EX-10.1 Amended and Restated Employment Agreement






Exhibit 10.1




AMENDED AND RESTATED EMPLOYMENT AGREEMENT




          THIS
AGREEMENT is entered into, effective this 4th day of August, 2008, by and between
Spanish Broadcasting System, Inc. (the “Company”), a Delaware corporation, and Joseph A. Garcia
(the “Executive”) (hereinafter collectively referred to as “the Parties”).




          WHEREAS, the Executive has been employed by the Company for a number of years in the position
of Chief Financial Officer, most recently pursuant to the terms of a agreement between the Parties
dated December 7, 2000 (the “2000 Agreement”); and




          WHEREAS, the Company has determined that it is in the best interests of the Company and its
shareholders to continue to employ the Executive, and the Executive is willing to serve in the
employ of the Company, for the period set forth herein upon the terms and conditions hereinafter
provided;




          NOW, THEREFORE, in consideration of the foregoing and the respective agreements of the parties
contained herein, the parties hereby agree as follows:




     1.     Term. The initial term of employment under this Agreement will be for three
years, with the period commencing on August 4, 2008 (the “Commencement Date”) and ending
on August 3, 2011 (the “Initial Term”); provided, however, that on the expiration date of the
Initial Term and on each anniversary of such date thereafter the term of employment under this
Agreement will be automatically renewed for an additional year, unless either the Company or the
Executive will have given written notice to the other at least sixty (60) calendar days prior
thereto that the term of employment under this Agreement will not be so renewed (a “Notice of
Non-Renewal”).



     2.     Employment.



     (a)     Position. The Executive will be employed as, and hold the title of, Senior
Executive Vice President, Chief Financial Officer, Chief Administrative Officer and Secretary of
the Company, and will have the duties, powers, and responsibilities as are customary for such
positions. The Executive will be given the authority needed to perform the duties and undertake
the responsibilities assigned to his position. The Executive will report to the Company’s Chief
Executive Officer. Executive Agrees to serve as a member of the Company’s Board of Directors if
elected to such position.



     (b)     Obligations. The Executive shall devote his full business time and attention to
the business and affairs of the Company. During the term of this Agreement, the Executive shall
not engage in any other employment, service or consulting activity without the prior written
approval of the Company’s Chief Executive Officer. The foregoing, however, shall not preclude
the Executive from (i) serving on any corporate, civic or charitable boards or committees on
which the Executive is serving on the Commencement Date, provided those positions are listed in
attached Schedule I, or on which he commences service following the Commencement Date with the
prior written approval of the Company’s Chief Executive Officer, or (ii) managing personal
investments, so long as such clause (i) and (ii) activities do not interfere, in the judgment of
Company’s Chief Executive Officer, with the performance of the Executive’s responsibilities or
otherwise conflict with Executive’s obligations to the Company herein, including the obligations
in Section 9.



     (c)     Location. The Executive shall work from offices in the Miami, Florida
metropolitan area. The Executive agrees to travel as necessary to fulfill the requirements of
his position as Senior Executive Vice President, Chief Financial Officer, Chief Administrative
Officer and Secretary of the Company.



 









 





     3.     Base Salary and Bonus.



     (a)     Base Salary. The Company agrees to pay or cause to be paid to the Executive an
annual base salary at the rate of $525,000, less applicable withholding. This base salary will
be subject to annual review and may be increased from time to time as recommended by the Chief
Executive Officer and approved by the Compensation Committee of the Board of Directors (the
“Compensation Committee”) upon consideration of such factors as the Executive’s responsibilities,
compensation of similar executives within the Company and in other companies, performance of the
Executive, and other pertinent factors. The Executive’s annual rate of base salary, as it may be
increased from time to time, will be hereinafter referred to as the “Base Salary.” Such Base
Salary will be payable in accordance with the Company’s customary practices applicable to its
executives.



     (b)     Bonus. For each fiscal year completed during the Term, the Executive will be
eligible to receive an annual cash bonus (“Annual Bonus”) based upon the Executive’s attainment
of individual and Company performance goals that, taking into account in-put from the Executive,
will be pre-established in good faith by the Company’s Compensation Committee. The annual
performance goals set by the Compensation Committee for the Executive will be reasonable in
comparison to the individual and Company performance goals the Compensation Committee sets for
the Company’s other executive officers, provided that the Executive’s threshold target Annual
Bonus will be no less than $100,000 (the “Threshold Target Annual Bonus”), the target Annual
Bonus will be no less than $200,000 (the “Target Annual Bonus”) and the maximum Annual Bonus
amount for a fiscal year shall not exceed $300,000 (the “Maximum Target Annual Bonus”). The
Threshold Target Annual Bonus will be payable for achievement of minimum specified performance
goals, the Target Annual Bonus will be payable for achievement of specified target performance
goals and the Maximum Annual Target Bonus will be payable for achievement of specified
outstanding performance goals. Notwithstanding the preceding, a zero bonus is possible for
performance that fails to meet the threshold level of performance. Upon approval of the
Compensation Committee, the Annual Bonus (if any) for each fiscal year shall be paid in
accordance with the Company’s customary practices, but in no event more than 75 days following
the end of such fiscal year.



     (c)     Equity Compensation Awards. On the 30th day after the Agreement is executed by
the Parties, the Company will, under the 2006 Omnibus Equity Plan (the “Equity Plan”) grant
Executive 125,000 nonqualified stock options on Company Class A Shares (“Options”). These
Options will have a maximum exercise period of 10 years and an exercise price equal to the Fair
Market Value (as defined under the Equity Plan) of the shares on the date of grant. The Company
will also grant Executive 125,000 Stock Unit Awards under the Equity Plan, subject to
restrictions on vesting (“Stock Units”). Executive will vest in the Options and Stock Units in
three substantially equal annual installments, with the first annual installment vesting on the
date of the grant, and each additional installment vesting on the anniversary of such date in the
next two years. All Stock Units will be settled as soon as practicable after vesting, but in no
event later than 21/2 months after the close of the year in which such Stock Units vest.



