EXHIBIT 10.7
JOINT MANAGEMENT AGREEMENT
This Joint Management Agreement (this "AGREEMENT") is entered into as of
November 8, 2002 (the "EFFECTIVE DATE") by and among SGN LLC, a Delaware limited
liability company ("SGN"), and Dex Holdings LLC, a Delaware limited liability
company ("BUYER" and together with SGN the "BUYER PARTIES") on the one hand, and
Qwest Dex, Inc., a Colorado corporation ("DEX"), and Qwest Communications
International Inc., a Delaware corporation ("QWEST" and together with Dex the
"QWEST PARTIES") on the other hand. Each of the signatories hereto is
individually a "PARTY" and collectively the "PARTIES". Capitalized terms not
otherwise defined herein will have the meanings assigned to such terms in
Article 1.
RECITALS
A. Qwest, Qwest Services Corporation, a Colorado corporation ("QSC"), Dex,
and Buyer have entered into that certain Purchase Agreement (the "LLC
PURCHASE AGREEMENT") dated as of August 19, 2002 pursuant to which Dex
has agreed, subject to the terms and conditions set forth therein, to:
(i) contribute certain of its assets and liabilities to SGN; and (ii)
sell all of the outstanding limited liability company interests of SGN
to Buyer following such contribution (the "CLOSING").
B. Sections 7.2(g) and 7.3(f) of the LLC Purchase Agreement provide that
the obligations of Qwest, QSC, Dex, and Buyer to consummate the Closing
are subject, among other things, to the execution and delivery of this
Agreement.
C. In connection with the LLC Purchase Agreement, Qwest, QSC, Dex, and
Buyer entered into that certain Purchase Agreement, dated of even date
therewith (the "LLC II PURCHASE AGREEMENT"), pursuant to which Dex has
agreed, subject to the terms and conditions set forth therein, to: (i)
contribute certain of its assets and liabilities to GPP LLC; and (ii)
sell all of the outstanding limited liability company interests of GPP
LLC to Buyer following such contribution (the "SECOND CLOSING").
D. During the Term of this Agreement, the Parties desire that the
executives listed on Exhibit A, or any successors appointed pursuant to
Section 4.2(ii), (collectively, the "MANAGEMENT TEAM") be simultaneously
employed by each of Dex and SGN.
E. The Parties desire to set forth the scope of certain of the
responsibilities, duties and reporting requirements for the Management
Team.
F. The Parties desire to set forth the allocation of the costs of
compensation and other employee benefits of the Management Team between
Dex and SGN.
AGREEMENT
In consideration of the foregoing recitals and the mutual promises and
covenants contained herein, the sufficiency of which is hereby acknowledged, the
Parties agree as follows:
ARTICLE 1
DEFINITIONS
1.1 GENERAL RULES OF CONSTRUCTION. For all purposes of this Agreement: (i)
the terms defined in this Agreement include the plural as well as the singular;
(ii) all references in this Agreement to designated "Articles," "Sections" and
other subdivisions are to the designated Articles, Sections and other
subdivisions of the body of this Agreement; (iii) pronouns of either gender or
neuter include, as appropriate, the other pronoun forms; (iv) the words
"herein," "hereof' and "hereunder" and other words of similar import refer to
this Agreement as a whole and not to any particular Article, Section or other
subdivision; (v) "or" is not exclusive; (vi) "including" and "includes" will be
deemed to be followed by "but not limited to" and "but is not limited to,"
respectively; (vii) any definition of or reference to any law, agreement,
instrument or other document herein will be construed as referring to such law,
agreement, instrument or other document as from time to time amended,
supplemented or otherwise modified; and (viii) any definition of or reference to
any statute will be construed as referring also to any rules and regulations
promulgated thereunder.
1.2 DEFINITIONS. The following definitions will apply within this Agreement
(including, unless the context clearly requires otherwise, any Exhibits hereto).
"AFFILIATE" means a Person that directly, or indirectly through one or more
intermediaries, controls, or is controlled by, or is under common control with,
a specified Person. The term "control" (including, with correlative meanings,
the terms "controlled by" and "under common control with") means the possession
of the power to direct the management and policies of the referenced Person,
whether through ownership interests, by contract or otherwise.
"AGREEMENT" has the meaning set forth in the introductory paragraph.
"BUSINESS" means the business of publishing of telephone directory products
and services consisting principally of searchable (e.g., by alphabet letter or
category) multiple telephone listings and classified advertisements that are
delivered or otherwise made available to end users in tangible media (e.g.,
paper directories, CD-ROM) or electronic media (e.g., Internet) as presently
conducted by Dex and SGN, respectively.
