Employment Agreement - Williams Telecommunications Group Inc., The Williams Cos. Inc. and Roy A. Wilkens
January 4, 1994
Mr. Roy A. Wilkens
WilTel
Tulsa, Oklahoma
Dear Roy:
For several years, the Company and those of its subsidiaries having separate
payrolls have paid to each of certain executives a payment in lieu of
perquisites, in addition to his or her base salary. This "in-lieu" payment was
made separately from base pay and therefore was not included in the
determination of various benefits, including regular and supplemental pension
benefits and investment plan contributions. Particularly in light of recent
changes in the tax laws, it no longer is desirable or useful to have separate
payments. The Compensation Committee has therefore decided to discontinue
separate payments and effective January 1, 1994, the "in-lieu" payments will no
longer be made but as salaries for those executives who have been receiving
them will be increased by corresponding amounts. Since the former "in-lieu"
payments will in the future be considered part of base salary, they will be
included in the determination of benefits.
The Employment Agreement among you, the Company and Williams Telecommunications
Group, Inc., dated as of January 1, 1990, and amended as of January 9, 1991
(the "Employment Agreement") provides for the making of "in-lieu" payments.
The purpose of this letter is to evidence your agreement to amending the
Employment Agreement effective as of January 1, 1994, by deleting Sections
4.01.2 and 4.01.2.1 thereof and by further deleting all other references to the
"In-Lieu Payment" wherever they appear. In consideration for this amendment,
the amount of the Base Salary provided for in Section 4.01.1 of the Employment
Agreement, as in effect on January 1, 1994, prior to any increase that may be
made as a result of compensation actions approved by the Company's board of
directors at its meeting in January 1994, will be increased by the amount of
the In-Lieu Payment as in effect on December 31, 1993.
Please signify your concurrence with the amendment of the Employment Agreement
by signing and returning a copy of this letter
Very truly yours,
/s/ Keith E. Bailey
Keith E. Bailey
Accepted and agreed to this
11th day of January 1994
/s/ Roy A. Wilkens
Roy A. Wilkens
<PAGE> 2
January 9, 1991
Mr. Roy A. Wilkens
President
Williams Telecommunications Group
One Williams Center
Tulsa, Oklahoma 74174
Dear Roy:
As of January 1, 1990, you, The Williams Companies, Inc. and Williams
Telecommunications Group entered into a certain Employment Agreement. An error
has been discovered in paragraph 3.07.2 of such agreement which could result
under certain circumstances in your receiving smaller payments than intended.
As it therefore appears desirable to revise paragraph 3.07.2, upon your
acceptance of this letter, such paragraph will be deemed amended to read as
follows:
3.07.2 Should it ultimately be determined that a termination by the
Company pursuant to paragraph 3.03.1 hereof of paragraph 3.03.2 hereof
was not justified, or that a termination by the Executive pursuant to
paragraph 3.04.1 hereof was justified, then the termination will be
deemed to have occurred under paragraph 3.03.3 hereof and the
Executive will be entitled to retain all sums paid to the Executive
pending the resolution of such dispute and to receive, in addition,
the payments and benefits provided for in paragraph 3.03.3 hereof,
plus interest at the rate provided in paragraph 3.07.1 hereof, from
the Date of Termination to the Date of Resolution, and at the rate
provided in subsection 6.02 hereof thereafter.
Except as herein amended, the above-mentioned Employment Agreement will remain
in full force and effect as written.
Very truly yours,
THE WILLIAMS COMPANIES, INC.
By: /s/ Vernon T. Jones
-----------------------------
Vernon T. Jones
WILLIAMS TELECOMMUNICATIONS GROUP
By: /s/ Vernon T. Jones
-----------------------------
Vernon T. Jones
Accepted this the 9th day of
January, 1991.
/s/ Roy A. Wilkens
-----------------------------
Roy A. Wilkens
<PAGE> 3
EMPLOYMENT AGREEMENT
Dated as of January 1, 1990
among
THE WILLIAMS COMPANIES, INC.
and
WILLIAMS TELECOMMUNICATIONS GROUP, INC.
and
ROY A. WILKENS
<PAGE> 4
TABLE OF CONTENTS
SECTION 1. DEFINITIONS AND CONSTRUCTION
1.01 Definitions 1
1.02 Construction 5
SECTION 2. DUTIES OF EXECUTIVE
2.01 Duties 6
2.02 Nature of Executive's Obligation 6
SECTION 3. TERM AND TERMINATION
3.01 Term 6
3.02 Termination by Employer or Executive 6
3.03 Termination by Employer 6
3.04 Termination by the Executive 7
3.05 Termination on Death of Executive 8
3.06 Termination Upon Executive's Retirement 8
3.07 Disputed Termination 8
3.08 Employment Relationship 9
SECTION 4. COMPENSATION AND BENEFITS
4.01 Compensation and Benefits for Services 10
4.02 Continuation of Compensation and Benefits on Disability 11
4.03 Payments Upon Executive's Death 11
4.04 Payments Upon Breach of Constructive Breach of this Agreement 12
4.05 Payment and Determination of Monetary Equivalent 14
4.06 Determination of EICP Awards 15
4.07 Vested Incentive Awards and Benefits 15
4.08 Continued Participation in Benefit Plans 15
4.09 Conflicts 15
SECTION 5. CHANGE OF CONTROL
5.01 Effect of Change of Control on Stock Based Incentive Awards 16
5.02 Establishment of Trust 17
5.03 Tax Payments 17
<PAGE> 5
SECTION 6. MISCELLANEOUS
6.01 Executive's Attorney's Fees 19
6.02 Obligation Unconditioned 20
6.03 Successors and Assigns 20
6.04 Notice 21
6.05 Amendments; Waiver 21
6.06 Prior Agreement 21
6.07 Governing Law 21
6.08 Severability 21
6.09 Confidential Information 22
6.10 Derogatory Remarks 22
6.11 Files and Records 22
6.12 Cooperation in Litigation 22
6.13 Survival of Certain Provisions 22
6.14 Rights Exclusive 22
6.15 Consents 23
<PAGE> 6
EMPLOYMENT AGREEMENT
THIS AGREEMENT, effective as of the 1st day of January, 1990,
by and between The Williams Companies, Inc., a Delaware corporation, Williams
Telecommunications Group, Inc., a Delaware corporation having its principal
offices at One Williams Center, Tulsa, Oklahoma 74172, and Roy A. Wilkens (the
"Executive"):
WITNESSETH:
WHEREAS, the Executive is presently the duly elected and
acting President of the Employer and, as such, is a key executive of the
Employer whose continued employment by the Employer is deemed important to the
Employer; and
WHEREAS, the Employer desires to retain the services of the
Executive under the terms and conditions hereinafter set forth:
NOW, THEREFORE, the parties agree as follows:
SECTION 1. DEFINITIONS AND CONSTRUCTION.
1.01 Definitions. In addition to the terms defined elsewhere
herein, the following terms as used in this Agreement will have the
following meanings when used with initial capital letters:
1.01.1 "Accounting Firm" means Ernst & Young unless
(i) a Gross-up Payment results from a Change of Control and
Ernst & Young has provided services for the Person or Persons
who caused or initiated the Change of Control, or an affiliate
of such Person or Persons, or (ii) Ernst & Young declines to
act as such, in either which event the Accounting Firm will be
another nationally-recognized firm or certified public
accountants jointly selected by the Employer and the
Executive.
1.01.2 "Act" means the Securities Exchange Act of
1934, as amended.
1.01.3 "Base Salary" will have the meaning assigned
in paragraph 4.01.1 hereof.
1.01.4 "Board" means the Company's Board of
Directors.
1.01.5 "Cause" means (i) willful failure by the
Executive substantially to perform the duties provided for
herein, other than any such failure resulting from a
Disability, or (ii) gross negligence or willful misconduct of
the Executive which results in a significantly adverse effect
upon the Company or the Employer, or (iii) willful violation
or disregard of the Code of Business Conduct or other
published policy of the Company or the Employer by the
Executive, or (iv) a Sale of a Business.
1.01.6 "Change of Control" means and will be deemed
to have occurred if (i) any Person, other than the Company or
a Related Party, is or becomes the "beneficial owner" (as
defined in Rule 13d-3 under the Act), directly or indirectly,
of securities of the Company representing twenty percent (20%)
or more of the total voting power of all the then outstanding
Voting Securities, or (ii) a Person, other than the Company or
a Related Party, purchases or otherwise acquires, under a
tender offer, securities representing, when combined with
other securities of the Company owned by such Person, twenty
percent (20%) or more of the total voting power of all the
then outstanding Voting Securities, or (iii) the individuals
(a) who as of the date hereof constitute the Board or (b) who
hereafter are elected to the Board and whose election, or
nomination for election, to the Board was approved by a vote
of at least two-thirds (2/3) of the directors then still in
office who either were directors as of the date hereof or
whose election or nomination for election
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was previously so approved, cease for any reason to constitute
a majority of the members of the Board, or (iv) the
stockholders of the Company approve a merger, consolidation,
recapitalization or reorganization of the Company or an
acquisiton of securities or assets by the Company, or
consummation of any such transaction if stockholder approval
is not obtained (other than any such transaction which would
result in the Voting Securities outstanding immediately prior
thereto continuing to represent, either by remaining
outstanding or by being converted into voting securities of
the surviving entity, at least eighty percent (80%) of the
total voting power represented by the voting securities of the
surviving entity outstanding immediately after such
transaction and in or as a result of which the voting rights
of each Voting Security relative to the voting rights of all
other Voting Securities are not altered), or (v) the
stockholders of the Company approve a plan of complete
liquidation of the Company or an agreement for the sale or
disposition by the Company of all or substantially all the
Company's assets, other than any such transaction which would
result in a Related Party owning or acquiring more than fifty
percent (50%) of the assets owned by the Company immediately
prior to the transaction, or (vi) the Board or the Committee
adopts a resolution to the effect that a Change of Control has
occurred or adopts a resolution to the effect that a Potential
Change of Control has arisen and the transaction giving rise
to such resolution has been thereafter approved by the
stockholders of the Company or been consummated if such
approval is not sought.
