Exhibit 10.12
This EXECUTIVE EMPLOYMENT AND
NON-COMPETITION AGREEMENT (this “ Agreement ”),
dated as of March 29, 2007, by and between Broadcasting Media
Partners, Inc. (formerly known as Umbrella Holdings, LLC), a
Delaware corporation (the “ Company ”), and
Joseph Uva (the “ Executive ”).
WHEREAS, the Company desires that
Executive become employed by the Company effective on April 2,
2007 (the “ Effective Date ”); and
WHEREAS, the Company desires to be
assured that the confidential information and goodwill of the
Company will be preserved for the exclusive benefit of the Company
and that, in consideration of the compensation, benefits and
continued employment of Executive hereunder, Executive will not be
employed with any competitor of the Company for a limited period
following Executive’s termination of employment with the
Company;
NOW, THEREFORE, in consideration of
such employment and the mutual covenants and promises herein
contained, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the
Company and the Executive agree as follows:
1. Employment
. The Company hereby agrees to
employ Executive, and Executive hereby agrees to accept employment
with the Company, upon the terms and conditions contained in this
Agreement. Executive’s employment with the Company shall
continue, subject to earlier termination of such employment
pursuant to the terms hereof, until the fourth anniversary of the
Effective Date (the “ Initial Term ”). On the
fourth anniversary of the Effective Date and on each anniversary
thereof, the term of the Agreement shall be automatically extended
for an additional twelve-month period (the Initial Term, together
with any extension, the “ Employment Period ”).
Either the Company or Executive may elect to terminate the
automatic extension of the Employment Period by giving written
notice of such election to the other party not less than six (6)
months prior to the end of the then current Employment
Period.
2. Duties
. During the Employment Period,
Executive shall serve on a full-time basis and perform services in
a capacity and in a manner consistent with Executive’s
position as Chief Executive Officer of the Company and Chief
Executive Officer of Univision Communications, Inc. (“
UVN ”) and such other wholly owned subsidiaries of the
Company as the Executive may reasonably determine in consultation
with the Board of Directors of UVN. Executive shall also be a
member of the Board of Directors of the Company (the “
Board ”) and a member of the board of directors of UVN
and such other subsidiaries of the Company as reasonably requested
by the Board. Executive shall have the duties and authorities
commensurate with his positions as the Chief Executive Officer of
the Company and UVN, and such other duties, consistent with his
position, as may reasonably be assigned to him from time to time by
the Board, and shall not be assigned any duties that are not
consistent with his positions as Chief Executive Officer and a
member of the board of directors of the Company, UVN or other
subsidiary of the Company. If one of the Company or its affiliates
(not including any of the Sponsors or other portfolio companies
owned by any Sponsor) becomes a public company, Executive shall be
the Chief Executive Officer and a member of the board of directors
of such public company. Executive
will report solely and directly to (a) the
Board and any committee thereof and (b) to Haim Saban
personally as a member of the Board (and not, for the avoidance of
doubt, through Saban Capital or any employee or director thereof
other than Haim Saban). In the event of any conflict in directions
provided by the Board or Haim Saban, the directions of the Board
shall be controlling. Haim Saban is not entitled to have direct
authority as to any employees (other than Executive) and thus any
requests made directly to such employees are subject to
Executive’s authority to manage the day-to-day activities of
his direct reports and other employees. Executive shall devote his
entire business time, attention and good faith efforts (excepting
vacation time, holidays, sick days and periods of disability) in
his employment and service with the Company and its affiliates;
provided , however , that this Section 2
shall not be interpreted as prohibiting Executive from managing his
personal affairs or engaging in charitable or civic activities, or,
with the written consent of the Board, serving as a director of or
providing services to another business or enterprise (whether
engaged in for profit or not; provided, however, with respect to
for profit businesses, the Executive shall be limited to serving as
a director or managing a passive investment), so long as such
activities do not materially interfere with the performance of
Executive’s duties and responsibilities hereunder. Executive
may continue to serve on the Board of Directors of the
organizations listed on the Schedule of Boards consistent
with his level of activities to date with respect to such
organization.
For purposes of this Agreement,
“Sponsors” shall mean the “principal
investors” as defined in the Stockholders Agreement by and
among the Company, Broadcast Media Partners Holdings, Inc.,
Umbrella Acquisition, Inc. and Certain Stockholders of the Company,
dated as of March 29, 2007, as amended from time to
time.
3. Location Of Employment and
Relocation Benefits .
