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EXHIBIT 10.6
EMPLOYMENT AGREEMENT
THIS AGREEMENT which was first made and entered into as of December 2,
1999 and is hereby amended and restated this ___ day of May, 2000, by and
between INTERLAND, INC., a Georgia corporation (the "Company"), headquartered in
Atlanta, Georgia, and XXXXXXX XXXXXXXXXX ("Executive"), an individual performing
services for the Company and residing in Atlanta, Georgia.
WHEREAS, the Company desires to continue to employ Executive and to
establish certain terms and conditions of his employment by entering into an
employment agreement with Executive as hereinafter provided;
WHEREAS, Executive desires to accept such continued employment with the
Company on the terms and conditions provided herein; and
WHEREAS, in the course of his employment, Executive will gain knowledge
of the business, affairs, finances, management, marketing programs and
philosophy, suppliers, distributors, customers, clients and methods of operation
of the Company and the Company would suffer irreparable harm if Executive were
to use such knowledge, information and business acumen in competition with the
Company or other than in the proper performance of his duties hereunder.
THEREFORE, in consideration of the premises and the mutual covenants
and agreements contained herein, the parties hereby agree as follows:
1. Employment and Term. (a) Subject to the terms and conditions
of this Agreement, the Company hereby employs Executive, and Executive hereby
accepts employment, as Chief Executive Officer and President of the Company and
shall have such responsibilities, duties and authority as may from time to time
be assigned to Executive by the Board of Directors. Executive hereby agrees that
during the Term of this Agreement he will devote substantially all his working
time, attention and energies to the diligent performance of his duties as Chief
Executive Officer and President of the Company, provided that the Executive may
also serve on boards of directors or trustees of other companies and
organizations, as long as such
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service does not materially interfere with the performance of his duties
hereunder. Nothing herein shall preclude the Board, in its sole discretion, from
changing Executive's title and duties if the Board has concluded in its
reasonable judgment that such change is in the Company's best interests, subject
to the terms of Section 12(h) of this Agreement.
(b) Unless earlier terminated as provided in Section 3,
Executive's employment under this Agreement shall be for a term of 3 year(s),
commencing on December 2, 1999 and ending on December 2, 2002. Executive's
employment with the Company shall end with the termination of this Agreement
unless the Company gives Executive written notice not less than thirty (30) days
before the expiration of this Agreement that the Company desires to continue
Executive's employment. If such notice is given, upon the expiration of this
Agreement, Executive shall continue to be employed by the Company as an "at
will" employee on the same basis as other Company employees who are "at will"
and do not have employment agreements.
(c) Executive warrants that Executive is not under any obligation,
contractual or otherwise, limiting or affecting Executive's ability or right to
perform freely services for Company. Upon execution of this Agreement, Executive
will give Company a copy of any agreement, or notify Company of any agreement if
a written agreement is not available, with a prior employer or other Person
purporting to limit or affect Executive's ability or right to perform services
for Company, to solicit customers or potential customers, to solicit the
employees or independent contractors of a prior employer or other Person, or to
use any type of information, including any and all non-competition,
non-solicitation, confidentiality and related agreements.
2. Compensation and Benefits. As compensation for his services
during the Term of this Agreement, Executive shall be paid and receive the
amounts and benefits set forth below:
(a) An initial base salary ("Initial Base Salary") of $180,000.00,
subject to withholding of all applicable taxes, expressed as an annual amount
but payable in equal installments shall be paid to Executive. Executive's
Initial Base Salary shall be reviewed for adjustments at such time as the Board
conducts salary reviews for its executive management generally, but not less
frequently than annually and Executive's Base Salary shall be increased not less
than 10% annually. Notwithstanding the foregoing, upon the Company's completion
of a public offering of its equity securities, Executive's Base Salary rate
shall increase to
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$250,000.00 per year, subject to withholding of all applicable taxes.
Executive's salary shall be payable in accordance with the Company's regular
payroll practices in effect from time to time for executive management of the
Company.
(b) Executive shall annually be entitled to receive at a minimum
options for a number of shares equivalent to $200,000 divided by the fair market
value of such shares on the date of grant as determined in good faith by the
Board of Directors of the Company to be issued at an exercise price equal to the
fair market value per share on that date.
