AGREEMENT
Exhibit
10.3
AGREEMENT
THIS AGREEMENT (“Agreement”)
is made this 29th day of January, 2009 (the “Effective Date”) by and between
Xxxxx X. XxXxxxxx (“Employee”) and Internap Network Services Corporation
(“INTERNAP”), and arises out of the termination of Employee’s
employment.
WHEREAS, Employee is leaving
his position as president and chief executive officer of INTERNAP;
and
WHEREAS, INTERNAP and Employee
agreed to continue Employee’s employment with INTERNAP in order to allow for
certain transition services; and
WHEREAS, Employee has
completed the transition services; and
WHEREAS, Employee and INTERNAP
agree that Employee’s employment with INTERNAP is ending effective March 15,
2009 (“Separation 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. Employee’s
employment with INTERNAP is terminated effective on the Separation
Date.
3. (a) Employee
acknowledges and agrees that with payment of normal payroll through the
Separation Date, he will have 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 Separation Date.
(b) 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 Nine
Hundred Twenty Seven Thousand Two Hundred and no/100 Dollars
($927,200.00).
The
parties agree that this payment will be made to Employee as
follows:
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$475,500.00
within thirty days of the expiration of the seven (7) day revocation
period set forth in Paragraph 9(b) of this Agreement, provided that
Employee does not revoke nor breach this Agreement within that time
period.
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$451,700.00
six (6) months plus one (1) day following final execution of this
Agreement, provided that Employee has not revoked nor materially breached
this Agreement within that time
period.
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(c) All
equity awards previously granted to Employee by INTERNAP shall be deemed to vest
as of the Separation Date, provided that Employee does not revoke nor breach
this Agreement within that time period.
4. Employee
and INTERNAP agree that Employee shall have twelve (12) months following the
Separation Date in which to exercise the INTERNAP stock options held by him and
that were vested as of the Separation Date, after which such options shall
expire. All unvested INTERNAP stock options shall expire on the
Separation Date.
5. Employee
agrees that that the payment and covenants by INTERNAP referenced in Paragraph 3
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.
6. Employee
may elect to continue, at the Company’s cost, health, dental and vision
insurance coverage for Employee and Employee’s eligible dependents under
INTERNAP’s healthcare, dental and vision coverage plan commencing on the
Separation 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 so advise INTERNAP in
writing. Employee agrees to notify INTERNAP if Employee secures
alternate coverage during the eighteen (18) month period. Employee
will be eligible to convert any life insurance coverage to an individual
plan.
7. Employee
acknowledges INTERNAP is relying on Employee’s compliance with the terms of the
Covenants Agreement attached hereto as Schedule A.
8. At
INTERNAP’s request, Employee agrees to (a) provide reasonable consulting
services to INTERNAP following the Separation Date to assist in transition
matters, and (b) fully cooperate with reasonable requests by INTERNAP regarding
any investigations, claims or litigation involving INTERNAP about which the
Employee has knowledge or the ability to assist INTERNAP in its
defense. Employee will be compensated at the rate of $250 per hour
for his time associated with his participation in the above
matters. INTERNAP will reimburse Employee for all reasonable out of
pocket expenses incurred in providing such cooperation.
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9. (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, charges, 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.
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(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 his 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.
10. Employee
knowingly relinquishes, waives and forever releases any and all claims or
personal remedies arising under the Age Discrimination in Employment Act, 29
U.S.C.§ 621, et
seq., related in any manner to his employment with INTERNAP or his
separation from such employment. In making this release:
(a) Employee
acknowledges that he has twenty-one (21) days to review this Agreement prior to
signing it. To the extent that Employee has decided to execute this
Agreement prior to the expiration of the twenty-one (21) day period, he
acknowledges that he has voluntarily executed the Election attached to this
Agreement as Exhibit 1.
(b) Employee
understands that he has a period of seven (7) days after signing this Agreement
to revoke it and not receive the monetary payments or other consideration
provided to him under the terms of this Agreement.
