EXHIBIT 99.2
SEPARATION AGREEMENT
THIS SEPARATION AGREEMENT ("Agreement") is entered into as of January
3, 2002 ("Effective Date"), among Sunrise Television Corp., a Delaware
corporation (together with its successors, the "Company"), STC Broadcasting,
Inc., a Delaware corporation (together with its successors, "STC"), and Xxxxx X.
Xxxx, his heirs, administrators, personal and legal representatives, and
executors (collectively, "Executive").
WHEREAS, reference is made to the Executive Employment Agreement dated
as of February 28, 1997, among the Company, STC, and Executive, as amended by
that First Amendment to Executive Employment Agreement dated as of February 1,
2001 (as so amended, the "Employment Agreement");
WHEREAS, as of the Effective Date, (i) Executive desires to resign as
an employee of the Company and STC, and (ii) the parties hereto desire to
terminate the Employment Agreement in all respects;
WHEREAS, as of the WNAC Transfer Date (as defined in Section 1.1),
Executive desires to resign as an officer of the Company and STC; and
WHEREAS, this Agreement reflects the terms under which Executive will
separate from the Company and STC.
NOW, THEREFORE, in consideration of the foregoing premises, the mutual
covenants contained herein, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
hereby agree as follows:
ARTICLE I
Resignation and Termination
1.1 Resignation. Executive hereby resigns, effective as of the
Effective Date, as an employee of the Company. Executive agrees to resign on and
effective as of the WNAC Transfer Date as an officer of the Company, STC, and
each of their respective subsidiaries (collectively, "Related Entities") and as
a trustee from all employee benefit trusts associated with the Company, STC, and
other Related Entities. Executive shall (i) on or before the WNAC Transfer Date,
deliver to the Company a resignation in the form of EXHIBIT A and (ii) execute
and deliver one or more resignation letters or other documents evidencing such
resignations as may be reasonably requested from time to time by the Company or
STC. "WNAC Transfer Date" means the date of the closing of the transactions for
the transfer by LIN Television Corporation ("LIN") to a third person of all of
LIN's ownership interest in television broadcast station WNAC-TV, Providence,
Rhode Island, the result of which will be that LIN will no longer have an
attributable interest in television broadcast station WNAC-TV, Providence, Rhode
Island, as determined in accordance with the Communications Act of 1934, as
amended, and the rules and regulations thereunder. Notwithstanding any other
provision of this Agreement to the contrary, Executive shall be entitled to
resign as an officer of the Company, STC, and each Related Entity at any time
prior to the WNAC Transfer Date, if any of Stations (as defined below) are not
operated in substantially the same manner as it was prior to the Effective Date;
provided, however, that Executive shall, prior to tendering any resignation
prior to the WNAC Transfer Date, provide written notice to the Company of any
failure to
operate any Station in such manner and the Company shall have a period of ten
days after its receipt of such notice to cure such failure.
1.2 Termination of Employment Agreement. As of the Effective Date, the
Employment Agreement shall be terminated in all respects and shall be null and
void and of no further force and effect.
ARTICLE II
Consulting Fee and Severance Payment
2.1 Consulting Fee.
(a) The Company and STC shall cause to be paid to Executive,
as an independent contractor, for the period from the Effective Date
through June 30, 2002 (the "Consulting Period"), a total consulting fee
of $153,216 (the "Consulting Fee"); provided, however, that Executive
performs the obligations required to be performed by him during the
Consulting Period. The Consulting Fee shall be paid in six equal
monthly installments commencing on the Effective Date. Except in
respect of the benefits contemplated by Section 2.3 and the severance
payment described in Section 2.4, payment of the Consulting Fee shall
be in lieu of any other benefits or payments to which Executive might
be entitled (including vacation pay, commissions, bonuses, 401(k)
contributions, sick pay, and severance).
(b) Executive shall be solely responsible for paying and
withholding all federal and state taxes in respect of the Consulting
Fee and any penalties or assessments thereon. The Company or STC will
prepare a Form 1099 reflecting the Consulting Fee. Executive will
indemnify and hold harmless the Company, STC, each Related Entity, and
their respective officers, directors, and stockholders (each, an
"Indemnified Party") from and against any and all taxes, assessments,
fees, or other charges imposed by any governmental taxing authority,
including any interest, penalty, or addition thereto, imposed on any
Indemnified Party in respect of the Consulting Fee; provided, however,
that any such indemnity obligation shall be reduced by the amount of
any tax benefit realized by any Indemnified Party in respect thereof.