(c) Executive shall be entitled to participate in the Company's
stock option plan, at the discretion of the Board, and the amount and terms of
any stock option grant shall be set forth in a separate agreement.
(d) Executive shall participate in, or receive benefits under, any
then current "employee benefit plan" (as defined in Section 3(3) of the Employee
Retirement Income Security Act of 1974, as amended) or employee benefit
arrangement made available by the Company to its executives generally, including
plans (to the extent offered) providing 401(k) benefits, health care, life
insurance, disability and similar benefits.
3. Benefits Upon Termination.
(a) If Executive's employment is terminated either by the Company
(other than for Cause) or by the Executive for Good Reason or if Executive
becomes Disabled, Executive shall be entitled to the payments and benefits in
(b) and (c) below. If Executive dies prior to his termination of employment, his
designated beneficiary or beneficiaries will be entitled to the payments in (d)
below. Payments and benefits under subsections (b) and (c) are subject to
Executive's execution of a separation agreement acceptable to the Company which
will include a complete release of any and all claims relating to his
employment. If Executive's employment is terminated by the Company for Cause or
by the Executive voluntarily (other than for Good Reason), this Agreement shall
end as of the Termination Date of Executive's employment and Executive will be
entitled to no further payments or benefits (except as otherwise required by
law). The Term of this Agreement automatically ends as of the Termination Date.
The provisions of Sections 4-12 survive any termination of this Agreement or
termination of employment, other than by reason of Executive's death.
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(b) Subject to and in accordance with the provisions of Section
3(a), Executive shall continue to receive Executive's Base Salary as then in
effect (subject to withholding of all applicable taxes) for the period
commencing as of the Termination Date and continuing until the later of (1) end
of the Term of this Agreement set forth in Section 1(b) or (2) one year. Payment
shall be made in the same manner as it was being paid as of the Termination
Date; provided that if Executive terminates employment for Good Reason due to a
reduction in Executive's Base Salary, Executive's Base Salary shall be paid at
the rate in effect immediately before such reduction for purposes of this
subsection. During any period that he is paid hereunder, Executive shall be on
call to consult with the Company with respect to the Company's Business at
reasonable times and places and upon reasonable notice. Reasonable out of pocket
business expenses incurred in connection with such consulting shall be
reimbursed. Any amounts Executive has due and owing to the Company may offset
any amounts paid under this Agreement.
(c) If Executive properly elects COBRA coverage for group health
benefits upon his Termination Date and timely pays the premiums charged, if any,
under the Company's group health plan to active employees for the coverage
elected, Company shall pay the balance of Executive's COBRA premiums during the
period payments are made under Section 3(b) above but not beyond the COBRA
continuation period. Thereafter, Executive will be charged the normal COBRA
premium for any remaining period of COBRA coverage. Group term life insurance
benefits, if any, shall be continued at the same level and in the same manner as
for active employees during the period payments are made under Section 3(b)
above. Any additional coverages Executive had at termination, including
dependent coverage, will also be continued for the period during which payments
are made under Section 3(b) on the same terms as before termination and to the
extent permitted by the applicable policies or contracts. Any costs Executive
was paying for such coverages at the time of termination shall be paid by
Executive through deduction from the amounts payable under Section 3(b) or, if
such withholding cannot be done, by separate check payable to the Company each
month in advance. If Executive qualifies (or would qualify) for the Company's
long term disability plan, the effective date of long term disability plan
coverage shall be treated as a Date of Termination for purposes of this Section
3.
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(d) If the Executive dies prior to termination of employment under
Section 3(a) above, his designated beneficiary or beneficiaries will be entitled
to receive amounts (subject to applicable taxes) equal to Executive's Base
Salary as in effect at the date of death for a period from the date of death to
the later of (1) the end of the Term of this Agreement set forth in Section 1(b)
or (2) one year. Amounts shall be paid in installments in the same manner as the
Executive was being paid as of his date of death. Members of Executive's family
shall be entitled to continuation of benefits in accordance with Company
policies.
