GENERAL RELEASE AGREEMENT
Exhibit
10.1
This
Settlement Agreement and General Release (the “Agreement”) is entered into on
December 15, 2005, by and between Xxxxxxx X. Xxxxxx (“XXXXXX”) and Internap
Network Services Corporation (“INTERNAP”), and arises out of the termination of
XXXXXX’x employment.
WHEREAS
XXXXXX was employed by INTERNAP; and
WHEREAS
XXXXXX resigned from his employment with INTERNAP effective November 18, 2005
(“Termination Date”).
NOW,
THEREFORE, in consideration of the material promises contained herein and other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties agree as follows:
1. Consideration
by INTERNAP.
Provided
that XXXXXX has executed and delivered to the Company this Agreement and this
Agreement becomes effective as set forth in Paragraph 18 hereunder and subject
to the terms of this Agreement, XXXXXX shall receive a cash severance payment
in
the amount of $700,000.00 (based on XXXXXX’X annual salary at the time of
termination of $350,000.00). Payment of such severance amounts shall be subject
to standard payroll tax withholdings and deductions.
INTERNAP
shall reimburse XXXXXX, on a monthly basis, for the insurance premiums that
XXXXXX has paid for COBRA continuation coverage under INTERNAP’s group health
plan for health benefits substantially
similar to those XXXXXX was receiving immediately prior to the termination
of
his employment,
for the
period from the Termination Date until
the
earlier of: (i) eighteen (18) months from the Termination Date or (ii) the
date
upon which XXXXXX becomes eligible to be covered under another employer's group
health plan.
The
first
monthly payment made to XXXXXX shall include all such COBRA reimbursements
owed
and not yet paid. All other employee benefits previously provided by INTERNAP
have ceased in accordance with the terms of each employee benefit plan or
policy.
XXXXXX
understands and acknowledges that the benefits to be provided him by INTERNAP
under this Agreement are in excess of those he would have received from INTERNAP
if he had not elected to sign this Agreement. XXXXXX further understands and
acknowledges that INTERNAP owes no additional amounts to XXXXXX for wages,
commissions, back pay, severance pay, accrued vacation, sick leave, other leave
or any other reason.
2. General
Release of Claims.
In
exchange for the promises and agreements described in this Agreement, XXXXXX
hereby voluntarily, irrevocably, fully, and completely RELEASES, ACQUITS, AND
FOREVER DISCHARGES INTERNAP (including its current and former owners,
shareholders, predecessors, successors, assigns, agents, directors, officers,
employees, representatives, attorneys, insurers, parent company, divisions,
affiliates, and related business
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entities, collectively known herein as “INTERNAP Releasees”)
from any and all claims, complaints, liabilities, obligations, promises,
agreements, controversies, damages, actions, causes of action, suits, rights,
demands, costs, losses, debts, and expenses of any nature whatsoever (whether
known or unknown) which XXXXXX ever had, may have, or now has arising from
or
related to, directly or indirectly, XXXXXX’x employment with INTERNAP, the
termination of XXXXXX’x employment with INTERNAP, or other events accrued as of
the date of execution of this Agreement, including, but not limited
to:
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(a)
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violations
of the Employee Retirement Income Security Act, Title VII of the
Civil
Rights Act of 1964, the Age Discrimination in Employment Act, the
Fair
Labor Standards Act, the Civil Rights Act of 1991, the Americans
With
Disabilities Act, the Equal Pay Act, the Civil Rights Act of 1866,
42
U.S.C. § 1981, the Family and Medical Leave Act, the Labor Management
Relations Act, the National Labor Relations Act, the Consolidated
Omnibus
Budget Reconciliation Act of 1985, 42 U.S.C. § 1983, Executive Order
11246, Executive Order 11141, the Rehabilitation Act of 1973, or
the
Xxxxxxxx-Xxxxx Act of 2002;
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(b)
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violations
of any other federal or state statute or regulation or local
ordinance;
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(c)
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claims
for lost or unpaid wages, compensation, or other benefits claims
under
state law, defamation, intentional infliction of emotional distress,
negligent infliction of emotional distress, bad faith action, slander,
assault, battery, wrongful or constructive discharge, negligent hiring,
retention and/or supervision, fraud, misrepresentation, conversion,
tortious interference with property, negligent investigation, breach
of
contract, or breach of fiduciary
duty;
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(d)
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any
claims to benefits under any and all bonus, severance, workforce
reduction, early retirement, outplacement, or any other similar plan
sponsored by INTERNAP which XXXXXX ever had or now has or may in
the
future have; and
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(e)
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any
claims under the California Fair Employment and Housing Act, as amended;
the Washington Law Against Discrimination in Employment, as amended;
the
Washington Family Leave Act, as amended; or any other state law arising
in
tort or contract.