1.01.7 "Change of Control Price" means, with respect
to a share of the Company's common stock, the higher of (i)
the arithmetic average of the high and the low selling prices
of such stock on the New York Stock Exchange during the thirty
(30) calendar days preceding a Change of Control or (ii) the
highest price paid or offered in a transaction which either
(a) results in a Change in Control or (b) would be consummated
but for another transaction which results in a Change of
Control and, if it were consummated, would result in a Change
of Control. With respect to clause (ii) in the preceding
sentence, the "price paid or offered" will be equal to the sum
of (i) the face amount of any portion of the consideration
consisting of cash or cash equivalents and (ii) the fair
market value of any portion of the consideration consisting of
real or personal property other than cash or cash equivalents,
as established by an independent appraiser jointly selected by
the parties at the sole cost of the Company.
1.01.8 "Code" means the Internal Revenue Code of
1986, as amended.
1.01.9 "Code of Business Conduct" means the Company's
Code of Business Conduct, as amended from time to time by the
Board prior to a Change of Control or a Potential Change of
Control unless such Potential Change of Control is no longer
continuing.
1.01.10 "Committee" means a committee of the Board
properly exercising, with respect to this Agreement or any of
the Incentive Plans, powers assigned under the terms of any
applicable plan document or powers of the Board duly delegated
by the Board.
1.01.11 "Company" means The Williams Companies, and
any successor to its business and/or assets which executes and
delivers the agreement provided for in subsection 6.03 hereof
or which otherwise becomes bound by all the terms and
provisions of this Agreement by operation of law.
1.01.12 "Date of Resolution" will have the meaning
assigned in paragraph 3.07.4 hereof.
1.01.13 "Date of Termination" means the date of
termination of this Agreement as specified in the provision of
this Agreement pursuant to which termination is to be
effected.
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<PAGE> 8
1.01.14 "Disability" means a physical or mental
incapacity of the Executive which substantially prevents the
Executive, after reasonable accommodation, from performing the
essential functions of the duties provided for in this
Agreement on a full-time basis for a period of six (6)
calendar months out of any twelve (12) consecutive calendar
month period and which could reasonably be expected to
continue for a period of at least eighteen (18) months
following such twelve (12) month period.
1.01.15 "EICP" means the Company's Executive
Incentive Compensation Plan or any successor plan providing
substantially equivalent or better benefits.
1.01.16 "Employer" means Williams Telecommunications
Group, Inc. and any successor to its business and/or assets
which executes and delivers the agreement provided for in
subsection 6.03 hereof or which otherwise becomes bound by all
the terms and provisions of this Agreement by operation of
law.
1.01.17 "Excise Tax" will have the meaning assigned
in subsection 5.03 hereof.
1.01.18 "Good Reason" means, except in connection
with a permitted termination of this Agreement by the Company
or the Employer, or unless the Executive has consented
thereto, (i) a material change in the Executive's duties
provided for herein, unless associated with a bona fide
promotion of the Executive and a commensurate increase in the
Executive's compensation, in which case the Executive will be
deemed to consent, or (ii) a significant reduction in the
authority and responsibility assigned to the Executive, or
(iii) the removal of the Executive from or failure to reelect
the Executive to the office specified in subsection 2.01
hereof, unless associated with a bona fide promotion of the
Executive and a commensurate increase in the Executive's
compensation or in connection with the election of the
Executive to the corresponding office of another majority
owned subsidiary of the Company, in each which case the
Executive will be deemed to consent, or (iv) a reduction by
the Employer of the Base Salary or In-Lieu Payment below the
amount provided in, respectively, paragraph 4.01.1 or 4.01.2
hereof, as the same may be increased from time to time, or (v)
except in relation to a wage freeze applicable to all
employees of the Employer, a failure by the Company to approve
or the Employer to make an increase in the Base Salary or
In-Lieu Payment each year this Agreement continues in effect,
in accordance with, respectively, paragraph 4.01.1 or 4.01.2
hereof, or (vi) termination of any of the Incentive Plans,
unless such plan is replaced by a successor plan providing
incentive opportunities at least as favorable to the Executive
as those provided in the plan being terminated, or (vii)
amendment of any of the Incentive Plans so as to provide for
incentive opportunities less favorable to the Executive than
those provided in the plan being amended, or (viii) failure by
the Company to continue the Executive as a participant in any
of the Incentive Plans in which the Executive is now or
hereafter becomes a participant on a basis comparable to the
basis on which other senior executives of the Company or its
subsidiaries participate in such plan, or (ix) except in
relation to a wage freeze applicable to all employees of the
Employer or the Company, modification of the administration of
any of the Incentive Plans so as to adversely affect the level
of awards actually received by the Executive, or (x) failure
of the Company to grant to the Executive awards under the EICP
on the basis provided in the first sentence of subsection 4.06
hereof (disregarding the first proviso in such sentence) or
under any of the other Incentive Plans at comparable levels,
or (xi) the relocation of the Employer's principal executive
offices to a location more than 35 miles from Tulsa, Oklahoma
or (xii) a requirement by the Employer or the Company that the
Executive be based anywhere other than the Employer's
principal executive offices, except for travel on the
Employer's business reasonably required by the Executive's
duties contemplated hereby, unless associated with a bona fide
promotion of the Executive and a commensurate increase in the
Executive's compensation or in connection with the election of
the Executive to the office of another majority owned
subsidiary of the Company corresponding to that
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<PAGE> 9
specified in subsection 2.01 hereof, in each which case the
Executive will be deemed to consent, or (xiii) in the event of
a relocation of the Employer's principal executive offices or
a change in the location at which the Executive is based, in
either case on a basis permitted hereunder, the failure by the
Employer to pay (or reimburse the Executive for) all
reasonable moving expenses (including interest equalization
expenses under the Company's current interest equalization
plan and any excise or income taxes resulting from any
payments made in connection with any such relocation or change
of location) incurred by or for the account of the Executive
relating to a resulting change of the Executive's principal
residence, and to an extent at least as favorable to the
Executive as provided by the current policy of the Company
with respect to senior executive employee relocations, to
indemnify the Executive against the amount, if any, by which
the net proceeds realized in the sale of the Executive's
principal residence in connection with any such change of
residence are less than the Executive's tax basis in such
residence, or (xiv) the failure of the Employer to provide the
Executive with other benefits (including but not limited to
vacations and benefits under the SRP) which, when taken as a
whole, are substantially as favorable to the Executive as
those currently provided to senior executive employees of the
Company or its subsidiaries generally or to pay the Executive
the monetary equivalent thereof, or (xv) the failure of the
Company to establish the trust provided for in subsection 5.02
hereof or after establishment of such trust, the revocation of
the same by the Company or the failure of the Company to fund
and maintain the funding of such trust as required by
subsection 5.02 hereof.
1.01.19 "Gross-up Payment" will have the meaning
assigned in subsection 5.03 hereof.
1.01.20 "Incentive Plan" means any of the Company's
Stock Option Plans, Restricted Stock Plan, EICP, sales
incentive plans or other incentive plans in existence now or
immediately prior to a Change of Control or any additional or
successor plans providing substantially equivalent or better
incentive opportunities.
1.01.21 "In-Lieu Payment" means an amount of money to
be paid to the Executive in lieu of certain perquisites
pursuant to paragraph 4.01.2 hereof.
1.01.22 "IRS" means the Internal Revenue Service.
1.01.23 "Minimum Increase" will have the meaning
assigned in paragraph 4.01.1 hereof.
1.01.24 "Normal Retirement Date" means the date the
Executive is eligible to take normal retirement under the
Pension Plan.
1.01.25 "Notice of Termination" means a written
notice given by one of the parties of this Agreement to the
other parties pursuant to a provision hereof to terminate this
Agreement and setting forth the provision of this Agreement
under which such notice is given, the Date of Termination and
such other information as may be required by the provision of
this Agreement under which such notice is given.
1.01.26 "Pension Plan" means the Company's
Consolidated Pension Plan or any successor plan providing
comparable benefits.
1.01.27 "Person" will have the meaning assigned in
the Act.
1.01.28 "Potential Change of Control" means and will
be deemed to have arisen if (i) the Company enters into an
agreement, the consummation of which would result in the
occurrence of a Change of Control, or (ii) any Person
(including the Company) publicly
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<PAGE> 10
announces an intention to take or consider taking actions
which if consummated would constitute a Change of Control, or
(iii) any Person, other than a Related Party, files with the
Securities and Exchange Commission a Schedule 13D pursuant to
Rule 13d-1under the Act with respect to Voting Securities, or
(iv) any Person, other than the Company or a Related Party,
files with the Federal Trade Commission a notification and
report form pursuant to the Hart-Scott-Rodino Antitrust
Improvements Act of 1976 with respect to any Voting Securities
or any assets of the Company or its subsidiaries, or (v) the
Board or the Committee adopts a resolution to the effect that,
for purposes of this Agreement, a Potential Change of Control
has arisen. A Potential Change of Control will be deemed to
continue (i) with respect to an agreement within the purview
of clause (i) of the preceding sentence, until the agreement
is cancelled or terminated, or (ii) with respect to an
announcement within the purview of clause (ii) of the
preceding sentence, until the Person making the announcement
publicly abandons the stated intention or fails to act on such
intention for a period of twelve (12) calendar months, or
(iii) with respect to either the filing of a Schedule 13D
within the purview of clause (iii) of the preceding sentence
or the filing of a notification and report form within the
purview of clause (iv) of the preceding sentence with respect
to Voting Securities , until the Person involved publicly
announces that its ownership or acquisition of the Voting
Securities is for investment purposes only and not for the
purpose of seeking a Change of Control of such Person disposes
of the Voting Securities, or (iv) with respect to any
Potential Change of Control, until a Change of Control has
occurred or the Board or the Committee, on reasonable belief
after due investigation, adopts a resolution that the
Potential Change of Control has ceased to exist.