(c) Employee
further understands that this Paragraph 9, pertaining specifically to claims or
rights arising under the Age Discrimination in Employment Act, 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 his right to challenge the
validity of this release under the law.
(d) Employee
acknowledges and agrees that the payments and other consideration made by
INTERNAP under Paragraph 3 of this Agreement are in addition to anything of
value to which Employee is already entitled.
11. 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. INTERNAP will
reimburse Employee for all reasonable out of pocket expenses incurred in
providing such cooperation.
12. 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.
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13. 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.
14. Employee
represents that on or before the Separation Date he will return to INTERNAP any
property and/or business documents of INTERNAP. Employee agrees that
if subsequent to the Separation Date he discovers any property of INTERNAP, he
will promptly return it to: VP HR, Internap Network Services
Corporation, 000 Xxxxxxxx Xxxxxx, Xxxxx X-000, Xxxxxxx, XX 00000.
15. 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.
16. 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.
17. 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.
18. 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, including without limitation any employment agreement between
Employee and Internap. Except for the Covenants Agreement, attached
hereto as Schedule A, 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.
19. This
Agreement may not be amended or modified except by an agreement in writing
signed by all of the parties hereto.
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20. 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.
21. 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.
22. 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.
23. 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.
24. 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.
25. 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.
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26. 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.
27. Employees
understands that, if he signs this Agreement, he may change his mind and revoke
his acceptance within seven days after signing it by giving notice in writing to
INTERNAP at the following address:
Attention: Director,
Human Resources Department
000
Xxxxxxxx Xxxxxx, Xxxxx X-000
Xxxxxxx,
Xxxxxxx 00000
With copy
to: Chief Administrative
Officer
28. Employee
understands that this Agreement will not be effective or enforceable until the
seven-day revocation period has expired, but will become effective and
enforceable as soon as the revocation period ends.
IN WITNESS WHEREOF, the
parties have executed this General Release and Separation Agreement as of the
date indicated below:
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/s/ Xxxxxxx Xxxxx
WITNESS
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/s/ Xxxxx X.
XxXxxxxx
Date: 1/29/09
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/s/
Xxxxxxx Xxxxx
WITNESS
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INTERNAP
NETWORK SERVICES
CORPORATION
/s/ Xxxxxxx X.
Xxxx
By:
Xxxxxxx X. Xxxx
Title:
CAO
Date: 1/29/09
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ELECTION
TO EXECUTE PRIOR TO EXPIRATION OF
TWENTY-ONE DAY CONSIDERATION
PERIOD
I, Xxxxx
X. XxXxxxxx, understand that I have at least twenty-one (21) days within which
to consider and execute the attached General Release, Separation and Settlement
Agreement. However, after having been advised of my right to consult
with an attorney and having exercised that right to the extent desired, I have
freely and voluntarily elected to execute the General Release and Separation
Agreement before the twenty-one (21) day period has expired.
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/s/ Xxxxx X. XxXxxxxx | ||
| Date: | 1/29/09 | ||
EXHIBIT
1
COVENANTS
AGREEMENT
This
COVENANTS AGREEMENT
(“Agreement”) is made this 29th day of January, 2009, (the “Effective Date”),
between Internap Network Services Corporation (“Internap”) and Xxxxx
X. XxXxxxxx (“You” or “Your”) (collectively, the “Parties”).1
For and
in consideration of ten dollars, and other good and valuable consideration, the
receipt and sufficiency of which are acknowledged, You agree to the following
terms:
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1.
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Acknowledgments. You
acknowledge and agree that:
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(a)
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Your
position as an employee with Internap was a position of trust and
responsibility with access to Confidential Information, Trade Secrets, and
information concerning Employees, Customers, and Prospective Customers of
Internap;
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(b)
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the
Trade Secrets and Confidential Information, and the relationship between
Internap and its Employees, Customers, and Prospective Customers, are
valuable assets of Internap which may not be used for any purpose other
than Internap’s Business;
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(c)
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the
names of Customers and Prospective Customers are considered Confidential
Information of the Business which constitutes valuable, special, and
unique property of Internap;
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(d)
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Customer
and Prospective Customer lists, and Customer and Prospective Customer
information, which have been compiled by Internap represents a material
investment of Internap’s time and
money;
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(e)
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Internap
invested its time and money in the development of Your skills in the
Business; and
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(f)
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the
restrictions contained in this Agreement, including, but not limited to,
the restrictive covenants set forth in Sections 2 – 6 below, are
reasonable and necessary to protect the legitimate business interests of
Internap, and they do not impair or infringe upon Your right to work or
earn a living subsequent to Your employment with
Internap.