4. Confidential Information. During the term of employment and
continuing subsequent to any termination or expiration of this Employment
Agreement, Executive shall maintain Confidential Information as secret and
confidential unless Executive is required to disclose Confidential Information
pursuant to the terms of a valid and effective order issued by a court of
competent jurisdiction or a governmental authority. Executive shall use
Confidential Information solely for the purpose of carrying out those duties
assigned him as an employee of Company and not for any other purpose. The
disclosure of Confidential Information to Executive shall not be construed as
granting to Executive any license under any copyright, trade secret or any right
of ownership or right to use the information whatsoever. All physical items,
including electronic media, containing Confidential Information, including,
without limitation, any business plan, Company know-how, collection methods and
procedures, advertising techniques, marketing plans and methods, sales
techniques, documentation, contracts, reports, letters, notes, any computer
media, client lists, and all other information and materials of Company's
business and operations, shall remain the exclusive and confidential property of
Company and shall be returned, along with any copies or notes of Executive made
thereof or therefrom, to Company when Executive ceases his employment with
Company.
5. Non-Disparagement. Executive shall not at any time make false,
misleading or disparaging statements, or statements that could reasonably be
interpreted as such, about the Company, including its products, services,
management, employees, and customers.
6. Non-Solicitation of Customers. Executive hereby covenants and
agrees that at no time during Executive's employment with Company and for a
period of one year immediately following termination of Executive's employment
with Company, whether voluntary or involuntary, shall Executive act in any way,
directly or indirectly, with the purpose or effect of
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soliciting, diverting or taking away any strategic partner, business, customer,
client or supplier of Company that Executive contacted, directly or indirectly,
or that anyone directly or indirectly supervised by Executive contacted,
directly or indirectly, during Executive's employment with Company.
7. Non-Solicitation of Employees. Executive hereby covenants and
agrees that at no time during Executive's employment with Company and for a
period of one year immediately following termination of Executive's employment
with Company, whether voluntary or involuntary, will Executive act in any way
with the purpose or effect of soliciting, recruiting, or encouraging, directly
or indirectly, any Person who is or was at any time during the one year period
prior to the Termination Date to leave the employ of Company, its divisions or
its subsidiaries.
8. Limitations on Post-Termination Competition. Executive hereby
covenants and agrees that at no time during Executive's employment with Company
and for a period of one year immediately following termination of Executive's
employment with Company, whether voluntary or involuntary, Executive shall not
perform Services within the Territory for any Person providing or offering goods
or services identical to or reasonably substitutable for Company's Business.
Executive acknowledges that (i) this covenant has unique, substantial, and
immeasurable value to Company, (ii) this covenant is reasonably limited in scope
and geography to protect Company's legitimate business interests, including its
property, confidential information and relationships, good will, economic
advantage, and customer relationships; (iii) the agreements, covenants and
undertakings of Executive set forth in this Agreement will not preclude
Executive from becoming gainfully employed following termination of employment
with Company; and (iv) the services Executive intends and is expected to provide
are special and unique.
9. Works. Executive acknowledges that Executive's work on and
contributions to documents, programs, methodologies, protocols, and other
expressions in any tangible medium (collectively, "Works") are within the scope
of Executive's employment and part of Executive's duties, responsibilities or
assignment. Executive's work on and contributions to the Works will be rendered
and made by Executive for, at the instigation of, and under the overall
direction of, Company, and all such work and contributions, together with the
Works, are and at all times shall
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be regarded, as "work made for hire" as that term is used in the United States
Copyright Laws. Without limiting this acknowledgment, Executive assigns, grants,
and delivers exclusively to Company all rights, titles, and interests in and to
any such Works, and all copies and versions, including all copyrights and
renewals. Executive will execute and deliver to Company, its successors and
assigns, any assignments and documents Company requests for the purpose of
establishing, evidencing, and enforcing or defending its complete, exclusive,
perpetual, and worldwide ownership of all rights, titles, and interests of every
kind and nature, including all copyrights, in and to the Works, and Executive
constitutes and appoints Company as its agent to execute and deliver any
assignments or documents Executive fails or refuses to execute and deliver, this
power and agency being coupled with an interest and being irrevocable.
