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EXHIBIT 10.9
AMENDED AND RESTATED EMPLOYMENT AGREEMENT
AMENDED AND RESTATED EMPLOYMENT AGREEMENT dated as of October
25, 1999 by and between Spanish Broadcasting System, Inc., a Delaware
corporation having a place of business at 3191 Coral Way, Miami, Florida (the
"Company") and Raul Alarcon, Jr. (the "Executive").
WHEREAS, the Company and the Executive are parties to an
Employment Agreement, dated March 4, 1997 (the "Agreement");
WHEREAS, the Company and the Executive desire to amend and
restate the Agreement as hereinafter provided;
WHEREAS, Section 12 of the Agreement permits such amendment by
written agreement of both parties; and
WHEREAS, the Executive has served as President and Chief
Executive Officer of the Company, and the Company desires to assure itself of
the availability of the Executive's services in such capacities;
NOW, THEREFORE, the Company and the Executive agree to amend
and restate the Agreement as follows:
1. Employment. The Company shall employ the Executive and the
Executive shall be employed by the Company as Chairman of the Board of
Directors, Chief Executive Officer and President of the Company and its
subsidiaries at the Company's
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headquarters in Miami, Florida (or such other location as shall be mutually
satisfactory to the Executive and the Company) for the term of this Agreement.
2. Term. The term of the Executive's employment pursuant to
this Agreement shall commence on the date the registration statement relating to
the Company's anticipated initial public offering is declared effective (the
"Effective Date") and continue until December 31, 2004; provided, however, that,
unless either party otherwise elects by notice in writing delivered to the other
at least 90 days prior to December 31, 2004, or any succeeding December 31, such
term shall be automatically renewed for successive one-year terms unless sooner
terminated pursuant to the terms of this Agreement (the "Employment Term").
3. Duties. The Executive shall, subject to overall direction
consistent with the legal authority of the Board of Directors of the Company
(the "Board"), serve as, and have all power and authority inherent in the
offices of, Chairman of the Board, Chief Executive Officer and President of the
Company and its subsidiaries during the Employment Term and, as such, shall
supervise, control and be responsible for the acquisition and the business
affairs and operations of the Company and its subsidiaries and have such other
executive powers and duties as may from time to time be prescribed by the Board.
The Executive shall also serve as a member of the Board and its Executive
Committee and Compensation Committee, if any, during the Employment Term and as
a member of any other committee of the Board. The Executive shall devote his
business time and efforts to the business of the Company and its subsidiaries.
4. Compensation and Other Provisions.
(a) Base Salary. The Company shall pay to the Executive (i) a
base salary at a rate of not less than $1,000,000 for each year during the
Employment Term, payable
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in substantially equal semi-monthly installments (such amount, as it may be
increased from time to time, the "Base Salary"), and (ii) a bonus determined as
set forth on Exhibit A attached hereto or such greater amount as the Board of
Directors may, in its sole discretion, determine. The Base Salary and the
Executive's other compensation will be reviewed by the Board and the
Compensation Committee of the Company at least annually during the Employment
Term and may be increased or maintained as the Board may determine.
(b) Participation in Benefit Plans. During the Employment
Term, the Executive shall be eligible to participate in all employee benefit
plans and arrangements now in effect or which may hereafter be established which
are generally applicable to the other senior executives of the Company or any of
its subsidiaries, including without limitation, all life, group insurance and
medical care plans and all disability, retirement, stock option and other
employee benefit plans of the Company or any of its subsidiaries.
(c) Other Provisions. The Executive shall be furnished with
similar office facilities and services generally available to senior executives
of entities in the businesses in which the Company is engaged, the expenses of
which will be paid by the Company. The Executive shall be entitled to the same
vacation benefits as are generally available to other senior executives of the
Company, but which in no event shall be less than six (6) weeks per year. The
Executive shall be reimbursed for all reasonable expenses incurred by him in the
discharge of his duties, including but not limited to expenses for entertainment
and travel. Travel shall be first class. The Executive shall account to the
Company for all such expenses.
(d) Other Benefits. The Executive shall be entitled to receive
during the Employment Term the non-salary benefits set forth on Exhibit B
attached hereto. In the
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event any expenses provided under this section shall not be deductible to the
Company under the Internal Revenue Code of 1986, as amended, then the Company
shall pay to the Executive additional compensation equal to the amount of
expenses not so deductible and the Executive shall pay such expenses directly.
