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Exhibit 10.13
EMPLOYMENT AGREEMENT
THIS AGREEMENT is made as of April 1, 1999 between Spanish Broadcasting System
of Greater Miami Inc., a corporation existing under the laws of Delaware with
offices located at 0000 Xxxxx xx Xxxx, Xxxxx, Xxxxxxx ("SBS"), and Xxxxx Xxxxx
(hereinafter referred to as "Employee"), an individual whose principal place of
residence and mailing address is 0000 X.X. 000 Xxxxx, Xxxxx, Xxxxxxx 00000
("Agreement").
RECITALS
WHEREAS, SBS is the owner/operator of certain Spanish-language radio
stations whose signals are broadcast throughout several U.S. metropolitan areas
(the "Stations"); and
WHEREAS, SBS wishes to engage Employee, and Employee wishes to become
engaged to perform services for SBS as Vice President of Programming during the
term of and pursuant to the terms and conditions set forth in this Agreement;
NOW THEREFORE, in consideration of the premises and the mutual covenants
contained herein, the parties understand and agree as follows:
1. Employment. Employee shall be employed to perform services as a Vice
President of Programming reporting to Xxxx Xxxxxxx, Xx., President/CEO.
Employee's services will be rendered subject to and in accordance with, the
direction, control, rules, and regulations of SBS.
2. Term. The term of this Agreement shall be from April 1, 1999 through
and including March 31, 2004 and can be extended for an additional five-year
period from April 1, 2004 through March 31, 2009 at the sole discretion of SBS.
3. Compensation and Benefits. See "Compensation Rider".
(aa) Vacation - 3 weeks per year (paid).
(a) Bonus. See "Compensation Rider".
(b) Benefits. Employee shall be provided comparable health care coverage
and other benefits extended to other SBS employees.
(c) Expenses. SBS shall reimburse Employee for reasonable business and
entertainment expenses that he incurs, and subject to the approval of Xxxx
Xxxxxxx, Xx.
4. Convenants.
(a) Competitive Activity. During the term of this Agreement, and for a
period of six (6) months after the termination of this Agreement for any reason,
Employee shall not render services in any capacity for any radio station in any
area competitive with SBS or any of its Stations, whether as on-air talent,
host, producer of radio programs, program director or consultant
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Employee further agrees that during the term of this Agreement, and for a
period of six (6) months after the termination of this Agreement for any
reason, Employee shall not render services, directly or indirectly, for any
radio station competitive with any of SBS's radio stations wherever located.
(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
some other way 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 its Stations, 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.
(d) SBS's RIGHT OF FIRST REFUSAL TO MATCH COMPETING OFFER. Without
compromising in any way SBS's rights under this Section 4 or under law, SBS
will 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 wherever located
("competing offers") 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 2 has expired. The right of first refusal contained in
this Section 4(d) shall not apply to any conduct other than the performance of
"services" as defined in Section 1. 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.
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(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. Employee expressly acknowledges that a breach of this covenant of
fidelity shall constitute grounds for termination for cause under Section 7.
(f) If any provision of this Section 4 is deemed invalid or unenforceable,
such provision shall be deemed modified and limited to the extent necessary to
make it valid and enforceable.
5. RESOLUTION OF DISPUTES. Employee acknowledges and agrees that the
provisions of Section 4 are reasonable and necessary for protection of SBS and
that SBS will be irrevocably damaged if such provisions are not specifically
enforced. Accordingly, money damages from Employee's breach of Section 4 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, 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 by this Agreement shall be construed as cumulative
remedies and shall not be alternative or exclusive remedies. In the event of
breach or threatened breach by Employee of Section 4, 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.
6. 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.
7. TERMINATION
(b) WITH CAUSE. SBS may terminate this Agreement for cause at any time
upon four (4) weeks' prior notice or 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 in (c) below; (iv) Employee disability which prevents Employee from
performing his duties hereunder for nine (9) consecutive weeks or for a total
of nine (9) 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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(c) Misconduct by Employee permitting termination for cause hereunder
shall include the following:
(i) failure to comply with any of the terms and conditions of this
Agreement, to perform any reasonable duties assigned by SBS, to follow any
operating policies of SBS, any 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) conviction of any criminal offense, other than a traffic
violation or minor misdemeanor resulting in incarceration for less than
forty-eight (48) hours;
(iii) any act of dishonesty;
(iv) use of illegal drugs or habitual use of alcohol;
(v) any act that reflects unfavorably and egregiously on the
reputation of SBS.
8 (a) ASSIGNMENT. SBS shall be entitled to assign this Agreement
to any future licensee of SBS; provided, however, that such future licensee
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: Xxxx Xxxxxxx, Xx.
SBS
0000 Xxxxx xx Xxxx
Xxxxx, Xxxxxxx 00000
With a copy to:
Xxxx, Scholer, Fierman, Xxxx & Handler, LLP
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxxxx, Esq.
As to Employee: Xxxxx Xxxxx
0000 X.X. 000 Xxxxx
Xxxxx, Xxxxxxx 00000
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(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
Delaware 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 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 OF GREATER MIAMI, INC.
By: /s/ Xxxx Xxxxxxx, Xx.
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Xxxx Xxxxxxx, Xx.
President
/s/ Xxxxx Xxxxx
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Xxxxx Xxxxx
Vice President Programming
/s/ Xxxxxx Xxxxxxxx
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Witness
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COMPENSATION RIDER
Base Salary:
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1st Year $350,000
2nd Year $375,000
3rd Year $400,000
4th Year $425,000
5th Year $450,000
Additional Bonus:
a) Employee shall receive a one-time bonus of $25,000
whenever any SBS station achieves a #1 overall ranking (as published by
Arbitron, 12+, 6:AM - 12:MID, Mon. - Sun.) in any SBS market and a
continuing bonus of $5,000 for each subsequent #1 Arbitron published
overall ranking in that particular market.
Or
b) Employee shall receive a one-time bonus of $10,000
whenever any SBS station achieves a #1 Hispanic ranking (as published by
Arbitron, 12+, 6:AM - 12:MID, Mon. - Sun.) in any SBS market and a
continuing bonus of $1,000 for each subsequent #1 Arbitron published
Hispanic ranking in that particular market.