Exhibit 10.5
NAVISITE, INC.
Executive Retention Agreement
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THIS EXECUTIVE RETENTION AGREEMENT by and between NaviSite, Inc. a
Delaware corporation (the "Company"), and ____________________(the "Executive")
is made as of __________, 2001 (the "Effective Date").
WHEREAS, the Company recognizes that, as is the case with many
publicly-held corporations, the possibility of a change in control of the
Company exists and that such possibility, and the uncertainty and questions
which it may raise among key personnel, may result in the departure or
distraction of key personnel to the detriment of the Company and its
stockholders, and
WHEREAS, the Board of Directors of the Company (the "Board") has
determined that appropriate steps should be taken to reinforce and encourage the
continued employment and dedication of the Company's key personnel without
distraction from the possibility of a change in control of the Company and
related events and circumstances.
NOW, THEREFORE, as an inducement for and in consideration of the
Executive remaining in its employ, the Company agrees that the Executive shall
receive the severance benefits set forth in this Agreement in the event the
Executive's employment with the Company is terminated under the circumstances
described below.
1. Key Definitions.
As used herein, the following terms shall have the following respective
meanings:
1.1 "Change in Control" means an event or occurrence set forth in any
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one or more of subsections (a) through (e) below (including an event or
occurrence that constitutes a Change in Control under one of such subsections
but is specifically exempted from another such subsection):
(a) the acquisition by an individual, entity or group (within the
meaning of Section 13(d)(3) or 14(d)(2) of the Securities Exchange Act of 1934,
as amended (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) 25% or more of either (i) the then-outstanding shares of common
stock of the Company (the "Outstanding Company Common Stock") or (ii) 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 (a), the
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following acquisitions shall not constitute a Change in Control: (i) 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), (ii) any acquisition by the Company, (iii)
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any acquisition by any employee benefit plan (or related trust) sponsored or
maintained by the Company or any corporation controlled by the Company, or (iv)
any acquisition by any corporation pursuant to a transaction which complies with
clauses (i) and (ii) of subsection (c) of this Section 1.1; or
(b) 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 (i) who was a member of the
Board on the date of the execution of this Agreement or (ii) 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 (ii)
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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
(c) the consummation of a merger, consolidation, reorganization,
recapitalization or statutory share exchange involving the Company or a sale or
other disposition of all or substantially all of the assets of the Company in
one or a series of transactions (a "Business Combination"), unless, immediately
following such Business Combination, each of the following two conditions is
satisfied: (i) 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,
immediately prior to such Business Combination, of the Outstanding Company
Common Stock and Outstanding Company Voting Securities, respectively; and (ii)
no Person (excluding 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, 25% 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); or
(d) the Company ceases to have a class of securities that is
registered pursuant to Section 12(b) or 12(g) of the Exchange Act; or
(e) the Company ceases to have at least 50 holders of a class of
securities that is registered pursuant to Section 12(b) or 12(g) of the Exchange
Act.
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1.2 "Change in Control Date" means the first date on which a Change
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in Control occurs. Anything in this Agreement to the contrary notwithstanding,
if (a) a Change in Control occurs, (b) the Executive's employment with the
Company is terminated prior to the date on which the Change in Control occurs,
and (c) it is reasonably demonstrated by the Executive that such termination of
employment (i) was at the request of a third party who has taken steps
reasonably calculated to effect a Change in Control or (ii) otherwise arose in
connection with or in anticipation of a Change in Control, then for all purposes
of this Agreement the "Change in Control Date" shall mean the date immediately
prior to the date of such termination of employment.
1.3 "Cause" means:
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(a) the Executive's willful and continued failure to
substantially perform [his/her] reasonable assigned duties as an executive of
the Company (other than any such failure resulting from incapacity due to
physical or mental illness or any failure after the Executive gives notice of
termination for Good Reason), which failure is not cured within 30 days after a
written demand for substantial performance is received by the Executive from the
Board of Directors of the Company which specifically identifies the manner in
which the Board of Directors believes the Executive has not substantially
performed the Executive's duties; or
(b) the Executive's willful engagement in illegal conduct or
gross misconduct which is materially and demonstrably injurious to the Company.
