SEPARATION AGREEMENT AND FULL RELEASE OF ALL CLAIMS
EMPLOYEE: XXXXXXX X. XXXXX
DATE OF HIRE: JANUARY 13, 2003
DATE OF TERMINATION: AUGUST 5, 2005
COMPLETION DEADLINE: SEPTEMBER 21, 2005
THIS SEPARATION AGREEMENT AND FULL RELEASE OF ALL CLAIMS (hereinafter "the
Agreement") is entered into by and among Interland, Inc. ("Employer" or "the
Company"), and the employee identified above ("Employee").
BACKGROUND
Employee and the Company are terminating their employment relationship and
desire to settle fully and finally all differences between them that may arise
out of or relate to Employee's employment with the Company, the Employment
Agreement between the parties dated January 13, 2003, the Confidentiality,
Invention Assignment and Non-Competition Agreement between the parties dated
January 13, 2003, and all other claims Employee has or may have through the
Effective Date.
NOW, THEREFORE, in consideration of this recital, the mutual agreements
contained herein and other good and valuable consideration, the receipt,
adequacy and sufficiency of which is hereby acknowledged, the parties to this
Agreement hereby agree, promise and covenant as to each of the following:
1. Capacity to Execute. Each of the parties represents and warrants that
she/he or it is legally viable and competent to enter into this Agreement, is
relying on independent judgment and the advice of legal counsel and has not been
influenced, pressured or coerced to any extent whatsoever in making this
Agreement by any representations or statements made by the Company and/or any
person or persons representing the Company, and that the individuals executing
this Agreement on her/his or its behalf are authorized to do so. Each of the
parties further represents and warrants that she/he or it has not sold,
assigned, transferred, conveyed or otherwise disposed of all or any part of the
claims released hereunder, whether known or unknown.
2. Specific Consideration Provided to Employee.
(a) In exchange for the release provided hereunder and other good and
valuable consideration, upon Employee's execution and delivery of this Agreement
to Company on or before the Completion Deadline, Employee shall receive a single
lump-sump payment of ONE HUNDRED THOUSAND DOLLARS ($100,000.00) following the
last day of her/his employment with the Company, less all legally required
deductions and withholdings, which shall be paid in accordance with the
Company's standard payroll practices and policies.
(b) The severance obligations set forth in this Section are the total
payment and severance obligations under this Agreement and the Employment
Agreement between the parties dated January 13, 2003 ("Employment Agreement"),
which represent payments and obligations that Employee would not otherwise be
entitled to receive from the Company. Accordingly, Employee understands and
warrants that no further amount is or shall be due or claimed to be due from the
Company and/or from any other person or entity released in Section 3 below with
respect to any claim or claims released in Section 3 below, pursuant to the
Employment Agreement or the Confidentiality, Invention Assignment and
Non-Competition Agreement between the parties dated January 13, 2003, including,
but not limited to, any and all claims for attorneys' fees and the costs of
litigation that she/he may have under any federal, state or local law, common
law or in equity.
(c) Employee agrees to be responsible for, and to pay in a timely manner,
all federal, state and local taxes that may be due on all payments hereunder,
and she/he further agrees to indemnify and hold harmless the Company from any
and all costs and expenses that it may incur in the future if any federal,
state, or local government agency or any other person or entity asserts that any
withholding, taxes, or other amounts should have been paid by the Company in
connection with this payment, and such indemnification shall include, but not be
limited to, any taxes, interest, penalties, and reasonable attorneys' fees
incurred by the Company in connection therewith.
(d) Employee agrees that he shall fully cooperate with Employer in any and
all investigations, inquiries or litigation whether in any judicial,
administrative, or public, quasi-public or private forum, in which Employer is
involved, whether or not Employee is a defendant in such investigations,
inquiries, proceedings or litigation. Employee shall provide such truthful
testimony, background information, and other support and cooperation as Employer
may reasonably request.
