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EXHIBIT 99.1
AMENDED AND RESTATED
SEPARATION AGREEMENT
EFFECTIVE APRIL 23, 2001
BY AND BETWEEN
THE ▇▇▇▇▇▇▇▇ COMPANIES, INC. ("▇▇▇▇▇▇▇▇")
AND
▇▇▇▇▇▇▇▇ COMMUNICATIONS GROUP, INC. ("COMMUNICATIONS")
SUPERSEDES:
THE SEPARATION AGREEMENT BY AND BETWEEN ▇▇▇▇▇▇▇▇ AND COMMUNICATIONS DATED
SEPTEMBER 30, 1999.
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AMENDED AND RESTATED SEPARATION AGREEMENT
TABLE OF CONTENTS
1. DEFINITIONS...............................................................................................1
1.01 DEFINITIONS......................................................................................1
2. ANCILLARY AGREEMENT AND TERMINATION OF PRIOR AGREEMENT....................................................4
2.01 ANCILLARY AGREEMENTS.............................................................................4
2.02 TERMINATION OF PRIOR AGREEMENT...................................................................5
3. CERTAIN BUSINESS MATTERS..................................................................................5
3.01 NON-COMPETITION..................................................................................5
3.02 EXCHANGE OF INFORMATION..........................................................................7
3.03 OWNERSHIP OF INFORMATION.........................................................................7
3.04 COMPENSATION OF PROVIDING INFORMATION............................................................8
3.05 RECORD RETENTION.................................................................................8
3.06 LIMITATION OF LIABILITY..........................................................................8
3.07 OTHER AGREEMENTS PROVIDING FOR EXCHANGE OF INFORMATION...........................................8
3.08 PRODUCTION OF WITNESSES, RECORDS AND COOPERATION.................................................8
3.09 CONFIDENTIALITY..................................................................................9
3.10 PROTECTIVE ARRANGEMENTS..........................................................................9
4. DISPUTE RESOLUTION........................................................................................9
4.01 .................................................................................................9
5. FURTHER ASSURANCE AND ADDITIONAL COVENANTS................................................................9
5.01 FURTHER ASSURANCES...............................................................................9
5.02 WAIVER OF TERMINATION RIGHTS.....................................................................10
6. EMPLOYEE BENEFITS.........................................................................................11
6.01 EMPLOYEE BENEFIT PLAN............................................................................11
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7. EFFECTIVENESS.............................................................................................11
7.01 EFFECTIVENESS....................................................................................11
8. SUCCESSORS AND ASSIGNS....................................................................................11
8.01 SUCCESSORS AND ASSIGNS...........................................................................11
9. NO THIRD-PARTY BENEFICIARIES..............................................................................11
9.01 NO THIRD-PARTY BENEFICIARIES.....................................................................11
10. ENTIRE AGREEMENT..........................................................................................12
10.1 ENTIRE AGREEMENT.................................................................................12
11. AMENDMENT.................................................................................................12
11.01 AMENDMENT........................................................................................12
12. WAIVERS .................................................................................................12
12.01 WAIVERS..........................................................................................12
13. SEVERABILITY..............................................................................................12
13.01 SEVERABILITY.....................................................................................12
14. HEADINGS .................................................................................................12
14.01 HEADINGS.........................................................................................12
15. NOTICES .................................................................................................12
15.01 NOTICES..........................................................................................12
16. GOVERNING LAW.............................................................................................13
16.01 GOVERNING LAW....................................................................................13
17. COURTERPARTS..............................................................................................13
17.01 COUNTERPARTS.....................................................................................13
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EXHIBITS
EXHIBIT 1 AMENDED AND RESTATED CROSS-LICENSE AGREEMENT
EXHIBIT 2 AMENDED AND RESTATED EMPLOYEE BENEFITS AGREEMENT
EXHIBIT 3 AMENDED AND RESTATED INDEMNIFICATION AGREEMENT
EXHIBIT 4 AMENDED AND RESTATED ADMINISTRATIVE SERVICES AGREEMENT
EXHIBIT 5 AMENDED AND RESTATED OPERATION, MAINTENANCE AND REPAIR AGREEMENT
EXHIBIT 6 AMENDED AND RESTATED TAX SHARING AGREEMENT
EXHIBIT 7 RESTRUCTURING AGREEMENT
EXHIBIT 8 SHAREHOLDER AGREEMENT
EXHIBIT 9 TRADEMARK LICENSE AGREEMENT
EXHIBIT 10 DISPUTE RESOLUTION PROCEDURES
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AMENDED AND RESTATED
SEPARATION AGREEMENT
THIS AMENDED AND RESTATED SEPARATION AGREEMENT (this "Agreement") is
made and entered into this 23rd day of April, 2001 (the "Effective Date"), by
and between The ▇▇▇▇▇▇▇▇ Companies, Inc., a Delaware corporation ("▇▇▇▇▇▇▇▇"),
and ▇▇▇▇▇▇▇▇ Communications Group, Inc., a Delaware corporation
("Communications"). The parties to this Agreement are collectively referred to
as the "Parties", and singularly as a "Party".