All such additional compensation to the Executive shall be subject to applicable
withholding taxes.
(e) Options. The Company shall grant the Executive an option
to purchase 100,000 shares of common stock of the Company upon the Effective
Date (the "Option") with the exercise price to be equal to the public offering
price of the Company's initial public offering. The Option shall be incentive
stock options (within the meaning of Section 422 of the Internal Revenue Code of
1986, as amended (the "Code") to the maximum extent possible, (subject to
qualification of such option or any portion thereof as incentive stock options,
and shall be nonqualified stock options to the extent they do not so qualify).
The Option shall vest effective on the closing of the Company's initial public
offering. The Company shall grant Executive an option to purchase 100,000 shares
on each anniversary of the Effective Date so long as the executive remains
employed by the Company on such date. Notwithstanding the foregoing, the
Executive shall be eligible to participate in any stock option or other
equity-based program established by the Company during the Employment Term.
5. Termination. The Executive's employment hereunder shall
terminate as a result of any of the following events:
(a) the Executive's death;
(b) upon the election of the Board of Directors of
the Company, in the event the Executive shall have been unable to substantially
perform his duties hereunder by
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reason of illness, accident or other physical or mental disability for a
continuous period of at least six months or an aggregate of nine months during
any continuous twelve-month period ("Disability");
(c) for cause, where "Cause" shall mean the
determination by a majority of the members of the Board of Directors, other than
the Executive, that in the event (i) the Executive has engaged in material
misconduct, neglect of duties or failure to act which materially and adversely
affects the business or affairs of the Company or (ii) the Executive willfully
refuses to carry out the reasonable instructions, consistent with the terms of
this Agreement, of the Board of Directors; provided in each case, the Board of
Directors shall have first notified the Executive thereof, and the Executive, at
a regularly constituted or special meeting of the Board of Directors, on at
least fifteen (15) days' notice shall have had a full opportunity to respond
thereto prior to the vote of the Board of Directors.
Any termination pursuant to subparagraph (b) or (c)
of this section shall be communicated by a written notice ("Notice of
Termination") which shall indicate the specific termination provision in this
Agreement which is being relied upon and shall set forth in reasonable detail
the facts and circumstances claimed to provide a basis for termination of the
Executive's employment under such provision.
The Executive's employment under this Agreement shall
be deemed to have terminated as follows: (i) if the Executive's employment is
terminated pursuant to subparagraph (a) above, on the date of his death; and
(ii) if the Executive's employment is terminated pursuant to subparagraph (b) or
(c) above, on the date on which Notice of
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Termination is given. The date on which termination is deemed to have occurred
pursuant to this paragraph is hereinafter referred to as the "Date of
Termination."
6. Payments on Termination.
(a) Disability. If the Company shall terminate the
Executive's employment under subparagraph 5(b) for Disability or without cause,
then, in consideration of the Executive's entering into this Agreement, the
Company shall pay to the Executive such amount as the Board of Directors
determines is appropriate but in no event less than:
(i) The Executive's full Base Salary through
the Date of Termination, together with all benefits, bonuses
and incentive compensation and any other compensation through
such date;
(ii) An amount equal to the aggregate Base
Salary payments which the Executive would have received during
the Employment Term if such termination had not occurred. All
payments provided for in this subparagraph (a)(ii) shall be
made at the time when the same would have become due if
termination had not occurred; and
(iii) The Company shall, for the balance of
the Employment Term (as if such termination had not occurred),
keep in force for the Executive or provide equivalent coverage
with a national insurance company of good repute, all life,
group insurance and medical care plans and all disability and
other employee benefit plans and arrangements from time to
time applicable to senior executives of the Company or its
subsidiaries or as specifically provided herein, whichever is
greater. The
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Company shall pay to the Executive cash equivalent amounts for
benefits not capable of being maintained.
In addition, all nonvested Options previously granted to
Executive shall immediately vest and remain exercisable until the earlier of (i)
two years from the Executive's Date of Termination and (ii) the remaining term
of the Option. The Executive shall not be required to mitigate the amount of any
payment provided for in this subparagraph by seeking other employment or
otherwise, nor shall the amount of any payment or benefit provided for in this
subparagraph (a) be reduced by any compensation or retirement benefits
heretofore or hereafter earned by the Executive as the result of employment by
any other person, firm or corporation.
