Exhibit 10.20
AMENDED AND RESTATED
ARTIST AGREEMENT
This Amended and Restated Artist Agreement (the "Agreement") is dated
as of June 5, 1998 and is between Radio Unica Network, Inc. a Delaware
corporation (the "Corporation") with a principal place of business located at
0000 X.X. 00xx Xxxxxx, Xxxxx, Xxxxxxx 00000 and Xxxxx Productions, a Florida
corporation ("Xxxxx Productions") with a principal place of business located at
0000 X.X. 000xx Xxxxxx, Xxxxx, Xxxxxxx.
RECITALS
A. Xxxxx Xxxxxx (the "Artist") is currently providing services to Radio
Unica Corp., the Corporation's parent company, as the host of a live, Spanish
language radio program pursuant to the terms of a certain Artist Agreement dated
June l, 1997 (the "Original Agreement").
B. Radio Unica Corp., through its wholly-owned subsidiary, the Corporation,
desires to continue to engage Artist through Xxxxx Productions, a corporation
owned and controlled by Artist, and Artist, through Xxxxx Productions, desires
to continue to provide services to Radio Unica Corp. indirectly through the
Corporation in accordance with the terms of this Agreement which amends,
restates and replaces the Original Agreement.
NOW, THEREFORE, in consideration of the mutual undertakings herein set
forth, the parties agree as follows:
(1) Engagement; Exclusivity. The Corporation hereby engages Xxxxx
Productions to cause Artist to render his exclusive (as further described in
Section 9 below) services to the Corporation during the term of this Agreement.
Xxxxx Productions hereby accepts such engagement, and undertakes to, and to
cause the Artist to, perform all the duties and obligations to be performed
hereunder.
(2) Duties and Services.
(a) The Artist's services shall consist of hosting a live
Spanish-language radio program (the "Program") for up to, but no more than,
three (3) hours a day, five (5) days per week, for a total of up to, but no more
than, two hundred sixty (260) shows per year.
(b) Xxxxx Productions shall cause the Artist to make himself available
for a reasonable number of personal appearances at the Corporation's request in
connection with the Program at no additional charge, not to exceed four (4) per
calendar quarter, provided that the appearances do not interfere with the
Artist's prior bona fide professional contractual commitments.
All reasonable expenses for such appearances including travel and hotels, if
necessary, shall be the responsibility of the party requesting that the Artist
make such an appearance.
(c) Xxxxx Productions shall cause the Artist to record a reasonable
number of personalized promotional announcements for the Program on behalf of
the Corporation and the stations clearing the Program, which announcements shall
be subject to the prior approval of the Corporation. Xxxxx Productions shall
also cause the Artist to provide a reasonable number of live lead-ins and
opening and closing billboards.
(d) In the event that Corporation provides notice to Xxxxx Productions
of any particular subject matter that shall not be addressed or discussed on the
Program, Xxxxx Productions shall cause the Artist not to, following receipt of
said notice from Corporation, address or discuss (or allow to be addressed or
discussed) such subject matter on the Program. Xxxxx Productions shall cause the
Artist to provide to Corporation descriptions of the subject matter for upcoming
Program broadcasts, periodically during the term and promptly upon any request
therefor by the Corporation. In the event that the Corporation provides notice
to Xxxxx Productions of any subject matter (including, without limitation,
references by the Artist to certain commercial sponsors, advertisers or entities
or events related to Corporation or the Program or voice-overs, vignettes or
promotional mentions by the Artist that refer to any such parties or events
requested by Corporation) that Corporation wishes to be referred to, addressed
and discussed on the Program or of any other requests of Corporation with
respect to program format, Xxxxx Productions shall, promptly following receipt
of said notice from Corporation, cause the Artist to comply with Corporation's
request(s) in any such notice.
(3) Term. The term of this Agreement commenced on June 1, 1997 and shall
continue for a period of three (3) years from the date first set forth above
(the "Initial Term"), unless further extended as provided in Section 5 or
Section 14, or sooner terminated as provided in Section 16 or Section 17. The
aforesaid period is herein called the Initial Term.
