Exhibit 10.1
GENERAL RELEASE, SEPARATION AND SETTLEMENT AGREEMENT
THIS
AGREEMENT (“Agreement”) is made this 19th day
of August, 2009 (the “Effective Date”) by and between
Tim Sullivan (“Employee”) and Internap Network Services
Corporation (“INTERNAP”), and arises out of the
termination of Employee’s employment.
WHEREAS , INTERNAP has determined that it is in the best
interests of INTERNAP to end Employee’s employment as set
forth herein; and
WHEREAS , Employee and INTERNAP agree that
Employee’s employment with INTERNAP is terminated effective
July 31, 2009 (“Termination 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. (a) Employee’s
employment with INTERNAP will be terminated effective on the
Termination Date.
(b) Employee
acknowledges and agrees that with payment of normal payroll through
the Termination 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
Termination Date.
(c)
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 Two Hundred Seventy-Five Thousand
Dollars ($275,000.00). The parties agree that this
payment will be made to Employee in twelve (12) equal monthly
installments of Twenty-Two Thousand Nine Hundred Sixteen Dollars
and sixty-six cents ($22,916.66) less all lawful withholdings,
beginning on the first regular payroll date following the
expiration of the seven (7) day revocation period set forth in
Paragraph 5(b) of this Agreement, provided that Employee does not
revoke the Agreement within that time
period. Additionally, Employee may elect to continue at
his expense, health insurance coverage under INTERNAP’s
healthcare coverage plan commencing on the Termination 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). Employee shall remit
to INTERNAP payment in full for such health insurance coverage on a
monthly basis, in advance. Employee may, at his written
election, convert any life insurance coverage obtained through
INTERNAP to an individual plan in accordance with the terms of such
coverage.
Separation Agreement - TS
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(d) Employee
understands and agrees that the payments and covenants by INTERNAP
referenced in Paragraph 2 are in consideration for his promises in
this Agreement and that he otherwise is not entitled to this or any
other payment for any reason on account of his separation from
employment with INTERNAP. The parties further understand
and agree that the payment and promises referenced in Paragraph 2
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 whether such amounts are claimed under contract,
INTERNAP’s Employment Security Plan or otherwise.
(e) Employee
agrees that all unvested INTERNAP equity shall expire on the
Termination Date.
3.
Employee acknowledges INTERNAP is relying on Employee’s
compliance with the terms of the Covenants Agreement attached
hereto as Schedule A.
4. (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.
Separation Agreement - TS
(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.
5.
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 forty-five (45) 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 forty-five (45) 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
provided to his under the terms of this Agreement.
(c) Employee
further understands that this Paragraph 5, 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 2 of this Agreement are in
addition to anything of value to which Employee is already
entitled.
6.
(a) 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 of
such investigations, claims or
litigation. 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. Employee agrees that any
participation in the above-referenced matters will be truthful and
factual. Employee will be compensated at the rate of
$150 per hour for his time associated with his participation in the
matters. INTERNAP will reimburse Employee for all
pre-approved reasonable out of pocket expenses incurred in
providing such cooperation.
Separation Agreement - TS
(b) Employee
agrees that, except as may be required by law or compelled through
valid legal process, he will refrain from cooperating with or
assisting in any manner, directly or indirectly (including through
counsel), any other person or entity, including but not limited to
counsel for the plaintiffs in the securities litigation or their
representatives, in the pursuit of any claims, rights, and/or
demands whatsoever which any such person or entity may now or
hereafter have against INTERNAP and/or any companies affiliated
with INTERNAP, and/or their respective officers, directors, and
employees in their capacity as such.
7.
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.
8.
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.
9.
Employee represents that he has returned to INTERNAP any property
of INTERNAP, including, but not limited to, computers, software,
data, keys, identification cards, access cards, credit cards,
telephone cards, parking permits, pagers, business cards, manuals,
and/or business documents of INTERNAP. At
INTERNAP’s request, Employee will confirm in writing the
deletion of any INTERNAP information, data and materials from any
computer or storage devices owned or under the control of
Employee. Employee further agrees that, should he
discover that he does possess or otherwise has custody or control
of any property of INTERNAP, he will return, via hand-delivery or
overnight delivery, such property to: Rhonda Aghaie,
Internap Network Services Corporation, 250 Williams Street, Suite
E-100, Atlanta, GA 30303, within ten (10) days of the discovery of
the existence of such property of INTERNAP.
10. 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.
11. (a) 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.
(b)
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.
Separation Agreement - TS
12. Except
as expressly set forth in this paragraph, 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. Specifically, except (a) as may be otherwise
provided in the Internap Employment Security Plan
(“ESP”), in the event that a Change of Control (as
defined in the ESP) is determined to have transpired within six
months of the Termination Date; (b) the Indemnity Agreement entered
into between you and Internap; and (c) 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.
13. This
Agreement may not be amended or modified except by an agreement in
writing signed by all of the parties hereto.
14. 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
wa
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