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EXHIBIT 10.7
SEPARATION AGREEMENT
THIS SEPARATION AGREEMENT (this "Agreement") is made and entered into this
30th day of September, 1999, by and between THE XXXXXXXX COMPANIES, INC.,
a Delaware corporation ("Xxxxxxxx"), and XXXXXXXX COMMUNICATIONS GROUP, INC., a
Delaware corporation ("Communications"),
WHEREAS, Communications plans to sell shares of its Class A Common Stock,
par value $.01 per share ("Class A Common Stock"), to the public in an
underwritten initial public offering ("Initial Public Offering") and to certain
other parties pursuant to private placements;
WHEREAS, Xxxxxxxx will continue to hold all of the issued and outstanding
Class B Common Stock ("Class B Common Stock"), par value $.01 per share, of
Communications after the closing of these sales of the Class A Common Stock, and
WHEREAS, it is appropriate and desirable to set forth certain agreements
that will govern certain matters relating to the Initial Public Offering and the
conduct of business after its closing and the relationship of Xxxxxxxx and
Communications and their respective subsidiaries following the Initial Public
Offering,
NOW, THEREFORE, the parties agree, intending to be legally bound, as
follows:
ARTICLE I
DEFINITIONS
1.01. DEFINITIONS. As used in this Agreement, in addition to the terms
defined in the Preamble and Recitals hereof, the following terms shall have the
following meanings, applicable to both the singular and plural forms of the
terms described:
"ACTION" shall mean any demand, action, suit, countersuit, arbitration,
inquiry, proceeding or investigation by or before any federal, state, local or
foreign or international Governmental Authority or any arbitration or mediation
tribunal.
"ADMINISTRATIVE SERVICES AGREEMENT" means the Agreement attached hereto as
Exhibit 1.
"AGREEMENT" shall have the meaning ascribed to it in the Preamble.
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"ANCILLARY AGREEMENT" shall mean and include the Administrative Services
Agreement, the Registration Rights Agreements, the Tax Sharing Agreement, the
Cross-License Agreement, the Service Agreement, the Indemnification Agreement,
and the Technical, Management and Administrative Services Agreement.
"BUSINESS DAY" means any calendar day which is not a Saturday, Sunday or
public holiday under the laws of the State of New York.
"CLOSING" means the consummation of the purchase and sale of shares of the
Class A Common Stock pursuant to the Initial Public Offering.
"CLOSING DATE" means the date on which the Closing occurs.
"COMMUNICATIONS ACTIVITIES" shall mean and include all business activities
and lines of business conducted by any member of the Communications Group on the
Closing Date that is not a member of the Xxxxxxxx Group at the Closing Date;
provided however, that until such time, if ever, as Communications shall acquire
the Lightel Investment, the Xxxxxxxx Group's activities with respect to the
Lightel Investment, including the making of any additional investment in
Lightel, shall not be deemed to be included in Communications Activities.
"COMMUNICATIONS GROUP" shall mean Communications and its direct and indirect
subsidiaries.
"CROSS-LICENSE AGREEMENT" means the Agreement attached hereto as Exhibit 4.
"EMPLOYEE BENEFITS AGREEMENT" means the Agreement attached hereto as
Exhibit 9.
"ENERGY ACTIVITIES" shall mean and include all business activities and lines
of business conducted by any member of the Xxxxxxxx Group on the Closing Date
that is not a member of the Communications Group at the Closing Date; provided
however, that after such time, if ever, as Communications shall acquire the
Lightel Investment, the Communications Group's activities with respect to the
Lightel Investment, including the making of any additional investment in
Lightel, shall not be deemed to be included in Energy Activities.
"GOVERNMENTAL AUTHORITY" shall mean any federal, state, local, foreign or
international court, government, department, commission, board, bureau, agency,
official or other regulatory administrative or governmental authority.
"GROUP" means the Communications Group or the Xxxxxxxx Group, as the context
requires.
"INDEMNIFICATION AGREEMENT" means the Agreement attached hereto as
Exhibit 6.
"INFORMATION" means any Information, whether or not patentable or
copyrightable in
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written, oral or electronic or other tangible or intangible forms, stored in any
medium, including studies, reports, records, books, contracts, instruments,
surveys, discoveries, ideas, concepts, know-how, techniques, designs,
specifications, drawings, blueprints, diagrams, models, prototype samples,
computer date, disks, diskettes, tapes, computer programs or other software,
marketing plans, customer names, Communications by or to attorneys, memos and
other materials prepared by attorneys and any other technical, financial
employee or business information or data.
"LIGHTEL" means Xxxxxxx X.X. -- Technologic da Informacao.
"LIGHTEL INVESTMENT" means the equity and debt investments of Xxxxxxxx in
Xxxxxxx from time to time.
"OPERATION, MAINTENANCE AND REPAIR AGREEMENT" means the Agreement attached
hereto as Exhibit 7.
"REGISTRATION RIGHTS AGREEMENT" means the Agreement attached hereto as
Exhibit 2.
"SEPARATION COMMITTEE" has the meaning specified in Section 3.01.
"SERVICE AGREEMENT" means the Agreement attached hereto as Exhibit 5.
"TAX SHARING AGREEMENT" means the Agreement attached hereto as Exhibit 3.
"XXXXXXXX GROUP" shall mean Xxxxxxxx and its direct and indirect
subsidiaries except the Communications Group.
ARTICLE II
CERTAIN BUSINESS MATTERS
2.01 NON-COMPETITION. (a) Except as permitted under this Section 2.01, no
member of the Communications Group shall, for a period of five years from the
Closing Date, engage in Energy Activities or any activities or lines of business
similar to Energy Activities.
(b) Except as permitted under this Section 2.01, no member of the Xxxxxxxx
Group shall, for a period of five years from the Closing Date, engage in
Communications Activities.
(c) No member of the Communications Group or the Xxxxxxxx Group shall have
any duty to refrain from doing business with any potential or actual supplier or
customer with any member of the other Group or engage in or refrain from any
activities whatsoever relating to any of the potential or actual customers or
suppliers of the other Group except as provided herein.
(d) Notwithstanding the other provisions of this Section 2.01 to the
contrary, the Xxxxxxxx
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Group, on the one hand, and the Communications Group, on the other hand, shall
be permitted to pursue business opportunities that are reserved to the other
Group if the Group permitted to pursue such opportunities shall determine not to
pursue them. In this regard, each party agrees that if one of the parties (the
"proposing party") notifies in writing the other party (the "receiving party")
that the proposing party desires to pursue an opportunity that the proposing
party is prohibited from pursuing under this Section 2.01, the receiving party
shall notify the proposing party (i) within ten (10) Business Days following its
receipt of the proposing party's notice whether the receiving party intends in
good faith to pursue the same opportunity and (ii) promptly following any
subsequent determination by the receiving party not to pursue such opportunity
of such determination. The proposing party shall be permitted to pursue an
opportunity as to which it has given a notice pursuant to this Section 2.01(d)
in the event that (i) the receiving party fails to notify the proposing party
within the required period of the receiving party's good faith intention to
pursue such opportunity or (ii) the receiving party notifies the proposing party
of the receiving party's determination not to pursue such opportunity.
(e) Notwithstanding the other provisions of this Section 2.01 to the
contrary, the Xxxxxxxx Group, on the one hand, and the Communications Group, on
the other hand, shall be permitted to make acquisitions of and investments in
any entity engaged in activities that are reserved to the other Group provided
that those activities that are reserved to the other Group represented in such
entity's most recently completed fiscal year not more than 30% of the
consolidated revenues or net income of the entity being acquired or in which the
investment is being made. In the event that the Xxxxxxxx Group or the
Communications Group makes such an acquisition and in connection therewith
acquires all of the equity of the activities reserved to the other Group, it
will provide to the other Group a right of first offer to acquire such
activities should such activities be disposed of prior to five years following
the Closing Date.
2.02 EXCHANGE OF INFORMATION. (a) Each of Xxxxxxxx and Communications on
behalf of its respective Group agrees to provide or cause to provide to the
other Group at any time after the Closing as soon as reasonably practicable
after written notice therefor any Information in the possession or in control of
such respective Group which the requesting party reasonably needs: (i) to comply
with reporting, disclosure, filing or other requirements imposed on the
requesting party (including under applicable securities or tax laws) by a
Governmental Authority having jurisdiction over the requesting party, (ii) for
use in any other judicial, regulatory, administrative tax or other proceedings
or in order to satisfy audit, accounting, claims, regulatory, litigation, tax or
other similar requirements, or (iii) to comply with its obligations under this
Agreement or any similar Agreements; provided, however, that in the event that
any party determines that any such a provision of Information could be
commercially detrimental, violate any law or Agreement, or waive any
attorney-client privilege, the parties shall take all reasonable measures to
permit the compliance with such obligations in a manner that avoids any such
harm or consequence.
(b) After the Closing Date, Communications shall have access during regular
business hours (as in effect from time to time) to the documents and objects of
historical significance that relate to the Communications Business that are
located in the Xxxxxxxx records. Communications may obtain copies (but not
originals) of documents for bona fide business purposes. Communications
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shall pay reasonable per hour costs for archives research services. Nothing
herein should be deemed to restrict the access of any member of the Xxxxxxxx
Group to any such documents or objects or to impose any liability on any member
of the Xxxxxxxx Group if any such documents or objects are not maintained or
preserved by Xxxxxxxx.
(c) After the date hereof, (i) Communications shall maintain and effect at
its own cost and expense adequate systems and controls to the extent necessary
to enable members of the Xxxxxxxx Group to satisfy their respective reporting,
accounting, audit and other obligations, and (ii) Communications shall provide
or cause to be provided to Xxxxxxxx such form as Xxxxxxxx shall request at no
charge to Xxxxxxxx all financial and other data and information that Xxxxxxxx
determines necessary in order to prepare Xxxxxxxx' financial statements and
reports or filings with any Governmental Authority.
