Exhibit 10.76
AMENDED AND RESTATED EMPLOYMENT AGREEMENT
THIS AMENDED AND RESTATED EMPLOYMENT AGREEMENT ("Agreement")
is made as of October 31, 2003 between SPANISH BROADCASTING SYSTEM, INC., a
corporation existing under the laws of Delaware with offices located at 0000
Xxxxx Xxxxxxxx Xxxxx, XX #0, Xxxxxxx Xxxxx, Xxxxxxx 00000 ("SBS"), and XXXXX
XXXXXXXX (hereinafter referred to as "Employee"), an individual whose principal
place of residence and mailing address is 00000 Xxxxxx'x Xxx, Xxxxxxxxx,
Xxxxxxxxxx 00000.
RECITALS
WHEREAS, SBS is the owner and/or operator of certain
Spanish-language radio stations (the "Stations"); and
WHEREAS, SBS wishes to engage Employee, and Employee wishes to
become engaged to perform services for SBS as Chief Revenue Officer of SBS
during the term of and pursuant to the terms and conditions set forth in this
Agreement;
WHEREAS, SBS and Employee agree that this Amended and Restated
Employment Agreement replaces and voids in all respects all terms and conditions
set forth in that Amended and Restated Employment Agreement dated January 16,
2002 between SBS and Employee.
NOW THEREFORE, in consideration of the promises and the mutual
covenants contained herein, the parties understand and agree as follows:
1. EMPLOYMENT. Employee shall be employed to perform services as
Chief Revenue Officer of SBS. Employee shall report to and be directed by Xxxx
Xxxxxxx, Xx., SBS's President/CEO ("CEO") or his designee. Employee's services
will be rendered subject to and in accordance with the policies, controls, rules
and procedures of SBS.
2. SPECIFIC DUTIES AND SERVICES. Employee shall devote all of his
business time, effort and energy exclusively to the business of SBS and the
Stations, and shall not serve as an active principal or a director or officer of
any other company or entity without the prior written consent of Xxxx Xxxxxxx,
Xx. Employee shall be responsible for overseeing revenue performance of all SBS
local and national sales efforts, including supervising the accountability of
general managers and National Rep Firm; achieving specified company Station
Operating Income ("SOI") goals on an annual basis; and top line growth/new
business development.
3. TERM. The term of this Agreement shall be from December 1,
2003 through and including November 30, 2006 except as otherwise provided
herein. This Agreement shall automatically renew for an additional one (1) year
unless SBS notifies Employee of its intention not to renew
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4. COMPENSATION AND BENEFITS.
During the term of this Agreement
(a) BASE SALARY. Effective as of December 1, 2003
("Effective Date"), SBS shall pay to Employee a salary of five hundred thousand
dollars ($500,000.00) per year (the "Base Salary") payable in biweekly
installments. There shall be no reduction in the rate of Base Salary during the
term of this Agreement.
(b) STOCK OPTIONS. Upon execution of this Agreement,
Employee shall be eligible to receive, upon approval by the Compensation
Committee of SBS's Board of Directors (the "Compensation Committee"), stock
options to purchase up to 90,000 shares of SBS Class A common stock (the
"Shares") under SBS's 1999 Stock Option Plan, with (i) an exercise price equal
to the closing price of the Shares on the date on which the Compensation
Committee approves the grant of such option (the "Grant Date"), and (ii) of
which 33.4% vest immediately and the remainder of which shall vest ratably
during the term hereof on the anniversary of the Grant Date; provided however,
that in the event of a material breach of this Agreement by Employee, all
options granted hereunder will expire immediately and be rendered null and void.
In addition to the foregoing, Employee shall be
eligible to receive, based upon merit and in accordance with the recommendation
of Xxxx Xxxxxxx, Xx., to SBS's Compensation Committee, additional stock options
to purchase up to 62,500 Shares in year 2 and up to 62,500 Shares in year 3
under SBS's 1999 Stock Option Plan, with (i) an exercise price equal to the
closing price of the Shares on the date on which the Compensation Committee
approves the grant of such option (the "Incentive Grant Date"), and (ii) vesting
l/3rd each year thereafter on the anniversary of the Incentive Grant Date.
(c) PERFORMANCE BONUS. Employee shall be entitled to a
quarterly perfomance bonus as follows:
(i) forty thousand dollars ($40,000) if net sales per
quarter equals 100-109% of the sales budget established by SBS's Chief
Financial Officer ("CFO") delivered in writing and signed by Employee
(the "Sales Budget"); or
(ii) fifty thousand dollars ($50,000) if net sales
per quarter equals 110% of the Sales Budget or more.
(iii) Additionally, Employee shall be eligible for an
annual override of 2% on Net Sales over the Sales Budget, payable
annually, and adjusted annually.
