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EXHIBIT 10.6
[EXECUTION COPY]
SENIOR MANAGEMENT AGREEMENT
THIS SENIOR MANAGEMENT AGREEMENT (the "Agreement") is made as
of November 8, 1999, between Orius Corp., a Florida corporation (the "Company"),
and Xxxxxxx X. Xxxxxxxx ("Executive").
WHEREAS, the Company and Executive have entered into an
employment agreement, dated as of February 26, 1999 (the "Prior Agreement");
WHEREAS, the Company has entered into an Agreement and Plan of
Reorganization, dated as of the date of this Agreement, by and among the
Company, LISN Holdings, Inc. ("LISN"), Orius Merger Sub and certain stockholders
of the Company and of LISN named herein (the "Reorganization Agreement"); and
WHEREAS, subject to and effective upon the closing of the
transactions contemplated by the Reorganization Agreement and related agreements
(the "Closing"), the Company and Executive desire to enter into this Agreement
and to replace and supercede the Prior Agreement with this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants
contained herein and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1. Employment. Subject to and effective upon the Closing, the
Company shall employ Executive, and Executive hereby accepts employment with the
Company, upon the terms and conditions set forth in this Agreement for the
period beginning on the date hereof and ending as provided in Paragraph 6 hereof
(the "Employment Period"). Effective upon the Closing, the Prior Agreement shall
be superceded by this Agreement and shall be of no further force or effect.
2. Position and Duties.
(a) During the Employment Period, Executive shall serve as the
Company's President, Chief Executive Officer and Chairman of the board of
directors (the "Board") and shall have the normal duties, responsibilities and
authority of the President, Chief Executive Officer and Chairman of the Board
(including general and active charge of the business and affairs of the Company
and day-to-day operations of the Company and its Subsidiaries), and shall report
to and take direction from the Board.
(b) During the Employment Period, Executive shall report to
the Board and shall devote his best efforts and his full business time and
attention (except for permitted vacation periods and reasonable periods of
illness or other incapacity) to the business and affairs of the Company and
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its Subsidiaries. Executive shall perform his duties and responsibilities to the
Company and its Subsidiaries hereunder to the best of his abilities in a
diligent, trustworthy, businesslike and efficient manner. This Paragraph 2(b)
shall not preclude Executive, outside normal business hours, from engaging in
appropriate civic, charitable and like activities and from managing his personal
investment portfolio and, subject to Board approval, engaging in other business
ventures unrelated to the business of the Company. Executive shall perform his
duties in the West Palm Beach, Florida area unless he otherwise consents in
writing, and any requirement by the Company to relocate the Company's executive
offices outside the West Palm Beach, Florida area shall entitle Executive, at
his sole option and upon not less than thirty (30) days notice to the Company,
to terminate the Employment Period for Good Reason pursuant to Paragraph 6(b),
whereupon he shall be entitled to receive the same compensation as if the
Company had terminated the Employment Period without Cause.
(c) For purposes of this Agreement, "Subsidiaries" shall mean
any corporation or other entity of which the securities or other ownership
interests having the voting power to elect a majority of the board of directors
or other governing body are, at the time of determination, owned by the Company,
directly or through one of more Subsidiaries.
3. Compensation and Benefits.
(a) During the Employment Period, Executive's base salary
shall be $470,000 per annum or such increased rate as the Board may designate
from time to time (the "Base Salary"), which salary shall be reviewed at least
annually and be payable in bi-weekly installments in accordance with the
Company's general payroll practices, provided that the Base Salary shall be
adjusted as of each March 1, during the term of this Agreement, beginning March
1, 2000, to reflect the increase, if any, that occurred in the Revised Consumer
Price Index, U.S. City Average (1984 = 100) published by the Bureau of Labor
Statistics of the United States Department of Labor (the "Price Index") (or, if
publication of such Price Index is terminated, any substantially equivalent
successor thereto). Annual adjustments shall be made by determining the
percentage increase in the Price Index over the previous twelve-month period
ending December 31. This percentage shall be applied to the then-existing Base
Salary to determine the dollar amount of the annual Base Salary increase;
provided, however, that if the percentage increase in the Price Index for any
twelve-month period during the Employment Period is less than five percent (5%),
the annual Base Salary shall be increased a minimum of five percent (5%) for
such twelve-month period. Notwithstanding the foregoing, the Board of Directors
may, in its sole discretion, during the term of this Agreement, increase
Executive's Base Salary in an amount greater than his Base Salary would
otherwise be adjusted hereunder. In addition, during the Employment Period,
Executive shall be entitled to participate in all of the Company's employee
benefit programs for which senior executive employees of the Company and its
Subsidiaries are generally eligible. In particular, Section 4 describes that
certain purchase and sale of Executive Shares (as defined below) which shall be
made available to Executive.
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(b) In addition to the Base Salary, the Board shall award a
bonus ("Bonus") to Executive in an amount not to exceed the Executive's Base
Salary following the end of each fiscal year during the Employment Period based
upon the Company's EBITDA performance for each fiscal year, as follows:
EBITDA PERFORMANCE BONUS
------------------------------------------------- -----------------------
Less than: prior fiscal year's EBITDA times 1.125 None
Prior fiscal year's EBITDA times 1.125 50% of Base Salary*
Plan EBITDA 75% of Base Salary**
Equal to or greater than Plan EBITDA times 1.10 100% of Base Salary
* If the Company achieves EBITDA greater than the EBITDA of the Company
for the prior fiscal year times 1.125 but less than Plan EBITDA, then
Executive shall receive a pro rata portion of the difference between a
Bonus equal to 50% of Base Salary and a Bonus equal to 75% of Base
Salary.
