EXHIBIT 10.83
ICG COMMUNICATIONS, INC.
000 Xxxxxxxxx Xxxxx Xxxx
Xxxxxxxxx, Xxxxxxxx 00000
January 10, 0000
Xxxxxxx X. Beans, Jr.
0 Xxxxx Xxxx Xxxx
Xxxxxx Xxxxx Xxxxxxx, XX 00000
Dear Xxxx:
This will confirm the terms of the agreement (the "Agreement") that
has been reached between you and ICG Communications, Inc. (for itself and as
debtor-in-possession) (the "Company") in connection with your resignation as an
officer and full-time employee of the Company, and the Company's continued
utilization of your services as a director of the Company and on a consulting
basis.
1. You will resign from employment with the Company effective as of
February 4, 2001 (the "Employment Resignation Date"). As of December 4, 2000
(the "Effective Date"), you have resigned all of your positions as an officer of
the Company, and as an officer and a director of any of the Company's
subsidiaries and affiliates, including but not limited to ICG Holdings, Inc. and
ICG Services, Inc., and you agree to execute such documents and take such
actions as may be reasonably necessary or desirable to evidence the foregoing.
Between the Effective Date and February 4, 2001 (the "Transition Period"), in
addition to continuing as a director of the Company, you will remain an employee
of the Company and, at reasonable times and upon reasonable notice, will provide
such assistance as is reasonably requested by the Company's Board of Directors
and/or its Chief Executive Officer. During the Transition Period you will be
paid the same base salary as you had been provided in the period immediately
preceding the Effective Date.
2. In view of your knowledge of and experience with the Company and
its business, and to further facilitate the management transition and the
Company's financial restructuring, during the Payment Period (as defined below)
you agree at reasonable times and upon reasonable notice to provide such
consulting services to the Company and its affiliates regarding the business and
affairs of the Company as may be reasonably requested by its Board of Directors
and/or its Chief Executive Officer, it being understood that such consulting
services shall not unreasonably interfere with your
holding another full time executive position and that nothing in this Agreement
shall preclude you from resigning, at any time subsequent to the Effective Date,
from your position as a director of the Company. In addition, you agree to
reasonably cooperate with the Company or any of its respective subsidiaries and
affiliates, and any of their officers, directors, shareholders, or employees
concerning requests for information about the business of the Company (or of its
subsidiaries or affiliates) consistent with your other obligations and on
reasonable notice. You further agree to reasonably cooperate with the Company or
any of its respective subsidiaries or affiliates in connection with any action,
proceeding, suit or investigation concerning the Company or arising out of or
relating to your service as an executive of the Company. You shall be entitled
to reimbursement, upon receipt by the Company of suitable documentation, for
reasonable and necessary travel and other expenses which you may incur at the
specific request of the Company and as approved by the Company in accordance
with its policies and procedures established from time to time.