"BUSINESS PLAN" has the meaning set forth in the Professional Services
Agreement.
"BUYER" has the meaning set forth in the introductory paragraph.
"BUYER PARTIES" has the meaning set forth in the introductory paragraph.
"CHANGE OF CONTROL" means: (i) an acquisition by any Person or group of
Persons of the voting stock of the referenced Person in a transaction or series
of transactions, if immediately thereafter such acquiring Person or group has,
or would have, beneficial ownership of more than 50% of the combined voting
power of the referenced Person's then outstanding voting stock, including any
such acquisition by way of a merger, consolidation or reorganization (including
under the Bankruptcy Code), or series of such related transactions, involving
the referenced Person; (ii) a sale, assignment or other transfer of all or
substantially all of the referenced Person's assets; or (iii) a confirmation of
any plan of reorganization or liquidation under, or sale of assets pursuant to,
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the Bankruptcy Code, any out-of-court recapitalization or reorganization
transaction or exchange offer, in any case in which more than fifty-one percent
(51%) of such Person's outstanding equity securities are issued in exchange for
all or a significant portion of such Person's outstanding debt or other
securities, or a deed in lieu of foreclosure or any other remedy or right at law
or contract by which substantially all of such Person's equity securities or
assets are surrendered, assigned or otherwise transferred to another Person.
"CLOSING" has the meaning set forth in the Recitals.
"CONFIDENTIALITY AGREEMENT" means that certain Confidentiality Agreement
between Welsh, Carson, Xxxxxxxx & Xxxxx IX, L.P. and Qwest Services Corporation,
dated as of April 22, 2002.
"DEADLOCK" has the meaning set forth in Section 5.2.
"DEADLOCK NOTICE" has the meaning set forth in Section 5.2.
"DESIGNATED REPRESENTATIVES" has the meaning set forth in Section 5.1.
"DEX" has the meaning set forth in the introductory paragraph.
"EFFECTIVE DATE" has the meaning set forth in the introductory paragraph.
"GOVERNMENTAL ENTITY" means any government or any regulatory agency,
bureau, board, commission, court, department, official, political subdivision,
tribunal or other instrumentality of any government, whether federal, state or
local, domestic or foreign.
"LIAISON COMMITTEE" has the meaning set forth in Section 5.1.
"LLC PURCHASE AGREEMENT" has the meaning set forth in the Recitals.
"LLC II PURCHASE AGREEMENT" has the meaning set forth in the Recitals.
"LOSS" means any cost, damage, disbursement, expense, liability, loss,
obligation, penalty or settlement, including interest or other carrying costs,
legal, accounting and other professional fees and expenses incurred in the
investigation, collection, prosecution and defense of claims and amounts paid in
settlement, that may be imposed on or otherwise incurred or suffered by the
referenced Person; provided, however, that the term "Loss" will not be deemed to
include any special, exemplary or punitive damages, except to the extent such
damages are incurred as a result of third party claims.
"MANAGEMENT TEAM" has the meaning set forth in the Recitals.
"NON-COMPETITION AND NON-SOLICITATION AGREEMENT" means that certain
Non-Competition and Non-Solicitation Agreement by and among Qwest, Dex, SGN and
the other parties thereto, to be entered into at the Closing.
"PARTY" and "PARTIES" has the meanings set forth in the introductory
paragraph.
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"PAYROLL MEMORANDUM OF UNDERSTANDING" means that certain Payroll Memorandum
of Understanding between Qwest, Dex and Buyer, to be entered into at the
Closing.
"PERSON" means an association, a corporation, an individual, a partnership,
a limited liability company, a trust or any other entity or organization,
including a Governmental Entity.
"PROFESSIONAL SERVICES AGREEMENT" means that certain Professional Services
Agreement of even date herewith by and between SGN and Dex.
"QWEST" has the meaning set forth in the introductory paragraph.
"QSC" has the meaning set forth in the Recitals.
"QWEST PARTIES" has the meaning set forth in the introductory paragraph.
"SECOND CLOSING" has the meaning set forth in the Recitals.
"SEPARATION AGREEMENT" means that certain Separation Agreement by and
between SGN, Buyer, Qwest and Dex, to be entered into at the Closing.
"SEPARATION TRIGGER DATE" means the date upon which the LLC II Purchase
Agreement is terminated prior to the consummation of the Second Closing.
"SERVICES" has the meaning set forth in the Professional Services
Agreement.
"SERVICE STANDARDS" has the meaning set forth in the Professional Services
Agreement.
"SGN" has the meaning set forth in the introductory paragraph.
"TERM" has the meaning set forth in Article 2.