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2.
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Trade Secrets and
Confidential Information.
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(a)
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You
represent and warrant that:
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(i)
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You
are not subject to any legal or contractual duty or agreement that would
prevent or prohibit You from performing Your duties for Internap or
complying with this Agreement, and
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(ii)
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You
are not in breach of any legal or contractual duty or agreement, including
any agreement concerning trade secrets or confidential information, owned
by any other person or entity.
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(b)
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You
shall not:
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__________________________________
1 Unless
otherwise indicated, all capitalized terms used in this Agreement are defined in
the “Definitions” set forth in Exhibit A. Exhibit A is incorporated
by reference and is included in the definition of
“Agreement.”
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(i)
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use,
disclose, or reverse engineer the Trade Secrets or the Confidential
Information for any purpose except as authorized in writing by
Internap;
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(ii)
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use,
disclose, or reverse engineer (a) any confidential information or trade
secrets of any former employer or third party, or (b) any works of
authorship developed in whole or in part by You during any former
employment or for any other party, unless authorized in writing by the
former employer or third party; or
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(iii)
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(a)
retain Trade Secrets or Confidential Information, including any copies
existing in any form (including electronic form), or (b) destroy, delete,
or alter the Trade Secrets or Confidential Information without Internap’s
prior written consent.
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(c)
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The
obligations under this Agreement
shall:
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(i)
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with
regard to the Trade Secrets, remain in effect as long as the information
constitutes a trade secret under applicable law;
and
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(ii)
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with
regard to the Confidential Information, remain in effect during the
Restricted Period.
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(d)
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The
confidentiality, property, and proprietary rights protections available in
this Agreement are in addition to, and not exclusive of, any and all other
rights to which Internap is entitled under federal and state law,
including, but not limited to, rights provided under copyright laws, trade
secret and confidential information laws, and laws concerning fiduciary
duties.
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3. Non-Disclosure of Customer
or Prospective Customer Information. During the Restricted
Period, You shall not, except as authorized by Internap, divulge or make
accessible to any person or entity (i) the names of Customers or Prospective
Customers, or (ii) any information contained in Customers’ or Prospective
Customers’ accounts.
4. Non-Solicitation of
Customers. During the Restricted Period, You shall not,
directly or indirectly, solicit any Customer of Internap for the purpose of
selling or providing any products or services competitive
with the Business. The restrictions set forth in this Section apply
only to Customers with whom You had Contact during the term of Your
employment. Nothing in this Section shall be construed to prohibit
You from soliciting any Customer of Internap for the purpose of selling or
providing any products or services competitive with the Business: (i) which You
never sold or provided while employed by Internap; (ii) to a Customer that
explicitly severed its business relationship with Internap unless You, directly
or indirectly, caused or encouraged the Customer to sever the relationship; or
(iii) which products or services Internap no longer offers.
5. Non-Solicitation of
Prospective Customers. During the Restricted Period, You shall
not, directly or indirectly, solicit any Prospective Customer of Internap for
the purpose of selling or providing any products or services competitive
with the Business. The restrictions set forth in this Section apply
only to Prospective Customers with whom You had Contact during the last year of
Your employment with Internap (or during Your employment if employed less than a
year). Nothing in this Section shall be construed to prohibit You
from soliciting any Prospective Customer of Internap for the purpose of selling
or providing any products or services competitive with the Business which
Internap no longer offers.
