EXHIBIT 10.73
This Employment Agreement is made and entered into by and between
NaviSite, a Delaware corporation, (the "Company") and Xxxx Xxxxx (the
"Employee"), as of May 6, 2004
1. Position and Duties. Employee will be employed by the Company as the
Chief Financial Officer, reporting to Xxxxxx Xxxxxx. Employee accepts employment
with the Company on the terms and conditions set forth in this Agreement, and
Employee agrees to devote such of Employee's business time, energy and skill to
Employee's duties at the Company as are appropriate to discharge such duties.
These duties will include, but not be limited to, those duties normally
performed by a Chief Financial Officer, as well as any other reasonable duties
that may be assigned to Employee from time to time.
2. Term of Employment. Employee's employment with the Company as the Chief
Financial Officer will start on May 6, 2004 and will be for no specified term,
and may be terminated by Employee or the Company at any time, with or without
cause, subject to the provisions of Paragraphs 4 and 5 below.
3. Compensation. Employee will be compensated by the Company for
Employee's services as follows:
(a) Salary: Employee will be paid a biweekly salary of $9,615.380
less applicable withholding, ($250,000 on an annualized basis) in accordance
with the Company's normal payroll procedures. Employee's salary will be reviewed
by the Board from time to time (but no more frequently than annually), and may
be subject to adjustment based upon various factors including, but not limited
to, Employee's performance and the Company's profitability. Any adjustment to
Employee's salary shall be in the sole discretion of the Company.
(b) Benefits: Employee will have the right, on the same basis as
other employees of the Company, to participate in and to receive benefits under
any Company medical, disability or other group insurance plans, as well as under
the Company's business expense reimbursement and other policies.
(c) Stock Options: None, as Employee was previously granted options
to purchase 200,000 shares of the Company's common stock under the Company's
Amended and Restated 2003 Stock Incentive Plan on April 26, 2004.
(d) Office Support: The Company shall provide the Employee with
office space in the Andover, Massachusetts office, for the purpose of fulfilling
Employee's duties to the Company.
(e) Expenses: The Company shall promptly reimburse Employee for
reasonable, documented out of pocket expenses, including travel, incurred in
connection with his service to the Company.
4. Voluntary Termination. In the event that Employee voluntarily resigns
from Employee's employment with the Company, or in the event that Employee's
employment terminates as a result of Employee's death or disability (meaning
that Employee is unable to perform Employee's duties for any 90 days in any
one-year period as a result of a physical and/or mental impairment), Employee
will be entitled to no compensation or benefits from the Company other than
those earned under Paragraph 3 through the date of Employee's termination.
Employee agrees that if Employee voluntarily terminates Employee's employment
with the Company for any reason, Employee will provide the Company with 30 days'
written notice of Employee's resignation. The Company may, in its sole
discretion, elect to waive all or any part of such notice period and accept
Employee's resignation at an earlier date.
5. Other Termination. Employee employment may be terminated under the
circumstances set forth below.
(a) Termination for Cause: If Employee's employment is terminated by
the Company for cause as defined below, Employee shall be entitled to no
compensation or benefits from the Company other than those earned under
Paragraph 3 through the date of Employee's termination for cause.
For purposes of this Agreement, a termination "for cause" occurs if
Employee is terminated for any of the following reasons: (i) theft, dishonesty,
misconduct or falsification of any employment or Company records; (ii) improper
use or disclosure of the Company's confidential or proprietary information;
(iii) any action by Employee which has a material detrimental effect on the
Company's reputation or business; (iv) failure by the Employee to abide by the
policies of the Company (including, without limitation, policies relating to
confidentiality and reasonable workplace conduct); (v) Employee's failure or
inability to perform any assigned duties after written notice from the Company
to Employee of, and a reasonable opportunity to cure, such failure or inability;
or (vi) Employee's conviction (including any plea of guilty or no contest) for
any criminal act that impairs Employee's ability to perform Employee's duties
under this Agreement.
(b) Termination Without Cause or For Good Reason: If Employee's
employment is terminated (i) by the Company without cause (and not as a result
of Employee's death or disability) or (ii) by Employee for "good reason", and if
Employee enters into a binding general release of known and unknown claims in a
form satisfactory to the Company, Employee will receive severance payments at
Employee's final base salary rate, less applicable withholding, and payment for
medical benefits provided by Company to Employee at time of termination until
the earlier of (A) twelve months or six months (as determined in accordance with
the next two sentences) after the date of Employee's termination without cause
or for good reason, or (B) the date on which Employee first commences other
employment. If Employee's employment is terminated by the Company without cause
(and not as a result of Employee's death or disability) then, for purposes of
determining twelve or six months in (A) of the prior sentence, the number of
months shall be twelve if such termination occurs within twelve months of your
hire date, and shall be six if such termination occurs after the anniversary of
your hire date. If Employee's employment is terminated by the Employee for good
reason, then, for purposes of determining twelve or six months in (A) of the
first sentence of this paragraph, the number of months shall be twelve.
Severance payments will be made in accordance with the Company's normal payroll
procedures. For purposes of this section "good reason" means any of the
following after a Change of Control occurs (i) the relocation without your
authorization of your place of work more than 80 miles from your principal place
of residence at 62 Countryside Drive, Cumberland, Rhode Island, or (ii) the
assignment to the Employee of duties inconsistent in any material respect with
the Employee's duties on the hire date which results in a material diminution in
such position.