10. Inventions and Ideas. Executive shall disclose promptly to
Company, and only to Company, any invention or idea of Executive (developed
alone or with others) conceived or made during Executive's employment by Company
or within six months of the Termination Date. Executive assigns to Company any
such invention or idea in any way connected with Executive's employment or
related to Company's business, research or development, or demonstrably
anticipated research or development, and will cooperate with Company and sign
all papers deemed necessary by Company to enable it to obtain, maintain, protect
and defend patents covering such inventions and ideas and to confirm Company's
exclusive ownership of all rights in such inventions, ideas and patents, and
irrevocably appoints Company as its agent to execute and deliver any assignments
or documents Executive fails or refuses to execute and deliver promptly, this
power and agency being coupled with an interest and being irrevocable. This
constitutes the Company's written notification that this assignment does not
apply to an invention for which no equipment, supplies, facility or trade secret
information of the Company was used and which was developed entirely on
Executive's own time, unless (a) the invention relates (i) directly to the
business of the Company, or (ii) to the Company's actual or demonstrably
anticipated research or development, or (b) the invention results from any work
performed by Executive for the Company.
11. Relief for Breach. Because any breach or threatened breach of
Sections 4 through 10 of this Agreement by Executive 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 Executive's breach or
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threatened breach of this Agreement. Injunctive relief is in addition to any
other available remedy, including termination of this Agreement and damages. In
the event of any threatened breach by Executive, Company may suspend any payment
due to Executive under Paragraph 3 and if Executive has breached this Agreement,
any remaining amounts to be paid under Paragraph 3 shall be forfeited. In the
event of any breach or threatened breach by either Executive or the Company
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.
12. Definitions. For purposes of this Agreement, the following
definitions shall apply:
(b) "Board" or "Board of Directors" - means the Board of Directors
of the Company.
(c) "Business" - means Company's business of hosting, designing
and developing Web sites and supporting resellers of Web hosting services and
hosts of large Web sites through co-location and dedicated server programs.
(d) "Cause" - means the termination of Executive by the Company
for one or more of the following reasons:
(1) If, in its good faith judgment, the Board determines
that Executive has committed an act or acts which constitute a felony
(other than traffic-related offenses);
(2) If, in its good faith judgment, the Board determines
that the Executive has violated laws or Company policies which result
in material injury to the Company;
(3) If the Executive commits an act or acts of dishonesty
or fraud resulting or intended to result directly or indirectly in
significant gain or personal enrichment to the Executive at the expense
of the Company or to the significant detriment of the Company;
(4) Upon the willful and continued failure by the
Executive substantially to perform his duties with the Company (other
than any such failure resulting from incapacity due to mental or
physical illness constituting a Disability, as defined herein); or
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(5) If, in its good faith judgment, the Board determines
that the Executive has violated or threatened to violate the provisions
of Paragraphs 4 to 10 above or any other material breach of this
Agreement.
Executive shall not be deemed to have been involuntarily terminated for Cause
unless and until there shall have been delivered to him a copy of a resolution
duly adopted by the Board, finding that, in the good faith opinion of the Board,
Executive engaged or threatened to engage in conduct set forth above and
specifying the particulars thereof in detail. For purposes of subsections (2),
(3), (4) and (5), the Board must also deliver to Executive a demand in writing
for performance or cure, which demand specifically identifies the manner in
which the Board believes that Executive's conduct falls within such subsection
and details the Board's requirements for Executive to "cure" such conduct, if
appropriate. Involuntary termination occurs when Executive fails to "cure"
within the time period given by the Board and in accordance with the terms
provided by the Board. For purposes of this Agreement, no act or failure to act
by Executive shall be deemed to be "willful" unless done or omitted to be done
by Executive not in good faith and without reasonable belief that Executive's
action or omission was in the best interests of the Company.
(e) "Confidential Information" - means information, without regard
to form, relating to Company's customers, operation, finances, and business that
derives economic value, actual or potential, from not being generally known to
other Persons, including, but not limited to, technical or nontechnical data,
formulas, patterns, compilations (including compilations of customer
information), programs, models, concepts, designs (including without limitation,
designs for Company's remote development and consulting center) devices,
methods, techniques, processes, financial data or lists of actual or potential
customers (including identifying information about customers), whether or not in
writing. Confidential Information includes information disclosed to Company by
third parties that Company is obligated to maintain as confidential.