** If the Company achieves EBITDA greater than Plan EBITDA but less than
an amount equal to Plan EBITDA times 1.10, then Executive shall receive
a pro rata portion of the difference between a Bonus equal to 75% of
Base Salary and a Bonus equal to 100% of Base Salary.
Payments under this Paragraph 3(b) shall be made within 14 days after the
receipt of the Company's audited annual financial statements from the Company's
accountants for the applicable year. For purposes of this Agreement, "EBITDA"
with respect to the Company and its Subsidiaries shall mean for any period (A)
net income for such period (before determination of such bonus), plus (B)
interest expense for such period, plus (C) depreciation and amortization expense
for such period, plus (D) tax expense in respect of the income taken into
account in the foregoing clause (A), plus (or minus) (E) extraordinary losses
(or gains) incurred in such period; provided that EBITDA for any fiscal year
shall not take into account any of the foregoing items attributable to
businesses acquired by the Company or its Subsidiaries during such fiscal year
(whether by purchase of assets or stock, merger, consolidation or similar
transaction), but such EBITDA shall be taken into account in determining the
Plan EBITDA and Executive's achievement of Bonus for subsequent fiscal years.
For purposes of this Agreement, "Plan EBITDA" means the EBITDA target mutually
agreed to by the Board and Executive prior to the start of any fiscal year
during the Employment Period. For the fiscal year commencing January 1, 2000 and
ending December 31, 2000, the Executive and Company agree that the Plan EBITDA
is $112,100,000.
(c) In addition to the compensation and benefits described
elsewhere in this Agreement, Executive may, at the sole discretion of the Board
(or any committee thereof), be entitled to receive such additional bonus or
bonuses in such amounts as may be determined by the Board (or any committee
thereof) in its sole discretion.
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(d) In addition to the Base Salary, reimbursement of
expenses and any bonuses payable to Executive pursuant to this Paragraph,
Executive shall be entitled to the following benefits during the Employment
Period, unless otherwise modified by the Board (provided that any such
modification does not materially alter Executive's compensation and benefits
package taken as a whole):
(i) hospitalization insurance, medical insurance and
disability insurance of such coverage as reasonably determined by the
Board (but in no event less than the coverage provided to other
management employees of the Company); provided that all health
insurance and other benefit plans that Executive participated in under
this Paragraph 3 shall continue at the Company's expense for the
benefit of his dependents who were covered under such plans for a
period of one year after Executive's death; and provided further and
Executive shall be entitled to continue such health insurance and other
benefit plans at his expense following termination of his employment
for any reason other than for Cause (as defined) below until Executive
becomes eligible for Medicare.
(ii) disability and life insurance in a principal amount not
less than $1,000,000;
(iii) a minimum of five weeks' paid vacation during each
twelve-month period of this Agreement with full salary and benefits,
provided that Executive shall not take more than three (3) weeks
consecutive of vacation, and provided further that Executive shall be
entitled to carry forward up to two (2) unused vacation weeks from one
twelve-month period to the next;
(iv) reimbursement for all reasonable expenses incurred by
Executive in the course of performing his duties and responsibilities
under this Agreement which are consistent with the Company's policies
in effect from time to time with respect to travel, entertainment and
other business expenses, including, without limitation, reimbursement
of Executive for membership dues in business and professional
organizations and clubs on a basis reasonably consistent with that in
effect between Executive and the Company before the date of this
Agreement, subject in each case to the Company's requirements with
respect to reporting and documentation of such expenses;
(v) reimbursement (up to a maximum of $10,000 per year) for
personal legal expenses incurred by Executive, subject to the Company's
requirements with respect to reporting and documentation of such
expenses;
(vi) reimbursement (up to a maximum of $3,000 per year) for
personal accounting expenses incurred by Executive, subject to the
Company's requirements with respect to reporting and documentation of
such expenses;
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(vii) reimbursement of reasonable moving and relocation
expenses if Executive is required to relocate by the Board and
Executive consents to such relocation, subject to the Company's
requirements with respect to reporting and documentation of such
expenses; and
(viii) an annual automobile allowance in the amount of $9,000,
which allowance (a) may be applied by the Company toward the leasing of
an automobile by the Company for Executive or (b) may be given directly
to Executive to reimburse Executive for (x) the purchase or leasing of
an automobile as the Company and Executive may agree and (y)
reimbursement of Executive for his out-of-pocket expenses of operating
an automobile (including fuel costs).
(e) All amounts payable to Executive as compensation
hereunder shall be subject to customary withholding by the Company.
4. Purchase and Sale of Executive Shares.
(a) As soon as practicable after the adjustments
contemplated by Section 1E of the Reorganization Agreement, Executive will
purchase from the Company, and the Company will sell to Executive a number of
Common Shares (equal to .75% of the number of issued and outstanding Common
Shares of the Company as of the Closing) at a price per Common Share equal to
the Orius Common Value Per Share, as finally determined pursuant to Section 1E
of the Reorganization Agreement. The Company will deliver to Executive the
certificates representing such Executive Shares, and Executive will deliver to
the Company a limited recourse promissory note in form and substance to be
reasonably agreed to by the parties, in the aggregate amount of the purchase
price of the Common Shares purchased pursuant to this Paragraph (the "Note").
Upon the purchase of the Common Shares contemplated by this Paragraph 4,
Executive shall execute and deliver to the Company a pledge agreement with
respect to such Common Shares in a form and substance reasonably satisfactory to
the Executive and the Company.
(b) Within 30 days after Executive purchases any Executive
Shares from the Company, Executive will make an effective election with the
Internal Revenue Service under Section 83(b) of the Internal Revenue Code, as
amended, and the regulations promulgated thereunder in the form of Exhibit A
attached hereto.
