EXHIBIT 99.1
NON-COMPETITION AGREEMENT
THIS NON-COMPETITION 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 Xxxxxx
X. Xxxxx, 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 officer of the Company and STC, and (ii) the parties hereto desire to
terminate the Employment Agreement in all respects; and
WHEREAS, in connection with Executive's resignation as an officer of
the Company and STC and the termination of his employment with the Company and
STC, each of the Company and STC desire that Executive not engage in activities
in competition with the Company, STC, and their respective subsidiaries, and
Executive has agreed not to compete with the Company, STC, and their respective
subsidiaries, all on the terms more specifically described herein.
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 officer of the Company, STC, and each of their respective
subsidiaries (collectively, "Related Entities"). Executive agrees to resign as
Chairman of the Board of the Company, STC, and each other Related Entity
effective as of the Ownership Transfer Date (as defined below). Executive (i) is
concurrently herewith delivering to the Company resignations in the form of
EXHIBITS A-1 and A-2 and (ii) shall execute and deliver one or more resignation
letters or other documents evidencing such resignations as may be requested from
time to time by the Company or STC. As used herein, "Ownership Transfer Date"
means the date of the closing of the transactions for the transfer by Xxxxx
Broadcasting Partners, L.P. ("SBP") to Xxxxxxx X. Xxxxxxxx, Xx. of SBP's
ownership interest in one share of Class A Common Stock of the Company.
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
Payment to Executive
2.1 Payment to Executive; Withholding. The Company and STC shall cause
to be paid to Executive on the Effective Date a payment in cash in an aggregate
amount equal to $600,000 in consideration of Executive's covenants and
agreements contained herein, including in Article III (the "Non-Competition
Payment"). In the event Executive revokes the waiver granted by Executive in
Section 5.13, then Executive shall promptly (but in any event within two
business days after such revocation) return to the Company an amount equal to
the entire Non-Competition Payment. Except as provided in this Section 2.1,
Executive shall not be entitled to any other benefits or programs offered to or
made available to employees of the Company or STC, including, vacation pay,
commissions, bonuses, 401(k) contributions, sick pay, and severance; provided,
however, that Executive shall be paid $15,000 promptly after the Effective Date
to cover certain expenses relating to oustanding life insurance policies.
Executive shall be solely responsible for paying and withholding all federal and
state taxes in respect of the Non-Competition Payment and any penalties or
assessments thereon. The Company or STC will prepare a Form 1099 reflecting the
Non-Competition Payment. 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 Non-Competition Payment; 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.
2.2 Arbitration. The purpose of this Section 2.2 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 Los
Angeles, California. 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 Los Angeles, California. 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 2.2 and,
solely for purposes of the enforcement of any arbitration award rendered
pursuant to this Section 2.2, to exclusive jurisdiction and venue in the federal
or California state courts located in Los Angeles, California. "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
2.4 California Office. The Company shall continue to be responsible for
reimbursing Executive at the current rate for the office space it utilizes in
Santa Barbara, California through the Ownership Transfer Date, and thereafter,
Executive shall be solely responsible for all of the costs of that office.
ARTICLE III
Non-Competition and Other Protective Covenants
3.1 Non-Competition.
(a) For a period of 36 months after the Effective Date,
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 Area or DMAs (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, or (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 broadcast
stations in a number of different DMAs, 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
foregoing 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 for a period of 36 months after the
Effective Date, 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; (ii) approach any such employee for any
3
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 Effective Date any documents,
notes, or other information that are the property of the Company, STC, or any
other Related Entity that are specifically identified and requested in writing
by the Board of Directors of the Company.
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, or (v) 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 material terms of this 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 material 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;
4
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 2.2, 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 COMPANY ENTITY OR ANY EXECUTIVE PARTY'S
INVESTMENT IN ANY RELATED ENTITY OR EXECUTIVE'S SERVICES AS AN OFFICER,
DIRECTOR, TRUSTEE, 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
INSURANCE OR INDEMNIFICATION IN RESPECT OF HIS SERVICES AS AN OFFICER OR
DIRECTOR 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
5
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 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 any 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.
6
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, (vi) "law" includes any statute, regulation, rule,
judicial order, or other legal pronouncement having the effect of law, and (vii)
"affiliate" has the meaning specified in Rule 12b-2 of the Securities Exchange
Act of 1934, as amended. 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.
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
7
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 promptly (but in any event within two business days after such revocation)
return to the Company an amount equal to the entire NON-COMPETITION Payment.
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;
8
(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.
* * * * *
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK]
9
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the Effective Date.
SUNRISE TELEVISION CORP.
By: /s/ Xxxxx X. Xxxx
----------------------------------
Name: Xxxxx X. Xxxx
Title: Chief Financial Officer
Address: 000 0xx Xxxxxx Xxxxx
Xx. Xxxxxxxxxx, XX 00000
Facsimile No.: 000-000-0000
STC BROADCASTING, INC.
By: /s/ Xxxxx X. Xxxx
----------------------------------
Name: Xxxxx X. Xxxx
Title: Chief Financial Officer
Address: 000 0xx Xxxxxx Xxxxx
Xx. Xxxxxxxxxx, XX 00000
EXECUTIVE:
/s/ Xxxxxx X. Xxxxx
-----------------------------------------
Name: Xxxxxx X. Xxxxx
Address:
--------------------------------
--------------------------------
Facsimile No.:
10
Exhibit A-1
to
Non-Competition Agreement
RESIGNATION
The undersigned, Xxxxxx X. Xxxxx, hereby tenders his resignation from
any and all officer 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 January
3, 2002.
/s/ Xxxxxx X. Xxxxx
-----------------------------------
Xxxxxx X. Xxxxx
11
Exhibit A-2
to
Non-Competition Agreement
RESIGNATION
The undersigned, Xxxxxx X. Xxxxx, hereby tenders his resignation from
any and all director 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 Ownership Transfer Date.
/s/ Xxxxxx X. Xxxxx
-----------------------------------
Xxxxxx X. Xxxxx
12