2.03 OWNERSHIP OF INFORMATION. Any Information owned by one Group that is
provided to a requesting party pursuant to this Agreement shall be deemed to
remain the property of the providing party. Unless specifically set forth
herein, nothing contained in this Agreement should be construed as granting or
conferring rights or licenses or otherwise in any such Information.
2.04 COMPENSATION FOR PROVIDING INFORMATION. The party requesting such
Information agrees to reimburse the other party for the reasonable cost, if any,
of creating, gathering or copying such Information, to the extent that such
costs are incurred for the benefit of the requesting party. Except as may be
otherwise specifically provided elsewhere in this Agreement or any other
Agreement between the parties, such cost shall be computed in accordance with
the providing party's standard methodology and procedures.
2.05 RECORD RETENTION. To facilitate the possible exchange of Information
pursuant to this Agreement after the Closing Date, the parties agree to use
their reasonable best efforts to retain all Information in their respective
possession or control in accordance with the records retention policies of
Xxxxxxxx as in effect of the Closing Date as such may from time to time be
changed. No party will destroy or permit any of its subsidiaries to destroy any
Information which the other party may have the right to obtain pursuant to this
Agreement prior to the third anniversary of the Closing Date without first using
its reasonable best efforts to notify the other party of the proposed
destruction and giving the other party the opportunity to take possession of
such Information prior to such destruction; provided, however, that in the case
of any Information relating to Taxes or to environmental liabilities, such
period shall be extended to expiration of the applicable statute of limitations
(giving effect to any extensions thereof).
2.06 LIMITATION OF LIABILITY. No party shall have any liability to any other
party in the event that any Information exchanged or provided pursuant to this
Agreement which is an estimate or forecast, or which is based on an estimate or
forecast, is found to be inaccurate in the absence of willful misconduct by the
party providing such Information. No party shall have any liability to any other
party if any Information is destroyed after the reasonable best efforts by such
party to comply with the provisions of this Agreement.
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2.07 OTHER AGREEMENTS PROVIDING FOR EXCHANGE OF INFORMATION. The rights and
obligations granted under this Agreement are subject to any specific
limitations, qualifications or additional provisions on the sharing, exchange or
confidential treatment of Information as set forth in any other agreement
between the parties.
2.08 PRODUCTION OF WITNESSES, RECORDS AND COOPERATION. After the Closing
Date, taking the case of an adversarial action by one party against another
party, which shall be governed by such discovery rules as may be applicable
under Section III or otherwise, each party hereto shall use its reasonable best
efforts to make available to each other party upon written request the former,
current and future directors, officers, employees, other personnel and agents
and the members of its respective Group as witnesses, and any books, records or
other documents within its control or which it otherwise has the ability to make
available, to the extent that any such person (given consideration to business
demands of such directors, officers, employees, other personnel and agents) or
books, records or other documents may be reasonably required in connection with
any Action in which the requesting party may from time to time be involved
regardless of whether such Action is a matter with respect to its
indemnification may be sought. The requesting party shall bear all costs and
expenses (including allocated costs of in-house counsel and other personnel) in
connection therewith.
2.09 CONFIDENTIALITY. Each of the parties hereto on behalf of itself and
each member of its respective Group agrees to hold and to cause its respective
directors, officers, employees, agents, accountants, counsel and other advisors
and representatives to hold in strict confidence with at least the same degree
of care that applies to Xxxxxxxx confidential and proprietary information
pursuant to policies in effect and practices in place on the Closing Date, all
information concerning each other Group that is either in its possession
(including Information in its possession prior to the Closing Date) or furnished
by any such group or its respective directors, officers, employees, agents,
accountants, counsel or other advisors and representatives at any time pursuant
to this Agreement and shall not use any of such Information other than for
purposes expressly permitted hereunder.
2.10 PROTECTIVE ARRANGEMENTS. In the event that any party and any member of
its Group either determines on the advice of its counsel that it is required to
disclose any Information pursuant to applicable law or receives any demand under
lawful process or from any Governmental Authority to disclose or provide
Information of any other party (or any other member of any other party's Group)
that is subject to the confidentiality provisions hereof, such party shall
notify the other party prior to disclosing or providing such Information and
shall cooperate at the expense of the requesting party in seeking any reasonable
protective arrangements requested by such other party. Subject to the foregoing,
the Person that receives such request may thereafter disclose or provide
Information to the extent required by such law (as so advised by counsel) by
lawful process of such Governmental Authority.
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ARTICLE III
SEPARATION COMMITTEE AND ARBITRATION
3.01 SEPARATION COMMITTEE. Immediately after the Closing, Xxxxxxxx and
Communications shall form a committee (the "Separation Committee") comprised of
one representative designated from time to time by the general counsel of
Communications and one representative designated from time to time by the
general counsel of Xxxxxxxx. The Separation Committee shall be responsible for
resolving any and all disputes between any member of the Xxxxxxxx Group and any
member of the Communications Group arising with respect to any matter, whether
based on contract, tort, statute or otherwise (collectively, "Disputes"),
including any Dispute as to (i) whether any Action or other Liability is a
Xxxxxxxx Liability or a Communications Liability, (ii) whether any asset belongs
to a member of the Xxxxxxxx Group or the Communications Group, (iii) the
interpretation of any provision of this Agreement or any Ancillary Agreement,
and (iv) such matters as are contemplated by this Agreement or any Ancillary
Agreement to be resolved by the Separation Committee. In the event of any such
Dispute, each member of the Xxxxxxxx Group and the Communications Group shall
have the right to refer in writing such Dispute to the Separation Committee for
resolution. The Separation Committee shall be required to render a written
decision with respect to any Dispute within thirty (30) days of its receipt of
referral. The decision of the Separation Committee with respect to any Dispute
shall be binding on the Xxxxxxxx Group and the Communications Group and their
respective successors and assigns. In the event that the Separation Committee is
unable to reach a unanimous determination as to any Dispute to which it is
referred within thirty (30) days of such referral, each member of the Xxxxxxxx
Group and Communications Group involved in such Dispute shall have the right to
submit such Dispute to arbitration in accordance with the procedures set forth
below. All out-of-pocket expense and costs incurred by any member of the
Xxxxxxxx Group or any member of the Communications Group in connection with the
procedures set forth in this section shall be borne by the party incurring such
expenses and costs.
3.02 AGREEMENT TO ARBITRATE. Except as otherwise specifically provided in
any Ancillary Agreement, the procedures for discussion, negotiation and
arbitration set forth in this Article III shall apply to all disputes,
controversies or claims (whether sounding in contract, tort or otherwise) that
may arise out of or relate to, or arise under or in connection with this
Agreement or any Ancillary Agreement, or the transactions contemplated hereby or
thereby (including all actions taken in furtherance of the transactions
contemplated hereby or thereby on or prior to the date hereof), or the
commercial or economic relationship of the parties relating hereto or thereto,
between or among any member of the Xxxxxxxx Group or the Communications Group.
Each party agrees on behalf of itself and each member of its respective Group
that the procedures set forth in this Article III shall be the sole and
exclusive remedy in connection with any dispute, controversy or claim relating
to any of the foregoing matters and irrevocably waives any right to commence any
Action in or before any Governmental Authority. Each party on behalf of itself
and each member of its respective Group irrevocably waives any right to any
trial by jury with respect to any claim, controversy or dispute set forth in the
first sentence of this Section 3.01.
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ARTICLE IV
FURTHER ASSURANCE AND ADDITIONAL COVENANTS
4.01 FURTHER ASSURANCES. (a) In addition to the actions specifically
provided for elsewhere in this Agreement, each of the parties hereto shall use
its reasonable best efforts, prior to, on and after the Closing Date, to take,
or cause to be taken, all actions, and to do, or cause to be done, all things,
reasonably necessary, proper or advisable under applicable laws, regulations and
agreements to consummate and make effective the transactions contemplated by
this Agreement and the Ancillary Agreements.
(b) Without limiting the foregoing, prior to, on and after the Closing Date,
each party hereto shall cooperate with the other parties, and without any
further consideration, but at the expense of the requesting party, to execute
and deliver, or use its reasonable best efforts to cause to be executed and
delivered, all instruments, including instruments of conveyance, assignment and
transfer, and to make all filings with, and to obtain all consents, approvals or
authorizations of any Governmental Authority or any other Person under any
permit, license, agreement, indenture or other instrument (including any
consents or governmental approvals), and to take all such other actions as such
party may reasonably be requested to take by any other party hereto from time to
time, consistent with the terms of this Agreement and the Ancillary Agreements,
in order to effectuate the provisions and purposes of this Agreement and the
Ancillary Agreements and the transfers of assets and the assignment and
assumption of liabilities and the other transactions contemplated hereby and
thereby. Without limiting the foregoing, each party will, at the reasonable
request, cost and expense of any other party, take such other actions as may be
reasonably necessary to vest in such other party good and marketable title, free
and clear of any security interest, if and to the extent it is practicable to do
so.
(c) Prior to the Closing Date, if one or more of the parties identifies any
commercial or other service that is needed to assure a smooth and orderly
transition of the businesses in connection with the consummation of the
transactions contemplated hereby, and that is not otherwise governed by the
provisions of this Agreement or any Ancillary Agreement, the parties will
cooperate in determining whether there is a mutually acceptable arm's-length
basis on which one or more of the other parties will provide such service.
(d) Communications hereby assumes that portion of Xxxxxxxx' obligations
related to Communications and its subsidiaries under both: (i) that certain
agreement between Xxxxxxxx WPC - I, Inc. ("WPC") and The Xxxxxxxx Companies,
Inc., dated September 21, 1998, whereby Xxxxxxxx compensates WPC for
performances of services by WPC on behalf of Communications and its
subsidiaries; and (ii) that certain agreement among Xxxxxxxx Risk Management
L.L.C. ("WRM") and The Xxxxxxxx Companies, Inc., and Xxxxxxxx WPC - I, Inc.,
dated September 21, 1998, whereby Xxxxxxxx compensates WRM for performance of
Xxxxxxxx' risk management obligations on behalf of Communications and its
subsidiaries.
