Exhibit 10.4
NON-COMPETITION AGREEMENT
NAVISITE, INC.
IN CONSIDERATION OF the grant to the undersigned employee or consultant of
an option for the purchase of 175,000 shares of Common Stock, $0.01 par value
per share, of NaviSite, Inc. (the "Company", which term as used herein shall in
all instances be deemed to include all corporations or other legal entities
controlled, directly or indirectly, by the Company), and other good and valuable
consideration, the undersigned employee or consultant hereby agrees as follows:
1. NON-COMPETITION AGREEMENT. I agree that during my employment or consulting
relationship with the Company and for twelve (12) months thereafter, I will not,
directly or indirectly,:
(a) Engage in any business or enterprise (whether as an owner, member,
manager, partner, officer, employee, director, investor, lender,
consultant, independent contractor or otherwise, except as the holder
of not more than 1% percent of the combined voting power of the
outstanding stock of a publicly held company) that is competitive with
the Company's business, including, but not limited to, any business or
enterprise that develops, designs, produces, markets, sells or renders
any product or service competitive with any product or service
developed, designed, produced, marketed, sold or rendered by the
Company or any of its subsidiaries while I was employed by or provided
consulting services to the Company; or
(b) Either alone or in association with others, solicit, divert, or take
away or attempt to divert or to take away, the business or patronage
of any of the clients, customers or accounts, or prospective clients,
customers or accounts, of the Company which were contacted, solicited
or served by me while I was employed by or provided consulting
services to the Company;
(c) Either alone or in association with others (i) solicit, or permit any
organizations directly or indirectly controlled by me to solicit, any
employee of the Company to leave the employ of the Company, (ii)
solicit for employment, hire or engage as an independent contractor,
or permit any organization directly or indirectly controlled by me to
solicit from employment, hire or engage as an independent contractor,
any person who is/was employed by the Company at any time during the
term of my employment or consulting relationship with the Company;
provided, that this clause (ii) shall not apply to the solicitation,
hiring or engagement of any individual whose employment with the
Company has been terminated for a period of six months or longer.
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(d) The geographic scope of this Section shall extend to anywhere the
Company is doing business, has done business or intends to do
business.
(e) If I violate the provisions of this Section, I shall continue to be
bound by the restrictions set forth in this Section until a period of
one year has expired without any violation of such provisions.
(f) Subsequent to the last day of my employment by the Company I may
request permission to work for or with an entity covered by this
Agreement by delivering a written request to the Company at its then
current headquarters address via certified mail or a nationally
recognized overnight delivery service that provides proof of delivery,
to the attention of the Chief Executive Officer with copies of such
written request being concurrently delivered to the Vice President of
Human Resources and the General Counsel of the Company. I understand
that each such written request must specify the name of the entity
that has offered a position to me, a brief description of the business
of that entity, the title of my prospective position and a brief
description of my roles and responsibilities in such position. If,
within five business days after receipt by the above persons at the
Company of such a written request by me (in the manner described
above), the Company does not: (i) respond to my request, or (ii) grant
my request, the Company will then begin to pay to me, effective from
and after the earlier of either: (a) the denial of my request by the
Company, or (b) the fifteenth (15th) day after my written request was
received by Company, my base compensation then in effect, with the
same frequency with which I was being paid during the last month of my
employment by the Company (the "Continuation Payments"), subject to
the following limitations: (i) the Continuation Payments will cease
upon the earlier to occur of (a) the day I start working for an entity
not covered by this Agreement, (b) twelve months after the last day of
my employment by the Company, (c) my violation of any of the terms and
conditions of my Non-Disclosure and Developments Agreement or this
Agreement, (e) NaviSite grants a subsequent written request I make to
the Company to permit me to work for an entity covered by this
Agreement or (f) the Company voluntarily waives my compliance with the
provisions of paragraphs 1.(a)-1.(e) of this Agreement.
(g) In the event my employment by NaviSite is terminated for Cause, as
defined below, the provisions of paragraph 1.(f) shall be null and
void, shall not apply and shall have no force and effect. "Cause"
means my willful and intentional engaging in conduct that is
demonstrably and materially injurious to the Company, my willful and
intentional breach of my fiduciary obligations as an officer of the
Company, my willful and intentional refusal to perform my legal duties
with the Company after instruction by the Chief Executive Officer or
the Board of Directors to do so or my conviction of, or the entry of a
pleading of guilty or nolo contender to any crime involving moral
turpitude or any felony.
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3. OTHER AGREEMENTS.
