EXHIBIT 10.1
AMENDED AND RESTATED EMPLOYMENT AGREEMENT
THIS AMENDED AND RESTATED EMPLOYMENT AGREEMENT (this "AGREEMENT") is made and
entered into by and between INTERLAND, INC., a Minnesota corporation having its
principal executive offices located at the business address of 000 Xxxxxxxxx
Xxxxxx Xxxxxx, Xxxxx 000, Xxxxxxx, Xxxxxxx 00000 (the "COMPANY"), and Xxxxx X.
Xxxxxxx, an individual residing in Georgia ("EXECUTIVE").
WHEREAS, Company desires to employ Executive as President, Chief Operating
Officer and Corporate Secretary as of April 5, 2005, and whereas the parties
wish to establish certain terms and conditions of such employment by entering
into this Agreement; and
WHEREAS, Executive desires such employment with Company on the terms and
conditions set forth in this Agreement; and
WHEREAS, this AGREEMENT amends, restates and replaces that certain Employment
Agreement between Executive and Interland, Inc., a Minnesota corporation dated
on or about October 18, 2001 (as amended from time to time, the "Old
Agreement"), provided, however, that the Confidentiality, Invention Assignment
and Non-Competition Agreement signed by Executive on or about October 4, 2001
remains in full force and effect and is incorporated herein by this reference as
if fully stated herein;
NOW THEREFORE, in consideration of the premises and the mutual covenants and
agreements contained herein, the parties hereby agree as follows:
1. Employment; Regular Compensation. Company agrees to employ Executive as
President and Chief Operating Officer, and Executive agrees to serve Company in
such capacity on the terms and conditions set forth in this Agreement. Company
shall pay Executive a base salary in such amount as the Board of Directors (the
"Board") may determine (as determined from time to time, the "BASE SALARY"). The
Base Salary is expressed as an annual amount solely for reference purposes, and
shall be payable to Executive on a bi-weekly basis. As of April 4, 2005, such
amount is $305,000 per annum. In its sole discretion, but subject to Section 6.3
hereof, the Company may change Executive's compensation.
2. Effective Date; Indefinite Term.
2.1 This Agreement shall be deemed in full force and effect as of the date
it is executed by the parties below, along with the execution of any
exhibits hereto;
2.2 This Agreement has an indefinite term, and Executive's employment by
Company hereunder may be terminated at will by either party at any time,
with or without Cause (as defined in Section 6.1, below) or any reason,
voluntary or involuntary, and with or without prior notice. Certain
provisions of this Agreement, however, as more fully set forth in Section
5, below, provide for the payment of benefits to Executive upon the
specified circumstances of termination of Executive's employment with
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Company, and certain other provisions, as more fully set forth below in
Section 11, below, may continue in effect beyond the date of such
termination. Executive expressly acknowledges and agrees that employment
with Company is on an "at will" basis, and that this Agreement does not
provide a guarantee of continued employment, notwithstanding any other
provision in this Agreement.
3. Duties. Executive shall report to Xxxx Xxxxxx, Chairman and Chief Executive
Officer, or such other individual as may be designated from time to time by the
Chairman or the Board . Executive shall faithfully and diligently perform all
such acts and duties, and furnish such services, as are assigned to Executive by
the Chairman, the Board , or such other individual as may be designated by the
Chairman or the BOARD.
4. Efforts; Conflicts of Interest. During Executive's employment by Company,
Executive shall devote his full business time and efforts to Company and its
business during normal business hours, and shall safeguard and promote its
lawful interests. During Executive's employment by Company, Executive shall not,
either directly or indirectly, engage in or enter into any business or perform
any services for any other person, firm, association, or corporation that
conflicts with Executive's efforts to Company or with Company's business
interests, except for: (a) serving on the board of directors of any other entity
that is not in competition with Company (subject to Company's approval, which
shall not be unreasonably withheld or delayed); (b) activities approved in
writing in advance by the Chairman or the Board, which approval shall not be
unreasonably withheld or delayed; or (c) passive investments in entities that do
not involve Executive providing any advice or services to the businesses in
which the investments are made, or which do not violate Company policy,
including without limitation any policy relating to conflicts of interest or
business ethics.
