UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported):
February 21, 2016
Internap Corporation
(Exact Name of Registrant as Specified in Charter)
|
Delaware (State or Other Jurisdiction |
001-31989 (Commission File Number) |
91-2145721 (IRS Employer |
|
One Ravinia Drive, Suite 1300, Atlanta, Georgia (Address of Principal Executive Offices) |
30346 (Zip Code) |
Registrant’s telephone number, including area code: (404) 302-9700
Not applicable
(Former Name or Former Address, if Changed Since Last Report)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction A.2. below):
¨ Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
¨ Soliciting material pursuant to Rule 14a-12 under the Securities Act (17 CFR 240.14a-12)
¨ Pre-commencement communications pursuant to Rule 14d-2(b) under the Securities Act (17 CFR 240.14d-2(b))
¨ Pre-commencement communications pursuant to Rule 13e-4(c) under the Securities Act (17 CFR 240.13e-2(c))
Item 5.02 Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers.
2016 Short-Term Incentive Plan
On February 21, 2016, the Compensation Committee of the Board of Directors (the “Compensation Committee”) of Internap Corporation (the “Company”) approved the 2016 Short-Term Incentive Plan (the “2016 STIP”). Under the 2016 STIP, certain employees (including named executive officers) may be eligible for a cash award after our 2016 fiscal year end. The cash award of employees of a business unit, including named executive officers within those business units, are based on both corporate financial targets and business unit financial targets. The cash award of all other employees, including all other named executive officers, are based solely on corporate financial targets. Awards to any participant for corporate financial targets and/or business unit financial targets are made on a prorated basis only if the threshold level for all of the corporate financial targets are achieved. Corporate financial targets are bookings net of churn (“BNoC”), revenue and adjusted earnings before interest, taxes, depreciation and amortization. Business unit financial targets are BNoC, revenue and/or operating margin (gross margin minus operating expenses) for the particular business unit.
The target incentives as a percentage of base salary for our Chief Executive Officer, Chief Financial Officer and Senior Vice Presidents (including our named executive officers) are up to 100% of base salary earned in 2016.
An award under the 2016 Plan is earned on the date payment is made to participants who have been continuously employed by the Company through the payment date. Notwithstanding the foregoing, if a participant has been involuntarily terminated without cause by the Company between December 31, 2016 and the payment date, the Compensation Committee will determine whether it would be appropriate to pay an award to the participant and whether any such award approved shall be paid earlier than the payment date to all other participants. If the Committee determines to pay an award to a participant in accordance with the preceding sentence, the payment of an award will be conditioned on the former employee/participant executing the Company’s then-standard form of general release.
If a participant has voluntarily resigned or has been terminated for cause prior to the date awards from the 2016 STIP are paid, if any, the participant shall not receive any award under the 2016 STIP. If a participant dies or becomes disabled before the date awards from the 2016 STIP are paid, if any, the Compensation Committee may, in its discretion, determine whether the participant has earned any award under the 2016 STIP.
The above description is qualified in its entirety by reference to the full text of the 2016 Short-Term Incentive Plan, which is being filed as Exhibit 10.1.
2016 Senior Executive Sales Incentive Plan
On February 21, 2016, our Compensation Committee approved the 2016 Senior Executive Sales Incentive Plan (the “ESIP”). Currently, two Senior Vice Presidents participate in the ESIP, one of whom is a named executive officer. Under the ESIP, participants may be eligible for monthly awards based on achievement of monthly and annual bookings and churn targets, with 80% of the incentive tied to bookings targets and 20% of the incentive tied to churn targets. There will be year-end true-ups for underpayment of the bookings component due to monthly performance fluctuations and annual BNOC achievement compared to target.
If either of the threshold monthly bookings and churn targets of 50% are not achieved, no payments will be made for that month for that component under the ESIP to any participant. The target incentive of participants is 50% of their annual base salary; the maximum ESIP payout can equal up to two times the target incentive based on the achievement of stretch bookings and churn targets. Any incentive compensation earned will be paid monthly, two months in arrears. The chief executive officer has sole discretion to determine any payment under the ESIP.
Participants in the ESIP are not eligible to participate in the 2016 STIP. A participant’s eligibility to receive payments under the ESIP following resignation, termination, death or disability, and the procedures under which such a payment (if any) would be made are substantially similar to those discussed above with respect to the 2016 STIP.
