Exhibit 10.13
This 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 Ray Rodriguez
(the “ Executive ”).
WHEREAS, the Company desires that
Executive continue his employment with the Company on the closing
of the transactions (the “ Effective Date ”)
contemplated by that Agreement and Plan of Merger by and among the
Company, Umbrella Acquisition, Inc., and Univision Communications
Inc., a Delaware corporation, dated as of June 26, 2006 (the
“ Merger Agreement ”) upon the terms and
conditions hereinafter set forth; 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 fifth anniversary of the
Effective Date (the “ Initial Term ”). On the
fifth 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 President and Chief Operating Officer of the Company.
Executive’s duties and responsibilities shall include those
duties and responsibilities commensurate with his positions and
reasonably assigned to him from time to time by the Company’s
Board of Directors (the “ Board ”). Executive
shall devote his entire business time, attention and energies
(excepting vacation time, holidays, sick days and periods of
disability) and use his reasonable best efforts in his employment
with the Company; 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.
3. Compensation .
3.1 Base Salary .
(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 $1,100,000 during his employment.
Executive’s Base Salary shall automatically increase by 5% on
each anniversary of the Effective Date during the Initial
Term.
(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.
3.2 Bonus . During the
Employment Period, the Executive shall be eligible to receive an
annual bonus (the “ Annual Bonus ”) with respect
to each fiscal year of the Company, with a maximum bonus set at
200% of annual Base Salary paid for such fiscal year. The
Executive’s Annual Bonus shall be 100% of the
Executive’s annual Base Salary paid for a fiscal year if the
Company’s Adjusted EBITDA (as defined below) is equal to the
amount of projected EBITDA set forth for such year in the
Company’s financing projections provided to the banks in
January 2007, which are attached, along with worksheets underlying
such projections, hereto as Exhibit A . The
Executive’s Annual Bonus shall be 200% of the
Executive’s annual Base Salary paid for a fiscal year if the
Company’s Adjusted EBITDA (as defined below) is equal to the
projected EBITDA set forth for such year in the Confidential
Information Memorandum, which, along with worksheets underlying
such projections, are attached hereto as Exhibit B . In
determining whether the Annual Bonus is earned, the actual results
of the Company, as determined in accordance with U.S. generally
accepted accounting principles, shall be subject to pro forma
adjustments as described in Exhibit C (“ Adjusted
EBITDA ”). In the event actual performance for any
applicable fiscal year falls between the thresholds set forth in
the second and third sentences of this Section 3.2 ,
then the applicable bonus percentage shall be adjusted accordingly
using a straight line method of interpolation. In the event that
the Company engages in certain restructuring activities, including,
without limitation, any mergers or divestitures, the Company and
Executive shall cooperate in good faith to reset the bonus
parameters, as appropriate, to take into account such activities in
a manner intended to make any amount of Annual Bonus neither easier
nor more difficult to attain. The Annual Bonus in respect of any
fiscal year shall be payable in accordance with Company practice,
but in case no later than seventy-five (75) days following the
end of such fiscal year.
3.3 Equity Grant .
(a) Restricted Stock Units .
On the Effective Date, Executive shall be granted restricted stock
units representing shares of Preferred Stock of Broadcast Media
Partners Holdings, Inc., and shares of Class L Common Stock and
Class A Common Stock of the Company, having an aggregate fair
market value (which shall be equal to the same cost per
share
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for such stock as that paid on the Effective
Date by “Sponsors” (as defined below)) of $3.6 million
on such date (“ RSUs ”), in the same proportion
as the classes of such stock are being purchased by the Sponsors on
the Effective Date. The terms of the RSU grant are set forth in the
award agreement attached as Exhibit D hereto.
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.
(b) Equity
Investment . As of the Effective Date (or if later, such date
on which the payments set forth in Section 3.4 are
made), Executive shall invest $4.5 million in the securities of the
Company as follows: approximately $2,407,761 to purchase restricted
shares of the Company’s Class A Common Stock (the
“ Restricted Shares ”) and $2,092,239 to
purchase shares of Preferred Stock of Broadcast Media Partners
Holdings, Inc., and shares of Class L Common Stock and Class A
Common Stock of the Company (the “ Purchased Shares
”), at the same cost per share and, as to the Purchased
Shares, in the same proportion as being purchased by the Sponsors
on the Effective Date. The Restricted Shares shall initially
represent 0.65% of the fully diluted appreciation in the aggregate
value of the Class L Common Stock and the Class A Common Stock
(excluding preferences) of the Company as of the Effective Date.
