Exhibit 10.4
(b)


 


SEVERANCE AND RELEASE
AGREEMENT


 


THIS SEVERANCE AND RELEASE AGREEMENT (the “Agreement”),
dated as of July 9, 2004, is
between Young Broadcasting Inc. (referred to herein as “Young”) 599 Lexington
Avenue, 47th Floor, New York, New York 10022 and Ronald J. Kwasnick
(referred to herein as “you or your”) who resides at 6321 Island Lake Drive,
East Lansing, Michigan 48823.


 


W I T N ES S E T H:


 


WHEREAS, You desire to retire from your
employment with Young, and Young desires to accept your retirement, effective
as of the close of business on March 31, 2004: and


 


WHEREAS, pursuant to your Employment
Agreement with Young, you are entitled to receive certain specified severance
and other benefits after your retirement, which Young will provide to you;


 


WHEREAS, Young has offered, and you have
decided to accept, the enhanced severance benefits described in this Agreement
at paragraph 3, which are in addition to any such benefits you are entitled to
receive pursuant to your Employment Agreement;


 


NOW, THEREFORE, in consideration of the promises
contained herein and other good and valuable consideration, the sufficiency of
which is hereby acknowledged, the parties hereby agree as follows:


 


1.                                       You have
retired from your employment with Young effective as of the close of business
on March 31, 2004.


 


2.                                       Unless you
revoke this Agreement in the manner described in paragraph 14 below, this
Agreement will become effective on the eighth (8th) day after you
sign this Agreement (“Effective Date”).


 


3.                                       In
consideration for your voluntary retirement and the settlement of any and all
claims you have or may have against Young, its affiliated entities, and/or any
of its officers, directors, stockholders, employees, agents and
representatives, Young agrees to provide you with the benefits described in
this paragraph 3.


 





















 


A.                                   Provided that you do not revoke
your assent to this Agreement in the manner described in paragraph 14 below,
Young will provide you with six (6) monthly severance payments (the “Voluntary
Payments”), in addition to the monthly severance payments provided to you under
your Employment Agreement with Young, said Voluntary Payments to begin when all
severance payments provided for in your Employment Agreement have been made to
you and continuing thereafter on a monthly basis through March 31, 2006.
The amount of each of the six (6) monthly Voluntary Payments shall equal
one (1) month of your annual base salary, less all lawful deductions and
withholdings and subject to all applicable state and federal tax laws. The
parties agree that these Voluntary Payments consist of severance payments you
would not otherwise be entitled to receive because of your employment with
Young and/or your retirement from that employment. Young shall be obligated to
make these future Voluntary Payments to you only if this Agreement becomes
effective and shall not be obligated to make Voluntary Payments to you if you
revoke this Agreement in the manner described in paragraph 14 below. You
acknowledge and agree (1) that you are entitled to eighteen (18) months of
severance payments under your Employment Agreement with Young and (2) that
the Voluntary Payments made under this Agreement exceed all severance payments
to which you are otherwise entitled as an employee, officer and/or director of
Young or otherwise.


 


B.                                     Provided that you do not revoke
your assent to this Agreement in the manner described in paragraph 14 below,
Young will make to you a payment in the gross amount of $40,000 (“One-Time-Only
Payment”), less all lawful deductions and withholdings and subject to all
applicable state and federal tax laws, for your use towards purchase of your
personal automobile in lieu of Young providing the leased automobile it is
otherwise obligated to provide for your use during the specified period under
the terms of your Employment Agreement. in consideration of your accepting this
One-Time-Only Payment, you agree that Young is released from its obligation
under your Employment Agreement to allow you to retain the Company-provided
leased automobile during the period you receive severance benefits. The parties
agree that this One-Time-Only Payment is a payment to which you would not
otherwise be entitled to receive because of your employment with Young and/or
your retirement from that employment. The payment of the One-Time-Only Payment,
less applicable withholdings, will be made to you by Young on the Effective
Date of this Agreement. You agree to provide Young with proof of purchase of
your personal automobile, including its make, model, and vehicle 


 


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identification
number, for purposes of Young’s being able to confirm your proper, restricted
use of the Express card, as defined and provided for under paragraph 3F below.


 


C.                                     Provided that you do not revoke
your assent to this Agreement in the manner described in paragraph 14 below,
Young will reimburse you for your automobile insurance costs for two years,
less applicable and required withholdings, subject to: (1) your obtaining
the automobile contemplated in paragraph 36 above, (2) your providing
Young with the proof of its purchase, and (3) your providing Young with (a) proof
of your purchase of insurance for that automobile and (b) evidence of the
insurance premium payments required from and paid by you under the insurance
policy for such automobile.