     (d)     Employee Benefits. Provided he otherwise satisfies any applicable eligibility
requirements for participation, the Executive will be entitled to participate in the welfare,
retirement, perquisite, and fringe benefit plans, practices, and programs maintained by the
Company and made available to senior executives generally and as may be in effect from time to
time. The Executive’s participation in any such plans, practices and programs for which he
satisfies the applicable eligibility requirements will be on the same basis and terms as are
applicable to senior executives of the Company generally. For the avoidance of doubt, the Company
will pay for the health care coverage for the Executive and his immediate family, which shall
include his spouse and children to the extent eligible under the insurance plan.



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     (e)     Car and Related Expenses. During the term of this Agreement the Company will
provide Executive with a Mercedes S-Class or similar level automobile for his business use, with
a new car (or new car lease) provided following the termination of the lease existing as of the
Commencement Date and will reimburse Executive for the related insurance coverage and associated
reasonable gasoline, oil and other maintenance expenses, provided the Executive provides
appropriate documentation of such insurance, gasoline, oil and other maintenance expenses.
Reimbursement will occur promptly after submission of appropriate documentation, provided no
reimbursement shall be made later than the end of the calendar year following the calendar year
in which the expense was incurred.



     4.     Other Benefits.



     (a)     Expenses. Subject to applicable Company policies, including (without
limitation) the timely submission of appropriate documentation and expense reports, the Executive
will be entitled to receive prompt reimbursement of all expenses reasonably incurred by him in
connection with the performance of his duties hereunder or for promoting, pursuing, or otherwise
furthering the business or interests of the Company. In no event shall a reimbursement be made
later than the end of the calendar year following the year in which the expense was incurred.



     (b)     Vacation. During the Term, the Executive will be eligible for paid vacation in
accordance with the Company’s policies, as may be in effect from time to time, for its senior
executives generally; provided, however, that the Executive will be eligible for no less than
four (4) weeks of paid vacation per year. Executive may rollover up to two (2) weeks of paid
vacation from one year to the next. Executive will be entitled to paid holidays in accordance
with the Company’s policies.



     5.     Termination. Except for a Notice of Non-Renewal, as described in Section 1, the
Executive’s employment hereunder may only be terminated in accordance with the following terms
and conditions:



     (a)     Termination by the Company without Cause. The Company will be entitled to
terminate the Executive’s employment at any time by delivering a Notice of Termination to the
Executive pursuant to Section 5(e); provided, however, that any termination of the Executive’s
employment for Cause shall be governed by the provisions of Section 5(b).



     (b)     Termination by the Company for Cause.



          (i)     The Company may terminate the Executive’s employment hereunder for “Cause” (as defined
below) by delivering to him a Notice of Termination. For purposes of the foregoing, any of the
following shall constitute grounds for terminating the Executive’s employment for Cause: (A) the
Executive’s pleading “guilty” or “no contest” to, or his conviction of, a felony or any crime
involving moral turpitude, (B) his commission of any act of fraud or any act of personal
dishonesty involving the property or assets of the Company intended to result in material
financial enrichment to the Executive or material injury or harm to the Company, including the
Company’s reputation, (C) a material breach by the Executive of any of his other obligations
under this Agreement or any other agreement with the Company, (D) the Executive’s commission of a
material violation of Company policy which would result in an employment termination if committed
by any other employee of the Company, (E) the Executive’s material dereliction of the major
duties, functions and responsibilities of his executive position (other than a failure resulting
from the Executive’s incapacity due to physical or mental illness), (F) a material breach by the
Executive of any of the Executive’s fiduciary obligations as an officer of the Company, (G) the
Executive’s willful and knowing participation in the preparation or release of false or
materially misleading financial statements relating to the Company’s operations and financial
condition or his willful and knowing submission of any false



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or erroneous certification required of him under the Sarbanes-Oxley Act of 2002 or any
securities exchange on which shares of the Company’s Class A and/or Class B common stock are at
the time listed for trading, or (H) the use or disclosure of the confidential and/or proprietary
information of another entity in violation of any written agreement(s) between him and such
entity. However, prior to any termination of the Executive’s employment for Cause based on any
of the reasons specified in clauses (C) through (E) and the delivery of a Notice of Termination
in connection therewith, the Company shall give written notice to the Executive of the actions or
omissions deemed to constitute the grounds for such a termination for Cause, and the Executive
shall have a period of not less than sixty (60) calendar days after the receipt of such notice,
during which period the Executive shall continue to be provided with the compensation and
benefits described in Sections 3 and 4 of this Agreement) in which to cure the specified default
in his performance and thereby avoid Termination under this subsection (b)(i).