3. (a) Except as specifically set forth in this Agreement, and
effective only if, and for so long as, all payments required by this Agreement
are being, or have been, timely made in accordance with the terms of this
Agreement, you knowingly and voluntarily release and forever discharge the
Company and any of its respective subsidiaries and affiliates, at any level,
together with all of their respective past and present directors, managers,
officers, shareholders, partners, employees, agents, attorneys and servants, and
each of their predecessors, successors and assigns (collectively, the "Company
Releasees") from any and all claims, charges, complaints, promises, agreements,
controversies, liens, demands, causes of action, obligations, damages and
liabilities of any nature whatsoever, known or unknown, suspected or
unsuspected, which against them you or your executors, administrators,
successors or assigns ever had, now have, or may hereafter claim to have against
the Company Releasees arising on or before the date this Agreement is executed
by you, and whether or not previously asserted before any state or federal court
or before any state or federal agency or governmental entity, arising out of any
contract, agreement, arrangement, plan or understanding, whether oral or in
writing, regarding salary, bonus, advances, loans, benefits or other
compensation previously paid or provided, or to be paid or provided, to you by
the Company or any of its subsidiaries or affiliates under any employment
agreements, compensation plans, incentive plans, severance plans, option plans
or benefit plans. Subject to the performance of your obligations hereunder, the
Company, on behalf of itself and its respective subsidiaries and affiliates, at
any level, and each of their respective predecessors, successors and assigns
(the "Company Releasors"), knowingly and voluntarily release and forever
discharge you and all of your partners, employees, agents, attorneys, servants,
executors, administrators, successors and assigns (the "Employee Releasees")
from any and all claims, charges, complaints, promises, agreements,
controversies, liens, demands, causes of action, obligations, damages and
liabilities of any nature whatsoever, known or unknown, suspected or
unsuspected, which the Company Releasors ever had, now have, or may hereafter
claim to have against the Employee
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Releasees arising on or before the date this Agreement is executed by you, and
whether or not previously asserted before any state or federal court or before
any state or federal agency or governmental entity, arising out of any contract,
agreement, arrangement, plan or understanding, whether oral or in writing,
regarding salary, bonus, advances, loans, benefits or other compensation
previously paid or provided, or to be paid or provided, to you by the Company or
any of its subsidiaries or affiliates under any employment agreements,
compensation plans, incentive plans, severance plans, option plans or benefit
plans.
(b) Notwithstanding the terms of, and without in any way
expanding the scope of the limited releases set forth in the foregoing
subparagraph 3(a), nothing in those limited releases or this Agreement shall be
deemed in any way to release or discharge any of: (i) your existing rights to
indemnification under the Certificate of Incorporation or By-laws of the Company
or any affiliate, or any applicable law (including, without limitation, the laws
of the jurisdiction in which the Company or any such affiliate is incorporated),
and under the Employment Agreement (as defined below), and the Company shall, to
the fullest extent permitted by law, indemnify you for all amounts (including,
without limitation, judgments, fines, settlement payments, losses, damage, costs
and expenses, including reasonable attorneys' fees) incurred or paid by you in
connection with any action, proceeding, suit or investigation arising out of or
relating to the performance of your duties as an employee, officer or director
of, or consultant to, the Company or any of its subsidiaries or affiliates to
the same extent (but to no greater extent) as though you had remained a full
time employee of the Company; (ii) any claim to which you may be entitled under
any previously or presently existing or future Directors' and Officers'
insurance policy or professional liability insurance policy paid for by the
Company; (iii) your right, in accordance with the Company's policies as applied
to you before the Effective Date, to be reimbursed for business expenses
incurred in the course of your employment with the Company prior to or
subsequent to the Effective Date but not previously reimbursed; (iv) your rights
to salary, benefits and perquisites payable to you (including, but not limited
to, accrued and unpaid vacation days), with respect to any period prior to the
Effective Date, which have not been previously paid up to the Effective Date;
(v) any claim to which you may be entitled under any employee pension benefit
plan (as defined in Section 3(2) of ERISA) that is qualified under Section 401
of the Internal Revenue Code; (vi) any claim to which you may be entitled under
any employee welfare benefit plan (as defined in Section 3(1) of ERISA) that is
in the nature of medical, dental or vision services or other health plan with
respect to health services received prior to the Effective Date; (vii) any
rights to elect continuing coverage under a medical plan, either as a matter of
law or as a matter of contract, including rights under Section 601 et seq. of
ERISA and Section 4980B of the Internal Revenue Code ("COBRA"); and (viii) your
rights under this Agreement. You represent that you have not commenced or joined
in any claim, charge, action or proceeding whatsoever against any of the Company
Releasees that would be released by the limited release set forth in this
paragraph 3. The Company represents that the Company Releasees have not,
individually
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or collectively, commenced or joined in any claim, charge, action or proceeding
whatsoever, against any of the Employee Releasees that would be released by the
limited release set forth in this paragraph 3.