(b) Cause. If the Company shall terminate the Executive's
employment under subparagraph 5(c) for Cause, then, in consideration of the
Executive's entering into this Agreement, the Company shall pay to the
Executive, as liquidated damages and not as a penalty, the amounts provided for
in subparagraphs (i) and (ii), below, and the Company shall comply with the
provisions provided as follows:
(i) The Executive's full Base Salary through the Date
of Termination, together with all benefits, bonuses and
incentive compensation and any other compensation through such
date; and
(ii) An amount equal to 50% of the aggregate Base
Salary payments which the Executive would have received during
the Employment Term if such termination had not occurred.
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Upon termination for Cause, all nonvested options shall
terminate. The Executive shall not be required to mitigate the amount of any
payment provided for in this subparagraph by seeking other employment or
otherwise, nor shall the amount of any payment or benefit provided for in this
subparagraph (b) be reduced by any compensation or retirement benefits
heretofore or hereafter earned by the Executive as the result of employment by
any other person, firm or corporation.
(c) Death. Upon termination pursuant to subparagraph
5(a) hereof, the Company shall pay the Executive's estate, in a lump sum on the
30th day following the Date of Termination, the sum of the accrued Base Salary
to which he is entitled through the Date of Termination together with all
benefits, bonuses and incentive compensation through such date. For the balance
of the Employment Term, the Company shall pay the estate of the Executive the
Base Salary which the Executive would have received during the Employment Term
had such termination not occurred, with such payments to be made at the time and
when the same were to become due if termination had not occurred. The Company
shall, for the balance of the Employment Term, for the benefit of the family of
the Executive keep in force or provide equivalent coverage with a national
insurance company of good repute all life group insurance and major medical
plans and all disability and other benefits covering such family members. All
nonvested Options previously granted to Executive shall immediately vest and
remain exercisable until the earlier of (i) two years from the Executive's death
and (ii) the remaining term of the Option.
(d) Retention of Life Insurance. In the event of the
termination of the Executive's employment for any reason, then the Executive
shall have the option for a period of
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90 days following the Date of Termination, upon written notice delivered to the
Company during such 90-day period, to require that the Company transfer to him
or any other entity designated by the Executive policies of insurance on the
life of the Executive required to be retained by the Company under Section 4(c)
of this Agreement; provided, however, that from the effective date of such
transfer, the Executive shall be responsible for payment of any premiums
connected therewith.
(e) Expenses. At the request of the Executive the
Company shall advance to the Executive funds for the payment by him for all
legal fees and expenses incurred by the Executive as the result of any
termination provided for in this Agreement (including without limitation all
such fees and expenses, if any, incurred in contesting or disputing any such
termination) or in seeking to obtain or enforce any right or benefit provided by
this Agreement. Upon the final determination of any such contest, the Executive
shall repay to the Company all such amounts so advanced.
7. Life Insurance. If requested by the Company, the Executive
shall submit to such physical examinations and otherwise take such actions and
execute and deliver such documents as may be reasonably necessary to enable the
Company to obtain life insurance on the life of the Executive for the benefit of
the Company and to insure for the Company's benefit its obligations under
Section 6(c).
8. Representations and Warranties.
(a) The Executive represents and warrants to the
Company that the Executive is under no contractual or other restriction or
obligation which would prevent the performance of his duties hereunder, or
interfere with the rights of the Company hereunder.
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(b) The Company represents and warrants to the
Executive that (i) it has all requisite power and authority to execute, deliver,
and perform this Agreement, (ii) all necessary corporate proceedings of the
Company have been duly taken to authorize the execution, delivery, and
performance of this Agreement, and (iii) this Agreement has been duly
authorized, executed, and delivered by the Company, is the legal, valid and
binding obligation of the Company, and is enforceable as to the Company in
accordance with its terms.
9. Confidential Information. All confidential information
which the Executive may obtain during the Employment Term relating to the
business of the Company shall not be published, disclosed, or made accessible by
him to any other person, firm, or corporation except in the business and for the
benefit of the Company. The provisions of this Section 10 shall not apply to any
information which is or becomes publicly available otherwise than by breach of
this Section 10.
