Exhibit 10.19
AGREEMENT
This Agreement (the "Agreement") dated as of January 15, 1998 is entered
into by and between Radio Unica Corp. ("RUC") having a business address at 0
Xxxxxxxx Xxxxx, Xxxxx 000, Xxxxx Xxxxxx, Xxxxxxx 00000 and Xxxxx Xxxxx
("Contractor") having an address at 00000 X.X. 00xx Xxxxxxx, Xxxxx, Xxxxxxx
00000.
The parties agree as follows:
Section 1. Term: RUC agrees to retain Contractor as an independent
contractor to provide the Services (as defined in Section 2 below) upon the
terms and conditions set forth herein from November 17, 1997 through the end of
the 1998 World Cup Event (as defined in Section 2 below) signified by its
closing ceremonies, plus a time period thereafter reasonably necessary to
finalize 1998 World Cup Event matters that are within or related to the Services
hereunder (the "Ending Date"), unless sooner terminated pursuant to the terms
set forth herein (the "Term"). It is acknowledged and agreed that during the
15-day period immediately following the closing ceremonies, Contractor will be
on vacation and will not be available to provide Services during such period. By
way of estimation and not limitation, the Ending Date is estimated to occur on
or prior to August 31, 1998. Contractor hereby agrees to serve in such capacity
and perform the Services during the Term upon the terms and conditions set forth
herein.
Section 2. 1998 World Cup Event/Services:
(a) The 1998 World Cup Soccer Championship Games is a series of soccer
matches (each, a "Match" and collectively, the "Matches"), together with opening
and closing ceremonies for the matches and the Sorteo (each, a "Ceremony" and
collectively, the "Ceremonies"), scheduled to take place in France during the
period from June 10, 1998 through July 12, 1998, except for the Sorteo which is
scheduled to take place during December 1997 (collectively, the "1998 World Cup
Event"). The 1998 World Cup Event will be organized and overseen by the
Federation Internationale de Football Association ("FIFA"). Organizacion de la
Television Iberoamerica ("OTI") owns certain rights to the 1998 World Cup Event,
certain of which were granted by OTI to Univision Network Limited Partnership
("Univision") and certain of which (namely, exclusive Spanish-language radio
broadcast rights in the United States, excluding its territories and
possessions, to the 1998 World Cup Event, the "Radio Rights") were granted by
Univision to RUC under a Radio Broadcasting Rights Agreement (the "Broadcasting
Rights Agreement") between RUC and Univision dated as of July 30, 1997.
(b) (i) During the Term, Contractor shall provide the following services
(the "Services") to RUC:
(A) Services as producer and host of RUC's Spanish-language radio
broadcasts of each of the Matches and Ceremonies (except for any Matches or
Ceremonies that RUC, in its sole discretion, may choose not to broadcast) using
the Basic Feed, as defined in the Broadcasting Rights Agreement, for the Matches
and the Ceremonies that RUC so chooses to broadcast (collectively, the "Radio
Broadcasts"), as further described in subpart (b)(ii) below;
(B) Scheduling, developing, organizing and conducting any and all
activities necessary in order to pre-produce, produce, host and broadcast the
Radio Broadcasts in accordance with this Agreement and the Broadcasting Rights
Agreement (in particular, and not by way of limitation, in accordance with
Section 1.4 of the Broadcasting Rights Agreement which requires compliance with
restrictions and limitations that may be imposed by FIFA, OTI, the local
sponsoring organization(s) and the host broadcasting organization(s), including,
without limitation, those set forth in Exhibit B to the Broadcasting Rights
Agreement);
(C) Coordinating with FIFA, OTI and Univision, and all other relevant
organizations or persons, as necessary to facilitate and complement the Radio
Broadcasts, including, without limitation, attending necessary planning sessions
with those organizations or persons;
(D) Retaining, directing and supervising staff members, each a "Staff
Member," as necessary and appropriate to assist in connection with the Services
hereunder (such Staff Members will provide services in an independent contractor
relationship with RUC and will be compensated by RUC, subject to subpart (b)
below);
(E) Providing or causing to be provided necessary and appropriate
technical resources for the Radio Broadcasts; and
(F) Providing any other services requested by RUC in connection with,
or as necessary and appropriate to accomplish, pre-production, production and
hosting of the Radio Broadcasts by Contractor, and generally, in connection
with, the Radio Broadcasts.