1.01.29 "Related Party" means (i) a majority owned
subsidiary of the Company, or (ii) an employee or group or
employees of the Company or any majority owned subsidiary of
the Company, or (iii) a trustee or other fiduciary holding
securities under an employee benefit plan of the company or
any majority owned subsidiary of the Company, or (iv) a
corporation owned directly or indirectly by the stockholders
of the Company in substantially the same proportion as their
ownership of stock of the Company.
1.01.30 "Rule 16b-3" means Rule 16b-3 promulgated by
the Securities and Exchange Commission under the Act and
codified at 17 CFR Section 240.16b-3, as such rule may be
amended or renumbered from time to time, or any successor
rule.
1.01.31 "Sale of a Business" means the sale or other
disposition by the Company or the Employer to any Person,
other than the Company or a Related Party (except an employee
or group of employees of the Company or a majority owned
subsidiary of the Company), of a branch, division, subsidiary
or other business unit (or all or substantially all of the
assets thereof) in which the Executive was employed prior to
such sale or disposition, provided the Executive is offered an
employment agreement by the acquiror of such branch, division,
subsidiary, business unit or assets containing substantially
the same terms and conditions provided in this Agreement.
1.01.32 "SRP" means the Company's Supplemental
Retirement Plan or any successor plan providing substantially
equivalent or better benefits
1.01.33 "Underpayment" will have the meaning assigned
in paragraph 5.03.1 hereof.
1.01.34 "Voting Securities" means any securities of
the Company which carry the right to vote generally in the
election of directors.
1.02 Construction. For purposes of this Agreement, the
following rules of construction will apply:
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1.02.1 No act or failure to act on the Executive's
part will be considered "willful" unless done or omitted to be
done by the Executive not in good faith and without reasonable
belief that such act or omission was in the best interest of
the Employer and the Company.
1.02.2 The word "or" is disjunctive but not
necessarily exclusive.
1.02.3 Words in the singular include the plural;
words in the plural include the singular; and words in the
neuter gender include the masculine and feminine genders and
words in the masculine or feminine gender include the other
and neuter genders.
SECTION 2. DUTIES OF EXECUTIVE.
2.01 Duties. The Employer will employe the Executive as its
President to perform the duties provided in or contemplated by the
By-laws of the Employer and customarily assigned to such office and
such other general executive duties, not inconsistent with such
office, as the Board of Directors of the Employer, the Board or any
officer of the Employer to whom the Executive reports may from time to
time assign to the Executive and will elect or reelect the Executive
to such office so long as this Agreement continues in effect. The
Executive acknowledges that the office (or offices) or position for
which he is employed under this Agreement constitutes a "bona fide
executive position" as such term is used in Section 12(c) of the Age
Discrimination in Employment Act, as amended (29 USC Section 631(c)).
2.02 Nature of Executive's Obligation. The Executive will,
during the term of this Agreement, perform the foregoing duties to the
best of his ability and will devote all time and attention reasonably
necessary to carry out such duties and will in good faith strive to
serve the best interests of the Employer and the Company.
SECTION 3. TERM AND TERMINATION.
3.01 Term. This Agreement will become effective as of the
date first above written and unless terminated as hereinafter
provided, will remain in effect for a term consisting of a continuous
thirty (30) calendar month period, renewing monthly. In no event,
however, will this Agreement continue in effect beyond the Normal
Retirement Date.
3.02 Termination by Employer or Executive. This Agreement may
be terminated by the Employer or the Executives as of the end of any
thirty (30) calendar month period, by delivery to the other parties
hereto of a Notice of Termination at least thirty (30) calendar months
prior to the Date of Termination. Upon such termination, except to
the extent otherwise expressly provided in the plan documents
governing any particular benefit, the Executive will be entitled to
receive, without duplication, (i) such compensation and benefits
provided for in paragraphs 4.01.1,4.01.2 and 4.01.4 hereof which are
accrued as of the Date of Termination, and (ii) any payments or
distributions which may be required under subsection 4.07 hereof.
3.03 Termination by the Employer.
3.03.1 In the event of a Disability, the Employer may
give written notice to the Executive of its intention to
terminate this Agreement. If the Executive fails to return to
work on a full-time basis within thirty (30) days from the
date of such notice, the Employer may terminate this Agreement
at any time after such thirty (30) day period by giving the
Executive Notice of Termination. Upon termination of this
Agreement, under this paragraph 3.03.1, the Executive will be
entitled to receive, without duplication, (i) the compensation
and benefits provided in subsection 4.02 hereof, and (ii) any
long-term disability or other benefits then regularly provided
by the Employer or the Company to disabled employees of the
Company or its subsidiaries.
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3.03.2 This Agreement may be terminated at any time
by the Employer for Cause; provided that (except in connection
with a Sale of a Business) there has been adopted in good
faith by at least a majority of the nonemployee members of the
Board at a meeting called for that purpose, notice of which,
setting forth in reasonable detail the acts or omissions
alleged to constitute Cause, was provided to the Executive at
least thirty (30) days prior thereto, and at which the
Executive was given the opportunity to be represented by
counsel and to present evidence and argument as to why Cause
does not exist, and concurred in or ratified by the Board of
Directors of the Employer, a resolution finding that Cause
exists and directing the termination of this Agreement.
Termination of this Agreement under this paragraph 3.03.2 will
be effective upon delivery to the Executive of a Notice of
Termination. In connection with a termination for Cause,
other than a Sale of a Business, a copy of the resolution
required by the first sentence of this paragraph 3.03.2 will
constitute such Notice of Termination. Upon such termination,
except to the extent otherwise expressly provided in the plan
documents governing any particular benefit or in subsection
3.07 hereof, the Executive will be entitled to receive,
without duplication, (i) such compensation and benefits
provided for in paragraphs 4.01.1, 4.01.2 and 4.01.4 hereof
which are accrued as of the Date of Termination, and (ii) any
payments or distributions which may be required under
subsection 4.07 hereof.
3.03.3 This Agreement may be terminated at any time
by the Employer without liability to the Executive other than
for compensation provided for in paragraphs 4.01.1 and 4.01.2
hereof which is accrued as of the Date of Termination,
provided that the Executive is offered employment by another
majority owned subsidiary of the Company on terms
substantially the same as those provided herein and in a
position with such other subsidiary corresponding to that
specified in subsection 2.01 hereof.
3.03.4 Except as otherwise provided in this
subsection 3.03, the Employer may terminate this Agreement at
any time in any otherwise lawful manner by giving thirty (30)
days' Notice of Termination to the Executive; provided,
however, that such termination will be deemed to constitute a
breach of this Agreement and will entitle the Executive to
receive, as liquidated damages, the payments and benefits
provided for in subsection 4.04 hereof. The Employer and the
Company otherwise waive all rights which either of them may
now have or may hereafter be conferred upon either of them, by
statute or otherwise, to terminate, cancel or rescind this
Agreement, in whole or on part.
3.03.4.1 If the Executive is eligible under
the terms of the Pension Plan for "early retirement,"
as such term is used in the Pension Plan, the
Executive may elect such "early retirement" in
connection with a termination of this Agreement under
this paragraph 3.03.4 without prejudice to the
Executive's entitlement to any payments and benefits
provided for under subsection 4.04 hereof.
3.04 Termination by the Executive.
3.04.1 The Executive may terminate this Agreement at
any time by giving Notice of Termination to the Employer in
the event of a breach or a constructive breach of this
Agreement by the Employer or the Company; provided, that if
the asserted breach or constructive breach results from the
existence of Good Reason, this Agreement will not terminate if
the Company or the Employer, as the case may be, within ten
(10) business days after the giving of the Notice of
Termination, cures the breach or constructive breach by
eliminating the condition or event constituting Good Reason
without cost, loss or detriment to the Executive. Such Notice
of Termination will set forth in reasonable detail the facts
and circumstances claimed by the Executive to constitute the
breach or constructive breach giving rise to the Executive's
right of termination. Upon termination of this Agreement
under this paragraph 3.04.1, the Executive will be entitled to
receive, as liquidated damages, the payments and benefits
provided for in subsection 4.04 hereof.
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3.04.1.1 Without limiting the facts and
circumstances that may otherwise constitute a breach
or constructive breach of this Agreement, the
existence of Good Reason will constitute a
constructive breach of this Agreement by the Employer
or the Company, provided that in no event will those
facts and circumstances identified in clauses (v),
(vi), (vii), (viii), (ix), (x), (xi) and (xv) of the
definition of Good Reason in paragraph 1.01.18 hereof
constitute a breach or constructive breach of this
Agreement by the Employer or the Company unless and
until a Change of Control has occurred or a
Potential Change of Control has arisen and is
continuing.
3.04.1.2 If the Executive is eligible under
the terms of the Pension Plan for "early retirement,"
as such term is used in the Pension Plan, the
Executive may elect such "early retirement" in
connection with a termination of this Agreement under
this paragraph 3.04.1 without prejudice to the
Executive's entitlement to any payments and benefits
provided for under subsection 4.04 hereof.
3.04.2 Except as otherwise provided in paragraph
3.04.1 hereof, this Agreement may be terminated by the
Executive at any time by giving thirty (30) days' Notice of
Termination to the Employer; provided, however, that such
termination will be deemed to constitute a breach of this
Agreement by the Executive. Upon such termination, except to
the extent otherwise expressly provided in the plan documents
governing any particular benefit or in subsection 3.07 hereof,
the Executive will be entitled to receive without duplication,
(i) such compensation and benefits provided for in paragraphs
4.01.1, 4.01.2 and 4.01.4 hereof which are accrued as of the
Date of Termination and (ii) any payments or distributions
which may be required under subsection 4.07 hereof.