(c) During the Consulting Period, Executive shall be
reimbursed, at such intervals and in accordance with such Company
policies as may be in effect from time to time, for any and all
reasonable and necessary business expenses incurred by him for the
benefit of the Company, STC, or any Related Entity, including
reasonable travel expenses and other expenses approved by the Company's
board of directors from time to time.
2.2 Consulting Services. Executive shall remain available to the
Company and STC for up to 40 hours per week of consultation during the
Consulting Period (at no additional charge to the Company or STC) relating to
matters in which Executive was involved prior to his departure from the Company
and STC and such other transitional matters as may reasonably be requested by
the Company or STC within the scope of Executive's prior duties with the
Company, with such consultation to be provided by Executive at the times
reasonably requested by the Company or STC.
2.3 Benefits. The Company shall provide Executive coverage under the
Company's medical and dental plans on the same basis as previously provided for
the period ending June 30, 2002, and thereafter for a period of 18 months, as
required under the Employment Retirement Income Security Act of 1974, as
amended, or Section 4980 B of the Internal Revenue Code of 1986, as amended,
(collectively, the "COBRA Coverage"). Executive shall be solely responsible for
the costs of such COBRA Coverage after June 30, 2002 and shall deliver such
payments in the manner and as requested by the Company. Executive shall not be
entitled to any other benefits or programs offered to or made
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available to employees of the Company or STC, including, vacation pay,
commissions, bonuses, 401(k) contributions, sick pay, and severance (other than,
in the case of severance, as expressly provided in Section 2.4).
2.4 Severance. Concurrently herewith, the Company and STC shall deposit
into an escrow account with United Bank, an aggregate amount equal to $525,000,
which amount shall be held and disbursed in accordance with the Escrow Agreement
attached hereto as EXHIBIT B; provided, however, that Executive performs the
obligations required to be performed by him during the Consulting Period;
provided, further, that in the event Executive revokes the waiver granted by
Executive in Section 5.13, then Executive shall not be entitled to receive the
severance payment provided for in this Section 2.4. In the event of any failure
by Executive to perform any of his obligations hereunder (other than those in
Article III), the Company shall provide written notice to him of such failure
and Executive shall have a period of ten days after his receipt of such notice
to cure such failure.
2.5 Arbitration. The purpose of this Section 2.5 is to select the
procedures and forum for resolution of Claims (as defined below) and is not
intended to expand upon or add to any causes of action or damages to which the
parties may otherwise be entitled under applicable law. Other than injunctive
relief, any Claim shall (if not finally settled by mutual agreement of the
parties hereto within 60 days after written notice or as otherwise agreed by
such parties) be finally and exclusively settled by binding arbitration in St.
Petersburg, Florida. Such arbitration shall be conducted in accordance with
rules and procedures mutually agreed upon by all parties to such proceeding or
shall be conducted in accordance with the Commercial Arbitration Rules of the
American Arbitration Association ("AAA") then in effect, and the arbitration
shall be administered by the AAA office in St. Petersburg, Florida. Each notice
of the commencement of any arbitration proceeding shall be sent to the
applicable parties in accordance with the notice provisions set forth in Section
5.10. The arbitration shall be conducted by and before one neutral arbitrator
who is admitted to practice law. The arbitrator shall apply the substantive law
(and the law of remedies and statutes of limitation, if applicable) of the State
of New York as applicable to the Claims asserted, and the Federal Rules of
Procedure and the Federal Rules of Evidence shall apply. The arbitrator shall
(as he deems necessary or appropriate) have authority and jurisdiction to hold
pre-hearing conferences by telephone or in person and to hear and rule on
motions (including motions to dismiss or motions for summary judgment) and
pre-hearing disputes upon request of any party to the proceeding. Except as
expressly required by applicable law, the arbitrator shall limit his monetary
awards to compensatory damages (which may include a requirement that the losing
party bear attorneys' fees and costs of the arbitration proceeding) and shall
not award punitive or exemplary damages of any kind. The arbitrator shall render
a written opinion embodying his final findings and awards. Such findings and
awards shall be final and binding on all parties to the applicable arbitration
proceeding and may be enforced in any court having jurisdiction over the parties
and subject matter. The parties hereto hereby submit to personal jurisdiction
before any arbitration tribunal empanelled pursuant to this Section 2.5 and,
solely for purposes of the enforcement of any arbitration award rendered
pursuant to this Section 2.5, to exclusive jurisdiction and venue in the federal
or Florida state courts located in St. Petersburg, Florida. "Claims" means any
claims, demands, causes of action, liabilities, losses, expenses, obligations,
actions, suits, or proceedings arising from or relating to this Agreement except
to the extent relating to any party's rights to seek equitable or injunctive
relief to enforce the provisions of Article III.