Subject to the acknowledgments, agreements, representations and warranties
regarding the Telemundo Contract referenced in Section 9 below, Contractor shall
be available at such times and places as RUC shall designate in order to provide
the Services hereunder, including, without limitation, the times and places for
the Matches and Ceremonies that RUC chooses to broadcast. Contractor shall
provide all Services in accordance with all terms of, and shall not act in a
manner that violates any terms of, this Agreement or the portions of the
Broadcasting Rights Agreement attached hereto as Exhibit A, and shall be
responsible for any costs or losses to RUC that may arise from any such
violation. Contractor acknowledges his receipt, review and understanding of said
portions of the Broadcasting Rights Agreement.
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(ii) Contractor shall provide services as producer and host in person
at each of the Matches and Ceremonies that RUC chooses to broadcast, therefore
requiring Contractor's attendance in person at each of those events. More
specifically, Contractor shall, for each of the Radio Broadcasts, use the Basic
Feed, as defined in the Broadcasting Rights Agreement, to produce and edit for
radio broadcast by RUC an audio play-by-play description of the subject Match or
Ceremony containing voice-over descriptions and to incorporate in such
broadcasts the audio soundtrack of the Basic Feed containing background noise,
but not the video signal or any play-by-play or other narrative descriptions
contained in the Basic Feed or provided by Univision, as described in Section
1.2(c) of the Broadcasting Rights Agreement. Contractor shall incorporate into
any such broadcast(s) material requested by RUC, including, without limitation,
references by Contractor to certain commercial sponsors, advertisers or entities
or events related to RUC or the Matches, Ceremonies or related events or
drop-ins, voice-overs, vignettes or promotional mentions by Contractor that
refer to any of such parties or events (and subject to the limited prior
approval rights of Contractor with respect to certain of such references, as set
forth in Section 5 below).
(c) Any decisions with respect to retaining and compensating Staff Members
shall require the prior written consent of RUC's Chief Financial Officer or his
appointee and any retained Staff Member shall be required to sign an independent
contractor agreement with RUC in a reasonable form provided by RUC setting forth
the terms of retention.
(d) RUC shall pay all costs and expenses incurred by Contractor in
connection with his Services hereunder, so long as (i) such costs and expenses
are for items identified in the 1998 World Cup Event budget (the "Budget")
prepared by Contractor, attached hereto as Exhibit B and incorporated herein,
and do not exceed the amounts set forth in the Budget for said items or (ii)
such costs and expenses are agreed to in writing by RUC's Chief Financial
Officer or his appointee prior to Contractor's incurring the costs and expenses.
As between RUC and Contractor, Contractor shall be solely responsible for the
payment of any costs and expenses incurred other than as set forth this Section
2(c).
Section 3. Compensation:
(a) RUC shall pay to Contractor as compensation for his Services hereunder
the sum of $82,000 (the "Compensation Amount"), payable as set forth in Section
3(b) below.
(b) Conditioned upon Contractor's full and faithful performance of all
terms of this Agreement to RUC's reasonable satisfaction, the Compensation
Amount shall be payable to Contractor as follows:
(i) $42,000 on or before January 31, 1998;
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(ii) $20,000 on or before July l, 1998; and
(iii) $20,000 on or before August 15, 1998.
(c) RUC shall use its good faith efforts to make available to Contractor
tickets collectively valued at approximately $2,000, which tickets will be
purchased by Contractor at his sole cost.
Section 4. Independent Contractor Status:
(a) It is expressly understood and agreed that Contractor shall act as an
independent contractor and shall perform the Services under this Agreement as an
independent contractor. The parties intend for this Agreement to create an
independent contractor relationship. Nothing herein shall be construed as
creating a joint venture, partnership, employment or agency relationship between
RUC and Contractor. Accordingly, except as expressly provided in this Agreement,
no party to this Agreement has the authority, implied, apparent or expressed, to
lawfully bind the other with respect to any matter.