(c) In connection with the purchase and sale of the
Executive Shares hereunder, Executive represents and warrants to the Company
that:
(i) The Executive Shares to be acquired by Executive
pursuant to this Agreement will be acquired for Executive's own account
and not with a view to, or intention of, distribution thereof in
violation of the Securities Act, or any applicable state securities
laws, and the Executive Shares will not be disposed of in contravention
of the Securities Act or any applicable state securities laws.
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(ii) Executive is an executive officer of the Company, is
sophisticated in financial matters and is able to evaluate the risks
and benefits of the investment in the Executive Shares.
(iii) Executive is able to bear the economic risk of his
investment in the Executive Shares for an indefinite period of time and
Executive understands and acknowledges that because the Executive
Shares have not been registered under the Securities Act they cannot be
sold unless they are subsequently registered under the Securities Act
or an exemption from such registration is available.
(iv) Executive has had an opportunity to ask questions and
receive answers concerning the terms and conditions of the offering of
Executive Shares and has had full access to such other information
concerning the Company as he has requested.
(v) This Agreement and each of the other agreements
contemplated hereby constitutes the legal, valid and binding obligation
of Executive, enforceable in accordance with its terms, and the
execution, delivery and performance of this Agreement and such other
agreements by Executive does not and will not conflict with, violate or
cause a breach of any agreement, contract or instrument to which
Executive is a party or any judgment, order or decree to which
Executive is subject, including, without limitation, those agreements
referred to on Exhibit C attached hereto.
(vi) Except as disclosed on Exhibit C hereto, executive is
not a party to or bound by any other employment agreement, noncompete
agreement or confidentiality agreement.
(vii) Executive is and will be at the Effective Time a
resident of the State of Florida.
(d) As an inducement to the Company to issue the Executive
Shares to Executive, and as a condition thereto, Executive acknowledges and
agrees that the issuance of the Executive Shares to Executive shall not entitle
Executive to remain in the employment of the Company or affect the right of the
Company to terminate Executive's employment at any time for any reason.
(e) Vesting of Executive Shares.
(i) Time Vesting Shares. Except as otherwise provided in
(e)(iii) below, fifty percent (50%) of the Executive Shares (the "Time
Vesting Shares") will become vested in accordance with the following
schedule, if and only if as of each such date Executive is still
employed by the Company:
Cumulative Percentage of
Date Executive Shares to be Vested
---- -----------------------------
First Anniversary of the Closing 25%
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Second Anniversary of the Closing 50%
Third Anniversary of the Closing 75%
Fourth Anniversary of the Closing 100%
(ii) Performance-Vesting Shares. Except as otherwise provided
in e(iii) below, fifty percent (50%) of the Executive Shares shall vest
on the fifth anniversary of the Closing so long as the Executive has
remained continuously employed by the Company or its Subsidiaries as of
such date (the "Performance-Vesting Shares"), provided that vesting
will accelerate with respect to twenty-five percent of Executive's
Performance-Vesting Shares on each of the vesting dates set forth in
e(i) above if the Company has achieved the performance target set by
the Board of Directors for the then most recently completed fiscal year
of the Company (it being agreed that the Executive's performance target
for the fiscal year ending December 31, 2000 is the Company's
achievement of EBITDA in the amount of $112,100,000). Notwithstanding
the foregoing, all of the Executive's Performance-Vesting Shares which
have not yet become vested shall vest on the fifth anniversary of the
Closing.
(iii) All Executive Shares which have not become vested shall
become vested immediately (i) upon the sale by Xxxxxx Xxxxx & Partners
II, L.P. and Xxxxxx Xxxxx & Partners Dutch, L.P. (together, the
"Investor") of one half or more of the Common Shares held as of the
Closing by the Investor (ii) if, prior to an initial public offering of
the Company's Common Shares, a Person or group of Persons (other than
any Person or group of Persons who are stockholders of the Company
immediately after the consummation of the transactions contemplated by
the Reorganization Agreement) has acquired the number of shares
necessary to elect a majority of the Company's Board of Directors, or
(iii) a Change-in-Control. Executive Shares which have become vested
are referred to herein as "Vested Shares," and all other Executive
Shares are referred to herein as "Unvested Shares."
(f) Repurchase Option.
(i) In the event Executive ceases to be employed by the
Company for any reason (the "Termination") all of the Unvested Shares
(whether held by Executive or one or more of Executive's transferees),
will be subject to repurchase, in each case by the Company pursuant to
the terms and conditions set forth in this Section 4 (the "Repurchase
Option").
(ii) In the event of a Termination, the purchase price for
each Unvested Share will be Executive's Original Cost for such
Executive Share.
(iii) The Company or its designee may elect to purchase all or
any portion of the Unvested Shares by delivering written notice (the
"Repurchase Notice") to the Executive within 180 days after the
Termination. The Repurchase Notice will set forth the number of
Unvested Shares to be acquired from the Executive, the aggregate
consideration to be paid for such Unvested Shares and the time and
place for the closing of the transaction.
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(iv) The closing of the purchase of the Executive Shares
pursuant to the Repurchase Option shall take place on the date
designated by the Company in the Repurchase Notice, which date shall
not be more than five days after the delivery of the later of either
such notice to be delivered. The Company will pay for the Executive
Shares to be purchased by it pursuant to the Repurchase Option by first
offsetting amounts outstanding under any bona fide debts owed by
Executive to the Company or its Subsidiaries; upon full repayment of
such bona fide debts, the Company will make payment by a check or wire
transfer of funds in the aggregate amount of the remaining purchase
price for such Executive Shares. The Company and the Investor will be
entitled to receive reasonable and customary representations and
warranties from the sellers regarding such sale and to require all
sellers' signatures be guaranteed.
