Case No. 02-41729 (REG), (Jointly Administered).United States Bankruptcy Court, S.D. New York.
December 1, 2004
Shelley C. Chapman (SC-4691), (A Member of the Firm), WILLKIE FARR GALLAGHER LLP, New York, New York, Counsel to the Debtors and Debtors in Possession.
Brian M. Melber, PERSONIUS MELBER LLP, Buffalo, New York, Counsel to Shawn Hanlon.
STIPULATION BETWEEN PARNASSOS COMMUNICATIONS, L.P. AND SHAWN HANLON
ROBERT GERBER, Bankruptcy Judge
This Stipulation (the “Stipulation”) is entered into by and between Parnassos Communications, L.P. (“Parnassos” or the “Debtor”), one of the debtors and debtors in possession in the above-captioned cases, on the one hand, and Shawn Hanlon, on the other hand, by their respective undersigned attorneys, the agreed facts and terms of which are enumerated as follows:
WHEREAS, on June 10, 2002, Century Communications Corporation filed a voluntary petition for relief under chapter 11 of title 11 of the United States Code (the “Bankruptcy Code”), and on June 25, 2002, Adelphia Communications Corporation and certain of its subsidiaries and affiliates, including Parnassos, commenced cases under chapter 11 of the Bankruptcy Code (collectively, the “Debtors”). The Debtors are operating their businesses and managing their properties as debtors in possession pursuant to sections 1107(a) and 1108 of the Bankruptcy Code; and
WHEREAS, prior to November 10, 2003, Shawn Hanlon was employed by the Debtor as a commercial sales account executive in the Debtors’ Buffalo, New York area office; and
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WHEREAS, on or about November 10, 2003, Shawn Hanlon’s employment was terminated (the “Termination Date”); and
WHEREAS, from the Petition Date through the Termination Date, Shawn Hanlon rendered services for the Debtor in his capacity as a commercial account executive (the “Postpetition Services”); and
WHEREAS, on January 9, 2004, Shawn Hanlon filed a motion (the “Motion”) pursuant to section 503 of the Bankruptcy Code requesting payment of administrative expenses relating to commissions allegedly earned, but unpaid, in connection with the Postpetition Services, as well as related penalties and attorneys’ fees (together, the “Claims”); and
WHEREAS, on September 1, 2004, Shawn Hanlon filed a notice of hearing in respect of the Motion and the Motion was placed on the Court’s calendar. The hearing on the Motion has been adjourned from time to time and currently is scheduled to be heard on November 10, 2004; and
WHEREAS, the Debtor disputes Shawn Hanlon’s entitlement to payment on account of the Claims;
WHEREAS, resolution of the Motion would require extensive litigation. To avoid both the risks, delays and costs associated with any such litigation, the Debtor and Shawn Hanlon have agreed upon the terms of a settlement of the Claims.
NOW, THEREFORE, it is hereby stipulated and agreed that:
1. In full and final settlement of the Claims, Hanlon shall have an allowed administrative expense claim in the Parnassos’s chapter 11 case equal to $26,800.00, less state and federal withholding taxes applicable to the portion of such amount that relates to unpaid commissions (the “Administrative Claim”).
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2. As of the date the Court approves this Stipulation, the Motion shall be deemed withdrawn with prejudice.
3. The Administrative Claim shall be allocated and paid as follows:
a. $15,000, less applicable state and federal employment and withholding taxes pursuant to sections 3101-3128, 3301-3311 and 3402(a) of title 26 of the United States Code, relating to unpaid commissions in respect of certain of the Postpetition Services (the “Commission Payment”) shall be paid to Shawn Hanlon within (20) days of the date the Court approves this Stipulation. The rate at which the Debtors shall deduct applicable employment and withholding taxes from the Commission Payment sha be either (i) the rate set forth in Shawn Hanlon’s most recent W-4 Form contained in the Debtors’ personnel files or (ii) the Supplemental Rate, as set forth in Circular E of the Employer’s Tax Guide, in effect as of the date the Court approves this Stipulation.
b. $5,000, in respect of liquidated damages pursuant to section 198-a of the New York State Labor Law (the “Liquidated Damage Payment”) shall be paid to Shawn Hanlon within (10) days of the date the Court approves this Stipulation.
c. $6,800, in respect of Shawn Hanlon’s attorneys’ fees relating to the Motion, the Commission Payment and this Stipulation pursuant to section 198-a of the New York State Labor Law (the “Attorneys’ Fees Payment”) shall be paid to Shawn Hanlon within (10) days of the date this Court approves this Stipulation.
