GENERAL RELEASE AND SEPARATION AGREEMENT
THIS
GENERAL RELEASE AND SEPARATION AGREEMENT
(“Agreement”) is made March 31, 2007 (the “Effective Date”) by and between Xxxx
Xxxxxxx (“Employee”) and Internap Network Services Corporation (“INTERNAP”), and
arises out of the termination of Employee’s employment.
WHEREAS,
Employee was employed by INTERNAP;
WHEREAS,
Employee’s employment with INTERNAP was terminated effective 3/31/07,
(“Termination Date”);
NOW,
THEREFORE,
for and
in consideration of the foregoing, the mutual promises and covenants set
forth
herein, and for other good and valuable consideration, the sufficiency and
receipt of which are hereby acknowledged, Employee and INTERNAP, intending
to be
legally bound, agree as follows:
1.
The
foregoing recitals are hereby made a part of this Agreement and are incorporated
herein by reference.
2.
(a) Employee
agrees that he voluntarily resigns his employment with INTERNAP effective
the
date that he signs this Agreement (the “End Date”). INTERNAP agrees that it has
accepted Employee’s resignation from employment effective that date. INTERNAP
further agrees that it will reflect Employee’s resignation in his personnel file
and other personnel records.
(b) Employee
acknowledges and agrees that he received all compensation (whether as deferred
compensation, bonuses, or otherwise), employment benefits (including, but
not
limited to, health insurance, dental insurance, life insurance, disability
insurance, 403(b) contributions, and profit-sharing payments), vacation pay,
sick pay, other paid leave, and any other alleged obligations relating to
Employee’s employment with INTERNAP through the End Date.
(c) Employee
will not knowingly reapply for employment with INTERNAP, nor will Employee
knowingly accept any employment or otherwise work for INTERNAP. Employee
also
will not accept any employment or assignment from an employer other than
INTERNAP that would place him on the premises of INTERNAP or otherwise require
him to perform services on the premises of INTERNAP. Employee agrees that
his
forbearance to seek future employment with INTERNAP is purely contractual
and is
in no way involuntary, discriminatory, retaliatory, or in violation of any
contract or policy of INTERNAP. If Employee applies for employment with
INTERNAP, INTERNAP is under no obligation to process or otherwise act upon
that
application.
3.
(a) As
consideration for Employee’s service to INTERNAP and for the promises made by
Employee in this Agreement, INTERNAP agrees to pay to Employee the sum of
Three
Hundred Thousand Dollars ($300,000.00). The parties agree that this payment
will
be made to Employee within seven (7) business days of the execution of this
Agreement by INTERNAP and Employee. We will attempt to wire these funds to
Xx.
Xxxxxxx’x personal bank. Employee understands and agrees that the payment and
covenants by INTERNAP referenced in this paragraph 3 are in consideration
for
his promises in this Agreement and that he otherwise is not entitled to this
or
any other payment for any reason on account of his separation from employment
with INTERNAP. The parties further understand and agree that the payment
and
promises referenced in this Paragraph 3(a) shall fully and completely extinguish
all obligations of INTERNAP to Employee, including, but not limited to,
severance pay, compensation (whether as deferred compensation, bonuses, or
otherwise), the provision of any employment benefits (including, but not
limited
to, health insurance, dental insurance, life insurance, disability insurance,
403(b) contributions, and profit-sharing payments), vacation pay, sick pay,
or
any other alleged obligations relating to Employee’s employment with INTERNAP
other than those specifically set forth in Paragraph 3(b).
(b) Employee
and INTERNAP agree that Employee shall have three months following the Effective
Date in which to exercise the INTERNAP stock options held by him and that
were
vested as of the Effective Date, after which such options shall
expire.
(c) Employee
may elect to continue, at Employee’s own cost, health insurance coverage under
INTERNAP’s healthcare coverage plan commencing on the Termination Date and
continuing thereafter for a period of eighteen (18) months, pursuant to Title
X
of the Consolidated Omnibus Budget Reconciliation Act of 1985 (COBRA). In
the
event Employee elects to continue such health insurance coverage, Employee
shall
remit to INTERNAP payment in full for such health insurance coverage on a
monthly basis, in advance, and Employee will be eligible to convert any life
insurance coverage to an individual plan.
4.