 


D.                                    As required by
federal law, you will be offered the opportunity to elect COBRA continuation
coverage under the Young health insurance plan in which you and your dependents
(if applicable) participated on the day before your “COBRA qualifying event”.
Under the terms of your Employment Agreement, Young agreed to pay your COBRA
premiums for as long as you and your dependents are entitled to receive COBRA
coverage, if you elect COBRA coverage. In the event that you and/or any of your
dependents become ineligible for COBRA coverage under Young’s plan before the
end of the initial 18-month “COBRA continuation period” or the COBRA coverage
expires solely because of the expiration of the 18-month period described above
and Young is no longer required under the terms of Employment Agreement to pay
your COBRA premiums, Young agrees to provide you with a monthly payment, less
applicable withholdings, in an amount equal to the monthly premium payment for
COBRA continuation coverage that Young agreed to pay pursuant to your
Employment Agreement (“COBRA Replacement Payments”), unless you revoke this
Agreement as provided in paragraph 14 below. Young shall provide you with the
COBRA Replacement Payments for a limited period commencing on the date on which
you and/or your dependents become ineligible for COBRA coverage (as described
in the preceding sentence) and ending on the date that occurs six months
following the end of the initial 18-month “COBRA continuation period”. Nothing
in this Agreement shall be construed to restrict your rights or Young’s
obligation regarding your and/or your dependents’ coverage under the Young
health plan, as provided in your Employment Agreement. However, Young’s
obligation under this paragraph 31) to pay COBRA Replacement Payments (after
you and/or your dependents become ineligible for COBRA coverage) shall not 


 


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extend beyond 24 months following the date on which you and your dependents
initially lost coverage under Young’s plan as a result of your “COBRA
qualifying event”. In the event that you and/or your dependents
become entitled to extend COBRA coverage beyond the initial 18-month “COBRA
continuation period”, Young will pay no COBRA Replacement Payments related to
your or your dependents’ loss of COBRA coverage that occurs after the 24th
month following the date- on which coverage was initially lost under the Young
plan as a result of your “COBRA qualifying event”.


 


E.                                      Under the terms of your Stock
Option Agreement(s) dated, respectively, November 20, 1996; November 3,
1997; October 13, 1998; April 27, 2000; and February 7, 2001,
and the Young Broadcasting, Inc. 1995 Stock Option Plan, as amended,
restated, and renamed by the adoption of the Young Broadcasting Inc. 2004
Equity Incentive Plan, your unexercised stock options will expire ninety (90)
days after your retirement date of April 1, 2004. However, the parties
agree that your stock options will continue to vest after April 1, 2004
and will remain valid and exercisable during and after the ninety (90) day
period indicated above but that the stock options granted under each specific
Stock Option Agreement shall expire and no longer be exercisable no later than
ten (10) years from the date of the stock option grant under each such
Stock Option Agreement, unless you revoke the Agreement as provided in
paragraph 14 below. The parties agree that any stock options you exercise after
the expiration of the 90-day period will be ineligible for favorable tax
treatment as “incentive stock options” under the Internal Revenue Code and will
be treated as “non-qualified stock options” for federal income tax purposes.
Young agrees to amend your Stock Option Agreement(s), as necessary, to effectuate
the purpose of this paragraph 3E, unless you revoke the Agreement as provided
in paragraph 14 below.


 


F.                                      Young agrees that you may
continue to use, until March 31, 2006, the Corporate American Express Card
provided to you by Young (the “Express Card”) for purchases which are
specifically related to the use and maintenance of the vehicle that you
purchase with the One-Time-Only Payment provided to you by Young. Young also
agrees that you may continue to use, until March 31, 2006, the cellular
telephone which has been provided to you by Young. You agree to use the Express
Card and telephone referenced in this paragraph in a reasonable manner, if
Young determines, in its sole discretion, that the Express Card and 


 


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telephone are
not being used in such a manner, Young may immediately cease providing the
Express Card and telephone to you and you will be required to return the
Express Card and the telephone to Young immediately upon request by Young.