2.6 Office Closure. Executive acknowledges that the office of the
Company or STC located in St. Petersburg, Florida will be closed as soon as
practicable after the Effective Date; provided, however, that the Company shall
be responsible for providing Executive with such equipment, support, and
facilities as may be reasonably necessary for Executive to perform his duties
hereunder during the Consulting Period.
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2.7 Death of Executive. In the event Executive dies prior to the
expiration of the Consulting Period, (i) the obligation of the Company to pay
any additional amounts in respect of the Consulting Fee shall automatically
terminate, and (ii) the severance amount payable pursuant to Section 2.4 shall
be immediately paid to Executive's estate, administrator, heirs, or other legal
representatives.
ARTICLE III
Protective Covenants
3.1 Non-Competition.
(a) During the Consulting Period and for 18 months after the
termination of the Consulting Period, Executive shall not, directly or
indirectly, engage, participate, make any financial investment in, or
become employed by or render advisory or other services to or for any
person (other than the Company, STC, or Related Entities) having or
operating a television station within the Designated Market Areas or
DMA's (as defined by X.X. Xxxxxxx & Co. or its successor) of any of the
Stations (as defined below) (the "Non-Compete Markets") (any of the
foregoing activities being referred to herein as "Competitive
Activities"). The foregoing covenant in respect of Competitive
Activities shall not be construed to preclude Executive from (i) making
any investments (that are non-attributable interests under the rules,
regulations, or policies of the Federal Communications Commission) in
the securities of any person, whether or not engaged in competition
with the Company, STC, or any Related Entity, to the extent that such
securities are actively traded on a national securities exchange or in
the over-the-counter market in the United States or any foreign
securities exchange and such investment does not exceed one percent of
the issued and outstanding shares of such person or give Executive the
right or power to control or participate directly in making the policy
decisions of such person; (ii) from and after the first anniversary of
the Effective Date having an ownership interest in, becoming employed
by, serving as an officer of, or rendering advisory or other services
to or for, any person or other business enterprise having or operating
a number of television stations in a number of different DMA's, one or
more of which are located within the Non-Compete Markets; provided,
however, that (A) no more than 25% of the broadcast cash flow generated
by such person or other business enterprise is derived from television
broadcast stations located within the DMAs of any of the Stations and
(B) Executive does not work directly for the television broadcast
stations located within the DMA's of any of the Stations. As used in
this Agreement, "Stations" means (i) WPRI, Providence, RI; (ii) WEYI,
Flint-Saginaw-Bay City, MI; (iii) WUPW, Toledo, OH; (iv) KRBC,
Abilene-Sweetwater, TX; (v) WDTN, Dayton, OH; (vi) KULY, Fargo-Valley
City, ND; (vii) KFYR, KMOT, KUMV, KQCD, Minot-Bismark-Dickinson, ND;
(viii) WNAC, Providence, RI; provided, however, the term "Stations"
shall not include any of the television broadcast stations that are
sold by the Company, STC, or any Related Entity.
(b) If any court of competent jurisdiction determines that any
portion of this Section 3.1 is invalid or unenforceable, the remainder
of this Section 3.1 shall not thereby be affected and shall be given
full effect without regard to the invalid provisions. If any such court
construes any of the provisions of this Section 3.1, or any part
thereof, to be unreasonable because of the duration or scope of such
provision, such court shall have the power to reduce the duration or
scope of such provision and to enforce such provision as so reduced.
3.2 Non-Solicitation. Except with the prior written consent of the
Company's board of directors, during the Consulting Period, and for 18 months
after the termination of the Consulting Period, Executive shall not, directly or
indirectly: (i) solicit, entice, persuade, or induce any employee of the
Company, STC, or any Related Entity to terminate his employment by the Company,
STC, or any Related Entity or to become employed by any person other than the
Company, STC, or a Related Entity;
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(ii) approach any such employee for any of the foregoing purposes other than
providing references upon request therefor; or (iii) authorize, solicit, or
assist in the taking of such actions by any third person. This Section 3.2 shall
not apply to corporate employees located in the St. Petersburg, Florida or
Wichita, Kansas offices or Xxxxx XxXxxxxx.
3.3 Non-Disparagement. Each party hereto shall not, directly or
indirectly, make or cause to be made any disparaging, denigrating, derogatory,
or negative, misleading, or false statement orally or in writing to any person,
including members of the investment community, press, and customers,
competitors, and advisors to any other party hereto, about (i) any other party
hereto or its respective officers, directors, stockholders, partners,
principals, accountants, employees, or members of its boards of directors, or
(ii) the business strategy or plans, policies, practices, or operations of such
party.