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In
addition, XXXXXX acknowledges that this Agreement constitutes a full SETTLEMENT,
ACCORD AND SATISFACTION of all claims covered by the release provisions of
this
Section.
3. Covenant
Not to Xxx.
XXXXXX
forever waives, releases, and covenants not to xxx or file any complaint or
claim against any INTERNAP Releasee with any court, governmental agency or
other
entity based on any act or omission arising or occurring prior to the date
of
execution of this Agreement, whether known or unknown at the time of execution,
including any claim related to any employee benefit plan (and related trusts)
maintained by the company. XXXXXX also waives any right to recover in a civil
suit brought by any governmental agency or any other individual on his
behalf.
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Notwithstanding
the foregoing, it is understood by all parties that XXXXXX does not release
any
claims that may arise under the terms of this Agreement or after the effective
date of this Agreement.
4. Return
of Property and Information.
XXXXXX
agrees to return all INTERNAP property within three (3) days of his execution
of
this Agreement. Such property includes, but is not limited to, the original
and
any copy (regardless of the manner in which it is recorded) of all information
provided by INTERNAP to XXXXXX or which XXXXXX has developed or collected in
the
scope of his employment, as well as all INTERNAP-issued equipment, supplies,
accessories, vehicles, keys, instruments, tools, devices, computers, cellphones,
pagers, materials, documents, plans, records, notebooks, drawings, or papers.
Provided, however, XXXXXX may retain copies of documents relating to INTERNAP’s
employee benefit plans applicable to XXXXXX and income records to the extent
necessary for XXXXXX to prepare his individual tax returns.
5. Protective
Covenants.
(a) For
the
purposes of this Agreement, the term “Confidential Information” shall mean
valuable, non-public, competitively sensitive data and information relating
to
the INTERNAP Releasees’ business that is not generally known by or readily
available to INTERNAP’s competitors. Confidential Information includes, but is
not limited to: (1) business and employment policies, marketing methods and
the
targets of those methods, finances, business plans, promotional materials and
price lists; (2) the terms upon which INTERNAP obtains products from its
suppliers and sells them to customers; (3) the nature, origin, composition
and
development of INTERNAP’s products; and (4) the manner in which INTERNAP
provides products and services to its customers. “Confidential Information” does
not include information that is readily ascertainable through publicly available
sources.
(b) For
the
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:
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(1)
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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
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(2)
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is
the subject of efforts that are reasonable under the circumstances
to
maintain its secrecy.
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(c) To
the
extent that the above definitions contained in paragraphs 5(a) and 5(b) are
inconsistent with 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, XXXXXX hereby covenants and agrees that: (1) with regard
to
each item which 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 date of this Agreement,
XXXXXX shall regard and treat each item constituting all or any portion of
the
Trade Secrets and all 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.
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(e) Non-Competition
Covenant.