 


4.                                       In consideration
of the Voluntary Payments and other benefits to be provided by Young to you,
which you are not otherwise entitled to receive because of your employment with
Young and/or your retirement from that employment, the sufficiency of which you
hereby acknowledge, you on your own behalf and that of your heirs, executors,
administrators and assigns hereby release,  acquit, and forever
discharge Young, all affiliated entities, and their respective officers,
directors, stockholders, employees and agents (‘Released Party” or “Released
Parties”) from any and all claims, obligations, rights and demands of every
kind or nature whatsoever you now have or ever had, at law or equity, whether
known or unknown, arising through the Effective Date of this Agreement against
any of them, including, without limitation, claims for lost income or earnings
arising at common law or by statute(s), claims for wrongful discharge, implied
contract, physical or emotional distress, injuries and fraud and claims under
the Federal Fair Labor Standards Act, Title VII of the Civil Rights Act of
1964, the Civil Rights Act of 1991, the Employee Retirement Income Security Act
of 1974 (except to the extent that you are otherwise entitled to receive
benefits under any plan(s) covered by such Act), the Americans With
Disabilities Act, the Rehabilitation Act of 1973, all as may be amended, and
all other federal, state, and local laws relating to unlawful discharge,
discrimination and wage laws, including all statutes, regulations and ordinances
of the States of New York and Michigan.


 


Moreover,
you acknowledge and understand that you are waiving, releasing and forever  discharging the Released Parties from any
rights or claims that you may have under the Age Discrimination in Employment
Act, as amended by the Older Workers Benefit Protection Act (“ADEA”), with
respect to claims arising before the date you sign this Agreement, but not
those arising thereafter. However, nothing in this Agreement shall be construed
(i) to affect the rights and responsibilities of the Equal Employment
Opportunity Commission (“Commission”) to enforce the requirements of ADEA or (ii) to
interfere with the protected right of an employee to file a charge -or
participate in an investigation or proceeding conducted by the Commission:


 


5.                                       Except to
enforce the provisions of this Agreement, you agree not to initiate,


 


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directly or indirectly, any legal
action, lawsuit or complaint seeking to recover damages against any of the Released
Parties in any state or federal court to the extent that such legal action,
lawsuit, or complaint would relate to the matters covered or contemplated by
this Agreement, or which is based on events that took place prior to the date
you sign this Agreement, or claims existing as of the Effective Date of this
Agreement. In the event any such legal actions, lawsuits or complaints are
asserted in the future by you or on your behalf, any affected Released Party
may obtain any remedies available at law or in equity and may recover the
attorneys’ fees incurred by such Released Party in defending such legal action,
lawsuit or complaint, excluding those that arise under ADEA unless a court of
competent jurisdiction makes such an award. However, the parties specifically
agree that nothing contained in this paragraph 5 shall (i) affect the
rights and responsibilities of the Commission to enforce the requirements of
ADEA or (ii) interfere with the protected right of an employee to file a
charge or participate in an investigation or proceeding conducted by the
Commission.


 


6.                                       You
acknowledge that Young, by entering into this Agreement, does not admit that it
has violated any law or any of your rights. Moreover, the parties agree that
they will not engage in any conduct that is intended to, or is reasonably
foreseeable as likely to reflect adversely upon the other party. In that
regard, the parties agree that they will not make any derogatory statements
about the other party. You acknowledge that your obligations under this
paragraph will extend not only to Young, but also to its present or former
agents, employees, officers, directors, shareholders and/or consultants.


 


7.                                       You acknowledge
that, in your capacity as an employee of Young, you have been privy to
confidential information regarding all aspects of Young’s and Young affiliates’
business and their business relationships including, without limitation, with
vendors, advertisers and customers, and that such information is crucial to
Young’s business and would have value to its competitors. You shall (i) treat
and hold .as strictly confidential all confidential and proprietary
information, including, but not limited to, intellectual property and
competitive business strategies which exist as of the date hereof and relate to
Young, and/or any other Young affiliates (collectively “Confidential
Information”) and (ii) not use any Confidential Information in any way
injurious or otherwise detrimental to Young, and/or any other Young affiliates.
You represent that, upon your retirement from employment, you will return to
Young all documents 


 


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and other property concerning
Young and its affiliates and their businesses, except as provided in paragraph
3F above.


 


8.                                       You will
not, for any reason whatsoever, directly or indirectly, individually or on
behalf of others, aide or endeavor to solicit or induce any employee employed
by Young and/or its affiliates to terminate his or her employment with Young
and/or its affiliates or accept employment with anyone other than Young and/or
its affiliates.