4. With the exception of the Administrative Claim and obligations arising under this Stipulation, Shawn Hanlon, on behalf of himself, and his successors, assigns and principals (collectively the “Hanlon Releasors”), intending to be bound, shall, and do hereby, forever release, acquit and discharge the Debtor and its present and former parent companies, subsidiaries, divisions, affiliates, predecessors, successors, assigns, principals, officers, directors, employees, agents, servants and attorneys (collectively, the “Adelphia Releasees”), of and from any and all claims, causes of action, debts, suits, rights of action, dues, sums of money, accounts, bonds, bills, covenants, contracts, controversies, agreements, promises, damages, judgments,
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variances, executions, demands or obligations of any kind or nature whatsoever, matured or unmatured, liquidated or unliquidated, absolute or contingent, known or unknown, present or future, at law, admiralty or equity, which against the Adelphia Releasees, the Hanlon Releasors ever had, now have or hereinafter can, shall or may have, by reason of any matter, cause or thing whatsoever arising from, in connection with or related to the Motion or Shawn Hanlon’s employment with the Debtor.
5. With the exception of obligations arising under this Stipulation, the Debtor, on behalf of itself and its present or former members, parent companies, subsidiaries, divisions, affiliates, predecessors, successors, assigns, principals, officers and directors (collectively the “Adelphia Releasors”), intending to be bound, shall, and do hereby, forever release, acquit and discharge Shawn Hanlon and his successors, assigns, principals, agents, servants and attorneys (collectively, the “Hanlon Releasees”), of and from any and all claims, causes of action, debts, suits, rights of action, dues, sums of money, accounts, bonds, bills, covenants, contracts, controversies, agreements, promises, damages, judgments, variances, executions, demands or obligations of any kind or nature whatsoever, matured or unmatured, liquidated or unliquidated, absolute or contingent, known or unknown, present or future, at law, admiralty or equity, which against the Hanlon Releasees, Adelphia Releasors ever had, now have or hereinafter can, shall or may have, by reason of any matter, cause or thing whatsoever arising from, in connection with or related to the Motion or Shawn Hanlon’s employment with the Debtor.
6. The Debtor and Shawn Hanlon agree that each of them, through their respective counsel, have had a full opportunity to participate in the drafting of this Stipulation and, accordingly, any claimed ambiguity shall be construed neither for nor against the Debtor or Shawn Hanlon. This Stipulation constitutes the entire agreement and understanding between the
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Debtor and Shawn Hanlon, is the final expression of that agreement, and supersedes all previous or contemporaneous oral or written representations, understandings or agreements. This Stipulation shall not be amended or supplemented except by a writing executed by the Debtor and Shawn Hanlon, directly or through their respective duly authorized representatives.
7. Any motion or application brought before the Bankruptcy Court to resolve any dispute arising under or related to this Stipulation shall be brought on proper notice in accordance with the relevant Federal Rules of Bankruptcy Procedure and the Local Rules of this Court.
8. Each person who executes this Stipulation by or behalf of each respective party represents and warrants that he or she has been duly authorized and empowered to execute and deliver this Stipulation on behalf of each such party.
9. This Stipulation is subject to approval by this Court and in the event that the Court does not approve this Stipulation, nothing contained herein shall be deemed to be a waiver of any claims or an admission of liability by any party hereto and, in such event, all rights of the parties shall be preserved. This Stipulation shall be of no force and effect prior to the date the Court approves this Stipulation.
10. This Stipulation may be executed in one or more counterparts, each of which, when so executed and delivered, shall be deemed an original, but all of which taken together shall constitute but one and the same instrument.
11. This Stipulation shall be binding upon and inure to the benefit of the parties, and
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their respective estates, successors, and assigns.
12. The Bankruptcy Court shall retain jurisdiction to interpret, enforce and resolve any disputes arising under or related to this Stipulation.
SO ORDERED.
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