(v) Notwithstanding anything to the contrary contained in
this Agreement, all repurchases of Executive Shares by the Company
shall be subject to applicable restrictions contained in the Delaware
General Corporation Law, and in the Company's Investor Rights
Agreement. If any such restrictions prohibit the repurchase of
Executive Shares hereunder which the Company is otherwise entitled or
required to make, the Company may make such repurchases as soon as it
is permitted to do so under such restrictions; provided that if, and to
the extent, the Company has not completed such repurchase within one
year after the date of a Termination, the Company's right to repurchase
Executive Shares pursuant to the Repurchase Option hereunder shall
expire.
(vi) The Vested Shares shall not be subject to the Repurchase
Option hereunder, provided that if within the 60 days immediately
following Executive's termination hereunder the Executive fails to pay
in full all amounts owing under the Note, the Vested Shares shall be
subject to the terms and conditions of the Repurchase Option.
(g) Restrictions on Transfer of Executive Shares.
(i) Transfer of Vested Shares. Executive shall not transfer
any Vested Share except in accordance with the Investor Rights
Agreement with respect to Executive's other Shareholder Shares (as
defined in the Investor Rights Agreement).
(ii) Transfer of Unvested Shares. Executive shall not
Transfer any Unvested Shares under any circumstances.
(h) Termination of Restrictions. The restrictions on the
Transfer of Executive Shares set forth in this Section 4 will continue with
respect to each Executive Share until the date on which such Executive Share has
been transferred in a transaction permitted by the Investor Rights Agreement.
(i) Additional Restrictions on Transfer of Executive Shares.
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(i) Legend. The certificates representing the Executive
Shares will bear a legend in substantially the following form:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE WERE ORIGINALLY ISSUED
ON _________________, HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "ACT"), AND MAY NOT BE SOLD OR TRANSFERRED IN
THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT OR AN
EXEMPTION FROM REGISTRATION THEREUNDER. THE SECURITIES REPRESENTED BY
THIS CERTIFICATE ARE ALSO SUBJECT TO ADDITIONAL RESTRICTIONS ON
TRANSFER, CERTAIN REPURCHASE OPTIONS AND CERTAIN OTHER AGREEMENTS SET
FORTH IN A SENIOR MANAGEMENT AGREEMENT BETWEEN THE COMPANY AND AN
EXECUTIVE OF THE COMPANY DATED AS OF NOVEMBER [8], 1999 AND THAT
CERTAIN INVESTOR RIGHTS AGREEMENT, DATED AS OF NOVEMBER [8], 1999, BY
AND AMONG THE COMPANY EXECUTIVE AND OTHER STOCKHOLDERS OF THE COMPANY.
A COPY OF SUCH AGREEMENTS MAY BE OBTAINED BY THE HOLDER HEREOF AT THE
COMPANY'S PRINCIPAL PLACE OF BUSINESS WITHOUT CHARGE."
(ii) Execution of Other Agreements Acknowledgment. In
connection with Executive's (or a permitted transferee's) Transfer of
Executive Shares in accordance with the terms and conditions contained
in this Agreement, Executive or such permitted transferee shall cause
the prospective transferee to be bound by the then applicable terms and
conditions relating to Common Shares (if any) contained in this
Agreement, the Investor Rights Agreement, and any other agreements
executed by Executive and other holders of Common Shares relating to
such Common Shares in the aggregate, and to execute and deliver to the
Company and the other holders of Common Shares (i) counterparts of the
Investor Rights Agreement and applicable Other Agreements and (ii) an
acknowledgment that such prospective transferee shall be bound by the
provisions of this Agreement relating to equity securities. By the
execution and delivery of this Agreement, and the counterpart signature
page to the Investor Rights Agreement, the Executive acknowledges and
agrees that the Executive Shares are "Shareholder Shares" (as defined
in the Investor Rights Agreement) and that all rights, obligations, and
restrictions which apply to the Shareholder Shares under the Investor
Rights Agreement apply equally to the Executive Shares.
5. Board Membership. With respect to all regular elections
of directors during the Employment Period and in accordance with the terms and
conditions of the Investor Rights Agreement, the Company shall nominate, and use
its reasonable best efforts to cause the election of, Executive to serve as a
member of the Board and as the Board's Chairman. Executive shall have all of the
duties and responsibilities as are commensurate with the position of director of
the Company and shall be entitled to reimbursement of all travel and related
expenses incurred by Executive in
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attending any Board meetings outside the West Palm Beach, Florida area. Upon the
termination of the Employment Period, Executive shall resign as a director of
the Company and any of its Subsidiaries, as the case may be.
6. Term.
(a) Unless renewed by the mutual agreement of the Company and
Executive, the Employment Period shall end on February 28, 2003; provided that
(i) the Employment Period shall terminate prior to such date immediately upon
Executive's death or disability (as defined below), (ii) the Employment Period
may be terminated by the Company at any time prior to such date for Cause (as
defined below) or without Cause and (iii) the Employment Period may be
terminated by Executive at any time prior to such date with or without Good
Reason. Except as otherwise provided herein, any termination of the Employment
Period by the Company shall be effective as specified in a written notice from
the Company to Executive.