Executive shall work in either the New York, Los Angeles or Miami
metropolitan areas, as determined by the Board in consultation with
Executive. The initial establishment of the Executive in the New
York metropolitan area (including New Jersey) shall not be treated
as a relocation or as a decision to locate the executive offices of
the Company in New York, and the Board, in consultation with
Executive, may shift (but only once) the executive offices to one
of the other two metropolitan areas during the first two years of
the Initial Term. In the event the executive offices of the Company
are relocated to the Los Angeles or Miami metropolitan areas, the
Company shall provide customary relocation benefits at a Chief
Executive Officer level, including temporary housing as reasonably
required by Executive and a full tax gross up with respect to any
relocation benefits that are not excludable from the
Executive’s income or, if includable in the Executive’s
income, are not fully deductible. Following any relocation outside
of the New York metropolitan area, if thereafter Executive is
terminated without Cause or resigns for Good Reason, the Company
will relocate Executive and his family back to the New York
metropolitan area under the Company’s relocation policy
applicable at a Chief Executive Officer level, including a full tax
gross up as described above.
4. Compensation
.
4.1 Base Salary .
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(a) In consideration of the services
rendered by the Executive under this Agreement, the Company shall
pay the Executive a base salary (the “ Base Salary
”) at an annual rate of $1,150,000 during his employment.
Executive’s Base Salary will be reviewed annually and may be
increased during the Employment Term in the discretion of the
Board, but may not be decreased.
(b) The Base Salary shall be paid in
such installments and at such times as the Company pays its
regularly salaried executives and shall be subject to all necessary
withholding taxes, FICA contributions and similar
deductions.
4.2 Sign On Bonus . Executive
shall receive a $1 million cash payment on or about the Effective
Date, which shall be applied (i) to pay applicable income and
employment taxes on such payment (estimated to be $430,000) and
(ii) to purchase approximately $570,000 of the Restricted
Shares (as described in Section 4.4(b)
below).
4.3 Annual Bonus . Executive
shall be entitled to an annual target bonus of 150% of annual
salary for such fiscal year, subject to performance goals
established by the Board in good faith, and shall have the
opportunity to earn a higher annual bonus if target performance
goals are commensurately exceeded, as determined by the Board in
good faith. With respect to 2007, Executive shall be entitled to
receive an annual bonus as follows: (i) a bonus payment on or
about the Effective Date in the amount of $300,000, which shall be
used to pay applicable income and employment taxes on the receipt
of such bonus and on the Class A Common Stock included in the
Initial Stock Award (as defined below), and (ii) a target
bonus opportunity of $1,425,000 (provided that the amount actually
paid with respect to such bonus shall not be less than
$850,000).
4.4 Equity Grants
.
(a) Initial Stock Award . On
the Effective Date, Executive shall be granted an equity award
representing shares of Preferred Stock of Broadcast Media Partners
Holdings, Inc., and Class L Common Stock of the Company (which
shall be in the form of restricted stock units) and Class A
Common Stock of the Company (which shall be in the form of
restricted shares) (collectively, the “ Company
Securities ”) having an aggregate fair market value of $5
million on such date (the “ Initial Stock Award
”), in the same proportion as the classes of such stock are
being purchased by the Sponsors. The terms and form of the Initial
Stock Award shall be set forth in an award agreement, which shall
be in substantially the same form as Exhibit A attached
hereto.
(b) Restricted Share Award .
Executive shall purchase, as of the Effective Date or such later
date as set forth in Section 4.4(c) , restricted shares
of the Class A Common Stock of the Company, which shall
represent, on the date of the closing of the transactions
contemplated by the Merger Agreement (defined below), 0.7% of the
fully diluted appreciation in the value of the common stock of the
Company (excluding preferences with respect to the Class L Common
Stock of the Company) (the “ Restricted Shares
”). The terms of the Restricted Shares shall be set forth in
Executive’s award agreement, which shall be in substantially
the same form as Exhibit B attached hereto.
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(c) Loan . The Company shall
make a recourse loan to Executive, in the approximate amount of
$2,023,000, solely for the purpose of enabling Executive to
complete the purchase of the Restricted Shares, and such loan shall
have the lowest permitted applicable federal rate of interest
thereon. One-third of Executive’s annual bonus (described in
Section 4.3 ), starting with the annual bonus for the
Company’s fiscal year commencing January 1, 2008, shall
be applied to repayment of the loan and any interest accrued
thereon. The loan shall be governed by a Secured Promissory Note
and Pledge Agreement in the form of Exhibit C attached
hereto. Notwithstanding the above, such loan shall not be made to
Executive until such time as the Company or any of its affiliates
shall no longer be an SEC reporting company.
(d) Equity Investment . In
addition, Executive shall invest at least $500,000 in Company
Securities in the same classes, in the same proportion and on
substantially the same terms as such securities are being purchased
by the Sponsors on the closing date of the transactions
contemplated by the Merger Agreement (described below).