(b) RUC is interested in the results to be achieved by this Agreement, and
Contractor will have the power to select the means and methods of performing the
work required hereunder, with instructions from RUC as to the end results to be
accomplished. Contractor acknowledges that he is not an employee, agent or
servant of RUC. RUC shall not withhold, report or pay so-called withholding
taxes with respect to the compensation payable hereunder (such taxes shall
include, without limitation, federal income taxes, federal social security taxes
and Florida unemployment insurance taxes). Notwithstanding the foregoing, should
RUC be subjected to any expense or liability by reason of such failure to
withhold, report or pay such taxes (including, without limitation, penalties,
interest or attorneys' fees), Contractor agrees that he will indemnify and hold
RUC harmless therefrom; accordingly, Contractor shall, upon demand, promptly
reimburse RUC for all such expenses. Contractor will be provided with a 1099
Form or other form required by the applicable state or federal authorities with
respect to Contractor's compensation under this Agreement.
(c) Pursuant to the Florida Worker's Compensation Act, RUC will not provide
worker's compensation insurance to the Contractor. It is understood that RUC
does not agree to use Contractor exclusively. Contractor shall not be eligible
for participation in any of RUC's employee or fringe benefit programs,
including, without limitation, profit sharing, vacation, disability, retirement,
deferred compensation, and medical or disability insurance that RUC may maintain
for its employees.
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Section 5. Ownership of and Rights to Radio Broadcasts and 1998 World Cup
Event Materials: Contractor acknowledges and agrees that he shall have no
ownership interest in the Radio Broadcasts, the Radio Rights or any 1998 World
Cup Event trademarks or 1998 World Cup Event materials created or owned by RUC,
or any portion thereof. Said items shall be owned by RUC, and RUC shall have the
right to exploit any or all of said materials in any form, manner or media
during and after the Term, as between the parties hereto, in RUC's sole
discretion, without limitation and without any further consideration to
Contractor. Contractor acknowledges that his name, voice, performances and
services hereunder and the results and proceeds of those performances and
services may be so exploited by RUC for profit or otherwise by any means or
method. Contractor hereby acknowledges that RUC is the owner of (a) said results
and proceeds, (b) the right to use and to permit others to use Contractor's
name, voice, and biographical material for and in connection with use of said
results and proceeds (it being understood that said right is exclusive to RUC
only as to said result and proceeds) and (c) all rights of every kind and nature
in and to said results and proceeds. In the event that RUC wishes to use said
materials and results and proceeds in connection with a commercial sponsor,
advertiser or other party, RUC shall have the right, in its sole discretion, to
do so; provided that should Contractor be asked to provide additional services
or appearances specifically in connection with said sponsor, advertiser or other
party, then Contractor's prior approval and agreement to said additional
services and appearances shall be required and shall not be unreasonably
withheld. The parties acknowledge and agree that the references mentioned in the
last sentence of Section 2(b)(ii) above shall not constitute "additional
services or appearances specifically in connection with the sponsor, advertiser
or other party," as such phrase is used in the immediately preceding sentence,
unless such references are in the form of pre-recorded commercial advertisements
by Contractor for a sponsor, advertiser or other party that are greater than
thirty (30) continuous seconds in length, which advertisements are aired during
advertising time or commercial breaks, not within the context of a Match or
Ceremony broadcast.
Section 6. Termination:
(a) RUC may terminate this Agreement at any time during the Term for Cause
upon notice thereof to Contractor. For the purposes of this Agreement, "Cause"
shall mean (i) cancellation of the 1998 World Cup Event or RUC's right to
broadcast the Matches and Ceremonies for reasons outside the control of RUC,
(ii) Contractor's willful misconduct in the performance of (or failure or
refusal to perform) the Services hereunder, including, without limitation,
pre-production, hosting or production services, or breach of any term of this
Agreement; (iii) Contractor's fraudulent, reckless, immoral or unlawful behavior
or occurrence of any of the circumstances identified in Section 6(b) below
whether or not in connection with his independent contractor relationship
hereunder or the Services hereunder or (iv) Contractor's negligent performance
of the Services hereunder; (v) the circumstance referenced in the final sentence
of Section 9 below or (vi) a material change in Contractor's voice such that it
is no
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longer appropriate or desirable for radio broadcasts. This Agreement may
also be terminated by RUC if Contractor fails to perform his Services for a
period in excess of twenty (20) days, whether or not consecutive, during the
Term, whether as a result of disability or otherwise.