          (ii)     In the event the Executive is provided with a Notice of Termination under subsection
(b)(i), the Notice of Termination shall specify a Termination Date that is no earlier than the
third business day following the date of the Notice of Termination, and the Executive will have
three (3) business days following the date of such Notice of Termination to submit a written
request to the Board for a meeting to review the circumstances of his termination. If the
Executive timely submits such a written request to the Board, the Board or a committee of the
Board shall set a meeting whereby the Executive, together with his counsel, shall be permitted to
present any mitigating circumstances or other information as to why he should not be terminated
for Cause, and the Executive’s Termination Date shall be delayed until such meeting has occurred.
Such meeting will be held, at the Company’s option, either on a mutually agreeable date prior to
the Termination Date specified in the Notice of Termination or on a mutually agreeable date
within fifteen (15) calendar days after the Executive’s timely written notice to the Company
requesting such a meeting. Within five (5) business days after such meeting, the Board or
committee of the Board, as applicable, shall deliver written notice to the Executive of its final
determination and, if the termination decision is upheld, the final actual Termination Date.
During the period following the date of the Notice of Termination until the Termination Date or
other resolution of the matter, the Company shall have the option to place the Executive on an
unpaid leave of absence. The rights under this subsection will not be deemed to prejudice the
Executive’s other rights and remedies in any way or give rise to any waiver, estoppel, or other
defense or bar. Without limiting the foregoing sentence and for purposes of clarification, the
failure by the Executive to request a meeting under this subsection, to participate in a meeting
that has been requested, or to present any evidence or argument will not prevent the Executive
from making any claim against the Company, from seeking any legal or equitable remedy, or from
putting forward any evidence or argument at any judicial or arbitral hearing.




     (c)     Termination by the Executive. The Executive may terminate his employment
hereunder for “Good Reason” by delivering to the Company (1) a Preliminary Notice of Good Reason
(as defined below) no later than sixty (60) calendar days following the act or omission which the
Executive sets forth in such notice as grounds for a Good Reason termination, and (2) not earlier
than fourteen (14) calendar days after the delivery of such Preliminary Notice or (if later) the
third business day following the Company’s failure to take appropriate remedial action within the
applicable sixty (60)-day cure period provided below to the Company following the receipt of such
the Preliminary Notice, a Notice of Termination. For purposes of this Agreement, “Good Reason”
means any of the following:



          (i)     a reduction in Base Salary;




          (ii)     a change in the reporting hierarchy such that Executive no longer reports directly to
the Chief Executive Officer of the Company;




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          (iii)     a change in Executive’s title or office without the Executive’s prior written consent;




          (iv)     a material reduction in the scope of the Executive’s duties, responsibilities or
authority, or the repeated reassignment of the Executive’s duties, responsibilities or authority,
and such event has not been rescinded within fifteen (15) business days after Executive notifies
the Company that he objects thereto, provided that Executive notifies the Company within
forty-five (45) days of such event that he objects;




          (v)     the movement by the Company of the Executive’s principal place of employment to a site
that is more than twenty (20) miles from the Company’s principal place of business;




          (vi)     any material breach by the Company of the Agreement that is not cured within fifteen
(15) business days after the Executive notifies the Company that he objects thereto, provided
that Executive notifies the Company within forty-five (45) days of such event that he objects;




     In no event will any acts or omissions of the Company which are not the result of bad faith
and which are cured within sixty (60) days after receipt of written notice from the Executive
identifying in reasonable detail the acts or omissions constituting “Good Reason” (a “Preliminary
Notice of Good Reason”) be deemed to constitute grounds for a Good Reason resignation. A
Preliminary Notice of Good Reason will not, by itself, constitute a Notice of Termination.



     (d)     Termination due to the Executive’s Death or Disability. This Agreement will
terminate upon the death of the Executive. The Company may terminate the Executive’s employment
hereunder if he is unable to perform, with or without reasonable accommodation, the principal
duties and responsibilities of his position with the Company for a period of six (6) consecutive
months or more by reason of any physical or mental injury or impairment; provided, however, that
in the event the Executive is at the time covered under any long-term disability benefit program
in effect for the Company’s executive officers or employees, such termination of the Executive’s
employment shall not occur prior to the date he first becomes eligible to receive benefits under
such program. The termination of the Executive’s employment under such circumstances shall, for
purposes of this Agreement, constitute a termination for “Disability.”



     (e)     Notice of Termination. Any purported termination for Cause by the Company or for
Good Reason by the Executive will be communicated by a written Notice of Termination to the other
at least three (3) business days prior to the Termination Date (as defined below). For purposes
of this Agreement, a “Notice of Termination” will mean a notice which indicates the specific
termination provision in this Agreement relied upon and will, with respect to a termination for
Cause or Good Reason, set forth in reasonable detail the facts and circumstances claimed to
provide a basis for such termination of the Executive’s employment under the provision so
indicated. Any termination by the Company under this Section 5 other than for Cause or by the
Executive without Good Reason will be communicated by a written Notice of Termination to the
other party fourteen (14) calendar days prior to the Termination Date. However, the Company may
elect to pay the Executive in lieu of fourteen (14) calendar days’ written notice. For purposes
of this Agreement, no such purported termination of employment pursuant to this Section 5 will be
effective without such Notice of Termination.



     (f)     Termination Date. “Termination Date” will mean in the case of the Executive’s
death, the date of death; in the case of non-renewal of the Agreement pursuant to Section 1, the
date the Term of the Agreement expires; and in all other cases, the date specified in the Notice
of Termination.



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     6.     Compensation Upon Termination.