WHEREAS, the Parties entered into a Separation Agreement dated
September 30, 1999, in conjunction with the initial public offering of
Communications (the "Prior Agreement");
WHEREAS, ▇▇▇▇▇▇▇▇ plans to spin-off a portion of the issued and
outstanding Communications Class A Common Stock, par value $.01 per share, held
by ▇▇▇▇▇▇▇▇ to the shareholders of ▇▇▇▇▇▇▇▇ (the "Spin-Off");
WHEREAS, the Parties desire to amend and restate the Prior Agreement
with respect to the Spin-Off; and
WHEREAS, it is appropriate and desirable to set forth certain
agreements that will govern certain matters relating to the Spin-Off and the
conduct of business after its closing and the relationship of ▇▇▇▇▇▇▇▇ and
Communications and their respective subsidiaries following the Spin-Off,
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.
"ALGAR" means Algar Telecom, S.A.
"ALGAR INVESTMENT" means the equity and debt investments of ▇▇▇▇▇▇▇▇ in
Algar from time to time.
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"AMENDED AND RESTATED CROSS-LICENSE AGREEMENT" means the agreement
attached hereto as Exhibit 1.
"AMENDED AND RESTATED EMPLOYEE BENEFITS AGREEMENT" means the agreement
attached hereto as Exhibit 2.
"AMENDED AND RESTATED INDEMNIFICATION AGREEMENT" means the agreement
attached hereto as Exhibit 3.
"AMENDED AND RESTATED ADMINISTRATIVE SERVICES AGREEMENT" means the
agreement attached hereto as Exhibit 4.
"AMENDED AND RESTATED OPERATION, MAINTENANCE AND REPAIR AGREEMENT"
means the agreement attached hereto as Exhibit 5.
"AMENDED AND RESTATED TAX SHARING AGREEMENT" means the agreement
attached hereto as Exhibit 6.
"AGREEMENT" shall have the meaning ascribed to it in the Preamble.
"ANCILLARY AGREEMENTS" shall mean and include the Amended and Restated
Administrative Services Agreement, the Amended and Restated Cross-License
Agreement, Amended and Restated Employee Benefits Agreement, Amended and
Restated Indemnification Agreement, Amended and Restated Operation, Maintenance
and Repair Agreement, Amended and Restated Tax Sharing Agreement, Shareholder
Agreement, and the Trademark License 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 Spin-Off.
"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 IPO Closing Date that was not a member of the ▇▇▇▇▇▇▇▇ Group at the
IPO Closing Date; provided however, that until such time, if ever, as
Communications shall acquire the Algar Investment, the ▇▇▇▇▇▇▇▇ Group's
activities with respect to the Algar Investment, including the making of any
additional investment in Algar, shall not be deemed to be included in
Communications Activities.
"COMMUNICATIONS GROUP" shall mean Communications and its direct and
indirect subsidiaries.