For purposes of this Section 1.3, no act or failure to act by the Executive
shall be considered "willful" unless it is done, or omitted to be done, in bad
faith and without reasonable belief that the Executive's action or omission was
in the best interests of the Company.
1.4 "Good Reason" means the occurrence, without the Executive's
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written consent, of any of the events or circumstances set forth in clauses (a)
through (g) below. Notwithstanding the occurrence of any such event or
circumstance, such occurrence shall not be deemed to constitute Good Reason if,
prior to the Date of Termination specified in the Notice of Termination (each as
defined in Section 2.2(a)) given by the Executive in respect thereof, such event
or circumstance has been fully corrected and the Executive has been reasonably
compensated for any losses or damages resulting therefrom (provided that such
right of correction by the Company shall only apply to the first Notice of
Termination for Good Reason given by the Executive).
(a) the assignment to the Executive of duties inconsistent in any
material respect with the Executive's position (including status, offices,
titles and reporting requirements), authority or responsibilities in effect
immediately prior to the earliest to occur of (i) the Change in Control Date,
(ii) the date of the execution by the Company of the initial written agreement
or instrument providing for the Change in Control or (iii) the date of the
adoption by the Board of Directors of a resolution providing for the Change in
Control (with the earliest to occur of such dates referred to herein as the
"Measurement Date"), or any other action or omission by the Company which
results in a material diminution in such position, authority or
responsibilities;
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(b) a reduction in the Executive's annual base salary as in
effect on the Measurement Date or as the same was or may be increased thereafter
from time to time;
(c) the failure by the Company to (i) continue in effect any
material compensation or benefit plan or program (including without limitation
any life insurance, medical, health and accident or disability plan and any
vacation or automobile program or policy) (a "Benefit Plan") in which the
Executive participates or which is applicable to the Executive immediately prior
to the Measurement Date, unless an equitable arrangement (embodied in an ongoing
comparable substitute or alternative plan) has been made with respect to such
plan or program, (ii) continue the Executive's participation therein (or in such
substitute or alternative plan) on a basis not materially less favorable, both
in terms of the amount of benefits provided and the level of the Executive's
participation relative to other participants, than the basis existing
immediately prior to the Measurement Date or (iii) award cash bonuses to the
Executive in amounts and in a manner substantially consistent with past practice
in light of the Company's financial performance;
(d) a change by the Company in the location at which the
Executive performs [his/her] principal duties for the Company to a new location
that is both (i) outside a radius of 35 miles from the Executive's principal
residence immediately prior to the Measurement Date and (ii) more than 20 miles
from the location at which the Executive performed [his/her] principal duties
for the Company immediately prior to the Measurement Date; or a requirement by
the Company that the Executive travel on Company business to a substantially
greater extent than required immediately prior to the Measurement Date;
(e) the failure of the Company to obtain the agreement from any
successor to the Company to assume and agree to perform this Agreement, as
required by Section 5.1;
(f) a purported termination of the Executive's employment which
is not effected pursuant to a Notice of Termination satisfying the requirements
of Section 2.2(a); or
(g) any failure of the Company to pay or provide to the Executive
any portion of the Executive's compensation or benefits due under any Benefit
Plan within twenty days of the date such compensation or benefits are due, or
any material breach by the Company of this Agreement or any employment agreement
with the Executive.
The Executive's right to terminate [his/her] employment for Good Reason
shall not be affected by [his/her] incapacity due to physical or mental illness.
1.5 "Disability" means the Executive's absence from the full-time
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performance of the Executive's duties with the Company for 180 consecutive
calendar days as a result of incapacity due to mental or physical illness which
is determined to be total and permanent by a physician selected by the Company
or its insurers and acceptable to the Executive or the Executive's legal
representative.
2. Employment Status; Termination Following Change in Control.
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2.1 Not an Employment Contract. The Executive acknowledges that this
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Agreement does not constitute a contract of employment or impose on the Company
any obligation to retain the Executive as an employee and that this Agreement
does not prevent the Executive from terminating employment at any time. If the
Executive's employment with the Company terminates for any reason and
subsequently a Change in Control shall occur, the Executive shall not be
entitled to any benefits hereunder except as otherwise provided pursuant to
Section 1.2 and Section 3.1.