(4) Compensation. Provided that the services to be performed hereunder are
satisfactorily performed, the Corporation shall pay to Xxxxx Productions for the
services and for all rights herein granted and agreed to be granted to the
Corporation the following:
(a) A creative fee ("Creative Fee") of Forty Thousand dollars ($40,000)
per annum, payable monthly; provided that for the months December 1997 through
September 1998, Creative Fee payments shall be payable in a lump sum amount
equal to $3,333 multiplied by ten (10), or $33,333, on October 1, 1998 or
October 2, 1998.
(b) Additional compensation ("Commission Amounts") of fifteen percent
(15%) of Net Program Revenue (as defined in Exhibit A attached hereto and
incorporated herein), payable thirty (30) days following receipt of Net Program
Revenue; provided that said Commission Amounts shall total no less than $110,000
per 12-month period during the Initial Term (or a pro-rata portion
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thereof for any partial 12-month period) commencing as of December 1, 1997, and
through the remainder of the term ("Minimum Commission Amount") regardless of
the amount of Net Program Revenue generated during the 12-month period during
the Initial Term, with the positive difference (if any) between the Minimum
Commission Amount and all Commission Amounts paid to Xxxxx Productions during
such 12-month period payable to Xxxxx Productions within forty-five (45) days of
the conclusion of each such 12-month period; provided that for the 12-month
period commencing December 1, 1997 and ending November 31, 1998, any such
positive difference will be paid to Xxxxx Productions on October 1, 1998 or
October 2, 1998 (and if and to the extent that Commission Amounts less than or
equal to the amount of the positive difference so paid to Xxxxx Productions on
October 1, 1998 or October 2, 1998 become payable to Xxxxx Productions based
upon Net Program Revenue during October 1998 or November 1998, then such
positive difference amount shall constitute an advance of said October 1998 and
November 1998 Commission Amounts such that no additional Commission Amounts up
to such positive difference amount shall then be payable to Xxxxx Productions).
(c) Artist has been granted certain options to purchase shares of the
Corporation's common stock, which options are represented by the five Stock
Option Certificates attached hereto and incorporated herein as Exhibit B and are
issued pursuant to and governed by the 1997 Stock Option Plan of the Corporation
(the "Plan"). A copy of the Plan is also attached as Exhibit B.
(d) Xxxxx Productions acknowledges that except as specifically
referenced in Section 4(a) above, all compensation payable for services rendered
by the Artist prior to the date first set forth above has been paid by the
Corporation. Upon termination of this Agreement, whether through natural
expiration of the Term, premature termination of term or otherwise (except as
specifically set forth in Section 15(a) below), compensation amounts referenced
in Section 4(a) and 4(b) above shall only be due and payable through the date of
termination (based upon a pro-ration of the Creative Fee amount and the Minimum
Commission Amount through the date of termination).
(5) Option to Extend Term.
(a) In consideration of the execution of this Agreement by the
Corporation, Xxxxx Productions hereby grants to the Corporation the following
rights or options: To extend the term of the Agreement for an additional period
of one (1) year (herein called the First Extension Period) from the expiration
of the Initial Term, upon the same terms and conditions as those herein
contained.
(b) The foregoing option may be exercised no later than thirty (30)
days prior to the expiration of the Initial Term by notice served upon Xxxxx
Productions.
(c) Whenever in this Agreement the words "the terms hereof" or "the
term of this agreement" are used; such words shall mean and include not only the
Initial Term, but also the First Extension Period if the option with respect
thereto is exercised.
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(6) Right of First Refusal. Upon termination or expiration of this Agreement
or termination of the contractor relationship created hereunder, whichever
occurs later, and for a period of six (6) months thereafter, Xxxxx Productions
shall (and shall cause the Artist to) prior to entering into an agreement with a
third party for services on or to any radio station or radio network, first
submit to the Corporation the name of the third party and terms and conditions
which Xxxxx Productions or the Artist is prepared to accept from the third
party, and the Corporation shall have the right, within twenty-one (21) business
days after receipt of such terms and conditions, to notify Xxxxx Productions or
the Artist that the Corporation elects to enter into an agreement with Xxxxx
Productions or the Artist on those identical terms and conditions. If the
Corporation does not respond within the twenty-one (21) business days, Xxxxx
Productions or the Artist shall be free to enter into an agreement with the
third party on the terms and conditions submitted to the Corporation.