Confidential Information subject to this Agreement may include information that
is not a trade secret under applicable law, but information not constituting a
trade secret only shall be treated as Confidential Information under this
Agreement for a three year period after the Termination Date.
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(f) "Customers" - means strategic partners or customers of
Company's Business (1) that Executive contacted directly or supervised directly
or indirectly through others contacting on behalf of Company during the one year
period preceding the Termination Date; or (2) about whom Executive possessed
Confidential Information during the one year period preceding the Termination
Date.
(g) "Disability" - means the meaning ascribed to such term or its
variations, such as "Disabled", in the Company's long-term disability plan
covering the Executive, or in the absence of such plan, a meaning consistent
with Section 22(e)(3) of the Code.
(h) "Good Reason" means that one or more of the following has
occurred and, after giving the Company written notice of the occurrence and of
Executive's intention to resign from employment and the Company not curing the
event within 30 days of such written notice:
(i) a material diminution of position, duties,
responsibilities, authority or title or the
assignment of duties materially inconsistent with
Executive's position;
(ii) a reduction in Executive's Base Salary (annualized
rate);
(iii) relocation of Executive's work location outside an
area within a 50 mile radius of the city limits of
Atlanta, Georgia;
(iv) a material breach of this Agreement by the Company;
or
(v) the failure of a successor to the Company to assume
in writing this Agreement upon becoming a successor
or assignee of the Company.
Notwithstanding the foregoing, Executive's written consent to the
occurrence of any matter of Good Reason is a waiver of Executive's rights under
this Agreement to terminate his employment for that Good Reason.
(i) "Person" - means any individual, corporation, bank,
partnership, joint venture, association, joint stock company, trust,
unincorporated organization or other entity.
(j) "Termination Date" - means the last day Executive is employed
by or providing services for Company, whether the separation is voluntary or
involuntary, with or without Cause, or with or without advance notice.
(k) "Territory" - means anywhere in the United States. Executive
acknowledges that Executive will perform services on behalf of Company in the
Territory.
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13. Change in Control Payments.
(a) Anything in this Agreement to the contrary
notwithstanding, in the event it shall be determined (as hereafter provided)
that any payment or distribution to or for the Executive, whether paid or
payable or distributed or distributable pursuant to the terms of this Agreement
or pursuant to or by reason of any other agreement, policy, plan, program or
arrangement (including, without limitation, any employment agreement, stock plan
or salary continuation agreement), or similar right (a "Payment"), would be
subject to the excise tax imposed by Section 4999 of the Code (or any successor
provisions thereto), or any interest or penalties with respect to such excise
tax (such excise tax, together with any such interest and penalties, are
hereafter collectively referred to as the "Excise Tax"), then the Executive
shall be entitled to receive an additional payment or payments (a "Gross-Up
Payment") from the Company. The total amount of the Gross-Up Payment shall be an
amount such that, after payment by (or on behalf of) the Executive of any Excise
Tax and all federal, state and other taxes (including any interest or penalties
imposed with respect to such taxes) imposed upon the Gross-Up Payment, the
remaining amount of the Gross-Up Payment is equal to the Excise Tax imposed upon
the Payments but in no event shall the Gross-Up Payment, plus any amounts
withheld for taxes on account of such payments, exceed one million dollars
($1,000,000). For purposes of clarity, the amount of the Gross-Up Payment shall
be that amount necessary to pay the Excise Tax in full and all taxes assessed
upon the Gross-Up Payment.
(b) An initial determination as to whether a Gross-Up
Payment is required pursuant to this Section 13 and the amount of such Gross-Up
Payment shall be made by an accounting firm selected by the Company and
reasonably acceptable to the Executive which is then designated as one of the
five largest accounting firms in the United States (the "Accounting Firm"). The
Accounting Firm shall provide its determination (the "Determination"), together
with detailed supporting calculations and documentation to the Company and the
Executive as promptly as practicable after such calculation is requested by the
Company or by the Executive, and if the Accounting Firm determines that no
Excise Tax is payable by the Executive with respect to a Payment or Payments, it
shall furnish the Executive with an opinion reasonably acceptable to the
Executive that no Excise Tax will be imposed with respect to any such Payment or
Payments.
