Exhibit 10.1
MUTUAL TERMINATION AND RELEASE
AGREEMENT
THIS MUTUAL TERMINATION AND
RELEASE AGREEMENT , dated
as of May 4, 2005 (the “Effective Date”), by and
between Consolidated Edison, Inc., a New York corporation
(“CEI”), and FiberNet Telecom Group, Inc., a Delaware
corporation (“FiberNet”) (CEI and FiberNet are
sometimes referred to herein individually as a “Party”
and collectively as the “Parties”).
WHEREAS, the Parties entered into that certain Stock
Purchase Agreement dated as of December 10, 2004 (as clarified by
that certain letter agreement dated as of January 13, 2005 and
together with the schedules and any and all revised or updated
schedules to such Stock Purchase Agreement as well as the
“Company Employee List,” the “Contracts
List,” the “Insurance and Bond List,” the
“Performance Statistics Charts” and the “Stock
Options List” referenced in and/or furnished pursuant to such
Stock Purchase Agreement and any and all revisions or updates
thereto, the “Agreement”); and
WHEREAS, upon the terms hereof, each Party desires to
terminate the Agreement and release the other Party from, and waive
as against the other Party, any and all Claims (as defined below)
arising from the Agreement.
NOW THEREFORE,
in consideration of the mutual
promises contained herein and of other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, the Parties, intending to be bound hereby, agree as
follows:
1. The Agreement and all of the respective rights
and obligations of the Parties thereunder are hereby terminated by
mutual consent of the Parties effective as the Effective
Date.
2. CEI hereby irrevocably and unconditionally
releases and forever discharges FiberNet, its subsidiaries and
affiliates and the directors, trustees, officers, employees,
shareholders, and representatives (including, without limitation,
financial advisors and legal advisors) of each of FiberNet, its
subsidiaries and affiliates (collectively, the “FiberNet
Releasees”) from, waives as against the FiberNet Releasees,
and covenants not to directly or indirectly assert, prosecute,
institute, fund or cause to be asserted, prosecuted, instituted or
funded against any FiberNet Releasee, any and all claims, suits,
proceedings, actions, causes of action, losses, damages,
obligations, liabilities, costs and expenses whatsoever
(collectively, “Claims”) arising from the Agreement,
the transactions contemplated thereby, the auction process leading
to the Agreement, the negotiation of the Agreement, and/or the
performance or non-performance of the Agreement, regardless of
whether such Claims are based on contract, warranty, tort, or
otherwise; provided , however , that the foregoing
release, discharge, waiver and covenant does not pertain to or
affect that certain confidentiality agreement dated February 17,
2004 between FiberNet and CEI (the
“Confidentiality
Agreement”), which Confidentiality
Agreement and any and all rights and obligations thereunder shall
survive the execution and delivery of this Mutual Termination And
Release Agreement and continue in full force and effect in
accordance with the terms of the Confidentiality Agreement and,
provided further , that, notwithstanding anything to
the contrary in this Mutual Termination And Release Agreement,
FiberNet remains responsible for any and all payments that may be
or become due or owing to Deloitte & Touche LLP and/or its
subsidiaries or affiliates (collectively, “Deloitte”)
for the performance by Deloitte of any services relating to the
Company and/or any of the Subsidiaries (as such initially
capitalized terms are defined in the Agreement) or the books or
records of the Company or any of the Subsidiaries in connection
with the Agreement, the transactions contemplated thereby, the
auction process leading to the Agreement, the negotiation of the
Agreement, and/or the performance or non-performance of the
Agreement, and the foregoing release, discharge, waiver and
covenant does not pertain to or affect such responsibility of
FiberNet.
3. FiberNet hereby irrevocably and unconditionally
releases and forever discharges CEI, its subsidiaries and
affiliates and the directors, trustees, officers, employees,
shareholders and representatives (including, without limitation,
financial advisors and legal advisors) of each of CEI, its
subsidiaries and affiliates (collectively, the “CEI
Releasees”) from, waives as against the CEI Releasees, and
covenants not to directly or indirectly assert, prosecute,
institute, fund or cause to be asserted, prosecuted, instituted or
funded against any CEI Releasee, any and all Claims arising from
the Agreement, the transactions contemplated thereby, the auction
process leading to the Agreement, the negotiation of the Agreement,
and/or the performance or non-performance of the Agreement,
regardless of whether such Claims are based on contract, warranty,
tort, or otherwise; provided , however , that the
foregoing release, discharge, w