(7) Performance. Xxxxx Productions shall cause the Artist to devote all
necessary time, attention and energy to the performance of his services
hereunder; to perform the same conscientiously and to the full limit of his
ability at all times and to promptly and faithfully comply with all the
reasonable instructions, directions, requests, rules and regulations of the
Corporation m connection therewith.
(8) Place of Performance. The services to be rendered hereunder shall be
rendered in Miami-Dade County, Florida or, subject to the approval of the
Corporation, at such place or places outside Miami-Dade County, Florida, taking
into consideration Artist's prior television or other commitments; it being
understood that Artist shall be available to provide services in Miami-Dade
County at each live Program broadcast.
(9) Radio Services Exclusive.
(a) Xxxxx Productions and the Artist agree to the Corporation's
exclusive right to Artist's services in the fields of network or syndicated
radio or continuing radio series in the Spanish language; it being specifically
understood that Artist will not, so long as this Agreement shall continue in
effect, without the Corporation's prior written consent, appear or perform any
services whatsoever, live, by recording, or otherwise, on any radio syndicator
network or on any radio stations in the Spanish language; except that Artist may
make occasional guest appearances on single or continuing programs on network or
local radio stations or radio network, and may additionally, subject to the
prior written consent of the Corporation, which shall not be unreasonably
withheld, provide his services as a spokesperson in commercial advertisements
and product endorsements.
(b) The Corporation recognizes that Artist has, in connection with his
performances on television, granted to others the right to use his name, voice
and likeness for the purpose of promoting and advertising the same. However,
Xxxxx Productions and Artist shall not, during the term hereof, grant any such
right to any others (within the radio industry or any other industry) without
the Corporation's prior written consent, as specified in Section 9(a) above.
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(10) Artist's Conduct. Artist shall not during the term hereof act in a
manner tending to be offensive to decency, morality, or social propriety, or
tending to result in scandal, ridicule or contempt, or tending to provoke any
retaliatory action or boycott against himself or the Corporation.
(11) Ownership of Results and Proceeds.
(a) In addition to Artist's services, the Corporation shall be entitled
to, and shall own solely and exclusively, all the results and proceeds thereof,
and all rights of every kind therein. Xxxxx Productions and Artist acknowledge
and agree that they shall have no ownership interest in the Program or any
Program materials, marks or concepts created or owned by the Corporation, or any
portion thereof. Said items shall be owned by the Corporation, and the
Corporation shall have the right to exploit any or all of said materials in any
form, manner or media during and after the term of this Agreement, as between
the parties hereto, in the Corporation's sole discretion without limitation and
without any further consideration to Xxxxx Productions. The parties agree that
Artist is a contractor "for hire" and that the Program shall be considered a
"work made for hire" under the United States Copyright Act of 1976, as amended.
To the extent that the Program is not deemed a "work made for hire," Artist and
Xxxxx Productions hereby assign to the Corporation all rights, title and
interest in and to the Program. Xxxxx Productions and Artist acknowledge that
Artist's name, voice, performances and services hereunder and the results and
proceeds of those performances and services may be so exploited by the
Corporation for profit or otherwise by any means or method. Xxxxx Productions
and Artist hereby acknowledge that the Corporation is the owner of (i) said
results and proceeds, (ii) the right to use and to permit others to use Artist's
name, voice, and biographical material for an in connection with use of said
results and proceeds (it being understood that said right is exclusive to the
Corporation only as to said result and proceeds) and (iii) all rights of every
kind and nature in and to said results and proceeds.
(b) Xxxxx Productions and Artist hereby assign and transfer to the
Corporation all their right, title and interest in such results and proceeds,
without reservation, condition or limitation. If the Corporation desires to
secure separate assignments thereof, Xxxxx Productions and/or Artist shall
promptly execute and deliver the same to the Corporation upon request.
(c) Xxxxx Productions and Artist shall not transfer or attempt to
transfer to anyone other than the Corporation, any right, title or interest in
or to any of the foregoing, nor shall Xxxxx Productions or Artist at any time
make or purport to make any grant to any third party in derogation thereof.
(d) The provisions of this Section 11 shall remain in full force and
effect regardless of the termination of this Agreement, and regardless of
whether such termination occurs through expiration or as a result of
cancellation by the Corporation.
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(12) Use of Name and Likeness.