(b) (1) If the Employment Period is terminated by the
Company without Cause or by Executive for Good
Reason on or prior to February 28, 2003 (it being
agreed and understood that if the Executive and the
Company do not mutually agree to extend the
Employment Period beyond February 28, 2003 for any
reason that the Employment Period will be deemed to
have expired naturally on February 28, 2003 and
Executive will not be deemed to have been
terminated by the Company without Cause nor shall
Executive be entitled to resign or deemed to have
resigned for Good Reason), the Company shall pay
Executive (x) until the second anniversary of the
date of such termination (the "Severance Period")
his Base Salary payable in regular installments and
(y) a pro rata portion of the Bonus attributable to
the fiscal year that Executive would have earned
had he been employed for the entire fiscal year in
which he is terminated (such fiscal year, the "Year
of Termination") (it being agreed and understood
that "pro rata portion" shall be equal to the
product of (i) a fraction, the numerator of which
is the number of full weeks during which Executive
was employed by the Company during the Year of
Termination prior to such termination, and the
denominator of which is fifty-two and (ii) the
amount of Bonus that Executive would have received
in accordance with Paragraph 3(b) above had
Executive been employed for the entire Year of
Termination, and it being further agreed and
understood that the pro rata portion of the Bonus
as determined in accordance with this Paragraph
6(b)(1)(y) (if any) shall be paid at the time such
Bonus would have been paid had Executive continued
to be employed by the Company for the entire Year
of Termination, as provided in Paragraph 3(b)) (the
"Severance Payments"). Notwithstanding anything
herein to the contrary, in the
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event that the Employment Period expires on
February 28, 2003 in accordance with the terms
hereof, (x) the Company may in its sole discretion
elect to (but in no event shall the Company be
obligated to) make Severance Payments to Executive
for one year following such termination of the
Employment Period (the "Optional Severance Period")
and, in consideration of such Severance Payments,
Executive hereby agrees to be subject to the
restrictions set forth in Paragraph 9 below during
the Optional Severance Period. Executive shall be
entitled to the compensation provided by this
Paragraph 6(b) if and only if Executive has
executed and delivered to the Company the General
Release substantially in form and substance as set
forth in Exhibit B (the "General Release") attached
hereto and only so long as Executive has not
breached the provisions of Paragraphs 7, 8 and 9
hereof.
(2) Executive's employment hereunder may be terminated
by the Corporation for disability. In such event,
Executive shall be paid six months of Base Salary
in regular installments (and Executive will not be
entitled to the Severance Payments), and Executive
shall be entitled to continue participation, at the
Company's expense, in the Company's health
insurance and other benefit plans that Employee
participated in under Paragraph 3 hereof. For
purposes of this Agreement, "disability" is defined
to mean that, as a result of Executive's incapacity
due to physical or mental illness:
(i) Executive shall have been absent from his
duties as an officer of the Company on a
substantially full-time basis for four (4)
consecutive months; and
(ii) Within thirty (30) days after the Company
notifies Executive in writing that it intends
to replace him, Executive shall not have
returned to the performance of his duties as
an officer of the Company on a full-time
basis.
(c) If the Employment Period is terminated by the Company
for Cause, or by Executive without Good Reason or expires and is not renewed
hereunder, Executive shall only be entitled to receive his Base Salary, and any
accrued vacation through the date of termination or expiration.
(d) Except as otherwise expressly provided herein, all of
Executive's rights to salary, bonuses, fringe benefits and other compensation
hereunder which accrue or become payable after the termination or expiration of
the Employment Period shall cease upon such termination or expiration; provided
that following the termination of Executive's employment with the Company
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by the Company without Cause or by Executive for Good Reason, Executive shall
have the health care coverage in the Company's then existing group medical
insurance plan Executive would be entitled to under COBRA for a period required
under applicable law or, if less, the end of the Severance Period, at the
Company's sole cost.
(e) For purposes of this Agreement, "Cause" shall mean (i)
the commission of (A) a crime that (I) is a felony or (II) involves moral
turpitude and has resulted in or is reasonably likely to result in material
economic harm to the Company or (B) any other act or omission with respect to
the Company or any of its Subsidiaries that (I) involves dishonesty, breach of
obligation of loyalty to the Company or fraud and (II) has resulted in or is
reasonably likely to result in material economic harm to the Company; (ii)
chronic drug or alcohol abuse or other repeated misconduct causing the Company
or any of its Subsidiaries material economic harm, (iii) substantial and
repeated failure to perform duties as reasonably directed by the Board which is
not cured to the Board's reasonable satisfaction within 15 days after written
notice thereof to Executive, (iv) gross negligence or willful misconduct with
respect to the Company or any of its Subsidiaries or (v) any other material
breach of this Agreement which is not cured to the Board's reasonable
satisfaction within 15 days after written notice thereof to Executive.
(f) For purposes of this Agreement, "Good Reason" shall mean
(i) the relocation of the Company's executive offices outside the West Palm
Beach, Florida area, (ii) the Company's material breach of this Agreement or
(iii) without Executive's express written consent the assignment to Executive of
duties materially inconsistent with Employee's positions with the Company as set
forth in this Agreement (including status, offices, titles and reporting
requirements, authority, duties or responsibilities as contemplated by Paragraph
2(a)).
7. Confidential Information. Executive acknowledges that the
information, observations and data (including trade secrets) obtained by him
while employed by the Company and its Subsidiaries concerning the business or
affairs of the Company and its Subsidiaries ("Confidential Information") are the
property of the Company and its Subsidiaries. Therefore, Executive agrees that
he shall not disclose to any unauthorized person or use for his own purposes any
Confidential Information without the prior written consent of the Board, unless
and to the extent that the Confidential Information becomes generally known to
and available for use by the public other than as a result of Executive's acts
or omissions or as requested or required by law or court order (provided that
Executive shall notify the Company promptly of such request or requirement so
that the Company may seek an appropriate protective order). Executive shall
deliver to the Company at the termination or expiration of the Employment
Period, or at any other time the Company may request, all memoranda, notes,
plans, records, reports, computer tapes, printouts and software and other
documents and data (and copies thereof) embodying or relating to the
Confidential Information, Work Product (as defined below) or the business of the
Company and its Subsidiaries which he may then possess or have under his
control.
