EXHIBIT 10.11
EMPLOYMENT AGREEMENT
This Employment Agreement (the "Agreement") entered into as of August 1,
2000, by and between Entravision Communications Corporation, a Delaware
corporation (together with its successors and assigns permitted under the
Agreement) (herein the "Company"), and Xxxxxx X. Xxxxxxxxx (herein "Executive")
with reference to the following facts:
WHEREAS, Executive has been employed pursuant to the terms of that certain
Employment Agreement by and between Entravision Communications Company, L.L.C.
(as predecessor to the Company) and Executive dated October 1, 1996 (the
"Original Agreement").
WHEREAS, the Company and Executive desire to enter into an agreement to
provide for Executive's employment by the Company, upon the terms and conditions
set forth herein.
WHEREAS, the Company and Executive desire to supersede and terminate the
Original Agreement in its entirety.
NOW, THEREFORE, the parties hereto, intending to be legally bound, hereby
agree as follows:
1. Employment. The Company hereby agrees to Executive's employment, and
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Executive hereby accepts such employment and agrees to perform his duties and
responsibilities, in accordance with the terms and conditions hereinafter set
forth.
1.1 Employment Term. The term of Executive's employment under this
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Agreement shall commence as of the date hereof (the "Effective Date") and shall
continue until the fifth (5/th/) anniversary of the Effective Date, unless
earlier terminated in accordance with Section 4 or Section 5 hereof. The period
commencing as of the Effective Date and ending on the fifth (5/th/) anniversary
of the Effective Date, or such later date to which the term of Executive's
employment under the Agreement shall have been extended is hereinafter referred
to as the "Employment Term."
1.2 Duties and Responsibilities. Executive shall serve as President
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and Chief Operating Officer of the Company. During the Employment Term,
Executive shall perform all duties and accept all responsibilities incident to
such position or other appropriate duties as may be assigned to him by the
Company's Board of Directors (the "Board"). Except to attend to those business
interests of Executive set forth on Schedule 1.2 attached hereto and
incorporated herein by this reference and any Opportunity (as defined in Section
3.2 hereof) which Executive pursues pursuant to Section 3.2, Executive shall
devote his full productive time and best efforts to the performing of his duties
and responsibilities under this Section 1.2.
1.3 Base Salary. For all of the services rendered by Executive
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hereunder for the first calendar year following the Effective Date, the Company
shall pay Executive an annual
base salary (his "Base Salary") of Six Hundred Thousand Dollars ($600,000),
payable in installments at such times as the Company shall pay its other senior
level executives (but in any event no less often than monthly). On each of the
first four (4) anniversaries of the Effective Date, Executive's base salary
shall be increased by an increment of Fifty Thousand Dollars ($50,000).
1.4 Annual Bonus. In addition to the Base Salary provided for in
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Section 1.3 above, the Company shall pay Executive an annual bonus (the "Annual
Bonus") in an amount equal to: (i) seventy-five percent (75%) of Executive's
then-current Base Salary each calendar year during the Employment Term if the
total Company annual growth rate of earnings before interest, taxes,
depreciation and amortization as computed in accordance with generally accepted
accounting principles ("EBITDA") (pro forma as defined by the Board's
Compensation Committee) exceeds twenty percent (20%) over the previous calendar
year, sixty-three percent (63%) if EBITDA growth rate exceeds seventeen percent
(17%) over the previous calendar year, and fifty percent (50%) of the Base
Salary will be paid to Executive if EBITDA growth rate exceeds fourteen percent
(14%) over the previous calendar year and (ii) up to an additional twenty-five
percent (25%) of Executive's Base Salary may be paid at the end of each calendar
year based upon the discretion of the Compensation Committee of the Company's
Board taking into account achievement of operating and financial performance
goals and the increase in stockholder value. The Annual Bonus for any partial
calendar year within the Employment Term shall be prorated and the EBITDA growth
targets shall be adjusted proportionately. The Annual Bonus will be payable
promptly after the issuance of the Company's year-end audited financial
statements.
1.5 Equity Incentives. Executive shall be eligible for grants of
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stock options, restricted stock and other equity incentives pursuant to the
Entravision Communications Corporation 2000 Omnibus Equity Incentive Plan and
any future equity incentive plans.
1.6 Automobile Allowance. During the Employment Term, Executive
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shall be entitled to receive a $1,000 monthly automobile allowance, payable
monthly in advance, which shall include all costs attendant to the use of the
automobile, including, but not limited to, liability and property insurance
coverage, costs of maintenance and fuel. Notwithstanding the foregoing, the
amount of the monthly automobile allowance shall be reviewed by the Company
annually.
1.7 Benefit Coverages. During the Employment Term, Company shall
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provide medical and dental coverage for Executive and Executive's dependents at
no cost to Executive. During such Employment Term, Executive shall also be
entitled to participate in all employee pension and welfare benefit plans and
programs made available to the Company's senior level executives as a group or
to its employees generally, as such plans or programs may be in effect from time
to time (the "Benefit Coverages"), including without limitation, pension, profit
sharing, savings and other retirement plans or programs, short-term and long-
term disability and life insurance plans, accidental death and dismemberment
protection and travel accident insurance.
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1.8 Reimbursement of Expenses; Vacation; Residence. Executive shall
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be provided with full and prompt reimbursement of expenses related to his
employment by the Company (including mobile telephone usage) on a basis no less
favorable than that which may be authorized from time to time by the Board, in
its sole discretion, for senior level executives as a group, and entitled to not
less than four (4) weeks vacation per year and holidays in accordance with the
Company's normal personnel policies. Executive currently resides in the San
Diego, California area, and the Company agrees that he shall not be required to
relocate his residence from that area without his prior written consent (which
may be withheld in his sole discretion), or from any other area to which he may
voluntarily move with the Company's prior written consent, during the Employment
Term.
1.9 Tax Withholding. The Company may withhold from any compensation
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or other benefits payable under this Agreement all federal, state, city or other
taxes as shall be required pursuant to any law or governmental regulation or
ruling.
1.10 Life Insurance. The Company may obtain a "key man" life
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insurance policy, or policies, on the life of Executive in face amounts to be
determined by the Company. The Company shall be the owner and beneficiary of
such life insurance policy; provided, however, upon the termination of
Executive's employment with the Company for any reason, the Company shall, upon
Executive's request, assign such life insurance to Executive, subject to the
Executive's obligation to maintain such life insurance after the Employment
Term. Executive agrees to submit to a physical examination at any reasonable
time requested by the Company for the purpose of obtaining life insurance on the
life of Executive; provided, however, that the Company shall bear the entire
cost of such examination.
2. Indemnification; Insurance. The Company shall indemnify the Executive
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to the fullest extent allowed by applicable law pursuant to that certain
Indemnification Agreement dated July 1, 2000, between the Executive and the
Company attached hereto as Exhibit "A" and incorporated herein by this
reference, as the same may be amended from time to time. The Executive shall be
covered by the Company's director and officer liability insurance policy, if
any.