(a) Except as otherwise specifically provided in Section 12(b) below,
the Corporation shall have the exclusive right during the term hereof to use
Artist's name, voice and likeness for advertising and promoting the radio
programs and the radio network for which Artist has rendered services to the
Corporation, and the non-exclusive right to use the same after the termination
of this agreement in connection with the above.
(b) The use hereinabove referred shall not, without Xxxxx Productions's
written consent, include the use of Artist's name, voice or likeness for general
commercial purposes, such as the advertising or promotion of a product, service
or station, by way of endorsement or otherwise (notwithstanding references of
the type referred to in the parenthetical in Section 2(d) above which shall not
require the prior written consent of Xxxxx Productions).
(13) Insurance. The Corporation shall have the right to apply, at any time
or from time to time, in its own name or otherwise, and at its own expense, for
life, health, accident or other insurance covering Artist, in order to protect
its interest hereunder. Xxxxx Productions shall and shall cause Artist to assist
the Corporation in procuring such insurance by submitting to the customary
medical examination and by signing such papers as may reasonably be required in
connection therewith. Xxxxx Productions and Artist shall have no right, title or
interest in or to such insurance.
(14) Corporation's Right to Suspend. The Corporation shall have the right to
suspend the operation of this Agreement, both as to services and compensation,
for a period equal to all or any part of the period or aggregate of periods
during which any contingency mentioned in Section 17 occurs. No compensation
shall be due for the duration of such suspension period, either during or after
the period.
(a) The Corporation shall give Xxxxx Productions immediate notice of
any suspension.
(b) Upon the resumption of the operation of this Agreement, the
Corporation shall have the right to extend the term hereof for a period equal to
all or any part of the period of suspension.
(c) Any such right of extension shall be exercised by notice served
upon Xxxxx Productions prior to the expiration of the then current period.
(15) Corporation's Right to Terminate.
(a) Termination by Corporation Without Cause. The Corporation shall
have the right to terminate and cancel this Agreement without cause, at any time
upon ninety (90) days' prior written notice to Xxxxx Productions. Upon
termination without cause, the Corporation shall pay to
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Xxxxx Productions for Artist a severance compensation package equal to three (3)
months of the Creative Fee applicable at the time of termination.
(b) Termination by Corporation for Cause. The Corporation shall have
the right, at its option, to terminate this Agreement at any time upon or during
the occurrence of the following: (1) any contingency mentioned in subsection (a)
of Section 17 if it continues for more than two (2) weeks; or (2) any
contingency mentioned in subsection (b) of Section 17 if it continues for more
than six (6) weeks; or (3) any contingency mentioned in subsections (c), (d) or
(e) of Sections 17.
(c) No Further Obligations. In the event of the termination of this
Agreement in accordance with the foregoing provisions, the Corporation shall
upon such termination, be released from all further obligations to Xxxxx
Productions and Artist hereunder, except that it shall be liable to Xxxxx
Productions for such compensation as may have been unpaid and due prior thereto.
Termination by the Corporation shall not be deemed to be a waiver on its part of
any other rights or remedies it may have by reason of the circumstances on which
the termination is predicated.
(16) Xxxxx Productions's Right to Terminate. Xxxxx Productions shall have
the right to terminate this Agreement any time during the occurrence of any
contingency mentioned in subsection (b) of Section 17 if the Corporation has
suspended this Agreement for such contingency and such suspension continues for
a period of six (6) weeks or more. If Xxxxx Productions elects to terminate as
aforesaid, it shall do so by notifying the Corporation to that effect upon the
expiration of the six-week (6) period. If within five (5) days after receipt of
Xxxxx Productions's notice of termination, the Corporation resumes the payment
of compensation to Xxxxx Productions and continues such payment during the
remainder of the continuance of the contingency, then notwithstanding Xxxxx
Productions's notice, this Agreement shall not be terminated, but shall remain
in full force and effect. However, in that event the Corporation shall not
thereafter have the right to suspend or terminate this Agreement for the same
contingency, whether occurring during the same period of the term hereof or
during any subsequent option period.
(17) Contingencies. The contingencies mentioned in Sections 14, 15 and 16
shall be as follows:
(a) The inability of Artist to fully perform the services required
hereunder by reason of mental or physical incapacity or accident or any other
cause that renders such non-performance excusable at law.