     (a)     Except as provided further in this Section 6(a), if the Executive’s employment is
terminated: (i) by the Company for Cause; or (ii) by reason of the Executive’s death or
Disability; or (iii) pursuant to a Notice of Non-Renewal delivered by the Executive; or (iv) by
the Executive by delivery of a written notice of resignation without Good Reason, the Company’s
sole obligations hereunder will be to pay the Executive or his estate on the Termination Date the
following amounts earned hereunder but not paid as of the Termination Date: (i) Base Salary, (ii)
reimbursement for any and all monies advanced or expenses incurred pursuant to Section 4(a)
through the Termination Date, provided the Executive has submitted appropriate documentation for
such expenses, and (iii) the amount of the Executive’s accrued but unpaid vacation time
(together, these amounts will be referred to as the “Accrued Obligations”). In addition to the
Accrued Obligations, in the event the Executive’s employment terminates by reason of the
Executive’s death or Disability, the Executive or his estate will be paid an amount equal to 24
months of his Base Salary, offset, in the event of termination due to Disability by the amount of
any payment received under the Company’s disability policies covering the Executive, which amount
shall be paid in a single lump Sum on the 30th business day following the Executive’s death or
Disability. In the event the Executive’s employment terminates by reason of the Executive’s
death or Disability, the Executive or his estate also will be paid his Annual Bonus, pro-rated
for his actual period of service during the fiscal year in which such termination of employment
occurs and based on actual performance. Such Annual Bonus will be paid at the time such Annual
Bonus would otherwise have been paid. Further, in the event the Executive’s employment
terminates by reason of the Executive’s death or Disability, any unvested stock options will vest
and all of the Executive’s outstanding stock options will remain exercisable for a period of one
year from the date of such termination, provided that in no event shall such options be
exercisable after the expiration of the option term. In addition, any unvested Stock Units will
vest immediately upon such termination and be paid to the Executive or his estate as soon as
practicable after vesting, but in no event later than 21/2 months after the close of the year in
which such vesting occurs. The Executive’s entitlement to any other benefits will be determined
in accordance with the Company’s employee benefit plans then in effect.



     (b)     If the Executive’s employment is terminated prior to a Change in Control (as defined in
Section 6(c)): (i) by the Company for any reason other than for Cause; (ii) by the Executive for
Good Reason, the Executive will, in addition to the Accrued Obligations, be entitled to the
following compensation and benefits from the Company, provided and only if he (1) executes and
delivers to the Company a general release (substantially in the form of attached Exhibit A) which
becomes effective and enforceable in accordance with applicable law and (2) complies with the
restrictive covenants set forth in Sections 9 and 10:



          (i)     an amount equal to the Executive’s Base Salary for the greater of (1) the
remainder of the Term or (2) twenty-four (24) months (the “Severance Period”). One-half (1/2) of
this amount will be paid on the fifth business day following the Termination Date and one-half
(1/2) will be paid in accordance with the Company’s normal payroll practices;




          (ii)     any Annual Bonus earned but unpaid as of the Termination Date, which amount shall be
paid in a single lump sum on the 30th business day following the Termination Date;




          (iii)     except as otherwise provided in (vi), below, continued exercisability of vested stock
options for a period of three months following the Termination Date; provided that in no event
shall such options be exercisable after the expiration of the option term;




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          (iv)     provided the Executive and/or his dependents are eligible and timely elect to continue
their healthcare coverage under the Company’s group health plan pursuant to their rights under
COBRA, continued coverage under such plan at the Company’s expense until the earliest of (A) the
end of the twelve (12)-month period measured from the Termination Date, (B) the date that the
Executive and/or his eligible dependents are no longer eligible for COBRA coverage, and (C) the
date that the Executive becomes eligible for such coverage under the health plan of any new
employer (the Executive agrees to provide the Company with written notice of such eligibility
within ten calendar days);




          (v)     the Executive’s entitlement to any other benefits will be determined in accordance with
the Company’s employee benefit plans then in effect; and.




          (vi)     in the event the Executive’s employment is terminated by the Executive for Good Reason,
all non-vested Options previously granted to Executive shall immediately vest and remain
exercisable for a period of one year following the Termination Date; provided that in no event
shall such options be exercisable after the expiration of the option term, and all non-vested
Stock Units shall vest immediately and be settled as soon as practicable, but in no event later
than 21/2 months after the close of the year in which such vesting occurs.




     (c) If the Executive’s employment is terminated on or before the second anniversary of a
Change in Control (as defined below): (i) by the Company for any reason other than for Cause;
(ii) by the Executive for Good Reason, the Executive will, in addition to the Accrued
Obligations, be entitled to the following compensation and benefits from the Company, provided
and only if he (i) executes and delivers to the Company a general release (substantially in the
form of attached Exhibit A) which becomes effective and enforceable in accordance with applicable
law and (ii) complies with the restrictive covenants set forth in Sections 9 and 10:



          (i)     an amount equal to two times the Executive’s Base Salary in effect on the Termination
Date plus two times the Annual Bonus paid or payable to Executive with respect to the year
preceding such Termination Date, such amount to be paid in equal increments, in accordance with
the Company’s normal payroll practices, for twenty-four (24) months (the “Change in Control
Severance Period”);




          (ii)     All non-vested Options previously granted to Executive shall immediately vest and
remain exercisable for a period of one year following the Termination Date; provided that in no
event shall such options be exercisable after the expiration of the option term;




          (iii)     All non-vested Stock Units shall vest immediately and be and be settled as soon as
practicable, but in no event later than 21/2 months after the close of the year in which such
vesting occurs;




          (iv)     provided the Executive and/or his dependents are eligible and timely elect to continue
their healthcare coverage under the Company’s group health plan pursuant to their rights under
COBRA, continued coverage under such plan at the Company’s expense until the earliest of (A) the
end of the twelve (12)-month period measured from the Termination Date, (B) the date that the
Executive and/or his eligible dependents are no longer eligible for COBRA coverage, and (C) the
date that the Executive becomes eligible for such coverage under the health plan of any new
employer (the Executive agrees to provide the Company with written notice of such eligibility
within ten calendar days); and




          (v)     the Executive’s entitlement to any other benefits will be determined in accordance with
the Company’s employee benefit plans then in effect;




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          Notwithstanding anything contained herein to the contrary, benefits provided to the
Executive under this Section 6(c) shall in no event exceed the maximum benefit amount payable
without triggering the imposition of taxes under Section 4999 of the Internal Revenue Code (the
“Code”). Executive agrees to a reduction of the benefits described under this Section 6(c) as
necessary to prevent such benefits from constituting a parachute payment under Code Section 280G.