(d) BENEFITS. Upon execution of this Agreement, Employee
shall be provided full family health care coverage and other benefits extended
to management level employees of SBS. Employee shall be entitled to three (3)
weeks vacation during each year of this Employment Agreement.
(e) EXPENSES. SBS shall reimburse Employee for reasonable
business and entertainment expenses that he incurs, including but not limited
to, a cell phone, computer, etc., subject to the approval of SBS's CFO, which
approval shall not be unreasonably withheld.
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(f) AUTOMOBILE ALLOWANCE. SBS shall provide Employee with
an Automobile Allowance in the amount of $1,500.00 per month.
(g) RELOCATION EXPENSES. SBS shall provide for all
relocating expenses incurred in connection with this Agreement.
5. COVENANTS.
(a) COMPETITIVE ACTIVITY. During the term of this
Agreement, and for a period of twelve (12) months after the termination of this
Agreement for any reason, Employee shall not render services in any capacity for
a radio station programming a Spanish-language format or owned or operated by a
broadcast company offering Spanish-language programming on other radio stations
it owns in other markets, nor shall he be directly or indirectly involved in any
radio business or radio network competitive with SBS's radio business.
Employee agrees to promptly notify SBS in writing of any
circumstances which might indicate the existence of a potential conflict.
Employee represents that no such conflicts or circumstances currently exist and
that Employee has no agreement with others that may conflict with any part of
this Agreement.
(b) SOLICITATION OR INTERFERENCE. During the term of this
Agreement or for a period of twelve (12) months after the earlier termination
hereof by either party for any reason (whichever period expires earlier),
Employee shall not:
(i) in any manner induce any employee, agent,
representative, customer, former customer, or any other person or concern,
dealing with or in any way, directly or indirectly, associated with SBS or its
Stations, to terminate such dealings or association nor;
(ii) do anything, directly or indirectly, to
interfere in any fashion with such relationship between SBS or its Stations, on
the one hand, and any such person or concern, on the other.
(c) NON-DISCLOSURE OF PROPRIETARY INFORMATION. Employee
shall not disclose the trade secrets or confidential and proprietary information
of SBS or SBS Stations ("Confidential Information"), whether during the
employment term or thereafter. The parties understand and agree, moreover, that
nothing contained herein shall prevent Employee from disclosing: (1) information
required to be disclosed pursuant to compulsory legal process, provided that
Employee shall give SBS immediate notice of such process prior to disclosure;
(2) information which was in Employee's lawful possession at the time of or
prior to its submission to Employee by SBS; or (3) information which is in the
public domain. For purposes of this Agreement, Confidential Information shall
mean information which is treated as confidential by SBS or any of the SBS
Stations, and is not generally known or available in or to the public, including
but not limited to employment contracts and financial information.
(d) SBS's RIGHT OF FIRST REFUSAL TO MATCH COMPETING
OFFER. Without compromising in any way SBS's rights under this Section 5 or
under law, SBS shall have a right of first refusal to match all bona fide
competing offers (and if Employee shall be ready, willing, and able to accept
such competing offer) for Employee's services at any non-SBS radio station
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wherever located ("competing offer") after the expiration of this Agreement. No
less than forty-five days (45) prior to the expiration of this Agreement,
Employee shall provide to SBS written notification of the terms and conditions
of offers for his services after the expiration of this Agreement. No less than
thirty (30) days prior to the expiration of this Agreement, and within fifteen
days of the receipt of notification from Employee, SBS shall provide to Employee
written notification of whether it intends to match each and every material term
of each and every bona fide competing offer. If SBS declines to match each and
every material term of a bona fide competing offer, Employee shall be free to
accept that competing offer and to begin employment after the period of time as
described in Section 3 has expired. The right of first refusal contained in this
Section 5(d) shall not apply to any conduct other than the performance of
"services" as defined herein. For purposes of this Agreement, the phrase
"material term" shall mean any and all conditions of the engagement of Employee
contained in, or contemplated by, this Agreement.
(e) EMPLOYEE FIDELITY. Employee agrees that during the
term of this Agreement Employee will not, directly or through third-party
intermediaries, initiate or invite contact with, or solicit or entertain offers
or proposals of employment from, employers that compete with SBS or its
Stations, wherever located, provided however, that concurrent with the
forty-five (45) day period set out in Section 5(d) above, Employee may at that
time entertain offers from third parties. Employee expressly acknowledges that a
breach of this covenant of fidelity shall constitute grounds for termination for
cause under Section 8.