(b) The hampering or interruption of the operation of the Corporation's
business by force majeure or any other cause beyond the Corporation's control,
or the failure to achieve or sustain significant advertiser expenditures and/or
program ratings.
(c) The failure or refusal of Artist to render the services required
hereunder to the best of his ability as, when and wherever instructed by the
Corporation, except for any cause mentioned in subsection (a) or (b) of this
Section 17.
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(d) Artist's failure or inability to qualify for insurance at any time
during the original term hereof or during any option period.
(e) The breach by Xxxxx Productions or Artist of any material provision
of this agreement.
(18) No Obligation to Use Services. Subject to Corporation's obligation to
pay Xxxxx Productions the compensation specified in Section 4 (except as
otherwise provided in Sections 14 and 15) the Corporation shall not be obligated
to use Artist's services, and shall not be liable to Xxxxx Productions or Artist
in any way for failure to do so in whole or in part.
(19) Equitable Relief. It is acknowledged that the services the Artist is to
render to the Corporation are of a special and extraordinary character that
gives them a unique value; that the loss of such services could not be
reasonably or adequately compensated by damages in an action at law; and that a
breach by the Artist of any provision hereof would cause the Corporation
irreparable injury.
(a) Accordingly, the Corporation shall be entitled to injunctive or
other equitable relief to prevent such breach.
(b) Resort by the Corporation to such relief shall not be construed as
a waiver by it of any other rights it might have for damages or otherwise.
(c) If Xxxxx Productions or Artist at any time indicates to the
Corporation that the Artist does not intend to perform his obligations
hereunder, such indication shall constitute a breach hereunder.
(d) The Corporation's rights and remedies by reason of Artist's or
Xxxxx Productions's breach of obligations hereunder shall be cumulative; and the
exercise of any one of more of them shall not be exclusive of any other or
others the Corporation might have under this Agreement by law.
(20) Non-Disclosure of Confidential Information. Xxxxx Productions
acknowledges that the Artist will be given access to Confidential Information of
the Corporation which means all trade practices, plans advertising rate lists,
supplier lists, customer lists, marketing plans, financial information, and all
other compilations of information which relate to the business of the
Corporation, or any affiliate, customer or supplier of the Corporation, and
which the Corporation has not disclosed to the public, or which is not otherwise
generally available to the public. Except with the express prior written consent
by Corporation, Xxxxx Productions shall not, and shall cause Artist not to,
directly or indirectly, communicate, disclose or divulge to any person, or use
for his or its benefit or the benefit of any person, in any manner any
Confidential Information of the Corporation acquired during his or its
relationship with the Corporation, or any other confidential information
concerning the conduct and details of the business of the Corporation prior to
and after
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the date hereof, except as required in the course of rendering services to the
Corporation or as otherwise may be required by law.
(21) Compliance with Section 508 of the Communications Act of 1934. The
parties understand and agree that Xxxxx Productions shall cause Artist to comply
with the provisions of Section 508 of the Communications Act of 1934, as
amended. Without limiting the Corporation's right to terminate for any other
cause, the Corporation shall have the right, upon violation of this provision,
immediately to terminate this Agreement and the contractor relationship created
hereunder for cause.
(22) Right to Contract. Xxxxx Productions represents and warrants to the
Corporation that it has the full right and power to enter into this Agreement
and to cause Artist to perform as described herein; that it and Artist do not
now have, nor will at any time hereafter enter into, any contract or commitment
with any third party that will prevent or interfere with the full and complete
performance of its and Artist's obligations hereunder, or with the full exercise
and enjoyment by the Corporation of its rights hereunder.
(23) Relationship of Parties. The parties agree that Artist is acting as an
independent contractor hereunder in the furnishing of his services to the
Corporation. In connection therewith, Xxxxx Productions shall have and assume
full and exclusive responsibility for, and shall indemnify the Corporation
against, any and all union payments, employer and employee contributions, taxes,
penalties, interest and other sums arising under any federal, state or local
laws, or any collective bargaining agreement, now or hereafter in effect, or
otherwise in connection with services contemplated hereunder. Nothing herein
contained shall be deemed to constitute a partnership between, or a joint
venture by, or any agency relationship between, or an employment relationship
between the parties. Neither party shall hold itself or himself out contrary to
the terms of this clause, by any means whatsoever. Neither party shall be bound
by, or become liable for, any representation commitment, act or omission
whatsoever of the other contrary to the provisions hereof.
