EXHIBIT 10.47
FIRST AMENDMENT
TO
SEPARATION AGREEMENT
THIS FIRST AMENDMENT TO SEPARATION AGREEMENT (this "Amendment") is made
and entered into as of February 12, 2002, 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 XxXxxxxxxx, his heirs, administrators, personal and legal
representatives, and executors (collectively, "Executive").
WHEREAS, the Company, STC and Executive entered into a Separation
Agreement dated as of January 3, 2002 (the "Separation Agreement") setting
forth, inter alia, the terms under which Executive separated from the Company
and STC.
WHEREAS, each of the Company, STC and Executive desire to amend the
Separation Agreement as hereinafter provided.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
set forth herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1. Amendment. Article II is hereby amended by deleting Article II
in its entirety and by substituting in lieu thereof the following:
"ARTICLE II
Consulting Fee and Escrow 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 $175,000 (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 escrow 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
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 Escrow. Concurrently herewith, the Company and STC
shall deposit into an escrow account with United Bank, an aggregate
amount equal to $600,000, 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
escrow 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 Wichita,
Kansas. 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 Wichita,
Kansas. 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 Kansas state courts located in Wichita, Kansas. "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 Wichita, Kansas 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.
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 amount payable pursuant to
Section 2.4 shall be immediately paid to Executive's estate,
administrator, heirs, or other legal representatives."
2. Certain Definitions. Capitalized terms used without definition
in this Amendment have the meanings set forth in the Separation Agreement (as
amended hereby).
3. Counterparts. This Amendment may be executed in any number of
counterparts, each of which will be deemed to be an original, but all of which
will constitute one and the same instrument, and the signature of any party to
any counterpart shall be deemed a signature to, and maybe appended to, any other
counterpart.
4. Effect; Governing Law. Except as specifically amended by this
Amendment, the Separation Agreement shall remain in full force and effect. This
Amendment shall be binding upon and shall inure to the benefit of the parties
hereto and their successors and permitted assigns. This Amendment shall be
governed by and construed in accordance with the laws of the State of New York
(without regard to the conflicts-of-law principles thereof).
* * * * *
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as
of the day and year first above written.
SUNRISE TELEVISION CORP.
By: /s/ Xxxxx X. Xxxx
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Name: Xxxxx X. Xxxx
Title: Executive Vice President and
Chief Financial Officer
STC BROADCASTING, INC.
By: /s/ Xxxxx X. Xxxx
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Name: Xxxxx X. Xxxx
Title: Executive Vice President and
Chief Financial Officer
EXECUTIVE:
/s/ Xxxxx XxXxxxxxxx
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Xxxxx XxXxxxxxxx