5. Benefits Upon Termination of Employment.
5.1 By Company for Cause or by Executive Without Good Reason. If
Executive's employment is terminated by Company for Cause or by Executive
Without Good Reason (as defined in Section 6.5, below), then Company's
obligation to pay compensation and benefits under this Agreement shall
immediately terminate, except that: (a) Company shall pay to Executive and,
if applicable, Executive's heirs, any earned but unpaid Base Salary through
such termination date; and (b) Company shall permit Executive to receive
continuation of the benefits as set forth in Section 5.5, below, to the
extent applicable. Under such circumstances, no further payments or
benefits (except as otherwise required by law) shall be provided to
Executive. The terms "Cause" and "Without Good Reason" shall have the
meaning set forth in Section 6, below.
5.2 By Company for Nonperformance Due to Disability. If Executive's
employment is terminated by Company for Nonperformance Due to Disability,
then Company's obligation to pay compensation and benefits under this
Agreement shall immediately terminate, except that: (a) Company shall pay
to Executive and, if applicable, Executive's heirs, any earned but unpaid
Base Salary through such termination date; (b) Company shall provide
Executive with such other payments and benefits as may be permitted under
the Company's short- or long-term disability plans, to the extent
applicable, and subject to the terms and conditions of such plans,
including without limitation any eligibility requirements; and (c) Company
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shall permit Executive to receive continuation of the benefits as set forth
in Section 5.5, below, to the extent applicable. The term "Nonperformance
Due to Disability" shall have the meaning set forth in Section 6, below.
5.3 By Company Other Than for Cause or by Executive for Good Reason. If
Executive's employment is terminated by Company other than for Cause or by
Executive for Good Reason (as defined in Section 6.3, below), then
Company's obligation to pay compensation and benefits under this Agreement
shall immediately terminate, except that: (a) Company shall pay to
Executive and, if applicable, Executive's heirs, any earned but unpaid Base
Salary through such termination date; (b) Company shall pay to Executive
any earned but unpaid incentive compensation or bonuses through the
termination date, subject to the terms of the applicable bonus plan,
including without limitation any eligibility requirements or any
limitations on such payment under applicable law; (c) Company shall permit
Executive to receive continuation of the benefits as set forth in Section
5.5, below, to the extent applicable; and (d) Company shall pay to
Executive, as severance benefits, an amount equal to 12 months of Base
Salary (the "Severance Benefits"). The Severance Benefits shall be paid in
a lump sum, as soon as practicable following such termination date, subject
to the following conditions: (x) Executive shall execute a written,
complete waiver and release of all claims relating to Company, or
Executive's employment by Company or any termination thereof, within any
applicable consideration or execution periods and in a form that is
acceptable to Company; and (y) subject to confirmation by Company that
Executive does not later revoke such waiver and release of claims within
any revocation period required by applicable law.
5.4 Death of Executive. In the event of Executive's death, Executive's
employment and all other obligations hereunder shall automatically
terminate and the Company's obligation to pay compensation and benefits
under this Agreement shall immediately terminate, except that Company shall
pay to Executive's estate: (a) Executive's Base Salary through the end of
the calendar month in which Executive's death occurs; (b) Executive's
earned but unpaid incentive compensation or bonuses through the date of
Executive's death, subject to the terms and conditions of the applicable
Bonus Plan, including without limitation any eligibility requirements or
any limitations on such payment under applicable law; and (c) Company shall
permit Executive's heirs to receive continuation of the benefits as set
forth in Section 5.5, below, to the extent applicable and allowed by law
and subject to the terms of such plans.
5.5 Benefits Continuation. Upon termination of Executive's employment,
Company shall permit Executive and, if applicable, Executive's family
members, to continue to participate in Company's employee benefits plans,
to the extent required or allowed by law and subject to the terms of such
plans and applicable law.