3. Proprietary Information; Non-Compete.
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3.1 Confidential Information. Executive recognizes and acknowledges
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that by reason of his employment by and service to the Company during and, if
applicable, after the Employment Term, he has had and will continue to have
access to certain confidential and proprietary information relating to the
Company's business ("Confidential Information"). Executive covenants that he
will not, unless expressly authorized in writing by the Company, at any time
during the course of his employment divulge or disclose any Confidential
Information to any person, firm or corporation except in connection with the
performance of his duties for the Company and in a manner consistent with the
Company's policies regarding Confidential Information. Executive also covenants
that at any time after the termination of such employment, directly or
indirectly, he will not divulge or disclose any Confidential Information
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to any person, firm or corporation, unless such information is in the public
domain through no fault of Executive or except when required to do so by law.
All written Confidential Information (including without limitation, in any
computer or other electronic format) which comes into Executive's possession
during the course of his employment shall remain the property of the Company.
Except as required in the performance of Executive's duties for the Company, or
unless expressly authorized in writing by the Company, Executive shall not
remove any written Confidential Information from the Company's premises, except
in connection with the performance of his duties for the Company and in a manner
consistent with the Company's policies regarding Confidential Information. Upon
termination of Executive's employment, Executive agrees immediately to return to
the Company all written Confidential Information in his possession.
3.2 Non-Compete. Except for those existing business activities set
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forth on Schedule "1.2" attached hereto, Executive shall not engage in,
independently or with others, any business activity of any type or description
that is in competition with the Company. Notwithstanding the foregoing,
Executive may own securities of publicly traded or private companies competitive
with the business of Company so long as such shares do not constitute five
percent (5%) or more of the outstanding securities of any such company.
Executive further agrees that for as long as the Agreement remains in
effect and for a period of twelve (12) months after the termination of this
Agreement by Company for Cause or by Executive after a Constructive Termination
Without Cause (as defined in Section 4.4 below), Executive will not induce or
attempt to induce, directly or indirectly, any person to leave his or her
employment with Company.
4. Termination. The Employment Term shall terminate upon the occurrence
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of any one of the following events:
4.1 Disability. The Company may terminate the Employment Term if
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Executive is unable substantially to perform his duties and responsibilities
hereunder to the full extent required by the Company by reason of illness,
injury or incapacity for six (6) consecutive months, or for more than six (6)
months in the aggregate during any period of twelve (12) calendar months. In
the event of such termination, the Company shall pay Executive his Base Salary
through the date of such termination. In addition, Executive shall be entitled
to the following: (i) a pro rata Annual Bonus for the year of termination; (ii)
any other amounts earned, accrued or owing but not yet paid under Section 1
above; (iii) continued participation for the Remaining Employment Term in those
Benefit Coverages in which he was participating on the date of termination
which, by their terms, permit a former employee to participate; and (iv) any
other benefits in accordance with applicable plans and programs of the Company.
In such event, the Company shall have no further liability or obligation to
Executive for compensation under this Agreement except as otherwise specifically
provided in this Agreement. Executive agrees, in the event of a dispute under
this Section 4.1, to submit to a physical examination by a licensed physician
selected by the Company. The Company agrees that Executive shall have the right
to
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have his personal physician present at any examination conducted by the
physician selected by the Company.
4.2 Death. The Employment Term shall terminate in the event of
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Executive's death. In such event, the Company shall pay to Executive's
executors, legal representatives or administrators, as applicable, Executive's
Base Salary through the date of such termination. In addition, Executive's
estate shall be entitled to (i) a pro rata Annual Bonus for the year of
termination; (ii) any other amounts earned, accrued or owing but not yet paid
under Section 1 above; and (iii) any other benefits in accordance with
applicable plans and programs of the Company. The Company shall have no further
liability or obligation under this Agreement to his executors, legal
representatives, administrators, heirs or assigns or any other person claiming
under or through him except as otherwise specifically provided in this
Agreement.
4.3 Cause. The Company may terminate the Employment Term, at any
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time, for "Cause," in which event all payments under this Agreement shall cease,
except for Base Salary to the extent already accrued. For purposes of this
Agreement, Executive's employment may be terminated for "Cause" (i) immediately
if Executive is convicted of a felony, or (ii) following the determination by
the Board (without Executive's participation) that Executive has engaged in
intentional fraud or intentional misappropriation of Company assets.
4.4 Termination by the Company Without Cause. The Company may
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terminate the Employment Term, at any time, without Cause. In the event
Executive is terminated without Cause, Executive shall be entitled to receive:
(i) any amounts earned, accrued or owing but not yet paid pursuant to Section 1
above; (ii) a lump sum severance payment in an aggregate amount equal to the
remaining balance of Executive's Employment Term (calculated as a fraction with
twelve (12) months equaling one (1)) times the sum of Executive's then-current
base salary and Executive's then-current maximum bonus pursuant to Section 1.4
above (computed by annualizing the Company's EBITDA through the end of the year
of termination); (iii) a continuation of all Benefit Coverages for which
Executive is eligible to participate as of the Termination Date in a fashion
which is similar to those which Executive is receiving immediately prior to the
Termination Date for a period of two (2) years after such termination without
cause; and (iv) acceleration of all unvested stock options or other equity
incentives held by Executive. Amounts payable and benefits to be received
pursuant to subsections (i), (ii), (iii) and (iv) of the preceding sentence will
be collectively referred to herein as the "Severance Package."
4.5 Constructive Termination Without Cause.
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(a) Constructive Termination Without Cause shall mean a
termination of the Executive's employment at his initiative following the
occurrence, without the Executive's written consent, of one or more of the
following events:
i) a reduction in Executive's then current Base Salary;
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ii) a material diminution in Executive's duties, title,
responsibilities, authority as President and Chief Operating Officer or the
assignment to Executive of duties which are materially inconsistent with
his duties or which materially impair the Executive's ability to function
in his then current position; and
iii) a requirement by the Company that Executive move his
residence from San Diego, California, or from any other area to which he
may have voluntarily moved with the Company's prior written consent.
(b) In the event of a Constructive Termination Without Cause,
Executive shall be entitled to receive the Severance Package.
5. Payments Upon a Change in Control.
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5.1 Definitions. For all purposes of this Section 5, the following
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terms shall have the meanings specified in this Section 5.1 unless the context
clearly otherwise requires:
(a) "Change in Control" means:
(i) a merger or acquisition in which the Company is not
the surviving entity, except for a transaction the principal purpose of which is
to change the State of the Company's incorporation;
(ii) a stockholder approved sale, transfer or other
disposition of all or substantially all of the assets of the Company;
(iii) a transfer of all or substantially all of the
Company's assets pursuant to a partnership or joint venture agreement or similar
arrangement where the Company's resulting interest is less than fifty percent
(50%);
(iv) any reverse merger in which the Company is the
surviving entity but in which fifty percent (50%) or more of the Company's
outstanding voting stock is transferred to holders different from those who held
the stock immediately prior to such merger;
(v) on or after the date hereof, a change in ownership of
the Company through an action or series of transactions, such that any person is
or becomes the beneficial owner, directly or indirectly, of securities of the
Company representing fifty percent (50%) or more of the securities of the
combined voting power of the Company's outstanding securities; or
(vi) a majority of the members of the Board are replaced
during any twelve-month period by directors whose appointment or election is not
endorsed by a majority of the members of the Board prior to the date of such
appointment of election.