(b) Contractor shall, during the Term, conduct himself with due regard to
public morals and conventions. If, during the Term, Contractor (i) is charged by
a governmental authority with the commission of a felony or with any offense
involving moral turpitude, (ii) performs any act or makes any oral or written
statement which tends to place RUC or its employees or agents in public
ridicule, controversy or contempt or (iii) performs any act which causes, or can
reasonably be anticipated to cause, substantial impairment of the commercial
value to RUC of the Services hereunder, then such circumstance shall constitute
"Cause" under Section 6(a)(iii) above.
(c) Upon termination of this Agreement under this Section 6, RUC's sole
obligation following termination shall be to pay to Contractor a prorated amount
of the Compensation Amount, calculated as follows. Solely for purposes of
proration of the Compensation Amount hereunder, the parties acknowledge and
agree that the Compensation Amount of $82,000 is compensation for a term from
November 17, 1997 through August 31, 1998 (the "Time Period") and that the
prorated amount payable to Contractor for Services hereunder provided prior to
termination under this Section 6 or otherwise shall be equal to the Compensation
Amount multiplied by (the number of days in the Time Period prior to termination
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divided by the total number of days in the Time Period), the "Prorated Amount."
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If the Prorated Amount exceeds the Compensation Amount received by Contractor
prior to any such termination, then said excess amount shall be payable to
Contractor by RUC upon termination. If the Prorated Amount is less than the
Compensation Amount received by Contractor prior to any such termination, then
the difference between said amounts shall be payable by Contractor to RUC upon
termination.
(d) Consistent with the provisions set forth in this Section 6 above that
provide for early termination of this Agreement, this Agreement is not intended
to and does not guarantee or assure RUC's engagement or retention of Contractor
through the conclusion of the 1998 World Cup Event and any such guarantee or
assurance is hereby expressly disclaimed.
(e) Any termination in accordance with this Section 6 is in addition to any
other rights the terminating party may be entitled to by the terms of this
Agreement or by law.
Section 7. Indemnification:
(a) Contractor hereby agrees to indemnify and hold harmless RUC and its
respective directors, officers, agents and employees, from and against any
damages, losses, claims, suits or liabilities or actions, and reasonable
expenses as incurred (including the expense of
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investigation and preparation and reasonable fees and disbursements of RUC and
such persons' counsel) resulting from Contractor's gross negligence or willful
misconduct hereunder or Contractor's breach of this Agreement. The foregoing
agreement shall be in addition to any rights that RUC or any indemnified person
may have at common law or otherwise.
(b) RUC hereby agrees to indemnify and hold harmless Contractor from and
against any damages, losses, claims, suits or liabilities or actions, and
reasonable expenses as incurred (including the expense of investigation and
preparation and reasonable fees and disbursements of Contractor and his counsel)
resulting from RUC's gross negligence or willful misconduct hereunder or RUC's
breach of this Agreement. The foregoing agreement shall be in addition to any
rights that Contractor may have at common law or otherwise.
Section 8. Confidentiality:
(a) Contractor acknowledges and agrees that (i) all of RUC's Confidential
Information (as defined below) is the property of RUC, (ii) Contractor shall
have no right to use any Confidential Information except in connection with the
business of RUC and (iii) Contractor will have access to and will use the
Confidential Information in connection with his relationship with RUC hereunder.
(b) Contractor shall not, directly or indirectly, use, disseminate or
disclose to third parties any Confidential Information. Upon expiration or
termination of the Term, all documents, records and other information containing
Confidential Information shall be returned to RUC.
(c) For the purposes of this Agreement, "Confidential Information" shall
mean any non-public (so long as the information was not made public through
release of the information by Contractor to third parties in violation of this
Section 8) or proprietary information or trade secrets of RUC or any affiliate
of RUC, including without limitation, personnel information, financial
information, customer lists, rate cards, revenue data, supplier lists, ownership
information, plans, analyses, trade secrets, licenses, copyrights and
trademarks, management agreements, know-how, marketing plans, leases and
computer software and any other processed or collected data.
