Exhibit 10.49
STOCK OPTION AGREEMENT
THIS AGREEMENT, dated as of January 15, 2001, is made by and between
Spanish Broadcasting System, Inc., a Delaware corporation (the "Company") and
Joseph A. Garcia (the "Optionee").
WHEREAS, the Company and the Optionee are parties to an Employment
Agreement, dated as of October 25, 1999 (the "1999 Employment Agreement"), which
was amended by that certain Employment Agreement, between the Company and the
Optionee, dated December 7, 2000 (the "2000 Employment Agreement").
WHEREAS, pursuant to the 2000 Employment Agreement, and in addition to
the options granted under the 1999 Employment Agreement, the Optionee has been
selected by the Stock Option Committee of the Compensation Committee of the
Board of Directors of the Company (the "Committee") to receive a grant of stock
options under the Spanish Broadcasting System 1999 Stock Option Plan (the
"Plan").
NOW, THEREFORE, in consideration of the Optionee's employment with the
Company, the Company and the Optionee agree as follows:
1. Definitions.
Any capitalized term not defined herein shall have the meaning set
forth in the Plan.
2. Grant of Option.
(a) Grant; Grant Date. Subject to the terms and conditions hereof, the
Company hereby grants to the Optionee as of December 7, 2000, (the "Grant Date")
an option to purchase 100,000 Shares at an exercise price equal to the closing
price of the Shares on December 7, 2000, of $4.8125 per share.
(b) Adjustments in Option. In the event that the outstanding Shares
subject to the Option are changed into or exchanged for a different number or
kind of shares or securities of the Company, or of another corporation, by
reason of reorganization, merger or other subdivision, consolidation,
recapitalization, reclassification, stock split, issuance of warrants, stock
dividend or combination of shares or similar event, the Committee shall make an
appropriate and equitable adjustment in the Option so that the Optionee's
proportionate interest shall be maintained as before the occurrence of such
event, provided that any such adjustment shall be consistent with the provisions
of the Optionee's employment agreement, if applicable.
(c) Form of Option. The Options is intended to be an Incentive Stock
Option to the fullest extent provided by law.
(d) Term. The Option shall expire on the tenth anniversary of the Grant
Date, unless terminated earlier by the Committee.
(e) Vesting. The Option shall become exercisable as follows: 20%
immediately on the Grant Date; 20% on the first anniversary of the Grant Date;
20% on the second anniversary of the Grant Date; 20% on the third anniversary of
the Grant Date; and 20% on the fourth anniversary of the Grant Date.
(f) Exercise. The Optionee may exercise an Option in whole or in part
at any time by delivering written notice of such exercise to the Secretary of
the Company of the number of Shares as to which the Option is being exercised,
and enclosing payment for the Shares with respect to which the Option is being
exercised. Such payment shall be in cash or by check, or if approved by the
Committee, by the delivery of Shares previously owned by the Employee, duly
endorsed for transfer to the Company, with a Fair Market Value on the date of
delivery equal to the aggregate purchase price of the Shares with respect to
which the Option is being exercised, or pursuant to a "cashless exercise," or
any combination of the foregoing approved by the Committee, in its sole
discretion. Partial exercise shall be for whole Shares only and shall not be for
less than one hundred (100) Shares unless the number of Shares purchased
constitutes the total number of Shares then remaining subject to the Option or
the Committee permits such smaller exercise in its sole discretion.
(g) Exercise Following Termination of Employment. In the event the
Optionee's Termination of Employment is for Cause, the Option, whether
exercisable or nonexercisable, at such time, shall be deemed to have terminated
as of the day preceding such Termination of Employment. If such Termination of
Employment is for any reason other than cause, any outstanding portion of the
Option that has not become exercisable shall terminate on the date of such
Termination of Employment, unless provided otherwise by the Board, in its sole
discretion. Any outstanding exercisable portion shall be exercisable for the
following periods:
(A) If the Optionee's Termination of Employment is due to death,
Permanent Disability, or Retirement, the Option shall be exercisable by the
Optionee (or his personal representative or beneficiary) for the shorter of
twelve (12) months following the date of such Termination of Employment or the
remainder of its original term.
(B) In all other cases, the Option shall be exercisable for the
shorter of three months following such Termination of Employment, or the
remainder of its original term.
(h) Nontransferability. The Option shall not be transferable other than
by will or the laws of descent and distribution, and no transfer so effected
shall be effective to bind the Company unless the Company has been furnished
with written notice thereof and a copy of the will and/or such other evidence as
the Committee may deem necessary to establish the validity of the transfer and
the acceptance by the transferee or transferees of the terms and conditions of
the Option, provided, however, that, in the discretion of the Committee, Options
may be transferred pursuant to a Qualified Domestic Relations Order (within the
meaning of the Code).
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(i) Conditions to Issuance of Stock Certificates.
(1) The Shares deliverable upon the exercise of the Option, or any
portion thereof, may be either previously authorized but unissued Shares or
issued Shares which have been reacquired by the Company. Such Shares shall be
fully paid and non-assessable. The stock certificates evidencing the Shares
shall bear such legends restricting transferability as the Committee deems
necessary or advisable.