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ARTICLE V
INSURANCE MAINTAINED BY XXXXXXXX
5.01. (a) Xxxxxxxx shall continue to offer and to provide to the members of
the Communications Group the insurance coverage described in Exhibit 8 hereto,
and any other insurance coverage that members of the Communications Group may
from time to time reasonably request, to the extent such insurance is
commercially suitable. Xxxxxxxx shall offer and provide such insurance coverage
on premium and coverage terms that are consistent with past practices or
practices applied to Xxxxxxxx and its subsidiaries. It is understood that some
of the insurance coverages listed in Exhibit 8 may include the interests of
Xxxxxxxx and its subsidiaries as insureds, which interests shall be governed by
and terminated in accordance with past practices. Xxxxxxxx' obligation pursuant
to this Section 5.01 shall terminate ninety (90) days after the date which
members of the Xxxxxxxx Group shall cease to own capital stock representing in
the aggregate more than 50% of the voting power of the outstanding voting stock
of Communications; provided that no such termination shall have the effect of
shortening or terminating the period of coverage of any such insurance policy
then currently in effect; and provided further, that Xxxxxxxx shall cooperate
with the members of the Communications Group after such date to find mutually
acceptable arrangements whereby the insurance coverage referred to in this
Section shall continue to be made available to the members of the Communications
Group if they so choose.
(b) Communications shall be responsible for any and all claims, liabilities
and losses against it (and related expenses), including the deductibles (and
self-insurance retention) applicable to the insurance coverage referred to in
Section 5.01(a). Unless otherwise mutually agreed to in writing, Xxxxxxxx shall
have the sole and absolute authority to administer any and all claims filed
under any policy referred to in this Article V and any other insurance coverage
or self-insurance relating to periods prior to the effective date of this
agreement, against any member of the Communications Group, including, without
limitation, decisions regarding the settlement of any and all claims.
ARTICLE VI
EMPLOYEE BENEFITS
6.01 EMPLOYEE BENEFIT PLAN. The relationship of the parties with respect to
certain matters relating to employees and employee benefits will be governed by
the Employee Benefits Agreement attached hereto as Exhibit 9.
ARTICLE VII
EFFECTIVENESS
7.01 EFFECTIVENESS. This Agreement shall become effective at the Closing.
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ARTICLE VIII
SUCCESSORS AND ASSIGNS
8.01 SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon the
parties hereto and their respective successors and permitted assigns and shall
inure to the benefit of the parties hereto and their respective successors and
permitted assigns. This Agreement may not be assigned by either party hereto to
any other person without the prior written consent of the other party hereto.
ARTICLE IX
NO THIRD-PARTY BENEFICIARIES
9.01 NO THIRD-PARTY BENEFICIARIES. Except for the persons entitled to
indemnification pursuant to Article II or Article III hereof, each of whom is an
intended third-party beneficiary hereunder, nothing expressed or implied in this
Agreement shall be construed to give any person or entity other than the parties
hereto any legal or equitable rights hereunder.
ARTICLE X
ENTIRE AGREEMENT
10.01 ENTIRE AGREEMENT. This Agreement constitutes the entire agreement
among the parties with respect to the subject matter hereof.
ARTICLE XI
AMENDMENT
11.01 AMENDMENT. This Agreement may not be amended except by an instrument
signed by the parties hereto.
ARTICLE XII
WAIVERS
12.01 WAIVERS. No waiver of any term shall be construed as a subsequent
waiver of the same term, or a waiver of any other term, of this Agreement. The
failure of any party to assert any of its rights hereunder will not constitute a
waiver of any such rights.
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ARTICLE XIII
SEVERABILITY
13.01 SEVERABILITY. If any provision of this Agreement is invalid, illegal
or incapable of being enforced by any rule of law or public policy, such
provision shall be deemed severable and all other provisions of this Agreement
shall nevertheless remain in full force and effect.
ARTICLE XIV
HEADINGS
14.01 HEADINGS. Section headings in this Agreement are included herein for
convenience of reference only and shall not constitute a part of this Agreement
for any other purpose.
ARTICLE XV
NOTICES
15.01 NOTICES. All notices given in connection with this Agreement shall be
in writing. Service of such notices shall be deemed complete: (i) if hand
delivered, on the date of delivery; (ii) if by mail, on the fourth Business Day
following the day of deposit in the United States mail, by certified or
registered mail, first-class postage prepaid; (iii) if sent by Federal Express
or equivalent courier service, on the next Business Day; or (iv) if by
telecopier, upon receipt by sender of confirmation of successful transmission.
Such notices shall be addressed to the parties at the following address or at
such other address for a party as shall be specified by like notice (except that
notices of change of address shall be effective upon receipt):
IF TO XXXXXXXX:
THE XXXXXXXX COMPANIES, INC.
XXX XXXXXXXX XXXXXX
XXXXX, XXXXXXXX 00000
ATTENTION: XXXXXXX X. XXX XXXXX
FAX NO. 918/000-0000
IF TO COMMUNICATIONS:
XXXXXXXX COMMUNICATIONS GROUP, INC.
XXX XXXXXXXX XXXXXX
XXXXX, XXXXXXXX 00000
ATTENTION: GENERAL COUNSEL
FAX NO.: 918/000-0000
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ARTICLE XVI
GOVERNING LAW
16.01 GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with, the laws of the State of Oklahoma, without giving effect to the
principles of conflict of laws of such state or any other jurisdiction.
ARTICLE XVII
COUNTERPARTS
17.01 COUNTERPARTS. This Agreement may be executed in counterparts, each of
which shall be an original, but all of which together shall constitute but one
and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Separation Agreement
to be executed the day and year first written above.
XXXXXXXX COMMUNICATIONS GROUP, INC.
BY: /s/ G.L. BEST
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NAME: G.L. Best
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TITLE: Vice President
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THE XXXXXXXX COMPANIES, INC.
BY: /s/ XXXX X. XXXXXXXX
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NAME: Xxxx X. XxXxxxxx
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TITLE: Sr. V.P - Finance & CFO
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EXHIBIT 9
EMPLOYEE BENEFITS AGREEMENT
THIS EMPLOYEE BENEFITS AGREEMENT (this "Agreement") is made and entered into
as of September 30, 1999, by and between The Xxxxxxxx Companies, Inc., a
Delaware corporation ("Xxxxxxxx"), and Xxxxxxxx Communications Group, Inc., a
Delaware corporation ("Communications").
W I T N E S S E T H:
WHEREAS, the Board of Directors of Communications has determined that it is
appropriate and desirable for Communications to issue shares of its Class A
Common Stock, par value $0.01 per share, to the public in an initial public
offering (the "Initial Public Offering"); and
WHEREAS, each of Xxxxxxxx and Communications has determined that it is
desirable to set forth herein certain agreements that will govern the
relationship of the parties hereto following the Initial Public Offering with
respect to employees and employee benefits, the terms of which have not resulted
from arms length negotiations between the parties, and accordingly, such terms
may be in some respects less favorable to Communications than those that it
could obtain from unaffiliated third parties.
NOW, THEREFORE, in consideration of the mutual agreements, provisions and
covenants contained in this Agreement, the parties hereby agree as follows:
SECTION I
DEFINITIONS
SECTION 1.01 DEFINITIONS. Whenever used in this Agreement, the following
terms shall have the following meanings, and the definition of such terms are
applicable to the singular as well as the plural forms of such terms and to the
masculine as well as to the feminine and neutral genders of such terms:
"Action" shall mean any action, suit, arbitration, inquiry, proceeding or
investigation by or before any court, any governmental or other regulatory or
administrative agency, body or commission or any arbitration tribunal.
"Benefit Plans" shall have the meaning specified in Section 2.01.
"Code" shall mean the Internal Revenue Code of 1986, as amended, and the
United States Treasury regulations promulgated thereunder, including any
successor legislation.
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"Communications" shall mean Xxxxxxxx Communications Group, Inc.
"Communications Affiliated Group" shall mean, collectively, Communications
and all its direct and indirect Subsidiaries now or hereafter existing.
"Communications Benefit Plans" shall have the meaning specified in Section
2.01.
"Communications Business" shall mean the business of any (i) division,
Subsidiary or enterprise of the Communications Affiliated Group managed or
operated as of the date of this Agreement or any prior or future time by any
member of the Communications Affiliated Group, and (ii) entities acquired or
established by or for the Communications Affiliated Group after the date of this
Agreement.
"Communications Employees" shall mean those employees, former employees,
retirees, agents, and subcontractors of the Communications Affiliated Group.
"Communications Expenses" shall mean (i) all costs accrued or incurred by
Communications in respect of the Communications Benefit Plans and the
Communications Employees, including, but not limited to, all costs related to
the participation of a Communications Employee in the Xxxxxxxx Benefit Plans,
(ii) any expenses relating to fixed assets (including any costs for furniture
and personal computers), (iii) any miscellaneous expenses (including insurance,
travel and entertainment, advertising and licenses) accrued or incurred by
Communications and related to the businesses of the parties hereto, and (iv) any
other corporate costs incurred by Communications.
"Communications Liabilities" shall mean, collectively, (i) all the
Liabilities of the Communications Affiliated Group under this Agreement,
including its allocated portion of Xxxxxxxx Expenses, (ii) all the Liabilities
of the parties hereto or their respective Subsidiaries (whenever arising whether
prior to, at or following the closing of the Effective Date) arising out of or
in connection with or otherwise relating to the management or conduct, before or
after the closing on the Effective Date, of the Communications Business, and
(iii) all other Liabilities based upon, arising out of or in connection with or
otherwise relating to any businesses conducted at any time by the Communications
Affiliated Group.