(a) I hereby represent that, except as I have previously disclosed in
writing to the Company, I am not bound by the terms of any agreement
with any previous employer or other party to refrain from using or
disclosing any trade secret or confidential or proprietary information
in the course of my employment or consulting relationship with the
Company or to refrain from competing, directly or indirectly, with the
business of such previous employer or any other party. I further
represent that my performance of all the terms of this Agreement and
as an employee or consultant of the Company does not and will not
breach any agreement to keep in confidence proprietary information,
knowledge or data acquired by me in confidence or in trust prior my
employment or consulting relationship with the Company, and I will not
disclose to the Company or induce the Company to use any confidential
or proprietary information or material belonging to any previous
employer or others.
(b) I agree to notify any prospective employer of the existence of this
agreement and to furnish a copy hereof (and the Company may also
furnish a copy thereof) to such employer. I acknowledge that I have
read and signed the Non-Disclosure and Developments Agreement provided
to me by the Company and delivered an executed copy to the Company.
4. NOT AN EMPLOYMENT CONTRACT.
I acknowledge and agree that this Agreement does not constitute a contract
of employment and does not imply or otherwise constitute an agreement that the
Company will continue my employment or consulting relationship for any period of
time. Nothing in this agreement alters the "at-will" nature of my employment
with the Company.
5. GENERAL PROVISIONS.
(a) NO CONFLICT. I represent that my execution and performance of this
Agreement does not and will not conflict with or breach the terms of
any other agreement by which I am bound.
(b) ENTIRE AGREEMENT. This Agreement supersedes all prior agreements,
written or oral, between me and the Company relating to the subject
matter of this Agreement, provided that nothing herein shall limit my
obligations under any non-disclosure and
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developments agreement which I may enter with the Company. This
Agreement may not be modified, changed or discharged in whole or in
part, except by an agreement in writing signed by me and the Company.
I agree that any change or changes in my duties, salary or
compensation after the signing of this Agreement shall not affect the
validity or scope of this Agreement.
(c) INTERPRETATION. If any restriction set forth in Section 2 is found by
any court of competent jurisdiction to be unenforceable because it
extends for too long a period of time or over too great a range of
activities or over too broad a geographic area, it shall be
interpreted to extend only over the maximum period of time, range of
activities or geographic area as to which it may be enforceable.
(d) SEVERABILITY. The invalidity or unenforceability of any provision of
this Agreement shall not affect or impair the validity or
enforceability of any other provision of this Agreement.
(e) WAIVER. No delay or omission by the Company in exercising any right
under this Agreement shall operate as a waiver of that or any other
right. A waiver or consent given by the Company on any one occasion is
effective only in that instance and shall not be construed as a bar
to, or waiver of any, right on any other occasion.
(f) ACKNOWLEDGMENT AND EQUITABLE REMEDIES. I acknowledge that the
restrictions contained in this Agreement are necessary for the
protection of the business and goodwill of the Company and consider
the restrictions to be reasonable for such purpose. I agree that any
breach of this Agreement is likely to cause the Company substantial
and irrevocable damage and that a breach of Section 2 would entail
inevitable wrongful use or disclosure of the Company's proprietary and
confidential information, and therefore, in the event of any breach of
this Agreement, I agree that the Company, in addition to such other
remedies which may be available, shall be entitled to specific
performance and other injunctive relief without posting a bond.
(g) SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon and inure
to the benefit of both parties and their respective successors and
assigns, including any corporation or entity with which or into which
the Company may be merged or otherwise combined or which may succeed
to its assets or business, provided however that the obligations of
the employee or contractor are personal and shall not be assigned by
the employee or contractor.
(h) GOVERNING LAW, FORUM AND JURISDICTION. This Agreement shall be
governed by and construed as a sealed instrument under and in
accordance with the laws of the Commonwealth of Massachusetts, without
regard to conflicts of law provisions.
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(i) CAPTIONS. The captions of the sections of this Agreement are for
convenience of reference only and in no way define, limit or affect
the scope or substance of any section of this Agreement.
I ACKNOWLEDGE THAT I HAVE CAREFULLY READ THIS AGREEMENT AND UNDERSTAND AND
AGREE TO ALL OF THE PROVISIONS IN THIS AGREEMENT.
WITNESS our hands and seals:
NAVISITE, INC.
Date: January 18, 2001 By: /s/ Xxxxxx Xxxxxxxx
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Xxxxxx Xxxxxxxx
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Please print name and title
Date: January 18, 2001 /s/ Xxxx X. Xxxxxx
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Employee signature
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