4. On the Effective Date, the Company shall pay you the amount
previously agreed to be the amount (less all applicable federal, state and local
withholding taxes) owed you for accrued and unpaid vacation days, and you shall
not accrue any additional vacation days after the Effective Date. In
consideration of your execution and compliance with the terms and conditions of
this Agreement, including but not limited to paragraphs 1, 2 and 3 above, the
Company agrees to pay you the amount of $528,895 to be paid in thirteen (13) bi-
weekly installments (the "Payment Period"), less all applicable federal, state
and local withholding taxes (if any are required), to be payable, commencing on
February 5, 2001, in accordance with the Company's ordinary payroll practices.
You acknowledge that, subject to Section 3(a) hereof, the amounts referred to in
this paragraph 4 are in lieu of and in full satisfaction of any amounts that
might otherwise be payable under any contract, plan, policy or practice, past or
present, of the Company, or any of its respective subsidiaries and affiliates,
including but not limited to your Contract of Employment dated December 22, 1999
and as amended on April 13, 2000 (the "Employment Agreement"). You further
acknowledge that, except for the amounts to be paid for accrued and unpaid
vacation days, the amounts referred to in this paragraph 4 shall not be included
in the computation of benefits under any Company benefit plan.
5. You shall be entitled to receive from the Company, at the
Company's expense, through the one year anniversary of the Effective Date, the
same medical coverage, disability coverage and life insurance as are currently
in effect for you and your dependents, subject, however, to reduction to the
extent you obtain similar coverage from a subsequent employer. In the event that
you do not qualify under the Company's medical coverage, disability coverage and
life insurance plans, you may elect to receive continued coverage under the
Company's medical plan pursuant to the provisions of COBRA. The Company will
reimburse you for the cost of premiums for such coverage during the twelve (12)
month period. Except for the foregoing and subject to Section 3(a) hereof, after
the Effective Date you shall not be eligible to participate or continue to
participate in any employee benefit plans or executive compensation arrangements
of the Company or any of its respective subsidiaries and affiliates, but you
shall be provided such benefits and perquisites as are provided generally to the
Company's outside directors.
6. You agree that, except as required by law, you will not make or
publish any statement which is, or may reasonably be considered to be,
disparaging to the Company or its directors, officers or employees. The Company
agrees that, except as required by law, it will not make or publish any
statement which is, or may reasonably be considered to be, disparaging to you.
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7. This Agreement, including the Company's offer of and your
acceptance of this Agreement, is not intended to be, and shall not be construed
as, an admission or concession by the Company or you, or by any Releasee under
this Agreement, with respect to the existence or validity of any liability,
claim or defense, except that the Company and you intend that this Agreement be
fully enforceable in accordance with its terms.
8. You agree that at all times hereafter, you shall maintain the
confidentiality of all information, in whatever form, concerning the Company and
any of its subsidiaries and affiliates, at any level, relating to its or their
businesses, customers, finances, strategic or other plans, marketing, employees,
trade practices, trade secrets, know how or other matters that are not publicly
known outside the Company, and shall not, directly or indirectly, make any
disclosure thereof to anyone outside of the Company (or its attorneys, auditors,
accountants or other retained professionals), or make any use thereof, on your
own behalf or on behalf of any third party, unless specifically requested by or
agreed to in writing by the Board of Directors or an executive officer of the
Company; provided, however, that nothing herein shall prevent disclosure of such
information where, in the reasonable opinion of the Company's or your counsel,
such disclosure is required by law, or where such disclosure is required in
response to any governmental request, or any subpoena, court or administrative
order, or other compulsory process.
9. If you so elect in writing at the time of the execution of this
Agreement, the Company will arrange to transfer the lease for the motor vehicle
that the Company has previously provided for your use to you, whereupon you will
make all further lease payments and assume the obligation of paying all other
costs associated therewith. You shall be permitted to keep all computer
equipment (including, but not limited to, a Palm Pilot and laptop) and
communications equipment previously provided to you by the Company for use
outside of the Company's offices (collectively, "At-Home IT Equipment").