3.05 Termination on Death of Executive. Upon the death of the
Executive, this Agreement will terminate without notice or other
action by the Employer or the Company. Upon such termination, the
Employer will pay or cause to be paid to the Executive's named
beneficiary or beneficiaries (or if none or none survives the
Executive or all such beneficiaries are disqualified, then to the
Executive's personal representative) or if the plan documents relating
to any such benefits provide for payment to other designated Persons,
then to such Persons, without duplication, (i) the compensation, and
the Employer or the Company will provide to such Persons the benefits,
provided in subsections 4.03 and 4.07 hereof, and (ii) any death or
other benefits then regularly provided by the Employer or the Company
with respect to deceased employees of the Company or its subsidiaries.
3.06 Termination upon Executive's Retirement. This Agreement
will automatically terminate upon the Executive's retirement under the
Pension Plan. Unless such retirement is prior to the Normal
Retirement Date and is elected by the Executive in connection with a
termination of this Agreement pursuant to paragraphs 3.03.4 or 3.04.1
hereof, the Executive will, in the event of termination under this
subsection 3.06, be entitled to receive, without duplication, (i) such
compensation and benefits provided for in paragraphs 4.01.1, 4.01.2
and 4.01.4 hereof which are accrued as of the Date of Termination,
(ii) such additional payments and benefits as may be provided for in
the Pension Plan and other benefit plans applicable generally to
retired senior executives of the Company and its subsidiaries
(including, but not limited to, the SRP and the Incentive Plans) and,
if participation therein is optional on the part of the employee, in
which the Executive has elected to participate, and (iii) any payments
or distributions which may be required under subsection 4.07 hereof.
3.07 Disputed Termination. In the event Notice of Termination
is given by the Employer pursuant to paragraph 3.03.1 hereof or
paragraph 3.03.2 hereof or by the Executive pursuant to paragraph
3.04.1 hereof and within thirty (30) days after the Notice of
Termination is given the party receiving such Notice of Termination
notifies the other party that a dispute exists concerning the basis
for the termination, then pending the resolution of any such dispute
the Executive will
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be excused from performing the duties contemplated hereby but the
Employer will continue to pay the Executive the compensation provided
for in paragraphs 4.01.1, 4.01.2 and 4.01.3 hereof, and the Employer
or the Company will provide the Executive the same or substantially
comparable benefits as provided in paragraph 4.01.4 hereof, as the
Executive was paid and provided immediately prior to the delivery of
the Notice of Termination.
3.07.1 If a termination by the Employer pursuant to
paragraph 3.03.1 hereof or paragraph 3.03.2 hereof is
challenged by the Executive and the termination is ultimately
determined to be justified, or a termination by the Executive
pursuant to paragraph 3.04.1 hereof is challenged by the
Employer and the termination is ultimately determined to be
not justified, then all sums paid by the Employer or the
Company to the Executive pursuant to this subsection 3.07,
plus the actual, out-of-pocket cost to the Employer or the
Company to provide the Executive such benefits (except with
respect to any such benefits to which the Executive would have
been entitled without regard to this Agreement) from the Date
of Termination to the Date of Resolution, will be promptly
repaid by the Executive to the Employer or the Company, as the
case may be, with interest at the rate charged from time to
time by Citibank, N.A., New York City, to its most favored
commercial customers, compounded annually, or, in the case of
a termination pursuant to paragraph 3.03.1 hereof, credited,
without interest, against the payments due to the Executive
under subsection 4.02 hereof.
3.07.2 Should it ultimately be determined that a
termination by the Employer pursuant to paragraph 3.03.1
hereof or paragraph 3.03.2 hereof was not justified, or that a
termination by the Executive pursuant to paragraph 3.04.1
hereof was justified, then the Executive will be entitled to
retain all sums paid to the Executive pending the resolution
of such dispute and to receive, in addition, the payments and
other benefits provided for in paragraph 3.03.1, paragraph
3.03.2 or paragraph 3.04.1 hereof, as applicable, plus
interest at the rate provided in paragraph 3.07.1 hereof, from
the Date of Termination to the Date of Resolution and at the
rate provided in subsection 6.02 hereof thereafter.
3.07.3 In the event of a termination of this
Agreement under paragraph 3.03.1 hereof is challenged by the
Executive pursuant to this subsection 3.07, each of the
parties will select a physician legally licensed to practice
and practicing within the health care field relevant to the
claimed Disability who will examine the Executive and opine as
to whether the claimed Disability exists and did exist and
could reasonably be expected to exist for the period required
by paragraph 3.03.1 hereof. If such physicians are unable to
agree, they will select a third physician similarly qualified
who will examine the Executive and opine as to whether the
claimed Disability exists and existed and could reasonably be
expected to exist for such required period. The determination
of such third physician will be binding on the parties. The
cost of the examinations under this paragraph 3.07.3,
including without limitation the fees and expenses of the
physicians, will be borne solely by the Employer and be paid
as incurred.
3.07.4 For purposes of this Agreement, the effective
date of resolution of a dispute ("Date of Resolution") will be
deemed to occur when such dispute is finally settled by mutual
written agreement of the parties, upon entry of a final,
non-appealable judgment, order or decree of a court of
competent jurisdiction, upon conclusion of such alternate
dispute resolution proceeding as the parties may agree to
employ in lieu of litigation or, if applicable, upon a final
determination under paragraph 3.07.3 hereof. Without limiting
the generality of Section 6.01 hereof, all costs, including
without limitation reasonable attorneys' fees, incurred by
either of the parties in resolving such dispute will be borne
solely by the Employer and be paid as incurred.
3.08 Employment Relationship. As contemplated by the parties,
the employment relationship between the Executive and the Employer is
dependent on and arises out of this
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<PAGE> 15
Agreement and the parties intend that such relationship cease on the
Date of Termination. In the event any valid and applicable law or
regulation requires that the Executive and the Employer establish or
maintain such a relationship notwithstanding the termination of this
Agreement, (i) such relationship will, except as required by such law
or regulation, be deemed to be terminable-at-will, (ii) the Executive
will not be entitled to and will be deemed to have waived any rights
or remedies provided under this Agreement, and (iii) except as
provided in Section 6 hereof, none of the terms or provisions of this
Agreement will apply to such relationship.
SECTION 4. COMPENSATION AND BENEFITS.
4.01 Compensation and Benefits For Services. While this
Agreement continues in effect, the Employer or the Company as
specified, will pay to the Executive, as reasonable compensation for
the services to be rendered by the Executive as contemplated herein,
the following:
4.01.1 The Employer will pay to the Executive (less
any taxes required to be withheld) an annual base salary (the
"Base Salary") which will be payable in twenty-four (24)
semi-monthly installments. From the date of this Agreement
until January 1, 1991, the Base Salary, on an annualized
basis, will be $230,000. On January 1, 1991, and on January 1
of each calendar year thereafter, the Base Salary will be
increased at least by an amount (the "Minimum Increase")
equal, on a percentage basis, to the increase in the Consumer
Price Index (1982-1984=100), as published by the Bureau of
Labor Statistics, for the geographical area in which the
Executive is principally located, for the calendar year in
which such increase is to be effective over such index for the
preceding calendar year. The Base Salary will also be
increased in an amount commensurate with any increase in
responsiblities and authority upon any promotion of the
Executive and in no event will the Base Salary, as from time
to time increased, be reduced without the consent of the
Executive.
4.01.1.1 For the purpose of calculating the
Minimun Increase on January 1 of any year, the
increase in the Consumer Price Index will be
estimated and at such time as the actual increase, if
any, in the Consumer Price is know, the Minimum
Increase will be adjusted, up or down, in proportion
to any such actual increase in the Consumer Price
Index, but not below zero. If the actual increase in
the Base Salary is less than the adjusted Minimum
Increase, the Base Salary will be further increased
such that the aggregate increase in the Base Salary
is at least equal to the adjusted Minimum Increase.
Any such adjustment to the increase in the Base
Salary will be effective retroactively to January 1
of the year concerned and the amount of the
additional increase accrued to the date such
determination is made will be paid to the Executive
in a lump sum on the next regular pay day.
4.01.1.2 Notwithstanding anything to the
contrary in this paragraph 4.01.1 unless and until
(i) a Change of Control occurs or (ii) a Potential
Change of Control arises and is continuing, the
Employer may, but is not obligated to, increase the
Base Salary and the amount of any such increase will
be within the sole discretion of the Board or the
Committee.
4.01.2 The Employer will pay to the Executive, in
semi-monthly installments, (less any taxes required to be
withheld) the In-Lieu Payment. From the date of this
Agreement until January 1, 1991, the In-Lieu Payment, on an
annualized basis, will be equal to $25,350. On January 1,
1991, and on January 1 of each calendar year thereafter, the
In-Lieu Payment will be increased on the same basis as provided
in paragraph 4.01.1 hereof with respect to the Base Salary.
The In-Lieu Payment will also be increased in an amount
commensurate with any promotion of the Executive and in no
event will the In-Lieu Payment, as from time to time increased,
be reduced without the consent of the Executive.
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4.01.2.1 Notwithstanding anything to the
contrary in this subparagraph 4.01.2, unless and
until (i) a Change of Control occurs or (ii) a
Potential Change of Control arises and is continuing,
the Employer may, but is not obligated to, increase
the In-Lieu Payment and the amount of any such
increase will be within the sole discretion of the
Board or the Committee.
4.01.3 Unless explicitly contrary to the terms of an
applicable plan document, as a key employee of the Employer,
the Executive will participate in, and the Company will grant
to and pay or deliver, cash and stock awards (less any taxes
required to be withheld) to the Executive as permitted by,
each of the Incentive Plans on a comparable basis as other
senior executives of the Company or its subsidiaries, provided
that, unless and until (i) a Change of Control occurs or (ii)
a Potential Change of Control arises and is continuing, the
making of any award under any such plan and the amount of any
award made will be withing the sole discretion of the Board or
the Committee.