6. Definitions.
6.1 "CAUSE" shall mean termination of Executive's employment by Company for
one or more of the following reasons: (a) Executive has breached or
threatens to breach a fiduciary duty owed to Company; (b) Executive has
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engaged or threatens to engage in dishonesty, fraud, gross negligence,
willful malfeasance or other acts of misconduct in the performance of
Executive's duties or during the course of Executive's employment; (c) upon
the willful and continued failure by Executive substantially to perform
Executive's duties with the Company (other than by reason of Nonperformance
Due to Disability as defined below); (d) Executive has willfully violated
or threatens to violate Company policies, or has willfully violated or
threatens to violate any law, rule or regulation (other than traffic
violations or similar offenses) which result in material injury to Company;
or (e) Executive has violated or threatens to violate the terms of Sections
4, 7, or 8 of this Agreement or the material terms of the Confidentiality
and Non-Competition Agreement, or any other material breach of this
Agreement.
6.2 "DISABILITY" shall have the meaning ascribed to such term or its
variations, such as "Disabled," in Company's long-term disability plan, or
in the absence of such plan, a meaning consistent with the definition of
permanent and total disability under Section 22(e)(3) of the Internal
Revenue Code of 1986, as amended.
6.3 "GOOD REASON" shall mean that one or more of the following events has
occurred and, after giving Company written notice of the occurrence and of
Executive's intention to resign from employment and Company not curing the
event within 30 days of receipt of such written notice: (a) a substantial
adverse change in Executive's duties or responsibilities, without
Executive's consent (a change to any title other than to Chief Financial
Officer shall be deemed a "substantial adverse change"); (b) any reduction
in Executive's Base Salary (at the annualized rate then in effect) without
Executive's consent prior to April 4, 2006; (c) any reduction after April
4, 2006 in Executive's Base Salary (at the annualized rate then in effect)
without Executive's consent in excess of 15% cumulatively; (d) a relocation
of Executive's principal place of employment by more than a 50 mile radius
surrounding Atlanta, Georgia, without Executive's consent. Additionally,
"GOOD REASON" shall also mean the resignation by Executive at any time
during the thirty-day period following that date which is 270 days
following the election of a new Chief Executive Officer of the Company.
6.4 "NONPERFORMANCE DUE TO DISABILITY" shall mean that, if because of
Disability, Executive is unable to perform the essential functions of
Executive's job, with or without reasonable accommodation, for a period of
30 consecutive days in any calendar year.
6.5 "WITHOUT GOOD REASON" shall mean termination or resignation of
Executive's employment by Executive other than for Good Reason.
7. Non-Disparagement. Executive shall not at anytime make false, misleading or
disparaging statements about the Company, its parent, subsidiaries or
affiliates, including any of their products, services, management, directors,
officers, employees, and customers.
8. Confidential Information and Covenants Not to Compete. The parties agree that
Executive's services to Company are of a unique value and that confidential and
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proprietary information about Company has been or will be obtained by, disclosed
or otherwise made available to Executive as a result of Executive's employment
with Company. Accordingly, as a condition to Executive's employment, Executive
and Company haveentered into a Confidentiality, Invention Assignment, and
Non-Competition Agreement. .
9. Dispute resolution process. All disputes between Executive and Company that
otherwise could be resolved in court shall be resolved instead by the following
alternative dispute resolution process (the "PROCESS").
9.1 Disputes Covered. This Process applies to all disputes between
Executive and Company, including those arising out of or related to this
Agreement or
Executive's employment by Company. Disputes subject to this Process include
but are not limited to pay disputes, contract disputes, legal disputes,
wrongful termination disputes, and discrimination, harassment or civil
rights disputes. This Process applies to disputes Executive may have with
Company and also applies to disputes Executive may have with any of
Company's employees or agents so long as the person with whom Executive has
the dispute is also bound by or consents to this Process. This Process
applies regardless of when the dispute arises and will remain in effect
after Executive's employment with Company ends, regardless of the reason it
ends. This Process does not apply, however, to any workers' compensation or
unemployment compensation claims, to the extent applicable under the
circumstances.
