Exhibit 10.15
This EMPLOYMENT AND NON-COMPETITION
AGREEMENT (this “ Agreement ”), dated as of
March 29, 2007 (“ Effective Date ”), by and
between Broadcasting Media Partners, Inc., a Delaware corporation
(the “ Company ”), and C. Douglas Kranwinkle
(the “ Executive ”).
WHEREAS, the Executive has extensive
experience and knowledge regarding Grupo Televisa, including the
contracts between Univision Communications Inc. and Grupo
Televisa;
WHEREAS, the Company desires to be
assured of the Executive’s availability and services with
respect to all matters arising from or relating to Grupo
Televisa;
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:
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1.
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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 second anniversary of the Effective Date
(the “ Employment Period ”).
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2.
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Duties . During the Employment Period, Executive shall
make himself reasonably available at mutually convenient times to
consult with the Company in regards to matters arising from or
relating to Grupo Televisa; provided that Executive shall not be
required to travel or maintain any level of hours in the
Company’s offices in connection with such services and may
provide such services by means of telephone. In addition, Executive
shall during the Employment Period hold the position of Executive
Vice President - Legal with the Company and Univision, and shall
perform services consistent with such position as may be reasonably
requested by the Company, subject to Executive’s right to
determine the level of his office hours at the Company’s
offices.
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3.
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Office Hour
s. Executive is initially expected
to continue on a substantially full-time basis until July 1, 2007,
and thereafter perform services on a less than full-time basis.
Executive shall be permitted to determine the level of his office
hours,
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if any, at the Company’s
offices and the number of business hours for which he is expected
to perform services that relate to matters other than Grupo
Televisa. Executive shall devote the business time, attention and
energies (excepting vacation time, holidays, sick days and periods
of disability) consistent with his commitment hereunder and use his
reasonable best efforts in performing the services for the Company
as described herein during the Employment Period; provided ,
however , that nothing in this Section 3 shall
be interpreted as prohibiting Executive from managing his personal
affairs or engaging in charitable or civic activities, or 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.
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4.1 Restrictive Covenant
Payment . In consideration of Executive’s restrictive
covenants set forth in Section 6 hereof and his services
arising from or relating to Grupo Televisa, Executive shall be
entitled to a payment of $4,700,000 on or one day following the
Effective Date. The Company has engaged KPMG to provide a valuation
of Executive’s restrictive covenants under Section 6,
and Executive agrees that such valuation shall be used to determine
the portion (but not exceeding 100%) of the lump sum payment under
this paragraph allocable to such restrictive covenants. The balance
of the lump sum payment under this paragraph shall be allocated to
the services arising from or relating to Grupo Televisa. If
requested, Executive shall execute and deliver an amendment to this
Agreement setting forth the allocation of the lump sum payment
under this paragraph.
4.2 Base Salary .
(a) In consideration of any office
hours maintained by Executive at the Company’s offices and
any additional services to be rendered by the Executive under this
Agreement, the Company shall pay Executive a base salary depending
on the aggregate level of office hours and other business hours for
the Company. If Executive’s aggregate business and office
hours for the Company are on a full-time basis, his base salary
shall be at a monthly rate of $64,200. Such monthly rate shall be
proportionately adjusted downward to reflect his less than
full-time aggregate business and office hours.
(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.
4.3 Discretionary Bonus .
During the Employment Period, the Board may determine, in its sole
discretion, to award Executive an annual bonus with respect to a
fiscal year of the Company. Such bonus, if any, shall be payable no
later than seventy-five (75) days following the end of such
fiscal year.
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4.4 Stock Option . On the
Effective Date or as soon as practicable thereafter, Executive
shall be granted a nonqualified stock option to purchase a number
of shares of Class A Common Stock of the Company which
represent, on the Effective Date, 0.06% 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) as of the Effective Date. The terms of the stock
option grant shall be set forth in a separate award agreement, the
terms of which shall be in a form as agreed upon by the Company and
the Executive.
4.5 Additional Payments
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(a) 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
Univision Communications, Inc. Change in Control Retention Plan
(the “Rabbi Trust”) a cash payment of $4,413,788, to be
paid on the Effective Date or the day after, less applicable tax
withholding.
(b) In exchange for the payments and
benefits described in this Section 4.5 , 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 A ; 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). 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 4.5 .