     For purposes of this Section 6(c), “Change in Control” means a change of control as defined
under the equity plan.



     (d)     The Executive will not be required to mitigate the amount of any payment provided for in
this Section 6 by seeking other employment or otherwise, and no such payment or benefit will be
eliminated, offset or reduced by the amount of any compensation provided to the Executive in any
subsequent employment.



     7.     Clawback Provision. In the event that the Company is required to prepare an
accounting restatement due to material noncompliance with any financial reporting requirement
under the Federal securities laws, Executive shall reimburse the Company for the amount of any
Annual Bonus or any other incentives paid to Executive based on the financial results that are
materially restated downward.



     8.     Attorneys’ Fees. Promptly following receipt of a statement for professional
services (including, but not limited to tax consultants, advisors, attorneys, compensation
experts, etc.) the Company shall reimburse the Executive for fees and expenses of Executive’s
legal counsel which were incurred in connection with the negotiation and review of this Agreement
up to an amount equal to Seven Thousand, Five Hundred Dollars ($7,500). Payment of any
reimbursement under this Section 8 shall be made to the Executive not later than the end of the
calendar year following the year in which such expenses were incurred.



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     9.     Confidentiality. The Executive hereby acknowledges that the Company may, from
time to time during the Term, disclose to the Executive confidential information pertaining to
the Company’s business, strategic plans, technology or financial affairs. All information, data
and know-how, whether or not in writing, of a private or confidential nature concerning the
Company’s finances and financial reports, employee information and other organizational
information, trade secrets, processes, systems, marketing strategies and future marketing plans,
customer lists, products, prices, fees, costs, technology, formulas, inventions, trade secrets,
know-how, software, marketing methods, plans, personnel, suppliers, competitors, markets, or
other specialized information or proprietary matters , (collectively, “Proprietary Information”)
is and shall remain the sole and exclusive property of the Company and shall not be used or
disclosed by the Executive except to the extent necessary to perform his duties and
responsibilities under this Agreement. All tangible manifestations of such Proprietary
Information (whether written, printed or otherwise reproduced) shall be returned by the Executive
upon the termination of his employment hereunder, and the Executive shall not retain any copies
or excerpts of the returned items. Notwithstanding the preceding, there shall be no obligation
hereunder with respect to information that (i) is generally available to the public on the
Commencement Date or (ii) becomes generally available to the public other than as a result of a
disclosure not otherwise permitted hereunder.



     10.     Restrictive Covenants. At all times during the Executive’s employment with the
Company, and for a period of the longer of (i) one (1) year after the termination of his
employment with the Company, or (ii) the period for which severance payments are made to
Executive, regardless of the reason or cause for such termination, the Executive shall comply
with the following restrictions:



     (a)     The Executive shall not directly or indirectly encourage or solicit any employee,
faculty member, consultant or independent contractor to leave the employment or service of the
Company (or any affiliated company) for any reason or interfere in any other manner with any
employment or service relationships at the time existing between the Company (or any affiliated
company) and its employees, faculty members, consultants and independent contractors.



     (b)     The Executive shall not directly or indirectly solicit any customer, vendor, supplier,
licensor, licensee or other business affiliate of the Company (or any affiliated company) with
respect to products or services competitive with those offered by the Company or directly or
indirectly induce any such person to terminate its existing business relationship with the
Company (or affiliated company) or interfere in any other manner with any existing business
relationship between the Company (or any affiliated company) and any such customer, vendor,
supplier, licensor, licensee or other business affiliate.



     (c)     The Executive shall not, on his own or as an employee, agent, promoter, consultant,
advisor, independent contractor, general partner, officer, director, investor, lender or
guarantor or in any other capacity, directly or indirectly:



          (i)     conduct, engage in, be connected with, have any interest in, or assist any person or
entity engaged in, any business, whether in the United States, any possession of the United
States or any foreign country or territory, that competes with any of the businesses or programs
conducted by the Company in the communications industry for which the Executive provided services
and/or support and/or for which the Executive held supervisory responsibility or oversight during
the period of his employment with the Company (hereafter collectively referred to as the
“Businesses”); or




          (ii)     permit his name to be used in connection with a business which is competitive or
substantially similar to the Businesses.





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     Notwithstanding the foregoing the Executive may own, directly or indirectly, solely as an
investment, up to one percent (1%) of any class of publicly traded securities of any business that
is
competitive or substantially similar to the Businesses shall not be deemed a breach of his
restrictive covenant under this Section 9(c).



     11.     Non-Disclosure/Non-Disparagement. At no time during the term of this Agreement
or thereafter shall Executive disclose Proprietary Information, or disparage the Company, its
employees or its Directors. Notwithstanding the preceding, nothing in this Agreement shall in
any way limit the ability of the Executive to provide information covered by this Agreement to a
Federal government department or agency to assist such entity in the fulfillment of its duties.



     12.     Section 409A. Certain payments contemplated by this Agreement may be “deferred
compensation” for purposes of Section 409A of the Code. Accordingly, the following provisions
shall be in effect for purposes of avoiding or mitigating any adverse tax consequences to the
Executive under Code Section 409A.



     (a)     It is the intent of the parties that the provisions of this Agreement comply with all
applicable requirements of Code Section 409A. If any federal legislation is enacted during the
term of this Agreement which imposes a dollar limit on deferred compensation, then the Executive
will co-operate with the Company in restructuring any items of compensation under this Agreement
that are deemed to be deferred compensation subject to such limitation; provided such
restructuring shall not reduce the dollar amount of any such item or adversely affect the vesting
provisions applicable to such item or otherwise reduce the present value of that item.