XXXXXX hereby covenants and agrees that for a period of 18 months
after
the date of this Agreement, XXXXXX will not compete with the Business
of
INTERNAP by performing management or strategic activities, or by
rendering
other services, of the type XXXXXX performed for INTERNAP during
his
employment. Likewise, XXXXXX hereby covenants and agrees that he
will not
perform activities of the type which in the ordinary course of
business
would involve the utilization of Confidential Information or Trade
Secrets
protected from disclosure by this Agreement. This paragraph 5(e)
restricts
competition only within a ten mile radius of each of the cities
in which
INTERNAP maintained an office during XXXXXX’x
employment.
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For
the purposes of this Agreement, the “Business of INTERNAP” means any
entity that is engaged in: (1) managed high performance Internet
connectivity; (2) hosting or collocation services; (3) virtual
private
network services; (4) content distribution network services; or
(5)
application acceleration products or
services.
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If
XXXXXX receives a job offer that may be covered by this paragraph
5(e),
XXXXXX may request the Chairman of INTERNAP’s Board of Directors to
indicate whether or not such job would be prohibited under this
paragraph,
and the Chairman of INTERNAP’s Board of Directors shall make such
determination in his or her sole
discretion.
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(f)
Non-Solicitation
Covenant.
XXXXXX hereby covenants and agrees that during employment with
INTERNAP
and for a period of 18 months after the date of this Agreement,
XXXXXX
will not directly or indirectly solicit or attempt to solicit any
business
in competition with the Business of INTERNAP from any of INTERNAP's
customers or suppliers with whom XXXXXX had Contact during XXXXXX’x
employment with INTERNAP. For the purposes of this Agreement, “Contact"
means direct or indirect interaction between XXXXXX and INTERNAP’s
customers which took place in an effort to further the business
relationship.
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| (g) Non-Recruitment of INTERNAP Employees. XXXXXX hereby covenants and agrees that for a period of 18 months following the cessation of employment, XXXXXX will not directly or indirectly solicit or attempt to solicit any employee of INTERNAP for the purpose of encouraging, enticing, or causing said employee to terminate employment with INTERNAP. |
| (h) Other Employment After Termination. XXXXXX acknowledges and represents that XXXXXX has substantial experience and knowledge such that XXXXXX can readily obtain subsequent employment which does not violate this Agreement. |
Acknowledgments.
XXXXXX
hereby acknowledges and agrees that the covenants and agreements contained
in
Paragraph 5 are reasonable as to time, scope, and territory given
INTERNAP’s need to protect proprietary and confidential information about its
business, client and customer information, and its investment in employees.
In
the event any covenant or agreement in this Agreement shall be determined by
any
court of competent jurisdiction to be unenforceable by reason of its extending
for too great a period of time or over too great a geographical area or by
reason of its being too extensive in any other respect, it shall be interpreted
to extend only over the maximum period of time for which it may be enforceable
and/or over the maximum geographical area as to which it may be enforceable
and/or to the maximum extent in all other respects as to which it may be
enforceable, all as determined by such court in such action.
Specific
Performance.
XXXXXX
acknowledges and agrees that any breach of a covenant or agreement by him will
cause irreparable damage to INTERNAP, the exact amount of which will be
difficult to determine, and that the remedies at law for any such breach will
be
inadequate. Accordingly, XXXXXX agrees that, in addition to any other
remedy that may be available at law, in equity, or hereunder, INTERNAP shall
be
entitled to specific performance and injunctive relief, without posting bond
or
other security to enforce or prevent any violation of any of the covenants
or
agreements by him.
6. No
Re-employment.
XXXXXX
agrees never to seek employment or re-employment with INTERNAP or any of its
parent, subsidiary, or related companies or divisions in the future. XXXXXX
acknowledges that he is not now nor will he ever be eligible for such employment
or re-employment and that this is fair and just under the relevant facts and
circumstances.
7. Non-Admissions.
XXXXXX
agrees that this Agreement shall not in any way be construed as an admission
by
INTERNAP or others released herein that any of them has acted wrongfully with
respect to XXXXXX or any other person or persons or that XXXXXX has any rights
whatsoever against them, and INTERNAP specifically disclaims any liability
to or
wrongful acts against XXXXXX, or any other person or persons, on the part of
itself or any of the INTERNAP Releasees.