4.01.4 The Executive will be entitled to participate
in the Pension Plan and any other defined benefit plan, any
defined contribution plan, any employee welfare benefit plan,
the SRP and any other supplemental or excess pension plan and
any other benefit plan, sponsored by the Employer or the
Company, whether currently in existence or hereafter adopted,
and to have the use of facilities of the Employer or the
Company, on terms generally available to other senior
executives of the Company or its subsidiaries.
4.01.5 During the term of this Agreement, the
Employer will pay or reimburse the Executive for all
reasonable travel and other expenses incurred by the
Executive in performing the duties provided for or
contemplated in subsection 2.01 hereof and will
furnish the Executive with such secretarial, office
or other assistance and accommodations as may be
suitable to the character of the Executive's position
and reasonably necessary or appropriate for the
performance of such duties.
4.02 Continuation of Compensation and Benefits on Disability.
Subject to subsection 4.06 hereof (disregarding the first proviso in
the first sentence on such subsection), in the event this Agreement is
terminated by the Employer pursuant to paragraph 3.03.1 hereof, the
Employer will pay the compensation, and the Employer or the Company
will, without cost to the Executive other than normal employee
contributions required under the applicable plan document as in effect
on the Date of Termination, make available the benefits )or the
Employer will pay the monetary equivalent thereof), provided in
subsection 4.01 hereof to the Executive (less any taxes required to be
withheld) for a period of twelve (12) months following the Date of
Termination, provided that the Company may, but will not be obligated
to, grant any additional stock, stock option or long-term incentive
awards under any of the Incentive Plans during such twelve (12) month
period. The terms of subparagraphs 4.01.1.2 and 4.01.2.1 hereof will
not apply to payments required under this subsection 4.02.
4.03 Payments Upon Executive's Death. Subject to subsection
4.06 hereof (disregarding the first proviso in the first sentence of
such subsection), in the event this Agreement is terminated by virtue
of subsection 3.05 hereof, the Employer will pay to the party or
parties specified in such subsection (less any taxes required to be
withheld) an aggregrate amount equal to the compensation provided for
in paragraphs 4.01.1, 4.01.2 and 4.01.3 hereof as if the Executive had
survived and this Agreement remained in effect for a period of twelve
(12) months following the Date of Termination, provided that the
Company may but will not be obligated to grant any additional stock,
stock option or long-term incentive awards under any of the Incentive
Plans during such twelve (12) month period. In addition, the Employer
will pay to the Executive's surviving spouse, if any, or any surviving
dependent children an amount sufficient, on an after-tax basis (taking
into account state and federal, but not local, taxes), and after
normal survivor contributions required under the applicable plan
document as in effect on the Date of Termination, to pay for maximum
permitted coverage under such of the employee welfare benefit plans
referred
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to in paragraph 4.01.4 hereof in which such surviving spouse or
surviving dependent children may participate under the terms of the
applicable plan documents for a period of twelve (12) months following
the date of the Executive's death. The terms of subparagraphs
4.01.1.2 and 4.01.2.1 hereof will not apply to payments required under
this subsection 4.03.
4.04 Payments Upon Breach or Constructive Breach of this
Agreement. In the event this Agreement is terminated by the Employer
under paragraph 3.03.3 hereof or by the Executive pursuant to
paragraph 3.04.1 hereof, the Employer or the Company, as specified,
will make the following payments and provide the following benefits,
(or the monetary equivalent thereof), to or for the account of the
Executive, in each case as liquidated damages for the breach or
constructive breach, as the case may be, of this Agreement.
4.04.1 On the Date of Termination or in case of a
dispute under subsection 3.07 hereof, on the Date of the
Resolution, provided that in the latter case the dispute is
resolved on terms coming within the purview of paragraph
3.07.2 hereof, the Employer will pay to the Executive (less
any taxes required to be withheld) a cash amount equal to the
present value of the sum of (a) the aggregate Base Salary and
In-Lieu Payments which would have been paid to the Executive
by the Employer pursuant to paragraphs 4.01.1 and 4.01.2
hereof as compensation for services that would have been
rendered during the thirty (30) calendar month period
commencing on the first day of the month next following the
Date of Termination, but for such termination and (b) subject
to subsection 4.06 hereof, the aggregate of the awards that
would have been made to the Executive pursuant to the
individual award component and the corporate award component
under the EICP during the thirty (30) calendar month period
commencing on the first day of the month next following the
Date of Termination, but for such termination. In addition,
any payment or distribution which may be required under
subsection 4.07 hereof will be made to the Executive.
4.04.1.1 For purposes of this paragraph
4.04.1, the Base Salary and the In-Lieu Payments that
would have been paid will be calculated on the
assumption that the Base Salary and the In-Lieu
Payment would have been increased in each year during
such thirty (30) month period by an amount equal, on
a percentage basis, to the greatest year-to-year
increase in the Consumer Price Index in the three
calendar years preceding either the Date of
Termination or the Date of Resolution, whichever is
more favorable to the Executive.
4.04.1.2 In the event there are fewer
than thirty (30) whole calendar months
remaining from the first day of the month
following the Date of Termination to the
Normal Retirement Date, the cash payment due
pursuant to this paragraph 4.04.1 will be
reduced to a lesser sum determined by
multiplying the amount otherwise due by a
fraction the numerator of which is the number
of whole calendar months remaining from the
first day of the month following the Date of
Termination to the Normal Retirement Date and
the denominator of which is thirty (30).
4.04.2 The Employer or the Company at the Employer's
cost will provide to the Executive the following benefits or
(less any taxes required to be withheld) the monetary
equivalent thereof, payable on the Date of Termination or in
case of a dispute under subsection 3.07 hereof, on the Date of
Resolution, provided that in the latter case the dispute is
resolved on terms coming within the purview of paragraph
3.07.2 hereof:
4.04.2.1 (a) In addition to any benefits
payable to the Executive under the Pension Plan, the
SRP and any and all other pension or retirement plans
of the Company or the Employer (collectively, the
"Other Retirement Benefits"), the Employer will pay
to the Executive a special retirement benefit (the
"Special
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<PAGE> 18
Retirement Benefit"). The Special Retirement Benefit
will equal an amount calculated such that, when added
to the Other Retirement Benefits, if any, the total
retirement benefits the Executive receives from the
Employer and the Company will at least equal the
amount which the aggregate of the Other Retirement
Benefits would have been if the Executive retired on
a date five (5) years following the Date of
Termination (or on the Normal Retirement Date, if
earlier).
(b) For purposes of this Agreement, in calculating
the Special Retirement Benefit and the Other
Retirement Benefits, the following will apply:
(i) If the Executive's credited service with
the Company or any of its majority owned
subsidiaries on the Date of Termination is
insufficient to result in benefits under the
Pension Plan being vested, the Executive will
be deemed to be credited with sufficient
service to result in such vesting;
(ii) This Agreement will be deemed to
continue in effect for five (5) years
following the Date of Termination (but not
beyond the Normal Retirement Date);
(iii) The Base Salary will be deemed to have
been increased each year of such five (5)
year period using the greatest year-to-year
increase in the Consumer Price Index in the
three calendar years preceding the Date of
Termination;
(iv) The Executive will be deemed to have
been granted awards under the EICP each year
of such five (5) year period on the basis
specified in the first sentence of subsection
4.06 hereof (disregarding the first proviso
in such sentence); and
(v) Five (5) years, or the time remaining to
the Normal Retirement Date, if less, will be
added to the Executive's age on the Date of
Termination.
4.04.2.2 Maximum coverage under the
Employer's or the Company's insured or self-insured
welfare benefit plans, as applicable to the
Executive, or the monetary equivalent thereof, will
be provided to the Executive by the Company, at no
cost to the Executive (other than normal employee
contributions required under the applicable plan
document as of the Date of Termination), for a period
of five (5) years from the Date of Termination (or
until the Normal Retirement Date, whichever is
sooner).
4.04.2.3 In the event, within two (2) years
after the Date of Termination, the Executive
relocates the Executive's principal residence by more
than 35 miles in order to accept full-time employment
or to pursue full-time self-employment, the Employer
will reimburse the Executive for all moving expenses
(including interest equalization expenses under the
Company's current interest equalization plan and
including any taxes resulting from payments made
pursuant to this subparagraph 4.04.2.3) incurred by
or for the account of the Executive relating to such
relocation, which are not reimbursed by another
employer, and to an extent at least as favorable to
the Executive as provided by the current policy of
the Company with respect to the relocation of senior
executives, indemnify the Executive against the
amounts, if any, by which the net proceeds realized
in the sale of the Executive's principal residence in
connection with such relocation are less than the
Executive's tax basis in such residence.
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4.04.2.4 If the Executive's credited service
with the Company or any of its majority owned
subsidiaries on the Date of Termination is
insufficient to result in the contributions
theretofore made by the Company or any such
subsidiaries for the account of the Executive to any
defined contribution plan maintained or sponsored by
the Company being vested in their entirety, then the
Employer will pay to the Executives (less any taxes
required to be withheld) a special benefit equal to
the difference between (i) the amount of such
contributions which are vested as of the Date of
Termination and (ii) the greater of (A) all such
contributions, vested and unvested, or (B) the sum of
the fair market value of the assets in which such
contributions, vested or unvested, are then invested
and all dividends or interest paid thereon and
accretions thereto not previously paid to the
Executive. For purposes of this subparagraph
4.04.2.4, "fair market value" means with respect to
any securities traded on a national stock exchange
the arithmetic average of the high and the low
selling prices of such stock on such stock exchange
during the thirty (30) calendar days preceding the
Date of Termination, or with respect to any
investment company shares not traded on a national
stock exchange, the arithmetic average of the bid and
the ask prices of such shares during the thirty (30)
calendar days preceding the Date of Termination, or
with respect to obligations issued or guaranteed by
the U.S. government, the face value of such
obligations, or with respect to other assets, the
value as established by an independent appraiser
jointly selected by the parties at the sole cost of
the Employer.