3. Full Release of all Claims by Employee. In consideration of the
concessions provided for in Section 2 and other good and valuable consideration,
the receipt, adequacy, and sufficiency of which is hereby acknowledged, Employee
and her/his heirs, executors, administrators, agents, assigns, receivers,
attorneys, servants, legal representatives, predecessors and successors in
interest, regardless of form, trustees in bankruptcy or otherwise, wards, and
any other representative or entity acting on her/his or their behalf, pursuant
to, or by virtue of the rights of any of them, do hereby now and forever
unconditionally release, discharge, acquit and hold harmless the Company and any
parent, subsidiary or related companies, and any and all of their employees,
agents, administrators, assigns, receivers, attorneys, servants, legal
representatives, affiliates, insurers, predecessors and successors in interest,
regardless of form, trustees in bankruptcy or otherwise,and any other
representative or entity acting on its or their behalf, from any and all claims,
rights, demands, actions, suits, damages, losses, expenses, liabilities,
indebtedness, and causes of action, of whatever kind or nature that existed from
the beginning of time through the Effective Date, regardless of whether known or
unknown, and regardless of whether asserted by Employee to date, including, but
not limited to, all claims for or relating to assault, battery, negligence,
negligent hiring, negligent retention, negligent supervision, negligent
training, negligent or intentional infliction of emotional distress, false
imprisonment, defamation (whether libel or slander), personal injury, bodily
injury, bad faith, pain and suffering, medical expenses, wage and hour, lost
2
income and earnings (including, but not limited to, back pay, front pay and any
other form of present or future income, benefits and/or earnings), equitable
reinstatement, breach of any express or implied contract, breach of the covenant
of good faith and fair dealing, workers' compensation, wrongful termination,
wrongful demotion, wrongful failure to promote, wrongful deprivation of a career
opportunity, discrimination (including disparate treatment and disparate
impact), hostile work environment, quid pro quo sexual harassment, retaliation,
any request to submit to a drug or polygraph test, and/or whistleblowing,
whether said claim(s) are brought pursuant to Title VII of the Civil Rights Act
of 1964, the Civil Rights Act of 1991, 42 U.S.C. ss. 1981, the Employee
Retirement Income Security Act, the Equal Pay Act, the Pregnancy Discrimination
Act, the Fair Labor Standards Act, the Age Discrimination in Employment Act, the
Americans with Disabilities Act, the Family and Medical Leave Act or any other
constitutional, federal, regulatory, state or local law, or under the common law
or in equity. Employee further understands and warrants that this Agreement
shall operate as a fully binding and complete resolution of all claims as to the
parties to this Agreement and all parties represented by or claiming through
such parties, and that she/he shall not be able to seek any monies for any
claim, whether known or unknown, against any of the persons or entities released
hereunder other than as provided in Section 2.
4. Covenant Not-to-Xxx. Employee covenants and agrees not to file or
initiate a lawsuit against the Company in regard to any claims, demands, causes
of action, suits, damages, losses and expenses, arising from acts or omissions
of the Company made by or before the Effective Date, and Employee will ask no
other person or entity to initiate such a lawsuit on her/his behalf. If Employee
breaches this covenant and agreement, Employee must immediately repay and refund
to the Company all payments she/he received pursuant to Section 2, and Employee
shall also indemnify and hold harmless the Company, any related companies, and
any of their officers, owners, directors, employees and agents from any and all
costs incurred by any and all of them, including their reasonable attorneys'
fees, in defending against any such lawsuit.
5. No Proceedings Initiated. Employee represents and warrants that neither
she/he nor anyone acting on her/his behalf has filed or initiated any charge or
claim against the Company in any administrative or judicial proceeding.
6. Return of Company Property. Employee further promises, represents and
warrants that she/he has returned or will return to the Company, upon the
execution of this Agreement: (a) all property of the Company, including, but not
limited to, any and all files, records, credit cards, keys, identification
cards/badges, computer access codes, computer programs, instruction manuals,
equipment (including computers) and business plans; (b) any other property which
Employee prepared or helped to prepare in connection with Employee's employment
with the Company; and (c) all documents, including logs or diaries, all tangible
materials, including audio and video tapes, all intangible materials (including
computer files), and any and all copies or duplicates of any such tangible or
intangible materials, including any duplicates, copies, or transcriptions made
of audio or video tapes, whether in handwriting or typewritten, that are in the
possession, custody or control of Employee or her/his attorneys, agents, family
3
members, or other representatives, which are alleged to support in any way any
of the claims Employee has released under this Agreement, including but not
limited to, all audio and videotapes involving any officer, director,
shareholder, executive, manager, employee, agent, representative or attorney of
the Company.
7. No Voluntary Assistance. Employee hereby covenants and agrees that
she/he will not voluntarily assist, support, or cooperate with, directly or
indirectly, any entity or person alleging or pursuing any claim, administrative
charge, or cause of action against the Company, including without limitation by
providing testimony or other information, audio or video recordings, or
documents, except under compulsion of law. If compelled to testify, nothing
contained herein shall in any way inhibit or interfere with Employee providing
completely truthful testimony. Nor shall anything herein prevent Employee's full
cooperation with any investigation or other proceeding by the EEOC or any other
federal, state or local governmental agency.
8. Attorneys' Fees and Costs. The parties to this Agreement, individually
and collectively, shall be responsible for their own attorneys' fees and costs,
and for extinguishing any attorneys' liens filed by their counsel of record.
Employee understands and agrees that the payments contemplated in Section 2
include and encompass any and all claims with respect to attorneys' fees, costs,
and expenses for and by any and all attorneys who have represented her/him, with
whom she/he has consulted or who have done anything in connection with the
subject matter of this Agreement or any of the claims being released hereunder.
