EXHIBIT 10.52
AGREEMENT
Agreement by and between Xxxxxx Xxxxxx ("Xxxxxx") and WilTel Communications
Group, Inc., a Nevada corporation, (the "Company") effective as of October 15,
2002 (the "Effective Date"). Reference is made to the Plan of Reorganization of
In re Xxxxxxxx Communications Group, Inc. and CG Austria, Inc., Debtors (the
"Reorganization Plan"), United States Bankruptcy Court, Southern District of New
York, Chapter 11, Case No. 02-11957 (BRL) (the "Proceeding").
FOR VALUABLE CONSIDERATION, Xxxxxx and Company agree as follows:
1. Effective as of 12:01 a.m. on the day following the effective date of the
Reorganization Plan, Xxxxxx will resign as an officer, employee and director of
Company and its subsidiaries. Xxxxxx and Company hereby agree that the language
referenced on Exhibit A hereto to be included in the Company's press release
(and other public announcements) regarding such resignation or the circumstances
thereof is acceptable to both parties.
2. Xxxxxx shall retain all benefits and rights vested into him as an employee,
director, and officer into which he was vested and entitled on the effective
date of the Reorganization Plan as an employee of Xxxxxxxx Communications Group,
Inc. ("WCG") or Company (as WCG's successor) and nothing in this Agreement or
any other predecessor document shall terminate or limit such benefits and rights
or the general intent of Xxxxxx and Company to settle all disputes. The vested
benefits and rights include, without limitation, the following:
* Loan Forgiveness, approximate value $5,603,830
* Tax Gross up for Loans, approximate value $4,452,031
* Restructuring Incentive approximate value $780,000
* SERP, approximate value $700,000
* Base Severance, approximate value $1,040,000
* All indemnification rights, all director and officer insurance
benefits and other coverage, the channeling order in the
foregoing Plan of Reorganization, and similar rights as an
officer and director of WCG and Company.
The foregoing list may not be exclusive. Such benefits and rights will be paid
and maintained in accordance with the terms of the plans and documents under
which they were created as in effect on the effective date of the Reorganization
Plan, except as discussed in Section 3.
3. Commencing on the Effective Date and continuing to the fourth anniversary of
the Effective Date, Xxxxxx will make himself available during normal business
hours to Company upon the reasonable request of Company for consultation
regarding any historical matters relating to WCG and any litigation matters
relating to WCG which, in the reasonable opinion of Company, require his direct
and immediate input. All consulting obligations of Xxxxxx will be performed at a
time reasonably convenient to Xxxxxx and in no event will any consulting
obligation require Xxxxxx to place any new employment at risk. For making
himself available for consultation, Xxxxxx will be paid $400,000 in four
installments of $100,000 each, payable on January 2, 2003, January 2, 2004, and
January 2, 2005 and on the fourth anniversary of the Effective Date. In
addition, Xxxxxx will be reimbursed reasonable out-of-pocket expenses arising in
the course of such consultation. Any other consulting agreements with Company or
its subsidiaries are superseded and terminated by this Section 3.
4. Xxxxxx will not, without first obtaining Company's express written consent,
disclose to others or use for any purpose whatsoever any information or data
which pertains to Company's business or interests and which is not freely
available to persons not employed by Company. Such information shall include,
but not be limited to, technical data and plans, financial data, budgets,
organizational plans, business plans and strategies, engineering plans and
designs, legal matters and documents, software and network data, investment
information, customer and vendor information, and any Company trade secret
protected under the Uniform Trade Secrets Act. Xxxxxx warrants that he has
returned or will return to Company all existing documents, data or other
tangible materials and copies thereof made or acquired by him during his
employment which contain any such information or data. Xxxxxx shall abide by all
restrictions placed on all information, software and other technology licensed
by Company by third parties. Xxxxxx shall maintain the confidentiality of
information provided to Company by third parties subject to non-disclosure
agreements. Xxxxxx acknowledges that any breach or threatened breach of this
Section 4 would cause irreparable injury to Company and that money damages would
not provide an adequate remedy at law for such injury.