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Within fifteen (15) days of the delivery of the Determination to the Executive,
the Executive shall have the right to dispute the Determination (the "Dispute").
The Gross-Up Payment, if any, as determined pursuant to this Section 13 shall be
paid by the Company to the Executive within fifteen (15) days of the receipt of
the Accounting Firm's Determination. The existence of the Dispute shall not in
any way affect the right of the Executive to receive the Gross-Up Payment in
accordance with the Determination. If there is no Dispute, the Determination
shall be binding, final and conclusive upon the Company and the Executive
subject to the application of subsection (c) below.
(c) As a result of the uncertainty in the application of
Sections 4999 and 280G of the Code, it is possible that a Gross-Up Payment (or a
portion thereof) will be paid which should not have been paid (an "Excess
Payment") or a Gross-Up Payment (or a portion thereof) which should have been
paid will not have been paid (an "Underpayment"). An Underpayment shall be
deemed to have occurred upon the earliest to occur of the following events: (1)
upon notice (formal or informal) to the Executive from any governmental taxing
authority that the tax liability of the Executive (whether in respect of the
then current taxable year of the Executive or in respect of any prior taxable
year of the Executive) may be increased by reason of the imposition of the
Excise Tax on a Payment or Payments with respect to which the Company has failed
to make a sufficient Gross-Up Payment, (2) upon a determination by a court, (3)
by reason of a determination by the Company (which shall include the position
taken by the Company, or its consolidated group, on its federal income tax
return), or (4) upon the resolution to the satisfaction of the Executive of the
Dispute. If any Underpayment occurs, the Executive shall promptly notify the
Company and the Company shall pay to the Executive within fifteen (15) days of
the date the Underpayment is deemed to have occurred under (1), (2), (3) or (4)
above, but in no event less than five days prior to the date on which the
applicable government taxing authority has requested payment, an additional
Gross-Up Payment equal to the amount of the Underpayment plus any interest and
penalties imposed on the Underpayment, provided that such additional Gross-Up
Payment when added to any prior Gross-Up Payment does not exceed the $1 million
cap in section (a).
An Excess Payment shall be deemed to have occurred upon a "Final
Determination" (as hereinafter defined) that the Excise Tax shall not be imposed
upon a Payment or Payments (or
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portion of a Payment) with respect to which the Executive had previously
received a Gross-Up Payment. A Final Determination shall be deemed to have
occurred when the Executive has received from the applicable government taxing
authority a refund of taxes or other reduction in his tax liability by reason of
the Excess Payment and upon either (1) the date a determination is made by, or
an agreement is entered into with, the applicable governmental taxable authority
which finally and conclusively binds the Executive and such taxing authority, or
in the event that a claim is brought before a court of competent jurisdiction,
the date upon which a final determination has been made by such court and either
all appeals have been taken and finally resolved or the time for all appeals has
expired, or (2) the statute of limitations with respect to the Executive's
applicable tax return has expired. If an Excess Payment is determined to have
been made, the amount of the Excess Payment shall be treated as a loan by the
Company to the Executive and the Executive shall pay to the Company within 15
days following demand (but not less than 30 days after the determination of such
Excess Payment) the amount of the Excess Payment plus interest at an annual rate
equal to the rate provided for in Section 1274(b)(2)(B) of the Code from the
date the Gross-Up Payment (to which the Excess Payment relates) was paid to the
Executive until the date of repayment to the Company.
(d) Notwithstanding anything contained in this Agreement to the
contrary, in the event that, according to the Determination, an Excise Tax will
be imposed on any Payment or Payments, the Company shall pay to the applicable
government taxing authorities as Excise Tax withholding, the amount of any
Excise Tax that the Company has actually withheld from the Payment or Payments;
provided that the Company's payment of withheld Excise Tax shall not change the
Company's obligation to pay the Gross-Up Payment required under this Section 14.
(e) In addition to the limits otherwise provided in this Section
13, to the extent permitted by law, Executive may in his sole discretion elect
to reduce any payments he may be eligible to receive under this Agreement to
prevent the imposition of excise taxes on Executive under Section 4999 of the
Code.