"Effective Date" shall mean the date on which the Initial Public Offering is
consummated.
"Employee Services" shall have the meaning specified in Section 2.01.
"ERISA" shall mean the Employee Retirement Income Security Act of 1974, as
amended.
"ERISA Event" shall have the meaning specified in Section 2.04(e).
"Initial Public Offering" shall have the meaning specified in the preamble
to this Agreement.
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"Internal Revenue Service" shall mean the United States Internal Revenue
Service.
"Liabilities" shall mean any and all debts, liabilities and obligations
(relating to performance or otherwise), absolute or contingent, matured or
unmatured, liquidated or unliquidated, accrued or unaccrued, known or unknown,
whenever arising, including those debts, liabilities and obligations arising
under any law, rule, regulation, Action, threatened Action, order or consent
decree of any court, any governmental or other regulatory or administrative
agency or commission or any award of any arbitration tribunal, and those arising
under any contract, guarantee, commitment or undertaking.
"Ownership Reduction Date" shall mean the date on which Xxxxxxxx and
Communications cease to be in the same "controlled group of corporations" as
defined in Section 1563(a) of the Code.
"Person" shall mean any individual, corporation, partnership, joint venture,
limited liability company, association or other business entity and any trust,
unincorporated organization or government or any agency or political subdivision
thereof.
"Records" shall have the meaning specified in Section 3.01(a).
"Shared Services Employee" means a Xxxxxxxx Employee who provides services
to both the Xxxxxxxx Affiliated Group and the Communications Affiliated Group.
"Subsidiary" shall mean any corporation, partnership, joint venture or other
Person of which another Person (i) owns, directly or indirectly, ownership
interests sufficient to elect a majority of the board of directors of such
corporation, partnership, joint venture or other Person (or Persons performing
similar functions) (irrespective of whether at the time any other class or
classes of ownership interests of such corporation, partnership, joint venture
or other Person shall or might have such voting power upon the occurrence of any
contingency), or (ii) is a general partner or an entity performing similar
functions (e.g., a trustee or manager).
"Xxxxxxxx" shall mean The Xxxxxxxx Companies, Inc.
"Xxxxxxxx Affiliated Group" shall mean, collectively, Xxxxxxxx and all its
direct and indirect Subsidiaries now or hereafter existing, other than the
Communications Affiliated Group.
"Xxxxxxxx Benefit Plans" shall have the meaning specified in Section 2.01.
"Xxxxxxxx Business" shall mean the businesses of (i) any division,
Subsidiary or enterprise of the Xxxxxxxx Affiliated Group managed or operated as
of the date of this Agreement or any prior or future time by any member of the
Xxxxxxxx Affiliated Group, and (ii) entities acquired or established by or for
the Xxxxxxxx Affiliated Group after the date of this
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Agreement, provided that the term "Xxxxxxxx Business" shall not include the
Communications Business.
"Xxxxxxxx Controlled Group" shall mean, collectively, Xxxxxxxx and all
Persons of which at least eighty percent (80%) of (i) the total combined voting
power, or (ii) the total value of the outstanding capital stock or other equity
interests thereof is beneficially owned by Xxxxxxxx.
"Xxxxxxxx Employees" shall mean those employees, former employees, retirees,
agents, and subcontractors of the Xxxxxxxx Affiliated Group.
"Xxxxxxxx Employee Services" shall have the meaning specified in Section
2.01.
"Xxxxxxxx Expenses" shall mean (i) all costs accrued or incurred by Xxxxxxxx
in respect of the Xxxxxxxx Employee Services, Xxxxxxxx Benefits Plans and
Xxxxxxxx Employees, (ii) any expenses relating to fixed assets (including any
costs for furniture and personal computers), (iii) any miscellaneous expenses
(including insurance, travel and entertainment, advertising and licenses)
accrued or incurred by Xxxxxxxx and related to the businesses of the parties
hereto, and (iv) any other corporate costs (other than any costs relating to the
federal regular income tax liability of Xxxxxxxx' consolidated group) incurred
by Xxxxxxxx.
"Xxxxxxxx Liabilities" shall mean, collectively, (i) all the Liabilities of
the Xxxxxxxx Affiliated Group under this Agreement, and (ii) all the Liabilities
of the parties hereto or their respective Subsidiaries (whenever arising whether
prior to, at or following the closing on the Effective Date) arising out of or
in connection with or otherwise relating to the management or conduct before or
after the closing on the Effective Date of the Xxxxxxxx Business, provided that
the term "Xxxxxxxx Liabilities" shall not include the Communications
Liabilities.
SECTION 1.02 Other Definitional Provisions. The words "hereof", "hereto",
"herein" and "hereunder" and words of similar import when used in this Agreement
shall refer to this Agreement as a whole and not to any particular provision of
this Agreement; references to any Article, Section, Exhibit or Schedule are
references to Articles, Sections, Exhibits or Schedules in or to this Agreement
unless otherwise specified; and the term "including" shall mean "including
without limitation."
SECTION II
SERVICES AND OPERATIONS
SECTION 2.01 Services. (a) Beginning on the Effective Date and continuing
until the termination of this Agreement pursuant to Article V, Xxxxxxxx shall
make available, and shall cause the Xxxxxxxx Affiliated Group to make available,
to the Communications Affiliated Group the employee related and the employee
benefit related services set forth on Schedule 2.01(a)(i) (the "Xxxxxxxx
Employee
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Services" and each, a "Xxxxxxxx Employee Service"), and Communications shall,
and shall cause its Subsidiaries to, utilize such Xxxxxxxx Employee Services in
the conduct of their respective businesses.
(b) Xxxxxxxx has agreed that certain Communications Employees shall be
eligible to continue to participate in the benefit plans and programs described
on Schedule 2.01(b)(i) to the extent that such Communications Employees obtained
rights under such benefit plans prior to the Effective Date or may obtain rights
under the terms of such benefits plans on or after the Effective Date
(collectively, "Xxxxxxxx Benefit Plans"). In addition, certain Communications
Employees shall be eligible to continue to participate in the benefit plans and
programs described on Schedule 2.01(b)(ii) to the extent that such employees
obtained rights under the terms of such benefit plans prior to the Effective
Date or may obtain rights under the terms of such benefit plans on or after the
Effective Date (collectively, the "Communications Benefit Plans" and, together
with the Xxxxxxxx Benefit Plans, the "Benefit Plans"). Xxxxxxxx has agreed that
it shall continue to provide the Xxxxxxxx Employee Services described on
Schedule 2.01(a)(i) with respect to those Communications Employees participating
in Xxxxxxxx Benefit Plans and with respect to the Communications Benefit Plans
until the Ownership Reduction Date. The Xxxxxxxx Employee Services may be
provided by (i) any employee of Xxxxxxxx or its Subsidiaries (other than
Communications and its Subsidiaries), or (ii) any third party designated by
Xxxxxxxx, in its sole discretion; provided, however, that notwithstanding any
such designation by Xxxxxxxx, Xxxxxxxx shall remain responsible in all respects
for the provision of the particular service or services to be provided by such
designated third party.
SECTION 2.02 Expansion, Reduction or Termination of Employee Services.
Except as otherwise provided in Section 6.01 or as otherwise agreed in writing
by the parties hereto, each of the Xxxxxxxx Employee Services provided by
Xxxxxxxx may be expanded, reduced or terminated upon the mutual agreement of the
parties hereto.
SECTION 2.03 Payment of Expenses. (a) Xxxxxxxx shall allocate the portion of
the Xxxxxxxx Expenses incurred on behalf of the Communications Affiliated Group
pursuant to actual expenses incurred to the extent reasonably determinable, and
in all other cases pursuant to allocation methodologies determined on an annual
basis by Xxxxxxxx, in its sole discretion, after consultation with
Communications, which evidence each such party's respective fair and reasonable
share of the Xxxxxxxx Expenses. Communications shall not be required to make a
payment for Xxxxxxxx Expenses if such expenses have been paid to Xxxxxxxx under
the Administrative Services Agreement.
(b) Communications shall pay all the Communications Expenses incurred by
Communications.
(c) Xxxxxxxx shall submit to Communications within thirty (30) working days
following the end of each month an invoice for all charges associated with
Xxxxxxxx Employee Services provided by Xxxxxxxx during the preceding month, any
adjustments for prior months and any other amounts payable in respect of the
preceding month. All invoices shall describe in
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reasonable detail a description of the Xxxxxxxx Employee Services provided and
the charges associated therewith, any prior month adjustments and any other
amounts that are payable.
Except as provided in Section 2.03(d), Communications shall remit payment on a
monthly basis to Xxxxxxxx on behalf of the Communications Affiliated Group for
its portion of all charges invoiced on or before the last working day of the
month in which the invoice is received in respect of Xxxxxxxx Expenses.
(d) In the event of a dispute as to an invoiced amount, Communications shall
promptly pay all undisputed amounts on each invoice, but shall be entitled to
withhold payment of any amount in dispute, and shall promptly notify Xxxxxxxx of
the disputed amount and the reasons each such charge is so disputed. The parties
agree to provide each other with sufficient records and information that will
enable the parties to resolve any such dispute and, without limiting the rights
and remedies of the parties hereunder, to negotiate in good faith a resolution
thereto.
(e) It is understood and agreed that the Xxxxxxxx Employee Services provided
hereunder will be substantially identical in nature and quality (but not
necessarily in amount) to the Xxxxxxxx Employee Services performed by Xxxxxxxx
during the year prior to the date of this Agreement, except as may be required
by virtue of Communications becoming a public company after the Initial Public
Offering.
(f) Performance of any Xxxxxxxx Employee Services will not be required for
the benefit of any entity other than the parties and their respective
Subsidiaries. Communications represents and agrees that it will use the Xxxxxxxx
Employee Services only in accordance with all applicable federal, state and
local laws, regulations and tariffs and in accordance with the reasonable
conditions, rules, regulations and specifications that are or may be set forth
in any manuals, materials, documents or instructions of the party providing the
Xxxxxxxx Employee Services.