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"DERIVATIVE" shall mean and include an instrument, such as an option
(put or call), futures contract, swap or hybrid instrument, the value of which
is derived from or measured by a commodity. For such purposes,
telecommunications transmission capacity, rights or use in dark fiber, and
leases of dark fiber shall be considered commodities. "Derivative" shall include
structured products in the form of such securities or contracts used to manage
risk of changes in commodity market prices and/or commodity market conditions.
"ENERGY ACTIVITIES" shall mean and include all business activities and
lines of business conducted by any member of the ▇▇▇▇▇▇▇▇ Group on the IPO
Closing Date that was not a member of the Communications Group at the IPO
Closing Date; provided however, that after such time, if ever, as Communications
shall acquire the Algar Investment, the Communications Group's activities with
respect to the Algar Investment, including the making of any additional
investment in Algar, shall not be deemed to be included in Energy Activities.
"FACILITIES" shall mean and include any physical component of a
telecommunications network that is used or designed to be used in the
transmission or routing of telecommunications services including, without
limitation: metallic or optical wires, cables, or fibers; optical, electrical,
or optical/electrical generation, regeneration, amplification, detection, or
switching equipment; radio frequency, infrared, ultraviolet, or visual spectrum
transmitters or receivers; antennas or satellite terminals; satellite
transponders; conduits, innerducts, or ducts; multiplexing equipment; video,
audio, or multimedia compression/decompression equipment (codecs); protocol
converters; and voice, data, multimedia, or internet-protocol switches or
routers.
"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 ▇▇▇▇▇▇▇▇ Group, as the
context requires.
"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.
"IPO CLOSING DATE" means September 30, 1999.
"PERMITTED PREPARATIONS" shall mean and include internal ▇▇▇▇▇▇▇▇
Group
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preparations to engage in Telecommunications Transactions but does not include:
(a) solicitations (directly or indirectly through agents or consultants) of
potential customers, suppliers, or co-venturers for any Telecommunications
Transaction, (b) negotiations of specific Telecommunications Transactions or of
agreements to engage in Telecommunications Transactions, (c) public solicitation
of employees, consultants, customers, co-venturers, or suppliers (but ▇▇▇▇▇▇▇▇
may privately solicit employees and consultants), and (d) any filing with
authorities regulating telecommunications services, securities, or exchanges for
authorization to engage in Telecommunications Transactions.
"PERSON" means any individual, corporation, partnership, limited
liability company or partnership, joint venture, association, governmental
entity, or any other entity.
"RESTRUCTURING AGREEMENT" means the Securities Purchase and
Restructuring Agreement and the agreements related thereto executed by the
Parties on February 26, 2001 and attached hereto as Exhibit 7.
"SHAREHOLDER AGREEMENT" means the agreement attached hereto as Exhibit
8.
"TELECOMMUNICATIONS TRANSACTIONS" shall mean and include any sale,
purchase, or brokering of (a) telecommunications transmission capacity or a
Derivative thereof or (b) rights of use in or leases of dark fiber, or a
Derivative of such rights of use or leases. For purposes of defining
"Telecommunications Transactions" and "Derivative," telecommunications
transmission capacity means and includes, without limitation, message
telecommunications service (toll long-distance calling and toll-free
long-distance calling), call termination service, private lines, virtual private
lines, satellite transponder rights or capacity, asynchronous transfer mode
service, frame relay service, packet-switched service, Internet protocol
transport service, optical waves, SONET service, video transmission, and other
similar point-to-point or point-to-multipoint telecommunications services,
whether existing as of the Effective Date or developed in the future.
"TRADEMARK LICENSE AGREEMENT" means the agreement attached hereto as
Exhibit 9.
"▇▇▇▇▇▇▇▇ GROUP" shall mean ▇▇▇▇▇▇▇▇ and its direct and indirect
subsidiaries except the Communications Group.
ARTICLE II
ANCILLARY AGREEMENTS AND TERMINATION OF PRIOR AGREEMENT
2.01 ANCILLARY AGREEMENTS. Concurrently with the execution of this
Agreement, ▇▇▇▇▇▇▇▇ and Communications shall execute the Ancillary Agreements.
