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ORIUS CORP.
June 28, 2001
Xx. Xxxxxxx X. Xxxxxxxx
0000 Xxxxx Xxx, Xxx. 000
Xxxx Xxxx Xxxxx, XX 00000
Dear Xxxx:
This letter sets forth our understanding of the terms on which
you have resigned, and confirms your resignation, effective as of today from all
of your positions as officer, employee and director of Orius Corp. ("Orius") and
its subsidiaries. You and Orius are party to a Senior Management Agreement dated
as of November 8, 1999, as amended (the "Employment Agreement"). On April 17,
2000 you delivered to Orius a Promissory Note in the original principal amount
of $252,633.44 in connection with your purchase of Executive Shares under the
Employment Agreement (the "Note"). Capitalized terms used but not defined in
this letter shall have the meanings given them in the Employment Agreement.
By executing this letter in the space provided below, you
agree with Orius, and by its signature below Orius agrees with you, as follows:
1. You hereby resign effective as of today from all of your
positions as officer and employee of Orius and its subsidiaries. Furthermore,
you hereby resign effective as of today from your position as "CEO Director" and
Chairman of the Board of Orius (the term "CEO Director" having such meaning as
set forth in that certain Investor Rights Agreement, dated as of November 8,
1999, as amended, by and among Orius and the securityholders of Orius listed on
the signature pages thereto). However, Orius desires that you rejoin the board
as a member, and you agree to rejoin the board as a member; therefore, promptly
following your resignation as "CEO Director" and Chairman of the Board, the
board of directors of Orius will reappoint you to the board to fill a vacancy
created by an increase in the size of the board.
2. Though you are resigning from your positions at Orius, for
all purposes of the Employment Agreement you will be treated as if you have been
terminated from such positions without Cause. Consequently, if you execute and
deliver to Orius the General Release attached hereto as EXHIBIT A and otherwise
continue to comply with the Employment Agreement, then in accordance with
Paragraph 6(b)(1) of the Employment Agreement, (a) Orius will continue to pay
you, until June 28, 2003, in regular installments in accordance with Orius's
payroll practices, your Base Salary of $518,175, and (b) you will be entitled to
receive a pro-rata portion (i.e., 50%) of the Bonus for calendar year 2001 which
you would have earned, if any, had your employment continued until December 31,
2001. Such Bonus payment (if any) will be made at the same time as it would have
been made if your employment with Orius had not been terminated. The Base Salary
and Bonus payable to you are referred to in this letter as "Severance Payments."
In addition, in accordance with Paragraph 5(d) of the Employment Agreement, for
a period of time required by applicable law or, if such time period is shorter,
from the Termination Date until such date as Orius's
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Xx. Xxxxxxx X. Xxxxxxxx
June 28, 2001
Page 2
obligation under the Employment Agreement to pay you Severance Payments ceases,
Orius shall continue to pay for the health care coverage currently provided to
you in its existing group medical insurance plan to the extent to which you
would be entitled to such coverage under COBRA. As you are aware, Orius has no
obligation to make any Severance Payments to you until you execute and deliver
to Orius the General Release and only so long as you have not breached, and do
not in the future breach, any provision of Paragraph 7 (Confidential
Information), Paragraph 8 (Inventions and Patents) or Paragraph 9 (Non-Compete;
Nonsolicitation) of the Employment Agreement. Each of these provisions will
continue in full force and effect after the Termination Date.
3. This letter agreement may be executed in counterparts, each
of which shall for all purposes be deemed to be an original and both of which
shall constitute the same instrument.
This letter does not purport to amend the Employment Agreement
(except to the extent required by the first sentence of paragraph 2 above), the
Note or any other agreement to which you and Orius are a party, and each of
these agreements shall remain in full force and effect after the Termination
Date in accordance with their terms.
If you have any questions regarding the terms and conditions
of your termination from Orius, do not hesitate to call Xxxxxx Xxxxxxxx of Orius
at (000)000-0000.
Thank you.
Sincerely,
ORIUS CORP.
By: /s/ Xxxxxx X. Xxxxxxxx
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Xxxxxx X. Xxxxxxxx
Its: Senior Vice President of
Administration and General Counsel
Acknowledged and Agreed to
On this 28 day of June, 2001.
/s/ Xxxxxxx X. Xxxxxxxx
----------------------------------------------
Xxxxxxx X. Xxxxxxxx
cc: Board of Directors, Orius Corp.