(g) Any input or information required by either party in the performance of
the Xxxxxxxx Employee Services pursuant to the provisions of this Agreement
shall be provided by the other party or its Subsidiaries, as the case may be, in
a manner consistent with the practices employed by the parties during the year
prior to the date of this Agreement. If the failure to provide such input or
information renders the performance of the Xxxxxxxx Employee Services impossible
or unreasonably difficult, Xxxxxxxx may, upon reasonable notice, refuse to
provide such Xxxxxxxx Employee Services.
(h) With respect to Communications Employees, Shared Services Employees, or
employees of Xxxxxxxx or any of its Subsidiaries who worked (either
simultaneously or at different times) both in any business conducted by Xxxxxxxx
and its Subsidiaries, and in any business conducted by Communications and its
Subsidiaries prior to the Ownership Reduction Date, Communications shall
reimburse Xxxxxxxx, on demand or as otherwise directed, for all costs (or in the
case of a Shared Employee its proportionate share of all costs) as accrued or
incurred by Xxxxxxxx or members of the Xxxxxxxx Affiliated Group with respect to
such employees pursuant to the Benefit Plans or otherwise.
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(i) The parties recognize that many of the Employee Services provided to
Communications by Xxxxxxxx Employees will be performed by Shared Services
Employees. At or prior to the Ownership Reduction Date, Communications shall pay
Xxxxxxxx an amount equal to its proportionate share of all projected liabilities
with respect to Shared Services Employees as determined from service records,
estimates, calculations and reasonable assumptions developed by Xxxxxxxx'
Actuary. For example, if the Actuary determines that the projected working
career of a Shared Services Employee is twenty-five (25) years and the Shared
Services Employee had performed fifty percent (50%) of his or her services for
Communications for a period of 12-1/2 years at the Ownership Reduction Date,
Communications will pay Xxxxxxxx twenty-five percent (25%) of the present value
of retiree medical, retiree life and other Liabilities associated with such
employee. Similarly, if the Shared Services Employee is projected to lose his or
her position with Xxxxxxxx due to the cessation of Xxxxxxxx Employee Services to
Communications, Communications shall reimburse Xxxxxxxx for its proportionate
share of severance and all other employee termination liabilities with respect
to such employee.
(j) Any expense incurred by either the Xxxxxxxx Affiliated Group or the
Communications Affiliated Group in connection with changing Benefit Plans,
creating new Benefit Plans, transferring employees, or complying with the terms
of this Agreement which are in any way related to an Ownership Reduction Date
shall be paid by Communications.
SECTION 2.04 Employees. (a) Plans and Services. Prior to the Effective Date,
eligible Communications Employees participated in certain Xxxxxxxx Benefit
Plans. On and after the Effective Date, eligible Communications Employees shall
continue to be eligible to participate in certain Xxxxxxxx Benefit Plans,
subject to the terms of the governing plan documents as interpreted by the
appropriate plan fiduciaries. On and after the Effective Date and until the
termination of this Agreement pursuant to Article V, subject to regulatory
requirements, Xxxxxxxx shall continue to provide Xxxxxxxx Employee Services with
respect to Communications Employees participating in Xxxxxxxx Benefit Plans in
substantially the same manner as it administered such plans prior to the
Effective Date and subject to Xxxxxxxx' right to terminate, amend and modify
such Benefit Plans pursuant to Sections 2.04(c).
(b) Direct Cost Reimbursement. Notwithstanding the provisions of Section
2.03, if Xxxxxxxx provides Communications with at least five (5) days' advance
written notice, Communications agrees to make funds available, as and when
required to be paid by Xxxxxxxx, to Xxxxxxxx so that Xxxxxxxx may make
contributions or payments to, for the account of, or in respect of current or
former employees or their spouses or other beneficiaries (i) under tax-qualified
or other benefit plans, or (ii) that are generally made on a predetermined
periodic basis.
(c) Changes; Additional Employee Services and Plan Terms. Nothing contained
in this Agreement shall be construed to limit the ability of Xxxxxxxx or
Communications to amend or modify any of the Xxxxxxxx Benefit Plans or
Communications Benefit Plans, respectively, consistent with the terms of such
plans, as determined in Xxxxxxxx' or Communications' sole discretion, as the
case may be, provided that Xxxxxxxx or Communications, as applicable, shall
provide at least forty-five (45) days' prior written notice to the other of any
proposed significant amendment to or modification of any Benefit Plan.
Communications may request additional
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services that, if agreeable to Xxxxxxxx, shall be provided on a direct cost
basis to Communications.
(d) Regulatory Matters. Xxxxxxxx and Communications agree to cooperate fully
with each other in the administration and coordination of regulatory and
administrative requirements associated with the Benefit Plans that apply either
to the other party or jointly to each party hereto. Such coordination, upon
request, shall include: sharing payroll data for determination of highly
compensated employees, providing census information (including accrued benefits)
for purposes of running discrimination tests, providing actuarial reports for
purposes of determining the funded status of any plan and providing for review
of all summary plan descriptions, requests for determination letters, Forms
5500, financial statement disclosures and plan documents.
(e) Certain Notices. In the event there is an ERISA Event with respect to
Benefit Plans receiving Xxxxxxxx Employee Services, Xxxxxxxx shall advise
Communications as soon as reasonably practicable after Xxxxxxxx determines the
ERISA Event has occurred. For purposes of this Section 2.04(e), an "ERISA Event"
shall mean (i) the termination of a Benefit Plan or the filing of a Notice of
Intent to Terminate such a plan, in either case, under Section 4041(c) of ERISA;
(ii) the institution of proceedings by the Pension Benefit Guaranty Corporation
(or any successor thereof) to terminate a Benefit Plan or to appoint a trustee
to administer such a plan or the receipt of notice by Xxxxxxxx that such an
action has been taken with respect to such a plan; (iii) any substantial
accumulated funding deficiency within the meaning of Section 412 of the Code or
Section 302 of ERISA is incurred with respect to any Benefit Plan sponsored by
Xxxxxxxx and no waiver of that deficiency has been obtained from the Internal
Revenue Service; (iv) the Internal Revenue Service determines that a Benefit
Plan that is intended to be qualified under Section 401 of the Code fails to
meet the applicable requirements of the Code and disqualifies the plan; or (v)
an amendment to a Benefit Plan sponsored by Xxxxxxxx that results in a
significant underfunding described in Section 401(a)(29) of the Code or Section
307 of ERISA.
(f) Conflicts. In the event of a conflict between the terms of this Section
2.04 and the terms of Section 2.01 hereof relating to providing Services in
connection with Benefit Plans, the terms of this Section 2.04 shall prevail.
SECTION 2.05 Limitation of Liability. No member of the Xxxxxxxx Affiliated
Group, their respective controlling Persons, if any, and their respective
directors, officers, employees, agents or permitted assigns (each, a "Xxxxxxxx
Party"), shall be liable to any member of the Communications Affiliated Group,
their respective controlling Persons, if any, and their respective directors,
officers, employees, agents or permitted assigns (each, a "Communications
Party"), for any Liabilities, claims, damages, losses or expenses, which
constitute special, indirect, incidental or consequential damages, of a
Communications Party arising in connection with this Agreement, the Employee
Services or the Benefit Plans. The Xxxxxxxx Affiliated Group shall be entitled
to be indemnified by Communications, and shall be entitled to the benefit of the
provisions of the Indemnification Agreement which is attached as an exhibit to
the Separation Agreement, with respect to any and all claims, losses, damages,
Liabilities and expenses (including court costs and reasonable attorney fees)
incurred by Xxxxxxxx arising out of the Communications Liabilities, the
Communications Expenses, or the obligations of
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Communications under this Agreement.
SECTION 2.06 XXXXXXXX PENSION PLAN.
(a) Following the Effective Date, Communications Employees, who are
eligible, shall continue to participate in the Xxxxxxxx Pension Plan on the same
terms and conditions as immediately prior to the Effective Date. At the
Ownership Reduction Date, Communications Employees shall cease to participate in
the Xxxxxxxx Pension Plan. Unless Xxxxxxxx elects to utilize the plan to plan
transfer option described below prior to the Ownership Reduction Date, the
Xxxxxxxx Pension Plan shall pay Communications Employees their vested accrued
benefits earned under the Xxxxxxxx Pension at the time and in the manner
provided in the Xxxxxxxx Pension Plan. If Xxxxxxxx elects such transfer option,
as soon as practicable after, and in any event within ninety (90) days after,
and effective as of, the Ownership Reduction Date, Communications shall
establish a defined benefit pension plan (with terms and conditions
substantially comparable in all material respects to the Xxxxxxxx Pension Plan)
and a related trust intended to qualify under Section 401(a) and Section 501(a)
of the Code (the "Communications Retirement Plan") under which all
Communications Employees who participated in the Xxxxxxxx Pension Plan
("Communications Retirement Plan Participants") shall participate. To implement
its election of the transfer option, Xxxxxxxx shall, within one hundred eighty
(180) days following the Ownership Reduction Date, but in no event prior to
receipt by Xxxxxxxx of written evidence of the establishment of the
Communications Retirement Plan and the related trust ("Communications Trust") by
Communications and either (A) the receipt by Xxxxxxxx of a copy of a favorable
determination letter issued by the Internal Revenue Service with respect to the
Communications Retirement Plan or (B) an opinion, in a form theretofore agreed
upon, of Communications' counsel to the effect that the terms of the
Communications Retirement Plan and Communications Trust qualify under Section
401(a) and Section 501(a) of the Code, direct the trustee of the trust under the
Xxxxxxxx Pension Plan ("Xxxxxxxx Trust") to transfer (the date of such transfer
hereinafter the "Transfer Date"), in cash or in kind, as agreed to by Xxxxxxxx
and Communications, from the Xxxxxxxx Trust to the trustee of the Communications
Trust, an amount estimated by an Actuary selected by Xxxxxxxx to equal ninety
percent (90%) of the Transfer Amount, as defined below. The "Transfer Amount"
shall mean an amount equal to the present value of the accrued benefits of the
Communications Retirement Plan Participants, as calculated by the Xxxxxxxx
actuary in accordance with Section 414(1) of the Code and the regulations
promulgated thereunder. As soon as practicable following the Transfer Date, but
in no event later than ninety (90) days after such date, Xxxxxxxx shall direct
the trustee of the Xxxxxxxx Trust to transfer to the trustee of the
Communications Trust the excess of the Transfer Amount over the actual amount
previously transferred, plus interest on such excess at six percent (6%)
compounded daily from the Transfer Date. Notwithstanding anything contained
herein to the contrary, no transfer of assets shall take place until the 31st
day following the filing of all required Forms 5310-A in connection therewith.