(24) Covenant Not to Compete.
(a) During the term hereof and for a period of six (6) months after
this Agreement or the contractor relationship created hereunder has been
terminated for any reason (whichever occurs later), with or without a cause,
Artist shall not to compete directly or indirectly with the Corporation as an
on-air personality, officer or director of, as a consultant to, or as an
investor in any Spanish-language radio station, Spanish-language radio network
or Spanish-language radio station group operator (for example, and not by way of
limitation, Heftel or Spanish Broadcasting Systems) in any market in which the
Program has been broadcast, nor shall Xxxxx Productions or Artist solicit,
interfere with or divert any other person who was, during the term hereof or the
six (6) month period thereafter, an artist, sponsor, on-air personality,
salesman, agent or other representative of the Corporation.
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(b) In view of the Artist's substantial experience in the radio
broadcasting environment and the nature of radio broadcasting, it may be
difficult or impossible for the Corporation to show irreparable injury resulting
from a breach of the covenant not to compete set forth in this Agreement. Xxxxx
Productions agrees therefore that in the event of any breach of the aforesaid
covenant, irreparable injury to the Corporation will be presumed.
(c) Xxxxx Productions agrees that, in the event of any breach by Xxxxx
Productions of the covenant not to compete set forth in this Agreement, the six
(6) month period of noncompetition shall begin at such time as a finding of a
breach is made by a court of law.
(d) If it shall be determined that the duration or geographical limit
of any restriction contained in this covenant is unenforceable, it is the
intention of the parties that the restrictive covenant set forth herein shall
not hereby be terminated but shall be deemed amended to the extent required to
render it valid and enforceable, such amendment to apply only with respect to
the operation of this Section 24.
(25) Notices. All notices hereunder shall be in writing, and shall be served
by registered mail, telegraph or cable, duly addressed to the parties at their
respective addresses hereinabove given. Either party may specify a different
address for such purpose by notice given to the other in the same manner.
If to the Corporation: Xxxxxxx X. Xxxxx
Radio Unica Corp.
0000 X.X. 00xx Xxxxxx
Xxxxx, Xxxxxxx 00000
If to the Artist: Xxxxx Productions
Attention: Xxxxx Xxxxxx
0000 X.X. 000xx Xxxxxx
Xxxxx, Xxxxxxx 00000
(26) Clause Headings. The headings of the clauses in this agreement are
solely for the purpose of convenience. They are not a part hereof, and shall not
be used in the construction of any provision.
(27) Construction. This Agreement shall be construed in accordance with the
laws of the State of Florida.
(28) Waiver. No waiver by either party of the breach of any provision of
this agreement shall be deemed to be a waiver of any preceding or succeeding
breach of the same or similar nature.
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(29) Modification. This agreement may not be changed or modified, nor may
any provision hereof be waived, except by an agreement in writing signed by the
party against whom enforcement of the change or modification is asserted.
(30) Assignment, Etc. This agreement shall ensure to the benefit of, and
shall be binding on, the Corporation's successors and assigns.
(31) Attorney's Fees. If any litigation, including arbitration, arises as a
result of the terms, conditions or provisions of this Agreement, the prevailing
party shall be entitled to recover reasonable attorneys' fees and paralegals'
fees at both the trial and appellate levels, as well as all costs and expenses.
(32) Agreement Complete. This agreement constitutes the entire understanding
between the parties. All previous representations and undertakings, whether oral
or written, have been merged herein.
IN WITNESS WHEREOF, the parties have executed this agreement this 5th day of
June, 1998.
RADIO UNICA NETWORK, INC.
By: /s/ Xxxxxx X. Xxxxxx
--------------------------------------
Xxxxxx X. Xxxxxx, CFO
XXXXX PRODUCTIONS, a Florida corporation
By: /s/ Xxxxx Xxxxxx
--------------------------------------
Xxxxx Xxxxxx
AGREED TO AND ACKNOWLEDGED BY:
/s/ Xxxxx Xxxxxx
-------------------------------
Xxxxx Xxxxxx
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