2.2 Termination of Employment.
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(a) Any termination of the Executive's employment by the Company
or by the Executive (other than due to the death of the Executive) shall be
communicated by a written notice to the other party hereto (the "Notice of
Termination"), given in accordance with Section 6. Any Notice of Termination
shall: (i) indicate the specific termination provision (if any) of this
Agreement relied upon by the party giving such notice, (ii) to the extent
applicable, set forth in reasonable detail the facts and circumstances claimed
to provide a basis for termination of the Executive's employment under the
provision so indicated and (iii) specify the Date of Termination (as defined
below). The effective date of an employment termination (the "Date of
Termination") shall be the close of business on the date specified in the Notice
of Termination (which date may not be less than 10 days or more than 120 days
after the date of delivery of such Notice of Termination), in the case of a
termination other than one due to the Executive's death, or the date of the
Executive's death, as the case may be. In the event the Company fails to satisfy
the requirements of Section 2.2(a) regarding a Notice of Termination, the
purported termination of the Executive's employment pursuant to such Notice of
Termination shall not be effective for purposes of this Agreement.
(b) The failure by the Executive or the Company to set forth in
the Notice of Termination any fact or circumstance which contributes to a
showing of Good Reason or Cause shall not waive any right of the Executive or
the Company, respectively, hereunder or preclude the Executive or the Company,
respectively, from asserting any such fact or circumstance in enforcing the
Executive's or the Company's rights hereunder.
(c) Any Notice of Termination for Cause given by the Company must
be given within 90 days of the occurrence of the event(s) or circumstance(s)
which constitute(s) Cause. Prior to any Notice of Termination for Cause being
given (and prior to any termination for Cause being effective), the Executive
shall be entitled to a hearing before the Board of Directors of the Company at
which [he/she] may, at [his/her] election, be represented by counsel and at
which [he/she] shall have a reasonable opportunity to be heard. Such hearing
shall be held on not less than 15 days prior written notice to the Executive
stating the Board of Directors' intention to terminate the Executive for Cause
and stating in detail the particular event(s) or circumstance(s) which the Board
of Directors believes constitutes Cause for termination. Any such Notice of
Termination for Cause must be approved by an affirmative vote of two-thirds of
the members of the Board of Directors.
3. Benefits to Executive.
3.1 Compensation. The Executive shall be entitled to the following
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benefits:
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(a) Termination Without Cause or for Good Reason. If the
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Executive's employment with the Company is terminated by the Company (other than
for Cause, Disability or Death) or by the Executive for Good Reason, then the
Executive shall be entitled to the following benefits:
(i) the Company shall pay to the Executive in a lump sum in
cash within 10 days after the Date of Termination the aggregate of the following
amounts:
(1) the sum of (A) the Executive's unpaid base salary
earned through the Date of Termination, (B) any unpaid bonus or portion thereof
which has been earned through the Date of Termination and (C) the amount of any
compensation previously deferred by the Executive (together with any accrued
interest or earnings thereon) and any accrued vacation pay, in each case to the
extent not previously paid (the sum of the amounts described in clauses (A),
(B), and (C) shall be hereinafter referred to as the "Accrued Obligations"); and
(2) the amount equal to (A) X multiplied by (B) the
Executive's highest annual base salary during the five-year period prior to the
Change in Control Date, where X = ___ if such termination occurs within 12
months following the Change in Control Date and ____ if such termination occurs
more than 12 months following the Change in Control Date or occurs prior to any
Change in Control Date; and
(ii) to the extent not previously paid or provided, the
Company shall timely pay or provide to the Executive any other amounts or
benefits required to be paid or provided or which the Executive is eligible to
receive following the Executive's termination of employment under any plan,
program, policy, practice, contract or agreement of the Company and its
affiliated companies (such other amounts and benefits shall be hereinafter
referred to as the "Other Benefits").
(b) Resignation without Good Reason; Termination for Death or
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Disability. If the Executive voluntarily terminates [his/her] employment with
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the Company excluding a termination for Good Reason, or if the Executive's
employment with the Company is terminated by reason of the Executive's death or
Disability, then the Company shall (i) pay the Executive (or [his/her] estate,
if applicable), in a lump sum in cash within 30 days after the Date of
Termination, the Accrued Obligations and (ii) timely pay or provide to the
Executive the Other Benefits.