4.5 Vacation . Executive
shall be entitled to twenty (20) annual paid vacation days,
which shall accrue and be useable by Executive in accordance with
Company policy, as may be in effect from time to time.
4.6 Benefits . During the
term of Executive’s employment under this Agreement,
Executive shall be entitled to participate in any benefit plans,
including medical, disability and life insurance (but excluding any
severance or bonus plans unless specifically referenced in this
Agreement) offered by the Company as in effect from time to time
(collectively, “ Benefit Plans ”), on the same
basis as those generally made available to other senior executives
of the Company, to the extent Executive may be eligible to do so
under the terms of any such Benefit Plan. Executive understands
that any such Benefit Plans may be terminated or amended from time
to time by the Company in its discretion. Until Executive is
eligible for Company medical insurance, the Company will pay
Executive’s COBRA continuation coverage, or reimburse
Executive for such coverage on an after-tax basis.
4.7 Perquisites . During the
Employment Period, the Company shall pay for and provide for the
Executive (i) term life insurance coverage in (a) an
amount of $2 million and (b) an additional amount of $1
million during the first 10 years of Executive’s employment
with the Company, and thereafter, such $1 million amount is subject
to adjustment if the cost exceeds standard rates,
(ii) long-term disability benefits of $660,000 per annum and
(iii) reimbursement for the cost of an annual physical
examination.
5. Termination
. Executive’s employment
hereunder may be terminated as follows:
5.1 Automatically in the event of
the death of Executive;
5.2 At the option of the Company,
within 30 days of the determination of Permanent Disability, by
written notice to Executive or his personal representative in the
event of the Permanent Disability of Executive. As used herein, the
term “ Permanent Disability ” shall mean a
physical or mental incapacity or disability which has rendered the
Executive unable to perform his material duties for a period of 180
days in any twelve-month period;
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5.3 At the option of the Company for
Cause (as defined in Section 6.4 ), on prior written
notice to the Executive in accordance with Section 6.4
;
5.4 At the option of the Company at
any time without Cause;
5.5 At the option of Executive, at
any time, for any reason, on sixty (60) days prior written
notice to the Company; or
5.6 At the option of Executive for
Good Reason (as defined in Section 6.5 ), on prior
written notice to the Company in accordance with
Section 6.5 .
6. Severance
Payments .
6.1 Termination Without Cause, by
Executive for Good Reason or by Non-renewal of Agreement . If
Executive’s employment is terminated at any time during the
Employment Period by the Company without Cause, by Executive for
Good Reason or if the Executive’s employment is terminated
hereunder as a result of non-renewal of this Agreement by the
Company, Executive shall be entitled to an amount equal to
(i) his Base Salary through the date of termination plus
(ii) (A) one (1) times Base Salary if such
termination occurs prior to the second anniversary of the Effective
Date or (B) two (2) times the sum of his Base Salary and
the annual cash bonus earned for the year preceding the year
including the date of termination, if such termination occurs on or
after the second anniversary of the Effective Date, payable in
accordance with the usual payroll policies in effect at the Company
as if Executive continued to be employed, plus (iii) any
annual bonus earned with respect to a fiscal year ending prior to
the date of such termination but unpaid as of such date, payable at
the same time as such payment would be made if Executive continued
to be employed by the Company plus (iv) a pro-rata annual
bonus, if any, for the calendar year in which such termination
occurs (based on the actual results of the Company for such
calendar year), payable at the same time as such bonus would be
made if Executive was still employed by the Company. Executive
shall also be entitled to any accelerated or continued vesting or
payment with respect to his equity awards as provided in the
applicable equity plan or award agreement, any relocation benefits
described in Section 3 hereof, two (2) years of
continued life insurance and group medical coverage for Executive
and eligible dependents upon the same terms as provided to senior
executive officers of the Company and at the same coverage levels
as in effect immediately prior to such termination of employment,
provided that such continued life insurance and group medical
coverage shall cease upon Executive becoming employed by another
employer and eligible for life insurance and/or medical coverage
with such other employer, any accrued and unpaid vacation pay, and
any other benefits which may be owing in accordance with the
Company’s policies.
6.2 Death or Permanent
Disability . Upon the termination of Executive’s
employment due to death or Permanent Disability, Executive or his
legal representatives shall be entitled to receive an amount equal
to Base Salary payable through the date of termination as well as
amounts described under Section 6.1(iii) and (iv)
hereof. Executive or his legal representatives shall also be
entitled to any accelerated vesting or other benefits with respect
to any of Executive’s equity awards, as provided under the
terms of the applicable equity plan and award agreement, two
(2) years of continued life insurance and group medical
coverage for Executive
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and eligible dependents upon the same terms as
provided to senior executive officers of the Company and at the
same coverage levels as in effect immediately prior to such
termination of employment, provided that such continued life
insurance and group medical coverage shall cease upon Executive
becoming employed by another employer and eligible for life
insurance and/or medical coverage with such other employer, any
accrued and unpaid vacation pay, and any other benefits which may
be owing in accordance with the Company’s
policies.