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EXHIBIT A
GENERAL RELEASE
I, Xxxxxxx X. Xxxxxxxx, in consideration of and
subject to the performance by Orius Corp., a Delaware corporation (together with
its subsidiaries, the "Company"), of its material obligations under the Senior
Management Agreement, dated as of November 8, 1999, as amended (the
"Agreement"), do hereby release and forever discharge as of the date hereof the
Company and all present and former directors, officers, agents, representatives,
employees, successors and assigns of the Company and its direct or indirect
owners (collectively, the "Released Parties") to the extent provided below.
(1) I understand that any payments or benefits paid or granted to me
under Paragraph 6(b) of the Agreement represent, in part,
consideration for signing this General Release and are not salary,
wages or benefits to which I was already entitled. I understand
and agree that I will not receive the payments and benefits
specified in Paragraph 6(b) of the Agreement unless I execute this
General Release and do not revoke this General Release within the
time period permitted hereafter or breach this General Release.
(2) Except as provided in Paragraphs 4 and 11 below, I knowingly and
voluntarily release and forever discharge the Company and the
other Released Parties from any and all claims, controversies,
actions, causes of action, cross-claims, counter-claims, demands,
debts, compensatory damages, liquidated damages, punitive or
exemplary damages, other damages, claims for costs and attorneys'
fees, or liabilities of any nature whatsoever in law and in
equity, both past and present (through the date of this General
Release) and whether known or unknown, suspected, or claimed
against the Company or any of the Released Parties which I, my
spouse, or any of my heirs, executors, administrators or assigns,
may have, which arise out of or are connected with my employment
with, or my separation from, the Company (including, but not
limited to, any allegation, claim or violation, arising under:
Title VII of the Civil Rights Act of 1964, as amended; the Civil
Rights Act of 1991; the Age Discrimination in Employment Act of
1967, as amended (including the Older Workers Benefit Protection
Act); the Equal Pay Act of 1963, as amended; the Americans with
Disabilities Act of 1990; the Family and Medical Leave Act of
1993; the Civil Rights Act of 1866, as amended; the Worker
Adjustment Retraining and Notification Act; the Employee
Retirement Income Security Act of 1974; any applicable Executive
Order Programs; the Fair Labor Standards Act; or their state or
local counterparts; or under any other federal, state or local
civil or human rights law, or under any other local, state, or
federal law, regulation or ordinance; or under any public policy,
contract or tort, or under common law; or arising under any
policies, practices or procedures of the Company; or any claim for
wrongful discharge, breach of contract, infliction of emotional
distress, defamation; or any claim for costs, fees, or other
expenses, including attorneys' fees incurred in these matters)
(all of the foregoing collectively referred to herein as the
"Claims").
(3) I represent that I have made no assignment or transfer of any
right, claim, demand, cause of action, or other matter covered by
Paragraph 2 above.
(4) This General Release does not waive or release any rights or
claims that I may have (a) under the Age Discrimination in
Employment Act of 1967 which arise after the date I execute this
General Release or (b) for benefits to which he may be entitled
under any employee plan or agreement. I acknowledge and agree that
my separation from employment with the Company in compliance with
the terms of the Agreement shall not serve as the basis for any
claim or action (including, without limitation, any claim under
the Age Discrimination in Employment Act of 1967).
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(5) In signing this General Release, I acknowledge and intend that it
shall be effective as a bar to each and every one of the Claims
hereinabove mentioned or implied. I expressly consent that this
General Release shall be given full force and effect according to
each and all of its express terms and provisions, including those
relating to unknown and unsuspected Claims (notwithstanding any
state statute that expressly limits the effectiveness of a general
release of unknown, unsuspected and unanticipated Claims), if any,
as well as those relating to any other Claims hereinabove
mentioned or implied. I acknowledge and agree that this waiver is
an essential and material term of this General Release and that
without such waiver the Company would not have agreed to the terms
of the Agreement. I further agree that in the event I should bring
a Claim seeking damages against the Company, or in the event I
should seek to recover against the Company in any Claim brought by
a governmental agency on my behalf, this General Release shall
serve as a complete defense to such Claims. I further agree that I
am not aware of any pending charge or complaint of the type
described in Paragraph 2 as of the execution of this General
Release.
(6) I agree that neither this General Release, nor the furnishing of
the consideration for this General Release, shall be deemed or
construed at any time to be an admission by the Company, any
Released Party or myself of any improper or unlawful conduct.
(7) I agree that I will forfeit all amounts payable by the Company
pursuant to the Agreement if I challenge the validity of this
General Release. I also agree that if I violate this General
Release by suing the Company or the other Released Parties, I will
pay all costs and expenses of defending against the suit incurred
by the Released Parties, including reasonable attorneys' fees, and
return all payments received by me pursuant to the Agreement.
(8) I agree that this General Release is confidential and agree not to
disclose any information regarding the terms of this General
Release, except to my immediate family and any tax, legal or other
counsel I have consulted regarding the meaning or effect hereof or
as required by law, and I will instruct each of the foregoing not
to disclose the same to anyone.