     (b)     Notwithstanding any provision to the contrary in this Agreement, no payments or benefits
to which the Executive becomes entitled under Section 6 of this Agreement (other than COBRA
benefits) shall be made or paid to the Executive prior to the earlier of (i) the expiration of
the six (6)-month period measured from the date of his “separation from service” with the Company
(as such term is defined in the final regulations under Section 409A) or (ii) the date of his
death, if the Executive is deemed at the time of such separation from service a “key employee”
within the meaning of that term under Code Section 416(i) and such delayed commencement is
otherwise required in order to avoid a prohibited distribution under Code Section 409A(a)(2).
Upon the expiration of the applicable Code Section 409A(a)(2) deferral period, all payments
deferred pursuant to this subsection 12(b) shall be paid in a lump sum to the Executive, and any
remaining payments due under this Agreement shall be paid in accordance with the normal payment
dates specified for them herein.



     13.     Indemnification. The Executive shall be covered by any policy of liability
insurance which the Company maintains during the Term for its officers and directors (“D&O
Insurance”), to the maximum extent of such coverage provided any other executive officer of the
Company. The Company agrees to provide the Executive with information about all D&O Insurance
maintained during the Term, including proof that such insurance is in place and the terms of
coverage, upon the Executive’s reasonable request. In addition to any rights the Executive may
have under such D&O Insurance, applicable law, or the articles of incorporation and bylaws of the
Company and except as may be prohibited by applicable law, the Company agrees to indemnify,
defend, and hold the Executive harmless from and against any and all claims and/or liability
arising from, as a result of, or in connection with the Executive’s employment by the Company or
any outside appointments and offices held at the Company’s request, except to the extent such
claims or liability are attributable to the Executive’s gross negligence or willful misconduct.



     14.     Injunctive Relief. The Executive expressly agrees that the covenants set forth
in Sections 9 and 10 of this Agreement are reasonable and necessary to protect the Company and
its legitimate business interests, and to prevent the unauthorized dissemination of Proprietary
Information to competitors of the Company. The Executive also agrees that the Company will be
irreparably



10









 




harmed and that damages alone cannot adequately compensate the Company if there is a
violation of Sections 9 or 10 of this Agreement by the Executive, and that injunctive relief
against the Executive is essential for the protection of the Company. Therefore, in the event of
any such breach, it is agreed that, in addition to any other remedies available, the Company
shall be entitled as a matter of right to injunctive relief in any court of competent
jurisdiction, without the necessity of posting a bond, plus the attorneys’ fees and costs
actually incurred for the securing of such relief.




     15.     Survival of Certain Provisions. The provisions of Sections 7, 9, 10, 12 through
21, 23, and 24 will survive any termination of this Agreement.



     16.     Withholdings. Any compensation and/or benefits provided to the Executive by the
Company shall be subject to the Company’s collection of all applicable payroll deductions and
applicable withholding and payroll taxes.



     17.     Successors and Assigns. This Agreement will be binding upon and will inure to
the benefit of the Company, its successors and assigns, and the Company will require any
successor or assign to expressly assume and agree to perform this Agreement in the same manner
and to the same extent that the Company would be required to perform it if no such succession or
assignment had taken place. The term “the Company” as used herein will include any such
successors and assigns to the Company’s business and/or assets. The term “successors and
assigns” as used herein will mean a corporation or other entity acquiring or otherwise succeeding
to, directly or indirectly, all or substantially all the assets and business of the Company
(including this Agreement) whether by operation of law or otherwise. This Agreement will inure
to the benefit of and be enforceable by the Executive’s legal personal representative.



     18.     Arbitration. Except as otherwise provided in Section 14, any controversy or
claim between the Company or any of its affiliates and the Executive arising out of or relating
to this Agreement or its termination or any other dispute between the parties, whether arising in
tort, contract, or pursuant to a statute, regulation, or ordinance now in existence or which may
in the future be enacted or recognized will be settled and determined by a single arbitrator
whose award will be accepted as final and binding upon the parties. The arbitration shall be
conducted in Miami, Florida and in accordance with the American Arbitration Association (“AAA”)
Employment Arbitration Rules in effect at the time such arbitration is properly initiated. To
the extent that any of the AAA rules or anything in the Agreement conflicts with any arbitration
procedures required by applicable law, the arbitration procedures required by applicable law
shall govern. The costs of the arbitration, including administrative fees and fees charged by
the arbitrator, will be borne by the Company. Each party will bear its or his own travel
expenses and attorneys’ fees: provided, however that the arbitrator (i) shall award attorneys’
fees to the Executive with respect to any claim for breach of this Agreement on which he is the
prevailing party and may award attorneys’ fees to the Executive as otherwise allowed by law and
(ii) may award attorneys’ fees to the Company with respect to any other claim on which it is the
prevailing party and it is determined by the arbitrator that such claim by the Executive was
frivolous in that it presented no colorable arguments for recovery. The arbitration shall be
instead of any civil litigation. The arbitrator’s decision shall be final and binding to the
fullest extent permitted by law and enforceable by any court having jurisdiction thereof.
Judgment upon any award rendered by the arbitrator may be entered in any court having
jurisdiction thereof.



11









 





     19.     Notice. For the purposes of this Agreement, notices and all other
communications provided for in the Agreement (including the Notice of Termination) will be in
writing and will be deemed to have been given when personally delivered or on the third business
day following mailing if sent by registered or certified mail, return receipt requested, postage
prepaid, or upon receipt if overnight delivery service is used, addressed as follows:


To the Executive:



To the Company:



2601 S. Bayshore Dr., PHII

Coconut Grove, Florida 33133



With a copy to:

Melanie Montenegro

2601 S. Bayshore Dr., PHII

Coconut Grove, Florida 33133




     20.     Miscellaneous. No provision of this Agreement may be modified, waived, or
discharged unless such waiver, modification, or discharge is agreed to in writing and signed by
the Executive and the Company. No waiver by either party hereto at any time of any breach by the
other party hereto of, or compliance with, any condition or provision of this Agreement to be
performed by such other party will be deemed a waiver of similar or dissimilar provisions or
conditions at the same or at any prior or subsequent time. No agreement or representation, oral
or otherwise, express or implied, with respect to the subject matter hereof has been made by
either party which is not expressly set forth in this Agreement.