Upon the receipt of the Transfer Amount (i) Communications and the
Communications Retirement Plan shall assume the liabilities of the Xxxxxxxx
Pension Plan for accrued benefits of Communications Retirement Plan
Participants, theretofore the liability of the Xxxxxxxx Pension Plan, (ii)
Communications participation in Xxxxxxxx Pension Plan shall cease, (iii) neither
Communications nor any of its Subsidiaries shall have any liability with respect
to the Xxxxxxxx Pension Plan, (iv) neither Xxxxxxxx nor any of its
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Subsidiaries shall have any liability with respect to the accrued benefits of
Communications Retirement Plan Participants and (v) Xxxxxxxx and the Xxxxxxxx
Pension Plan shall retain all liabilities for accrued benefits of Xxxxxxxx
Pension Plan participants who are not Communications Retirement Plan
Participants.
(b) The calculation of the transfer amount by the Xxxxxxxx actuary shall be
determinative but shall be subject to review by Communications and the Xxxxxxxx
actuary shall provide the actuary selected by Communications with all the
documentation reasonably necessary for Communications to verify such
calculation. Communications and Xxxxxxxx shall provide each other with such
records and information as may be necessary or appropriate to carry out their
obligations under this Section or for the purposes of administration of the
Communications Retirement Plan and Xxxxxxxx Pension Plan and they shall
cooperate in the filing of documents required by the transfer of assets and
liabilities described herein.
(c) In no event shall any amount transferred to the trustee of the
Communications Retirement Plan be used for any purpose other than to provide
benefits to present or future employees of Communications, and in no event shall
any amount transferred to the trustee of the Communications Retirement Plan
revert to Communications directly or indirectly.
SECTION 2.07 XXXXXXXX INVESTMENT PLAN.
(a) Following the Effective Date, Communications Employees, who are
eligible, shall continue to participate in the Xxxxxxxx Investment Plan on the
same terms and conditions as applicable immediately prior to the Effective Date.
As soon as practicable after, and in any event within ninety (90) days after,
and effective as of, the Ownership Reduction Date, Communications shall
establish an employee stock ownership plan (with terms and conditions
substantially comparable in all material respects to the Xxxxxxxx Investment
Plan) and a related trust intended to qualify under Section 401(a), Section
501(a), and Section 4975 of the Code (the "Communications Investment Plan").
Effective as of the Ownership Reduction Date, all Communications Employees who
participated in the Xxxxxxxx Investment Plan ("Communications Investment Plan
Participants") shall participate in the Communications Investment Plan. Xxxxxxxx
shall, within one hundred eighty (180) days following the Ownership Reduction
Date, but in no event prior to receipt by Xxxxxxxx of written evidence of the
establishment of the Communications Investment Plan and the related trust
("Communications Trust") by Communications and either (A) the receipt by
Xxxxxxxx of a copy of a favorable determination letter issued by the Internal
Revenue Service with respect to the Communications Investment Plan or (B) an
opinion, in a form theretofore agreed upon, of Communications' counsel to the
effect that the terms of the Communications Investment Plan and Communications
Trust qualify under Section 401(a) and Section 501(a) of the Code, direct the
trustee of the trust under the Xxxxxxxx Investment Plan ("Xxxxxxxx Trust") to
transfer, in cash or in kind, as agreed to by Xxxxxxxx and Communications, from
the Xxxxxxxx Trust to the trustee of the Communications Trust, an amount equal
to the accrued benefits of the Communications Investment Plan participants in
accordance with Section 414(l) of the Code and the regulations promulgated
thereunder. Notwithstanding anything contained herein to the contrary, no
transfer of assets shall take place until the 31st day following the filing of
all required Forms 5310-A in
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connection therewith. Upon the receipt of the transfer (i) Communications and
the Communications Investment Plan shall assume the liabilities of the Xxxxxxxx
Investment Plan for accrued benefits of Communications Investment Plan
Participants, theretofore the liability of the Xxxxxxxx Investment Plan, (ii)
Communications participation in Xxxxxxxx Investment Plan shall cease, (iii)
neither Communications nor any of its Subsidiaries shall have any liability with
respect to the Xxxxxxxx Investment Plan, (iv) neither Xxxxxxxx nor any of its
Subsidiaries shall have any liability with respect to the accrued benefits of
Communications Investment Plan participants, and (v) Xxxxxxxx and the Xxxxxxxx
Investment Plan shall retain all liabilities for accrued benefits of Xxxxxxxx
Investment Plan participants who are not Communications Investment Plan
Participants. The transfer shall not involve any Xxxxxxxx common stock held in a
suspense account or any loans which were used to acquire such stock.
(b) Communications and Xxxxxxxx shall provide each other with such records
and information as may be necessary or appropriate to carry out their
obligations under this Section or for the purposes of administration of the
Communications Investment Plan and Xxxxxxxx Investment Plan and they shall
cooperate in the filing of documents required by the transfer of assets and
liabilities described herein.
(c) In no event shall any amount transferred to the trustee of the
Communications Investment Plan be used for any purpose other than to provide
benefits to present or future employees of Communications, and in no event shall
any amount transferred to the trustee of the Communications Investment Plan
revert to Communications directly or indirectly.
SECTION 2.08 NON-QUALIFIED PLANS. Following the Effective Date,
Communications Employees who are eligible shall continue to participate in
Xxxxxxxx Supplemental Retirement Plan (the "Xxxxxxxx Restoration Plan") through
December 31, 2000. As soon as practicable following the Effective Date, and in
any event no later than January 1, 2000, Communications shall establish a
benefit restoration plan (the "Communications Restoration Plan") relating to the
Xxxxxxxx Pension Plan for the benefit of the Communications Employees who were,
immediately prior to January 1, 2000, participating in the Xxxxxxxx Restoration
Plan or who become eligible for participation in the Communications Restoration
Plan on or after January 1, 2000. As of the Effective Date, Communications shall
assume and be solely responsible for the liabilities and obligations relating to
the Communications Employees arising under the Xxxxxxxx Restoration Plan.
SECTION 2.09 OTHER XXXXXXXX BENEFIT PLANS. Following the Effective Date,
Communications Employees who are eligible shall continue to participate in the
various Xxxxxxxx medical, life, and other Xxxxxxxx Benefit Plans listed on
Schedule 2.09 (the "Other Plans"). As of the Effective Date, Communications
shall assume and be solely responsible for the liabilities and obligations
relating to the Communications Employees arising under the Other Plans. Prior to
Ownership Reduction Date, Communications shall establish plans with terms and
conditions substantially comparable in all material respects to the Other Plans
(the "Communications Other Plans"). Upon the Ownership Reduction Date, all
benefits of Communications Employees who participated in the Other Plans shall
be paid solely by the Communications Other Plans.
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SECTION 2.10 Transfer of Employees. Xxxxxxxx employees who transfer to and
become employed by Communications or any of its Subsidiaries and Communications
employees who transfer to and become employed by Xxxxxxxx or any of its
Subsidiaries, in either case on the United States payroll, prior to the
Ownership Reduction Date shall be transferred in accordance with the terms of
the transfer guidelines established by Xxxxxxxx consistent with practices in
effect immediately prior to the Effective Date (the "Transfer Guidelines") and
such employees and their beneficiaries and survivors will be granted the
benefits provided by the provisions of the applicable Benefit Plans pertaining
to employees who have been transferred between Xxxxxxxx and Communications, as
provided in, and subject to the terms and conditions of, the transfer
guidelines.
SECTION III
INFORMATION
SECTION 3.01 PROVISION OF CORPORATE RECORDS. Subject to applicable law and
privileges, from and after the Effective Date, upon the prior written request by
Xxxxxxxx for specific and identified agreements, documents, books, records or
files, including, without limitation, computer files, microfiche, tape
recordings and photographs (collectively, "Records"), relating to or affecting
Xxxxxxxx, including, but not limited to, the Records concerning Communications
Employees and Communications Benefit Plans necessary for Xxxxxxxx to perform the
Xxxxxxxx Employee Services. Communications shall arrange, as soon as reasonably
practicable following the receipt of such written request, for the provision of
appropriate copies of such Records (or the originals thereof if the party making
the request has a reasonable need for such originals) in the possession of
Communications or any of its Subsidiaries, but only to the extent such items are
not already in the possession of the requesting party.
SECTION 3.02 ACCESS TO INFORMATION. Subject to applicable law and
privileges, from and after the Effective Date, Communications shall afford to
Xxxxxxxx and its authorized accountants, counsel and other designated
representatives reasonable access during normal business hours, subject to
appropriate restrictions for classified, privileged or confidential information,
to the personnel, properties, books and records of Communications and its
Subsidiaries insofar as such access is reasonably required by Xxxxxxxx.
SECTION 3.03 REIMBURSEMENT; OTHER MATTERS. Except to the extent otherwise
contemplated by any Ancillary Agreement, a party providing Records or access to
information to another party hereto pursuant to this Article III shall be
entitled to receive from the recipient, upon the presentation of invoices
therefor, payments for such amounts, relating to supplies, disbursements and
other out-of-pocket expenses, as may be reasonably incurred in providing such
Records or access to information.