(d) Contractor acknowledges and covenants that any Confidential Information
he has acquired or in the future acquires for or with respect to RUC will be
received and held in confidence and as a fiduciary with respect to RUC.
Contractor hereby assigns to RUC any rights he may have or acquire in RUC
Confidential Information in performance of his Services hereunder.
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Section 9. Representations and Warranties: Contractor represents and
warrants that he has the full authority and right to enter into this Agreement
and the full authority and right to perform the Services under this Agreement.
Contractor further represents and warrants that he is proficiently qualified and
skilled to perform the Services under this Agreement. RUC acknowledges that
Contractor is, as of the date of this Agreement, and may throughout the Term be,
a party to a contract with Telemundo (the "Telemundo Contract") to provide
services as a television program host. RUC acknowledges and agrees that
Contractor will be required to concurrently provide services under the Telemundo
Contract and this Agreement and that Contractor will be required to resolve
conflicts that may arise in connection therewith. Contractor represents and
warrants to RUC, as a material inducement to RUC entering into this Agreement,
that he has informed Telemundo of the existence, scope and nature of this
Agreement, that Telemundo does not object to Contractor's Services hereunder,
that the Telemundo Contract does not prohibit Contractor from entering into this
Agreement or providing Services hereunder and that such conflicts and the
resolution thereof will not materially impair or interfere with Contractor's
ability to provide Services hereunder (in the event that the conflicts do so
materially impair or interfere, in RUC's sole discretion, such circumstance
shall be deemed "Cause" under Section 6(a) hereof). It is understood and agreed
that, except in the event of a conflict involving non-appearance for a Match or
Ceremony broadcast, an isolated, non-repeated conflict shall not constitute such
a material impairment or interference.
Section 10. Survival; Injunctive Relief: The provisions of Sections 4, 5, 7
and 8 above and Sections 12 and 13 below shall survive termination of this
Agreement. In the event Contractor breaches the provisions of Sections 8 above,
in addition to the other remedies at law or in equity that may be available to
RUC, Contractor acknowledges and agrees that RUC shall have grounds for
injunctive relief in addition to any other relief that may be available to RUC.
Section 11. Entire Agreement; Waiver; Severability: This Agreement
constitutes the entire agreement between the parties with respect to the subject
matter hereof. All other previous agreements or writings are therefore
superseded. Any waiver of a party's breach of any provision of this Agreement
shall not be taken, construed, or held to be a waiver for any breach thereafter
or any other provision hereof. Wherever possible, each provision of this
Agreement will be interpreted in such manner as to be effective and valid under
applicable Florida law. However, if any provision of the Agreement is held to be
invalid, illegal or unenforceable, the remaining provisions shall remain in
force as if the invalidated provision did not exist.
Section 12. Jury Waiver; Attorneys' Fees: Each party hereto knowingly,
voluntarily and intentionally waives the right that it may have to a trial by
jury with respect to any actions arising out of or in connection with this
Agreement or Contractor's independent contractor relationship hereunder. In any
action at law or in equity to enforce
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or interpret the terms of this Agreement, the prevailing party shall be entitled
to reasonable attorneys' and paralegal fees, costs and expenses, including fees
and costs at the appellate level, in addition to any other relief to which it
may be entitled.
Section 13. Choice of Law, Venue, Notices: This Agreement shall be governed
by and construed in accordance with the laws of the State of Florida. The venue
for any actions arising out of this Agreement shall be courts located in Dade
County, Florida. Any written notices hereunder shall be sent to the respective
parties at the addresses first set forth above.
Section 14. Modification; Assignment: No modification of any terms of this
Agreement shall be effective unless in writing and signed by both parties to
this Agreement. This Agreement for personal services may not be assigned by
Contractor but may be assigned by RUC, without limitation.
Section 15. Counterparts: This Agreement may be executed and delivered in
two or more counterparts, each of which shall be deemed to be an original and
all of which, taken together, shall be deemed to be one agreement.
Radio Unica Corp.
By: /s/ Xxxxxx X. Xxxxxx /s/ Xxxxx Xxxxx
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Xxxxx Xxxxx
Date: 1/15/98 Date: 1-14-98
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