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2.02 TERMINATION OF PRIOR AGREEMENT. As of the Effective Date of this
Agreement, the Prior Agreement is hereby terminated and the terms and conditions
of this Agreement supersede those of the Prior Agreement, except for obligations
arising under the Prior Agreement prior to such date.
ARTICLE III
CERTAIN BUSINESS MATTERS
3.01 NON-COMPETITION. (a) Except as permitted under this Section 3.01,
no member of the Communications Group shall, for a period of five years from the
IPO Closing Date, engage in Energy Activities or any activities or lines of
business similar to Energy Activities.
(b) Except as permitted under this Section 3.01, no member of the
▇▇▇▇▇▇▇▇ Group shall, for a period of five years from the IPO Closing Date,
engage in Communications Activities.
(c) Except as expressly permitted under this Section 3.01 (c), no
member of the ▇▇▇▇▇▇▇▇ Group shall for a period of eighteen months from the
Effective Date engage in Telecommunications Transactions, provided that any
member of the ▇▇▇▇▇▇▇▇ Group may: (i) undertake Permitted Preparations after the
Effective Date and (ii) purchase telecommunications services for internal
▇▇▇▇▇▇▇▇ Group purposes (i.e. not for resale).
(d) After the period ending eighteen months from the Effective Date,
the ▇▇▇▇▇▇▇▇ Group may engage in Telecommunications Transactions, provided
however, in no case shall the ▇▇▇▇▇▇▇▇ Group construct, own, or operate any
Facilities in connection with any existing or planned Telecommunications
Transactions until after September 30, 2004.
(e) No member of the ▇▇▇▇▇▇▇▇ Group shall for a period of nine months
from the Effective Date disclose its plans or potential plans to engage in
Telecommunications Transactions or make any public announcements regarding
Telecommunications Transactions (except as a purchaser of services for internal
▇▇▇▇▇▇▇▇ Group use), provided that any member of the ▇▇▇▇▇▇▇▇ Group may:
(i) describe the provisions of this Separation Agreement and the
effect thereof;
(ii) disclose information to employees, directors of ▇▇▇▇▇▇▇▇ Group
corporations, or managers (or the equivalent) of ▇▇▇▇▇▇▇▇
Group limited liability companies, to the extent legally
binding ethical rules, contractual provisions, or enforceable
and enforced conditions of employment restrict such persons
from further disclosure of such information; and
(iii) disclose information to consultants or attorneys, to the
extent legally binding ethical rules or contractual provisions
restrict such consultants or attorneys from
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further disclosure of such information.
(f) The ▇▇▇▇▇▇▇▇ Group agrees not to use the name "▇▇▇▇▇▇▇▇" in
connection with Telecommunications Transactions during the period beginning on
the Separation Date and ending September 30, 2004, provided that:
(i) if Communications ceases use of the name "▇▇▇▇▇▇▇▇" in
connection with Telecommunications Transactions for a period
of two years, then the ▇▇▇▇▇▇▇▇ Group shall be free to use
such name; and
(ii) the ▇▇▇▇▇▇▇▇ Group shall be free to conduct business under and
contract in any corporate or company name except as provided
in Subsection (g).
(g) The ▇▇▇▇▇▇▇▇ Group agrees not to use as a corporate or company name
in connection with Telecommunications Transactions, during the period beginning
on the Separation Date and ending September 30, 2004 (a) the word "▇▇▇▇▇▇▇▇" or
any obvious derivative thereof in combination with the words "Communications",
"Telecom", "Telecommunications", "Wireless", "Bandwidth", "Lightwave",
"Digital", "Optic", "Fiber", "Interexchange", "Long Distance" or like terms; and
(b) specifically the names "WilTel" or "WilCom" or like terms.