9. No Admission of Liability. The parties agree and acknowledge that this
Agreement is a full and complete compromise of the matters released herein
between the parties hereto; that neither the releases nor the negotiations for
this Agreement and the settlement embodied herein, including all statements or
communications made to date, shall be considered admissions by them.
10. Confidentiality Agreement.
(a) Subject to the limited exceptions set forth in Sections 10(b) and 10(c)
below, the parties to this Agreement, individually and collectively, agree that
all of the terms, conditions, and provisions of this Agreement, including the
amount of consideration paid by the Company are to remain strictly and
absolutely confidential. The parties, individually and collectively, therefore
specifically agree not to disclose any such terms, conditions, provisions,
allegations or information to any third party or entity for any purpose other
than as provided in Sections 10(b) and 10(c).
(b) If a subpoena is served upon Employee requiring the disclosure of any
such confidential information protected by Section 10(a), Employee agrees to
notify the Company as provided in Section 22, immediately upon service of the
subpoena and before responding to the subpoena.
(c) The parties, individually or collectively, may disclose information
protected by Section 10(a) to the following persons and under the following
circumstances. Both parties may disclose information protected by Section10(a)
to their accountants, financial advisors, tax advisors and attorneys, and the
Internal Revenue Service. The Company also may disclose the information
4
protected by Section10(a) to its management employees and members of its Board
of Directors, to any governmental regulatory agency or in any required filings
with any regulatory agency, or as required under any state or federal law. In
the event of any such disclosure to any accountant, financial advisor, tax
advisor, or attorney, however, the party who discloses such information shall
make such persons aware of the confidentiality provisions of this Agreement and
shall enter into a confidentiality agreement with that person to ensure that
information relating to this settlement remain confidential, and shall direct
such persons to respond to any inquiries regarding the disposition of the
dispute as provided in Section 10(a).
(d) Employee understands and warrants that this confidentiality provision
is a material term of this Agreement and that the damages flowing from any
breach of this confidentiality provision will be difficult or impossible to
accurately estimate or ascertain. Therefore, and in express consideration of the
monies paid by or on behalf of the Company, Employee understands and warrants
that, if she/he and/or any of her/his agents breaches this confidentiality
provision, she/he shall be required to immediatelyforfeit all proceeds received
by her/him from the monies tendered pursuant to Section 2 above other than those
proceeds allocated to pay: (1) attorneys' fees; or (2) taxes on the monies
tendered pursuant to Section 2. Employee further understands and warrants that
these liquidated damages are a reasonable attempt to value the damages sustained
by the Company from any breach of this confidentiality provision, and are not a
penalty of any kind.
(e) Any funds forfeited by Employee under Section 10(d) shall be tendered
to the Company pursuant to Section 22.
(f) The Company understands and warrants that it shall not be entitled to
any other monetary damages flowing from a breach of this confidentiality
provision by Employee and/or any of her/his agents other than as provided in
Section 10(d). The Company may, however, seek appropriate injunctive relief to
prevent any breach or anticipated breach of this confidentiality provision by
Employee and/or any of her/his agents.
11. Enforcement of this Agreement.
(a) Subject to Sections 10(d) and 10(f), in the event of a default or
breach of this Agreement, each party is free to pursue whatever legal or
equitable remedies that may be available to her/him or it to seek judicial
enforcement of this Agreement, whether by injunction, specific performance, an
action for damages or otherwise.
(b) Notwithstanding Section 8 above, the parties expressly acknowledge that
any and all attorneys' fees and expenses incurred in any proceeding brought to
enforce this Agreement as a result of a breach thereof shall constitute part of
the damages recoverable for any such breach. Therefore, the prevailing party in
any action to enforce this Agreement, in addition to any other relief granted,
shall be entitled to recoverits reasonable costs, including, without limitation,
attorneys' fees, expenses and costs.
12. OWBPA Rights.
5
(a) Employee is advised to seek legal counsel regarding the terms of this
Agreement. Employee acknowledges that he/she has either sought legal counsel or
has consciously decided not to seek legal counsel, contrary to the Company's
advice, regarding the terms and effect of this Agreement.
(b) Employee acknowledges that this Agreement releases only those claims
that exist as of the date of Employee's execution of this Agreement.
(c) Employee acknowledges that he/she may take a period of 45 (forty-five)
days from the date of receipt of this Agreement within which to consider and
sign this Agreement.
(d) Employee acknowledges that he/she will have seven (7) days from the
date of signing this Agreement to revoke the Agreement in writing in its
entirety ("Revocation Period"). Employee acknowledges that the Agreement will
not become effective or enforceable until the Revocation Period has expired. In
the event the Employee chooses to revoke this Agreement, within the Revocation
Period, he or she will:
1. Revoke the entire Agreement in a signed writing, delivered
to the following person on or before the seventh (7th) day
after he/she executed the Agreement:
Xxxxx Xxxxxx
Interland Human Resources
000 Xxxxxxxxx Xxxxxx Xxx., Xxxxx 000
Xxxxxxx, XX 00000
2. Forfeit all severance and payment rights of the Company that
are contemplated by this Agreement; and
3. Return the full amount of consideration received, if any, to
the Company along with the signed writing.