     21.     Counterparts. This Agreement may be executed in several counterparts, each of
which will be deemed an original and all of which will constitute but one and the same
instrument. An electronic facsimile of a signature, when delivered by the signing party to the
non-signing party, will have the same force and effect as an original.



     22.     Governing Law. This Agreement will be governed by and construed and enforced in
accordance with the laws of the State of Florida without giving effect to the conflict of law
principles thereof.



     23.     Severability. If any provision of this Agreement as applied to any party or to
any circumstance should be adjudged by a court of competent jurisdiction (or determined by the
arbitrator) to be void or unenforceable for any reason, the invalidity of that provision shall in
no way affect (to the maximum extent permissible by law) the application of such provision under
circumstances different from those adjudicated by the court or determined by the arbitrator, the
application of any other provision of this Agreement, or the enforceability or invalidity of this
Agreement as a whole. Should any provision of this Agreement become or be deemed invalid, illegal
or unenforceable in any jurisdiction by reason of the scope, extent or duration of its coverage,
then such provision shall be deemed amended to the extent necessary to conform to applicable law
so as to be valid and enforceable or, if such provision cannot be so amended without materially
altering the intention of the parties, then such provision will be stricken, and the remainder of
this Agreement shall continue in full force and effect.



     24.     Entire Agreement. This Agreement shall constitute the entire agreement between
the parties hereto with respect to the subject matter hereof and shall supersede all prior
agreements, if any, understandings and arrangements, oral or written, between the parties hereto
with respect to the subject matter hereof.



12









 





[SIGNATURE PAGE IMMEDIATELY FOLLOWS]




13









 








     IN WITNESS WHEREOF, the Company has caused this Agreement to be executed by its duly
authorized officer and the Executive has executed this Agreement as of the day and year first above
written.



	 	 	 	 	 
	JOSEPH A. GARCIA	 	SPANISH BROADCASTING SYSTEM, INC.
	 
	 	 	 	 
	/s/ Joseph A. García

	 	By:	 	Raúl Alarcón, Jr. 
	 

	 	 	 	 
	 
	 	 	 	 
	 

	 	Its:	 	CEO 
	 

	 	 	 	 






14









 








EXHIBIT A




FORM OF GENERAL RELEASE




15









 











GENERAL RELEASE




     This
AGREEMENT is made as of ____________, 200___, by and between _______________ (“Executive”),
and Spanish Broadcasting System, Inc. (the “Company”).



     In consideration for the severance benefits offered by the Company to Executive pursuant to
Section 6 of his Employment Agreement with the Company dated ____________, 2008 (the “Employment
Agreement”), Executive agree as follows:



     1.     Termination of Employment. Executive acknowledges that his employment with the
Company is terminated effective ____________ (the “Termination Date”), and he agrees that he
will not apply for or seek re-employment with the Company, its parent companies, subsidiaries and
affiliates after that date. Executive agrees that he has received and reviewed his final
paycheck and he has received all wages and accrued but unpaid vacation pay earned by him through
the Termination Date.



     2.     Waiver and Release.



          (a)     Except as set forth in Section 2(b), which identifies claims expressly excluded from
this release, Executive hereby releases the Company, all affiliated companies, and their
respective past and present directors, officers, agents, employees, employee benefit plan
fiduciaries and administrators, insurers, stockholders, successors and assigns from any and all
claims, liabilities, demands, causes of action, costs, expenses, attorney fees, damages,
indemnities and obligations of every kind and nature, in law, equity or otherwise, known and
unknown, suspected and unsuspected, disclosed and undisclosed, arising from or relating to
Executive’s employment with the Company and the termination of that employment up to the date he
signs this Release, including (without limitation): claims of wrongful discharge, emotional
distress, defamation, fraud, breach of contract, breach of the covenant of good faith and fair
dealing, discrimination or retaliation claims based on sex, age, race, national origin,
disability or any other basis under Title VII of the Civil Rights Act of 1964, as amended, the
Age Discrimination in Employment Act of 1967, as amended (“ADEA”), the Americans with
Disabilities Act, the Equal Pay Act of 1963, as amended, and any similar law of any state or
local governmental entity, claims under the Employee Retirement Income Security Act of 1973, as
amended, any contract claims, tort claims and wage or benefit claims, including (without
limitation) claims for salary, bonuses, commissions, equity awards (including stock grants, stock
options and restricted stock units), vesting acceleration, vacation pay, fringe benefits,
severance pay or any other form of compensation.




          (b)     The only claims that Executive is not waiving and releasing under this Agreement are
claims he may have for (1) unemployment, state disability, worker’s compensation, and/or paid
family leave insurance benefits pursuant to the terms of applicable state law; (2) continuation
of existing participation in Company-sponsored group health benefit plans under the federal law
known as “COBRA” and/or under an applicable state law counterpart(s); (3) any benefits
entitlements that are vested and unpaid as of his termination date pursuant to the terms of a
Company-sponsored benefit plan; (4) any benefits to which he is entitled pursuant to Section 7 of
the Employment Agreement or his rights to indemnification pursuant to Section 13 of the
Employment Agreement, (5) violation of any federal state or local statutory and/or public policy
right or entitlement that, by applicable law, is not waivable; (6) any wrongful act or omission
occurring after the date he executes this Agreement; and (7) any claim relating to the
enforcement of this Agreement under the Age Discrimination in Employment Act of 1963, as amended.
In addition, nothing in this Agreement prevents or prohibits Executive from filing a claim with
the Equal Employment Opportunity Commission (EEOC) or any other government agency that is
responsible for enforcing a law on behalf
of the government and deems such claims not waivable. However, because Executive is hereby
waiving and releasing all claims “for monetary damages and any other form of personal relief”
(per Section 2(a) above), he agrees not to seek or accept any personal forms of relief from the
EEOC, similar government agencies, or any third party.