The above description is qualified in its entirety by reference to the full text of the 2016 Senior Executive Sales Incentive Plan, which is being filed as Exhibit 10.2.
2016 Senior Vice President Retention Program
On February 21, 2016, our Board of Directors approved the 2016 Senior Vice President Retention Program (the “Retention Program”). The Retention Program is administered by the Compensation Committee and consists of separate awards of cash and grants of restricted stock in the total amount of one times the participant’s 2016 incentive plan target (i.e., the 2016 STIP target or the ESIP target, as applicable):
| 1) | 50% of the retention incentive will be made in cash: 50% will be paid on September 30, 2016 and 50% will be paid on March 31, 2017. |
| 2) | The remaining 50% of the retention incentive will be granted on February 21, 2016 in the form of restricted stock, which will vest in three tranches: 30% will vest on August 30, 2016, 30% will vest on February 28, 2017 and 40% will vest on August 30, 2017. |
The cash payments are in addition to any payments a participant may receive from his/her participation in the 2016 STIP or ESIP, as applicable. The restricted stock grants are in addition to any other grants made under the terms of the Company’s annual long-term incentive program. If a participant’s employment is terminated by the Company without cause or upon a change in control, any unpaid cash award and any unvested grant of restricted stock shall be payable and accelerated, as applicable, as of the date of termination or change in control. If a participant's employment is terminated voluntarily or terminated for cause by the Company, any unpaid cash award and unvested shares of restricted stock granted under the Retention Program would be forfeited.
Participation in the Retention Program is limited to individuals at the Senior Vice President level who are employed by the Company as of February 21, 2016, and is at the discretion and invitation of the chief executive officer.
The above description is qualified in its entirety by reference to the full text of the 2016 Senior Executive Sales Incentive Plan, which is being filed as Exhibit 10.3.
Item 9.01 Financial Statements and Exhibits.
| (d) | Exhibits |
The following exhibit is furnished with this Current Report on Form 8-K:
| Exhibit No. | Description | |
| 10.1 | 2016 Short Term Incentive Plan | |
| 10.2 | 2016 Senior Executive Sales Incentive Plan | |
| 10.3 | 2016 Senior Vice President Retention Program |
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
| INTERNAP CORPORATION | |||
| Date: February 25, 2016 | By: | /s/ Kevin M. Dotts | |
| Kevin M. Dotts | |||
| Chief Financial Officer | |||
EXHIBIT INDEX
| Exhibit No. | Description of Exhibit | |
| 10.1 | 2016 Short Term Incentive Plan | |
| 10.2 | 2016 Senior Executive Sales Incentive Plan | |
| 10.3 | 2016 Senior Vice President Retention Program |
Exhibit 10.1
Internap Corporation
2016 Short-Term Incentive Plan
Establishment of Plan
Internap Corporation (the “Company”) has established the 2016 Short-Term Incentive Plan (the “2016 Plan”) to provide for the award of cash bonuses to eligible participants based solely upon the achievement of Corporate and/or Business Unit Financial Targets in the fiscal year ending December 31, 2016. The 2016 Plan supersedes all prior versions of any short term incentive plan or other similar bonus plan but does not supersede the Company’s Employment Security Plan or any Employment Security Agreement or any terms thereof.
Purpose of the 2016 Plan
The purpose of the 2016 Plan is to:
| ● | Align participants’ actions with the accomplishment of key corporate financial and business unit operational goals; |
| ● | Encourage and reward individuals, as applicable, for the achievement of corporate and, as applicable, business unit financial targets; and |
| ● | Provide incentive compensation opportunities based on the Company’s success in meeting its corporate financial and business unit targets. |
Effective Date
The 2016 Plan is effective January 1, 2016 and will expire on December 31, 2016 if not sooner terminated as provided herein.
Administration
The Compensation Committee (the “Committee”) of the Board of Directors administers the 2016 Plan. The Committee may delegate any functions to designated individuals who may be employees of the Company. Except as limited herein, the Committee has full authority and discretion to interpret the 2016 Plan and to make all other determinations deemed necessary or advisable for the administration of the 2016 Plan. All disputes associated with interpretation of the 2016 Plan or awards hereunder shall be submitted to the SVP, General Counsel, whose determination shall be final and binding.