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(b) "Termination Date" shall mean the date of receipt of a
Notice of Termination of this Agreement or any later date specified therein.
(c) "Termination of Employment" shall mean the termination of
Executive's actual employment relationship with the Company.
(d) "Termination Upon a Change in Control" shall mean a
Termination of Employment upon or within one (1) year after a Change in Control
initiated by the Company for any reason permitted under this Agreement other
than (x) the Executive's disability, as described in Section 4.1 hereof, (y)
death, or (z) for "Cause," as described in Section 4.3 hereof.
5.2 Notice of Termination. Any Termination upon a Change in Control
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shall be communicated by a Notice of Termination to the other party hereto given
in accordance with Section 13 hereof. For purposes of this Agreement, a "Notice
of Termination" means a written notice which (i) indicates the specific
termination provision in this Agreement relied upon, (ii) briefly summarizes the
facts and circumstances deemed to provide a basis for a Termination of
Employment and the applicable provision hereof, and (iii) if the Termination
Date is other than the date of receipt of such notice, specifies the Termination
Date (which date shall not be more than fifteen (15) days after the giving of
such notice).
5.3 Severance Compensation upon Termination. In the event of
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Executive's Termination upon a Change in Control, Executive shall be entitled to
receive the Severance Package. In such event, the Company shall have no further
liability or obligation to Executive for compensation under this Agreement
except as otherwise specifically provided in this Agreement. A voluntary
resignation by Executive shall not be deemed a breach of this Agreement and
shall not effect any rights of Executive accrued through the date of such
resignation.
6. Acceleration of Equity Incentives. As of the occurrence of the
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termination of Executive's employment by the Company without Cause, by Executive
in the event of a Constructive Termination Without Cause, a termination upon a
Change in Control, notwithstanding any provision in the Entravision 2000 Omnibus
Equity Incentive Plan (or any agreement entered into thereunder or any successor
stock compensation plan or agreement thereunder) to the contrary, any stock
option then held by Executive shall be exercisable and any restriction on any
restricted stock then held by Executive shall lapse or be deemed fully
satisfied, as applicable.
7. Non-Exclusivity of Rights. Nothing in this Agreement shall prevent or
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limit Executive's continuing or future participation in or rights under any
benefit, bonus, incentive or other plan or program provided by the Company or
any affiliate and for which executive may qualify; provided, however, that if
Executive becomes entitled to and receives all of the payments provided for in
this Agreement, Executive hereby waives his right to receive payments under any
severance plan or similar program applicable to all employees of the Company.
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8. Survivorship. The respective rights and obligations of the parties
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hereunder shall survive any termination of the Executive's employment to the
extent necessary to the intended preservation of such rights and obligations.
9. Release. Upon receipt of the Severance Package pursuant to Sections
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4.4, 4.5 or 5.3 shall be in lieu of all other amounts payable by the Company to
Executive and in settlement and complete release of all claims Executive may
have against the Company other than those arising pursuant to payment of the
Severance Package. Executive acknowledges and agrees that execution of the
general release of claims in favor of the Company setting forth the terms of
this Section 9 and otherwise reasonably acceptable to the Company and Executive
shall be a condition precedent to the Company's obligation to pay the Severance
Package to Executive. The cash portion of the Severance Package shall be due and
payable by the Company within thirty (30) days after applicable termination of
the Employment Period.
10. Mitigation. There shall be no offset against amounts due the
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Executive under this Agreement on account of any remuneration attributable to
any subsequent employment that he may obtain.
11. Gross-Up Amounts. If, in the opinion of tax counsel selected by the
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Company and reasonably acceptable to the Executive, the Executive has received
compensation hereunder which constitutes an "excess parachute payment," as
defined in Section 280G of the Internal Revenue Code, arising from the Change of
Control, the Company will pay Executive an additional amount (the "Additional
Amount") equal to the sum of: (A) all taxes payable by Executive under Section
4999 of the Internal Revenue Code applicable to such "excess parachute payment"
and the Additional Amount; and (B) all federal, state and local income and
employment taxes payable by Executive with respect to the Additional Amount. In
the event that amounts are paid to Executive as Additional Amounts pursuant to
the preceding sentence and the amount of taxes payable by Executive under
Section 4999 of the Internal Revenue Code applicable to any compensation paid
pursuant to this Agreement is subsequently determined to be less than the amount
taken into account hereunder, Executive shall repay to the Company, at the time
that the amount of such reduced amount of taxes is finally determined, the
portion of such Additional Amount attributable to such reduction in the amount
of such taxes plus interest on the amount of such repayment at the rate provided
in Section 1274(b)(2)(B) of the Internal Revenue Code. In the event that the
amount of taxes payable by Executive under Section 4999 of the Internal Revenue
Code applicable to any compensation paid pursuant to this Agreement is
subsequently determined to be in excess of the amount taken into account
hereunder (including by reason of any payment the existence or amount of which
cannot be determined at the time of the payment of any Additional Amounts), the
Company shall make additional payments of Additional Amounts to Executive in
respect of such excess (plus any interest, penalties or additions payable by
Executive with respect to such excess taxes) at the time such excess is finally
determined.
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12. Arbitration; Expenses.
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(a) In the event of any dispute under the provisions of this
Agreement other than a dispute in which the sole relief sought is an equitable
remedy such as an injunction, the parties shall be required to have the dispute,
controversy or claim settled by arbitration in the City of Los Angeles,
California in accordance with the commercial arbitration rules then in effect of
the American Arbitration Association, before a panel of three arbitrators, two
of whom shall be selected by the Company and Executive, respectively, and the
third of whom shall be selected by the other two arbitrators. Any award entered
by the arbitrators shall be final, binding and nonappealable and judgment may be
entered thereon by either party in accordance with applicable law in any court
of competent jurisdiction. This arbitration provision shall be specifically
enforceable. The fees of the American Arbitration Association and the
arbitrators and any expenses relating to the conduct of the arbitration
(including reasonable attorneys' fees and expenses) shall be paid as determined
by the arbitrators.
(b) In the event of an arbitration or lawsuit by either party to
enforce the provisions of this Agreement following a Change in Control, if
Executive prevails on any material issue which is the subject of such
arbitration or lawsuit, he shall be entitled to recover from the Company the
reasonable costs, expenses and attorneys' fees he has incurred attributable to
such issue.
13. Notices. Any notice required to be given hereunder shall be delivered
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personally, shall be sent by first class mail, postage prepaid, return receipt
requested, by overnight courier, or by facsimile, to the respective parties at
the addresses given below, which addresses may be changed by the parties by
notice conforming to the requirements of this Agreement.
If to the Company, to: Entravision Communications Corporation
Attn: Xxxxxx X. Xxxxx
0000 Xxxxxxx Xxxxxxxxx, Xxxxx 0000 Xxxx
Xxxxx Xxxxxx, Xxxxxxxxxx 00000
With a required copy to: Xxxxxxx X. Xxxxx, Esq.
Xxxxxx Xxxxxx Xxxxxxx XxXxxxxx
Xxxxxx & Fognani, L.L.P.