(h) No member of the Communications Group or the ▇▇▇▇▇▇▇▇ Group shall
have any duty to refrain from doing business with any potential or actual
supplier or customer with any member of the other Group or engage in or refrain
from any activities whatsoever relating to any of the potential or actual
customers or suppliers of the other Group except as provided herein.
(i) Notwithstanding the other provisions of this Section 3.01 to the
contrary, the ▇▇▇▇▇▇▇▇ 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 3.01, 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 3.01(i) 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.
(j) Notwithstanding the other provision of this Section 3.01 to the
contrary, the ▇▇▇▇▇▇▇▇ Group, on the one hand, and the Communication 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
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such entity's most recently completed fiscal year not more than 30% of the
consolidated revenues or net income of the entity being acquired or in which the
investment is being made. In the event that the ▇▇▇▇▇▇▇▇ 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 IPO Closing Date.
3.02 EXCHANGE OF INFORMATION. (a) Each of ▇▇▇▇▇▇▇▇ 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 that 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, if 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 IPO 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 ▇▇▇▇▇▇▇▇ records. Communications may obtain copies (but
not originals) of documents for bona fide business purposes. Communications
shall pay reasonable per hour costs for archives research services. Nothing
herein should be deemed to restrict the access of any member of the ▇▇▇▇▇▇▇▇
Group to any such documents or objects or to impose any liability on any member
of the ▇▇▇▇▇▇▇▇ Group if any such documents or objects are not maintained or
preserved by ▇▇▇▇▇▇▇▇.
(c) After the Effective Date, (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 ▇▇▇▇▇▇▇▇ Group to satisfy their respective
reporting, accounting, audit and other obligations, and (ii) Communications
shall provide or cause to be provided to ▇▇▇▇▇▇▇▇ such form as ▇▇▇▇▇▇▇▇ shall
request at no charge to ▇▇▇▇▇▇▇▇ all financial and other data and information
that ▇▇▇▇▇▇▇▇ determines necessary in order to prepare ▇▇▇▇▇▇▇▇' financial
statements and reports or filings with any Governmental Authority.
3.03. 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.
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3.04. COMPENSATION FOR PROVIDING INFORMATION. The Party requesting such
Information shall 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.
3.05. RECORD RETENTION. To facilitate the possible exchange of
Information pursuant to this Agreement after the IPO 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 ▇▇▇▇▇▇▇▇ as in effect of the IPO Closing Date as such may from time
to time be changed. No Party will destroy or permit any of its Subsidiaries to
destroy any financial Information which the other Party may have the right to
obtain pursuant to this Agreement prior to the third anniversary of the
Effective Date. Furthermore, 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 tenth (10th) anniversary of
the Effective 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).
3.06. 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.
3.07 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.
3.08 PRODUCTION OF WITNESSES, RECORDS AND COOPERATION. After the
Effective Date, 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 which
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.
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3.09. 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 ▇▇▇▇▇▇▇▇ confidential and proprietary
information pursuant to policies in effect and practices in place on the IPO
Closing Date, all information concerning each other Group that is either in its
possession (including Information in its possession prior to the IPO 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.
3.10 PROTECTIVE ARRANGEMENTS. If 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 IV
DISPUTE RESOLUTION
4.01 In the event of a dispute under this Agreement, any Ancillary
Agreement or the Restructuring Agreement, ▇▇▇▇▇▇▇▇ and Communications agree to
resolve the dispute in accordance with the Dispute Resolution Procedures set
forth in Exhibit 10 attached hereto and made a part hereof. In the event of a
conflict between the dispute resolution provisions of any Ancillary Agreement
and the provisions of the Dispute Resolutions Procedures set forth in Exhibit
10, the provisions of the Dispute Resolutions Procedures set forth in Exhibit 10
shall control.