ARTICLE 2
TERM AND TERMINATION OF AGREEMENT
The term of this Agreement will commence as of the Effective Date and will
continue in full force and effect until the earlier of: (i) the termination or
earlier expiration of the Professional Services Agreement in accordance with its
terms; or (ii) the date upon which the last member of the Management Team, or
any successor chosen pursuant to Section 4.2(ii), is no longer simultaneously
employed by both SGN and Dex (the "TERM").
ARTICLE 3
SHARING OF MANAGEMENT TEAM
3.1 MANAGEMENT TEAM. The Management Team will be employed on a full-time
basis by each of SGN and Dex for the day-to-day management and operation of the
Business, initially upon the Effective Date, in the capacities, and with the
responsibilities, listed next to their respective names on Exhibit A. The Qwest
Parties and the Buyer Parties each acknowledge and agree that, except as set
forth below: (i) the Qwest Parties will have exclusive control of the Management
Team with respect to the management and operation of the Business as it pertains
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to Dex; (ii) the Buyer Parties will have exclusive control of the Management
Team with respect to the management and operation of the Business as it pertains
to SGN; and (iii) the Qwest Parties and the Buyer Parties may, in their sole
discretion, place any restrictions that they deem appropriate on the Management
Team in connection with the management and operation of the Business as it
pertains to Dex or SGN, respectively.
3.2 SCOPE OF AUTHORITY. The Management Team will be entitled to exercise
broad discretion and authority in managing and operating the Business in
accordance with past practices. Without limiting the generality of the
foregoing:
(a) Operations. The Management Team will have the discretion and
authority to select the third party suppliers of goods and services (e.g., paper
supplies, printers, distributors) on behalf of each of SGN or Dex, and to enter
into contracts for, or to cause each of SGN or Dex to enter into contracts for,
all goods and services reasonably required for the operations of the their
respective businesses; and
(b) Personnel. The Management Team will have the discretion and
authority for the hiring, promotion, demotion, compensation and termination of
all personnel employed or engaged by each of SGN and Dex.
3.3 BUSINESS PLAN. The Qwest Parties agree to direct each of the members of
the Management Team to execute the terms of the Business Plan as it pertains to
Dex, and the Buyer Parties agree to direct each of the members of the Management
Team not to interfere with the execution of the Business Plan as it pertains to
Dex. The Buyer Parties will direct each of the members of the Management Team to
cause SGN to perform the Services in accordance with the Service Standards
pursuant to the Professional Services Agreement.
3.4 STANDARD OF PERFORMANCE. Subject to Section 3.1, the Parties will
direct each member of the Management Team to: (i) devote a proportionate amount
of such member's time, effort and resources necessary to operate the Business
consistent with past practices with respect to such individual's position; and
(ii) promote the interests of the Business as a whole. Notwithstanding the
foregoing, the Parties acknowledge and agree that during the Term each member of
the Management Team will be a fiduciary of both Dex and SGN. In the event that
any Party reasonably believes that any fiduciary duty of the Management Team (or
any member thereof) with respect to Dex may be in conflict with any fiduciary
duty with respect to SGN (or vice versa), then such Party will refer such
potential fiduciary conflict to the Liaison Committee for direction as to how to
proceed. The Parties will instruct each member of the Management Team to report
any such potential fiduciary conflict to both the Qwest Parties and the Buyer
Parties as soon as practicable after such member first has reasonable cause to
believe that such a fiduciary conflict may exist.
3.5 DUTY OF CARE. The Parties will direct each member of the Management
Team to conduct himself or herself with the care, skill, prudence and diligence
under the circumstances then prevailing that a prudent manager would use in the
conduct of a business of like character, without undue attention towards or
discrimination against the portion of the Business pertaining to either Dex or
SGN.
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3.6 REPORTING AUTHORITY. Each member of the Management Team will report to:
(i) Qwest in his or her capacity as an employee of Dex; and (ii) Buyer in his or
her capacity as an employee of SGN.
3.7 EMPLOYMENT POLICIES. The members of the Management Team will be subject
to the separate personnel policies and other terms and conditions of employment
described in Section 2.6 of the Separation Agreement, and no Party will
knowingly take any action that will cause any member of the Management Team to
materially violate the other Party's employment policies.
3.8 LOCATION. Except as may otherwise be agreed to in writing by the
Parties, the Management Team will be primarily located at SGN's headquarters
located at 000 Xxxxxxxxx Xxxxx Xxxx, Xxxxxxxxx, Xxxxxxxx.