8. Inventions and Patents. Executive acknowledges that all
inventions, innovations, improvements, developments, methods, designs, analyses,
drawings, reports and all
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13
similar or related information (whether or not patentable) which relate to the
Company's or any of its Subsidiaries' actual business, research and development
or existing or future products or services and which are conceived, developed or
made by Executive while employed by the Company and its Subsidiaries ("Work
Product") belong to the Company and its Subsidiaries. Executive shall promptly
disclose such Work Product to the Board and, at the Company's expense, perform
all actions reasonably requested by the Board (whether during or after the
Employment Period) to establish and confirm such ownership (including, without
limitation, assignments, consents, powers of attorney and other instruments).
9. Non-Compete, Non-Solicitation.
(a) In further consideration of the compensation to be paid
to Executive hereunder, Executive acknowledges that in the course of his
employment with the Company and its Subsidiaries he has and shall become
familiar with the Company's trade secrets and with other Confidential
Information concerning the Company and its Subsidiaries and that his services
have been and shall be of special, unique and extraordinary value to the Company
and its Subsidiaries. Therefore, Executive agrees that until the later of (i)
such time as the Company ceases to make Severance Payments to Executive in
accordance with the terms and conditions of this Agreement (whether during the
Severance Period or the Optional Severance Period) and (ii) the second
anniversary of the end of the Employment Period if Executive resigns without
Good Reason or is terminated for Cause (the "Noncompete Period"), he shall not
directly or indirectly own any interest in, manage, control, participate in,
consult with, render services for, or in any manner engage in any business
competing with the businesses of the Company or its Subsidiaries, as such
businesses exist or are in process on the date of the termination or expiration
of the Employment Period, within any geographical area in which the Company or
its Subsidiaries engage at any time during the Employment Period in such
businesses. Nothing herein shall prohibit Executive from being a passive owner
of not more than 3% of the outstanding stock of any class of a corporation which
is publicly traded, so long as Executive has no active participation in the
business of such corporation.
(b) During the Noncompete Period, Executive shall not
directly or indirectly through another entity (i) induce or attempt to induce
any employee of the Company or any Subsidiary to leave the employ of the Company
or such Subsidiary, or in any way interfere with the relationship between the
Company or any Subsidiary and any employee thereof, (ii) hire any person who was
a management or supervisory employee of the Company or any Subsidiary at any
time during the Employment Period or (iii) induce or attempt to induce any
customer, supplier, licensee, licensor, franchisee or other business relation of
the Company or any Subsidiary to cease doing business with the Company or such
Subsidiary, or in any way interfere with the relationship between any such
customer, supplier, licensee or business relation and the Company or any
Subsidiary (including, without limitation, making any statement which is
intended or reasonably calculated to disparage or discredit the Company or its
Subsidiaries).
(c) If, at the time of enforcement of this Paragraph 9, a
court shall hold that the duration, scope or area restrictions stated herein are
unreasonable under circumstances then existing,
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14
the parties agree that the maximum duration, scope or area reasonable under such
circumstances shall be substituted for the stated duration, scope or area and
that the court shall be allowed to revise the restrictions contained herein to
cover the maximum period, scope and area permitted by law. Executive
acknowledges that the restrictions contained in this Paragraph 9 are reasonable
and that he has reviewed the provisions of this Agreement with his legal
counsel.
(d) In the event of the breach or a threatened breach by
Executive of any of the provisions of this Paragraph 9, the Company, in addition
and supplementary to other rights and remedies existing in its favor, shall be
entitled to specific performance and/or injunctive or other equitable relief
from a court of competent jurisdiction in order to enforce or prevent any
violations of the provisions hereof (without posting a bond or other security).
In addition, in the event of a breach or violation by Executive of this
Paragraph 9, the Noncompete Period shall be tolled until such breach or
violation has been duly cured.
10. Definitions.
"Beneficial Owner" means a beneficial owner within the meaning
of Rule 13d-3 under the Securities Exchange Act of 1934, as amended.
"Change in Control" means after an initial public offering of
the Company's common stock, (A) any Person, other than any Person who is a
Beneficial Owner of the Company's securities immediately following the Closing
(an "Existing Owner"), becomes the beneficial owner, directly or indirectly, of
securities of the Company representing the greater of (I) 25% or more of the
combined voting power of the Company's then outstanding securities and (II) the
greatest combined voting power of the Company's securities then held by any
Existing Owner; (B) during any two-year period, individuals who at the beginning
of such period constitute the Board (including, for this purpose, any director
who after the beginning of such period filled a vacancy on the Board caused by
the resignation, mandatory retirement, death, or disability of a director and
whose election or appointment was approved by a vote of at least two-thirds of
the directors then in office who were directors at the beginning of such period)
cease for any reason to constitute a majority thereof; (C) notwithstanding
clauses (A) or (E) of this paragraph, the Company consummates a merger or
consolidation of the Company with or into another corporation, the result of
which is that the Persons who were stockholders of the Company at the time of
the execution of the agreement to merge or consolidate own less than 80% of the
total equity of the corporation surviving or resulting from the merger or
consolidation or of a corporation owning, directly or indirectly, 100% of the
total equity of such surviving or resulting corporation; or (D) the sale in one
or a series of transactions of all or substantially all of the assets of the
Company; (E) any Person has commenced a tender or exchange offer, or entered
into an agreement or received an option to acquire beneficial ownership of 25%
or more of the total number of voting shares of the Company, unless the Board
has made a reasonable good-faith determination that such action does not
constitute and will not constitute a material change in the Persons having
control of the Company; or (F) there is a change of control in the Company of a
nature that would be required to be reported in response to Item 6(e) of
Schedule 14A
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15
of Regulation 14A promulgated under the Exchange Act other than in circumstances
specifically covered by clauses (A) through (E) above.