3.4 Return of Items and Documents. Executive shall return to the
Company or STC, as applicable, not later than the expiration of the Consulting
Period, all property of the Company, STC, or any other Related Entity, as
applicable, including (i) all business equipment provided for his use by the
Company, STC, or any other Related Entity, and (ii) all originals and all copies
of documents, notes, computer discs, tapes, or other tangible information of any
sort that he has in his possession or under his custody or control that are the
property of the Company, STC, or any other Related Entity that relate in any
manner to his duties at the Company, STC, or any other Related Entity, that are
not otherwise generally available to the public, and will not retain any copies
of such matter, provided, however, the materials required to be returned
pursuant to this Section 3.4 shall not include such property that the Company or
STC has authorized Executive to retain.
3.5 Confidential Information.
(a) Non-Disclosure. Executive shall not directly or indirectly
reveal, divulge, disseminate, disclose, publicize, or communicate to
any person, other than authorized officers, directors, and employees of
any Related Entity, in any manner whatsoever, any Confidential
Information (as defined below) of the Company, STC, any Related Entity,
or any of their respective officers, directors, partners, principals,
stockholders, or members (together, with each such entity, each a
"Protected Person") without the prior written consent of the Company.
(b) Definition. As used herein, "Confidential Information"
means information disclosed to or known by Executive as a direct or
indirect consequence of or through Executive's employment by, or
ownership of, or consulting relationship with, the Company or any other
Protected Person about any Protected Person, or its respective
businesses, products, and practices which information is not generally
known in the business in which such Protected Person is or may be
engaged and which information, if disclosed, would reasonably be
expected to be detrimental to any Protected Person. However,
Confidential Information shall not include under any circumstances any
information in respect of the foregoing matters that is (i) generally
available to the public from a source other than a Protected Person,
(ii) released in writing by such Protected Person to the public or to
persons who are not under a similar obligation of confidentiality to
such Protected Person and who are not parties to this Agreement, (iii)
obtained by Executive from a third party not under a similar obligation
of confidentiality to a Protected Person, (iv) required to be disclosed
by law, judicial or governmental process or order, administrative
proceeding, discovery, request, or similar process, (v) disclosed by
Executive in connection with the performance by him of his consulting
services hereunder or otherwise, or (vi) the subject of a written
waiver executed by the Company for the benefit of Executive.
(c) Terms of Agreement Confidential. Each party hereto shall
not disclose, disseminate, or publicize, and shall keep strictly
confidential this Agreement, the terms of this
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Agreement, and the negotiations leading to this Agreement, except to
the respective party's legal advisors, accountants, or financial
institutions (collectively "Advisors"). Except as otherwise provided
herein, each party hereto shall direct its Advisors not disclose to any
third person this Agreement, the terms of this Agreement, or the
negotiations leading to this Agreement. Nothing in this Section 3.5(c)
shall be deemed to prevent the disclosure of the terms of this
Agreement by any person if such disclosure is required to be made by
law, judicial or governmental process or order, administrative
proceeding, discovery request, or similar process; provided, however,
that the disclosing party first notifies (in accordance with Section
5.10) the other parties hereto of such disclosure request within five
days after receiving the request.
3.6 Enforcement. Executive hereby acknowledges and agrees that (i)
damages will not be an adequate remedy for Executive's breach of any of his
covenants contained in this Article III, and (ii) notwithstanding the
arbitration provision in Section 2.5, that the Company, STC, and any Related
Entity, as applicable, shall be entitled to resort to a court of equity to
enforce any provision of this Article III by injunctive and/or other equitable
relief for any such breach, without the posting of any bond or other security.
