Exhibit 10.1


    
      

    

    Exhibit
      10.1

     

    
      GENERAL
        RELEASE AND SEPARATION AGREEMENT

       

      THIS
        GENERAL RELEASE AND SEPARATION AGREEMENT
        (“Agreement”) is made March 31, 2007 (the “Effective Date”) by and between Eric
        Klinker (“Employee”) and Internap Network Services Corporation (“INTERNAP”), and
        arises out of the termination of Employee’s employment. 

       

      WHEREAS,
        Employee was employed by INTERNAP;

       

      WHEREAS,
        Employee’s employment with INTERNAP was terminated effective 3/31/07,
        (“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
        agrees that he voluntarily resigns his employment with INTERNAP effective
        the
        date that he signs this Agreement (the “End Date”). INTERNAP agrees that it has
        accepted Employee’s resignation from employment effective that date. INTERNAP
        further agrees that it will reflect Employee’s resignation in his personnel file
        and other personnel records.

       

                                     
        (b)    Employee
        acknowledges and agrees that he 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 End Date.

       

                                     
        (c)    Employee
        will not knowingly reapply for employment with INTERNAP, nor will Employee
        knowingly accept any employment or otherwise work for INTERNAP. Employee
        also
        will not accept any employment or assignment from an employer other than
        INTERNAP that would place him on the premises of INTERNAP or otherwise require
        him to perform services on the premises of INTERNAP. Employee agrees that
        his
        forbearance to seek future employment with INTERNAP is purely contractual
        and is
        in no way involuntary, discriminatory, retaliatory, or in violation of any
        contract or policy of INTERNAP. If Employee applies for employment with
        INTERNAP, INTERNAP is under no obligation to process or otherwise act upon
        that
        application.

       

      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

      

       

      3.            
        (a)    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
        Three
        Hundred Thousand Dollars ($300,000.00). The parties agree that this payment
        will
        be made to Employee within seven (7) business days of the execution of this
        Agreement by INTERNAP and Employee. We will attempt to wire these funds to
        Mr.
        Klinker’s personal bank. Employee understands and agrees that the payment and
        covenants by INTERNAP referenced in this paragraph 3 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 this Paragraph 3(a) 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(b).

       

                                     
        (b)    Employee
        and INTERNAP agree that Employee shall have three months following the Effective
        Date in which to exercise the INTERNAP stock options held by him and that
        were
        vested as of the Effective Date, after which such options shall
        expire.

       

                                     
        (c)    Employee
        may elect to continue, at Employee’s own cost, 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). In
        the
        event Employee elects to continue such health insurance coverage, Employee
        shall
        remit to INTERNAP payment in full for such health insurance coverage on a
        monthly basis, in advance, and Employee will be eligible to convert any life
        insurance coverage to an individual plan.

       

      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, 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 him 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. The waiver of remedies above also 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 Employee’s right to challenge
        the validity of this Agreement under the law.

       

      5.             (a)    For
        purposes of this Agreement, the term “Confidential Information” shall mean
        information, without regard to form, relating to INTERNAP and its affiliates
        and
        their employees, customers, vendors and/or suppliers that derives economic
        value, actual or potential, from not being known to others, including, but
        not
        limited to, business development strategies, potential projects and purchases,
        information technology, research and development, production, services,
        processes, equipment, policies, procedures, customer services, contracts
        and
        specific terms of contracts with and proposals to, customers, clients and
        other
        organizations with which INTERNAP does business or seeks to do business;
        the
        type, quantity and specifications of products purchased by or from customers
        and/or by suppliers; lists and other information about current or prospective
        clients, vendors or suppliers (including compilations of such information);
        plans or strategies for sales, marketing, purchases, acquisitions, ventures,
        or
        other business development; sales and account records, prices and pricing
        strategies/information, current and proposed advertising and promotional
        programs, methods, systems, techniques, procedures, designs, formulae,
        inventions and know-how, whether or not in writing; and includes information
        disclosed to INTERNAP by third parties that INTERNAP is obligated to maintain
        as
        confidential information.

      
         

        
          
            
            

          

          
            
            

            
              

            

          

          
            
            

          

        

      

       

                                     
        (b)    For
        purposes of this Agreement, the term “Trade Secret” shall mean information,
        without regard to form, including, but not limited to, technical or
        non-technical data, a formula, a pattern, a compilation, a program, a device,
        a
        method, a technique, a drawing, a process, financial data, financial plans,
        product plans, or a list of actual or potential customers or suppliers which
        is
        not commonly known by or available to the public and which
        information:

       

      
        	
              	 (1)	
                derives
                  independent economic value, actual or potential, from not being
                  generally known to, and not being readily ascertainable by proper
                  means by, other persons who can obtain economic value from
                  its disclosure or use; and 

              


      

       

      
        	
              	 (2)	
                is
                  the subject of efforts that are reasonable under the circumstances
                  to
                  maintain its secrecy. 