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8. Non-Assignment
of Claims.
XXXXXX
acknowledges and warrants, understanding that the truth of said acknowledgment
and warranty is material to the making of this Agreement, that he has not
assigned or otherwise transferred any of the claims released by him through
this
Agreement, and he hereby promises to indemnify and hold harmless the INTERNAP
Releasees with respect to any damages, costs or other injuries, including the
payment of attorneys’ fees, which might arise through the assertion of any claim
released herein.
9. Intentionally
left blank.
10. Non-disparagement.
XXXXXX
agrees that he will not engage in any action that disparages INTERNAP or its
officers, directors, managers, employees or practices; or that disrupts or
impairs its normal operations or xxxxx the reputation of INTERNAP with its
customers, suppliers or the public; or interferes with existing contractual
relationships with customers, suppliers or INTERNAP associates. Nothing in
this
Agreement prevents XXXXXX from responding accurately and fully to any question,
inquiry or request for information when required by legal process.
11. Cooperation. XXXXXX
agrees to cooperate with INTERNAP following the termination of his employment
by
being reasonably available to testify on behalf of INTERNAP or any subsidiary
or
affiliate in any action, suit, or proceeding, whether civil, criminal,
administrative, or investigative, and to assist INTERNAP, or any subsidiary
or
affiliate, in any such action, suit or proceeding, by providing information
and
meeting and consulting with representatives or counsel to INTERNAP, or any
subsidiary or affiliate, as reasonably requested. INTERNAP agrees to reimburse
XXXXXX for all expenses actually incurred in connection with his provision
of
testimony or assistance pursuant to this Section.
12. No
Assistance.
XXXXXX
shall not voluntarily provide assistance, information or advice, directly or
indirectly (including through any agent or attorney), to any person or entity
in
connection with bringing any claim or cause of action of any kind against
INTERNAP, nor will XXXXXX induce or encourage any person or entity to do so.
Nothing in this Agreement prohibits XXXXXX from testifying truthfully under
subpoena or providing other assistance under compulsion of law
13. Resignation
of Positions.
By
signing this Agreement, XXXXXX hereby confirms his resignation from any and
all
positions he held with INTERNAP or its subsidiaries, if any, on the Termination
Date, to be effective immediately. XXXXXX also shall promptly execute any and
all forms, documents and agreement as INTERNAP deems necessary for XXXXXX to
establish his resignation as provided herein.
14. No
Presumption Against Drafter.
This
Agreement has been drafted through a cooperative effort of both parties, and
neither party shall be considered the drafter of this Agreement so as to give
rise to any presumption or convention regarding construction of this
document.
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15. Voluntariness.
XXXXXX
acknowledges that he fully understands the extent and impact of the provisions
of this Agreement and that he has executed it voluntarily and without any
coercion, undue influence, threat, or intimidation of any kind
whatsoever.
16. Attorneys’
Fees.
The
parties specifically acknowledge and agree that each party will be responsible
for its own attorneys’ fees, costs, and expenses incurred in connection with
this Agreement and the events giving rise hereto.
17. Consideration
Period.
XXXXXX
hereby has been advised and understands that he has twenty-one (21) days
from the date of receipt to decide whether or not to sign this Agreement, which
period may be shortened and waived by XXXXXX. This period is designed to allow
XXXXXX to consult with a financial advisor, accountant, attorney or anyone
else
whose advice XXXXXX chooses to seek.
This
Agreement and any and all offers contained herein will automatically expire
immediately after January 3, 2006, if XXXXXX has not returned to INTERNAP an
executed copy of this Agreement by that time or earlier as set forth
herein.
18. Effective
Date of Agreement and Option to Revoke.