(9) Any non-disclosure provision in this General Release does not
prohibit or restrict me (or my attorney) from responding to any
inquiry about this General Release or its underlying facts and
circumstances by the Securities and Exchange Commission (SEC), the
National Association of Securities Dealers, Inc. (NASD), any other
self-regulatory organization or governmental entity.
(10) I agree to reasonably cooperate with the Company in any internal
investigation or administrative, regulatory, or judicial
proceeding. I understand and agree that my cooperation may
include, but not be limited to, making myself available to the
Company upon reasonable notice for interviews and factual
investigations; appearing at the Company's request to give
testimony without requiring service of a subpoena or other legal
process; volunteering to the Company pertinent information; and
turning over to the Company all relevant documents which are or
may come into my possession all at times and on schedules that are
reasonably consistent with my other permitted activities and
commitments. I understand that in the event the Company asks for
my cooperation in accordance with this provision, the Company will
reimburse me solely for reasonable travel expenses, including
lodging and meals, upon my submission of receipts.
(11) Notwithstanding anything in this General Release to the contrary,
this General Release shall not relinquish, diminish, or in any way
affect any rights or claims arising out of any breach by the
Company or by any Released Party of the Agreement.
(12) Whenever possible, each provision of this General Release shall be
interpreted in, such manner as to be effective and valid under
applicable law, but if any provision of this General Release is
held to be invalid, illegal or unenforceable in any respect under
any applicable law or rule in any jurisdiction, such invalidity,
illegality or unenforceability shall not affect any other
provision or any other jurisdiction, but this General Release
shall be reformed, construed and enforced in such jurisdiction as
if such invalid, illegal or unenforceable provision had never been
contained herein.
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BY SIGNING THIS GENERAL RELEASE, I REPRESENT AND AGREE THAT:
(a) I HAVE READ IT CAREFULLY;
(b) I UNDERSTAND ALL OF ITS TERMS AND KNOW THAT I AM GIVING UP
IMPORTANT RIGHTS, INCLUDING BUT NOT LIMITED TO, RIGHTS UNDER THE
AGE DISCRIMINATION IN EMPLOYMENT ACT OF 1967, AS AMENDED, TITLE VII
OF THE CIVIL RIGHTS ACT OF 1964, AS AMENDED; THE EQUAL PAY ACT OF
1963, THE AMERICANS WITH DISABILITIES ACT OF 1990; AND THE EMPLOYEE
RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED;
(c) I VOLUNTARILY CONSENT TO EVERYTHING IN IT;
(d) I HAVE BEEN ADVISED TO CONSULT WITH AN ATTORNEY BEFORE EXECUTING
IT AND I HAVE DONE SO OR, AFTER CAREFUL READING AND CONSIDERATION
I HAVE CHOSEN NOT TO DO SO OF MY OWN VOLITION;
(e) I HAVE HAD AT LEAST 21 DAYS FROM THE DATE OF MY RECEIPT OF THIS
RELEASE SUBSTANTIALLY IN ITS FINAL FORM ON NOVEMBER 8, 1999 TO
CONSIDER IT AND THE CHANGES MADE SINCE THE NOVEMBER 8, 1999 VERSION
OF THIS RELEASE ARE NOT MATERIAL AND WILL NOT RESTART THE REQUIRED
21-DAY PERIOD;
(f) THE CHANGES TO THE AGREEMENT SINCE NOVEMBER 8, 1999 EITHER ARE NOT
MATERIAL OR WERE MADE AT MY REQUEST.
(g) I UNDERSTAND THAT I HAVE SEVEN DAYS AFTER THE EXECUTION OF THIS
RELEASE TO REVOKE IT AND THAT THIS RELEASE SHALL NOT BECOME
EFFECTIVE OR ENFORCEABLE UNTIL THE REVOCATION PERIOD HAS EXPIRED;
(h) I HAVE SIGNED THIS GENERAL RELEASE KNOWINGLY AND VOLUNTARILY AND
WITH THE ADVICE OF ANY COUNSEL RETAINED TO ADVISE ME WITH RESPECT
TO IT; AND
(i) I AGREE THAT THE PROVISIONS OF THIS GENERAL RELEASE MAY NOT BE
AMENDED, WAIVED, CHANGED OR MODIFIED EXCEPT BY AN INSTRUMENT IN
WRITING SIGNED BY AN AUTHORIZED REPRESENTATIVE OF THE COMPANY AND
BY ME.
Date: June 28, 2001 /s/ Xxxxxxx X. Xxxxxxxx
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Xxxxxxx X. Xxxxxxxx
