EXHIBIT 10.1
RESTRUCTURING SERVICES AGREEMENT
RESTRUCTURING SERVICES AGREEMENT, dated as of October 16, 2002 (the
"Agreement"), by and among WilTel Communications Group, Inc. (the "Company"), a
Nevada corporation, and Leucadia National Corporation, a New York corporation
("Leucadia").
WHEREAS, on October 15, 2002, the Company emerged from chapter 11
proceedings under title 11 of the United States Code 11 U.S.C. Sections 101 et
seq. (the " Bankruptcy Code") in the United States Bankruptcy Court for the
Southern District of New York; and
WHEREAS, following emergence from chapter 11 proceedings, the business,
operations and prospects of the Company will continue to require review and
restructuring; and
WHEREAS, Leucadia, directly and through its subsidiaries, has the
capability to provide advice and assistance to the Company with respect to such
matters; and
WHEREAS, the Audit Committee of the Board of Directors of the Company
has reviewed and approved the terms of this Agreement; and
WHEREAS, in reliance on the review and approval by the Audit Committee
of this Agreement, the Board of Directors of the Company (the "Board") has
determined that it is in the best interests of the Company to obtain such
services from Leucadia and its subsidiaries on the terms set forth below.
1. Term. The term of this Restructuring Services Agreement shall
be one year commencing on the date hereof, subject to earlier termination in
accordance with the provisions of this Agreement.
2. Compensation. Leucadia shall receive no separate compensation
for services rendered hereunder, but shall be reimbursed for all expenses
incurred in the performance of this Agreement in accordance with the terms
hereof.
3. Services of Leucadia. Subject to the authority of the Board of
Directors, Leucadia shall provide to the Company restructuring advice with
respect to the management, operations and future business opportunities of the
Company, and such other matters as may be mutually determined between Leucadia
and the Company.
4. Personnel. Leucadia shall provide a portion of the time of
such executive officers or other employees of Leucadia and its subsidiaries as
Leucadia reasonably determines is necessary to carry out the services required
hereunder. The
number of persons providing services at any one time and the number of hours
such persons devote to the services specified herein shall not be fixed but
shall at all times be adequate to properly and promptly perform and discharge
the specified services.
The persons provided by Leucadia hereunder shall for all purposes be
employees of Leucadia. Neither Leucadia nor its employees shall be entitled to
receive any compensation for services rendered under this Agreement other than
the reimbursement for all reasonable, documented out of pocket expenses,
including reimbursement of travel expenses. In this regard, the Company shall
make available to Leucadia's employees rendering services under this Agreement
travel on Company owned or operated airplanes, if feasible. The use of such
airplanes shall be subject to the Company's policies regarding scheduling.
Nothing herein shall prevent, however, any individual provided hereunder from
becoming an elected or appointed officer or director of the Company and enjoying
the benefits and protections (including indemnification , but not including
compensation) afforded to any persons in any such position.
5. Office Space, Equipment and Supplies, Etc. The Company shall
provide to Leucadia and its personnel provided hereunder office space,
secretarial services, equipment and supplies, telephone, telefax and related
support facilities to the extent available at the Company's regular work
locations.
6. Company Expenses. Subject to paragraph 4 above, the Company
will continue to bear the cost and expense of its own employees, including their
salary, travel, entertainment, other business and benefit expenses.
7. Termination. This Agreement shall remain in full force and
effect for the term set forth in Section 1 hereof unless, either Leucadia or the
Board of Directors of the Company gives notice of its election to terminate this
Agreement on not less than 90 days prior written notice. However, any
termination (whether under this paragraph or otherwise) shall not relieve the
Company of its obligation to reimburse Leucadia for expenses incurred through
the termination date which have not been paid to Leucadia as of the date of such
termination.
8. Governing Law. This Agreement shall be governed in accordance
with the laws of the State of New York.
9. Assignment. Neither party may assign this Agreement or any of
its rights or duties hereunder, except that Leucadia may assign this Agreement
to any entity that is controlled by, controlling or under common control with
Leucadia.
10. Notices. Services of all notices, if any, under this
Agreement shall be sufficient if given personally or sent by certified,
registered mail, return receipt requested, or telefax to the addresses set forth
below:
If to Company, at:
WilTel Communications Group, Inc.
Xxx Xxxxxxxxxx Xxxxxx
Xxxxx, Xxxxxxxx 00000
Attention: President
Facsimile No.: (000) 000-0000
with a copy (which shall not constitute notice) to:
WilTel Communications Group, Inc
Xxx Xxxxxxxxxx Xxxxxx
Xxxxx, Xxxxxxxx 00000
Attention: General Counsel
Facsimile No.: (000) 000-0000
If to Leucadia, at:
Leucadia National Corporation
000 Xxxx Xxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxxxxx, President
Facsimile No.: (000) 000-0000
with a copy (which shall not
constitute notice) to:
Weil, Gotshal & Xxxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxxxxx, Esq.
Facsimile No: (000) 000-0000
or at such other address as may be substituted by notice given as herein
provided. The giving of any notice required hereunder may be waived in writing
by the party entitled to receive such notice. Every notice, demand, request,
consent, approval, declaration, delivery or other communication hereunder shall
be deemed to have been duly given or served on the date on which personally
delivered, with receipt acknowledged, telecopied and confirmed by telecopy
answerback or three business days after the same shall have been deposited in
the United States mail.
11. Confidentiality. Leucadia agrees that it shall keep
confidential all of the Company's confidential information that it obtains with
respect to the Company and its subsidiaries during the term of this Agreement
except for (i) such information that enters the public domain other than by
reason of a breach by Leucadia of this Agreement, (ii) information that Leucadia
is required by law or the rules of any stock exchange on which Leucadia's
securities are traded to disclose or (iii) information that becomes
available to Leucadia on a non-confidential basis prior to disclosure of such
information by the Company . Leucadia acknowledges that the securities laws of
the United States prohibit any person who has material, non-public information
concerning the Company from purchasing or selling securities in reliance upon
such information or from communicating such information to any other person or
entity under circumstances in which it is reasonably foreseeable that such
person or entity is likely to purchase or sell such securities in reliance on
such information. The foregoing acknowledgement shall not in any way limit
Leucadia's obligation to maintain the confidentiality of the confidential
information received under this Agreement. Leucadia agrees that it will comply
with the xxxxxxx xxxxxxx policies adopted by the Company as such policies may be
amended from time to time.
12. Attorney-Client Privilege - Leucadia acknowledges that it may
receive confidential communications within the scope of the Attorney-Client
Privilege that exists between the Company and its attorney. For the purpose of
such communications, Leucadia shall be a "representative of the client" as such
term is defined in 12 Okla. St. Section 2502. Leucadia shall not waive the
privilege without the prior consent of the Company and shall notify the Company
of any request or requirement to disclose any privileged communications so that
the Company can seek a protective order or other appropriate remedy or waive the
privilege.
IN WITNESS WHEREOF, the parties hereto have caused this Restructuring Services
Agreement to be duly executed on the date first written above.
WILTEL COMMUNICATIONS GROUP, INC.
By /s/ Xxxx X. Xxxxxx
--------------------------
Name: Xxxx X. Xxxxxx
Title: President
LEUCADIA NATIONAL CORPORATION
By: /s/ Xxxxxx X. Orlando
--------------------------
Name: Xxxxxx X. Orlando
Title: Vice President