000 Xxxx Xxxxxxxx, Xxxxxxxxxxx Xxxxx
Xxx Xxxxx, Xxxxxxxxxx 00000
If to Executive, to: Xxxxxx X. Xxxxxxxxx
Xxxx Xxxxxx Xxx 0000
Xxxxxx Xxxxx Xx, Xxxxxxxxxx 00000
Any such notice deposited in the mail shall be conclusively deemed delivered to
and received by the addressee four (4) days after deposit in the mail, if all of
the foregoing conditions of notice shall have been satisfied. All facsimile
communications shall be deemed delivered and received on the date of the
facsimile, if (a) the transmittal form showing a successful transmittal is
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retained by the sender, and (b) the facsimile communication is followed by
mailing a copy thereof to the addressee of the facsimile in accordance with this
paragraph. Any communication sent by overnight courier shall be deemed
delivered on the earlier of proof of actual receipt or the first day upon which
the overnight courier will guarantee delivery.
14. Contents of Agreement; Amendment and Assignment.
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(a) This Agreement supersedes all prior agreements, including, but
not limited to, the Original Agreement, and sets forth the entire understanding
between the parties hereto with respect to the subject matter hereof and cannot
be changed, modified, extended or terminated except upon written amendment
approved by the Company and executed on its behalf by a duly authorized officer.
(b) All of the terms and provisions of this Agreement shall be
binding upon and inure to the benefit of and be enforceable by the respective
heirs, executors, administrators, legal representatives, successors and assigns
of the parties hereto, except that the duties and responsibilities of Executive
hereunder are of a personal nature and shall not be assignable or delegable in
whole or in part by Executive.
15. Severability. If any provision of this Agreement or application
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thereof to anyone or under any circumstances is adjudicated to be invalid or
unenforceable in any jurisdiction, such invalidity or unenforceability shall not
affect any other provision or application of this Agreement which can be given
effect without the invalid or unenforceable provision or application and shall
not invalidate or render unenforceable such provision or application in any
other jurisdiction. If any provision is held void, invalid or unenforceable
with respect to particular circumstances, it shall nevertheless remain in full
force and effect in all other circumstances.
16. Remedies Cumulative; No Waiver. No remedy conferred upon a party by
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this Agreement is intended to be exclusive of any other remedy, and each and
every such remedy shall be cumulative and shall be in addition to any other
remedy given hereunder or now or hereafter existing at law or in equity. No
delay or omission by a party in exercising any right, remedy or power hereunder
or existing at law or in equity shall be construed as a waiver thereof, and any
such right, remedy or power may be exercised by such party from time to time and
as often as may be deemed expedient or necessary by such party in its sole
discretion.
17. Beneficiaries; References. Executive shall be entitled, to the extent
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permitted under any applicable law, to select and change a beneficiary or
beneficiaries to receive any compensation or benefit payable hereunder following
Executive's death by giving the Company written notice thereof. In the event of
Executive's death or a judicial determination of his incompetence, reference in
this Agreement to Executive shall be deemed, where appropriate, to refer to his
beneficiary, estate or other legal representative.
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18. Captions. All section headings and captions used in this Agreement
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are for convenience only and shall in no way define, limit, extend or interpret
the scope of this Agreement or any particular section hereof
19. Executed Counterparts. This Agreement may be executed in one or more
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counterparts, all of which when fully-executed and delivered by all parties
hereto and taken together shall constitute a single agreement, binding against
each of the parties. To the maximum extent permitted by law or by any
applicable governmental authority, any document may be signed and transmitted by
facsimile with the same validity as if it were an ink-signed document. Each
signatory below represents and warrants by his signature that he is duly
authorized (on behalf of the respective entity for which such signatory has
acted) to execute and deliver this instrument and any other document related to
this transaction, thereby fully binding each such respective entity.
20. Governing Law. This Agreement shall be governed by and interpreted
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under the laws of the State of California without giving effect to any conflict
of laws provisions.
[Remainder of Page Left Intentionally Blank]
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IN WITNESS WHEREOF, the undersigned, intending to be legally bound, have
executed this Agreement as of the date first above written.
Company ENTRAVISION COMMUNICATIONS CORPORATION
a Delaware corporation
By: /s/ Xxxxxx X. Xxxxx
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Xxxxxx X. Xxxxx
Chairman and Chief Executive Officer
Executive
/s/ Xxxxxx X. Xxxxxxxxx
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Xxxxxx X. Xxxxxxxxx
[Signature Page to Employment Agreement]
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EXHIBIT "A"
INDEMNIFICATION AGREEMENT
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INDEMNIFICATION AGREEMENT
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This Indemnification Agreement (the "Agreement") is made and entered into
as of ________________, 2000 by and between Entravision Communications
Corporation, a Delaware corporation (the "Company"), and _______________________
(the "Indemnitee").
WHEREAS, the Indemnitee is an officer or director of the Company and
performs a valuable services for the Company.
WHEREAS, the First Restated Certificate of Incorporation (the "Certificate
of Incorporation") of the Company provides for the indemnification of the
officers or directors of the Company to the maximum extent authorized by the
Delaware General Corporation Law, as amended (the "Law").
WHEREAS, the Certificate of Incorporation and the Law, by their
nonexclusive nature, permit contracts between the Company and the officers or
directors of the Company with respect to indemnification of such officers or
directors.
WHEREAS, in accordance with the authorization as provided by the Law, the
Company may purchase and maintain a policy or policies of directors' and
officers' liability insurance, covering certain liabilities which may be
incurred by its officers or directors in the performance of their obligations to
the Company.
WHEREAS, in order to induce the Indemnitee to continue to serve as an
officer or director of the Company, the Company has determined and agreed to
enter into this contract with the Indemnitee.
NOW, THEREFORE, in consideration of the Indemnitee's service as an officer
or director after the date hereof, the parties hereto agree as follows:
1. Indemnity of the Indemnitee. The Company hereby agrees to hold
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harmless and indemnify the Indemnitee to the full extent authorized or permitted
by the provisions of the Law, as such may be amended from time to time, and
Article 11 of the Certificate of Incorporation, as such may be amended. In
furtherance of the foregoing indemnification, and without limiting the
generality thereof:
(a) Other Than Proceedings by or in the Right of the Proceedings
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Company. The Indemnitee shall be entitled to the rights of indemnification
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provided in this Section l(a) if, by reason of his or her Corporate Status (as
defined below), he or she is, or is threatened to be made, a party to or
participant in any Proceeding (as defined below) other than a Proceeding by or
in the right of the Company. Pursuant to this Section 1(a), the Indemnitee
shall be indemnified against all Expenses (as defined below), judgments,
penalties, fines and amounts paid in settlement actually and reasonably incurred
by him or her or on his or her behalf in connection with such Proceeding or any
claim, issue or matter therein, if he or she acted in good faith and in a manner
he or she reasonably believed to be in or not opposed to the best interests of
the Company and, with respect to any criminal Proceeding, had no reasonable
cause to believe his or her conduct was unlawful.