              


      

       

                                     
        (c)    To
        the
        extent that the above definitions contained in Paragraphs 5(a) and 5(b) are
        inconsistent with the definitions of “Confidential Information” and “Trade
        Secret” mandated under applicable law, the foregoing definitions shall be deemed
        amended to the degree necessary to render them consistent with applicable
        law.


       

                                     
        (d)    In
        recognition of the need of INTERNAP Releasees to protect their legitimate
        business interests, Employee hereby covenants and agrees that: (1) with regard
        to each item that under Georgia law is a Trade Secret of INTERNAP Releasees,
        at
        all times during which such item remains a Trade Secret under Georgia law;
        and
        (2) with regard to each item under which Georgia law is INTERNAP Confidential
        Information, for a period of two (2) years after the Effective Date of this
        Agreement, Employee shall regard and treat each item constituting all or
        any
        portion of the Trade Secrets and Confidential Information as strictly
        confidential and wholly owned by the INTERNAP Releasees, and will not, for
        any
        reason in any fashion, either directly or indirectly use, sell, lend, lease,
        distribute, license, transfer, assign, show, disclose, disseminate, reproduce,
        copy, or otherwise communicate any such item or information to any third
        party,
        for his/her own benefit or for any purpose other than in accordance with
        the
        express, written instructions of INTERNAP Releasees.

       

      6.    
Any
        dispute concerning violation(s) of any provision in this Agreement shall
        be
        resolved by confidential arbitration to take place in Atlanta, Georgia. The
        prevailing party in the arbitration proceedings shall recover all reasonable
        attorneys’ fees incurred. Arbitration conducted pursuant to the Employment
        Arbitration Rules and Procedures of the American Arbitration Association
        shall
        be the sole and exclusive remedy for enforcing a breach of any provision
        of this
        Agreement. Discovery available in accordance with the Federal Rules of Civil
        Procedure shall be available in any arbitration proceeding between the parties.
        Employee and INTERNAP acknowledge their understanding and agreement by
        initialing below.

       

               /s/
        EK

       

                      
        /s/ DB

      
         

        
          
            
            

          

          
            
            

            
              

            

          

          
            
            

          

           

        

      

                                     
        (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 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.
        Employee further agrees that he will not be paid for his time associated
        with
        his participation in the matters if his time is less than ten (10) hours
        in any
        given month. If the time commitment exceeds this limit, Employee will be
        compensated at the rate of $200 per hour. INTERNAP will reimburse Employee
        for
        all reasonable out of pocket expenses incurred in providing such
        cooperation.

       

      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.            
        Employee
        expressly understands and agrees to maintain in strict confidence any
        information disclosed in this Agreement and/or in negotiations leading to
        this
        Agreement, the facts and circumstances leading to this Agreement, the contents
        of this Agreement, and the consideration for this Agreement. Employee shall
        take
        reasonable precautions to prevent disclosure of any term of this Agreement
        and/or its negotiations to third persons. Accordingly, Employee acknowledges,
        understands, and agrees that the terms of this Agreement, the facts and
        circumstances leading to this Agreement, the contents of this Agreement,
        and the
        consideration for this Agreement are to be kept strictly confidential by
        him and
        shall not be disclosed, either orally or in writing, by him to any third
        person,
        except: (1) to the extent required by court order; (2) pursuant to inquiry
        by the Internal Revenue Service; (3) pursuant to 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; (4) on account of an action to enforce
        the
        terms of this Agreement or to redress a breach of any of the terms of this
        Agreement; or (5) to Employee’s attorneys, accountants, insurers and tax
        advisors who have a need to know such information, provided that such persons
        agree to maintain the confidentiality of the information prior to Employee
        making any disclosure.

       

      9.            
        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.

      
         

        
          
            
            

          

          
            
            

            
              

            

          

          
            
            

          

           

        

      

      10.  
Employee,
        as evidenced by his signature below, represents that he does not possess
        and
        otherwise has no custody or control of any property of INTERNAP, including,
        but
        not limited to, keys, identification cards, access cards, credit cards,
        telephone cards, parking permits, cellular telephones, pagers, business cards,
        manuals, and/or business documents of INTERNAP. 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: Eric Suddith, 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.

       