4.04.3 For purposes of this subsection 4.04, the
present value of any amount will be calculated using a
discount rate of nine and 48/100 percent (9.48%) unless the
terms of any applicable plan document provides a rate more
favorable to the Executive, in which case, such more favorable
rate will be used for payments made with respect to the plan
concerned.
4.04.4 The Executive will be required to mitigate the
amount of any payments provided for in this subsection 4.04 to
the extent provided in this paragraph 4.04.4 or in any final
regulations of the IRS under Section 280G of the Code,
whichever requires the greater degree of mitigation consistent
with the treatment of such payments as damages. The Executive
will not be required to seek other employment and may accept
or not accept, as the Executive determines, any offer of
employment and may reject any offer of employment for any
reason deemed by the Executive to be sufficient. If the
Executive accepts other employment with and receives
compensation from an employer other than the Company or onre
of its majority owned subsidiaries during the period beginning
on the Date of Termination and ending on the last day of the
thirtieth (30th) calendar month thereafter, any compensation
the Executive receives from such other employer during such
period (less any taxes withheld), up to the amount paid as
damages under this subsection 4.04, will be paid to the
Employer or the Company, as the case may be. For purposes of
this paragraph 4.04.4, compensation will be limited to base
salary and incentive compensation, and will exclude, among
other things, retainers or fees paid for service on a board of
directors or a committee thereof and benefits under any
defined benefit, defined contribution or welfare benefit plan.
4.05 Payment and Determination of Monetary Equivalent. The
payment of the monetary equivalent of any benefit permitted by any
provision of this Agreement will be at the Employer's option unless
such benefit relates to an insured or self-insured welfare benefit
plan and a comparable benefit would, in the sole judgment of the
Executive, be unavailable to the Executive at a reasonable cost, in
which event such payment will be at the Executive's option to be
exercised in writing within thirty (30) days following the Date of
Termination. In the event of a dispute between the parties as to the
monetary equivalent of any benefit or other distribution provided for
in this Agreement, such monetary equivalent will be determined by an
independent
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<PAGE> 20
actuary jointly selected by the parties, at the sole cost of the
Employer, and will be determined from the standpoint of the cost of
such benefit or distribution to the Executive as a non-employee and
not the cost to the Employer or an employee of the Employer. The
monetary equivalent of any benefit or other distribution provided for
in this Agreement will be determined on a present value, after-tax
basis, taking into account state and federal, but not local, taxes.
4.06 Determination of EICP Awards. For purposes of subsection
4.02, 4.03 and 4.04 hereof, any payment or other distribution to be
made under or with reference to the EICP will be calculated on the
assumption that all "performance targets" are met and using the
maximum "award pool" and the Executive's "opportunity level," as those
terms are used in the EICP; provided that, for purposes of
subsection4.04 hereof (other than subparagraph 4.04.2.1) but not
subsections 4.02 or 4.03 hereof, each such award will be no less than
the highest similar award paid or granted to the Executive during any
one of the three calendar years preceding the Date of Termination; and
provided, further, that if the terms of the EICP would otherwise
require the payment of a greater amount than that required under this
subsection 4.06, such greater amount will be paid. In the event any
payment or other distribution to be made under or with reference to
the EICP will be made as to a partial year, then, for purposes of such
subsections, the awards under the EICP for such year will be
multiplied by the ratio that the number of business days in such year
prior to the date as of which such payment or distribution is
determined bears to the number of business days in such year. For
purposes of determining the highest award paid or granted during any
one of the three calendar years preceding the Date of Termination,
each award will be deemed to have been paid or granted in the
performance year for which awarded, and even though actual payment and
entitlement to receive some portion of an incentive award may have
been deferred, such award for any year will be the aggregate amount
paid or payable or granted for such year on either a current or
deferred basis.
4.07 Vested Incentive Awards and Benefits. Termination of
this Agreement for any reason will be without prejudice to the
Executive's entitlement to receive any awards or benefits, including
but not limited to incentive awards under any of the Incentive Plans,
or to exercise any rights, options or elections under any of the
Incentive Plans or any other benefit plan of the Company or the
Employer, which are vested in the Executive on the Date of Termination
under the terms of the applicable plan document. Without limiting the
generaliaty of the previous sentence, upon termination of this
Agreement for any reason, the Company or the Employer, as the case may
be, will pay or distribute to the Executive or such other Person or
Persons as may be designated to receive the same (less any taxes
required to be withheld) any unpaid or undistributed prior vested
deferred award to the Executive under the EICP or other Incentive
Plans, such payment or distribution to be made on the Date of
Termination or, if the termination is disputed as permitted by
subsection 3.07 hereof, on the earlier of the Date of Resolution or
the date provided for payment under the applicable plan document.
4.08 Continued Participation in Benefit Plans. Except as
otherwise provided in this Agreement or the terms of the applicable
plan documents, the Executive will not be entitled to participate in
any of the benefit plans of the Employer or the Company after the Date
of Termination. Except as otherwise expressly provided in this
Agreement, any distributions to which the Executive may be entitled
under the provisions in any of such plans will be governed by the
terms of the applicable plan document.
4.09 Conflicts. For purposes of this Agreement, in the event
of a conflict between the provisions of this Agreement and the terms
of a plan document with respect to a payment or benefit to be made or
provided to the Executive under this Agreement, whichever of the
provisions of this Agreement or such plan document that are most
favorable to the Executive will control.
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SECTION 5. CHANGE OF CONTROL.
5.01 Effect of Change of Control on Stock Based Incentive
Awards. Whether or not the applicable plan document so provides, in
the event of a Change of Control, without duplication of any amount
paid under any other provision of this Agreement with respect to the
same option, right, interest or award, unless the right to receive all
or a portion of the cash payment provided for hereunder is waived or
deferred by the Executive as provided in paragraph 5.01.1 hereof (in
which case payment will be made only as to any portion not waived or
deferred) and except as provided in paragraph 5.01.2 and 5.01.3
hereof, the Employer will pay to the Executive a cash amount (less any
taxes required to be withheld and less, with respect to stock subject
to any stock options or other purchase rights, an amount equal to the
aggregate option or purchase price, but no more than the aggregate
Change of Control Price, of such stock) equal to the aggregate Change
of Control Price of the shares of the common stock of the Company with
respect to which the Executive holds an option or purchase right or
has an interest, whether beneficial or of record, or has been granted
an award the value of which is based in whole or in part on the value
of such common stock, in each case under any Incentive Plan, including
without limitation the EICP, irrespective of whether any such option
or purchase right is then currently exercisable or not or any such
interest or award is then currently vested or payable or not. Such
payment will be due on the thirtieth calendar day after the effective
date of the Change of Control. Upon such payment, such stock options,
purchase rights, other interests or awards with respect to which such
payment is made will be cancelled and of no further force or effect.
5.01.1 In the event it is determined that the right
to receive cash under this subsection 5.01 with respect to any
option, purchase right, interest or awards under any Incentive
Plan may be waived or deferred by the Executive without
resulting in liability of the Executive for damages or
forfeitures under Section 16(b) of the Act or the
disqualification of the incentive Plan involved for exemption
under Rule 16b-3, the Executive may so waive or defer such
receipt as to such option, purchase right, interest or award
by giving notice to the Employer and the Company not later
than twenty (20) days after the Change of Control. If the
Executive may and does so waive such receipt of cash, the
related option, purchase right, interest or award will not be
cancelled but will continue in effect according to the terms
of the applicable plan document. If the Executive may and
does so defer such receipt, such cash payment will be made by
the Employer, without interest (other than any interest that
may be required under subsection 6.02 hereof), on the earliest
of (i) the date specified in the notice required hereunder, or
(ii) the date, if any, on which such payment would otherwise
be required under the applicable plan document, or (iii) a
date one (1) year after the Change of Control, as if such
Change of Control had occurred thirty (30) calendar days prior
to the date such payment is due and upon such payment, the
related option, purchase right, interest or award will be
cancelled.
5.01.2 Subject to paragraph 5.01.3 hereof, if it is
determined that the payment of a cash amount with respect to
an option, purchase right, interest or award under any
Incentive Plan as provided in this subsection 5.01 and the
contemporaneous cancellation of such option, purchase right,
interest or award would result in liability of the Executive
for damages or forfeitures under Section 16(b) of the Act or
the disqualification of the related Incentive Plan for
exemption under Rule 16b-3, then, notwithstanding anything in
this subsection 5.01 to the contrary, such cash payment will
not be made. In such event, the option, purchase right,
interest or award involved will continue in effect according
to the terms of the applicable plan document.
5.01.3 Notwithstanding anything in this subsection
5.01 to the contrary, if it is determined that the payment of
a cash amount under this subsection 5.01 with respect to any
option, purchase right, interest or award under any Incentive
Plan would result in liability of the Executive for damages or
forfeitures under Section 16(b) of the Act or
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disqualification of the related Incentive Plan for exemption
under Rule 16b-3 but that after the passage of time, such
payment may be made without such liability or
disqualification, then such payment will not be made to the
Executive, and the related option, purchase right, or
surrendered such interest or settled such award, and subject
to paragraph 5.01.1 hereof, the payment provided for in this
subsection 5.01 will then be made as if the Change of Control
had occurred thirty (30) calendar days prior to such date and,
upon such payment, the related option, purchase right,
interest or award will be cancelled. Until so cancelled or
otherwise terminated, each such option, purchase right,
interest or award will continue in effect in accordance with
the terms of the applicable plan document.