3.9 COMPENSATION AND EMPLOYEE BENEFITS. The Parties agree that the
salaries, taxes, benefit plans, expense reimbursements and other employee
benefits payable to or maintained for the benefit of the Management Team, and
the costs thereof, will be allocated between the Parties as set forth on Exhibit
B. None of the Qwest Parties or their respective Affiliates will change the
employee benefits of the members of the Management Team without the prior
written consent of the other Party, such consent not to be unreasonably
withheld, conditioned or delayed.
3.10 MANAGEMENT TEAM ACKNOWLEDGEMENT. Each of the Parties will use its
commercially reasonable efforts to ensure that each member of the Management
Team, as soon as reasonably practicable following the Effective Date, executes
an acknowledgement in substantially the form attached as Exhibit C.
3.11 INSURANCE.
(a) Each of Dex and SGN will maintain, at all times during the Term,
workers' compensation insurance for the Management Team at coverage levels
(whether self-insured, insured or high deductible) that meet statutory minimum
requirements. Any "compensable claims or losses" made by a member of the
Management Team under such policies will be subject to the pro rata distribution
of Dex and SGN, with Dex bearing 57% of the cost and SGN bearing 43% of the
cost.
(b) Each of Dex and SGN will also maintain, at all times during the
Term, automobile liability, general liability, director and officer, and
fiduciary and crime insurance policies insuring the Management Team consistent
with industry standards.
3.12 FINANCING ACTIVITIES. The Buyer Parties agree and acknowledge that the
Qwest Parties will have no liability for actions, omissions, statements or
misstatements by any member of the Management Team with respect to such
individual's involvement, on behalf of the Buyer Parties, in obtaining
financing, making investor presentations, or any engaging in other activities at
the Buyer Parties' direction related to the Buyer Parties' consummation of the
transactions contemplated by the LLC II Purchase Agreement (other than for any
such actions, omissions, statements or misstatements made at the direction of or
with the prior knowledge of the Qwest Parties).
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ARTICLE 4
TERMINATION AND REPLACEMENT OF MANAGEMENT TEAM
4.1 TERMINATION OF MANAGEMENT TEAM MEMBER. Either SGN or Dex may, at any
time and without prior notice to the other Party, immediately terminate the
employment of any member of the Management Team (with respect to such Party
only), with or without cause, and will immediately notify the other Party of
such termination. Upon such termination by one Party, the other Party will not
be required to terminate the employment of such employee (with respect to such
Party).
4.2 REPLACEMENT OF MANAGEMENT TEAM MEMBER. If any member of the Management
Team is terminated pursuant to Section 4.1 above or otherwise ceases to be
employed by a Party (whether as a result of voluntary termination or
resignation, retirement, death, disability, incapacity or otherwise) prior to
the Second Closing: (i) the Party that terminated such employee, or lost such
employee's services, may elect, in its sole and absolute discretion, to replace
such employee or not to replace such employee; and (ii) the Parties may, but
will not be required to, agree to designate a person to replace such employee as
a member of the Management Team within the meaning of this Agreement. Following
the Separation Trigger Date, the employment of members of the Management Team
will be governed by Section 3.4 of the Separation Agreement.
4.3 SOLICITATION AND HIRING RESTRICTIONS.
(a) During the Term, none of the Buyer Parties, the Qwest Parties, nor
their respective Affiliates will solicit for hire any member of the Management
Team as its exclusive employee or as an employee of any Affiliate or in a
different capacity without the prior written consent of the other Party.
(b) None of the Buyer Parties, the Qwest Parties, nor their respective
Affiliates will solicit for re-hire any member of the Management Team whose
employment has been terminated by such Party in accordance with Section 4.1 for
a period of two (2) years following such termination.
(c) Except as otherwise specifically set forth herein, and not in
limitation of the foregoing, each of the Parties agrees to comply with the
non-solicitation covenants set forth in Article 4 of the Non-Competition and
Non-Solicitation Agreement with respect to all employees of the other Party.
ARTICLE 5
LIAISON COMMITTEE; RESOLUTION OF DISPUTES
5.1 LIAISON COMMITTEE. The Parties will establish a committee consisting of
four (4) individuals (the "LIAISON COMMITTEE"), Qwest and Buyer each having the
right to appoint two (2) members from time to time in their sole and absolute
discretion (such Party's "DESIGNATED REPRESENTATIVES"). The Liaison Committee
will meet at the request of either Party in order to give guidance to the
members of the Management Team as contemplated in Section 3.4.