5. Xxxxxx acknowledges and agrees that he possesses confidential information
about other employees of Company relating to their education, experience,
skills, abilities, compensation and benefits, and their interpersonal
relationships with customers or suppliers of Company. Xxxxxx acknowledges and
agrees that the information he possesses about these other employees is not
generally known, is of substantial value to Company in developing its business
and in securing and retaining customers, and has been acquired by Xxxxxx because
of his position with WCG. Accordingly, Xxxxxx agrees that for one year after the
Effective Date, unless otherwise agreed to by Company's Chief People Officer,
Xxxxxx will not directly or indirectly, through himself or others, solicit,
influence, induce, recruit or encourage an employee of Company or any of its
subsidiaries to terminate or otherwise alter his/her relationship with Company
or any of its subsidiaries in order to become employed by Xxxxxx, Xxxxxx'x
employer, or by any
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person or entity engaged in the design, development, production, support, market
or sale of products or services competitive with any of Company's products or
services (including actual or demonstrably anticipated research or development
of Company). Xxxxxx acknowledges that any breach or threatened breach of this
Section 5 would cause irreparable injury to Company and that money damages would
not provide an adequate remedy at law for such injury. This provision is not
intended to prevent Xxxxxx from being a reference for present and past employees
of Company or WCG.
6. Company recognizes that Xxxxxx will remain in the industry, and likely will
be employed by a direct competitor of Company. Nothing in this Agreement or any
other agreement shall prevent or restrict such employment by Xxxxxx or in any
way reduce amounts due to him under Section 2 or 3; and to the extent of any
conflicts with this Section 6 and any vested or agreed upon benefit to which
Xxxxxx is entitled, this Agreement shall govern, it being understood that
except for the restrictions in this Agreement, Xxxxxx shall be absolutely free
to compete.
7. This Agreement shall serve as a complete and mutual release of all claims
between Xxxxxx and Company, including but not limited to statutory, contract, or
common law claims arising in equity or law, out of the restructuring and
employment issues between Xxxxxx, WCG, and Company and their respective
successors and assigns and their respective shareholders, officers, and
directors and Xxxxxx hereby releases Company and its shareholders, officers,
employees, and agents, and its and their successors, and Company hereby releases
Xxxxxx in respect of the foregoing. Notwithstanding the foregoing, nothing
herein shall release WCG or the Company (i) from their obligations to indemnify
and defend Xxxxxx as an officer and director under the Reorganization Plan filed
in the Proceeding, or (ii) from any obligation to indemnify and defend Xxxxxx in
accordance with the Articles of Incorporation and Bylaws of the Company as in
effect on the date hereof.
8. Where there is any conflict in this Agreement and any plan or document
governing any vested rights to which Xxxxxx is entitled under Section 2, the
terms of the underlying plan or document shall govern as to the issue of the
level of benefit accorded. Otherwise, this Agreement shall govern the rights and
obligations of the parties with respect to the terms of this Agreement, and
shall affirm their vesting in accordance with such plans or documents into
Xxxxxx.
9. This Agreement is intended to settle all disputes between Xxxxxx and Company
and Company's directors, officers, and shareholders with respect to benefits to
which Xxxxxx is entitled upon his resignation and this document is intended to
serve as an acceptable severance agreement required by Company or WCG under any
benefit plan. Should this Agreement be raised before any court of competent
jurisdiction, and the court
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cannot determine as between the evidentiary views of Xxxxxx and the Company, the
court shall have jurisdiction to determine the intent of Xxxxxx and the Company
based on the record before it, and the court shall not dismiss the claim based
on a failure of the meeting of the minds.
IN WITNESS WHEREOF, Xxxxxx and Company have executed this Agreement as of the
Effective Date.
WILTEL COMMUNICATIONS
GROUP, INC.
By /s/ H.E. XXXXXXX /s/ XXXXXX XXXXXX
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Xxxxxx Xxxxxx
Title: Senior Vice President
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