(a) In
consideration of the foregoing payments and covenants, Employee, for himself
and
for his heirs, legal representatives, and assigns, hereby unconditionally
and
absolutely releases, remises, acquits and forever discharges INTERNAP and
its
heirs, executors, administrators, legal and personal representatives; former
and/or current owners, partners, officers, directors, employees, residents,
shareholders, managers, agents, attorneys, predecessors, successors, assigns,
trustees, purchasers, principals, and privies; past, present, and future
parent,
subsidiary, and affiliated companies (both direct and indirect), divisions,
related trade names, and affiliated entities of any kind; insurers; and any
person or entity who may be jointly liable with INTERNAP or any of the aforesaid
persons or entities (hereinafter referred to as the “INTERNAP Releasees”) from
any and all claims, suits, personal remedies, debts, dues, demands, grievances,
sums of money, rights, damages, liabilities, proceedings, actions, and causes
of
action of any kind, nature, or character (whether known or unknown, whether
suspected or unsuspected, and whether at law, in equity, or otherwise), which
relate to and/or arise out of any fact or event whatsoever from the beginning
of
time to and including the Effective Date of this Agreement. The foregoing
release includes, but is not limited to, those rights and personal remedies
arising under: (a) Title VII of the Civil Rights Act of 1964, as amended;
(b)
the Civil Rights Act of 1991; (c) 42 U.S.C. § 1981; (d) the Age Discrimination
in Employment Act; (e) the Fair Labor Standards Act; (f) the Americans with
Disabilities Act of 1990, as amended; (g) the Rehabilitation Act of 1973,
as
amended; (h) any federal, state, or local handicap, disability, or
discrimination related act, regulation, ordinance, statute, or executive
order;
and (i) any ordinance or statute promulgated by any city, county, municipality,
or other state subdivision.
Furthermore,
this release also includes, but is not limited to, the following: (1) claims
for
retaliatory or wrongful discharge of any kind; (2) claims for unpaid or withheld
wages, severance pay, benefits, bonuses, and/or other compensation or benefits
of any kind; (3) claims for intentional or negligent infliction of emotional
or
mental distress or for outrageous conduct; (4) claims for breach of duty,
libel, slander, or tortious conduct of any kind; (5) claims for interference
with business relationships, contractual relationships, or employment
relationships of any kind; (6) claims for breach of an implied covenant of
good
faith and fair dealing; (7) claims for interference with and/or breach of
contract (whether express or implied, in fact or in law, oral or written);
(8)
claims for attorneys’ fees, costs, or expenses; (9) claims for personal remedies
from alleged discrimination of any kind; (10) claims based upon the creation,
maintenance, or subjection to a hostile or offensive work environment; (11)
claims for constructive discharge; (12) claims for personal remedies from
claims
of retaliation; and/or (13) any and all claims which Employee ever had or
has
arising as a result of or connected in any way with his employment with and/or
his subsequent separation from employment with INTERNAP. Employee agrees
never
to file a lawsuit to seek damages or other personal relief from INTERNAP
based
upon the claims being released under this Agreement.
(b) Employee
agrees never to file a lawsuit, claim, or cause of action seeking damages,
reinstatement, attorney fees or other personal relief against INTERNAP and/or
the INTERNAP Releasees based on the claims being released by him in this
Agreement. Notwithstanding this waiver of remedies, above, nothing in this
Agreement shall be construed to prohibit Employee from (1) filing a charge
with
the Equal Employment Opportunity Commission or (2) participating in any
investigation or proceeding conducted by the Equal Employment Opportunity
Commission, or (3) filing any charge or claim - including Worker’s Compensation
claims - not waiveable by law. The waiver of remedies above also does not
cover
any rights, claims or remedies, if any, that may arise after the date on
which
this Agreement is executed, and does not affect Employee’s right to challenge
the validity of this Agreement under the law.
5. (a) For
purposes of this Agreement, the term “Confidential Information” shall mean
information, without regard to form, relating to INTERNAP and its affiliates
and
their employees, customers, vendors and/or suppliers that derives economic
value, actual or potential, from not being known to others, including, but
not
limited to, business development strategies, potential projects and purchases,
information technology, research and development, production, services,
processes, equipment, policies, procedures, customer services, contracts
and
specific terms of contracts with and proposals to, customers, clients and
other
organizations with which INTERNAP does business or seeks to do business;
the
type, quantity and specifications of products purchased by or from customers
and/or by suppliers; lists and other information about current or prospective
clients, vendors or suppliers (including compilations of such information);
plans or strategies for sales, marketing, purchases, acquisitions, ventures,
or
other business development; sales and account records, prices and pricing
strategies/information, current and proposed advertising and promotional
programs, methods, systems, techniques, procedures, designs, formulae,
inventions and know-how, whether or not in writing; and includes information
disclosed to INTERNAP by third parties that INTERNAP is obligated to maintain
as
confidential information.