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5.2 DISPUTE RESOLUTION. If: (i) either Party objects to the guidance
provided by the Liaison Committee to any member of the Management Team (or the
Management Team as a whole); or (ii) the Liaison Committee cannot agree on any
such guidance (in either such case, a "DEADLOCK"), then either Party's
Designated Representatives may serve a notice in writing (a "DEADLOCK NOTICE")
on the other Parties describing the dispute, its understanding of the positions
taken by the Parties' respective Designated Representatives in such dispute and
the arguments supporting its opinion that such dispute constitutes a Deadlock.
The Parties agree that, following the service of a Deadlock Notice, they will
refer the Deadlock for resolution to the chief executive officers of the
ultimate parent companies of their respective corporate groups and use all
commercially reasonable efforts to agree in good faith on a resolution of such
Deadlock. If the chief executive officers are unable to resolve such Deadlock,
the Parties will have the right to pursue such remedies as may be available and
terminate this Agreement in accordance with Article 2.
ARTICLE 6
INDEMNIFICATION
6.1 INDEMNIFICATION.
(a) The Qwest Parties will indemnify and hold harmless the Buyer
Parties and their respective directors, officers (other than the Management
Team), employees, Affiliates, agents and assigns from and against any and all
Losses directly or indirectly based upon, arising from or resulting from any
action taken (or omission to act) by a member of the Management Team in
violation of Section 3.4, Section 3.5, or Article 7, which action (or omission
to act) is performed at the direction or with the knowledge of the Qwest
Parties.
(b) The Buyer Parties will indemnify and hold harmless the Qwest
Parties and their respective directors, officers (other than the Management
Team), employees, Affiliates, agents and assigns from and against any and all
Losses directly or indirectly based upon, arising from or resulting from any
action taken (or omission to act) by a member of the Management Team in
violation of Section 3.4, Section 3.5, or Article 7, which action (or omission
to act) is performed at the direction or with the knowledge of the Buyer
Parties.
(c) The Qwest Parties and the Buyer Parties agree to indemnify and
hold harmless each other and their respective directors, officers (other than
the Management Team), employees, Affiliates, agents and assigns from and against
any and all Losses directly or indirectly based upon, arising from or resulting
from any third party claims as a result of any action (or omission to act) by a
member of the Management Team, which action (or omission to act) is attributable
to such individual's performance of his or her duties hereunder solely on behalf
Dex or SGN, as applicable.
ARTICLE 7
CONFIDENTIALITY
Each of the Parties agrees that all non-public, confidential information
received from the other party is deemed received pursuant to the Confidentiality
Agreement, and each Party will, and will cause its representatives (as defined
in the Confidentiality Agreement) to, comply with the provisions of the
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Confidentiality Agreement with respect to such information. The provisions of
the Confidentiality Agreement are hereby incorporated by reference with the same
effect as if fully set forth herein. The Parties will direct the members of the
Management Team to not use any confidential information of one Party for any
reason other than for the benefit of such Party. The obligations contained in
this Article 7 will survive the termination or expiration of this Agreement for
a period of one (1) year.
ARTICLE 8
MISCELLANEOUS
8.1 FURTHER ASSURANCES. Each Party will take such other actions as any
other Party may reasonably request or as may be necessary or appropriate to
consummate or implement the transactions contemplated by this Agreement or to
evidence such events or matters.
8.2 NO AGENCY. Nothing in this Agreement or in any other document related
to this transaction, and no action of or inaction by any of the Parties will be
deemed or construed to constitute an agency relationship between the Parties.
Each Party is acting independently of the other and no Party has the authority
to act on behalf of or bind the other.
8.3 GOVERNING LAWS; COMPLIANCE WITH LAW. This Agreement and the legal
relations between the Parties will be governed by and construed in accordance
with the laws of the State of New York applicable to contracts made and
performed in such State and without regard to conflicts of law doctrines, except
to the extent that state law as to certain matters is preempted by federal law.
8.4 AMENDMENTS; WAIVERS. Except as expressly provided herein, this
Agreement and any attached Exhibit may be amended only by agreement in writing
of all Parties. No waiver of any provision nor consent to any exception to the
terms of this Agreement or any agreement contemplated hereby will be effective
unless in writing and signed by all Parties and then only to the specific
purpose, extent and instance so provided. No failure on the part of any Party to
exercise or delay in exercising any right hereunder will be deemed a waiver
thereof, nor will any single or partial exercise preclude any further or other
exercise of such or any other right.