Participation
Eligibility to participate in the 2016 Plan for Section 16 officers (as defined in Rule 16a-1(f) under the Securities Exchange Act of 1934) is at the discretion of the Committee. Eligibility to participate in the 2016 Plan for all other employees is at the discretion and invitation of the Chief Executive Officer. Employees participating in the 2016 Sales Incentive Plan for Commissionable Sales Professionals, the 2016 Senior Executive Sales Incentive Plan or any other operational or sales incentive plan or arrangement, are not eligible to participate in the 2016 Plan.
Employees joining the Company after January 1, 2016 may be eligible to participate in the 2016 Plan in the Committee’s discretion (in the case of Section 16 officers) or the Chief Executive Officer’s discretion (in the case of other employees). Any award made to an employee who participates for less than the full year will be prorated based on the base salary earned during the employee’s partial year of service.
Key Terms
Awards are based on achievement of corporate and/or business unit goals, which are recommended by the Chief Executive Officer and approved by the Committee. Corporate financial targets are Bookings Net of Churn (BNoC), Revenue and EBITDA (“Corporate Financial Targets”). Business unit financial targets are BNoC, Revenue and/or Operating Margin (Gross Margin minus Operating Expenses) for the particular business unit (“Business Unit Financial Target”).
The goals of employees of a business unit, including the Senior Vice Presidents and Vice Presidents of that business unit, are based on both Corporate Financial Targets and Business Unit Financial Targets. The goals of all other employees, including other Senior Vice Presidents and Vice Presidents, are based solely on Corporate Financial Targets. Payments to any participant in the STIP for Corporate Financial Targets and/or Business Unit Financial Targets are made on a prorated basis only if the threshold level for all of the Corporate Financial Targets are achieved. If the threshold for all Corporate Financial Targets are not achieved, no payments will be made under the STIP to any participant.
The incentive split between Corporate Financial Targets and Business Unit Financial Targets differs based on whether a participant is a member of a business unit. The following table reflects the weightings of each component:
| STIP
Incentive Compensation Weighting % by Position | ||||||
| Corporate Financial Target | C-level/SVPs/ Staff VP’s |
BU Participants* |
All Other Staff | |||
| Corporate Financial Tgt: Bookings Net of Churn (BNOC) | 30 | 20 | 30 | |||
| Corporate Financial Tgt: Revenue | 30 | 20 | 30 | |||
| Corporate Financial Tgt: EBITDA | 40 | 40 | 40 | |||
| Business Unit Financial Targets | 0 | 20 | 0 | |||
| Total at Target | 100 | 100 | 100 | |||
All SVPs and VPs are eligible for payment for achievement of stretch Corporate Financial and Business Unit Targets
*Includes SVPs and VPs in Business Units
The table below identifies the target incentives as a percentage of Base Salary based on a participant’s position and the split between Corporate Financial Targets and Business Unit Financial Targets. At the C-level/SVP/VP levels, the maximum STIP payout can equal up to 2 times a participant’s target incentive based on the achievement of stretch Corporate and/or Business Unit Financial Targets.
Position Grouping |
Target
Incentive (Varies by Role) |
Corporate
Financial Targets |
Business
Unit Financial Targets | |||
| C-level/SVPs | Up to 100% | 100% | n/a | |||
| Business Unit Participants | Up to 50% | 80% | 20% | |||
| All Other Participants | Up to 50% | 100% | na |
Base Salary is defined as actual base salary earned during 2016, which would exclude any bonuses, incentives or other allowances which may have been earned or received during 2016.
Determination and Payment of Awards
The Committee has sole discretion to determine awards relative to Corporate Financial Targets and Business Unit Financial Targets for all participants after consideration of any recommendation by the Chief Executive Officer. The Committee recommends to the full Board of Directors, for their approval, any award to the Chief Executive Officer. All payments of awards are subject to applicable laws and regulations and terms and conditions of contracts to which the Company is a party and bound.
Manner and Timing of Awards
All awards granted pursuant to the 2016 Plan shall be paid in cash (local currency). If the Committee determines that awards are due and payable under the 2016 Plan, the Company will pay all such awards not later than March 15, 2017.
Recoupment of Awards
If the Committee determines that any 2016 Plan participant has engaged in fraud or intentional misconduct that has caused a restatement of the Company’s financial statements, the Committee will review the award received or to be received by that participant on the basis of the Company’s performance during the periods affected by the restatement. If the award would have been lower if it had been based on the restated results, the Committee may direct the Company to seek recoupment of the award.