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14. Contract Non-Assignable. The parties acknowledge that this
Agreement has been entered into due to, among other things, the special skills
of Executive, and agree that this Agreement may not be assigned or transferred
by Executive, in whole or in part, without the prior written consent of the
Company.
15. Successors; Binding Agreement.
(a) In addition to any obligations imposed by law upon any
successor to the Company, the Company will require any successor (whether direct
or indirect, by purchase, merger, consolidation or otherwise) to all or
substantially all of the business and/or assets of the Company to expressly
assume and agree to perform this Agreement, in the same manner and to the same
extent that the Company would be required to perform it if no such succession
had taken place. Failure of the Company to obtain such assumption and agreement
prior to the effectiveness of any such succession shall be a breach of this
Agreement and shall entitle the Executive to compensation from the Company in
the same amount and on the same terms as the Executive would be entitled to
hereunder if the Company terminated the Executive's employment without Cause,
except that, for purposes of implementing the foregoing, the date on which any
such succession becomes effective shall be deemed the Termination Date.
(b) This Agreement shall inure to the benefit of and be
enforceable by Executive's personal or legal representatives, executors,
administrators, successors, heirs, distributees, devisees and legatees. If
Executive shall die while any amount would still be payable to Executive
hereunder (other than amounts which, by their terms, terminate upon the death of
Executive) if Executive had continued to live, all such amounts, unless
otherwise provided herein, shall be paid in accordance with the terms of this
Agreement to the executors, personal representatives or administrators of
Executive's estate.
16. Other Agents. Nothing in this Agreement is to be interpreted
as limiting the Company from employing other personnel on such terms and
conditions as may be satisfactory to the Company.
17. Notices. 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:
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To the Company: Interland, Inc.
000 Xxxxxxxx Xxxxxx, 0xx Xx.
Xxxxxxx, XX 00000
Attention: President
With a copy to: Xxxxxxxxxx Xxxxxxxx LLP
0000 Xxxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000-0000
Attention: Xxxxx X. Xxxxxxxx, Esq.
To the Executive: Xxxxxxx Xxxxxxxxxx
Interland, Inc.
000 Xxxxxxxx Xxxxxx, 0xx Xx.
Xxxxxxx, XX 00000
Any party may change the address to which notices, requests, demands and other
communications shall be delivered or mailed by giving notice thereof to the
other party in the same manner provided herein.
18. Provisions Severable. Rights and restrictions in this
Agreement may be exercised and are applicable only to the extent they do not
violate any applicable laws, and are intended to be limited to the extent
necessary so they will not render this Agreement illegal, invalid, or
unenforceable. If any term shall be held illegal, invalid, or unenforceable by a
court of competent jurisdiction, the remaining terms shall remain in full force
and effect. This Agreement does not in any way limit Company's rights under the
laws of unfair competition, trade secret, copyright, patent, trademark or any
other applicable law(s), which are in addition to rights under this Agreement.
The existence of a claim by Executive, whether predicated on this Agreement or
otherwise, shall not constitute a defense to Company's enforcement of this
Agreement.
19. 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.
20. Amendments and Modifications. This Agreement may be amended or
modified only by a writing signed by both parties hereto. This amendment and
restatement of the
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Agreement shall be effective as of the original effective date and shall be
read as if effective from and after that date.
21. Entire Agreement. This Agreement contains the entire agreement
between the parties hereto with respect to the subject matter hereof and
Executive's employment with the Company. This Agreement supersedes all prior
negotiations, discussions, agreements and undertakings, both written and oral,
among the parties hereto, with respect to Executive's terms and conditions of
employment with the Company. This Agreement may not be enlarged, modified or
altered except in a writing signed by the parties as provided in Section 20
hereof.
22. Governing Law. The validity and effect of this Agreement shall
be governed by and construed and enforced in accordance with the laws of the
State of Georgia. Each party irrevocably (a) consents to the exclusive
jurisdiction and venue of the courts of Xxxxxx County, State and federal courts
in the Northern District of Georgia, in any action arising under or relating to
this Agreement, and (b) waives any jurisdictional defenses (including personal
jurisdiction and venue) to any such action.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
EXECUTIVE:
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Xxxxxxx Xxxxxxxxxx
COMPANY:
INTERLAND, INC.
By:
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