ARTICLE IV
Mutual General Releases and Covenants Not to Xxx
4.1 Release and Covenant Not to Xxx in Favor of the Company and STC.
EXECUTIVE on behalf of himself and on behalf of HIS ATTORNEYS, HEIRS, EXECUTORS,
ADMINISTRATORS, REPRESENTATIVES, AGENTS, AND ASSIGNS (COLLECTIVELY, THE
"EXECUTIVE PARTIES"), HEREBY GENERALLY AND FULLY RELEASES AND FOREVER DISCHARGES
THE COMPANY, STC, EACH OTHER RELATED ENTITY, AND THEIR RESPECTIVE PREDECESSORS,
SUCCESSORS, AND ASSIGNS, AND THEIR RESPECTIVE PAST AND PRESENT STOCKHOLDERS,
DIRECTORS, OFFICERS, PARTNERS, EMPLOYEES, AGENTS, REPRESENTATIVES, PRINCIPALS,
INSURERS, ACCOUNTANTS, AND ATTORNEYS (COLLECTIVELY, THE "COMPANY PARTIES"), AS
APPLICABLE, FROM ANY AND ALL CLAIMS, DEMANDS, LIABILITIES, SUITS, DAMAGES,
LOSSES, EXPENSES, ATTORNEYS' FEES, OBLIGATIONS, OR CAUSES OF ACTION, KNOWN OR
UNKNOWN, OF ANY KIND AND EVERY NATURE WHATSOEVER, AND WHETHER OR NOT ACCRUED OR
MATURED, THAT ANY OF THEM MAY HAVE, ARISING OUT OF OR RELATING TO ANY
TRANSACTION, DEALING, RELATIONSHIP (INCLUDING EMPLOYMENT RELATIONSHIP), CONDUCT,
ACT OR OMISSION, OR ANY OTHER MATTERS OR THINGS OCCURRING OR EXISTING AT ANY
TIME PRIOR TO AND INCLUDING THE EFFECTIVE DATE, INCLUDING ANY CLAIM AGAINST THE
COMPANY PARTIES BASED ON, RELATING TO, OR ARISING UNDER WRONGFUL DISCHARGE,
BREACH OF CONTRACT (WHETHER ORAL OR WRITTEN), TORT, FRAUD, DEFAMATION,
NEGLIGENCE, AN ACCOUNTING, USURY, PROMISSORY ESTOPPEL, TITLE VII OF THE CIVIL
RIGHTS ACT OF 1964, AS AMENDED, AGE DISCRIMINATION IN EMPLOYMENT ACT, AS
AMENDED, ANY OTHER CIVIL OR HUMAN RIGHTS LAW, AMERICANS WITH DISABILITIES ACT,
AS AMENDED, EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED, OR ANY
OTHER FEDERAL, STATE, OR LOCAL LAW RELATING TO EMPLOYMENT OR DISCRIMINATION IN
EMPLOYMENT IN ALL CASES ARISING OUT OF OR RELATING TO EXECUTIVE'S EMPLOYMENT BY
THE COMPANY, STC, OR ANY OTHER RELATED ENTITY OR ANY EXECUTIVE PARTY'S
INVESTMENT IN ANY RELATED ENTITY OR EXECUTIVE'S SERVICES AS AN OFFICER,
DIRECTOR, PRINCIPAL, OR EMPLOYEE OF THE COMPANY, STC, OR ANY RELATED ENTITY, OR
OTHERWISE RELATING TO THE TERMINATION OF SUCH EMPLOYMENT OR SERVICES; PROVIDED,
HOWEVER, THAT SUCH GENERAL RELEASE SHALL NOT LIMIT OR RELEASE (I) ANY EXECUTIVE
PARTY'S RIGHTS UNDER THIS AGREEMENT, OR (II) EXECUTIVE'S RIGHTS TO
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INSURANCE OR INDEMNIFICATION IN RESPECT OF HIS SERVICES AS AN OFFICER, DIRECTOR,
OR TRUSTEE OF ANY RELATED ENTITY. EXECUTIVE ON BEHALF OF HIMSELF AND EACH
EXECUTIVE PARTY HEREBY COVENANTS FOREVER NOT TO ASSERT, FILE, PROSECUTE,
MAINTAIN, COMMENCE, INSTITUTE (OR SPONSOR OR PURPOSELY FACILITATE ANY PERSON IN
CONNECTION WITH THE FOREGOING), ANY COMPLAINT, CLAIM, ARBITRATION, OR LAWSUIT OR
ANY LEGAL, EQUITABLE, OR ADMINISTRATIVE PROCEEDING OF ANY NATURE, AGAINST ANY OF
THE COMPANY PARTIES IN CONNECTION WITH ANY MATTER RELEASED IN THIS SECTION 4.1,
AND REPRESENTS AND WARRANTS THAT NO OTHER PERSON HAS INITIATED OR, TO THE EXTENT
WITHIN ITS CONTROL, WILL INITIATE ANY SUCH PROCEEDING ON ITS BEHALF.