6.3 Termination for Cause or by
Executive without Good Reason . Except for Base Salary through
the day on which Executive’s employment was terminated, any
accrued and unpaid vacation pay and any other vested benefits which
may be owing in accordance with the Company’s policies or
applicable law, Executive shall not be entitled to receive
severance after the last date of employment with the Company upon
the termination of Executive’s employment hereunder by the
Company for Cause pursuant to Section 5.3 , or upon
Executive’s termination of his employment hereunder pursuant
to Section 5.5 ; provided, however, that for the
avoidance of doubt, Executive’s equity awards shall be
treated as provided in the applicable equity plan or award
agreement.
6.4 Cause Defined . For
purposes of this Agreement, the term “ Cause ”
shall mean:
(a) Executive’s willful
failure to perform his services hereunder in any material way after
notice from the Board and an opportunity to cure;
(b) material breach of fiduciary
duty;
(c) Executive’s conviction of
(or pleading guilty or nolo contendere in respect of) a
felony or any lesser offense involving willful and material
dishonesty or moral turpitude;
(d) material, willful misconduct
with regard to the Company or any of its subsidiaries, or any
employees, officers or directors thereof with regard to matters
related to the Company or any of its subsidiaries; or
(e) material breach by Executive of
any of the provisions of this Agreement after notice from the Board
and an opportunity for 30 days to cure (if curable).
provided , that , in each case, Executive may be
terminated for Cause only after prompt notice alleging specific
facts or circumstances, a meeting with the Board and a majority
vote of the Board (excluding employees of the Company or any of its
subsidiaries). No act or failure to act will be considered
“willful” unless done or omitted to be done in bad
faith or without a reasonable belief that the action or omission
was in the best interests of the Company or with reckless disregard
of the consequences.
6.5 Good Reason Defined . For
purposes of this Agreement, the term “ Good Reason
” shall mean, without Executive’s prior written
consent:
(a) any failure of Executive to hold
the title of Chief Executive Officer and be a member of the Board
or its ultimate parent other than by reason of Executive’s
termination of employment;
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(b) any significant diminution in
the Executive’s responsibilities, authorities or duties
(other than purely as a result of the Company after an IPO becoming
a non-reporting company so long as Executive is the CEO of the
ultimate parent of the Company);
(c) any requirement that Executive
relocate his principal place of employment to any city other than
New York, Los Angeles or Miami (and nearby areas), or after having
relocated from New York City and its nearby areas pursuant to
Section 3 above, to either Los Angeles or Miami (including
nearby areas), the Company requires Executive to subsequently
relocate to a different city and its nearby areas unless such
relocation is at the request of the Executive;
(d) any material, willful breach by
the Company of any of its material obligations to the Executive;
and
(e) any failure to obtain in a
writing delivered to Executive an assumption of Executive’s
employment contract by a successor to all or substantially all of
the assets of the Company;
provided , that , in each case, any resignation
for Good Reason requires notice by Executive to the Board within 90
days of Executive’s knowledge of the specific facts and
circumstances constituting Good Reason stating such specific facts
and circumstances and the Company shall have a reasonable
opportunity to cure such circumstances (if curable) within 30 days
of receipt of such notice. For the avoidance of doubt, Good Reason
shall not exist hereunder unless and until the thirty-day cure
period following receipt by the Company of Executive’s
written notice expires and the Company shall not have cured such
circumstances, and in such case Executive’s employment shall
terminate for Good Reason on the day following expiration of such
thirty-day cure period.
6.6 Change in Control
Benefits . With respect to the Company Securities referred to
in Sections 4.4 (a) and (b) hereof (including,
for the avoidance of doubt, the Restricted Shares), if, in the
event a Change in Control of the Company (as defined in
Executive’s equity award agreements attached hereto) within
six months following a Protected Termination, the net cash proceeds
realized per share with respect to any class of Company Securities
exceeds the Fair Market Value (as defined in Executive’s
equity award agreement attached hereto) of the Company Securities
in the same class received by Executive, then Executive shall be
entitled to an additional payment as soon as reasonably practicable
following such Change in Control, equal to the positive difference,
on a per share basis, between the net cash proceeds and Fair Market
Value multiplied by the number of Company Securities previously
sold by Executive. This Section 6.6 shall not apply to
any Company Securities, other than the Initial Stock Award, sold by
Executive to the Company for cost (rather than Fair Market Value)
and payment under this Section 6.6 shall be limited to
the difference between Fair Market Value and cost to Executive of
such Company Securities if Executive receiv