(b) For
purposes of this Agreement, the term “Trade Secret” shall mean information,
without regard to form, including, but not limited to, technical or
non-technical data, a formula, a pattern, a compilation, a program, a device,
a
method, a technique, a drawing, a process, financial data, financial plans,
product plans, or a list of actual or potential customers or suppliers which
is
not commonly known by or available to the public and which
information:
(1) |
derives
independent economic value, actual or potential, from not being
generally known to, and not being readily ascertainable by proper
means by, other persons who can obtain economic value from
its disclosure or use; and
|
(2) |
is
the subject of efforts that are reasonable under the circumstances
to
maintain its secrecy.
|
(c) To
the
extent that the above definitions contained in Paragraphs 5(a) and 5(b) are
inconsistent with the definitions of “Confidential Information” and “Trade
Secret” mandated under applicable law, the foregoing definitions shall be deemed
amended to the degree necessary to render them consistent with applicable
law.
(d) In
recognition of the need of INTERNAP Releasees to protect their legitimate
business interests, Employee hereby covenants and agrees that: (1) with regard
to each item that under Georgia law is a Trade Secret of INTERNAP Releasees,
at
all times during which such item remains a Trade Secret under Georgia law;
and
(2) with regard to each item under which Georgia law is INTERNAP Confidential
Information, for a period of two (2) years after the Effective Date of this
Agreement, Employee shall regard and treat each item constituting all or
any
portion of the Trade Secrets and Confidential Information as strictly
confidential and wholly owned by the INTERNAP Releasees, and will not, for
any
reason in any fashion, either directly or indirectly use, sell, lend, lease,
distribute, license, transfer, assign, show, disclose, disseminate, reproduce,
copy, or otherwise communicate any such item or information to any third
party,
for his/her own benefit or for any purpose other than in accordance with
the
express, written instructions of INTERNAP Releasees.
6.
Any
dispute concerning violation(s) of any provision in this Agreement shall
be
resolved by confidential arbitration to take place in Atlanta, Georgia. The
prevailing party in the arbitration proceedings shall recover all reasonable
attorneys’ fees incurred. Arbitration conducted pursuant to the Employment
Arbitration Rules and Procedures of the American Arbitration Association
shall
be the sole and exclusive remedy for enforcing a breach of any provision
of this
Agreement. Discovery available in accordance with the Federal Rules of Civil
Procedure shall be available in any arbitration proceeding between the parties.
Employee and INTERNAP acknowledge their understanding and agreement by
initialing below.
/s/
EK
/s/ DB
(a) Employee
agrees to fully cooperate with reasonable requests by INTERNAP regarding
any and
all matters associated with any investigations, claims or litigation involving
INTERNAP about which the Employee has knowledge or the ability to assist
INTERNAP in its defense for three (3) years following the date of this
Agreement. Employee’s cooperation in such matters will include answering
questions by INTERNAP regarding the subject of any such investigations, claims
or litigation, voluntarily participating in depositions, providing affidavits
and testimony if necessary, and assisting INTERNAP in responding to data
or
discovery requests. INTERNAP agrees to use every effort to ensure the time
periods in which Employee’s assistance is sought do not conflict with Employee’s
work or other business-related obligations. Employee agrees that any
participation in the above-referenced matters will be truthful and factual.
Employee further agrees that he will not be paid for his time associated
with
his participation in the matters if his time is less than ten (10) hours
in any
given month. If the time commitment exceeds this limit, Employee will be
compensated at the rate of $200 per hour. INTERNAP will reimburse Employee
for
all reasonable out of pocket expenses incurred in providing such
cooperation.
7.
This
Agreement shall not in any way be construed as an acknowledgement or admission
by INTERNAP that it has acted wrongfully with respect to Employee or to any
other person or that Employee has any rights whatsoever against INTERNAP.
INTERNAP specifically disclaims any liability to or wrongful acts against
Employee or any other person.
8.