(e) Employee expressly acknowledges that the payments and the other
consideration that he/she is receiving under this Agreement constitute material
consideration for his/her execution of this Agreement, and represent valuable
consideration to which he/she would not otherwise be entitled.
13. Continuation of Existing Covenants. Employee understands and agrees
that she/he will remain obligated to comply with all covenants, representations
and/or warranties contained in any contracts presently in force between the
Company and Employee including the Employment Agreement between the parties
dated January 13, 2003, the Confidentiality, Invention Assignment and
Non-Competition Agreement between the parties dated January 13, 2003,.
14. Jurisdiction. The laws of the State of Georgia shall govern this
Agreement, unless pre-empted by any applicable federal law controlling the
review of this Agreement.
6
15. Advice of Attorneys. The parties acknowledge that they have fully read,
understood and unconditionally accepted this Agreement after consulting with
their attorneys or having the opportunity to consult with an attorney, and
acknowledge that this Agreement is mutual and binding upon all parties hereto
regardless of the extent of damages allegedly suffered by any of the parties
hereto.
16. Counterparts. This Agreement may be signed in counterpart originals
with the same force and effect as if signed in a single original document.
17. Cooperation of the Parties. The parties to this Agreement agree to
cooperate fully and to execute any and all supplementary documents and to take
all additional actions that may be necessary or appropriate to give full force
and effect to the basic terms and intent of this Agreement and the settlement
embodied herein. Employee further agrees to fully cooperate with the Company in
any and all investigations, inquiries or litigation whether in any judicial,
administrative, or public, quasi-public or private forum, in which the Company
is involved, whether or not Employee is a defendant in such investigations,
inquiries, proceedings or litigation. Employee shall provide truthful and
accurate testimony, background information, and other support and cooperation as
the Company may reasonably request.
18. Modification in Writing Only. Neither this Agreement nor any provision
of this Agreement may be modified or waived in any way except by an agreement in
writing signed by each of the parties hereto consenting to such modification or
waiver.
19 Construction of this Agreement. The parties agree that they each have
participated in the drafting of this Agreement, and that, as a result, this
Agreement shall not be construed in favor of or against any party hereto.
20. No False Statements or Misrepresentation. Employee hereby warrants and
represents that she/he has not made any false statements or misrepresentations
in connection with this Agreement.
21. Headings and Captions. The headings and captions used in the Agreement
are for convenience of reference only, and shall in no way define, limit,
expand, or otherwise affect the meaning or construction of any provision of this
Agreement.
22. Miscellaneous.
(a) This Agreement contains the entire agreement of the parties, and is
intended and shall be construed as an integrated Agreement. Each party
understands, acknowledges and hereby represents and warrants that this Agreement
supersedes any and all prior or contemporaneous understandings, agreements,
representations and/or promises, whether oral or written, which are not
expressly set forth herein or expressly referred to in this Agreement, and no
understanding, agreement, representation, warranty, promise or inducement has
been made concerning the subject matter of this Agreement other than as set
forth in this Agreement, and that each party enters into this Agreement without
any reliance whatsoever upon any understanding, agreement, representation,
warranty or promise not set forth herein. This Agreement shall be binding upon
and inure to the benefit of the parties hereto, jointly and severally, and the
past, present and future heirs, executors, administrators, agents, employees,
servants, attorneys, affiliated persons and entities, predecessors and
7
successors in interest and assigns, regardless of form, trustees in bankruptcy
or otherwise, and any other representative or entity acting on behalf of,
pursuant to, or by virtue of the rights of each.
(b) Any notice required or permitted to be given by either party to the
other party may be given by certified mail or overnight courier if to Employee
to Employee's home address on file with the Company and if to the Company to the
Company at the following address or to the Company's headquarters address (if it
should cease to be at the following address):
Interland, Inc.
000 Xxxxxxxxx Xxxxxx Xxx., Xxxxx 000
Xxxxxxx, XX 00000
Attn: Human Resources Department
With a copy to:
Interland, Inc.
000 Xxxxxxxxx Xxxxxx Xxx., Xxxxx 000
Xxxxxxx, XX 00000
Attn: Legal Department
IN WITNESS WHEREOF, the undersigned have executed this Agreement.
EMPLOYEE:
--------------------------
Xxxxxxx X. Xxxxx
Date:
---------------------------
8
INTERLAND, INC.
---------------------------
By:
Its:
Date:
---------------------------
9