4.2 Release and Covenant Not to Xxx in Favor of Executive. EACH OF THE
COMPANY AND STC, ON BEHALF OF THEMSELVES AND ALL OF THE RELATED ENTITIES, HEREBY
GENERALLY AND FULLY RELEASES AND FOREVER DISCHARGES EXECUTIVE AND ALL OTHER
EXECUTIVE PARTIES FROM ANY AND ALL CLAIMS, DEMANDS, LIABILITIES, SUITS, DAMAGES,
LOSSES, EXPENSES, ATTORNEYS' FEES, OBLIGATIONS, OR CAUSES OF ACTION, KNOWN OR
UNKNOWN, OF ANY KIND AND EVERY NATURE WHATSOEVER, AND WHETHER OR NOT ACCRUED OR
MATURED, THAT ANY OF THE COMPANY, STC, OR ANY OTHER RELATED ENTITIES MAY HAVE,
ARISING OUT OF OR RELATING TO ANY TRANSACTION, DEALING, RELATIONSHIP, CONDUCT,
ACT OR OMISSION, OR ANY OTHER MATTERS OR THINGS OCCURRING OR EXISTING AT ANY
TIME PRIOR TO AND INCLUDING THE EFFECTIVE DATE, INCLUDING ANY CLAIM AGAINST ANY
EXECUTIVE PARTY BASED ON, RELATING TO, OR ARISING UNDER BREACH OF CONTRACT
(WHETHER ORAL OR WRITTEN), TORT, FRAUD, DEFAMATION, NEGLIGENCE, AN ACCOUNTING,
USURY, OR PROMISSORY ESTOPPEL IN ALL CASES ARISING OUT OF OR RELATING TO
EXECUTIVE'S EMPLOYMENT BY THE COMPANY, STC, OR ANY RELATED ENTITY, INVESTMENT IN
ANY RELATED ENTITY OR EXECUTIVE'S SERVICES AS AN OFFICER, DIRECTOR, PRINCIPAL,
OR EMPLOYEE OF THE COMPANY, STC, OR ANY RELATED ENTITY, OR OTHERWISE RELATING TO
THE TERMINATION OF SUCH EMPLOYMENT OR SERVICES; PROVIDED, HOWEVER, THAT SUCH
GENERAL RELEASE SHALL NOT LIMIT OR RELEASE ANY company PARTY'S rights UNDER THIS
AGREEMENT OR ANY ORGANIZATIONAL DOCUMENTS OF ANY RELATED ENTITY. EACH OF THE
COMPANY AND STC, ON BEHALF OF THEMSELVES AND ALL RELATED ENTITIES, HEREBY
COVENANTS FOREVER NOT TO ASSERT, FILE, PROSECUTE, MAINTAIN, COMMENCE, INSTITUTE
(OR SPONSOR OR PURPOSELY FACILITATE ANY PERSON IN CONNECTION WITH THE
FOREGOING), ANY COMPLAINT, CLAIM, ARBITRATION, OR LAWSUIT OR ANY LEGAL,
EQUITABLE, OR ADMINISTRATIVE PROCEEDING OF ANY NATURE, AGAINST ANY EXECUTIVE
PARTY IN CONNECTION WITH ANY MATTER RELEASED IN THIS SECTION 4.2, AND REPRESENTS
AND WARRANTS THAT NO OTHER PERSON HAS INITIATED OR, TO THE EXTENT WITHIN ITS
CONTROL, WILL INITIATE ANY SUCH PROCEEDING ON ITS BEHALF.
ARTICLE V
Miscellaneous
5.1 Amendments. This Agreement may be amended or supplemented, or any
provision hereof waived, only by a written instrument executed by Executive, the
Company, and STC and clearly indicating the parties' intent to amend or
supplement this Agreement or waive any provision hereof.
5.2 Assignment. Neither this Agreement nor any right or obligation
hereunder shall be assigned, delegated, or otherwise transferred (whether
voluntarily, by operation of law, by merger, or
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otherwise), without the prior written consent of the other parties hereto;
provided, however, that each of the Company and STC may, without obtaining the
prior written consent of Executive, assign, delegate, or otherwise transfer its
rights and obligations hereunder to (i) any successor of the Company or STC by
merger or otherwise, or (ii) the purchaser of all or substantially all of the
assets or capital stock of the Company or STC; provided, further, that no such
assignment, delegation, or transfer shall relieve the Company or STC of its
obligations hereunder. Any attempted assignment, delegation, or transfer in
violation of this Section 5.2 shall be void and of no force or effect.
5.3 Binding Effect. This Agreement shall be binding solely upon, be
enforceable solely by, and inure solely to the benefit of, the parties hereto
and their respective heirs, legal representatives, successors and permitted
assigns.