(b) Proceedings by or in the Right of the Company. The Indemnitee
---------------------------------------------
shall be entitled to the rights of indemnification provided in this Section 1(b)
if, by reason of his or her Corporate Status, he or she is, or is threatened to
be made, a party to or participant in any Proceeding brought by or in the right
of the Company. Pursuant to this Section 1(b), the Indemnitee shall be
indemnified against all Expenses actually and reasonably incurred by him or her
or on his or her behalf in connection with such Proceeding if he or she acted in
good faith and in a manner he or she reasonably believed to be in or not opposed
to the best interests of the Company; provided, however, that, if applicable law
so provides, no indemnification against such Expenses shall be made in respect
of any claim, issue or matter in such Proceeding as to which the Indemnitee
shall have been adjudged to be liable to the Company unless and to the extent
that the Chancery Court of Delaware shall determine that such indemnification
may be made.
(c) Indemnification for Expenses of a Party Who Is Wholly or Partly
---------------------------------------------------------------
Successful. Notwithstanding any other provision of this Agreement, to the
----------
extent that the Indemnitee is, by reason of his or her Corporate Status, a party
to and is successful, on the merits or otherwise, in any Proceeding, he or she
shall be indemnified to the maximum extent permitted by law against all Expenses
actually and reasonably incurred by him or her or on his of her behalf in
connection therewith. If the Indemnitee is not wholly successful in such
Proceeding but is successful, on the merits or otherwise, as to one or more but
less than all claims, issues or matters in such Proceeding, the Company shall
indemnify the Indemnitee against all Expenses actually and reasonably incurred
by him or her or on his or her behalf in connection with each successfully
resolved claim, issue or matter. For purposes of this Section 1(c) and without
limitation, the termination of any claim, issue or matter in such a Proceeding
by dismissal, with or without prejudice, shall be deemed to be a successful
result as to such claim, issue or matter.
2. Additional Indemnity. In addition to, and without regard to any
--------------------
limitations on, the indemnification provided for in Section 1 above, the Company
shall and hereby does indemnify and hold harmless the Indemnitee against all
Expenses, judgments, penalties, fines and amounts paid in settlement actually
and reasonably incurred by him or her or on his or her behalf if, by reason of
his or her Corporate Status, he or she is, or is threatened to be made, a party
to or participant in any Proceeding (including a Proceeding by or in the right
of the Company), including, without limitation, all liability arising out of the
negligence or active or passive wrongdoing of the Indemnitee. The only
limitation that shall exist upon the Company's obligations pursuant to this
Agreement shall be that the Company shall not be obligated to make any payment
to the Indemnitee that is finally determined (under the procedures, and subject
to the presumptions, set forth in Sections 6 and 7 below) to be unlawful under
Delaware law.
-2-
3. Contribution in the Event of Joint Liability.
--------------------------------------------
(a) Whether or not the indemnification provided in Sections 1 and 2
hereof is available, in respect of any threatened, pending or completed action,
suit or proceeding in which the Company is jointly liable with the Indemnitee
(or would be if joined in such action, suit or proceeding), the Company shall
pay, in the first instance, the entire amount of any judgment or settlement of
such action, suit or proceeding without requiring the Indemnitee to contribute
to such payment and the Company hereby waives and relinquishes any right of
contribution it may have against the Indemnitee. The Company shall not enter
into any settlement of any action, suit or proceeding in which the Company is
jointly liable with the Indemnitee (or would be if joined in such action, suit
or proceeding) unless such settlement provides for a full and final release of
all claims asserted against the Indemnitee.
(b) Without diminishing or impairing the obligations of the Company
set forth in the preceding subparagraph, if, for any reason, the Indemnitee
shall elect or be required to pay all or any portion of any judgment or
settlement in any threatened, pending or completed action, suit or proceeding in
which the Company is jointly liable with the Indemnitee (or would be if joined
in such action, suit or proceeding), the Company shall contribute to the amount
of expenses (including attorney's fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred and paid or payable by the
Indemnitee in proportion to the relative benefits received by the Company and
all officers, directors or employees of the Company other than the Indemnitee
who are jointly liable with the Indemnitee (or would be if joined in such
action, suit or proceeding), on the one hand, and the Indemnitee, on the other
hand, from the transaction from which such action, suit or proceeding arose;
provided, however, that the proportion determined on the basis of relative
benefit may, to the extent necessary to conform to law, be further adjusted by
reference to the relative fault of the Company and all officers, directors or
employees of the Company other than the Indemnitee who are jointly liable with
the Indemnitee (or would be if joined in such action, suit or proceeding), on
the one hand, and the Indemnitee, on the other hand, in connection with the
events that resulted in such expenses, judgments, fines or settlement amounts,
as well as any other equitable considerations which the law may require to be
considered. The relative fault of the Company and all officers, directors or
employees of the Company other than the Indemnitee who are jointly liable with
the Indemnitee (or would be if joined in such action, suit or proceeding), on
the one hand, and the Indemnitee, on the other hand, shall be determined by
reference to, among other things, the degree to which their actions were
motivated by intent to gain personal profit or advantage, the degree to which
their liability is primary or secondary, ad the degree to which their conduct is
active or passive.
(c) The Company hereby agrees to fully indemnify and hold the
Indemnitee harmless from any claims of contribution which may be brought by
officers, directors or employees of the Company other than the Indemnitee who
may be jointly liable with the Indemnitee.
-3-
4. Indemnification for Expenses of a Witness. Notwithstanding any other
-----------------------------------------
provision of this Agreement, to the extent that the Indemnitee is, by reason of
his or her Corporate Status, a witness in any Proceeding to which the Indemnitee
is not a party, he or she shall be indemnified against all Expenses actually and
reasonably incurred by him or her or on his or her behalf in connection
therewith.
5. Advancement of Expenses. Notwithstanding any other provision of this
-----------------------
Agreement, the Company shall advance all Expenses incurred by or on behalf of
the Indemnitee in connection with any Proceeding by reason of the Indemnitee's
Corporate Status within ten (10) days after the receipt by the Company of a
statement or statements from the Indemnitee requesting such advance or advances
from time to time, whether prior to or after final disposition of such
Proceeding. Such statement or statements shall reasonably evidence the Expenses
incurred by the Indemnitee and shall include or be preceded or accompanied by an
undertaking by or on behalf of the Indemnitee to repay any Expenses advanced if
it shall ultimately be determined that the Indemnitee is not entitled to be
indemnified against such Expenses. Any advances and undertakings to repay
pursuant to this Section 5 shall be unsecured and interest free.
Notwithstanding the foregoing, the obligation of the Company to advance Expenses
pursuant to this Section 5 shall be subject to the condition that, if, when and
to the extent that the Company determines that the Indemnitee would not be
permitted to be indemnified under applicable law, the Company shall be entitled
to be reimbursed, within thirty (30) days of such determination, by the
Indemnitee (who hereby agrees to reimburse the Company) for all such amounts
theretofore paid; provided, however, that if the Indemnitee has commenced or
thereafter commences legal proceedings in a court of competent jurisdiction to
secure a determination that the Indemnitee should be indemnified under
applicable law, any determination made by the Company that the Indemnitee would
not be permitted to be indemnified under applicable law shall not be binding and
the Indemnitee shall not be required to reimburse the Company for any advance of
Expenses until a final judicial determination is made with respect thereto (as
to which all rights of appeal therefrom have been exhausted or lapsed).