4.6 Vacation . Executive
shall be entitled to receive a lump sum payment equal to his
accrued and unused vacation on the date (or as soon as reasonably
practicable thereafter) on which Executive begins to perform
services on a less than full-time basis (which date is expected to
be after July 1, 2007). Thereafter, Executive shall be
entitled to five (5) days of paid vacation for every twelve
weeks of full-time employment or equivalent thereof. For example,
if Executive works for 24 weeks on a 50% of full-time basis,
Executive shall accrue five (5) days of paid
vacation.
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4.7 Benefits . During the
Employment Period, Executive shall be entitled to participate in
the Company’s health plan in effect from time to time on the
same basis as other senior executives of the Company, regardless of
the number of his business or office hours. Executive shall also be
entitled during the Employment Period to participate in the
Company’s other benefit plans as in effect from time to time
(but excluding any severance or bonus plans unless specifically
referenced in this Agreement) on the same basis as those generally
made available to other senior executives of the Company, but only
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.
4.8 Perquisites . During the
Employment Period, the Company shall provide the Executive
(i) if the Executive is maintaining business and office hours
equivalent to at least 50% of a full-time basis, use of an
apartment in the proximate area of the Company’s offices in
the Los Angeles, CA area, provided that the monthly cost of such
apartment shall not exceed $3,500 (and Executive shall be grossed
up for income taxes, if any, incurred on such benefit),
(ii) reimbursement for the cost of an annual physical
examination, (iii) first class air travel and hotel (when
traveling for business purposes) and (iv) term life insurance
coverage in an amount of $3 million at standard rates.
5.1 Death or Permanent
Disability . In the event of Executive’s death or
Permanent Disability during the Employment Period,
Executive’s employment with the Company will be deemed
terminated and Executive or his legal representatives shall be
entitled to receive any accrued but unpaid Base Salary and vacation
through the date of termination. 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.
5.2 Other Terminations of
Employment . Subject to Section 5.1, Executive’s
obligations pursuant to the first sentence of Section 2
(relating to Grupo Televisa) are expected to continue during the
Employment Period. Executive may choose to reduce his office and
business hours relating to matters other than Grupo Televisa to
zero. However, in the event Executive’s office and business
hours (including those related to Grupo Televisa) are reduced to
zero for any other reason other than those specified in
Section 5.1 , Executive’s employment with the
Company will be deemed terminated and Executive shall be entitled
to any accrued but unpaid Base Salary and vacation through the date
of termination.
5.3 Extended Medical Benefits; No
Other Severance . If Executive’s employment is terminated
by the Company or on account of Permanent Disability, or on account
of the expiration of the Employment Term on the second anniversary
of the Effective Date, Executive shall receive one year of
continued group medical coverage for Executive and his eligible
dependents upon the same terms as provided to senior executive
officers of the Company and at the same coverage levels as in
effect
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immediately prior to such termination of
employment, provided that such continued group medical coverage
shall cease upon Executive becoming employed by another employer
and eligible for medical coverage with such other employer.
Executive hereby acknowledges and agrees that, other than the
continued group medical coverage described in this
Section 5 , upon termination, Executive shall not be
entitled to any other severance under any Company benefit plan or
severance policy generally available to the Company’s
employees or otherwise.
5.4 Reimbursement of Expenses
. The Company shall reimburse the Executive for all reasonable and
necessary expenses actually incurred by the Executive directly in
connection with the business and affairs of the Company and the
performance of his duties hereunder, upon presentation of proper
receipts or other proof of expenditure and in accordance with such
reasonable guidelines or limitations established by the Board from
time to time.
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6.
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Restrictions on Activities of the
Executive .
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6.1 Non-Competition
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(a) Executive shall not, directly or
indirectly, be employed by or otherwise perform services for Grupo
Televisa until the fifth anniversary of the Effective
Date.
(b) Executive further covenants and
agrees that during employment and for a period of two years after
termination of Executive’s employment under this Agreement
(“Cooling Off Period”), Executive will not directly or
indirectly engage in any “Business” (as defined below)
in the United States and Puerto Rico and any other country in which
the Company or any of its affiliates engages in such Business
(whether alone, as a partner, joint venturer, officer, director,
employee, consultant or investor of any other entity) that is
competitive with or adverse to the Company or any of its
subsidiaries, including, but not limited to, (x) representing,
as talent agent or otherwise, any performer or celebrity,
(y) the production of advertising, news or programming of any
kind or the distribution or transmission of any such advertising,
news or programming wherever produced, or (z) the advertising,
marketing, telemarketing or sale of any product, institution or
service similar to the Company or any of its subsidiaries, or any
of their products or services. Executive also covenants and agrees
that during the Cooling-Off Period Executive will not (other than
in the performance of Executive’s duties under this
Agreement) join or participate wi