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EXHIBIT 10.5.1
AGREEMENT AND GENERAL RELEASE
This Separation Agreement and General Release (hereinafter "Agreement")
is made and entered into by and between Allied Riser Communications Corporation
("ARCC") and Allied Riser Operations Corporation ("AROC") (which may be
collectively referred to as "the Company"), and Mr. Xxxxx Xxxxxxxx (hereinafter
"Xx. Xxxxxxxx").
1. PRELIMINARY STATEMENT. The intent of this Agreement is to
mutually, amicably and finally resolve and compromise all
issues and claims related to the employment of Xx. Xxxxxxxx
with the Company and the separation of Xx. Xxxxxxxx from
such employment, including (but not limited to) those
arising from the Employment Agreement between Xx. Xxxxxxxx
and the Company dated July 15, 1997, as amended by the
Letter Agreement dated September 19, 2000 ("Employment
Agreement"), the terms of which are incorporated herein by
reference. This agreement shall not in any way be construed
as an admission by either party that such party has acted
wrongfully with respect to the other party or any other
person.
2. RESIGNATION OF XX. XXXXXXXX AS DIRECTOR, OFFICER AND
EMPLOYEE. The parties agree that effective October 13,
2000, Xx. Xxxxxxxx resigns as a director, officer and
employee of the Company and its affiliates and
subsidiaries.
3. POST-TERMINATION BENEFITS. In consideration for Xx.
Xxxxxxxx'x releases, waivers and covenants contained in
this Agreement, and in lieu of any and all other monies,
payments, or other rights to which Xx. Xxxxxxxx may claim
entitlement, including any bonus for 2000, the Company
agrees: (a) to pay Xx. Xxxxxxxx a severance amount of
$600,000, minus applicable deductions, (b) to vest Xx.
Xxxxxxxx in all shares of Restricted Shares previously
purchased by him and all Stock Options in which he was not
vested prior to the termination of his employment (leaving
him with 623,737 total vested Restricted Shares and 400,000
total vested Stock Options), subject to the provisions of
the Subscription Agreement between Xx. Xxxxxxxx and RCH
Holdings, Inc. ("Subscription Agreement"), and other
applicable agreements relating to his receipt of Restricted
Shares and Stock Options, each of which is incorporated
herein by reference, (c) to reimburse any expenses incurred
by Xx. Xxxxxxxx related to Company business on or before
November 13, 2000.
4. MUTUAL RELEASE, DISCHARGE, WAIVER AND COVENANT NOT TO XXX.
The Company and Xx. Xxxxxxxx, on behalf of themselves and
anyone claiming for them, including without limitation
spouses, heirs, executors, administrators, children,
assigns, parent companies, and affiliates, fully release,
discharge and covenant not to xxx the other, their current
and former officers, directors, shareholders, employees,
attorneys, agents, subsidiaries, affiliates, related
organizations,
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executors, estates, successors and assigns with respect to
and from, any claims and demands, whether known or unknown
or contingent or absolute, that either has, may have or
claims to have prior to the date of signature of this
Agreement, or as a result of the termination of Xx.
Xxxxxxxx'x employment by the Company or any of its current
or former affiliated organizations, divisions or
operational subdivisions.
This release, discharge, waiver and covenant not to xxx
includes, but is not limited to, all claims and any
obligations or causes of action arising from such claims
which could have been raised under common law, including
wrongful or retaliatory discharge, breach of contract,
fraud, misrepresentation, breach of fiduciary duty,
promissory estoppel and any action arising in tort
including libel, slander, defamation or intentional
infliction of emotional distress, and claims under any
statute including Title VII of the Civil Rights Act of
1964, as amended, 42 U.S.C. Section 2000e, et seq., the
Civil Rights Acts of 1886 and 1871, 42 U.S.C. Section 1981,
et seq., the National Labor Relations Act, 29 U.S.C.
Section 151, et seq., the Age Discrimination in Employment
Act, 29 U.S.C. Section 621, et seq., as amended, including
the Older Workers Benefit Protection Act, the Fair Labor
Standards Act, 29 U.S.C. Section 201, et seq., the Employee
Retirement Income Security Act, 29 U.S.C. Section 1001, et
seq., the Americans With Disabilities Act and any other
federal, state or municipal law or ordinance relating to
employment, benefits or pay whether express or implied or
in contract law or tort.
5. RETURN OF THE COMPANY'S PROPERTY AND PRESERVATION OF
CONFIDENTIALITY. Xx. Xxxxxxxx shall return to the Company
all notes, reports, sketches, plans, books, keys,
unpublished memoranda or other documents or property
("Company property") which were created, developed and
generated by Xx. Xxxxxxxx during his employment which are
related to the Company's business, whether or not
containing or relating to confidential information.
6. CONFIDENTIALITY AGREEMENT. It is the express intent of the
parties that the terms and conditions of this Agreement
shall be kept confidential except as set out in this
Agreement. The parties agree that Xx. Xxxxxxxx may disclose
the terms of this Agreement only to his spouse, his
attorneys, and to his accountants or appropriate
authorities for tax purposes. The parties also agree that
the Company may disclose the terms of this Agreement to its
officers, directors, attorneys and to those employees who
are necessary to carry out the terms of this Agreement and
to the public or to government agencies to the extent
required by law.