6. Procedures and Presumptions for Determination of Entitlement to
---------------------------------------------------------------
Indemnification. It is the intent of this Agreement to secure for the
---------------
Indemnitee rights of indemnity that are as favorable as may be permitted under
the law and public policy of the State of Delaware. Accordingly, the parties
agree that the following procedures and presumptions shall apply in the event of
any question as to whether the Indemnitee is entitled to indemnification under
this Agreement:
(a) To obtain indemnification (including, without limitation, the
advancement of Expenses and contribution by the Company) under this Agreement,
the Indemnitee shall submit to the Company a written request, including therein
or therewith such documentation and information as is reasonably available to
the Indemnitee and is reasonably necessary to determine whether and to what
extent the Indemnitee is entitled to indemnification. The Secretary of the
Company shall, promptly upon receipt of such a request for indemnification,
advise the Board of Directors in writing that the Indemnitee has requested
indemnification.
-4-
(b) Upon written request by the Indemnitee for indemnification
pursuant to the first sentence of Section 6(a) above, a determination, if
required by applicable law, with respect to the Indemnitee's entitlement thereto
shall be made in the specific case by one of the following three methods, which
shall be at the election of the Indemnitee: (i) by a majority vote of the
disinterested directors, even though less than a quorum, (ii) by independent
legal counsel in a written opinion or (iii) by the stockholders.
(c) If the determination of entitlement to indemnification is to be
made by Independent Counsel (as defined below) pursuant to Section 6(b) above,
the Independent Counsel shall be selected as provided in this Section 6(c). The
Independent Counsel shall be selected by the Indemnitee (unless the Indemnitee
shall request that such selection be made by the Board of Directors). The
Indemnitee or the Company, as the case may be, may, within ten (10) days after
such written notice of selection shall have been given, deliver to the Company
or to the Indemnitee, as the case may be, a written objection to such selection;
provided, however, that such objection may be asserted only on the ground that
the Independent Counsel so selected does not meet the requirements of
"Independent Counsel" as defined in Section 13 below, and the objection shall
set forth with particularity the factual basis of such assertion. Absent a
proper and timely objection, the person so selected shall act as Independent
Counsel. If a written objection is made and substantiated, the Independent
Counsel selected may not serve as Independent Counsel unless and until such
objection is withdrawn or a court has determined that such objection is without
merit. If, within twenty (20) days after submission by the Indemnitee of a
written request for indemnification pursuant to Section 6(a) above, no
Independent Counsel shall have been selected and not objected to, either the
Company or the Indemnitee may petition the Chancery Court of Delaware or other
court of competent jurisdiction for resolution of any objection which shall have
been made by the Company or the Indemnitee to the other's selection of
Independent Counsel and/or for the appointment as Independent Counsel of a
person selected by the court or by such other person as the court shall
designate, and the person with respect to whom all objections are so resolved or
the person so appointed shall act as Independent Counsel under Section 6(b)
above. The Company shall pay any and all reasonable fees and expenses of
Independent Counsel incurred by such Independent Counsel in connection with
acting pursuant to Section 6(b) above, and the Company shall pay all reasonable
fees and expenses incident to the procedures of this Section 6(c), regardless of
the manner in which such Independent Counsel was selected or appointed.
(d) In making a determination with respect to entitlement to
indemnification hereunder, the person or persons or entity making such
determination shall presume that the Indemnitee is entitled to indemnification
under this Agreement if the Indemnitee has submitted a request for
indemnification in accordance with Section 6(a) above. Anyone seeking to
overcome this presumption shall have the burden of proof and the burden of
persuasion, by clear and convincing evidence.
(e) The Indemnitee shall be deemed to have acted in good faith if the
Indemnitee's action is based on the records or books of account of the
Enterprise (as defined
-5-
below), including financial statements, or on information supplied to the
Indemnitee by the officers of the Enterprise in the course of their duties, or
on the advice of legal counsel for the Enterprise or on information or records
given or reports made to the Enterprise by an independent certified public
accountant or by an appraiser or other expert selected with reasonable care by
the Enterprise. In addition, the knowledge and/or actions, or failure to act, of
any director, officer, agent or employee of the Enterprise shall not be imputed
to the Indemnitee for purposes of determining the right to indemnification under
this Agreement. Whether or not the foregoing provisions of this Section 6(e) are
satisfied, it shall in any event be presumed that the Indemnitee has at all
times acted in good faith and in a manner he reasonably believed to be in or not
opposed to the best interests of the Company. Anyone seeking to overcome this
presumption shall have the burden of proof and the burden of persuasion, by
clear and convincing evidence.
(f) If the person, persons or entity empowered or selected under this
Section 6 to determine whether the Indemnitee is entitled to indemnification
shall not have made a determination within thirty (30) days after receipt by the
Company of the request therefor, the requisite determination of entitlement to
indemnification shall be deemed to have been made and the Indemnitee shall be
entitled to such indemnification, absent (i) a misstatement by the Indemnitee of
a material fact, or an omission of a material fact necessary to make the
Indemnitee's statement not materially misleading, in connection with the request
for indemnification, or (ii) a prohibition of such indemnification under
applicable law; provided, however, that such thirty (30) day period may be
extended for a reasonable time, not to exceed an additional fifteen (15) days,
if the person, persons or entity making the determination with respect to
entitlement to indemnification in good faith requires such additional time for
the obtaining or evaluating documentation and/or information relating thereto;
and provided, further, that the foregoing provisions of this Section 6(g) shall
not apply if the determination of entitlement to indemnification is to be made
by the stockholders pursuant to Section 6(b) above and if (i) within fifteen
(15) days after receipt by the Company of the request for such determination the
Board of Directors or the Disinterested Directors (as defined below), if
appropriate, resolve to submit such determination to the stockholders for their
consideration at an annual meeting thereof to be held within seventy-five (75)
days after such receipt and such determination is made thereat, or (ii) a
special meeting of stockholders is called within fifteen (15) days after such
receipt for the purpose of making such determination, such meeting is held for
such purpose within sixty (60) days after having been so called and such
determination is made thereat.
(g) The Indemnitee shall cooperate with the person, persons or entity
making such determination with respect to the Indemnitee's entitlement to
indemnification, including providing to such person, persons or entity upon
reasonable advance request any documentation or information which is not
privileged or otherwise protected from disclosure and which is reasonably
available to the Indemnitee and reasonably necessary to such determination. Any
Independent Counsel, member of the Board of Directors, or stockholder of the
Company shall act reasonably and in good faith in making a determination under
the Agreement of the Indemnitee's
-6-
entitlement to indemnification. Any costs or expenses (including attorney's fees
and disbursements) incurred by the Indemnitee in so cooperating with the person,
persons or entity making such determination shall be borne by the Company
(irrespective of the determination as to the Indemnitee's entitlement to
indemnification) and the Company hereby indemnifies and agrees to hold the
Indemnitee harmless therefrom.