9.2 Negotiation and Mediation. Executive and Company agree to attempt to
resolve all disputes first by direct negotiations. If direct negotiations
are not successful, the parties shall then use mediation. They shall first
attempt to agree upon a mediator. If unable to agree upon a mediator, the
parties shall request and conduct mediation under the American Arbitration
Association's National Rules for the Resolution of Employment Disputes.
Unless otherwise agreed by the parties, any mediation sessions shall be
held in Atlanta, Georgia. Temporary or interim injunctive relief may be
sought without mediating first. Any failure to mediate shall not affect the
validity of an arbitration award or the obligation to arbitrate.
9.3 Arbitration. If the dispute is not resolved through negotiation and
mediation, the parties shall request, and either party may demand,
arbitration pursuant to the American Arbitration Association's National
Rules for the Resolution of Employment Disputes. Unless otherwise agreed by
the parties, any arbitration hearing shall be held in Atlanta, Georgia. The
decision of the arbitrator shall be final and binding on the parties and on
all persons and entities claiming through the parties. Submission of their
dispute to arbitration shall be the exclusive means for resolving the
dispute, to the exclusion of any trial by a court or jury. All disputes
that are not resolved by agreement (in mediation or otherwise) shall be
determined by binding arbitration.
9.4 Injunctive Relief. Either party may request a court to issue such
temporary or interim relief (including temporary restraining orders and
preliminary injunctions) as may be appropriate, either before or after
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mediation or arbitration is commenced. The temporary or interim relief
shall remain in effect pending the outcome of mediation or arbitration. No
such request shall be a waiver of the right to submit any dispute to
mediation or arbitration.
9.5 Employment Status. This Process does not affect the status of the
employment relationship between the parties, which as stated above in
Section 2.2 shall be "at will;" nor does this Process guarantee continued
employment by the Company, require discharge only for cause, or require any
particular corrective action or discharge procedures.
10. Notification. Executive hereby authorizes the Company, or any of its
employees or designated representatives or counsel, to notify Executive's actual
or future employers or any governmental agency of any terms of this Agreement or
the Confidentiality and Non-Competition Agreement and Executive's
responsibilities or obligations hereunder.
11. Severability; Survival of Provisions. If any part of this Agreement or any
part of the Confidentiality and Non-Competition Agreement is held by any legal
authority to be unenforceable or is severed by any legal authority, the
remainder of such agreement shall be enforced to the maximum extent allowed by
applicable law. Certain provisions of this Agreement, including confidential
information and covenants not to compete (Section 8), dispute resolution process
(Section 9), notification (Sections 10 and 21), and governing law (Section 18)
of this Agreement, and all of the provisions of the Confidentiality and
Non-Competition Agreement, shall survive after any such legal determination,
after Executive's employment by Company ends regardless of the reason it ends,
and shall be enforceable regardless of any such determination or any claim
Executive may have against Company.
12. Relief for Breach. Because any breach or threatened breach by Executive of
Sections 4, 7, and 8 of this Agreement or of the Confidentiality and
Non-Competition Agreement would result in continuing material and irreparable
harm to Company, and because it would be difficult or impossible to establish
the full monetary value of such damage, Company shall be entitled to injunctive
relief in the event of any such breach or threatened breach by Executive.
Injunctive relief is in addition to any other available remedy, including
termination of this Agreement and damages. In the event of any threatened breach
of this Agreement by Executive, Company may suspend any payment of Base Salary,
incentives, bonuses, Severance Benefits and other compensation due to Executive
under this Agreement and, if Executive has breached this Agreement, any
remaining amounts to be paid under this Agreement shall be forfeited. In the
event of any breach or threatened breach by either party which results in
court-ordered relief, the breaching party shall reimburse the non-breaching
party for its reasonable attorneys' fees and other expenses incurred to obtain
such relief.
13. Waiver. No waiver of any provision of this Agreement shall be valid unless
in writing, signed by the party against whom the waiver is sought to be
enforced. The waiver of any breach of this Agreement or failure to enforce any
provision of this Agreement shall not waive any later breach.