8.5 NO ASSIGNMENT. Neither this Agreement nor any rights or obligations
hereunder are assignable by one Party without the express prior written consent
of the other Parties; provided, however, that any Party may assign this
Agreement upon written notice to the other Parties to any of its Affiliates
without the consent of the other Parties if such Affiliate agrees in writing to
be bound by the terms of this Agreement and the assigning Party remains liable
for its obligations hereunder. A Change of Control of any Party hereto will not
be deemed to be an assignment of this Agreement, provided that if the relevant
Party is no longer directly bound as a party to this Agreement (e.g., because
the Change of Control is a sale or transfer of assets or is the result of a
transaction pursuant to which the successor, surviving or acquiring entity does
not automatically succeed to the obligations of such Party by operation of law),
the successor, surviving or acquiring entity is required to agree in writing
(whether as part of the acquisition agreement that provides for the other
Parties to be a third party beneficiary or in a separate agreement) to assume
this Agreement on substantially similar terms and in all material respects.
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8.6 NOTICES. All notices, demands and other communications to be given or
delivered under or by reason of the provisions of this Agreement will be in
writing and will be deemed to have been given: (i) immediately when personally
delivered; (ii) when received by first class mail, return receipt requested;
(iii) one day after being sent for overnight delivery by Federal Express or
other overnight delivery service; or (iv) when receipt is acknowledged, either
electronically or otherwise, if sent by facsimile, telecopy or other electronic
transmission device. Notices, demands and communications to the Parties will,
unless another address is specified by the Parties hereafter in writing, be sent
to the address indicated below:
If to the Buyer Parties, addressed to:
Dex Media East LLC
000 Xxxxxxxxx Xxxxx Xxxx, Xxxxxx Xxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Attention: Chief Executive Officer
Fax: (000) 000-0000
With a copy to (which will not constitute notice):
Xxxxxx & Xxxxxxx
000 Xxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000
Attention: R. Xxxxxx Xxxxxxxxx, Esq.
Fax: (000) 000-0000
If to the Qwest Parties, addressed to:
Qwest Dex, Inc.
000 Xxxxxxxxx Xxxxx Xxxx
Xxxxxxxxx, Xxxxxxxx 00000
Attention: Dex Project Manager
Fax: (000) 000-0000
AND
Qwest Communications International Inc.
0000 Xxxxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxx 00000
Attention: General Counsel
Fax: (000) 000-0000
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With a copy to (which will not constitute notice):
O'Melveny & Xxxxx LLP
1999 Avenue of the Stars, Xxxxx 000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxxx, Esq.
Fax: (000) 000-0000
8.7 ENTIRE AGREEMENT. This Agreement, including any Exhibits attached
hereto, and the other Commercial Agreements (as defined in the LLC Purchase
Agreement), constitutes the entire agreement between the Parties pertaining to
the subject matter hereof and supersedes all prior agreements and understandings
of the Parties in connection therewith.
8.8 SEVERABILITY. If any provision of this Agreement is held to be
unenforceable for any reason, it will be adjusted rather than voided, if
possible, to achieve the intent of the Parties. All other provisions of this
Agreement will be deemed valid and enforceable to the extent possible.
8.9 HEADINGS. The descriptive headings of the Articles, Sections and
subsections of this Agreement are for convenience only and do not constitute a
part of this Agreement.
8.10 COUNTERPARTS. This Agreement and any amendment hereto or any other
agreement delivered pursuant hereto may be executed in one or more counterparts
and by different Parties in separate counterparts. All counterparts will
constitute one and the same agreement and will become effective when one or more
counterparts have been signed by each Party and delivered to the other Parties.
8.11 SUCCESSORS AND ASSIGNS; NO THIRD PARTY BENEFICIARIES. This Agreement
is binding upon and will inure to the benefit of each Party and their respective
successors or assigns, and nothing in this Agreement, express or implied, is
intended to confer upon any other Person any rights or remedies of any nature
whatsoever under or by reason of this Agreement.
8.12 INTERPRETATION. Each Party acknowledges that it has been represented
by counsel in connection with this Agreement. Accordingly, any rule of law or
any legal decision that would require interpretation of any claimed ambiguities
in this Agreement against the Party that drafted it has no application and is
expressly waived. The provisions of this Agreement will be interpreted in a
reasonable manner to effect the intent of the Parties.
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IN WITNESS WHEREOF, each of the Parties has caused this Agreement to be
duty executed for and on its behalf as of the day and year first above written.
QWEST COMMUNICATIONS
INTERNATIONAL INC.
By: /s/ Xxxx X. Xxxx
--------------------------------
Name: Xxxx X. Xxxx
Title: Vice President
QWEST DEX, INC.
By: /s/ Xxxxxx Xxxxxxx
--------------------------------
Name: Xxxxxx Xxxxxxx
Title: President
SGN LLC
By: Qwest Dex, Inc., its sole member
By: /s/ Xxxxxx Xxxxxxx
--------------------------------
Name: Xxxxxx Xxxxxxx
Title: President
DEX HOLDINGS LLC
By: /s/ Xxxxx X. Xxxxxxx, Xx.