(2) The Company shall not be required to issue or deliver any
certificate or certificates for Shares deliverable upon any exercise of the
Option prior to fulfillment of all of the following conditions:
(A) The completion of any registration or other qualification of
such Shares under any state or federal law or under rulings or regulations of
the Securities and Exchange Commission or of any other governmental regulatory
body, or the obtaining of approval or other clearance from any state or federal
governmental agency which the Committee shall, in its sole discretion, deem
necessary or advisable.
(B) If, in its sole discretion, the Committee deems it necessary or
advisable, the execution by the Employee of a written representation and
agreement, in a form satisfactory to the Committee, in which the Optionee
represents that the Shares acquired by him upon exercise are being acquired for
investment and not with a view to distribution thereof.
(j) Rights as a Stockholder. The Optionee shall not be, nor have any of
the rights or privileges of, a stockholder of the Company in respect of any
Shares purchasable upon the exercise of the Option unless and until certificates
representing such Shares have been issued by the Company.
3. Miscellaneous.
(a) Administration. The Committee shall have the power to interpret the
Plan and this Agreement, and to adopt such rules for the administration,
interpretation and application of the Plan as are consistent therewith and to
interpret or revoke any such rules. All actions taken and all interpretations
and determinations made by the Committee shall be final and binding upon the
Optionee, the Company, and all other interested persons.
(b) Withholding of Taxes. No later than the date as of which an amount
first becomes includible in the gross income of the Optionee for federal income
tax purposes with respect to the grant of the Option under this Agreement, the
Optionee shall pay to the Company, or the Optionee (or his Designated
Beneficiary) shall make arrangements satisfactory to the Company regarding the
payment of, any federal, state, or local taxes of any kind required by law or
the Company to be withheld with respect to such amount. The obligations of the
Company under this Agreement shall be conditioned on such payment or
arrangements, and the Company shall, to the extent permitted by law, have the
right to deduct any such taxes from any payment of any kind otherwise due to the
Optionee.
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(c) No Right to Continued Employment. Nothing in this Agreement or in
the Plan shall confer upon the Optionee any right to continue in the employ of
the Company or shall interfere with or restrict in any way the rights of the
Company, which are hereby expressly reserved, to discharge the Optionee at any
time for any reason whatsoever, with or without cause.
(d) Entire Agreement; Amendment. This Agreement, and the Plan,
constitute the entire agreement between the parties with respect to the subject
matter hereof, and supersedes all prior agreements and understandings between
the parties with respect to such subject matter. Any term or provision of this
Agreement may be waived at any time by the party which is entitled to the
benefits thereof, and any term or provision of this Agreement may be amended or
supplemented at any time by the mutual consent of the parties hereto, except
that any waiver of any term or condition, or any amendment, of this Agreement
must be in writing.
(e) Governing Law. The laws of the State of New York shall govern the
interpretation, validity and performance of the terms of this Agreement
regardless of the law that might be applied under principles of conflict of
laws.
(f) Successors. This Agreement shall be binding upon and inure to the
benefit of the successors, assigns and heirs of the respective parties.
(g) Notices. All notices or other communications made or given in
connection with this Agreement shall be in writing and shall be deemed to have
been duly given when delivered or mailed by registered or certified mail, return
receipt requested, to those listed below at their following respective addresses
or at such other address as each may specify by notice to the others:
To the Optionee:
Joseph A. Garcia
c/o Spanish Broadcasting System, Inc.
2601 South Bayshore Drive, PH II
Coconut Grove, Florida 33133
To the Company:
Spanish Broadcasting System, Inc.
2601 South Bayshore Drive, PH II
Coconut Grove, Florida 33133
Attention: Raul Alarcon, Jr.
Copy to:
Kaye, Scholer LLP
425 Park Avenue
New York, New York 10022
Attention: William E. Wallace, Jr., Esq.
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(h) Waiver. The failure of a party to insist upon strict adherence to
any term of this Agreement on any occasion shall not be considered a waiver
thereof or deprive that party of the right thereafter to insist upon strict
adherence to that term or any other term of this Agreement.
(i) Conflict with the Plan. In the event of any conflict or
inconsistency between the provisions of this Agreement and the Plan, the
provisions of the Plan shall control.
(j) Injunctive Relief. The Optionee acknowledges and agrees that a
violation of Section 2(h) hereof will cause the Company irreparable injury for
which adequate remedy at law is not available. Accordingly, the Optionee agrees
that the Company shall be entitled to an injunction, restraining order or other
equitable relief to prevent the breach of such provisions and to enforce the
terms and provisions hereof in any court of competent jurisdiction in the United
States or any state thereof, in addition to any other remedy to which it may be
entitled at law or equity.
(k) Titles; Construction. Titles are provided herein for convenience
only and are not to serve as a basis for interpretation or construction of the
Agreement. The masculine pronoun shall include the feminine and neuter and the
singular shall include the plural, when the context so indicates.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the day and year first above written.
Spanish Broadcasting System, Inc.
By: /s/ Raul Alarcon, Jr.
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Name: Raul Alarcon, Jr.
Title: President and CEO
OPTIONEE
/s/ Joseph A. Garcia
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