Employee
expressly understands and agrees to maintain in strict confidence any
information disclosed in this Agreement and/or in negotiations leading to
this
Agreement, the facts and circumstances leading to this Agreement, the contents
of this Agreement, and the consideration for this Agreement. Employee shall
take
reasonable precautions to prevent disclosure of any term of this Agreement
and/or its negotiations to third persons. Accordingly, Employee acknowledges,
understands, and agrees that the terms of this Agreement, the facts and
circumstances leading to this Agreement, the contents of this Agreement,
and the
consideration for this Agreement are to be kept strictly confidential by
him and
shall not be disclosed, either orally or in writing, by him to any third
person,
except: (1) to the extent required by court order; (2) pursuant to inquiry
by the Internal Revenue Service; (3) pursuant to a lawfully issued subpoena,
provided that Employee, to the extent possible, provides INTERNAP with written
notice of the existence of such subpoena, at least five (5) calendar days
prior
to such disclosure and agrees not to contest any motion for protective order
or
motion to quash filed by INTERNAP; (4) on account of an action to enforce
the
terms of this Agreement or to redress a breach of any of the terms of this
Agreement; or (5) to Employee’s attorneys, accountants, insurers and tax
advisors who have a need to know such information, provided that such persons
agree to maintain the confidentiality of the information prior to Employee
making any disclosure.
9.
From
and
after the Effective Date of this Agreement, Employee will not provide any
disparaging information about INTERNAP or any of its current or former parties,
officers, directors, agents, employees, or representatives to any person
or
entity who is not a party to this Agreement nor will he request or direct
other
persons to do so, except to the extent required by: (a) a court order; (b)
a
lawfully issued subpoena, provided that Employee, to the extent possible,
provides INTERNAP with written notice of the existence of such subpoena at
least
five (5) calendar days prior to such disclosure and agrees not to contest
any
motion for protective order or motion to quash filed by INTERNAP; or (c)
otherwise by applicable law.
10.
Employee,
as evidenced by his signature below, represents that he does not possess
and
otherwise has no custody or control of any property of INTERNAP, including,
but
not limited to, keys, identification cards, access cards, credit cards,
telephone cards, parking permits, cellular telephones, pagers, business cards,
manuals, and/or business documents of INTERNAP. Employee further agrees that,
should he discover that he does possess or otherwise has custody or control
of
any property of INTERNAP, he will return, via hand-delivery or overnight
delivery, such property to: Xxxx Xxxxxxx, Internap Network Services Corporation,
000 Xxxxxxxx Xxxxxx, Xxxxx X-000, Xxxxxxx, XX 00000, within ten (10) days
of the
discovery of the existence of such property of INTERNAP.
11. INTERNAP
makes no representations, warranties or agreements in this Agreement or
otherwise concerning any tax treatment of the payment set forth above in
Paragraph 3. Employee understands that he may receive a Form W-2 or Form
1099
and any state or local equivalents in connection with the payment set forth
in
Paragraph 3 and agrees that he will be solely responsible for the payment
of any
and all taxes, assessments, or other financial obligations, whether federal,
state, or local, which are legally required to be paid in connection with
the
payment set forth in Paragraph 3 of this Agreement. Employee further understands
and agrees that, if the Internal Revenue Service or any other federal, state,
or
local governmental agency determines that some or all of the payment set
forth
above in Paragraph 3 is subject to federal, state, and/or local taxes and
if, as
a result of Employee’s failure to report the payments set forth in Paragraph 3,
pay the taxes required on the payment set forth in Paragraph 3, or any other
action and/or inaction on the part of Employee, the Internal Revenue Service
or
any other federal, state, or local governmental agency imposes upon or assesses
against INTERNAP or its insurers any tax obligations or responsibilities
due in
connection with the payment set forth in Paragraph 3(a) of the Agreement
and/or
assesses interest or imposes a fine and/or a penalty against INTERNAP and/or
any
of its insurers, then, in such event, Employee will indemnify, reimburse
and
hold harmless INTERNAP and/or all of its insurers, as the case may be, for
such
sums incurred by INTERNAP and/or its insurers, as the case may be, in connection
with such assessed taxes and/or interest or imposed fine and/or penalty within
ten (10) calendar days of being mailed notice of the existence of such
assessment or imposition.
12. Any
other
benefits not mentioned in this Agreement that Employee may be entitled to,
including, but not limited to, his rights to health insurance continuation
under
Georgia law, shall be provided to Employee in accordance with the underlying
plan or document governing such benefits and/or applicable law.