(f) INJUNCTIVE RELIEF. Employee acknowledges that by
virtue of his position with SBS, Employee will be given access to SBS's and the
SBS Stations' trade secrets and Confidential Information. Employee farther
acknowledges that any breach of this Section 5 shall cause irreparable injury to
SBS and the SBS Stations, and that in the event of such breach SBS and the SBS
Stations shall be entitled to temporary and permanent injunctive relief against
Employee and any persons or entities acting in concert with Employee in addition
to any other legal and equitable remedies to which SBS and the SBS Stations may
be entitled. Employee further acknowledges that the covenants contained in this
Section 5 are reasonable and necessary to protect the legitimate business
interests, trade secrets and Confidential Information of SBS and the SBS
Stations, that SBS and the SBS Stations expend significant time and expense in
developing and protecting their trade secrets and Confidential Information, and
that SBS' willingness to employ Employee is contingent upon Employee agreeing to
this Section 5.
(g) CONSTRUCTION AND SURVIVAL. Employee hereby agrees
that each provision in this section shall be treated as a separate and
independent clause, and the unenforceability of any one clause shall in no way
impair the enforceability of any of the other clauses herein. Moreover, if one
or more of the provisions contained in this Section 5 shall for any reason be
held to be excessively broad as to geography, time, activity or subject so as to
be illegal or unenforceable at law or equity, such provision or provisions shall
be construed by the appropriate judicial body by limiting and reducing it or
them so as to be enforceable to the maximum extent comparable with applicable
law. It is the intent of the parties that this section be enforced to the
greatest extent allowable in law or equity. The terms of this Section 5, shall
survive the termination or expiration of Employee's employment and this
Agreement, but only to the extent of the time limitations as set forth herein.
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(h) POSSESSION OF CONFIDENTIAL INFORMATION. Employee
covenants that he has not removed any confidential or trade secret documents
from his prior employer, that he does not have in his possession any such
documents, and that he will not disclose to SBS or any of the SBS Stations any
trade secret or Confidential Information of his prior employer.
6. RESOLUTION OF DISPUTES.
Employee acknowledges and agrees that the provisions of
Section 5 are reasonable and necessary for protection of SBS and the SBS
Stations, and that SBS and the SBS Stations will be irrevocably damaged if such
provisions are not specifically enforced. Accordingly, money damages from
Employee's breach of Section 5 would be difficult, if not impossible, to
calculate and the most appropriate relief in the event of Employee's breach
would be injunctive relief. Nothing contained herein shall be deemed to prohibit
SBS or the SBS Stations, for any such breach, from instituting or prosecuting
any other proceeding in any court of competent jurisdiction, in either law or
equity, to obtain damages for any breach of this Agreement. All remedies given
to SBS and the SBS Stations by this Agreement shall be construed as cumulative
remedies and shall not be alternative or exclusive remedies. In the event of a
breach or threatened breach by Employee of Section 5, Employee agrees to pay to
SBS all costs and expenses, including reasonable attorney's fees, as may be
expended by SBS relative to said breach or threatened breach.
7. COMPLIANCE WITH SECTION 508 OF THE COMMUNICATIONS ACT
OF 1934.
Employee shall comply with the provisions of Section 508 of
the Communications Act of 1934, as amended, in that he will not accept money or
any valuable consideration, including services, for the broadcast of any matter
by the Stations and in that he will promptly complete the Annual Statement and
Questionnaire and promptly return it to SBS. Without limiting SBS's right to
terminate for any other cause, SBS shall have the right, upon violation of this
provision by Employee, immediately to terminate this Agreement and Employee's
employment hereunder for cause.
8. TERMINATION.
(a) WITHOUT CAUSE. SBS may terminate this Agreement
without cause at any time, upon which Employee shall receive a lump sum payment
as liquidated damages equivalent to one year's Base Salary based upon the Base
Salary at the time of termination plus any Bonus earned to the date of
termination.
(b) WITH CAUSE. SBS may terminate this Agreement for
cause at any time upon four (4) weeks prior notice or tender of four (4) weeks
pay, less withholdings, in lieu of notice. If Employee is terminated for cause,
which shall include, but not be limited to, termination resulting from: (i)
expiration of the term of this Agreement without renewal; (ii) death of
Employee; (iii) misconduct by Employee as described herein below, (iv) Employee
disability which prevents Employee from performing his duties hereunder for four
(4) consecutive weeks or for a total of eight (8) weeks in any one-year period;
he shall be entitled to only such compensation that has accrued up to the date
of termination and no more.