7. NONDISPARAGEMENT. The parties agree that neither Xx.
Xxxxxxxx nor the Company will engage in any conduct or take
any action, written or oral, that will reflect negatively
on or harm the business interest of the other party. The
Company will not take any action to interfere or prevent
Xx. Xxxxxxxx from obtaining new employment.
8. DISPUTE RESOLUTION. In the event any controversy or dispute
arises in connection with the validity, construction,
application, enforcement or breach of this
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Agreement, any such controversy or dispute shall be
submitted to final and binding arbitration pursuant to the
commercial arbitration rules of the American Arbitration
Association and the United States Arbitration Act and the
parties hereto expressly waive their rights, if any, to
have any such matters heard by a court or a jury, or
administrative agency, whether state or federal. The
arbitrator shall require the losing party to reimburse the
prevailing party for reasonable attorneys' fees and costs
incurred in connection with the arbitration. The losing
party shall also be required to pay the arbitrator's fees
for said arbitration. Provided, however, that nothing
contained in this Section 8 shall preclude the Company from
seeking temporary or permanent relief to enjoin Xx.
Xxxxxxxx'x actual or threatened violation of Sections 5 and
6 of this Agreement, Sections 4 and 5 of the Employment
Agreement, and Section 6 of and Exhibit B to the
Subscription Agreement, or of statutory or common law
rights and obligations concerning the subject matter of any
such provisions.
9. SEVERABILITY. The terms and provisions of this Agreement
shall be deemed separable, so that if any term or provision
is deemed to be invalid or unenforceable, such term or
provision shall be deemed deleted or modified so as to be
valid and enforceable to the full extent permitted by
applicable law.
10. GOVERNING LAW. This Agreement shall be construed in
accordance with laws governing contracts made and to be
performed in the State of Texas.
11. SUCCESSORS AND ASSIGNS. This Agreement shall inure to the
benefit of and may be enforced by the parties to this
Agreement and shall be binding upon Xx. Xxxxxxxx, his
executors, administrators, legatees, or any other successor
in interest and upon ARCC, AROC, their successors and any
assignee or transferee of or successor to all or
substantially all of the business or assets of AROC and may
not be amended, in whole or in part, except in writing
signed by Xx. Xxxxxxxx and an authorized agent of ARCC and
AROC.
12. KNOWING AND VOLUNTARY. Xx. Xxxxxxxx also agrees that:
a. He enters into this Agreement knowingly and
voluntarily;
b. He has read and understands this Agreement in its
entirety;
c. He has been advised and directed to seek legal
counsel with respect to the terms of this Agreement
before executing it;
d. His execution of this Agreement has not been forced
or coerced by any employee or agent of the Company
in any way;
e. He was provided the opportunity to take 21 calendar
days after receipt of this Agreement to consider its
terms before he executed it;
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f. That the consideration provided constitute
consideration greater than that to which he is
otherwise entitled at termination;
g. That if either Party breaches this Agreement by
filing a legal action against the other contrary to
any release set forth in Paragraph 4 the breaching
Party will reimburse the other for costs and
reasonable attorneys' fees incurred in defending
such action. Further, if Xx. Xxxxxxxx breaches this
Agreement by filing a legal action contrary to any
release set forth in Paragraph 4, he must first
return the separation payments he has received
pursuant to Paragraph 3 of this Agreement and he
will not be entitled to any further separation
payments under this Agreement. Nothing contained in
this Paragraph 12 shall be construed to prevent the
enforcement of the terms of this Agreement pursuant
to Paragraph 8.
13. REVOCATION. For a period of seven (7) days following the
execution of this Agreement, Xx. Xxxxxxxx may revoke this
Agreement and this Agreement shall not become effective or
enforceable until the revocation period expires. Revocation
can be made by delivering written notice to Xx. Xxxxxxx
Xxxxxx, AROC's Vice President and General Counsel, 0000
Xxxxxxx Xxxxxx, Xxxxx 000, Xxxxxx, Xxxxx 00000. For this
revocation to be effective, written notice must be received
by Xx. Xxxxxx no later than the close of business on the
seventh (7th) day after the signing of this Agreement. If
Xx. Xxxxxxxx revokes this Agreement, it shall not be
effective or enforceable and Xx. Xxxxxxxx will not receive
the benefits described in Paragraph 3.
14. ENTIRE AGREEMENT. The terms of this Agreement constitute
the entire understanding and agreement of the parties on
the subjects covered, and may not be modified except in
writing signed by both parties. The parties agree, however,
that except as expressly set forth in this Agreement, the
terms of this Agreement do not modify any continuing
obligations which Xx. Xxxxxxxx may owe ARCC or AROC and its
affiliates and subsidiaries under existing agreements with
the Company or its affiliates or subsidiaries, including
(but not limited to) obligations under Sections 4 and 5 of
the Employment Agreement and Section 6 of and Exhibit B to
the Subscription Agreement.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
indicated below.
/s/ Xxxxx Xxxxxxxx ALLIED RISER COMMUNICATIONS
------------------------------ CORPORATION
Xxxxx Xxxxxxxx
Date: November 16, 2000 By: /s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
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Title: Vice President
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Date: 11/16/00
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ALLIED RISER OPERATIONS CORPORATION
By: /s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
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Title: Vice President
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Date: 11/16/00
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