13. (a) Employee
acknowledges and agrees that, before signing this Agreement, he was advised
and
is hereby advised in writing by INTERNAP to review it and consult with an
attorney of his choosing and that, to the extent Employee desired, he has
availed himself of these opportunities.
(b) Employee
represents and agrees that he has carefully read and fully understands all
of
the provisions of this Agreement. Employee understands the final and binding
nature of the release and waiver of his rights specified herein, and he
knowingly and voluntarily enters into this Agreement with the intent to be
bound
by it, and without any coercion or duress from any person or source
whatsoever.
14. This
Agreement represents and contains the entire agreement and understanding
between
the parties with respect to the terms and conditions of this Agreement, and
supersedes any and all prior and contemporaneous written and oral agreements,
understandings, representations, inducements, promises, warranties and
conditions between the parties with respect to the terms and conditions of
this
Agreement. No other agreement, understanding, representation, inducement,
promise, warranty or condition of any kind with respect to the terms and
conditions of this Agreement shall be relied upon by the parties unless
expressly incorporated herein.
15. This
Agreement may not be amended or modified except by an agreement in writing
signed by all of the parties hereto.
16. Any
failure of any party on one or more occasions to enforce or require the strict
keeping and performance of any of the terms and conditions of this Agreement
shall not constitute a waiver of such terms and conditions of this Agreement,
shall not constitute a waiver of such term or condition at any future time,
and
shall not prevent any party from insisting on the strict keeping and performance
of such terms and conditions at a later time.
17. The
provisions of this Agreement shall be deemed severable, and any invalidity
or
unenforceability of any one or more of its provisions shall not affect the
validity or enforceability of the other provisions hereof.
18. Each
party to this Agreement agrees and acknowledges that no presumption, inference,
or conclusion of any kind shall be made or drawn against the drafter or draft(s)
of this Agreement. Each party to this Agreement also agrees and acknowledges
that he/it has contributed to the final version of this Agreement through
comments and negotiations.
19. This
Agreement shall be binding upon and shall inure to the benefit of the parties
and each of their respective heirs, personal and legal representatives,
purchasers, executors, administrators, successors and assigns. Employee may
not
assign any rights or obligations hereunder without INTERNAP’s prior written
consent.
20. It
is
understood and agreed that the parties to this Agreement do hereby declare,
represent, acknowledge and warrant that:
(a) IN
EXECUTING THIS AGREEMENT, THE PARTIES HERETO RELY UPON THEIR OWN JUDGMENT,
BELIEF AND KNOWLEDGE AS TO THE NATURE, EXTENT AND EFFECT OF THE POTENTIAL
LIABILITY OF THE PARTIES AND OF THE LIABILITIES, WHETHER POTENTIAL OR OTHERWISE,
WHICH ARE BEING RELEASED BY THIS AGREEMENT AND THE PARTIES FURTHER ACKNOWLEDGE
AND AGREE THAT THEY ARE ENTERING INTO THIS AGREEMENT AND SIGNING THE SAME
VOLUNTARILY AND KNOWINGLY AND WITHOUT ANY DURESS, COERCION, INTIMIDATION
OR
FORCE; and
(b) The
terms
of this Agreement are contractual and not mere recitals; and,
(c) This
Agreement is deemed to have been entered into in the State of Georgia and
shall
be construed and interpreted at all times and in all respects in accordance
with
the laws of the State of Georgia without regard to the principles of conflicts
of laws, and jurisdiction and venue for any action relating in any manner
to
this Agreement shall be in a court of competent jurisdiction in the State
of
Georgia.
21. This
Agreement may be executed in any number of counterparts, each of which shall
be
deemed to be an original, and all of which shall be deemed as being the same
instrument.
22. The
persons executing this Agreement do hereby declare, represent, acknowledge,
warrant and agree that such person is duly and fully authorized to execute
this
Agreement so as to legally bind Employee and INTERNAP.
IN
WITNESS WHEREOF,
the
parties have executed this General Release and Separation Agreement as of
the
date indicated below:
______________________________________
WITNESS
|
/s/ Xxxx
Xxxxxxx
XXXX XXXXXXX
Date: March 30, 2007
|
______________________________________
WITNESS
|
INTERNAP NETWORK SERVICES
CORPORATION
/s/ Xxxx
Xxxxxxx
By: Xxxx Xxxxxxx
Title: Vice President, Human Resources
Date:March 30, 2007
|