The terms of the Restricted Shares are set forth in the award
agreement attached as Exhibit E hereto. Executive may,
instead of purchasing the Purchased Shares himself, cause the
Purchased Shares to be purchased by one or more trusts, the sole
beneficiaries of which are Executive and/or members of his
family.
3.4 Change in Control Payment
. The Executive shall be entitled to receive from the rabbi trust
funding the obligations under the Univision Communications, Inc.
Change in Control Severance Plan and Change in Control Retention
Plan a cash payment of $9,300,000 and a cash payment of a pro rata
bonus equal to $2,200,000 multiplied by a fraction, the numerator
of which is the number of days in 2007 preceding and including the
Effective Date and the denominator of which is 365, each of such
payments to be paid on the Effective Date or the day after, less
applicable tax withholding. Further, Executive shall be entitled to
receive a cash payment on the Effective Date or the day after,
equal to $5,437,500 in exchange for the cancellation of
Executive’s 150,000 restricted stock units granted on
May 18, 2006 pursuant to the Company’s Change in Control
Retention Plan, subject to applicable tax withholding. In exchange
for the payments and benefits described in this
Section 3.4 , Executive shall execute and deliver to
the Company a release waiving his rights to any benefit or payment
under the Company’s Change in Control Severance Plan and
Change in Control Retention Plan and consenting to the termination
of such plans with respect to Executive in a form as set forth in
Exhibit F ; provided, however, that Executive shall be
entitled to and shall not waive or release his rights with respect
to (i) the parachute gross up protection set forth in
Section 4 of the Change in Control Severance Plan and
(ii) reimbursement for all reasonable legal fees and expenses
incurred in seeking to obtain or enforce any right or benefit set
forth in Section 4 of the Change in Control Severance Plan
(other than any such fees and expenses incurred in pursuing any
claim determined by an arbitrator or by a court of competent
jurisdiction to be frivolous or not to have been brought in good
faith).
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Executive shall also take all other actions
required under the terms of the Trust Agreement, dated
February 5, 2007, by and between Univision Communications,
Inc., a Delaware corporation, or any successor thereto and United
States Trust Company, National Association (the “
Trustee ”) to waive his rights to any payments or
benefits under the Company’s Change in Control Severance Plan
and Change in Control Retention Plans, other than the amounts
described in this Section 3.4.
3.5 Vacation . Beginning on
the Effective Date, Executive shall be entitled to twenty
(20) annual paid vacation days (provided that the number of
such days shall be adjusted on a pro-rata basis for the 2007
calendar year), which shall accrue and be useable by Executive in
accordance with Company policy, as may be in effect from time to
time. Executive shall be entitled to carry over the forty
(40) vacation days he has accrued and unused as of the
Effective Date (the “ Frozen Vacation Days ”)
over the course of the Employment Period; provided that Executive
shall not be able to use more than 10 Frozen Vacation Days in any
calendar year. Any unused Frozen Vacation Days shall be paid to
Executive upon his termination of employment in accordance with
Section 5 and any accrued and unused vacation days
(other than the Frozen Vacation Days) shall be paid to Executive
upon his termination of employment, in accordance with Company
policy as in effect at the time of termination, in accordance with
Section 5 .
3.6 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 made available to the senior executive officers of
the Company, including the CEO of the Company and his direct
reports, generally, 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.
3.7 Perquisites . During the
Employment Period, the Company shall pay for and provide for the
Executive (i) term life insurance coverage in an amount of $3
million, (ii) long-term disability benefits of $660,000 per
year, (iii) a reasonable annual vehicle allowance,
(iv) reimbursement for the cost of an annual physical
examination, (v) reimbursement for reasonable club dues at one
country club and (vi) first class air travel and hotel (when
traveling for business purposes).
4. Termination
. Executive’s employment
hereunder may be terminated as follows:
4.1 Automatically in the event of
the death of Executive;
4.2 At the option of the Company, 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 renders Executive
unable to perform his material duties for a period of 180 days in
any twelve-month period;
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4.3 At the option of the Company for
Cause (as defined in Section 5.4 ), on prior written
notice to the Executive in accordance with Section 5.4
;
4.4 At the option of the Company, on
thirty (30) days prior written notice to Executive, without
Cause (provided that the Company may require Executive to not
perform any duties during such notice period);
4.5 At the option of Executive, at
any time without Good Reason, on sixty (60) days prior written
notice to the Company; or
4.6 At the option of Executive for
Good Reason (as defined in Section 5.5 ), on prior
written notice to the Company in accordance with
Section 5.5 .