5.4 Construction. The article and section headings in this Agreement
are for convenience of reference only and shall not be deemed to alter or affect
the meaning or interpretation of any provision hereof. All references to
"Articles," "Sections," and "Exhibits" contained in this Agreement are, unless
specifically indicated otherwise, references to articles, sections, and exhibits
of or to this Agreement. Whenever in this Agreement the singular number is used,
the same shall include the plural where appropriate (and vice versa), and words
of any gender shall include each other gender where appropriate. As used in this
Agreement, (i) "or" means "and/or," (ii) "include," "including," or their
derivatives means "including without limitation," (iii) "person" means any
natural person or any entity, organization, or government, (iv) "herein,"
"hereof," "hereto," or their derivatives refers to this entire Agreement, (v)
"day" means a calendar day, and (vi) "law" includes any statute, regulation,
rule, judicial order, or other legal pronouncement having the effect of law.
This Agreement was negotiated by the parties hereto and shall not be construed
against any party hereto.
5.5 Costs. Any person who breaches this Agreement shall be liable (in
addition to any other liabilities for which such person may be responsible as a
result of such breach) to each non-breaching party for all costs, including
reasonable attorneys' fees, incurred by such non-breaching party in enforcing
its rights under this Agreement.
5.6 Counterparts. This Agreement may be executed in multiple
counterparts, each of which when so executed shall be deemed to be an original
and all of which taken together shall constitute one and the same agreement.
5.7 Entire Agreement. This Agreement contains the entire agreement of
the parties hereto concerning the subject matter hereof and any other dealings
among such parties, and supersedes all prior negotiations, discussions, or
agreements of any sort whatsoever, whether oral or written, relating to the
subject matter hereof, or any claims that might have ever been made by one party
hereto against any other party hereto. There are no representations, agreements,
or inducements except as set forth expressly and specifically in this Agreement,
and each party hereto hereby waives any Claims based on any other purported
representation, agreement, or inducement to enter into this Agreement.
5.8 Further Assurances. Each party hereto covenants and agrees that
he/she/it shall and shall cause each of his agents or affiliates, as applicable,
at any time and from time to time after the Effective Date to execute and
deliver such additional instruments, documents, conveyances, or assurances and
to take such other actions as shall be necessary, or otherwise requested by any
party hereto, to confirm and assure the rights and obligations provided for in
this Agreement and to carry out the intent and purposes of this Agreement.
5.9 Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York, without regard to principles
of conflicts of law.
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5.10 Notices. All notices, requests, demands, consents, votes,
approvals, waivers, and other communications hereunder shall be effective only
if in writing and shall be deemed to have been duly given if sent by overnight
courier, hand delivered, mailed (first class certified mail, postage prepaid),
or sent by facsimile to the parties hereto at their respective addresses or
facsimile numbers set forth below their respective signatures on the signature
pages hereto or to such other address or facsimile number as any party hereto
shall have last designated by notice to other parties hereto in accordance with
this Section 5.10. Notices sent by hand delivery shall be deemed to have been
given when received; notices mailed in accordance with the foregoing shall be
deemed to have been given three days after the date so mailed; notices sent by
facsimile shall be deemed to have been given when electronically confirmed; and
notices sent by overnight courier shall be deemed to have been given on the next
business day after the date so sent.
5.11 Severability. If any provision of this Agreement, or the
application of such provision to any person or circumstance, shall be held
invalid under the applicable law of any jurisdiction, the remainder of this
Agreement or the application of such provision to other persons or circumstances
or in other jurisdictions shall not be affected thereby. Also, if any provision
of this Agreement is held to be invalid or unenforceable under any applicable
law, then such provision shall be deemed inoperative to the extent that it may
conflict therewith and shall be deemed modified to conform with such law. Any
provision hereof that may be held invalid or unenforceable under any applicable
law shall not affect the validity or enforceability of any other provision
hereof.
5.12 No Third-Party Beneficiaries. Except as set forth in Section 1.1
(Resignation), Article III (Protective Covenants), and Article IV (General
Release and Covenant Not to Xxx), nothing in this Agreement, express or implied,
is intended to confer upon any other person any rights or remedies of any nature
whatsoever under or by reason of this Agreement.