Termination of Employment
An award under the 2016 Plan is earned on the date payment is made to participants who have been continuously employed by the Company through the payment date. Notwithstanding the foregoing, if a participant has been involuntarily terminated without cause by the Company between December 31, 2016 and the payment date, the Committee will determine whether it would be appropriate to pay an award to the participant and whether any such award approved shall be paid earlier than the payment date to all other participants. If the Committee determines to pay an award to a participant in accordance with the preceding sentence, the payment of an award will be conditioned on the former employee/participant executing the Company’s then-standard form of general release. The Committee may delegate its authority under this paragraph to the Chief Executive Officer as appropriate.
If a participant has voluntarily resigned or has been terminated for cause prior to the date awards from the 2016 Plan are paid, if any, the participant shall not be deemed to have earned any award under the 2016 Plan and shall not receive any award under the 2016 Plan.
If an employee dies or becomes disabled before the date awards from the 2016 Plan are paid, if any, the Committee may, at its discretion, determine whether the participant has earned any award under the 2016 Plan. If the Committee determines that such participant has earned an award and that the Company will pay an award, the Company will pay any such award not later than March 15, 2017.
In no event will awards under this 2016 Plan be either postponed or accelerated in the event of termination of employment, except as provided herein.
Plan Termination and Amendment
The Committee may amend, modify, terminate or suspend operation of the 2016 Plan at any time. Notice of any such changes will be communicated to participants. In no event, however, will awards under the 2016 Plan be either postponed or accelerated in the event that the 2016 Plan is terminated.
General Provisions
Benefits Not Guaranteed. Neither the establishment of the 2016 Plan nor participation in the 2016 Plan shall provide any guarantee or other assurance that an award will be payable under the 2016 Plan. There is no obligation of uniformity of treatment of employees or participants under the 2016 Plan.
No Employment Right. Participation in the 2016 Plan does not constitute a commitment, guarantee or agreement that the Company will continue to employ any individual and this 2016 Plan shall not be construed or applied as an employment contract or obligation.
Governing Law. The validity, construction and effect of the 2016 Plan shall be determined in accordance with the laws of the State of Georgia without giving effect to conflicts of law principles.
Severability. The provisions of the 2016 Plan are severable. If any provision is determined to be unenforceable, in whole or in part, then such provision shall be modified so as to be enforceable to the maximum extent permitted by law. If such provision cannot be modified to be enforceable, the provision shall be severed from the 2016 Plan to the extent unenforceable. The remaining provisions and any partially enforceable provisions shall remain in full force and effect.
Exhibit 10.2
Internap Corporation
2016 senior executive sales Incentive Plan
Establishment of Plan
Internap Corporation (the “Company”) has established the 2016 Senior Executive Sales Incentive Plan (the “2016 ESIP”) to provide for the award of cash bonuses to eligible participants based solely upon the achievement of specified sales goals in the fiscal year ending December 31, 2016. The 2016 ESIP supersedes all prior versions of any applicable sales arrangement, program or other similar bonus plan but does not supersede the Company’s Employment Security Plan or any Employment Security Agreement or any terms thereof.
Purpose of the 2016 ESIP
The purpose of the 2016 ESIP is to:
| ● | Align participants’ actions with the accomplishment of key corporate and financial objectives; | |
| ● | Singularly focus participants on the achievement of bookings and customer churn targets; and | |
| ● | Provide incentive compensation opportunities based on success in meeting bookings and customer churn targets. |
Effective Date
The 2016 ESIP is effective January 1, 2016 and will expire on December 31, 2016 if not sooner terminated as provided herein.
Administration
The Compensation Committee (the “Committee”) of the Board of Directors administers the 2016 ESIP. The Committee may delegate any functions to the Chief Executive Officer or other designated individuals who may be employees of the Company. Except as limited herein, the Committee has full authority and discretion to interpret the 2016 ESIP and to make all other determinations deemed necessary or advisable for the administration of it. All disputes associated with interpretation of the 2016 ESIP or awards hereunder shall be submitted to the Senior Vice President and General Counsel, whose determination shall be final and binding.