5.01.4 The determinations contemplated in paragraphs
5.01.1, 5.01.2 and 5.01.3 hereof and the length of the period
mentioned in paragraph 5.01.3 hereof will be made by
independent legal counsel duly licensed to practice law and
practicing with a nationally recognized law firm primarily in
the field of securities law, jointly selected by the parties,
at the sole cost of the Employer.
5.02 Establishment of Trust. As promptly as practicable
following the date of this Agreement, the Company will establish a
trust for the benefit of the Executive and other similarly situated
employees of the Employer or the Company, substantially on the terms
set forth in Exhibit 1 which is attached hereto and by this reference
made a part hereof. In the event of a conflict between the terms of
this Agreement and the terms of Exhibit 1, the terms of this Agreement
will control. Not later than thirty (30) calendar days after the
earlier of (i) a Potential Change of Control arising (unless the Board
or the Committee adopts a resolution within ten (10) business days
following the date the Potential Change of Control arises to the
effect that such action is not necessary to secure any payments
hereunder) or (ii) a Change of Control, the Company will deposit or
cause the Employer to deposit with the trustee monies or other
property having a fair market value at least equal to the present
value of the cash amounts to be paid and the monetary equivalents of
the benefits and other distributions to be provided to the Executive
under this Agreement or which would be so provided in the event of
either (i) a Change of Control or (ii) a termination of this Agreement
pursuant to paragraph 3.03.1, 3.03.3, 3.04.1 or 3.05 hereof, including
but not limited to amounts that may be payable under subsection 5.03
or 6.01 hereof. The amounts payable under subsection 6.01 hereof will
be estimated by independent legal counsel licensed to practice law in
the state, and practicing in the municipality, in which the
Executive's principal residence is located. All other amounts to be
deposited with the trustee will be determined by an independent
actuary. The fees and expenses of such actuary and counsel, each of
whom will be selected jointly by the parties, will be borne solely by
the Employer. Neither the establishment of the trust nor the making
or maintaining of the deposit required under this subsection 5.02 will
relieve the Company or the Employer of any of its obligations under
this Agreement to make any payment or provide any benefit to the
Executive, except to the extent such obligations are satisfied by
payments made from such trust.
5.03 Tax Payments. The amounts required to be paid pursuant
to subsection 4.04 hereof are intended to constitute damages for
breach of a contract providing for "compensation for personal service
to be rendered" within the meaning of Section 280G(b)(4)(A) of the
Code. Such payments are not intended to be subject to the excise tax
imposed under Section 4999 of the Code. The parties recognize,
however, that such payments may nevertheless be ultimately determined
to be subject to such excise tax and that other payments or
distributions under this Agreement, including without limitation
payments made under subsection 5.01 hereof, and other compensation,
benefits, payments or distributions under the Incentive Plans or other
plans or compensation arrangements with respect to the Executive may
also be subject to such tax (collectively, with any interest or
penalties incurred by the Executive relative thereto and any federal
and state excise or income taxes resulting from payments made pursuant
to this subsection 5.03, the "Excise Tax"). The Employer will pay the
Executive one or more cash payments ("Gross-up Payment") sufficient to
pay the Excise Tax.
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5.03.1 Subject to the provisions of 5.03.2 hereof,
all determinations required to be made under this subsection
5.03, including without limitation whether the Gross-up
Payment is required and the amount of the Gross-up Payment,
will be made by the Accounting Firm. The Executive will
provide the Accounting Firm any information reasonably
requested by it necessary to make such determination,
including without limitation copies of the Executive's tax
returns for the periods affected, all of which will be
maintained in confidence by the Accounting Firm. The
Accounting Firm will provide detailed supporting calculations
together with its written opinion with respect to the accuracy
of such calculations to the Employer, the Company and the
Executive within fifteen (15) business days of the Date of
Termination or the Change of Control, whichever is applicable,
or such earlier time as is requested by the Employer, the
Company or the Executive and agreed to by the Accounting Firm.
All fees and expenses of the Accounting Firm will be borne
solely by the Employer. The initial Gross-up Payment, if any,
as determined pursuant to this paragraph 5.03.1 will be paid
to the Executive within five (5) days of the receipt of the
Accounting Firm's determination. If the Accounting Firm
determines that no Excise Tax is payable by the Executive, it
will also furnish the Executive with an opinion that failure
to report the Excise Tax on the Executive's applicable federal
income tax return would not result in the imposition of a
negligence or similar penalty and in the absence of such an
opinion, a Gross-up Payment in the amount which the Accounting
Firm determines to be payable will be due and payable to the
Executive. Except as provided in the preceding sentence, any
determination by the Accounting Firm will be binding upon all
of the parties hereto. As a result of uncertainty in the
application of Section 4999 of the Code at the time of the
initial determination by the Accounting Firm hereunder, it is
possible that Gross-up Payments which will not have been made
by the Company should have been made ("Underpayment"),
consistent with the calculations required to be made
hereunder. In the event that the Employer or the Company
exhausts the remedies provided in paragraph 5.03.2 hereof and
the Executive thereafter is required to make a payment of any
Excise Tax, the Accounting Firm will determine the amount of
the Underpayment that has occurred and any such Underpayment
will be promptly paid by the Employer to or for the benefit of
the Executive.
5.03.2 The Executive will notify the Employer and the
Company in writing of any claim by the IRS that, if
successful, would required the payment by the Company of the
Gross-up Payment; provided, that failure by the Executive to
give such notification will not affect any of the Executive's
rights or the obligations of the Company or the Employer under
this Agreement. Such notification will be given as soon as
practicable but no later than ten (10) business days after the
Executive knows of such claim and will apprise the Employer
and the Company of the nature of such claim and the date on
which such claim is requested to be paid. The Executive will
not pay such claim prior to the expiration of the thirty (30)
day period following the date on which the Executive gives
such notice to the Employer and the Company (or such shorter
period ending on the date that any payment of taxes with
respect to such claim is due). If the Employer or the Company
notifies the Executive in writing prior to the expiration of
such period that it desires to contest such claim, the
Executive will:
(a) give the Employer or the Company, as the case may
be, any information reasonably requested by either of
them relating to such claim,
(b) take such action in connection with contesting
such claim as the Employer or the Company may
reasonably request in writing from time to time,
including without limitation accepting legal
representation with respect to such claim by an
attorney reasonably selected by the Employer or the
Company,
(c) cooperate with the Employer and the Company in
good faith in order effectively to contest such
claim, and
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(d) permit the Employer and the Company to
participate in any proceedings relating to such
claim;
provided, however, that the Employer will bear and pay
directly all costs and expenses (including additional interest
and penalties) incurred in connection with such contest and
will indemnify and hold the Executive harmless, on an
after-tax basis, for any Excise Tax or income tax, including
interest and penalties with respect thereto, imposed as a
result of such representation, and payment of costs and
expenses. Without limiting the foregoing, the Employer or the
Company, as they may agree, will control all proceedings taken
in connection with such contest and, at the sole option of the
Employer or the Company, as the case may be, may pursue or
forego any and all administrative appeals, proceedings,
hearings and conferences with the taxing authority in repsect
of such claim and may, at its sole option, either direct the
Executive to pay the tax claimed and sue for a refund or
contest the claim in any permissible manner, and the Executive
will prosecute such contest to a determination before any
administrative tribunal, in a court of initial jurisdiction
and in one or more appellate courts, as the Employer or the
Company may determine; provided, however, that if the Employer
or the Company directs the Executive to pay such claim and sue
for a refund, the Employer or the Company, as the case may be,
will advance the amount of such payment to the Executive, on
an interest-free basis, and will indemnify and hold the
Executive harmless, on an after-tax basis, from any Excise Tax
or income tax, including interest or penalties with respect
thereto, imposed with respect to such advance or with respect
to any imputed income with respect to such advance; and
further provided that any extension of the statute of
limitations relating to payment of taxes for the taxable year
of the Executive with respect to which such contested amount
is claimed to be due is limited solely to such contested
amount. Furthermore,the control of the contest by the
Employer or the Company will be limited to issues with respect
to which a Gross-up Payment would be payable hereunder and
the Executive will be entitled to settle or contest, as the
case may be, any other issue raised by the IRS or any other
taxing authority.
5.03.3 If, after the receipt by the Executive of an
amount advanced by the Employer or the Company pursuant to
paragraph 5.03.2 hereof, the Executive becomes entitled to
receive any refund with respect to such claim, the Executive
will (subject to compliance by the Employer or the Company, as
applicable, with the requirements of paragraph 5.03.2 hereof)
promptly pay to the Employer or the Company, as the case may
be, the amount of such refund (together with any interest paid
or credited thereon alter taxes applicable thereto). If,
after the receipt by the Executive of an amount advanced by
the Employer or the Company pursuant to paragraph 5.03.2
hereof, a determination is made that the Executive will not be
entitled to any refund with respect to such claim and the
Employer or the Company, as the case may be, does not notify
the Executive in writing of its intent to contest such denial
of refund prior to the expiration of thirty (30) calendar days
after such determination, then such advance will be forgiven
and will not be required to be repaid and the amount of such
advance will offset, to the extent thereof, the amount of
Gross-up Payment required to be paid. Any contest of a denial
of refund will be controlled by paragraph 5.03.2 hereof.
SECTION 6. MISCELLANEOUS.
6.01 Executive's Attorneys' Fees. In the event of a dispute
between the parties and litigation or other formal dispute resolution
proceeding is initiated, whether by the Executive, the Employer, the
Company or any third party, to resolve such dispute or to enforce or
interpret any provision contained in this Agreement, the Employer will
indemnify the Executive and any other Person or Persons designated to
receive any payments or benefits under this Agreement for any costs
and expenses incurred by the Executive or such Person or Persons as a
result thereof, including without limitation reasonable attorneys'
fees, disbursements and other expenses for the
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preparation of such litigation or dispute resolution proceeding or for
the settlement thereof. The Employer will, promptly upon the request
of the Executive or such Person or Persons, advance to the Executive
or such Person or Persons or pay directly such costs and expenses as
they are incurred.