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"Change of Control" means:
(i) the acquisition by an individual, entity or group (within the
meaning of Section 13(d)(3) or 14(d)(2) of the Exchange Act)
(a "Person") of beneficial ownership of any capital stock of
the Company if, after such acquisition, such Person
beneficially owns (within the meaning of Rule 13d-3
promulgated under the Exchange Act) 50% or more of either (x)
the then-outstanding shares of common stock of the Company
(the "Outstanding Company Common Stock") or (y) the combined
voting power of the then-outstanding securities of the Company
entitled to vote generally in the election of directors (the
"Outstanding Company Voting Securities"); provided, however,
that for purposes of this subsection (i), the following
acquisitions shall not constitute a Change in Control: (A) any
acquisition directly from the Company (excluding an
acquisition pursuant to the exercise, conversion or exchange
of any security exercisable for, convertible into or
exchangeable for common stock or voting securities of the
Company, unless the Person exercising, converting or
exchanging such security acquired such security directly from
the Company or an underwriter or agent of the Company), (B)
any acquisition by any employee benefit plan (or related
trust) sponsored or maintained by the Company or any
corporation controlled by the Company, (C) any acquisition by
any corporation pursuant to a Business Combination (as defined
below) which complies with clauses (x) and (y) of subsection
(iii) of this definition or (D) any acquisition by ClearBlue,
Technologies, Inc. or its affiliates, including Atlantic
Investors, LLC (each such party is referred to herein as
"ClearBlue") of any shares of Common Stock; or
(ii) such time as the Continuing Directors (as defined below) do
not constitute a majority of the Board (or, if applicable, the
Board of Directors of a successor corporation to the Company),
where the term "Continuing Director" means at any date a
member of the Board (x) who was a member of the Board on the
Employee's hire date or '(y) who was nominated or elected
subsequent to such date by at least a majority of the
directors who were Continuing Directors at the time of such
nomination or election or whose election to the Board was
recommended or endorsed by at least a majority of the
directors who were Continuing Directors at the time of such
nomination or election; provided, however, that there shall be
excluded from this clause (y) any individual whose initial
assumption of office occurred as a result of an actual or
threatened election contest with respect to the election or
removal of directors or other actual or threatened
solicitation of proxies or consents, by or on behalf of a
person other than the Board; or
(iii) the consummation of a merger, consolidation, reorganization,
recapitalization or share exchange involving the Company or a
sale or other disposition of all or substantially all of the
assets of the Company (a "Business Combination"), unless,
immediately following such Business Combination, each of the
following two conditions is satisfied: (x) all or
substantially all of the individuals and entities who were the
beneficial owners of the Outstanding Company Common Stock and
Outstanding Company Voting Securities immediately prior to
such Business Combination beneficially own, directly or
indirectly, more than 50% of the then-outstanding shares of
common stock and the combined voting power of the
then-outstanding securities entitled to vote generally in the
election of directors, respectively, of the resulting or
acquiring corporation in such Business Combination (which
shall include, without limitation, a corporation which as a
result of such transaction owns the Company or substantially
all of the Company's assets either directly or through one or
more subsidiaries) (such resulting or acquiring corporation is
referred to herein as the "Acquiring Corporation") in
substantially the same proportions as their ownership of the
Outstanding Company Common Stock and Outstanding Company
Voting Securities, respectively, immediately prior to such
Business Combination and (y) no Person (excluding ClearBlue,
the Acquiring Corporation or any employee benefit plan (or
related trust) maintained or sponsored by the Company or by
the Acquiring Corporation) beneficially owns, directly or
indirectly, 50% or more of the then-outstanding shares of
common stock of the Acquiring Corporation, or of the combined
voting power of the then-outstanding securities of such
corporation entitled to vote generally in the election of
directors (except to the extent that such ownership existed
prior to the Business Combination).
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6. Confidential and Proprietary Information. As a condition of Employee's
employment, Employee agrees to sign the Company's standard form of employee
confidentiality and assignment of inventions agreement, which assignment will
relate to industries within the scope of the Company's business.
7. Dispute Resolution. In the event of any dispute or claim relating to or
arising out of Employee's employment relationship with the Company, this
agreement, or the termination of Employee's employment with the Company for any
reason (including, but not limited to, any claims of breach of contract,
wrongful termination or age, sex, race, sexual orientation, disability or other
discrimination or harassment), Employee and the Company agree that all such
disputes shall be fully, finally and exclusively resolved by binding arbitration
conducted by the American Arbitration Association in Massachusetts. Employee and
the Company hereby knowingly and willingly waive Employee's respective rights to
have any such disputes or claims tried to a judge or jury. Provided, however,
that this arbitration provision shall not apply to any claims for injunctive
relief.
8. Severability. If any provision of this Agreement is deemed invalid,
illegal or unenforceable, such provision shall be modified so as to make it
valid, legal and enforceable, and the validity, legality and enforceability of
the remaining provisions of this Agreement shall not in any way be affected.
9. Assignment. In view of the personal nature of the services to be
performed under this Agreement by Employee, Employee cannot assign or transfer
any of Employee's obligations under this Agreement.
10. Entire Agreement. This Agreement and the agreements referred to above
constitute the entire agreement between Employee and the Company regarding the
terms and conditions of Employee's employment, and they supersede all prior
negotiations, representations or agreements between Employee and the Company
regarding Employee's employment, whether written or oral.
11. Modification. This Agreement may only be modified or amended by a
supplemental written agreement signed by Employee and an authorized
representative of the Company.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date and year written below.
NaviSite, a Delaware corporation
Date: May 6, 2004 By: Xxxxxx Xxxxxx /s/ Xxxxxx Xxxxxx
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Chief Executive Officer, NaviSite Inc.
Date: May 6, 2004 /s/ Xxxx X. Xxxxx, Xx.
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Xxxx Xxxxx
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