Exhibit 10.41
SEVERANCE AGREEMENT AND
RELEASE
This Severance Agreement and Release
(“Agreement”) is entered into effective
October 31, 2008, by and between David Belle-Isle (hereinafter
“Employee” or “Belle-Isle”) and Rackspace
US, Inc. acting on its own behalf as well as on behalf of all
related entities, both parent and subsidiaries, specifically
including Rackspace Hosting, Inc. (hereinafter collectively
“Rackspace”). Hereinafter, Employee and Rackspace shall
collectively be called the Parties.
RECITALS:
WHEREAS, Employee was employed as
Rackspace’s Senior Vice President, Human Resources effective
October 1, 2007;
WHEREAS, the Parties have agreed
that it is in their respective best interests for the employment
relationship to end, and that Employee has determined to resign
effective as of the date hereof, and to enter into this Agreement
pursuant to which Employee will receive certain consideration and
will release Rackspace from all liabilities.
NOW, THEREFORE, for and in
consideration of the mutual covenants contained herein, and other
good and valuable consideration, the receipt and legal sufficiency
of which are hereby acknowledged, Rackspace and Employee agree as
follows:
1. Resignation . Employee
hereby resigns as an employee and officer of Rackspace. The
effective date of Employee’s termination from employment and
resignation from all officer positions shall be October 31,
2008 (“Departure Date”).
2. Payments and Other
Considerations .
a. In consideration of the Release
being given by Employee hereunder, Rackspace agrees to pay to
Employee the sum of $151,667 as severance and $10,739.96 for unused
earned time off (ETO). These payments will be made within thirty
days after the date hereof.
b. As further consideration for this
Agreement, Rackspace agrees that Employee will have the right to
retain 93,750 Vested Options issued pursuant to the Rackspace, Inc.
Stock Option Agreement, with a Date of Grant of October 1,
2007, and Employee will have the right to exercise these 93,750
Vested Options in accordance with said stock option agreement until
April 30, 2009, and Employee’s right to exercise said
93,750 Vested Options shall not terminate as a result of him not
being a Service Provider until April 30, 2009. All other
non-vested options under the October 1, 2007 Rackspace Inc.
Stock Option Agreement shall terminate as of the date hereof. The
October 1, 2007 Rackspace Inc. Stock Option Agreement is
hereby amended to incorporate the foregoing agreement.
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c. Employee acknowledges and agrees
that the payments to be made hereunder shall be accepted by
Employee as, and shall be considered as, payments for the releases
granted hereby, and in lieu of notice for unemployment compensation
purposes. In addition, Rackspace will pay Employee all reasonable
unreimbursed expenses in accordance with company policy.
d. Rackspace will allow Employee to
keep his cell phone, and his cell phone number, for use on
Employee’s personal cell phone plan. Rackspace will
facilitate this by agreeing to port the number to Employee’s
cell phone provider.
e. Rackspace shall not be obligated
to make any further or additional payment to Employee in any amount
or for any purpose whatsoever.
3. Release .
a. As a material inducement to
Rackspace to pay the consideration described above, together with
the Employee’s agreement to forego the actions herein
described, Employee hereby releases, waives, acquits and forever
discharges Rackspace, its predecessors, successors, parents,
subsidiaries, assigns, agents, directors, officers, employees,
representatives, attorneys, affiliated companies, and all persons
acting by, through, under or in concert with any of them, from any
and all charges, complaints, claims, controversies, demands,
rights, disputes, and causes of action of any nature whatsoever,
known or unknown, asserted or unasserted, accrued or not accrued,
arising before or existing when this Agreement is executed, which
Employee may have or claim to have against any of the persons or
entities released regarding any matter.
b. This release and waiver
specifically includes but is not limited to any claim or cause of
action arising under Title VII of the Civil Rights Act of 1964, 42
U.S.C.A. §§ 2000 et seq. , as amended by the
Civil Rights Act of 1991; the Americans With Disabilities Act, 42
U.S.C. §§ 12101 et seq .; 42 U.S.C.
§§ 1981; the Civil Rights Act of 1991, as amended;
the Texas Commission on Human Rights Act, Tex. Lab. Code
§§21.001 et seq. ; Texas Labor Code
§§451.001 et seq. ; the Age Discrimination in
Employment Act of 1967, as amended, 29 U.S.C. §§ 621
et seq. ; the Older Workers Benefit Protection Act of 1990;
the Employment Retirement Income Security Act of 1974, 29 U.S.C.
§§ 1001 et seq. ; the Family and Medical
Leave Act; the Fair Labor Standards Act; or any other federal,
state or local statute or common law cause of action of similar
effect regarding employment related causes of action of employees
against their employer, or for breach of contract, promissory
estoppel or any other legal theory.
c. This release and waiver
specifically includes but is not limited to any claim or cause of
action arising under the Age Discrimination in Employment Act of
1967, as amended 29 U.S.C. §§ 621 et seq ., and
the Older Workers Benefit Protection act of 1990. Employee
acknowledges that he is not waiving claims that may arise after
this Agreement has become enforceable. Employee acknowledges that
he is receiving benefits under this Agreement to which he would not
otherwise be entitled.
d. Employee is advised to review
this Agreement with an attorney concerning its effect prior to
executing it.
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e. Employee acknowledges that the
payments and other considerations to be received pursuant to this
Agreement, as specifically set forth above at Paragraph 2, are more
than Employee would otherwise be entitled, and constitutes valid
consideration for this Agreement.
f. In further consideration for the
payments and other considerations set forth in Paragraph 2,
Employee agrees to: (1) not assert any claims described in or
otherwise released by the preceding paragraphs against Rackspace or
the affiliated or related entities, officers, agents, directors,
servants, staff or employees of Rackspace, or any and all parties
in privity with Rackspace; and (2) indemnify and hold harmless
Rackspace and the affiliated or related entities, officers, agents,
directors, servants, staffs or employees of Rackspace and any and
all parties in privity with Rackspace, for any claims described in
Paragraphs 3(a) and 3(b) which may be asserted by the Employee or
any other person or entity claiming by, through, under or on behalf
of Employee.
g. Employee further acknowledges and
agrees that except as set
