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EXHIBIT 10.45
SEPARATION AGREEMENT
THIS SEPARATION AGREEMENT (this "Agreement") is made and entered into
this _____ day of _______________, 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 Administration
Services Agreement, the Registration Rights Agreements, the Tax Sharing
Agreement, the Cross-License Agreement, the Data Processing Agreement, the
Indemnification Agreement, and the Operation, Maintenance and Repair 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.
"DATA PROCESSING AGREEMENT" means the Agreement attached hereto as
Exhibit 5.
"EMPLOYEE BENEFITS AGREEMENT" means the Agreement attached hereto as
Exhibit 8.
"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.
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"INDEMNIFICATION AGREEMENT" means the Agreement attached hereto as
Exhibit 6.
"INFORMATION" means any Information, whether or not patentable or
copyrightable in 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.
"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 other
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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 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][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
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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
shall pay $[___] per hour 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
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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.
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
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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.
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
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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.
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
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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.
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
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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 8.
ARTICLE VII
EFFECTIVENESS
7.01 EFFECTIVENESS. This Agreement shall become effective at the
Closing.
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.
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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.
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.
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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: Xxxxx X. Xxxxx
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.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed the day and year first written above.
XXXXXXXX COMMUNICATIONS GROUP, INC.
By:
--------------------------------
Name:
Title:
THE XXXXXXXX COMPANIES, INC.
By:
--------------------------------
Name:
Title:
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EXHIBIT 8
EMPLOYEE BENEFITS AGREEMENT
THIS EMPLOYEE BENEFITS AGREEMENT (this "Agreement") is made
and entered into as of ____________________________, 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.
"Communications" shall mean Xxxxxxxx Communications Group,
Inc.
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"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 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.
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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.
(i) The parties recognize that many of the Employee Services
provided to Communications by Xxxxxxxx Employees will be performed by Shared
Services Employees. At
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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, COMMUNICATION 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 services that, if agreeable to Xxxxxxxx,
shall be provided on a direct cost basis to Communications.
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(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 Communications
under this Agreement.
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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 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
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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 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
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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 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
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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), 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
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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 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
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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.
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.
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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
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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.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed the day and year first written above.
XXXXXXXX COMMUNICATIONS GROUP, INC.
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
THE XXXXXXXX COMPANIES, INC.
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
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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.
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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)
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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 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.
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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.