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6. Non-Recruitment of
Employees. During the Restricted Period, You shall not,
directly or indirectly, solicit, recruit, or induce any Employee to (i)
terminate his employment relationship with Internap, or (ii) work for any other
person or entity engaged in the Business. The restrictions set forth
in this Section shall apply only to Employees (a) with whom You had Material
Interaction, or (b) You, directly or indirectly, supervised.
7. Post-Employment
Disclosure. During the Restricted Period, You shall provide a copy of
this Agreement to persons and/or entities who at any time are likely to be
competitive with Internap’s Business for which You work or consult as an owner,
partner, joint venturer, employee or independent contractor. If,
during the Restricted Period, You work or consult for another person or entity
who at any time is, or is likely to be, competitive with Internap’s Business as
an owner, partner, joint venturer, employee or independent contractor, You shall
provide Internap with such person or entity’s name, the nature of such person or
entity’s business, Your job title, and a general description of the services You
will provide.
8. Injunctive Relief. If
You breach any portion of this Agreement, You agree that:
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(a)
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Internap
would suffer irreparable
harm;
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(b)
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it
would be difficult to determine damages, and money damages alone would be
an inadequate remedy for the injuries suffered by
Internap; and
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(c)
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if
Internap seeks injunctive relief to enforce this Agreement, You shall
waive and shall not (i) assert any defense that Internap has an adequate
remedy at law with respect to the breach, (ii) require that Internap
submit proof of the economic value of any Trade Secret or Confidential
Information, or (iii) require Internap to post a bond or any other
security.
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Nothing
in this Agreement shall limit Internap’s right to any other remedies at law or
in equity.
9. Independent
Enforcement. Each of the covenants set forth in Sections 2 – 6
of this Agreement shall be construed as an agreement independent of (i) each of
the other covenants set forth in Sections 2 – 6, (ii) any other agreements, or
(iii) any other provision in this Agreement, and the existence of any claim or
cause of action by You against Internap, whether predicated on this Agreement or
otherwise, regardless of who was at fault and regardless of any claims that
either You or Internap may have against the other, shall not constitute a
defense to the enforcement by Internap of any of the covenants set forth in
Sections 2 – 6 of this Agreement. Internap shall not be barred from
enforcing any of the covenants set forth in Sections 2 – 6 of this Agreement by
reason of any breach of (i) any other covenant set forth in Sections 2 – 6 of
this Agreement, (ii) any other part of this Agreement, or (iii) any other
agreement with You.
10. Attorneys’
Fees. In the event of litigation relating to this Agreement,
Internap shall, if it is the prevailing party, be entitled to recover attorneys’
fees and costs of litigation in addition to all other remedies available at law
or in equity.
11. Waiver. Internap’s
failure to enforce any provision of this Agreement shall not act as a waiver of
that or any other provision. Internap’s waiver of any breach of this
Agreement shall not act as a waiver of any other breach.
12. Severability. The
provisions of this Agreement are severable. If any provision is determined to be
invalid, illegal, or unenforceable, in whole or in part, the remaining
provisions and any partially enforceable provisions shall remain in full force
and effect.
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14. No Strict
Construction. If there is a dispute about the language of this
Agreement, the fact that one Party drafted the Agreement shall not be used in
its interpretation.
15. Entire
Agreement. This Agreement supersedes any prior communications,
agreements or understandings, whether oral or written, between the Parties
relating to the subject matter of this Agreement.
16. Successors and
Assigns. This Agreement shall be assignable to, and shall
inure to the benefit of, Internap’s successors and assigns, including, without
limitation, successors through merger, name change, consolidation, or sale of a
majority of Internap’s stock or assets, and shall be binding upon
You. You shall not have the right to assign Your rights or
obligations under this Agreement. The covenants contained
in this Agreement shall survive cessation of Your employment with Internap,
regardless of who causes the cessation or the reason for the
cessation.
17. Consent to Jurisdiction and
Venue. You agree that any and all claims arising out of or
relating to this Agreement shall be brought in a state or federal court of
competent jurisdiction in Georgia. You consent to the personal jurisdiction of
the state and/or federal courts located in Georgia. You waive (a) any objection
to jurisdiction or venue, or (b) any defense claiming lack of jurisdiction or
improper venue, in any action brought in such courts.