SECTION 3.04 CONFIDENTIALITY. Each of Communications and Xxxxxxxx shall not
(without the prior written consent of the other party) use or permit the use of,
and shall hold, and shall
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cause its consultants and advisors to hold, in strict confidence, all
information concerning the other party in its possession, its custody or under
its control (except to the extent that (a) such information has been in the
public domain through no fault of such party, (b) such information has been
later lawfully acquired from a source other than the other party to this
Agreement, or (c) this Agreement or any other Ancillary Agreement permits the
use or disclosure of such information), and each party shall not (without the
prior written consent of the other) otherwise release or disclose such
information to any other Person, except to such party's officers, directors,
employees, auditors, attorneys and agents, in each case on a confidential and
need-to-know basis, unless compelled to disclose such information by judicial or
administrative process or unless such disclosure is required by law and such
party has used commercially reasonable efforts to consult with the other
affected party or parties prior to such disclosure. To the extent that a party
hereto is compelled by judicial or administrative process to disclose such
information under circumstances in which any evidentiary privilege may be
available, such party agrees to assert such privilege in good faith prior to
making such disclosure. Each of the parties hereto agrees to consult immediately
with the other party in connection with any such judicial or administrative
process, including, without limitation, in determining whether any privilege is
available, and further agrees to allow each such relevant party and its counsel
to participate in any hearing or other proceeding (including, without
limitation, any appeal of an initial order to disclose) in respect of such
disclosure and assertion of privilege.
SECTION 3.05 DESTRUCTION OF RECORDS. In the event that Xxxxxxxx intends to
destroy any records relating to the employment of, or participation in Xxxxxxxx
Benefit Plans by, Communications Employees (including, but not limited to,
personnel records and records relating to medical and other health and welfare
benefit plans), Xxxxxxxx shall provide written notice to Communications of its
intention to do so at least ninety (90) days in advance of the date that such
destruction is expected to be undertaken. Communications shall have thirty (30)
days after receiving such notice to advise Xxxxxxxx in writing whether
Communications wishes to obtain copies of such records pertaining to its
employees. If Communications desires such records, Xxxxxxxx shall, at the sole
expense of Communications, either provide the originals thereof to
Communications or shall copy such records and provide them to Communications.
SECTION IV
ASSUMPTION AND SATISFACTION OF LIABILITIES
SECTION 4.01 From and after the date hereof, (i) Xxxxxxxx shall assume, pay,
perform and discharge all Xxxxxxxx Liabilities, but it shall be entitled to
recover from Communications the amounts due under Sections 2.03 and 2.04 hereof,
and (ii) Communications shall assume, pay, perform and discharge all
Communications Liabilities. Consistent with this agreement, Communications or
the appropriate Subsidiary of Communications, shall assume all Liabilities
arising out of or resulting from any claim by any Communications Employee which
arises under federal, state or local statute (including, without limitation,
Title VII of the Civil Rights Act of 1964, the Civil Rights Act of 1991, the Age
Discrimination in Employment Act of 1990, the Equal Pay Act, the Americans with
Disabilities Act of 1990, the Employee Retirement Income Security Act of 1974
and all other statutes regulating the terms and conditions of employment),
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regulation or ordinance, under the common law or in equity (including any claims
for wrongful discharge or otherwise), or under any policy, agreement,
understanding or promise, written or oral, formal or informal, between Xxxxxxxx
or Communications (or any Subsidiary of Xxxxxxxx or Communications) and the
Communications Employee, whether arising out of actions, events or omissions
that occurred (or, in the case of omissions, failed to occur) prior to, or
after, the Effective Date. Subject to its rights under Sections 2.03 and 2.04
hereof, Xxxxxxxx or an appropriate Subsidiary of Xxxxxxxx shall assume all
liabilities arising out of or resulting from any claim by any Xxxxxxxx Employee
which arises under federal, state or local statute (including, without
limitation, Title VII of the Civil Rights Act of 1964, the Civil Rights Act of
1991, the Age Discrimination in Employment Act of 1990, the Equal Pay Act, the
Americans with Disabilities Act of 1990, the Employee Retirement Income Security
Act of 1974 and all other statutes regulating the terms and conditions of
employment), regulation or ordinance, under the common law or in equity
(including any claims for wrongful discharge or otherwise), or under any policy,
agreement, understanding or promise, written or oral, formal or informal,
between Xxxxxxxx or any of its Subsidiaries and the Xxxxxxxx Employee, whether
arising out of actions, events or omissions that occurred (or, in the case of
omissions, failed to occur) prior to, or after, the Effective Date.
SECTION V
TERM OF AGREEMENT
SECTION 5.01 TERMINATION. (a) Except as otherwise provided in this Article V
or as otherwise agreed to in writing by the parties hereto, this Agreement shall
be subject to termination by either Xxxxxxxx or Communications, upon the
Ownership Reduction Date.
(b) Xxxxxxxx may terminate any Xxxxxxxx Employee Services at any time if
Communications shall have failed to perform any of its material obligations
under this Agreement relating to any such Xxxxxxxx Employee Services, provided
that Xxxxxxxx has notified Communications in writing of such failure and such
failure shall have continued for a period of sixty (60) days after receipt by
Communications of notice of such failure.
(c) Communications may terminate any Xxxxxxxx Employee Services at any time
if Xxxxxxxx shall have failed to perform any of its material obligations under
this Agreement relating to any such Xxxxxxxx Employee Services, provided that
Communications has notified Xxxxxxxx in writing of such failure and such failure
shall have continued for a period of sixty (60) days after receipt by Xxxxxxxx
of notice of such failure.
SECTION 5.02 EFFECT OF TERMINATION. (a) Other than as required by law, upon
termination of any Employee Services pursuant to Section 5.01, and upon
termination of this Agreement in accordance with its terms, Xxxxxxxx will have
no further obligation to provide the terminated Employee Service (or any
Employee Services, in the case of termination of this Agreement) and
Communications shall have no obligation to pay any costs relating to such
Employee Services or make any other payments hereunder, provided that
notwithstanding any such termination (i) Communications shall remain liable to
Xxxxxxxx for costs owed and payable in respect of
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Employee Services provided prior to the effective date of such termination or
any costs attributable to, arising out of or in connection with such termination
(including, but not limited to, severance costs, long-term lease obligations and
rent), and (ii) Xxxxxxxx shall continue to charge Communications for
administrative and other costs relating to benefits provided after but incurred
prior to the termination of any Employee Services and other services required to
be provided after the termination of such Employee Service and Communications
shall be obligated to pay such costs in accordance with the terms of this
Agreement.
(b) Following termination of any Xxxxxxxx Employee Services under this
Agreement, Xxxxxxxx and Communications agree to cooperate in providing for an
orderly transition of such Xxxxxxxx Employee Services to Communications or to a
successor service provider. Without limiting the foregoing, Xxxxxxxx agrees to
provide to Communications, within ninety (90) days of the termination of all
Xxxxxxxx Employee Services in respect of any Communications Employees
participating in Xxxxxxxx Benefit Plans, copies in a format designated by
Xxxxxxxx, of all records relating directly or indirectly to benefit
determinations of the participants in Benefit Plans, including compensation and
service records or records required to be maintained by law, and (iii) Xxxxxxxx
and Communications shall work with the other party in developing a reasonable
transition schedule with respect thereto.
SECTION 5.03 SURVIVAL OF TERMINATION. Notwithstanding any provisions in this
Agreement to the contrary, any obligations of or covenants and agreements made
by each of Xxxxxxxx and Communications under this Article V, Article III,
Article IV, Section 2.03, and Section 3.04 shall survive (i) the sale or other
transfer by either of them of any assets or businesses or the assignment by
either of them of any Liabilities and (ii) the termination of this Agreement,
and shall continue in full force and effect (subject to the terms of such
provisions).
SECTION VI
MISCELLANEOUS
SECTION 6.01 COMPLETE AGREEMENT; CONSTRUCTION. This Agreement, including the
Exhibits and Schedules, and the Ancillary Agreements shall constitute the entire
agreement between the parties with respect to the subject matter hereof and
shall supersede all previous negotiations, commitments and writings with respect
to such subject matter. In the event of any inconsistency between this Agreement
and any Exhibit or Schedule hereto, such Exhibit or Schedule shall prevail.
Notwithstanding any other provisions in this Agreement to the contrary, in the
event and to the extent that there shall be a conflict between the provisions of
this Agreement and the provisions of any Ancillary Agreement, such Ancillary
Agreement shall control.
SECTION 6.02 ANCILLARY AGREEMENTS. This Agreement is not intended to
address, and should not be interpreted to address, the matters specifically and
expressly covered by the Ancillary Agreements. In the event of any inconsistency
between this Agreement and any Ancillary Agreement, the terms of such Ancillary
Agreement shall govern.
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SECTION 6.03 WAIVERS. The failure of either party to require strict
performance by the other party of any provision in this Agreement shall not
waive or diminish that party's right to demand strict performance thereafter of
that or any other provision hereof.
SECTION 6.04 ASSIGNMENT. This Agreement shall be assignable, in whole in
connection with a merger or consolidation or the sale of all or substantially
all the assets of a party hereto so long as the resulting, surviving or
transferee entity assumes all the obligations of the relevant party hereto by
operation of law or pursuant to an agreement in form and substance reasonably
satisfactory to the other party to this Agreement. Otherwise this Agreement
shall not be assignable, in whole or in part, directly or indirectly, by any
party hereto without the prior written consent of the others, and any attempt to
assign any rights or obligations arising under this Agreement without such
consent shall be void.
SECTION 6.05 SUCCESSORS AND ASSIGNS. The provisions of this Agreement shall
be binding upon, inure to the benefit of and be enforceable by the parties and
their respective permitted successors and permitted assigns.