 


9.                                       Except as
provided in this paragraph 9, the terms of this Agreement shad be kept secret
and confidential and shall not be disclosed, either directly or indirectly, to
any third party, unless required by law or to enforce the terms of the
Agreement. Notwithstanding the foregoing, Young and its affiliates may make
confidential disclosures to the directors, officers, employees and agents
(including attorneys) of Young and its affiliates who need to know and to
governmental authorities, and you may make confidential disclosures to your
spouse, accountant, advisor or attorney and to governmental authorities. You
acknowledge that Young previously issued a press release regarding your
retirement from Young; agree that you approved either the language or general
content of that press release and that Young’s issuance of that press release
was not, and is not, a violation of this paragraph 9; and release Young from
any claim related to its issuance of that press release.


 


10.                                 Upon
reasonable notice from Young, and in a manner which does not unreasonably
interfere with your work or other commitments, you shall make yourself
reasonably available and cooperate fully to assist Young and its affiliates in
responding to litigation or claims involving facts or events relating to Young
or its affiliates that occurred during your employment or which are within your
knowledge. Young—will reimburse -your..-reasonable out of pocket
expenses incurred directly in providing such assistance to Young and its
affiliates.


 


11.                                 No
modification or waiver of any of the terms of this Agreement shall be valid
unless in writing and executed by the parties hereto. The failure of either
party to insist upon strict performance of any of the provisions of this
Agreement shall not be deemed a waiver of any subsequent breach of any
provision contained in this Agreement. Moreover, if any provision of this
Agreement shall be held to be invalid or unenforceable, the remainder of this Agreement



 


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shall nevertheless remain in full
force and effect. If any provision is held to be invalid or unenforceable with
respect to particular circumstances, it shall nevertheless remain in full force
and effect in all other circumstances.


 


12.                                 This
Agreement shall be construed and governed by the laws of the State of New York
without giving effect to the provisions thereof relating to conflicts of law.


 


13.                                 This
Agreement shall be binding upon and shall inure to the benefit of and burden of
the parties hereto and their affiliates and their respective heirs, successors
and assigns.


 


14.                                 You
acknowledge that Young has advised you to consult with an attorney or advisor
of your choice prior to executing this Agreement. By executing this Agreement,
you acknowledge that you have been provided an opportunity to consult with an
attorney or advisor of your choice regarding the terms of this Agreement. You
further acknowledge that you have fully and carefully read this Agreement and
understand it, particularly the.effect of your release of claims against the
Released Parties. You acknowledge that you have been given the opportunity to
consider the terms of this Agreement for a period of twenty-one (21) days and
that you have elected to enter into this Agreement freely, knowingly and
voluntarily. You may revoke your assent to this Agreement within seven (7) days
of its execution by you, in which event this Agreement shall be null and void
and of no further effect. The parties agree that written notice of revocation,
if any, shall be delivered by 5:00 p.m. EST on that seventh (7th) day to:


 


James A. Morgan


Executive Vice President and CFO 

Young. Broadcasting Inc.


599 Lexington Avenue, 0h Floor New


York, New York 10022


 


with a copy to:


 


Richard Lowe, Esq.


King & Ballow


1100 Union Street Plaza 315


Union Street


Nashville,
Tennessee 37201


 


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The parties agree that if this Agreement is not revoked by you during
the applicable seven (7) day period, this Agreement shall become
effective, binding and enforceable on the eighth (8th) day following your execution of this Agreement.


 


15.                                 The parties
acknowledge that this Agreement, the post expiration/termination obligations in
your Employment Agreement including the Non-Competition provision, and your
Stock Option Agreement(s), as amended, contain the entire understanding between
the parties and, except as expressly set forth therein, no representation of
any kind or character has been made to induce their execution of this
Agreement. The parties represent that they have read and understand this
Agreement and that the individual signing this Agreement on behalf of each
party is authorized to do so. Each of the parties has been advised by counsel
as to its meaning and legal implications and executes this document as his or
its own free act.


 


16.                                 This
Agreement may be executed in counterparts. A facsimile signature shall be
deemed to constitute an original signature for the purposes of this Agreement.
After execution of counterparts by each designated signatory, Young agrees to
furnish you with a complete, conformed copy of this Agreement, reflecting all
counterpart signatures.


 


	
  Dated:

  	
   

  	
  , 2004

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  RONALD J. KWASNICK

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Dated:

  	
   

  	
  , 2004

  	
   

  	
  YOUNG BROADCASTING INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  	
   

  
										



 


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