(h) The Company acknowledges that a settlement or other disposition
short of final judgment may be successful if it permits a party to avoid
expense, delay, distraction, disruption and uncertainty. In the event that any
action, claim or proceeding to which the Indemnitee is a party is resolved in
any manner other than by adverse judgment against the Indemnitee (including,
without limitation, settlement of such action, claim or proceeding with or
without payment of money or other consideration) it shall be presumed that the
Indemnitee has been successful on the merits or otherwise in such action, suit
or proceeding. Anyone seeking to overcome this presumption shall have the
burden of proof and the burden of persuasion, by clear and convincing evidence.
7. Remedies of the Indemnitee.
--------------------------
(a) In the event that (i) a determination is made pursuant to Section
6 above that the Indemnitee is not entitled to indemnification under this
Agreement, (ii) advancement of Expenses is not timely made pursuant to Section 5
above, (iii) no determination of entitlement to indemnification shall have been
made pursuant to Section 6(b) above within ninety (90) days after receipt by the
Company of the request for indemnification, (iv) payment of indemnification is
not made pursuant to this Agreement within ten (10) days after receipt by the
Company of a written request therefor or (v) payment of indemnification is not
made within ten (10) days after a determination has been made that the
Indemnitee is entitled to indemnification or such determination is deemed to
have been made pursuant to Section 6 above, the Indemnitee shall be entitled to
an adjudication in an appropriate court of the State of Delaware, or in any
other court of competent jurisdiction, of his or her entitlement to such
indemnification. The Indemnitee shall commence such proceeding seeking an
adjudication within one hundred eighty (180) days following the date on which
the Indemnitee first has the right to commence such proceeding pursuant to this
Section 7(a). The Company shall not oppose the Indemnitee's right to seek any
such adjudication.
(b) In the event that a determination shall have been made pursuant
to Section 6(b) above that the Indemnitee is not entitled to indemnification,
any judicial proceeding commenced pursuant to this Section 7 shall be conducted
in all respects as a de novo trial, on the merits and the Indemnitee shall not
be prejudiced by reason of that adverse determination under Section 6(b) above.
(c) If a determination shall have been made pursuant to Section 6(b)
above that the Indemnitee is entitled to indemnification, the Company shall be
bound by such
-7-
determination in any judicial proceeding commenced pursuant to this Section 7,
absent a prohibition of such indemnification under applicable law.
(d) In the event that the Indemnitee, pursuant to this Section 7,
seeks a judicial adjudication of his or her rights under, or to recover damages
for breach of, this Agreement, or to recover under any directors' and officers'
liability insurance policies maintained by the Company the Company shall pay on
his or her behalf, in advance, any and all expenses (of the types described in
the definition of Expenses in Section 13 below) actually and reasonably incurred
by him or her in such judicial adjudication, regardless of whether the
Indemnitee ultimately is determined to be entitled to such indemnification,
advancement of expenses or insurance recovery.
(e) The Company shall be precluded from asserting in any judicial
proceeding commenced pursuant to this Section 7 that the procedures and
presumptions of this Agreement are not valid, binding and enforceable and shall
stipulate in any such court that the Company is bound by all the provisions of
this Agreement.
8. Non-Exclusivity; Survival of Rights; Insurance; Subrogation.
-----------------------------------------------------------
(a) The rights of indemnification as provided by this Agreement shall
not be deemed exclusive of any other rights to which the Indemnitee may at any
time be entitled under applicable law, the Certificate of Incorporation, the
Bylaws of the Company, any agreement, a vote of stockholders or a resolution of
directors or otherwise. No amendment, alteration or repeal of this Agreement or
of any provision hereof shall limit or restrict any right of the Indemnitee
under this Agreement in respect of any action taken or omitted by such the
Indemnitee in his or her Corporate Status prior to such amendment, alteration or
repeal. To the extent that a change in the Law, whether by statute or judicial
decision, permits greater indemnification than would be afforded currently under
the Certificate of Incorporation and this Agreement, it is the intent of the
parties hereto that the Indemnitee shall enjoy by this Agreement the greater
benefits so afforded by such change. No right or remedy herein conferred is
intended to be exclusive of any other right or remedy, and every other right and
remedy shall be cumulative and in addition to every other right and remedy given
hereunder or now or hereafter existing at law or in equity or otherwise. The
assertion or employment of any right or remedy hereunder, or otherwise, shall
not prevent the concurrent assertion or employment of any other right or remedy.
(b) To the extent that the Company maintains an insurance policy or
policies providing liability insurance for directors, officers, employees, or
agents or fiduciaries of the Company or of any other corporation, partnership,
joint venture, trust, employee benefit plan or other enterprise which such
person serves at the request of the Company, the Indemnitee shall be covered by
such policy or policies in accordance with its or their terms to the maximum
extent of the coverage available for any such director, officer, employee or
agent under such policy or policies.
-8-
(c) In the event of any payment under this Agreement, the Company
shall be subrogated to the extent of such payment to all of the rights of
recovery of the Indemnitee, who shall execute all papers required and take all
action necessary to secure such rights, including execution of such documents as
are necessary to enable the Company to bring suit to enforce such rights.
(d) The Company shall not be liable under this Agreement to make any
payment of amounts otherwise indemnifiable hereunder if and to the extent that
the Indemnitee has otherwise actually received such payment under any insurance
policy, contract, agreement or otherwise.
9. Exception to Right of Indemnification. Notwithstanding any other
-------------------------------------
provision of this Agreement, the Indemnitee shall not be entitled to
indemnification under this Agreement with respect to any Proceeding brought by
the Indemnitee, or any claim therein, unless (i) the bringing of such Proceeding
or making of such claim shall have been approved by the Board of Directors of
the Company or (ii) such Proceeding is being brought by the Indemnitee to
assert, interpret or enforce his or her rights under this Agreement.
10. Duration of Agreement. All agreements and obligations of the Company
---------------------
contained herein shall continue during the period the Indemnitee is an officer
or director of the Company (or is or was serving at the request of the Company
as a director, officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise) and shall continue thereafter so long
as the Indemnitee shall be subject to any Proceeding (or any proceeding
commenced under Section 7 above) by reason of his or her Corporate Status,
whether or not he is acting or serving in any such capacity at the time any
liability or expense is incurred for which indemnification can be provided under
this Agreement. This Agreement shall be binding upon and inure to the benefit
of and be enforceable by the parties hereto and their respective successors
(including any direct or indirect successor by purchase, merger, consolidation
or otherwise to all or substantially all of the business or assets of the
Company), assigns, spouses, heirs, executors and personal and legal
representatives. This Agreement shall continue in effect regardless of whether
the Indemnitee continues to serve as an officer or director of the Company or
any other Enterprise at the Company's request.
11. Security. To the extent requested by the Indemnitee and approved by
--------
the Board of Directors of the Company, the Company may at any time and from time
to time provide security to the Indemnitee for the Company's obligations
hereunder through an irrevocable bank line of credit, funded trust or other
collateral. Any such security, once provided to the Indemnitee, may not be
revoked or released without the prior written consent of the Indemnitee, which
shall not be unreasonably withheld.
