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EXHIBIT 10.2
FIRST AMENDMENT TO POST-CLOSING COVENANTS AGREEMENT AND
NON-COMPETITION AGREEMENTS
This First Amendment is made this 9th day of April, 1999, effective
upon the execution hereof, by and among CBS Corporation, formerly named
Westinghouse Electric Corporation, a Pennsylvania corporation ("Parent"),
Xxxxxxx Entertainment Company, as successor to New Xxxxxxx Entertainment
Company, a Delaware corporation ("Xxxxxxx"), Xxxxxx X. Xxxxxxx, and X. X.
Xxxxxxx XX.
RECITALS
1. The parties to this First Amendment were the principal parties to
the Post-Closing Covenants Agreement dated as of September 30, 1997, by and
among Parent, Xxxxxxx, New Xxxxxxx Entertainment Company, and certain
subsidiaries of New Xxxxxxx Entertainment Company (the "Post-Closing Covenants
Agreement"), and Xxxxxx X. Xxxxxxx, X. X. Xxxxxxx XX and Parent were the parties
to Non-Competition Agreements dated September 30, 1997 affecting Xxxxxx X.
Xxxxxxx and X. X. Xxxxxxx XX, respectively (the "Non-Competition Agreements").
2. The parties desire to amend the Post-Closing Covenants Agreement and
the Non-Competition Agreements as provided in this First Amendment.
3. Capitalized terms in this First Amendment shall have the meaning
ascribed to them in the Post-Closing Covenants Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the premises, and the mutual
covenants and promises herein contained, the parties agree as follows:
1. Section 3.04(a) of the Post-Closing Covenants Agreement, Section 1
of the Non-Competition Agreement, dated September 30, 1997 between Parent and
Xxxxxx X. Xxxxxxx, and Section 1 of the Non-Competition Agreement, dated
September 30, 1997 between Parent and X. X. Xxxxxxx XX, shall be and are hereby
amended to provide that the terms of the non-competition provisions in each such
agreement shall be four (4) years rather than five (5) years as originally
specified.
2. Reference is made to Section 3.05 of the Post-Closing Covenants
Agreement and in relation thereto the parties agree that: (i) Parent shall pay
to Xxxxxxx the sum of Five Million Dollars ($5,000,000) in cash or immediately
available funds upon execution of this First Amendment, to be credited towards
the final resolution of the obligations, if any, of Parent to Xxxxxxx in
connection with the working capital adjustment described in Section 3.05; (ii)
the parties shall proceed, as promptly as possible, to execute the engagement
letter for the Washington, D.C. office of Ernst & Young, the Accounting Firm
selected to resolve the dispute; and (iii) the parties
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shall use all reasonable efforts to complete the binding arbitration process as
soon as practicable. To the extent that the amount finally determined to be
payable by CBS to Xxxxxxx is less than $5,000,000 plus interest thereon at the
rate specified in Section 3.05 of the Post-Closing Covenants Agreement from the
date of CBS's payment of $5,000,000 pursuant hereto, Xxxxxxx shall pay the
difference to CBS. To the extent the amount finally determined to be payable by
CBS to Xxxxxxx is more than $5,000,000 plus interest thereon at the rate
specified in Section 3.05 of the Post-Closing Covenants Agreement from the date
of CBS's payment of $5,000,000 pursuant hereto, CBS shall pay the excess to
Xxxxxxx. To the extent it is finally determined that Xxxxxxx is obligated to pay
any amount to CBS, Xxxxxxx shall pay to CBS such amount and shall refund the
$5,000,000 plus interest thereon at the rate specified in Section 3.05 of the
Post-Closing Covenants Agreement from the date of CBS's payment of $5,000,000
pursuant hereto.
3. In all other respects, the Post-Closing Covenants Agreement and the
Non-Competition Agreements are not changed or amended.
IN WITNESS WHEREOF, the parties (on behalf of themselves, their
subsidiaries, and their affiliates) have caused this First Amendment to be
executed as of the day and year first above written.
XXXXXXX ENTERTAINMENT COMPANY
By: _______________________________
Title: _______________________________
CBS CORPORATION
By: _______________________________
Title: _______________________________
________________________________________
Xxxxxx X. Xxxxxxx
________________________________________
X. X. Xxxxxxx XX
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