XXXXXX
hereby has been advised and understands that he may revoke this Agreement within
seven days after signing it. The last day upon which this Agreement can be
revoked is referred to herein as the “Last Revocation Day.” Revocation shall be
made by delivering a written notice of revocation to INTERNAP no later than
5:00
p.m. Eastern Time on the Last Revocation Day at the following
address:
Attention:
Xxxxxx Xxxxxxxxx
000
Xxxxxxxx Xxxxxx, Xxxxx X-000
Xxxxxxx,
Xxxxxxx 00000
With
a
copy to:
Attention:
Vice President and General Counsel
000
Xxxxxxxx Xxxxxx, Xxxxx X-000
Xxxxxxx,
XX 00000
The
parties agree and understand that if XXXXXX does not
revoke
this Agreement on or before the Last Revocation Day, this Agreement shall become
effective on the day following the Last Revocation Day, and XXXXXX shall receive
the payments and benefits as described in Paragraph 1 of this Agreement as
follows: $250,000 by no later than December 31, 2005 and $450,000 by no later
than January 7, 2006. If XXXXXX does revoke this Agreement on or before the
Last
Revocation Day, this Agreement shall not become effective, this Agreement and
any and all offers herein will automatically be terminated and expired and
XXXXXX shall not receive the payments and benefits described in Paragraph 1
of
this Agreement.
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19. Notice.
All
notices, requests, demands and other communications required or permitted
hereunder shall be in writing and shall be deemed to have been duly given if
delivered or seven days after mailing if mailed, first class, certified mail,
postage prepaid:
TO
INTERNAP: Internap
Network Services Corporation
Attention:
Chairman of the Board
000
Xxxxxxxx Xxxxxx, Xxxxx X-000
Xxxxxxx,
Xxxxxxx 00000
and
to:
Attention:
Vice President and General Counsel
000
Xxxxxxxx Xxxxxx, Xxxxx X-000
Xxxxxxx,
Xxxxxxx 00000
TO
XXXXXX:
Xx.
Xxxxxxx X. Xxxxxx
20. Miscellaneous
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(a)
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Scope
of Agreement.
This Agreement will bind the heirs, personal representatives, successors
and assigns of both you and INTERNAP, and inure to the benefit of
both you
and INTERNAP, their heirs, successors and assigns. If any provision
of
this Agreement is determined to be invalid or unenforceable, in whole
or
in part, this determination will not affect any other provision of
this
Agreement and the provision in question will be modified by the court
so
as to be rendered enforceable in a manner consistent with the intent
of
the parties insofar as possible. Headings and subheadings in this
Agreement are solely for convenience and do not constitute terms
of this
Agreement.
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(b)
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Applicable
Law.
This Agreement shall be interpreted, enforced, construed, and governed
under the laws of the State of Georgia without regard to its choice
of law
rules. XXXXXX agrees that any future disputes between him and INTERNAP
(the “parties ”) including but not limited to disputes arising out of or
related to this Agreement and release of claims, will be resolved
by
binding arbitration, except where the law specifically forbids the
use of
arbitration as a final and binding remedy, in Xxxxxx County, Georgia
in
accordance with the rules of the American Arbitration Association
by one
arbitrator appointed in accordance with said rules. INTERNAP will
pay for
the cost of the arbitration but each of the parties will be responsible
for the legal fees of that party’s legal counsel. The Arbitrator will
apply Georgia law, without references to rules of conflicts law or
rules
of statutory arbitration, to the resolution of any dispute. Judgment
on
the award rendered by the arbitrator may be entered in any court
having
competent jurisdiction thereof. Notwithstanding the foregoing, the
parties
may apply to any court of competent jurisdiction for preliminary
or
interim equitable relief, or to compel arbitration in accordance
with this
Section provided that the arbitrator shall have the ultimate authority
to
determine whether such preliminary or interim equitable relief shall
be
continued.
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(c)
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Entire
Agreement.