6.02 Obligation Unconditioned. Except as otherwise expressly
provided in this Agreement and except for any amounts required by law
to be withheld, the respective obligations of the Employer and the
Company to pay to or for the benefit of the Executive (or any other
Person or Persons designated to receive payments or benefits under
this Agreement) the amounts and to make the arrangements provided in
this Agreement are absolute and unconditional and will not be affected
by any circumstances, including without limitation any setoff,
counterclaim, recoupment, defense or other right which the Employer or
the Company may have against the Executive or anyone else, any
asserted or unasserted claim or other right of any third party against
the Executive, the Employer or the Company, or any real or alleged
uncertainty regarding the meaning or intent of Section 280G of the
Code or any regulations issued by the IRS thereunder. Without
limiting the generality of the foregoing, in no event will an asserted
violation of the provisions of subsections 6.09, 6.10, 6.11 or 6.12
hereof constitute a basis for deferring or withholding any amounts
otherwise payable to or for the benefit of the Executive or such
Person or Persons under this Agreement. All amounts payable to or for
the benefit of the Executive or such Person or Persons hereunder will
be paid without notice or demand, other than a Notice of Termination,
as to payments due in the event of a termination of this Agreement and
except payments made under subsection 5.03 hereof. Except as
expressly provided in subsections 3.07 and 5.03 hereof and subject to
the Executive's duty to mitigate under paragraph 4.04.4 hereof, each
and every payment made hereunder by the Employer or the Company will
be final and neither of them will seek to recover all or any part of
such payment from the Executive or from whosoever may be entitled
thereto, for any reason whatsoever. Any amount not paid by the
Company or the Employer to or for the benefits of the Executive or any
Person or Persons designated to receive payments or benefits under
this Agreement within five (5) business days from the date due will
bear interest at the rate specified in paragraph 3.07.1 hereof, plus
two percent (2%) per annum, compounded annually, from the due date
until paid.
6.03 Successors and Assigns. This Agreement will be binding
upon and inure to the benefit of the parties, the respective permitted
assigns of the Company and the Employer and the Executive's personal
or legal representatives, executors, administrators, successors,
heirs, distributees, devisees and legatees. Except as provided in
paragraph 6.03.1 hereof, neither this Agreement nor any right
hereunder may be assigned by any party without the prior written
consent of the others. Except as otherwise expressly provided in this
Agreement, nothing contained in this Agreement is intented to confer
any rights or remedies, express or implied, on any Person or entity
not a party hereto. If the Executive should die while any amounts
would still be payable to the Executive under any provisions of this
Agreement if the Executive had continued to live, all such amounts,
unless otherwise provided herein, will be paid in accordance with the
terms of this Agreement to the parties identified in subsection 3.05
hereof.
6.03.1 Provided whichever of the Employer or the
Company may be involved gives notice of this Agreement to any
successor (whether direct or indirect, by purchase, merger,
consolidation or otherwise) to all or substantially all of its
business and/or assets, and requires such successor, by
agreement in form and substance satisfactory to the Executive,
to expressly assume and agree to perform its obligations under
this Agreement, whichever of the Employer or the Company may
be involved may assign this Agreement to such successor. No
such assignment will relieve whichever of the Employer or the
Company may be involved of any of its obligations under this
Agreement. Failure of whichever of the Employer or the
Company may be involved to obtain such agreement prior to the
effectiveness of any such assignment will consitute a breach
of this Agreement and entitle the Executive to liquidated
damages as provided in subsection 4.04 hereof, except that for
purposes of implementing the foregoing, the date on which such
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assignment becomes effective will be deemed the Date of
Termination and no Notice of Termination will be required.
6.04 Notice. For the purposes of this Agreement, all notices
and other communications provided for in this Agreement will be in
writing and will be deemed to have been duly given when delivered by
hand or dispatched by electronic facsimile transmission, one (1)
business day after being sent by Federal Express or another nationally
recognized next-day delivery service or three (3) business days after
being posted by United States registered or certified mail, return
receipt requested, postage prepaid, addressed as follows:
If to the Executive:
Roy A. Wilkens
6336 South Harvard
Tulsa, Oklahoma 74136
If to the Company:
The Williams Companies, Inc.
One Williams Center
Tulsa, Oklahoma 74172
Attention: Chief Executive Officer
If to the Employer:
Williams Telecommunications Group, Inc.
One Williams Center
Tulsa, Oklahoma 74172
Attention: Chairman of the Board
With a copy to: General Counsel, The Williams
Companies, Inc.
or to such other address as the party entitled to notice may have
furnished to the others in writing in accordance herewith, except that
notices of change of address will be effective only upon receipt.
6.05 Amendments; Waiver. No amendment of this Agreement, and
no waiver of compliance with any provision of this Agreement, will be
effective unless such amendment or waiver is in writing and signed by
each of the parties hereto. No waiver by any party hereto at any time
of any breach by any other party hereto of, or compliance with, any
condition or provision of this Agreement to be performed by such other
party will be deemed a waiver of similar or dissimilar provisions or
conditions at the same or at any prior or subsequent time.
6.06 Prior Agreement. This Agreement supercedes all prior
agreements among the parties or any of them with respect to the
subject matter hereof, and no agreements or representations, oral or
otherwise, express or implied, with respect to the subject matter
hereof have been made by any party which are not set forth expressly
in this Agreement, except the various agreements listed on Exhibit 2
attached hereto.
6.07 Governing Law. The validity, interpretation,
construction and performance of this Agreement will be governed by the
laws of the State of Delaware (without regard to the conflict of laws
principles thereof).
6.08 Severability. The invalidity or unenforceability of any
provisions of this Agreement will not affect the validity or
enforceability of any other provision of this Agreement, which will
remain in full force and effect. Any provision in this Agreement
which is prohibited or unenforceable in any jurisdiction will, as to
such jurisdiction, be ineffective only to the extent of such
prohibition or unenforceability without invalidating or affecting the
remaining provisions
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hereof, and any such prohibition or unenforceability in any
jurisdiction will not invalidate or render unenforceable such
provision in any other jurisdiction.
6.09 Confidential Information. The Executive will hold in a
fiduciary capacity for the benefit of the Employer and the Company all
secret or confidential information, knowledge or data relating to the
Employer or any of its afiiliates, and their respective businesses,
which are obtained by the Executive during the Executive's employment
by the Employer or any of its affiliates, except such as may be or
become public knowledge (other than by acts by the Executive in
violation of this Agreement). After termination of the Executive's
employment with the Employer, except as may be required by law or
legal process, the Executive will not, without prior written consent
of the Employer or the Company, communicate or divulge any such
information, knowledge or data to anyone other than the Employer or
the Company or those designated by either of them nor use any of the
same for any purpose adverse to the Employer or any of its affiliates.
The Executive acknowledges that this subsection 6.09 is a material
term of this Agreement and that its breach could result in damage to
the Employer or its affiliates that may be difficult to ascertain and
that upon any such breach or in reasonable anticipation of any such
breach, the Employer or the Company will be entitled to an order of
any court of competent jurisdiction to enjoin such breach.
6.10 Derogatory Remarks. The Executive will not make public
derogatory comments regarding the Employer or any of its affiliates at
any time before or after the termination of this Agreement.
6.11 Files and Records. Promptly upon termination of this
Agreement, the Executive will return to the Employer all property and
all files and other documentation belonging to or relating or in any
way pertaining to the Employer, the Company or their respective
businesses or operations, except as may be required by the Executive
in the bona fide enforcement of this Agreement.
6.12 Cooperation in Litigation. To the extent reasonably
necessary and upon reasonable notice, following the termination of
this Agreement, the Executive will cooperate with the Employer and its
present and past affiliates in connection with the prosecution or
defense of any claim asserted by or against any of them (including a
claim for Excise Taxes but excluding a claim in connection with the
enforcement of this Agreement) with respect to which the Executive may
have any knowledge, without additional compensation other than
reimbursement for reasonable expenses, unless more than an aggregate
of five (5) business days of the Executive's time is required in
connection with such cooperation, in which case the Executive will be
entitled to reasonable compensation, based upon the payments provided
for in paragaphs 4.01.1 and 4.01.2 hereof, in addition to
reimbursement for such expenses.
6.13 Survival of Certain Provisions. The provisions of
subsections 3.03, 3.04, 3.05, 3.06, 3.07, 4.02, 4.03, 4.04, 4.05, 4.07
and 6.01 hereof (to the extent any such subsections provide for the
payment of money or the providing of benefits following termination of
this Agreement) and subsections 5.02, 5.03, 6.02, 6.03, 6.09, 6.10 and
6.12 hereof will survive the termination of this Agreement.
6.14 Rights Exclusive. The rights and remedies of the
Executive provided in this Agreement for the termination of this
Agreement and the employment relationship arising out of this
Agreement are exclusive of any other rights or remedies at law or in
equity, except as may be otherwise required by any valid and
applicable law or regulation providing for any rights or remedies for
termination of such employment relationship. In the latter case, if
the Executive elects to pursue such other rights or remedies provided
by such law or regulation, such other rights or remedies will be
exclusive and the Executive will not seek any rights or remedies
provided herein.
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6.15 Consents. Except as otherwise expressly provided in this
Agreement, no consent by the Executive will be effective as to the
Executive or any Person or Persons claiming under the Executive unless
in writing and signed by the Executive.
IN WITNESS WHEREOF, the parties have executed this Agreement
effective as of the date first above written.
/s/ Roy A. Wilkens
--------------------------------------
Executive
THE WILLIAMS COMPANIES, INC.
By /s/ Joseph H. Williams
--------------------------------------
Joseph H. Williams
Chairman and Chief Executive Officer
WILLIAMS TELECOMMUNICATIONS GROUP, INC.
By /s/ Vernon T. Jones
--------------------------------------
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