SECTION 6.06 SUBSIDIARIES. Each of the parties hereto shall cause to be
performed, and hereby guarantees the performance of, all actions, agreements,
covenants and obligations set forth herein to be performed by any Subsidiary of
such party or by any entity that is contemplated to be a Subsidiary of such
party on and after the Effective Date, provided that Xxxxxxxx shall not have
this obligation with respect to Communications and its Subsidiaries.
SECTION 6.07 THIRD PARTY BENEFICIARIES. This Agreement is solely for the
benefit of the parties hereto and their respective Subsidiaries and should not
be deemed to confer upon or entitle any third party, including employees of
Xxxxxxxx or Communications any remedy, claim, liability, benefit, reimbursement,
compensation, claim of action or otherwise establish or create any rights on the
part of such third party in excess of those existing without reference to this
Agreement. Nothing in this Agreement is intended to restrict or limit Xxxxxxxx
or Communications, as applicable, in the exercise of its rights or the
fulfillment of its duties as a plan sponsor of any Benefit Plans.
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IN WITNESS WHEREOF, the parties hereto have caused this Employee Benefits
Agreement to be executed the day and year first written above.
XXXXXXXX COMMUNICATIONS GROUP, INC.
BY: /s/ G.L. BEST
--------------------------------------
NAME: G.L. Best
------------------------------------
TITLE: Vice President
-----------------------------------
THE XXXXXXXX COMPANIES, INC.
[STAMP]
BY: /s/ XXXXXXX X. XXXXXXX
--------------------------------------
NAME: Xxxxxxx X. Xxxxxxx
------------------------------------
TITLE: Senior Vice President
-----------------------------------
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SCHEDULE 2.01(A)(I)
XXXXXXXX EMPLOYEE SERVICES
(i) Employee and benefit plan related services of the same type that were
performed by Xxxxxxxx on behalf of the Communications Affiliated Group prior to
the Effective Date, including, but not limited to:
(a) Human Resource Management Services; (b) Executive Compensation Design
and Administration; (c) Employee Benefit Plan Design and Administration; (d)
Risk Management; and (e) Training.
(ii) Services related to the foregoing services performed by Xxxxxxxx on behalf
of the Communications Affiliated Group as a result of the Initial Public
Offering, and the ongoing administrative obligations resulting therefrom.
SCHEDULE 2.01(B)(I)
XXXXXXXX BENEFIT PLANS
(i) The employee benefit plans as defined in section (3)(3) of ERISA in which
Xxxxxxxx Employees and Communications Employees participated prior to the
Effective Date and any other employee benefit plans as defined in Section (3)(3)
of ERISA created after the Effective Date in which Xxxxxxxx Employees and
Communications Employees participate, including, but not limited to:
The Xxxxxxxx Companies, Inc. Consolidated Pension Plan The Xxxxxxxx
Companies, Inc. Investment Plus Plan The Xxxxxxxx Companies Supplemental
Retirement Plan The Xxxxxxxx Companies Group Insurance Plan The Xxxxxxxx
Companies Long-Term Disability Plan The Xxxxxxxx Companies, Inc. Group
Medical-Health Plus Plan The Xxxxxxxx Companies Personal Accident Insurance
Plan The Xxxxxxxx Companies Severance Pay Plan The Xxxxxxxx Companies
Pre-Tax Premium and Flexible Reimbursement Account Plan The Xxxxxxxx
Companies, Inc. Educational Assistance Plan The Xxxxxxxx Companies, Inc.
Group Medical-Health Plus Plan for Part-Time Employees The Xxxxxxxx
Companies, Inc. Change-In-Control Severance Protection Plan The Xxxxxxxx
Companies, Inc. Loss of Flight Status Plan The Xxxxxxxx Companies, Inc.
Employee Assistance Plan The Xxxxxxxx Companies, Inc. Legal Services Plan
The Xxxxxxxx Companies, Inc. Vision Services Plan
(ii) each of the following in which Xxxxxxxx Employees and Communications
Employees participated prior to the Effective Date or which are created after
the Effective Date and cover Xxxxxxxx Employees and Communications Employees:
personnel policy, stock option plan, bonus plan or arrangement, incentive award
plan or arrangement, vacation policy, severance pay plan, policy, program or
agreement, deferred compensation agreement or arrangement, retiree benefit plan
or arrangement, fringe benefit program or practice (whether or not taxable),
employee loan, consulting agreement, employment agreement and each other
employee benefit plan, agreement, arrangement, program, practice or
understanding which is not described in paragraph (i) of this Schedule.
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SCHEDULE 2.01(B)(II)
COMMUNICATIONS BENEFIT PLANS
(i) The employee benefit plans as defined in section (3)(3) of ERISA, which are
not Xxxxxxxx Benefit Plans, in which Communications Employees, participated
prior to the Effective Date and any other employee benefit plans as defined in
section (3)(3) of ERISA created for Communications Employees after the Effective
Date which are not Xxxxxxxx Benefit Plans, including, but not limited to:
WilTel Communications, LLC Pension Plan WilTel Communications, LLC
Investment Plan Pension Plan for Bargaining Unit Employees of WilTel
Communications, LLC WilTel Saving and Retirement Plan WilTel Communications
Systems, Inc. Employees 401(k) Savings Plan Global Access Telecommunications
Services 401(k) Plan ITC 401(k) Savings Plan Critical Technologies 401(k)
Plan Comlink Incorporated Profit Sharing 401(k) Plan WilTel Data Network
Services, Inc. 401(k) Plan SoftIron Systems, Inc. 401(k) Plan WilTel
Communications Systems, Inc. Pretax Premium Plan and Flexible Reimbursement
Accounts WilTel Communications Systems, Inc Group Medical and Dental
Assistance Plan for Full-Time Employees WilTel Communications Systems, Inc.
Group Medical and Dental Assistance Plan for Part-Time Employees WilTel
Communications Systems, Inc. Group Insurance Plan WilTel Communications
Systems, Inc. Personal Accident Insurance Plan WilTel Communications
Systems, Inc. Long Term Disability Plan WilTel Communications Systems, Inc.
Educational Assistance Plan WilTel Communications Systems, Inc. Legal
Service Plan WilTel Communications Systems, Inc. Vision Service Plan WilTel
Communications Systems, Inc. Employee Assistance Plan WilTel Communications
Systems, Inc. Severance Pay Plan WilTel Communications Systems, Inc. Pre-Tax
Premium and Flexible Reimbursement Account Plan (for collectively bargained
employees) WilTel Communications Systems, Inc. Group Medical Health Plus
Plan (for collectively bargained employees) WilTel Communications Systems,
Inc. Group Insurance Plan (for collectively bargained employees) WilTel
Communications Systems, Inc. Personal Accident Insurance Plan (for
collectively bargained employees) WilTel Communications Systems, Inc.
Long-Term Disability Plan (for collectively bargained employees) WilTel
Communications Systems, Inc. Educational Assistance Plan (for collectively
bargained employees)
WilTel Communications Systems, Inc. Vision Service Plan (for collectively
bargained employees) WilTel Communications Systems, Inc. Employee
Assistance Plan (for collectively bargained employees) WilTel
Communications Systems, Inc. Severance Plan (for collectively bargained
employees) All multi-employer plans maintained or formerly maintained
pursuant to any collective bargaining agreement between any member of
the Communications Affiliated Group and any union
(ii) each of the following, whether created before or after the Effective Date,
that cover
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Communications Employees who do not participate in the Xxxxxxxx Benefit Plans,
before or after the Effective Date: personnel policy, stock option plan, bonus
plan or arrangement, incentive award plan or arrangement, vacation policy,
severance pay plan, policy, program or agreement, deferred compensation
agreement or arrangement, retiree benefit plan or arrangement, fringe benefit
program or practice (whether or not taxable), employee loan, consulting
agreement, employment agreement and each other employee benefit plan, agreement,
arrangement, program, practice or understanding which is not described in
paragraph (i) of this Schedule.
SCHEDULE 2.09
OTHER PLANS
(i) The employee benefit plans as defined in section (3)(3) of ERISA in which
Xxxxxxxx Employees and employees of Communications participated prior to the
Effective Date and any other employee benefit plans as defined in Section (3)(3)
of ERISA created after the Effective Date in which Xxxxxxxx Employees and
Communications Employees participate, including, but not limited to:
The Xxxxxxxx Companies Group Insurance Plan The Xxxxxxxx Companies Long-Term
Disability Plan The Xxxxxxxx Companies, Inc. Group Medical-Health Plus Plan
The Xxxxxxxx Companies Personal Accident Insurance Plan The Xxxxxxxx
Companies Severance Pay Plan The Xxxxxxxx Companies Pre-Tax Premium and
Flexible Reimbursement Account Plan The Xxxxxxxx Companies, Inc. Educational
Assistance Plan The Xxxxxxxx Companies, Inc. Group Medical-Health Plus Plan
for Part-Time Employees The Xxxxxxxx Companies, Inc. Change-In-Control
Severance Protection Plan The Xxxxxxxx Companies, Inc. Loss of Flight Status
Plan The Xxxxxxxx Companies, Inc. Employee Assistance Plan The Xxxxxxxx
Companies, Inc. Legal Services Plan The Xxxxxxxx Companies, Inc. Vision
Services Plan
(ii) each of the following in which Xxxxxxxx Employees and Communications
Employees participated prior to the Effective Date or which are created after
the Effective Date and cover Xxxxxxxx Employees and Communications Employees:
personnel policy, stock option plan, bonus plan or arrangement, incentive award
plan or arrangement, vacation policy, severance pay plan, policy, program or
agreement, deferred compensation agreement or arrangement, retiree benefit plan
or arrangement, fringe benefit program or practice (whether or not taxable),
employee loan, consulting agreement, employment agreement and each other
employee benefit plan, agreement, arrangement, program, practice or
understanding which is not described in paragraph (i) of this Schedule.
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