10. Survival. The covenants, agreements, representations and
warranties contained in or made pursuant to this Agreement shall survive the
Executive's termination of employment, irrespective of any investigation made by
or on behalf of any party.
11. Entire Agreement; Modification. This Agreement sets forth
the entire understanding of the parties with respect to the subject matter
hereof, supersedes all existing agreements and undertakings, whether written or
oral between them regarding the Executive's employment and compensation, and may
be modified only by a written instrument duly executed by each party.
12. Notices. Any notice or other communication required or
permitted to be given hereunder shall be in writing and shall be mailed by
certified mail, return receipt requested,
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or delivered against receipt to the party to whom it is to be given at the
address of such party set forth below (or to such other address as the party
shall have furnished in writing in accordance with the provisions of this
Section 12). Notice to the estate of the Executive shall be sufficient if
addressed to the Executive as provided in this Section 12. Any notice or other
communication given by certified mail shall be deemed given at the time of
certification thereof, except for a notice changing a party's address which
shall be deemed given at the time of receipt thereof.
(a) If to the Executive:
Raul Alarcon, Jr.
445 Grand Bay Drive
Apt. 1203
Key Biscayne, Florida 33149
(b) If to the Company:
3191 Coral Way
Miami, Florida 33145
13. Waiver. Any waiver by either party of a breach of any
provision of this Agreement shall not operate as or be construed to be a waiver
of any other breach of such provision or of any breach of any other provision of
this Agreement. The failure of a party to insist upon strict adherence to any
term of this Agreement on one or more occasions shall not be considered a waiver
or deprive that party of the right thereafter to insist upon strict adherence to
that term or any other term of this Agreement. Any waiver must be in writing.
14. Binding Effect. The Executive's rights and obligations
under this Agreement shall not be transferable by assignment or otherwise, and
any attempt to do any of the foregoing shall be void. The provisions of this
Agreement shall be binding upon and inure to the benefit of each of the Company,
its successors and assigns.
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15. No Third Party Beneficiaries. This Agreement does not
create, and shall not be construed as creating, any rights enforceable by any
person not a party to this Agreement.
16. Headings. The headings in this Agreement are solely for
convenience of reference and shall be given no effect in the construction or
interpretation of this Agreement.
17. Governing Law. This Agreement shall be governed by the
laws of the State of New York, without regard to any conflicts of laws
principles thereof that would call for the application of the laws of any other
jurisdiction.
18. Invalidity. The invalidity or unenforceability of any term
of this Agreement shall not invalidate, make unenforceable or otherwise affect
any other term of this Agreement, which shall remain in full force and effect.
IN WITNESS WHEREOF, the parties have executed this Amended and
Restated Employment Agreement as of the date first hereinabove written.
SPANISH BROADCASTING SYSTEM, INC.
By: /s/Joseph A. Garcia
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EXECUTIVE:
/s/Raul Alarcon, Jr.
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Name: Raul Alarcon, Jr.
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EXHIBIT A
Bonus of Executive
Bonus
The bonus shall be equal to 7.5% of same station annual broadcast cash flow
growth, including (on a pro rata basis from the date the station was acquired)
acquired stations on a pro forma basis.
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EXHIBIT B
Benefits of Executive
1. One automobile of the type presently used by the Executive with
reimbursement from the Company for insurance, maintenance, gasoline and
cellular telephone. A driver of such automobile shall also be provided
at the expense of the Company.
2. Health insurance similar to the health insurance presently retained by
Company for the Executive.
3. Insurance on the life of the Executive payable to beneficiaries
designated by the Executive in face amount of not less than $5,000,000.
4. Reimbursement for reasonable personal tax and accounting services.
5. An apartment or similar accommodation acceptable to the Executive in
New York City consistent with the position of an executive of similar
stature in the community not to exceed $150,000 per year.
6. Reimbursement of all expenses incurred by the Executive in the normal
course of business solicitation either directly or indirectly for the
Company.
7. Until the Executive's permanent residence has been constructed and he
and his family have moved into such residence, an apartment or similar
accommodation acceptable to the Executive in or near Miami, Florida not
to exceed $175,000 per year.