AGREEMENT
THIS AGREEMENT (“Agreement”) is made this 29th day
of January, 2009 (the “Effective Date”) by and between
James P. DeBlasio (“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.
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.
(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.
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, 250 Williams Street, Suite E-100, Atlanta, GA
30303.
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