--------------------------------
Name: Xxxxx X. Xxxxxxx, Xx.
Title: Managing Director
S-1
EXHIBIT A
MANAGEMENT TEAM
NAME OF POSITION JOB DESCRIPTION AND RESPONSIBILITIES
EMPLOYEE
1. Xxxxxx Xxxxxxx President Chief executive for all operations,
including sales, operations, marketing,
central services, finance, human resources,
legal, and support services obtained from
vendors, affiliates, contractors and
consultants.
2. Xxxx Xxxxxxxx Vice President, Responsible for printing, paper,
Operations distribution, intemet product fulfillment,
market assignment, order management,
artwork, national operations, community
pages, listings management, commissions and
results, operational analysis, book
manufacturing, and related duties in support
of creating print, virtual and other
directories.
3. Xxxxxx XxXxxx Vice President, Responsible for field product marketing,
Marketing central marketing (including pricing),
channel strategy, customer programs,
recycling, intemet product management,
consumer product management, distribution
strategy, advertiser product management,
public relations, customer / segment
marketing, marketing information, related
administration duties, growth ventures,
advertising, QwestDexDirect (data and list
sales). and national sales (national
advertiser sales via CMR relationships).
4. Xxxxxxxx Xxxx Vice President, Responsible for directing geographically
Sales based sales teams and central sales
management and support of sales
organizations for 14-state region. Central
support includes labor program management,
co-op programs, decision support, marketing
initiatives, intemet yellow page sales,
business process development and
reengineering for sales, awards &
recognition and related administrative
functions.
5. Xxxx Xxxxxx Vice President, Responsible for directing customer care,
Customer Care credit assessment & collections managements,
learning center (central training and
training development), business process
subject matter expertise, user table design
and support, industrial engineering and
technical training.
A-1
NAME OF POSITION JOB DESCRIPTION AND RESPONSIBILITIES
EMPLOYEE
6. Xxx Xxxxxxx Chief Responsible for directing financial planning
Financial and analysis, controller, tax, treasury,
Officer risk management, audits and evaluations,
external contractors and related financial
activities.
A-2
EXHIBIT B
SALARY AND BENEFITS ALLOCATION
Compensation. Except as otherwise provided in this Exhibit B, the salary
and benefits costs of the Management Team will be split pro rata, with Dex
bearing 57% of the costs and SGN bearing 43% of the costs. To the extent either
Party directly pays more than its pro rata share of costs, it will be reimbursed
by the other Party. Each member of the Management Team will continue to receive
no less compensation than he or she received from Dex as of the Closing (the
"CLOSING DATE COMPENSATION"), with Dex paying no less than 57% of the Closing
Date Compensation and with SGN paying no less than 43% of the Closing Date
Compensation. Either Dex, SGN or both may (but neither will be obligated to)
increase compensation for one or more members of the Management Team, but
neither may decrease its compensation payments to less than 57% of the Closing
Date Compensation (in Dex's case) or less than 43% of the Closing Date
Compensation (in SGN's case). It is contemplated that each employee will receive
two paychecks, one from Dex and one from SGN, each pay period. Each member of
the Management Team will also receive a separate W-2 from Dex and from SGN.
Employee Benefits. During the Term, Dex and SGN will cooperate to ensure
that the initial members of the Management Team receive a complete package of
employee benefits no less favorable than the levels provided by Qwest as of the
Closing, but without duplication of benefits. Dex and SGN will share the costs
of employee benefits in the same proportion as their share of each employee's
compensation (i.e., with Dex responsible for 57% of such costs and SGN
responsible for 43% of such costs). Each particular employee benefit may be
provided under a Dex (or Qwest) benefit plan, under a SGN benefit plan, or both.
The responsibilities for significant benefit plans will be determined in
accordance with the terms set forth in the following chart. Responsibilities
with respect to any benefit plan not set forth in the following chart will be
agreed upon by the Parties as soon as practicable following the Effective Date
in accordance with the principles set forth in the following chart and in this
Exhibit B.
Pension Plan
Each member of the Management Team will remain covered under Qwest Pension Plan
during the term of such individual's continued employment by Dex. Additional
benefits will accrue based on total compensation from Dex and SGN. SGN will
reimburse Dex for a pro rata share of the "service costs" within the meaning of
Financial Accounting Standard No. 87.