ARTICLE V
FURTHER ASSURANCE AND ADDITIONAL COVENANTS
5.01 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 IPO Closing Date, to
take, or cause to be taken, all actions, and to do, or
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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 IPO
Closing Date, each Party hereto shall cooperate with the other Parties, and
without any further consideration, but at the expense of the requesting Party,
to execute and deliver, or use its reasonable best efforts to cause to be
executed and delivered, all instruments, including instruments of conveyance,
assignment and transfer, and to make all filings with, and to obtain all
consents, approvals or authorizations of any Governmental Authority or any other
Person under any permit, license, agreement, indenture or other instrument
(including any consents or governmental approvals), and to take all such other
actions as such Party may reasonably be requested to take by any other Party
hereto from time to time, consistent with the terms of this Agreement and the
Ancillary Agreements, in order to effectuate the provisions and purposes of this
Agreement and the Ancillary Agreements and the transfers of assets and the
assignment and assumption of liabilities and the other transactions contemplated
hereby and thereby. Without limiting the foregoing, each Party shall, 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 shall
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 ▇▇▇▇▇▇▇▇' obligations
related to Communications and its subsidiaries under: (i) that certain agreement
between ▇▇▇▇▇▇▇▇ WPC-I, Inc. ("WPC") and The ▇▇▇▇▇▇▇▇ Companies, Inc., dated
September 21, 1998, whereby ▇▇▇▇▇▇▇▇ compensates WPC for performances of
services by WPC on behalf of Communications and its subsidiaries; (ii) that
certain agreement among ▇▇▇▇▇▇▇▇ Risk Management L.L.C. ("WRM") and The ▇▇▇▇▇▇▇▇
Companies, Inc., and ▇▇▇▇▇▇▇▇ WPC-I, Inc., dated September 21, 1998, whereby
▇▇▇▇▇▇▇▇ compensates WRM for performance of ▇▇▇▇▇▇▇▇' risk management
obligations on behalf of Communications and its subsidiaries; and (iii) any
other agreement related to WPC or ▇▇▇▇▇▇▇▇ WPC-II, Inc.
5.02 WAIVER OF TERMINATION RIGHTS. Each Party waives and, to the extent
required to make such waivers effective, Communications shall cause the Persons
comprising the Communications Group to waive and ▇▇▇▇▇▇▇▇ shall cause the
Persons comprising the ▇▇▇▇▇▇▇▇ Group to waive, any right to terminate, cease
performing under, revise unilaterally, or increase the charges in, any agreement
between the Communications Group and the ▇▇▇▇▇▇▇▇ Group as a result of any
provision in such agreement that would permit such action if ▇▇▇▇▇▇▇▇ no longer
controls (through voting stock or ownership of half, a majority, or a
supermajority of
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Communications common stock) or no longer owns (directly or indirectly through
one or more subsidiaries) any Person comprising the Communications Group.
ARTICLE VI
EMPLOYEE BENEFITS
6.01 EMPLOYEE BENEFIT PLANS. The relationship of the Parties with
respect to certain matters relating to employees and employee benefits shall be
governed by the Employee Benefits Agreement attached hereto as Exhibit 2.
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.
ARTICLE IX
NO THIRD-PARTY BENEFICIARIES
9.01. NO THIRD-PARTY BENEFICIARIES. Except for the Persons entitled to
indemnification hereunder, 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.
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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 shall
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.
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
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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 ▇▇▇▇▇▇▇▇:
THE ▇▇▇▇▇▇▇▇ COMPANIES, INC.
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
ATTENTION: GENERAL COUNSEL
FAX NO. 918/▇▇▇-▇▇▇▇
IF TO COMMUNICATIONS:
▇▇▇▇▇▇▇▇ COMMUNICATIONS GROUP, INC.
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
ATTENTION: GENERAL COUNSEL
FAX NO.: 918/▇▇▇-▇▇▇▇
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 Amended and
Restated Separation Agreement to be executed the day and year first written
above.
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▇▇▇▇▇▇▇▇ COMMUNICATIONS GROUP, INC.
BY: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------------------------
NAME: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------------------
TITLE: Vice President
-----------------------------------------------
THE ▇▇▇▇▇▇▇▇ COMPANIES, INC.
BY: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------------------------------------------
NAME: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------------------------------
TITLE: Senior Vice President
-----------------------------------------------
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