EXHIBIT 10.2
THIS AGREEMENT made as of the 28 day of February 28, 2002 by and between Radio
Unica Communications Corp., a Delaware corporation (the "Company"), and Xxxx X.
Xxxxxxx (the "Executive").
W I T N E S S E T H
WHEREAS, the Executive is a key employee of the Company; and
WHEREAS, the Company deems it important and appropriate to assure
to itself the continued availability of certain services and
assistance of the Executive; and
WHEREAS, the Executive is willing to perform certain services
for the Company, provided the Executive is appropriately
compensated in the event his employment by the
Company terminates under the circumstances
set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
herein contained, the Company and the Executive agree as
follows:
1. If during the term of this Agreement:
(a) The Executive's employment with the Company terminates, the
Executive will be entitled to the benefits provided in Section 3(a) hereof,
unless such termination is (i) due to Executive's death or Disability (as
hereinafter defined), (ii) by the Company for Cause (as hereinafter defined), or
(iii) by the Executive other than for Good Reason (as hereinafter defined); or
(b) Within one year after the occurrence of a Change in Control (as
defined in the Company's 1998 Stock Option Plan, as in effect from time to time;
provided, however, that such definition may not be amended to adversely affect
the Executive without his prior consent) the Executive's employment with the
Company terminates, the Executive shall be entitled to the benefits provided in
Section 3(b) hereof, unless such termination is (a) due to the Executive's death
or Disability, (b) by the Company for Cause or (c) by the Executive other than
for Good Reason.
2. When used in this Agreement:
a. "Cause" shall mean the material and intentional continued
failure by the Executive to substantially perform his duties as an employee of
the Company (other than by reason of Disability or for Good Reason) after a
written demand for substantial performance is delivered to the Executive by the
Board of Directors of the Company, which demand specifically identifies such
failure and provides a reasonable time in which to perform; actual (as
distinguished from statutory) fraud; intentional misappropriation of material
property of the Company to the Executive's own use; embezzlement of material
property from the Company; or substantial damage to property of the Company
which property is material to the Company's operations and which damage results
from an action by the Executive which intentionally causes such damage. The
burden of proving Cause shall be on the Company. It is specifically agreed that
Cause shall not include any act of commission or omission by the Executive in
the exercise of the Executive's business judgment as an employee of the Company
or as a member of the Board of Directors of the Company.
b. "Disability" shall mean the Executive's incapacity due to
physical or mental illness resulting in his absence from full-time performance
of his functions for a period in excess of six consecutive months.
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c. "Good Reason" shall mean, without the Executive's express
written consent, any of the following:
i. the assignment to the Executive of duties inconsistent
with or of a lesser nature than his position immediately prior to the Change in
Control or a significant reduction in the nature of the Executive's
responsibility;
ii. a reduction of the Executive's annual compensation as
in effect on the date hereof or as the same may be increased from time to time
or a material reduction in the benefit or compensation plans in which the
Executive participates immediately prior to the Change in Control; iii. the
relocation of the Executive's office to a location more than 50 miles from the
area where such offices are located immediately prior to the Change in Control;
or iv. the Company shall have given notice pursuant to Section 5 hereof that it
does not wish to extend the term of this Agreement.
3. (a) Following the termination of the Executive's employment as
provided in Section 1(a) hereof, the Company shall pay or provide to the
Executive the following benefits:
i. a lump sum severance payment no later than five days
after such termination, in an amount equal to one times the Executive's annual
base salary then in effect; and
ii. one times the annual average of the Executive's bonuses
attributable to the two calendar years preceding termination.
(b) Following the termination of the Executive's employment as
provided in Section 1(b) hereof, the Company shall pay or provide to the
Executive the following benefits:
iii. a lump sum severance payment no later than five days
after such termination in an amount equal to one times the Executive's annual
base salary then in effect or, if greater, such salary in effect immediately
prior to the Change in Control; and
iv. one times the annual average of the Executive's bonuses
attributable to the two calendar years preceding termination.
(c) Following the termination of the Executive's employment as
provided in Section 1(a) or 1(b) hereof, in addition to the amounts set forth in
Section 3(a) or 3(b), the Company shall provide to the Executive the following
additional benefits:
(i) all options or shares of stock which have been granted or
issued to the Executive by the Company which are not vested or are subject to
restrictions at the time of termination shall vest immediately upon such
termination and such restrictions shall lapse;
v. for a period of one year after termination, the Company
shall, at its expense, provide the Executive with life, disability, medical and
group health insurance benefits substantially similar to that which the
Executive was receiving immediately prior to termination or Change in Control,
whichever is better.