Participation
Eligibility to participate in the 2016 ESIP for Section 16 officers (as defined in Rule 16a-1(f) under the Securities Exchange Act of 1934) is at the discretion of the Committee. Eligibility to participate in the 2016 ESIP for any other employee is at the discretion and invitation of the Chief Executive Officer. Employees participating in the 2016 Sales Incentive Plan for Commissionable Sales Professionals (“the 2016 SIP”), the 2016 Short-Term Incentive Plan or any other corporate, operational or sales incentive plan or arrangement, are not eligible to participate in the 2016 ESIP, with the sole exception of the 2016 Senior Vice President Retention Program. Initially, only the Senior Vice President, Global Sales and the Senior Vice President, Marketing & Customer Services are expected to be participants in the 2016 ESIP.
Senior executive sales employees joining the Company after January 1, 2016 may be eligible to participate in the 2016 ESIP in the Committee’s discretion (in the case of Section 16 officers) or the Chief Executive Officer’s discretion (in the case of other employees).
| 1 |
Key Terms
Awards are based on the achievement of specific Bookings (80%) and Churn (20%) targets approved by the Committee. If either of the threshold monthly Bookings and Churn targets of 50% are not achieved, no payments will be made for that month for that component under the ESIP to any participant.
The target incentive of participants is 50% of their annual base salary; the maximum ESIP payout can equal up to 2 times the target incentive based on the achievement of stretch bookings and churn targets.
Base Salary is defined as actual base salary earned during 2016, which would exclude any bonuses, incentives or other allowances which may have been earned or received during 2016.
Determination and Payment of Awards
The Chief Executive Officer has sole discretion to determine any payment under the ESIP. All payments of awards are subject to applicable laws and regulations and terms and conditions of contracts to which the Company is a party and bound.
Manner and Timing of Awards
Payments will be made monthly and will be paid in accordance with the commission payment schedule stated in the 2016 SIP. If any year-end true ups are due, the Company will make such payments no later than March 15, 2017.
Recoupment of Awards
If the Committee determines that any 2016 ESIP participant has engaged in fraud or intentional misconduct that has caused a restatement of the Company’s financial statements, the Committee will review the award received or to be received by that participant on the basis of the Company’s performance during the periods affected by the restatement. If the award would have been lower if it had been based on the restated results, the Committee may direct the Company to seek recoupment of the award.
Termination of Employment
An award under the 2016 ESIP is earned on the date payment is made to participants who have been continuously employed by the Company through the payment date. Notwithstanding the foregoing, if a participant has been involuntarily terminated without cause by the Company before the payment date of an earlier completed month, the Chief Executive Officer will determine whether it would be appropriate to pay an award to the participant and whether any such award approved shall be paid earlier than the normal payment date contemplated by the 2016 SIP. If the Chief Executive Officers determines to pay an award to a participant in accordance with the preceding sentence, the payment of an award will be conditioned on the former employee/participant executing the Company’s then-standard form of general release.
If a participant has voluntarily resigned or has been terminated for cause prior to the date an award related to an earlier completed month is paid from the 2016 ESIP, if any, the participant shall not be deemed to have earned that award under the 2016 ESIP and shall not receive an award related to such month under the 2016 ESIP.
If a participant dies or becomes disabled before the date an award from the 2016 ESIP is paid, the Committee may, at its discretion, determine whether the participant has earned the award under the 2016 ESIP. If the Committee determines that such participant has earned an award and that the Company will pay an award, the Company will pay any such award not later than March 15, 2017.
| 2 |
Plan Termination and Amendment
The Committee may amend, modify, terminate or suspend operation of the 2016 ESIP at any time. Notice of any such changes will be communicated to participants. In no event, however, will awards under the 2016 ESIP be either postponed or accelerated in the event that the 2016 ESIP is terminated.
General Provisions
Benefits Not Guaranteed. Neither the establishment of the 2016 ESIP nor participation in the 2016 ESIP shall provide any guarantee or other assurance that an award will be payable under the 2016 ESIP. There is no obligation of uniformity of treatment of employees or participants under the 2016 ESIP.
No Employment Right. Participation in the 2016 ESIP does not constitute a commitment, guarantee or agreement that the Company will continue to employ any individual and this 2016 ESIP shall not be construed or applied as an employment contract or obligation.
Governing Law. The validity, construction and effect of the 2016 ESIP shall be determined in accordance with the laws of the State of Georgia without giving effect to conflicts of law principles.