(c) Termination for Cause. If the Company terminates the
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Executive's employment with the Company for Cause, then the Company shall (i)
pay the Executive, in a lump sum in cash within 10 days after the Date of
Termination, the sum of (A) the Executive's unpaid annual base salary earned
through the Date of Termination and (B) the amount of any compensation
previously deferred by the Executive, in each case to the extent not previously
paid, and (ii) timely pay or provide to the Executive the Other Benefits.
3.2 Taxes.
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(a) Notwithstanding any other provision of this Agreement,
except as set forth in Section 3.2(b), in the event that the Company undergoes a
"Change in Ownership or
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Control" (as defined below), the Company shall not be obligated to provide to
the Executive a portion of any "Contingent Compensation Payments" (as defined
below) that the Executive would otherwise be entitled to receive to the extent
necessary to eliminate any "excess parachute payments" (as defined in Section
280G(b)(1) of the Internal Revenue Code of 1986, as amended (the "Code")) for
the Executive. For purposes of this Section 3.2, the Contingent Compensation
Payments so eliminated shall be referred to as the "Eliminated Payments" and the
aggregate amount (determined in accordance with Proposed Treasury Regulation
Section 1.280G-1, Q/A-30 or any successor provision) of the Contingent
Compensation Payments so eliminated shall be referred to as the "Eliminated
Amount."
(b) Notwithstanding the provisions of Section 3.2(a), no such
reduction in Contingent Compensation Payments shall be made if (i) the
Eliminated Amount (computed without regard to this sentence) exceeds (ii) the
aggregate present value (determined in accordance with Proposed Treasury
Regulation Section 1.280G-1, Q/A-31 and Q/A-32 or any successor provisions) of
the amount of any additional taxes that would be incurred by the Executive if
the Eliminated Payments (determined without regard to this sentence) were paid
to [him/her] (including, state and federal income taxes on the Eliminated
Payments, the excise tax imposed by Section 4999 of the Code payable with
respect to all of the Contingent Compensation Payments in excess of the
Executive's "base amount" (as defined in Section 280G(b)(3) of the Code), and
any withholding taxes). The override of such reduction in Contingent
Compensation Payments pursuant to this Section 3.2(b) shall be referred to as a
"Section 3.2(b) Override." For purpose of this paragraph, if any federal or
state income taxes would be attributable to the receipt of any Eliminated
Payment, the amount of such taxes shall be computed by multiplying the amount of
the Eliminated Payment by the maximum combined federal and state income tax rate
provided by law.
(c) For purposes of this Section 3.2 the following terms shall
have the following respective meanings:
(i) "Change in Ownership or Control" shall mean a change in
the ownership or effective control of the Company or in the ownership of a
substantial portion of the assets of the Company determined in accordance with
Section 280G(b)(2) of the Code.
(ii) "Contingent Compensation Payment" shall mean any
payment (or benefit) in the nature of compensation that is made or made
available (under this Agreement or otherwise) to a "disqualified individual" (as
defined in Section 280G(c) of the Code) and that is contingent (within the
meaning of Section 280G(b)(2)(A)(i) of the Code) on a Change in Ownership or
Control of the Company.
