall be deemed delivered (a) on
the date delivered if by personal delivery; (b) on the date of transmission with
confirmed answer back if by electronic transmission; and (c) on the date upon
which the return receipt is signed or delivery is refused or the notice is
designated by the postal authorities as not deliverable, as the case may be, if
mailed.
13. Service as Expert Witness. Executive acknowledges that during the
-------------------------
Employment Period Executive will have access to confidential and proprietary
information concerning the Company, including, without limitation, access to
various proprietary and confidential contracts and financial data. Executive
agrees that Executive shall not at any time either during or after the term of
this Agreement serve as an "expert witness" or in any similar capacity in any
litigation or other proceeding to which the Company or any of its Affiliates is
a party without the prior written consent of the Company or such Affiliate, as
the case may be.
14. Miscellaneous.
-------------
(a) This Agreement and the exhibits hereto contain a complete statement
of all of the arrangements between the parties with respect to Executive's
employment by the Company, supersede all existing agreements between them
concerning Executive's employment and cannot be changed or terminated orally. No
provision of this Agreement shall be interpreted against any party because that
party or its legal representative drafted the provision. There are no
warranties, representations or covenants, oral or written, express or implied,
except as expressly set forth herein. Executive acknowledges that Executive does
not rely and has not relied upon any representation or statement made by the
Company or any of its representatives relating to the subject matter of this
Agreement except as set forth herein.
(b) If any provision of this Agreement or any portion thereof is
declared by any court of competent jurisdiction to be invalid, illegal or
incapable of being enforced, the remainder of such provision, and all of the
remaining provisions of this Agreement, shall continue in full force and effect
and no provision shall be deemed dependent on any other provision unless so
expressed herein.
(c) The failure of a party to insist on strict adherence to any term of
this Agreement shall not be considered a waiver of, or deprive that party of the
right thereafter to insist on strict adherence to, that term or any other term
of this Agreement.
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(d) The headings in this Agreement (including the exhibits hereto) are
solely for convenience of reference and shall not affect its interpretation.
(e) The relationship between Executive and the Company is exclusively
that of employer and employee, and the Company's obligations to Executive
hereunder are exclusively contractual in nature.
(f) Executive shall, at the request of the Company, execute and deliver
to the Company all such documents as the Company may from time to time deem
necessary or desirable to evidence, protect, enforce or defend its right, title
and interest in or to any Confidential Materials, Intellectual Property or other
items described in Paragraph 6 hereof. If Executive shall fail or refuse to
execute or deliver to the Company any such document upon request, the Company
shall have, and is granted, the power and authority to execute the same in
Executive's name, as Executive's attorney-in-fact, which power is coupled with
an interest and irrevocable.
(g) The Company may assign this Agreement, Executive's services
hereunder or any of the Company's interests herein (i) to any Person which is a
party to a merger or consolidation with the Company, or (ii) to any Person
acquiring substantially all of the assets of the Company or the unit of the
Company for which Executive is rendering services; and, provided that any such
assignee assumes the Company's obligations under this Agreement, the Company
shall thereupon be relieved of any and all liability hereunder. Executive shall
not have the right to assign this Agreement or to delegate any duties imposed
upon Executive under this Agreement without the prior written consent of the
Company, and, unless such consent is granted, any such purported assignment or
delegation shall be void ab initio.
-- ------
[End of Exhibit A]
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