Severability. The provisions of the 2016 ESIP are severable. If any provision is determined to be unenforceable, in whole or in part, then such provision shall be modified so as to be enforceable to the maximum extent permitted by law. If such provision cannot be modified to be enforceable, the provision shall be severed from the 2016 ESIP to the extent unenforceable. The remaining provisions and any partially enforceable provisions shall remain in full force and effect.
| 3 |
Exhibit 10.3
Internap Corporation
2016 Senior Vice President Retention Program
February 21, 2016
Establishment and Purpose of Program
Internap Corporation (the “Company”) has established the 2016 Senior Vice President Retention Program (the “Retention Program”) to retain and motivate members of the senior leadership team who are expected to (a) execute upon the changes and increased responsibility resulting from the management re-alignment and (b) be the key drivers of accelerating the Company’s growth.
Participation
Eligibility to participate in the Retention Program is at the discretion and invitation of the Chief Executive Officer and is limited to individuals at the Senior Vice President level who are employed by the Company as of February 21, 2016.
Effective Date
The Retention Program is effective as of February 21, 2016.
Key Features of the Retention Program
Special Retention Incentive
The Retention Program consists of separate awards of cash and grants of restricted stock in the total amount of 1 times the participant’s 2016 incentive plan target (i.e., the 2016 Short-Term Incentive Plan target or the 2016 Senior Executive Sales Incentive Plan target, as applicable):
| 1) | 50% of the retention incentive will be made in cash: 50% will be paid on September 30, 2016 and 50% will be paid on March 31, 2017. |
| 2) | The remaining 50% of the retention incentive will be granted on February 21, 2016 in the form of restricted stock, which will vest in three tranches: 30% will vest on August 30, 2016, 30% will vest on February 28, 2017 and 40% will vest on August 30, 2017. |
The cash payments are in addition to any payments a participant may receive from his/her ongoing participation in a 2016 incentive plan. The restricted stock grants are in addition to any other grants made under the terms of the Company’s annual long-term incentive program.
Administration
The Compensation Committee (the “Committee”) of the Board of Directors administers the Retention Program. The Committee may delegate any functions to designated individuals who may be employees of the Company. Except as limited herein, the Committee has full authority and discretion to interpret the Retention Program and to make all other determinations deemed necessary or advisable for the administration of the Retention Program. All disputes associated with interpretation of the Retention Program or awards hereunder shall be submitted to the SVP, General Counsel, whose determination shall be final and binding. All payments of awards are subject to applicable laws and regulations and terms and conditions of contracts to which the Company is a party and bound.
Termination of Employment
Voluntary Termination by Employee or Termination for Cause by the Company: If a participant’s employment is terminated voluntarily by the employee or terminated for cause by the Company, any unpaid cash award and unvested shares of restricted stock granted under this Retention Program would be forfeited.
Termination by the Company Without Cause: If a participant’s employment is terminated by the Company without cause, any unpaid cash award and any unvested grant of restricted stock shall be payable and accelerated, as applicable, as of the date of termination.
Change in Control
Upon a change in control (as defined in a participant’s Employment Security Agreement), any unpaid cash award and any unvested grant of restricted stock shall be payable and accelerated, as applicable, as of the date of the change in control.
Program Termination and Amendment
The Company reserves the right to modify, amend or terminate the Retention Program at any time; provided, however, that upon termination, any unpaid cash award and any unvested grant of restricted stock shall be payable and accelerated, as applicable, as of the date of termination.
General Provisions
Benefits Not Guaranteed. There is no obligation of uniformity of treatment of employees or participants under the Retention Program.
No Employment Right. Participation in the Retention Program does not constitute a commitment, guarantee or agreement that the Company will continue to employ any individual and this Retention Program shall not be construed or applied as an employment contract or obligation.
Governing Law. The validity, construction and effect of the Retention Program shall be determined in accordance with the laws of the State of Georgia without giving effect to conflicts of law principles.
Severability. The provisions of the Retention Program are severable. If any provision is determined to be unenforceable, in whole or in part, then such provision shall be modified so as to be enforceable to the maximum extent permitted by law. If such provision cannot be modified to be enforceable, the provision shall be severed from the Retention Program to the extent unenforceable. The remaining provisions and any partially enforceable provisions shall remain in full force and effect.
2