(d) Any payments or other benefits otherwise due to the Executive
following a Change in Ownership or Control that could reasonably be
characterized (as determined by the Company) as Contingent Compensation Payments
(the "Potential Payments") shall not be made until the dates provided for in
this Section 3.2(d). Within 30 days after each date on which the Executive
first becomes entitled to receive (whether or not then due) a Contingent
Compensation Payment relating to such Change in Ownership or Control, the
Company shall determine and notify the Executive (with reasonable detail
regarding the basis for its determinations) (i) which Potential Payments
constitute Contingent Compensation Payments,
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(ii) the Eliminated Amount and (iii) whether the Section 3.2(b) Override is
applicable. Within 30 days after delivery of such notice to the Executive, the
Executive shall deliver a response to the Company (the "Executive Response")
stating either (A) that [he/she] agrees with the Company's determination
pursuant to the preceding sentence, in which case [he/she] shall indicate, if
applicable, which Contingent Compensation Payments, or portions thereof (the
aggregate amount of which, determined in accordance with Proposed Treasury
Regulation Section 1.280G-1, Q/A-30 or any successor provision, shall be equal
to the Eliminated Amount), shall be treated as Eliminated Payments or (B) that
[he/she] disagrees with such determination, in which case [he/she] shall set
forth (i) which Potential Payments should be characterized as Contingent
Compensation Payments, (ii) the Eliminated Amount, (iii) whether the Section
3.2(b) Override is applicable, and (iv) which (if any) Contingent Compensation
Payments, or portions thereof (the aggregate amount of which, determined in
accordance with Proposed Treasury Regulation Section 1.280G-1, Q/A-30 or any
successor provision, shall be equal to the Eliminated Amount, if any), shall be
treated as Eliminated Payments. In the event that the Executive fails to deliver
an Executive Response on or before the required date, the Company's initial
determination shall be final and the Contingent Compensation Payments that shall
be treated as Eliminated Payments shall be determined by the Company in its
absolute discretion. If the Executive states in the Executive Response that
[he/she] agrees with the Company's determination, the Company shall make the
Potential Payments to the Executive within three business days following
delivery to the Company of the Executive Response (except for any Potential
Payments which are not due to be made until after such date, which Potential
Payments shall be made on the date on which they are due). If the Executive
states in the Executive Response that [he/she] disagrees with the Company's
determination, then, for a period of 60 days following delivery of the Executive
Response, the Executive and the Company shall use good faith efforts to resolve
such dispute. If such dispute is not resolved within such 60-day period, such
dispute shall be settled exclusively by arbitration in Boston, Massachusetts, in
accordance with the rules of the American Arbitration Association then in
effect. Judgment may be entered on the arbitrator's award in any court having
jurisdiction. The Company shall, within three business days following delivery
to the Company of the Executive Response, make to the Executive those Potential
Payments as to which there is no dispute between the Company and the Executive
regarding whether they should be made (except for any such Potential Payments
which are not due to be made until after such date, which Potential Payments
shall be made on the date on which they are due). The balance of the Potential
Payments shall be made within three business days following the resolution of
such dispute. Subject to the limitations contained in Sections 3.2(a) and (b)
hereof, the amount of any payments to be made to the Executive following the
resolution of such dispute shall be increased by amount of the accrued interest
thereon computed at the prime rate announced from time to time by the Wall
Street Journal, compounded monthly from the date that such payments originally
were due.
(f) The provisions of this Section 3.2 are intended to apply to
any and all payments or benefits available to the Executive under this Agreement
or any other agreement or plan of the Company under which the Executive receives
Contingent Compensation Payments.
3.3 Mitigation. The Executive shall not be required to mitigate the
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amount of any payment or benefits provided for in this Section 3 by seeking
other employment or otherwise. Further, the amount of any payment or benefits
provided for in this Section 3 shall not
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be reduced by any compensation earned by the Executive as a result of employment
by another employer, by retirement benefits, by offset against any amount
claimed to be owed by the Executive to the Company or otherwise.
4. Disputes.
4.1 Settlement of Disputes; Arbitration. All claims by the Executive
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for benefits under this Agreement shall be directed to and determined by the
Board of Directors of the Company and shall be in writing. Any denial by the
Board of Directors of a claim for benefits under this Agreement shall be
delivered to the Executive in writing and shall set forth the specific reasons
for the denial and the specific provisions of this Agreement relied upon. The
Board of Directors shall afford a reasonable opportunity to the Executive for a
review of the decision denying a claim. Any further dispute or controversy
arising under or in connection with this Agreement shall be settled exclusively
by arbitration in Boston, Massachusetts, in accordance with the rules of the
American Arbitration Association then in effect. Judgment may be entered on the
arbitrator's award in any court having jurisdiction.
4.2 Expenses. The Company agrees to pay as incurred, to the full
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extent permitted by law, all legal, accounting and other fees and expenses which
the Executive may reasonably incur as a result of any claim or contest
(regardless of the outcome thereof) by the Company, the Executive or others
regarding the validity or enforceability of, or liability under, any provision
of this Agreement or any guarantee of performance thereof (including as a result
of any contest by the Executive regarding the amount of any payment or benefits
pursuant to this Agreement), plus in each case interest on any delayed payment
at the applicable Federal rate provided for in Section 7872(f)(2)(A) of the
Code.
