EXHIBIT 10.9
[LOGO] NaviSite
EMPLOYMENT AGREEMENT
SUBJECT TO APPROVAL BY THE BOARD OF DIRECTORS
This Employment Agreement is made and entered into by and between NaviSite,
a Delaware corporation, (the "Company") and Xxxxxx Xxxxxx (the "Employee"), as
of February 21, 2003
1. Position and Duties. Employee will be employed by the Company as its
President and Chief Executive Officer, reporting to the Company's Board of
Directors (the "Board"). 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 President and Chief
Executive 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 will start on
Frbruary 21, 2003, 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 $10,576.92.
less applicable withholding, ($275,000 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 Board.
(b) Bonus: Employee will be eligible to receive an annual bonus based
upon the Company's achievement of various financial and/or other goals
established by the Board. The objectives that govern Employee's bonus
eligibility for this year will be communicated to Employee in writing by the
Board within 30 days following the implementation of a bonus plan. To the extent
earned (which requires that Employee be employed by the Company on the last day
of the applicable period), bonuses will be paid to Employee on the later of 30
days after (i) the end of the applicable period, or (ii) the date on which the
financial or other data necessary to determine Employee's entitlement to the
bonus becomes available. All bonuses will be subject to applicable withholding.
(c) 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.
(d) Stock Options: Subject to the Board's approval, Employee will be
granted an option to purchase a number of shares of the Company's common stock
under the Company's stock option plan. The number of shares will be commensurate
with the Employee's position within the Company. Provided Employee remains
employed by the Company. The option schedule will be based on the Company's
stock plan. Employee's option will be governed by and subject to the terms and
conditions of the Company's standard form of stock option agreement (which
Employee will be required to sign in connection with the issuance of Employee's
option).
(e) Office Support: The Company shall provide the Employee with office
space in the City of New York and with an assistant to manage such office, for
the purpose of fulfilling Employee's duties to the Company.
(f) 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: If Employee's employment is terminated
by the Company without cause (and not as a result of Employee's death or
disability), and if Employee signs a 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, until the
earlier of (i) six months after the date of Employee's termination without
cause, or (ii) the date on which Employee first commences other employment.
Severance payments will be made in accordance with the Company's normal payroll
procedures.
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 New York. 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.
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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: 2/21/03 By: /s/ Xxxx Xxxxx
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Its: Chairman of the Board
Xxxxxx Xxxxxx
Date: 2/19/03 /s/ Xxxxxx Xxxxxx
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Xxxxxx Xxxxxx
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