"Common Shares"means shares of Orius Corp.'s common stock, par
value $.01 per share.
"Executive Shares" will continue to be Executive Shares in the
hands of any holder other than Executive (except for the Company and the
Investor and except for transferees in a Public Sale), and except as otherwise
provided herein, each such other holder of Executive Shares will succeed to all
rights and obligations attributable to Executive as a holder of Executive Shares
hereunder. Executive Shares will also include Shares issued with respect to
Executive Shares by way of a Share distribution, Share split or other
recapitalization. Notwithstanding the foregoing, all Unvested Shares shall
remain Unvested Shares after any Transfer thereof.
"Investor Rights Agreement" means that certain agreement dated
the date hereof by and among Orius Corp. and those shareholders listed on the
signature pages attached thereto.
"Original Cost" means with respect to each Common Share
purchased hereunder, the amount paid with respect to each Common Share pursuant
to Section 4 above (as proportionately adjusted for all subsequent Common Share
splits, Common Share dividends and other recapitalizations).
"Person" means an individual, a partnership, a limited
liability company, a corporation, an association, a joint stock company, a
trust, a joint venture, an unincorporated organization and a governmental entity
or any department, agency or political subdivision thereof.
"Public Sale" means any sale pursuant to a registered public
offering under the Securities Act or any sale to the public pursuant to Rule 144
promulgated under the Securities Act effected through a broker, dealer or market
maker.
"Securities Act" means the Securities Act of 1933, as amended
from time to time.
"Subsidiary" means any corporation of which Holdings owns
securities having a majority of the ordinary voting power in electing the board
of directors directly or through one or more subsidiaries.
"Transfer" means to sell, transfer, assign, pledge or
otherwise dispose of (whether with or without consideration and whether
voluntarily or involuntarily or by operation of law).
11. Enforcement. If, at the time of enforcement of Section 7
or 9 of this Agreement, a court holds that the restrictions stated herein are
unreasonable under circumstances then existing, the parties hereto agree that
the maximum duration, scope or geographical area reasonable under such
circumstances shall be substituted for the stated period, scope or area and that
-15-
16
the court shall be allowed to revise the restrictions contained herein to cover
the maximum duration, scope and area permitted by law. Because Executive's
services are unique and because Executive has access to Confidential
Information, the parties hereto agree that money damages would be an inadequate
remedy for any breach of this Agreement. Therefore, in the event a breach or
threatened breach of this Agreement, the Company or its successors or assigns
may, in addition to other rights and remedies existing in their favor, apply to
any court of competent jurisdiction for specific performance and/or injunctive
or other relief in order to enforce, or prevent any violations of, the
provisions hereof (without posting a bond or other security).
12. Representations. Each of Executive and the Company hereby
represents and warrants to the other that (i) the execution, delivery and
performance of this Agreement by such party do not and shall not conflict with,
breach, violate or cause a default under any contract, agreement, instrument,
order, judgment or decree to which such party is a party or by which he or it is
bound, and (ii) upon the execution and delivery of this Agreement by each of
Executive and the Company, this Agreement shall be the valid and binding
obligation of such party, enforceable in accordance with its terms. Executive
further represents and warrants to the Company that he is not a party to or
bound by any employment agreement, noncompete agreement or confidentiality
agreement with any other person or entity other than the Prior Agreement.
Executive hereby acknowledges and represents that he has consulted with
independent legal counsel regarding his rights and obligations under this
Agreement and that he fully understands the terms and conditions contained
herein.
13. Survival. Paragraphs 3, 4, 6 and 7 through 22 shall
survive and continue in full force in accordance with their terms
notwithstanding the expiration or termination of the Employment Period.
14. Notices. Any notice provided for in this Agreement shall
be in writing and shall be either personally delivered, sent by reputable
overnight courier service or mailed by first class mail, return receipt
requested, to the recipient at the address below indicated:
Notices to Executive:
Xxxxxxx X. Xxxxxxxx
00000 Xxxxxxx Xxxxx
Xxxxx Xxxx Xxxxx, XX 00000
with a copy to:
Xxxxx & Xxxxxxx LLP
Columbia Square
000 Xxxxxxxxxx Xx., XX
Xxxxxxxxxx, X.X. 00000-0000
Attention: Xxxxxxx X. Xxxxxxx
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17
Notices to the Company:
Orius Corp.
0000 Xxxxx Xxx Xxxxx 000
Xxxx Xxxx Xxxxx, XX 00000
Attn: President
With a copy to:
Xxxxxx Xxxxx & Partners
000 Xxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxxxx X. Xxxxxxxxxx
and
Xxxxxxxx & Xxxxx
000 Xxxx Xxxxxxxx Xxxxx
Xxxxxxx, XX 00000
Attn: Xxxx X. Xxxxxxxxxxx
or such other address or to the attention of such other person as the recipient
party shall have specified by prior written notice to the sending party. Any
notice under this Agreement shall be deemed to have been given when so
delivered, sent or mailed.