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Misconduct by Employee permitting termination for cause
hereunder shall include the following:
(i) failure to comply with any of the material
terms and conditions of this Agreement, to perform any reasonable duties
assigned by SBS, to follow any written or established operating policies of SBS,
any written or established personnel policies of SBS (Employee acknowledges
having read and understood SBS's Employee policy manual), to comply with any
rule, regulation, guideline or policy of the FCC or other governmental agency
with jurisdiction over SBS
(ii) repeated or sustained absence from the
Station;
(iii) conviction of any criminal offense, other
than a traffic violation or minor misdemeanor resulting in incarceration for
less than forty-eight (48) hours;
(iv) any act of dishonesty relating to SBS;
(v) engaging in "payola" or "plugola" practices;
(vi) use of illegal drugs or habitual use of
alcohol;
(vii) any act that reflects unfavorably and
egregiously on the reputation of SBS and/or would have a material adverse
consequence of the business of SBS.
(c) TRANSFER OF OWNERSHIP OR CONTROL. If there is a
transfer of control of ownership of SBS and Employee's employment is not
continued at the current position, then Employee shall receive a severance
payment equivalent to one year's Base Salary or the balance of pro-rated Base
Salary remaining pursuant to the terms of this Agreement, whichever is greater.
9. MISCELLANEOUS.
(a) ASSIGNMENT. SBS shall be entitled to assign this
Agreement to any assignee it sees fit; provided, however, that such assignee
must agree to be bound by the terms and conditions in this Agreement. Employee
may not assign his obligations under this Agreement.
(b) NOTICE. Any notice or other communication under this
Agreement shall be in writing and shall be considered given when mailed by
registered or certified mail, return receipt requested or by a reputable
overnight courier or service (i.e., Federal Express) to the parties at the
address set forth below (or any other such address as one party may specify by
notice to the other).
As to SBS: Xxxxx X.Xxxxx, Esq.
Spanish Broadcasting System, Inc.
0000 Xxxxx Xxxxxxxx Xxxxx, XX #0
Xxxxxxx Xxxxx, Xxxxxxx 00000
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With a copy to:
Xxxx Xxxxxxx LLP
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxxxx, Esq.
As to Employee: Xxxxx Xxxxxxxx
00000 Xxxxxx'x Xxx
Xxxxxxxxx, Xxxxxxxxxx 00000
(c) NO WAIVER. The failure of either party hereto to
object to the failure on the part of the other party to perform any of the
terms, provisions, or conditions of this Agreement or to exercise any option or
remedy herein given or to require at any time performance on the part of the
other party of any term, provision, or condition hereof, or any delay in doing
so, or any custom or practice of the parties at variance with the terms hereof,
shall not constitute a waiver or modification thereof or of any subsequent
breach of the same or a different nature nor affect the validity of this
Agreement or any part thereof nor the right of either party thereafter to
enforce the same not constitute a novation or laches.
(d) CONFORMITY TO LAW. If any one or more provisions of
this Agreement should ever be determined to be illegal, invalid, or otherwise
unenforceable by a court of competent jurisdiction or be invalid or invalidated
or unenforceable by reason of any law or statute, then to the extent and within
the jurisdiction invalid or unenforceable, it shall be limited, construed or
severed and deleted therefrom, and the remaining portions of this Agreement
shall survive, remain in full force and effect, and continue to be binding and
shall not be affected and shall be interpreted to give effect to the intention
of the parties insofar as that is possible.
(e) ATTORNEY'S FEES. In the event of any action involving
this Agreement, the prevailing party shall be entitled to reimbursement of its
reasonable attorney's fees and disbursements, in addition to any damages.
(f) HEADINGS. The Headings used in this Agreement are for
the convenience of the parties and for reference purposes only and shall not
form a part of or affect the interpretation of this Agreement.
(g) CONSTRUCTION. This Agreement shall be construed
without regard to any presumption or other rule requiring construction against
the party causing this Agreement to be drafted, since the attorneys for the
respective parties have submitted revisions to the text hereof.
(h) GOVERNING LAW. The validity of this Agreement, its
interpretation and any disputes arising from, or relating in any way to, this
Agreement or the relationship of the parties, shall be governed by the law of
the State of Florida without regard to conflicts of law principles.
(i) ENTIRE AGREEMENT. The Agreement shall constitute the
entire agreement concerning the subject matter hereof between the parties,
superseding all previous agreements, memoranda of understanding, negotiations,
and representations made prior to the effective date
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of this Agreement. This Agreement shall be modified or amended only by written
agreement executed by Employee and SBS.
(j) COUNTERPARTS. This Agreement may be executed
simultaneously in one or more counterparts, each of which shall be deemed to be
an original copy of this Agreement and all of which together shall constitute
one and the same instrument.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed as of the day and year first written above.
SPANISH BROADCASTING SYSTEM, INC.
By: /s/ Xxxx Xxxxxxx
------------------------
Xxxx Xxxxxxx, Xx.
President
XXXXX XXXXXXXX
/s/ Xxxxx Xxxxxxxx
---------------------------------
Employee
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