5. Severance Payments
.
5.1 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 and any
unpaid Annual Bonus in respect of any fiscal year ended prior to
the date of such termination. Executive or his legal
representatives shall also be entitled to any unused Frozen
Vacation Day pay, any accelerated vesting or other benefits with
respect to any of Executive’s equity awards, as provided
under the terms of the applicable equity plans and award agreements
and any accrued and unpaid vacation (other than the Frozen Vacation
Day pay) or other benefits which may be owing in accordance with
the Company’s policies.
5.2 Termination Without Cause, by
Executive for Good Reason or by Nonrenewal 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 at the end of the Employment Period as a result of
non-renewal of this Agreement by the Company prior to
Executive’s attainment of age 65, Executive shall be entitled
to an amount equal to (i) his Base Salary through the date of
termination and any unpaid Annual Bonus in respect of any fiscal
year ended prior to the date of such termination plus (ii) two
(2) times the sum of (A) his annual Base Salary in effect
at the time of such termination plus (B) the Annual Bonus
earned for the fiscal year preceding the fiscal year including the
date of termination (the “ Severance Bonus ”)
(and for this purpose, if Executive is terminated prior to the end
of first fiscal year of the Company ending following the Effective
Date, such Annual Bonus shall be deemed to be $2,200,000), payable
in accordance with the usual payroll policies in effect at the
Company as if Executive continued to be employed, plus (iii) a
pro rata Annual Bonus, if any, for the fiscal year in which such
termination occurs, equal to the Severance Bonus multiplied by a
fraction, the numerator of which is the number of days in such
calendar year through the date of such termination and the
denominator of which is 365, which, solely with respect to this
clause (iii), shall be payable no later than ten (10) days
following such termination. Executive shall also be entitled to
(i) any accelerated or continued vesting or payment with
respect to his equity awards as provided in the applicable equity
plan or award agreement, (ii) 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
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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, (iii) any unused Frozen Vacation Day
pay and (iv) any accrued and unpaid vacation pay (other than
any unused Frozen Vacation Day pay) or any other benefits which may
be owing in accordance with the Company’s
policies.
5.3 Termination for Cause or by
Executive without Good Reason . Except for Base Salary through
the day on which Executive’s employment was terminated, any
unused Frozen Vacation Day pay and any accrued and unpaid vacation
pay (other than the Frozen Vacation Day pay) or 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 4.3 , or upon Executive’s termination of
his employment hereunder pursuant to Section 4.5
.
5.4 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 or
willful, material breach of fiduciary duty;
(b) Executive’s conviction of
(or pleading guilty or nolo contendere in respect of) a
felony (other than driving while intoxicated) or any lesser,
willful, material offense involving dishonesty, moral turpitude or
the Company’s or its affiliates property; and
(c) material willful misconduct or
willful material breach by Executive of any of the provisions of
this Agreement;
provided , that , in each case, any proposed
termination for Cause requires notice from the Board to the
Executive, within 90 days after the Board has knowledge of specific
facts and circumstances constituting “Cause”, stating
such specific facts and circumstances and Executive shall have a
reasonable opportunity to cure such circumstances (if curable)
within 90 days after any such notice.
5.5 Good Reason Defined . For
purposes of this Agreement, the term “ Good Reason
” shall mean, without Executive’s written
consent:
(a) a failure of Executive to hold
the title of President and Chief Operating Officer of the Company
other than by reason of the Executive’s termination of
employment;
(b) a significant diminution of
Executive’s duties and responsibilities (excluding duties and
responsibilities relating to advertising sales, retransmission and
distributions, internet and radio);
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(c) any assignment of duties or
responsibilities that are not commensurate with his positions as
President and Chief Operating Officer;
(d) any change in the reporting
structure so that Executive reports to someone other than the CEO
(subject to the responsibilities of the Board and committees
thereof);
(e) any willful, material breach of
any material obligation of the Company to Executive under this
Agreement or any equity agreements;
(f) failure of a successor to all or
substantially all of the assets of the Company to assume employment
contract; and
(g) relocation to a city other than
the Miami metropolitan area;
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 30-day cure period
following receipt by the Company of Executive’s written
notice expires and the Company shall not have cured such
circumstances,