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14. Binding Effect. This Agreement is binding upon the parties and their
personal representatives, heirs, successors and permitted assigns.
15. Counterparts. This Agreement may be executed in any number of counterparts,
each of which shall be an original and all of which, taken together, shall
constitute a single agreement.
16. Complete Agreement. This Agreement, together with the Confidentiality and
Non-Competition Agreement, is the final and complete expression of the parties'
agreement relating to Executive's employment by the Company. Without limiting
the foregoing, this Agreement replaces and supersedes any prior employment
agreements between Executive and Company, or its parent, subsidiaries,
predecessors or affiliates, and each party to this Agreement hereby releases and
holds harmless the other party from any obligations or liability with respect
thereto. The parties acknowledge and agree that they are not entering into this
Agreement in reliance on anything not set out in this Agreement. This Agreement
shall control over any inconsistent policies or procedures of Company affecting
Executive's employment, whether in effect now or adopted later, but Company's
policies and procedures that are consistent with this Agreement, whether in
effect now or adopted later, shall apply to Executive's employment according to
the terms thereof.
17. Payroll Withholding. All payments of Base Salary, incentives, bonuses,
Severance Benefits and other compensation payable to Executive pursuant to this
Agreement or otherwise shall be subject to the customary withholding for income
taxes as determined appropriate by the Company, and shall be subject to other
withholdings or deductions as required with respect to such compensation paid by
a corporation to any employee.
18. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Georgia, without giving effect to the
provisions thereof relating to choice of laws. Each party hereby irrevocably (a)
consents to the jurisdiction and venue for any legal action with the state
courts in Xxxxxx County, Georgia and federal courts in the Northern District of
Georgia, Atlanta Division, unless injunctive relief is sought by Company and, in
Company's judgment, that relief might not be effective unless obtained in some
other venue; and (b) waives any jurisdictional defenses (including personal
jurisdiction and venue) to any such action. These provisions do not give any
party a right to proceed in court in violation of the Dispute Resolution Process
under Section 9, above.
19. Successors And Assigns. All rights and duties of Company under this
Agreement shall be binding on and inure to the benefit of its successors,
assigns or any company which purchases or otherwise acquires it or all or
substantially all of its operating assets by any method. This Agreement shall
not be assignable by Executive other than the right to receive benefits being
passed by will or by the laws of descent and distribution.
20. Amendment. This Agreement contains the entire agreement of the parties
relating to the subject matter and may not be amended except by an instrument in
writing signed by both parties; it shall not be amended orally or by course of
dealing.
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21. Notices. All notices required or permitted under this Agreement shall be in
writing and may be personally served or mailed by registered or certified U.S.
mail, postage prepaid and addressed as follows:
If to Company: Interland, Inc. 000 Xxxxxxxxx Xxxxxx Xxxxxx Xxxxx 000 Xxxxxxx,
Xxxxxxx 00000
If to Executive: Xxxxx Xxxxxxx 000 Xxxxxxxxx Xxxxxx Xxxxxx, Xxxxx 000 Xxxxxxx,
Xxxxxxx 00000 (or the Executive's last-known home address as reflected in the
Company's payroll records).
Any of the above addresses may be changed at any time by notice given as
provided above; provided, however, that any such notice of change of address
shall be effective only upon receipt. All notices, requests or instructions
given in accordance herewith shall be deemed received on the date of delivery,
if hand delivered or telecopied, and 3 business days after the date of mailing,
if mailed by registered or certified mail, return receipt requested.
EXECUTIVE INTERLAND, INC.
/s/ Xxxxx X. Xxxxxxx /s/ Xxxxxxxx X. Xxxxxx
-------------------------------- ------------------------------------
Signature Signature
4/8/05 April 8, 2005
-------------------------------- ------------------------------------
Date Date
Xxxxxxxx X. Xxxxxx
Xxxxx X. Xxxxxxx Vice President & General Counsel
-------------------------------- ------------------------------------
Printed Name Printed Name
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