15. Severability. Whenever possible, each provision of this
Agreement shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement 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 action in any other jurisdiction, but this Agreement
shall be reformed, construed and enforced in such jurisdiction as if such
invalid, illegal or unenforceable provision had never been contained herein.
16. Complete Agreement. This Agreement embodies the complete
agreement and understanding among the parties and supersedes and preempts any
prior understandings, agreements or representations by or among the parties,
written or oral, which may have related to the subject matter hereof in any way.
17. No Strict Construction. The language used in this
Agreement shall be deemed to be the language chosen by the parties hereto to
express their mutual intent, and no rule of strict construction shall be applied
against any party.
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18
18. Counterparts. This Agreement may be executed in separate
counterparts, each of which is deemed to be an original and all of which taken
together constitute one and the same agreement.
19. Successors and Assigns. This Agreement is intended to bind
and inure to the benefit of and be enforceable by Executive, the Company and
their respective heirs, successors and assigns, except that Executive may not
assign his rights or delegate his duties or obligations hereunder without the
prior written consent of the Company.
20. CHOICE OF LAW. ALL ISSUES AND QUESTIONS CONCERNING THE
CONSTRUCTION, VALIDITY, ENFORCEMENT AND INTERPRETATION OF THIS AGREEMENT AND THE
EXHIBITS AND SCHEDULES HERETO SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAWS OF THE STATE OF FLORIDA, WITHOUT GIVING EFFECT TO ANY CHOICE OF
LAW OR CONFLICT OF LAW RULES OR PROVISIONS (WHETHER OF THE STATE OF FLORIDA OR
ANY OTHER JURISDICTION) THAT WOULD CAUSE THE APPLICATION OF THE LAWS OF ANY
JURISDICTION OTHER THAN THE STATE OF FLORIDA.
21. Amendment and Waiver. The provisions of this Agreement may
be amended or waived only with the prior written consent of the Company (as
approved by the Board) and Executive, and no course of conduct or failure or
delay in enforcing the provisions of this Agreement shall affect the validity,
binding effect or enforceability of this Agreement.
22. Indemnification. Company hereby agrees to indemnify and
hold Executive harmless to the maximum extent permitted by law as designated in
the Company's Certificate of Incorporation, which provision shall not be amended
during the Employment Period without Executive's prior written consent.
* * * * *
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19
IN WITNESS WHEREOF, the parties hereto have executed this
Senior Management Agreement as of the date first written above.
ORIUS CORP.
By: /s/ XXXXXX X. XXXXXX
-------------------------------------
Its: Vice President
-------------------------------------
/s/ XXXXXXX X. XXXXXXXX
----------------------------------------
Xxxxxxx X. Xxxxxxxx
20
EXHIBIT A
[DATE]
ELECTION TO INCLUDE Shares IN GROSS
INCOME PURSUANT TO SECTION 83(b) OF THE
INTERNAL REVENUE CODE
The undersigned purchased shares of Common Stock, par value
$.01 per share (the "Shares"), of Orius Corp. (the "Company") on November___,
1999. Under certain circumstances, the Company has the right to repurchase
certain of the Shares at cost from the undersigned (or from the holder of the
Shares, if different from the undersigned) should the undersigned cease to be
employed by the Company's subsidiaries or upon certain other events. Hence, the
Shares are subject to a substantial risk of forfeiture and are non-transferable.
The undersigned desires to make an election to have the Shares taxed under the
provision of Code ss.83(b) at the time he purchased the Shares.
Therefore, pursuant to Code ss.83(b) and Treasury Regulation
ss.1.83-2 promulgated thereunder, the undersigned hereby makes an election, with
respect to the Shares (described below), to report as taxable income for
calendar year ____ the excess (if any) of the Shares' fair market value on
__________ over purchase price thereof.
The following information is supplied in accordance with
Treasury Regulation ss.1.83-2(e):
1. The name, address and social security number of the
undersigned:
Xxxxxxx X. Xxxxxxxx
00000 Xxxxxxx Xxxxx
Xxxxx Xxxx Xxxxx, XX 00000
SSN: [ ]
2. A description of the property with respect to which the
election is being made: ________ Common Shares of the Company.
3. The date on which the property was transferred: _________.
The taxable year for which such election is made: calendar ___.
4. The restrictions to which the property is subject: If
during the first four years after _________, the undersigned ceases to be
employed by the Company's subsidiaries, the unvested portion of the Shares will
be subject to repurchase by the Company at cost. 10% of the Shares become vested
on each of the first four anniversary dates of November____, 1999, and another
10%
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21
of the Shares become vested after each of the first five fiscal years during the
date of the employment period if certain performance criteria of the Company are
achieved.
5. The fair market value on _________ of the property with
respect to which the election is being made, determined without regard to any
lapse restrictions: $___ per Common Share.
6. The amount paid for such property: $___ per Common Share.
A copy of this election has been furnished to the Secretary of
the Company pursuant to Treasury Regulations ss.1.83-2(e)(7).
Dated: _____________________ ____________________________________
Xxxxxxx X. Xxxxxxxx
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22
EXHIBIT B
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 Employment
Agreement, dated as of _________, 1999 (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").
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23
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).
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
-5-
24
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.
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;
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25
(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 _______________ __, _____ TO
CONSIDER IT AND THE CHANGES MADE SINCE THE _______________ __, _____
VERSION OF THIS RELEASE ARE NOT MATERIAL AND WILL NOT RESTART THE
REQUIRED 21-DAY PERIOD;
(f) THE CHANGES TO THE AGREEMENT SINCE _______________ ___, _____ 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: ___________ __, ______ ______________________________
Xxxxxxx X. Xxxxxxxx
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26
EXHIBIT B
The Prior Agreement
-8-