5. Successors.
5.1 Successor to Company. The Company shall require any successor
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(whether direct or indirect, by purchase, merger, consolidation or otherwise) to
all or substantially all of the business or assets of the Company expressly to
assume and agree to perform this Agreement 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 an assumption of this Agreement at or prior to the
effectiveness of any succession shall be a breach of this Agreement and shall
constitute Good Reason if the Executive elects to terminate employment, except
that for purposes of implementing the foregoing, the date on which any such
succession becomes effective shall be deemed the Date of Termination. As used
in this Agreement, "Company" shall mean the Company as defined above and any
successor to its business or assets as aforesaid which assumes and agrees to
perform this Agreement, by operation of law or otherwise.
5.2 Successor to Executive. This Agreement shall inure to the
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benefit of and be enforceable by the Executive's personal or legal
representatives, executors, administrators, successors, heirs, distributees,
devisees and legatees. If the Executive should die while any amount would still
be payable to the Executive or [his/her] family hereunder if the 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 the Executive's estate.
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6. Notice. All notices, instructions and other communications given
hereunder or in connection herewith shall be in writing. Any such notice,
instruction or communication shall be sent either (i) by registered or certified
mail, return receipt requested, postage prepaid, or (ii) prepaid via a reputable
nationwide overnight courier service, in each case addressed to the Company, at
000 Xxxxxxxxx Xxxx, Xxxxxxx, XX 00000, Attention: Chief Executive Officer, and
to the Executive at _____________ (or to such other address as either the
Company or the Executive may have furnished to the other in writing in
accordance herewith). Any such notice, instruction or communication shall be
deemed to have been delivered five business days after it is sent by registered
or certified mail, return receipt requested, postage prepaid, or one business
day after it is sent via a reputable nationwide overnight courier service.
Either party may give any notice, instruction or other communication hereunder
using any other means, but no such notice, instruction or other communication
shall be deemed to have been duly delivered unless and until it actually is
received by the party for whom it is intended.
7. Miscellaneous.
7.1 Employment by Subsidiary. For purposes of this Agreement, the
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Executive's employment with the Company shall not be deemed to have terminated
solely as a result of the Executive continuing to be employed by a wholly-owned
subsidiary of the Company.
7.2 Severability. The invalidity or unenforceability of any
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provision of this Agreement shall not affect the validity or enforceability of
any other provision of this Agreement, which shall remain in full force and
effect.
7.3 Injunctive Relief. The Company and the Executive agree that any
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breach of this Agreement by the Company is likely to cause the Executive
substantial and irrevocable damage and therefore, in the event of any such
breach, in addition to such other remedies which may be available, the Executive
shall have the right to specific performance and injunctive relief.
7.4 Governing Law. The validity, interpretation, construction and
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performance of this Agreement shall be governed by the internal laws of the
Commonwealth of Massachusetts, without regard to conflicts of law principles.
7.5 Waivers. No waiver by the Executive at any time of any breach
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of, or compliance with, any provision of this Agreement to be performed by the
Company shall be deemed a waiver of that or any other provision at any
subsequent time.
7.6 Counterparts. This Agreement may be executed in counterparts,
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each of which shall be deemed to be an original but both of which together shall
constitute one and the same instrument.
7.7 Tax Withholding. Any payments provided for hereunder shall be
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paid net of any applicable tax withholding required under federal, state or
local law.
7.8 Entire Agreement. This Agreement sets forth the entire agreement
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of the parties hereto in respect of the subject matter contained herein and
supersedes all prior agreements, promises, covenants, arrangements,
communications, representations or warranties,
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whether oral or written, by any officer, employee or representative of any party
hereto in respect of the subject matter contained herein; and any prior
agreement of the parties hereto in respect of the subject matter contained
herein is hereby terminated and cancelled.
7.9 Amendments. This Agreement may be amended or modified only by a
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written instrument executed by both the Company and the Executive.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first set forth above.
NaviSite, Inc.
By:________________________________
Title:_______________________________
___________________________________
[NAME OF EXECUTIVE]
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