      11.    INTERNAP
        makes no representations, warranties or agreements in this Agreement or
        otherwise concerning any tax treatment of the payment set forth above in
        Paragraph 3. Employee understands that he may receive a Form W-2 or Form
        1099
        and any state or local equivalents in connection with the payment set forth
        in
        Paragraph 3 and agrees that he will be solely responsible for the payment
        of any
        and all taxes, assessments, or other financial obligations, whether federal,
        state, or local, which are legally required to be paid in connection with
        the
        payment set forth in Paragraph 3 of this Agreement. Employee further understands
        and agrees that, if the Internal Revenue Service or any other federal, state,
        or
        local governmental agency determines that some or all of the payment set
        forth
        above in Paragraph 3 is subject to federal, state, and/or local taxes and
        if, as
        a result of Employee’s failure to report the payments set forth in Paragraph 3,
        pay the taxes required on the payment set forth in Paragraph 3, or any other
        action and/or inaction on the part of Employee, the Internal Revenue Service
        or
        any other federal, state, or local governmental agency imposes upon or assesses
        against INTERNAP or its insurers any tax obligations or responsibilities
        due in
        connection with the payment set forth in Paragraph 3(a) of the Agreement
        and/or
        assesses interest or imposes a fine and/or a penalty against INTERNAP and/or
        any
        of its insurers, then, in such event, Employee will indemnify, reimburse
        and
        hold harmless INTERNAP and/or all of its insurers, as the case may be, for
        such
        sums incurred by INTERNAP and/or its insurers, as the case may be, in connection
        with such assessed taxes and/or interest or imposed fine and/or penalty within
        ten (10) calendar days of being mailed notice of the existence of such
        assessment or imposition.

       

      12.    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.

       

      13.    (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.

      
         

        
          
            
            

          

          
            
            

            
              

            

          

          
            
            

          

           

        

      

      14.    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. 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.

       

      15.    This
        Agreement may not be amended or modified except by an agreement in writing
        signed by all of the parties hereto.

       

      16.    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 waiver of such term or condition at any future time,
        and
        shall not prevent any party from insisting on the strict keeping and performance
        of such terms and conditions at a later time.

       

      17.    The
        provisions of this Agreement shall be deemed severable, and any invalidity
        or
        unenforceability of any one or more of its provisions shall not affect the
        validity or enforceability of the other provisions hereof.

       

      18.    Each
        party to this Agreement agrees and acknowledges that no presumption, inference,
        or conclusion of any kind shall be made or drawn against the drafter or draft(s)
        of this Agreement. Each party to this Agreement also agrees and acknowledges
        that he/it has contributed to the final version of this Agreement through
        comments and negotiations.

       

      19.    This
        Agreement shall be binding upon and shall inure to the benefit of the parties
        and each of their respective heirs, personal and legal representatives,
        purchasers, executors, administrators, successors and assigns. Employee may
        not
        assign any rights or obligations hereunder without INTERNAP’s prior written
        consent.

       

      20.    It
        is
        understood and agreed that the parties to this Agreement do hereby declare,
        represent, acknowledge and warrant that:

       

       (a)    IN
        EXECUTING THIS AGREEMENT, THE PARTIES HERETO RELY UPON THEIR OWN JUDGMENT,
        BELIEF AND KNOWLEDGE AS TO THE NATURE, EXTENT AND EFFECT OF THE POTENTIAL
        LIABILITY OF THE PARTIES AND OF THE LIABILITIES, WHETHER POTENTIAL OR OTHERWISE,
        WHICH ARE BEING RELEASED BY THIS AGREEMENT AND THE PARTIES FURTHER ACKNOWLEDGE
        AND AGREE THAT THEY ARE ENTERING INTO THIS AGREEMENT AND SIGNING THE SAME
        VOLUNTARILY AND KNOWINGLY AND WITHOUT ANY DURESS, COERCION, INTIMIDATION
        OR
        FORCE; and

       

       (b)    The
        terms
        of this Agreement are contractual and not mere recitals; and,

       

       (c)    This
        Agreement is deemed to have been entered into in the State of Georgia and
        shall
        be construed and interpreted at all times and in all respects in accordance
        with
        the laws of the State of Georgia without regard to the principles of conflicts
        of laws, and jurisdiction and venue for any action relating in any manner
        to
        this Agreement shall be in a court of competent jurisdiction in the State
        of
        Georgia.

      
         

        
          
            
            

          

          
            
            

            
              

            

          

          
            
            

          

           

        

      

      21.    This
        Agreement may be executed in any number of counterparts, each of which shall
        be
        deemed to be an original, and all of which shall be deemed as being the same
        instrument.

       

      22.    The
        persons executing this Agreement do hereby declare, represent, acknowledge,
        warrant and agree that such person is duly and fully authorized to execute
        this
        Agreement so as to legally bind Employee and INTERNAP.

       

      IN
        WITNESS WHEREOF,
        the
        parties have executed this General Release and Separation Agreement as of
        the
        date indicated below:

       

      
        	
                 

                 
                  ______________________________________

                
                   
                    WITNESS

                

              	
                 

                 
                  /s/ Eric
                  Klinker                                                                
                                                                                     

                 
                  ERIC KLINKER

                 

                 
                  Date: March 30, 2007

                 

              
	
                 

                 

                 

                 

                 
                  ______________________________________

                 
                  WITNESS

              	
                 
                  INTERNAP NETWORK SERVICES

                 
                  CORPORATION

                 

                
                   

                   
                    /s/ Eric
                    Suddith                                                                

                   
                    By: Eric Suddith 

                

                 
                  Title: Vice President, Human Resources

                 
                  Date:March 30, 2007