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EXHIBIT 10.8
EMPLOYMENT AGREEMENT
THIS AGREEMENT is made and entered into as of February 16, 2000, by
and between INTERLAND, INC., a Georgia corporation (the "Company"),
headquartered in Atlanta, Georgia, and XXXXX X. XXXX ("Executive"), an
individual residing in Marietta, Georgia.
WHEREAS, the Company desires 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 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 Executive Vice President and Chief Financial Officer of
the Company and shall have such responsibilities, duties and authority as may
from time to time be assigned to Executive by the Chief Executive Officer and
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 Executive Vice President
and Chief Financial Officer 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 service does not materially interfere with the
performance of his duties hereunder; provided, further that for the period from
his date of
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employment until March 13, 2000, Executive shall devote such time as is
consistent with his duties as Chief Financial Officer in connection with
the preparation of a Form S-1 Registration Statement for the Company but shall
also be permitted to perform services for his other employer as needed. 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(g) 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
February 16, 2000 and ending on February 16, 2003. 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.
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 $250,000.00,
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. 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.
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(b) Executive shall participate in the Company's bonus incentive
compensation program, as long as it is available to executive officers of the
Company, and, based on Executive's performance, may be entitled to a bonus of
up to 20% of Executive's Base Salary.
(c) In connection with commencement of employment, the Company will
grant to Executive options for 450,000 shares of Company Common Stock, as
granted by the Board and under the terms and conditions set forth in a separate
stock option agreement. Company will enter into an indemnification agreement
with Executive on the same basis as such agreements are entered into with the
Company's directors.
(d) 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.
(e) 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. Without limiting the
foregoing, Executive shall be entitled to two (2) weeks of vacation per year,
in accordance with the Company's vacation pay policy.
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
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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.
(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 Paragraph 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 premium 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
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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.
(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
Paragraph 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.
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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 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.
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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 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
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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
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:
(a) "Board" or "Board of Directors" - means the Board of Directors of
the Company.
(b) "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.
(c) "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);
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(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
(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.
(d) "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,
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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.
(e) "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.
(f) "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.
(g) "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 the Territory;
(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.
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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.
(h) "Person" - means any individual, corporation, bank, partnership,
joint venture, association, joint stock company, trust, unincorporated
organization or other entity.
(i) "Services" - means the services described on the Annex to this
Agreement which is made a part hereof.
(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 the area within a 50 mile radius of the city
limits of Atlanta, Georgia. Executive acknowledges that Executive will perform
services on behalf of Company in the Territory.
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
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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. 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
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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 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.
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(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 13.
(e) In addition to the provisions 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.
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,
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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:
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: Xxxxx X. Xxxx
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
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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.
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.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
EXECUTIVE:
/s/ Xxxxx X. Xxxx
--------------------------------------
Xxxxx X. Xxxx
COMPANY:
INTERLAND, INC.
By: /s/ Xxxxxxx Xxxxxxxxxx
-----------------------------------
Xxxxxxx Xxxxxxxxxx
President & Chief Executive Officer
[ANNEX CONTINUES ON NEXT PAGE]
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ANNEX
TO
NONCOMPETITION PROVISIONS OF SECTION 8
OF EMPLOYMENT AGREEMENT
Name of Employee: Xxxxx X. Xxxx
Title: Executive Vice President and Chief Financial Officer
Description of Services: financial management and accounting services as chief
financial officer
Date of Agreement: February 16, 2000
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