401(k) Plan
Each member of the Management Team will remain a participant in QSIP during the
term of such individual's continued employment by Dex. Each member of the
Management Team may also participate in SGN 401(k) plan, especially if necessary
to permit employees to make maximum desired salary deferral (subject to
applicable legal limitations) or to get maximum employer match.
B-1
Health Plan and
Dental Plan
Each member of the Management Team will remain covered under the Qwest Health
Plan and the Qwest Dental Plan during the term of such individual's continued
employment by Dex. SGN will reimburse Dex for pro rata share of the costs.
Disability Plans
Each member of the Management Team will remain covered under Qwest plans during
the term of such individual's continued employment by Dex. If disability benefit
is based on compensation, may also require coverage under SGN disability plan.
If only covered under Qwest plans, SGN will reimburse Dex for pro rata share of
the costs.
Life Insurance
Each member of the Management Team will remain covered under Qwest plans or
policies during the term of such individual's continued employment by Dex. If
death benefit is a multiple of compensation, may also require coverage under SGN
disability plan. If only covered under Qwest plans or policies, SGN will
reimburse Dex for pro rata share of the costs.
Flexible Benefit Plan
Each member of the Management Team will pay pre-tax share of premiums from
payroll of company providing that benefit (e.g., employee share of health
premium deducted from Dex payroll if covered under Qwest Health Plan). Each
member of the Management Team can make salary deferrals for health care
reimbursement account and dependent care reimbursement account from either Dex
or SGN payroll, subject to any applicable limit on total FSA deferral.
Pension Plan Asset Transfer. Assuming that any member of the Management
Team continues to be covered by, and to accrue additional pension benefits
under, the Qwest Pension Plan during the term of such individual's continued
employment by Dex, his or her existing benefit liabilities will remain with the
Qwest Pension Plan during that time. Upon termination of this Agreement with
respect to any member of the Management Team, assuming that such member of the
Management Team continues to be an employee of SGN, the Buyer Pension Plan will
assume the liabilities for their accrued pension benefits (along with the
accrued pension benefits of the Dex employees) and the Qwest Pension Plan will
transfer assets to the Buyer Pension Plan corresponding to these assumed pension
liabilities.
401 (k) Plan. Upon termination of this Agreement with respect to any member
of the Management Team, members of the Management Team will no longer be
employees of any member of the Qwest controlled group. As a result, each member
will be entitled to take a distribution from the Qwest Savings and Investment
Plan. Like the other Dex employees, each member of the Management Team can elect
to make a direct rollover of their QSIP account balances into a Buyer 401(k)
plan or into an XXX. Alternatively, each member can elect to leave his or her
account balances in the QSIP (assuming the account balance exceeds $5,000) or
take a distribution from the QSIP and pay income taxes.
B-2
Employee Expenses. Dex and SGN will be solely responsible to reimburse
members of the Management Team for expenses incurred by such individual with
respect to his or her employment solely by Dex or SGN, respectively, in each
case in accordance with such Party's policies and procedures. Dex and SGN will
reimburse each member of the Management Team on a pro rata basis for expenses
incurred by such individual with respect to his or her employment by both Dex
and SGN, in each case in accordance with such Party's policies and procedures.
Termination of Simultaneous Employment. If a member of the Management Team
accepts employment with SGN within twelve (12) months after the Separation
Trigger Date, the Buyer Pension Plan assumes liabilities for accrued pension
benefits and the Qwest Pension Plan transfers assets to the Buyer Pension Plan
under the assumptions of the LLC II Purchase Agreement.
The Parties will perform their obligations under this Agreement and Exhibit
B in accordance with the terms of the Payroll Memorandum of Understanding.
B-3
EXHIBIT C
ACKNOWLEDGMENT AND CONSENT
SGN LLC ("SGN") and Qwest Dex, Inc. ("DEX") have agreed to each employ the
undersigned as an executive on the terms and conditions set forth in that
certain Joint Management Agreement between SGN, Dex, Qwest Communications
International Inc. ("QWEST") and Dex Holdings, LLC ("BUYER") (the "JOINT
MANAGEMENT AGREEMENT").
The undersigned acknowledges that he/she has received and read a copy of
the Joint Management Agreement and agrees to comply with the terms and
conditions thereof. The undersigned further acknowledges that for purposes of
his/her employment by both Dex and SGN he/she is a fiduciary of both Dex and
SGN, as applicable, and agrees to be bound by and comply with the fiduciary
obligations and confidentiality and non-disclosure obligations with respect to
the undersigned outlined in the Joint Management Agreement.
The undersigned has executed this Acknowledgment and Consent as of the
Effective Date (as defined in the Joint Management Agreement).
By: ___________________________
Name: ___________________________
Title: ___________________________
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