18. Execution. This
Agreement may be executed in one or more counterparts, including, but not
limited to, facsimiles. Each counterpart shall for all purposes be deemed to be
an original, and each counterpart shall constitute this Agreement.
19. Affirmation. You
acknowledge that You have carefully read this Agreement, You know and understand
its terms and conditions, and You have had the opportunity to ask Internap any
questions You may have had prior to signing this Agreement.
IN
WITNESS WHEREOF, the Parties have signed this Agreement as of the Effective
Date.
| Internap Network Services Corporation |
/s/
Xxxxx X. XxXxxxxx
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| Employee Signature | ||||
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By:
/s/ Xxxxxxx X. Xxxx
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Name: Xxxxxxx X.
Xxxx
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Title: CAO
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| Address: Internap Network Services Corporation | Employee’s Address: | |||
| 000 Xxxxxxxx Xxxxxx, Xxxxx X-000 | ||||
| Xxxxxxx, Xxxxxxx 00000 |
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DEFINITIONS
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A.
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“Business”
shall mean the business of Internap Network Services Corporation,
consisting of content delivery network services, IP services, colocation
services and advertising services.
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B.
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“Confidential
Information” means (a) information of Internap, to the extent not
considered a Trade Secret under applicable law, that (i) relates to the
business of Internap, (ii) possesses an element of value to Internap,
(iii) is not generally known to Internap’s competitors, and (iv) would
damage Internap if disclosed, and (b) information of any third party
provided to Internap which Internap is obligated to treat as confidential,
including, but not limited to, information provided to Internap by its
licensors, suppliers, or customers. Confidential Information
includes, but is not limited to, (i) future business plans, (ii) the
composition, description, schematic or design of products, future products
or equipment of Internap or any third party, (iii) communication systems,
audio systems, system designs and related documentation, (iv) advertising
or marketing plans, (v) information regarding independent contractors,
employees, clients, licensors, suppliers, customers, or any third party,
including, but not limited to, customer lists compiled by Internap, and
customer information compiled by Internap, and (vi) information concerning
Internap’s or a third party’s financial structure and methods and
procedures of operation. Confidential Information shall not
include any information that (i) is or becomes generally available to the
public other than as a result of an unauthorized disclosure, (ii) has been
independently developed and disclosed by others without violating this
Agreement or the legal rights of any party, or (iii) otherwise enters the
public domain through lawful means.
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C.
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“Contact”
means any interaction with a Customer or Prospective Customer, which takes
place in an effort to establish, maintain, and/or further a business
relationship on behalf of Internap.
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D.
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“Customer”
means any person or entity to which Internap has sold its products or
services.
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E.
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“Employee”
means any person who (i) is employed by Internap at the time Your
employment with Internap ends, or (ii) was employed by Internap during the
last year of Your employment with
Internap.
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F.
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“Licensed
Materials” means any materials that You utilize for the benefit of
Internap, or deliver to Internap or Internap’s customers, who (i) do not
constitute Work Product, (ii) are created by You or of which You are
otherwise in lawful possession, and (iii) You
may lawfully utilize for the benefit of, or distribute to, Internap or
Internap’s customers.
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G.
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"Material
Interaction" means any interaction with an Employee, which relates or
related, directly or indirectly, to the performance of Your duties or the
Employee's duties for Internap.
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H.
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“Prospective
Customer” means any person or entity to which Internap has solicited to
sell its products or services.
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I.
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“Restricted
Period” means the one-year period following the termination of Your
employment with Internap.
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J.
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“Trade Secrets” means information
of Internap, and its licensors, suppliers, clients, and customers, without
regard to form, including, but not limited to, technical or nontechnical
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, a list of actual customers, clients, licensors, or
suppliers, or a list of potential customers, clients, licensors, or
suppliers which is not commonly known by or available to the public and
which information (i) derives 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 (ii) is the subject of efforts that are reasonable
under the circumstances to maintain its
secrecy.
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