16









 








          (c)     Executive represents that he has not filed any complaints, charges, claims, grievances,
or lawsuits against the Company and/or any related persons with any local, state or federal
agency or court, or with any other forum.




          (d)     Executive acknowledges that he may discover facts different from or in addition to those
he now knows or believes to be true with respect to the claims, demands, causes of action,
obligations, damages, and liabilities of any nature whatsoever that are the subject of this
Agreement, and he expressly agrees to assume the risk of the possible discovery of additional or
different facts, and agrees that this Agreement shall be and remain in effect in all respects
regardless of such additional or different facts. Executive expressly acknowledges that this
Agreement is intended to include, and does include in its effect, without limitation, all claims
which Executive does not know or suspect to exist in his favor against the Company and/or any
related persons at the moment of execution thereof, and that this Agreement expressly
contemplates extinguishing all such claims.




          (e)     Executive understands and agrees that the Company has no obligation to provide him with
any severance benefits under the Employment Agreement unless he executes this Agreement.
Executive also understands that he has received or will receive, regardless of the execution of
this Agreement, all wages owed to him, together with any accrued but unpaid vacation pay, less
applicable withholdings and deductions, earned through the Termination Date.




          (f)     This Agreement is binding on Executive, his heirs, legal representatives and assigns.




     3.     Cooperation. Executive agrees to cooperate with and assist the Company and its
counsel at any time and in any manner reasonably required by the Company or its counsel (with due
regard for the Executive’s other commitments if he has obtained other employment) in connection
with any litigation or other legal process affecting the Company or in answering questions
concerning any other matter of which Executive has knowledge as result of his employment (other
than any litigation with respect to this Agreement). In the event of such requested cooperation,
the Company shall reimburse Executive for his reasonable out-of-pocket expenses.



     4.     Entire Agreement. This Agreement and the Employment Agreement constitute the
entire understanding and agreement between Executive and the Company in connection with the
matters described, and replaces and cancels all previous agreements and commitments, whether
spoken or written, with respect to such matters. Nothing in this Agreement supersedes or
replaces any of Executive’s obligations under his Employment Agreement that survive termination,
including, but not limited to (i) his (and the Company’s) agreement to arbitrate disputes, (ii)
his restrictive covenants under Section 10 of the Employment Agreement and (iii) his obligations
under Section 9 of the Employment Agreement, his existing Proprietary Information Inventions
Agreement with the Company and any other obligations not to use or disclose Company confidential
and/or proprietary information.



     5.     Modification in Writing. No oral agreement, statement, promise, commitment or
representation shall alter or terminate the provisions of this Agreement. This Agreement cannot
be changed or modified except by written agreement signed by Executive and authorized
representatives of the Company.



17









 





     6.     Governing Law; Jurisdiction. This Agreement shall be governed by and enforced in
accordance with the laws of the State of Florida.



     7.     Severability. Any term or provision of this Agreement which is invalid or
unenforceable in any jurisdiction shall, as to that jurisdiction, be ineffective to the extent of
such invalidity or unenforceability without rendering invalid or unenforceable the remaining
terms and provisions of this Agreement or affecting the validity or enforceability of any of the
terms or provisions of this Agreement in any other jurisdiction. If any provision of this
Agreement is so broad as to be unenforceable, the provision shall be interpreted to be only so
broad as is enforceable.



     8.     No Admission of Liability. This Agreement does not constitute an admission of
any unlawful discriminatory acts or liability of any kind by the Company or anyone acting under
their supervision or on their behalf. This Agreement may not be used or introduced as evidence
in any legal proceeding, except to enforce or challenge its terms.



     9.     Acknowledgements. Executive is advised to consult with an attorney of his choice
prior to executing this Agreement. By signing below, Executive acknowledges and certifies that
he:



          (a)     has read and understands all of the terms of this Agreement and is not relying on any
representations or statements, written or oral, not set forth in this Agreement;




          (b)     has been provided a consideration period of twenty-one (21) calendar days within which
to decide whether he will execute this Agreement and that no one hurried him into executing this
Agreement;




          (c)     is signing this Agreement knowingly and voluntarily; and




          (d)     has the right to revoke this Agreement within seven (7) days after signing it, by
providing written notice of revocation via certified mail to the Company to the address specified
in the Employment Agreement. Executive’s written notice of revocation must be postmarked on or
before the end of the eighth (8th) calendar day after he has timely signed this Agreement. This
deadline will be extended to the next business day should it fall on a Saturday, Sunday or
holiday recognized by the U.S. Postal Service.




          Because of the revocation period, the Company’s obligations under this Agreement shall not
become effective or enforceable until the eighth (8th) calendar day after the date Executive
signs this Agreement provided he has delivered it to the Company without modification and not
revoked it (the “Effective Date”).




I HAVE READ, UNDERSTAND AND VOLUNTARILY ACCEPT AND AGREE TO THE ABOVE TERMS




_______________




	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	Date:
	 	 	,	 	20	 	 	 	 	 
	 

	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Signature
	 	 	 	 	 	 	 	 	 	 	 	 	 	 







18









 








SCHEDULE I




LIST OF EXISTING BOARD MEMBERSHIPS