(d) If the Executive shall resort to any action or proceeding to
recover any amount from the Company which the Company has failed to pay as
provided in this Section 3 and the Executive shall be awarded any amounts in any
such action or proceeding, the Company shall promptly pay and reimburse to the
Executive all of the costs and expenses (including attorneys' fees) incurred by
the Executive in and with respect to such action or proceeding.
4. The Executive shall not be required to mitigate the amount of
any payment provided for in Section 3 by seeking other employment or otherwise,
nor shall the amount of any payment or benefit provided for in Section 3 be
reduced by any compensation earned by the Executive as the result of the
employment by another employer, by retirement benefits, by offset against any
amount claimed to be owed by the Executive to the Company or otherwise.
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5. This Agreement shall commence on the date hereof and shall
continue in effect for one year from the date hereof; provided, however, that
commencing on the anniversary of this Agreement and each anniversary thereafter,
this Agreement shall automatically be extended for one additional year, unless
not later than six months prior to any anniversary, the Company shall have given
notice to the Executive that it does not wish to extend this Agreement; and
provided, further, that if a Change in Control of the Company shall have
occurred during the original or extended term of this Agreement, this Agreement
shall continue in effect for a period of two years after the Change in Control
has occurred. In no event, however, shall the term of this Agreement extend
beyond the Executive's 65th birthday.
6. The terms of this Agreement shall supersede and replace any
severance agreement with the Executive may have with the Company and upon
execution of this Agreement any such other severance agreement shall be
terminated and of no further force or effect. Nothing in this Agreement shall be
construed to be a commitment or guarantee of future employment with the Company.
7. a. The Company will require any successor (whether direct or
indirect, by purchase, merger, consolidation or otherwise) to all or
substantially all of the business and/or assets of the Company 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
had taken place. Failure of the Company to obtain such assumption and agreement
prior to the effectiveness of any such succession shall be a breach of this
Agreement and shall entitle the Executive to compensation from the Company in
the same amount and on the same terms to which the Executive would be entitled
hereunder if the Executive terminates his employment for Good Reason upon a
Change in Control.
b. This Agreement shall inure to the benefit of and be
enforceable by the Executive's personal or legal representatives, executors,
administrators, heirs, distributees, devises and legatees. If the Executive
should die while any amount would still be payable to him hereunder if he had
continued to live, all such amounts, unless otherwise provided herein, shall be
paid in accordance with the terms of this Agreement to the Executive's devisee,
legatee or other designee or, if there is no such designee, to his estate.
8. For the purpose of this Agreement, notices and all other
communications provided for in the Agreement shall be in writing and shall be
deemed to have been duly given when personally delivered, when received if sent
by recognized commercial courier service or when mailed by United States
certified or registered mail, return receipt requested, postage prepaid,
addressed to the respective addresses set forth below, or to such other address
as either party may have furnished to the other in writing in accordance
herewith, except that notice of change of address shall be effective only upon
receipt:
To the Company:
Radio Unica Communications Corp.
0000 X.X. 00xx Xxxxxx
Xxxxx 000
Xxxxx, Xxxxxxx 00000
Attention: Chairman of the Board
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To the Executive:
Xxxx X. Xxxxxxx
000 XX 00XX XX #000
Xxxxx, XX 00000
9. 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 such officer as may be duly authorized by the
Board of Directors. 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 shall be deemed a waiver of
similar or dissimilar provisions or conditions at the same or at any prior or
subsequent time. The validity, interpretation, construction and performance of
this Agreement shall be governed by the laws of the State of Delaware without
regard to its conflicts of law principles.
10. The invalidity or unenforceability of any provision of this
Agreement shall not affect the validity or enforceability of any other provision
of this Agreement, which shall remain in full force and effect.
11. This Agreement may be executed in several counterparts, each
of which shall be deemed to be an original but all of which together will
constitute one and the same instrument.
12. This Agreement sets forth the entire agreement of the parties
hereto in respect of the subject matter contained herein and supersedes all
prior agreements, promises, covenants, arrangements, communications,
representations or warranties, whether oral or written, by any officer, employee
or representative of any party hereto; and any prior agreement of the parties
hereto in respect of the subject matter contained herein is hereby terminated
and canceled.
13. Any controversy or claim arising out of or relating to this
Agreement, the interpretation thereof, or the breach therefore, shall be
submitted to binding arbitration by a dispute resolution process administered by
JAMS or any other mutually agreed upon arbitration firm involving final and
binding arbitration conducted in Miami, Florida.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
as of the day and year first above written.
Radio Unica Communications Corp.
By:
--------------------------------
Xxxxxx X. Xxxxxx, EVP/CFO
--------------------------------
Xxxx X. Xxxxxxx
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