10. You agree that during the Payment Period you shall not knowingly
solicit the employment or services of any person who you know is, at the time of
such solicitation, employed by or a consultant to the Company. Nothing herein
shall limit any duties you may have as a director of the Company with respect to
the solicitation or hiring of individuals who are employed by or consultants to
the Company.
11. It is the desire and intent of the parties that the provisions of
this Agreement shall be enforced to the fullest extent permissible under the
applicable law. In the event that any one or more of the provisions of this
Agreement shall be held to be invalid, illegal or unenforceable, the validity,
legality and enforceability of the remainder of this Agreement shall not in any
way be affected or impaired thereby. Moreover, if any
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one or more of the provisions contained in this Agreement is held to be
excessively broad as to duration, scope, activity or subject, such provisions
shall be construed by limiting and reducing them so as to be enforceable to the
maximum extent compatible with applicable law.
12. This Agreement sets forth the entire agreement and understanding
of the parties and supersedes all prior agreements, arrangements and
understandings, written or oral, between the parties with respect to your
employment with the Company and its affiliates or service as an officer or
director of any thereof and the termination of such employment, and except to
the extent explicitly set forth herein, relieves you of any obligations set
forth in any such agreements, arrangements and understandings, including without
limitation, any obligation not to compete against the Company.
13. The Company will promptly seek and use its best efforts to obtain,
by not later than the first Omnibus hearing date available to the Company in
January 2001, the approval of the United States Bankruptcy Court for the
District of Delaware with regard to this Agreement (including, without
limitation, approval to make, in full and at the times specified in this
Agreement, all payments to you provided for in this Agreement). If the Company
fails to obtain such approval by February 5, 2001, either the Company or you may
elect to declare this Agreement terminated, whereupon this Agreement shall be
rendered null and void, and you and the Company each shall be permitted to
assert any and all claims which otherwise would have been released under the
terms of this Agreement.
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14. For the purposes of this Agreement, notices, demands, and all
other communications provided for hereunder shall be in writing and shall be
deemed to have been duly given when hand delivered or (unless otherwise
specified) when mailed by United States certified mail, return receipt
requested, postage prepaid, addressed as follows:
To you at:
Xxxxxxx X. Beans, Jr.
0 Xxxxx Xxxx Xxxx
Xxxxxx Xxxxx Xxxxxxx, XX 00000
with a copy to the attention of:
Xxxxx X. Xxxx, Esq.
Solomon, Zauderer, Ellenhorn, Xxxxxxxx & Xxxxx
00 Xxxxxxxxxxx Xxxxx
Xxx Xxxx, XX 00000
To the Company to the attention of:
General Counsel
ICG Communications, Inc.
000 Xxxxxxxxx Xxxxx Xxxx
Xxxxxxxxx, XX 00000
with a copy to the attention of:
J. Xxxxxxx Xxxxxx, Esq.
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
0 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
or to such other address as any party may have furnished to the
other in writing in accordance herewith, except that notices of change of
address shall be effective only upon receipt.
15. No provision of this Agreement may be modified or discharged
unless such modification or discharge is authorized and agreed to in writing,
signed by the Company and you. No waiver by either party of any breach by the
other party of any condition or provision of this Agreement to be performed by
such other party shall be deemed a waiver of any other provision or condition at
the time or at any prior or subsequent time.
16. This Agreement and all rights, duties and remedies hereunder shall
be governed by and construed and enforced in accordance with the laws of the
State of Delaware, without reference to its choice of law rules. This Agreement
may be executed
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in two or more counterparts, each of which shall be deemed an original but all
of which together shall constitute one and the same instrument.
If the above sets forth our agreement as you understand it and consent
to it, please so signify by executing the enclosed copy of this letter and
return it to me at the address listed above.
Very truly yours,
/s/Xxxxxxx X. Xxxxxx
-----------------------
Xxxxxxx X. Xxxxxx
Chief Executive Officer
Agreed to and Accepted:
/s/ Xxxxxxx X. Beans, Jr.
Dated: 1-11-2001
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