-9-
12. Enforcement.
-----------
(a) The Company expressly confirms and agrees that it has entered
into this Agreement and assumed the obligations imposed on it hereby in order to
induce the Indemnitee to serve as an officer or director of the Company, and the
Company acknowledges that the Indemnitee is relying upon this Agreement in
serving as an officer or director of the Company.
(b) The Agreement constitutes the entire agreement between the
parties hereto with respect to the subject matter hereof and supersedes all
prior agreements and understandings, oral, written and implied, between the
parties hereto with respect to the subject matter hereof.
13. Definitions. For purposes of this Agreement:
-----------
(a) "Corporate Status" shall describe the status of a person who is
or was a director, officer, employee or agent or fiduciary of the Company or of
any other corporation, partnership, joint venture, trust, employee benefit plan
or other enterprise which such person is or was serving at the express written
request of the Company.
(b) "Disinterested Director" shall mean a director of the Company who
is not and was not a party to the Proceeding in respect of which indemnification
is sought by the Indemnitee.
(c) "Enterprise" shall mean the Company and any other corporation,
partnership, joint venture, trust, employee benefit plan or other enterprise of
which the Indemnitee is or was serving at the express written request of the
Company as a director, officer, employee, agent or fiduciary.
(d) "Expenses" shall include all reasonable attorney's fees,
retainers, court costs, transcript costs, fees of experts, witness fees, travel
expenses, duplicating costs, printing and binding costs, telephone charges,
postage, delivery service fees, and all other disbursements or expenses of the
types customarily incurred in connection with prosecuting, defending, preparing
to prosecute or defend, investigating, participating or being or preparing to be
a witness in a Proceeding.
(e) "Independent Counsel" shall mean a law firm, or a member of a law
firm, that is experienced in matters of corporation law and neither presently
is, nor in the past five (5) years has been, retained to represent: (i) the
Company or the Indemnitee in any matter material to either such party (other
than with respect to matters concerning the Indemnitee under this Agreement, or
of other indemnitees under similar indemnification agreements); or (ii) any
other party to the Proceeding giving rise to a claim for indemnification
hereunder. Notwithstanding the foregoing, the term "Independent Counsel" shall
not include any person who, under the applicable standards of professional
conduct then prevailing, would have a conflict of interest in representing
either the Company or the Indemnitee in an action to determine the Indemnitee's
rights under this Agreement. The Company agrees to pay the reasonable fees of
the Independent Counsel referred to above and to fully indemnify such counsel
against any and all Expenses,
-10-
claims, liabilities and damages arising out of or relating to this Agreement or
its engagement pursuant hereto.
(f) "Proceeding" shall include any threatened, pending or completed
action, suit, arbitration, alternate dispute resolution mechanism,
investigation, inquiry, administrative hearing or any other actual, threatened
or completed proceeding, whether brought by or in the right of the Company or
otherwise and whether civil, criminal, administrative or investigative, in which
the Indemnitee was, is or will be involved as a party or otherwise, by reason of
the fact that the Indemnitee is or was a director of the Company, by reason of
any action taken by him or of any inaction on his or her part while acting as an
officer or director of the Company, or by reason of the fact that he or she is
or was serving at the request of the Company as a director, officer, employee or
agent of another corporation, partnership, joint venture, trust or other
Enterprise; in each case whether or not he or she is acting or serving in any
such capacity at the time any liability or expense is incurred for which
indemnification can be provided under this Agreement; including one pending on
or before the date of this Agreement; and excluding one initiated by an the
Indemnitee pursuant to Section 7 above to enforce his or her rights under this
Agreement.
14. Severability. If any provision or provisions of this Agreement shall
------------
be held by a court of competent jurisdiction to be invalid, void, illegal or
otherwise unenforceable for any reason whatsoever: (i) the validity, legality
and enforceability of the remaining provisions of this Agreement (including,
without limitation, each portion of any section of this Agreement containing any
such provision held to be invalid, illegal or unenforceable, that is not itself
invalid, illegal or unenforceable) shall not in any way be affected or impaired
thereby and shall remain enforceable to the fullest extent permitted by law; and
(ii) to the fullest extent possible, the provisions of this Agreement
(including, without limitation, each portion of any section of this Agreement
containing any such provision held to be invalid, illegal or unenforceable, that
is not itself invalid, illegal or unenforceable) shall be construed so as to
give effect to the intent manifested thereby.
15. Modification and Waiver. No supplement, modification, termination or
-----------------------
amendment of this Agreement shall be binding unless executed in writing by both
of the parties hereto. No waiver of any of the provisions of this Agreement
shall be deemed or shall constitute a waiver of any other provisions hereof
(whether or not similar) nor shall such waiver constitute a continuing waiver.
16. Notice by the Indemnitee. The Indemnitee agrees promptly to notify
------------------------
the Company in writing upon being served with any summons, citation, subpoena,
complaint, indictment, information or other document relating to any Proceeding
or matter which may be subject to indemnification covered hereunder. The
failure to so notify the Company shall not relieve the Company of any obligation
which it may have to the Indemnitee under this Agreement or otherwise unless and
only to the extent that such failure or delay materially prejudices the Company.
-11-
17. Notices. All notices, requests, demands and other communications
-------
hereunder shall be in writing and shall be deemed to have been duly given if (i)
delivered by hand and receipted for by the party to whom said notice or other
communication shall have been directed, or (ii) mailed by certified or
registered mail with postage prepaid, on the third (3rd) business day after the
date on which it is so mailed to the addresses for the Company and the
Indemnitee set forth on the signature page hereto, or to such other address as
may have been furnished to the Indemnitee by the Company or to the Company by
the Indemnitee, as the case may be.
18. Counterparts; Facsimile. This Agreement may be executed in one or
-----------------------
more counterparts, each of which shall for all purposes be deemed to be an
original but all of which together shall constitute one and the same Agreement.
Only one such counterpart signed by the party against whom enforceability is
sought needs to be produced to evidence the existence of this Agreement. To the
maximum extent permitted by applicable law, this Agreement may be executed by
facsimile.
19. Headings. The headings of the paragraphs of this Agreement are
--------
inserted for convenience only and shall not be deemed to constitute part of this
Agreement or to affect the construction thereof.
20. Governing Law. The parties agree that this Agreement shall be
-------------
governed by, and construed and enforced in accordance with, the laws of the
State of Delaware without application of the conflict of laws principles
thereof.
21. Gender. Use of the masculine pronoun shall be deemed to include usage
------
of the feminine pronoun where appropriate.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement on and
as of the day and year first above written.
Company ENTRAVISION COMMUNICATIONS CORPORATION
By:_______________________________________________
Name:_____________________________________________
Title:____________________________________________
Address: 0000 Xxxxxxx Xxxxxxxxx, Xxxxx 0000 Xxxx
Xxxxx Xxxxxx Xxxxxxxxxx 00000
Indemnitee
__________________________________________________
___________________________
Address: _______________________________________
_______________________________________
[Signature Page to Indemnification Agreement]
SCHEDULE "1.2"
LIST OF PERMISSIBLE BUSINESS ENDEAVORS
Xxxxxxxxx Capital Corp., which is involved in real estate development.