This Agreement contains the entire agreement and understanding concerning
the subject matter hereof between the parties hereto, superseding
and
replacing all prior negotiations, understandings, representations
and
agreements, written or oral. No modification, amendment, waiver,
termination or discharge of this Agreement, or any of the terms or
provisions hereof, shall be binding upon either of the parties unless
confirmed by a written instrument signed by both parties. No waiver
by any
party of any term or provision of this Agreement or of any default
hereunder shall affect such party’s rights thereafter to enforce such term
or provision or to exercise any right or remedy in the event of any
other
default, whether or not similar.
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(d)
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Severability.
If any provision or covenant, or any part thereof, of this Agreement
should be held by any court to be invalid, illegal or unenforceable,
either in whole or in part, such invalidity, illegality or
unenforceability shall not affect the validity, legality or enforceability
of the remaining provisions or covenants, or any part thereof, of
this
Agreement, all of which shall remain in full force and effect.
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(e)
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Waiver.
Failure
of either party to insist, in one or more instances, on performance
by the
other in strict accordance with the terms and conditions of this
Agreement
shall not be deemed a waiver or relinquishment of any right granted
in
this Agreement or the future performance of any such term or condition
or
of any other term or condition of this Agreement, unless such waiver
is
contained in a writing signed by the party making the
waiver.
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(f)
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Proper
Construction.
The language in all parts of this Agreement shall in all cases be
construed as a whole, according to its fair meaning, and not strictly
for
or against either of the parties. As utilized in this Agreement,
the term
“or” shall be deemed to include the term “and/or” and the singular or
plural number shall be deemed to include the other, whenever the
context
so indicates or requires. The paragraph headings used in this Agreement
are intended solely for convenience of reference and shall not in
any
manner amplify, limit, modify, or otherwise be used in the interpretation
of any of the provisions hereof.
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21. Acknowledgment
of Knowing and Voluntary Waiver
XXXXXX
hereby represents and warrants that:
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(a)
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XXXXXX
has CAREFULLY READ THIS AGREEMENT AND FULLY UNDERSTANDS ALL OF THE
PROVISIONS OF THIS AGREEMENT;
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(b)
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XXXXXX
has had an OPPORTUNITY TO CONSULT WITH AN ATTORNEY OF HIS CHOICE
AS TO THE
TERMS OF THIS AGREEMENT to the full extent that he desired before
signing
this Agreement;
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(c)
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XXXXXX
understands that this Agreement FOREVER RELEASES INTERNAP from any
legal
action arising prior to the date of execution of this
Agreement;
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(d)
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XXXXXX
has had the opportunity to REVIEW AND CONSIDER THIS AGREEMENT FOR
A PERIOD
OF AT LEAST TWENTY ONE (21) DAYS before signing
it;
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(e)
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XXXXXX
understands that HE SHALL HAVE SEVEN (7) DAYS FOLLOWING THE EXECUTION
OF
THIS AGREEMENT TO REVOKE SAID AGREEMENT;
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(f)
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In
signing this Agreement, XXXXXX DOES NOT RELY ON NOR HAS HE RELIED
ON ANY
REPRESENTATION OR STATEMENT (WRITTEN OR ORAL) NOT SPECIFICALLY SET
FORTH
IN THIS AGREEMENT by INTERNAP or by any of INTERNAP’s agents,
representatives, or attorneys with regard to the subject matter,
basis, or
effect of this Agreement or otherwise;
and
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(g)
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XXXXXX
was not coerced, threatened, or otherwise forced to sign this Agreement,
and XXXXXX is VOLUNTARILY SIGNING AND DELIVERING THIS AGREEMENT of
his own
free will, and that each signature appearing hereafter is
genuine.
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IN
WITNESS WHEREOF,
the
undersigned have signed and executed this Agreement on the dates set forth
below
as an expression of their intent to be bound by the foregoing terms of this
Agreement.
| /s/ Xxxxxxx X. Xxxxxx | DATED: 12/15/05 |
| XXXXXXX X. XXXXXX | |
| BY: /s/ Xxxxxx Xxxxxxxxx | DATED: 12/15/05 |
| XXXXXX XXXXXXXXX | |
| Chairman of the Board |
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