5.13 WAIVER OF AGE DISCRIMINATION CLAIM. EXECUTIVE ACKNOWLEDGES THAT
THIS AGREEMENT INCLUDES A WAIVER OF ANY RIGHTS AND CLAIMS ARISING UNDER THE AGE
DISCRIMINATION IN EMPLOYMENT ACT, AS AMENDED. EXECUTIVE ACKNOWLEDGES THAT THE
CONSIDERATION THAT HE IS RECEIVING IN EXCHANGE FOR HIS WAIVER OF THE RIGHTS AND
CLAIMS SPECIFIED HEREIN EXCEEDS ANYTHING OF VALUE TO WHICH HE ALREADY IS
ENTITLED. EXECUTIVE ACKNOWLEDGES THAT HE WAS ADVISED IN WRITING TO CONSULT WITH
AN ATTORNEY PRIOR TO EXECUTING THIS AGREEMENT. EXECUTIVE REPRESENTS AND AGREES
THAT HE FULLY UNDERSTANDS HIS RIGHT TO DISCUSS ALL ASPECTS OF THIS AGREEMENT
WITH LEGAL COUNSEL AND, TO THE EXTENT HE DEEMS APPROPRIATE, HE HAS FULLY AVAILED
HIMSELF OF THIS RIGHT. EXECUTIVE ACKNOWLEDGES THAT HE HAS ENTERED INTO THIS
AGREEMENT KNOWINGLY AND VOLUNTARILY WITH FULL UNDERSTANDING OF ITS TERMS AND
AFTER HAVING BEEN ADVISED AND HAD THE OPPORTUNITY TO SEEK AND RECEIVE ADVICE AND
COUNSEL FROM HIS ATTORNEY. EXECUTIVE ACKNOWLEDGES THAT HE HAS BEEN GIVEN A
PERIOD OF AT LEAST 21 DAYS WITHIN WHICH TO CONSIDER THIS AGREEMENT. EXECUTIVE
UNDERSTANDS THAT HE MAY REVOKE THIS AGREEMENT DURING THE SEVEN DAYS AFTER THE
EXECUTION OF THIS AGREEMENT AND THAT THE AGREEMENT WILL NOT BECOME EFFECTIVE
UNTIL THAT SEVEN-DAY REVOCATION PERIOD HAS EXPIRED. IN THE EVENT EXECUTIVE
REVOKES THE WAIVER GRANTED BY EXECUTIVE IN THIS SECTION 5.13, THEN EXECUTIVE
SHALL NOT BE ENTITLED TO RECEIVE THE SEVERANCE PAYMENT PROVIDED FOR IN SECTION
2.4.
9
5.14 Information Rights. For so long as any Executive beneficially owns
any shares of capital stock of the Company, the Company shall deliver to
Executive:
(a) as soon as practicable, but in any event within 90 days
after the end of each fiscal year of the Company, an income statement
for such fiscal year, a balance sheet of the Company and statement of
stockholder's equity as of the end of such fiscal year, and a statement
of cash flows for such fiscal year;
(ii) as soon as practicable, but in any event within 30 days
after the end of each of each fiscal quarter of the Company, an
unaudited income statement and statement of cash flows for such fiscal
quarter and an unaudited balance sheet and a statement of stockholder's
equity as of the end of such fiscal quarter; and
(iii) as soon as practicable, but in any event within 30 days
after the end of each month of the Company's fiscal year, an unaudited
income statement and statement of cash flows and balance sheet for and
as of the end of such month.
5.15 Acknowledgement. Each of the Company and STC acknowledges and
agrees that no Forfeiture Event (as defined in the Limited Partnership Agreement
dated February 28, 1997, as amended, of Sunrise Television Partners, L.P.) shall
occur or be deemed to occur as a result of the execution, delivery, or
performance of this Agreement by Executive.
* * * * *
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the Effective Date.
SUNRISE TELEVISION CORP.
By: /s/ Xxxxxx X. Xxxxx
-------------------------------
Name: Xxxxxx X. Xxxxx
Title: President
Address: 000 Xx Xxxxx
Xxxxx Xxxxxxx, XX 00000
Facsimile No.: (000) 000-0000
STC BROADCASTING, INC.
By: /s/ Xxxxxx X. Xxxxx
-------------------------------
Name: Xxxxxx X. Xxxxx
Title: President
Address: 000 Xx Xxxxx
Xxxxx Xxxxxxx, XX 00000
Facsimile No.: (000) 000-0000
EXECUTIVE:
/s/ Xxxxx X. Xxxx
----------------------------------------
Xxxxx X. Xxxx
Address: 000 00xx Xxxxxx, X.X.
Xx. Xxxxxxxxxx, XX 00000
Facsimile No.:
-------------------------
11
Exhibit A
to
Separation Agreement
RESIGNATION
The undersigned, Xxxxx X. Xxxx, hereby tenders his resignation from any
and all officer, director, and/or other positions currently held by him with any
of Sunrise Television Corp., a Delaware corporation, STC Broadcasting, Inc., a
Delaware corporation, and each of their respective subsidiaries, effective as of
_______________, 2002.
---------------------------------
Xxxxx X. Xxxx
12
