Severance Agreement and General Release - NaviSite Inc. and Patricia Gilligan
SEVERANCE AGREEMENT AND GENERAL RELEASE
February 21, 2003
Ms. Patricia Gilligan
7 Main Street
Dover, MA 02030
Dear Trish:
In connection with your termination from NaviSite, Inc. (the "Company")
effective March 21, 2003, you are eligible to receive the severance benefits
described in the "Description of Separation Benefits" attached to this agreement
as Attachment A if you sign and return this agreement to Pat Schoof, Vice
President of Human Resources or Richard DeWaele, General Counsel on or before
March 31, 2003. By signing and returning this agreement, you will be entering
into a binding agreement with the Company and will be agreeing to the terms and
conditions set forth in the numbered paragraphs below, including the release of
claims set forth in paragraph 3. Therefore, you are advised to consult with your
attorney before signing this agreement, and you may take up to twenty-one (21)
days to do so. If you sign this agreement, you may change your mind and revoke
your agreement during the seven (7) day period after you have signed it. If you
do not so revoke, this agreement will become a binding agreement between you and
the Company upon the expiration of the seven (7) day revocation period.
If you choose not to sign and return this agreement by March 31, 2003, you
shall not receive Separation Benefits as described on Attachment A from the
Company.
The following numbered paragraphs set forth the terms and conditions that
will apply if you timely sign and return this agreement and do not revoke it
within the seven (7) day period:
1. Termination Date - Your effective date of termination from the Company is
March 21, 2003 (the "Termination Date").
2. Description of Separation Benefits - The benefits paid to you if you timely
sign and return this agreement are described in the "Description of
Separation Benefits" attached as Attachment A (the "Separation Benefits").
3. Release - You hereby agree that all rights under Section 1542 of the
California Civil Code are hereby waived. Such section reads as follows:
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH A CREDITOR DOES NOT
KNOW OF OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE
RELEASE WHICH IF KNOWN BY HIM MUST HAVE
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MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR.
Notwithstanding the provisions of Section 1542 of the California Civil
Code, and for the purpose of implementing a full and complete settlement
and release, and in consideration of the payment of the Separation
Benefits, you hereby fully, forever, irrevocably and unconditionally
release, remise and discharge the Company, and its legal representatives,
assigns, predecessors, successors, affiliates, parent companies,
subsidiaries, and related entities, and their past and present officers,
directors, stockholders, fiduciaries, insurers, agents, and employees (each
in their individual and corporate capacities) (hereinafter, the "Released
Parties") from any and all claims, charges, complaints, demands, actions,
causes of action, suits, rights, debts, sums of money, costs, accounts,
reckonings, covenants, contracts, agreements, promises, doings, omissions,
damages, executions, obligations, liabilities, and expenses (including
attorneys' fees and costs), of every kind and nature which you ever had or
now have against the Released Parties arising out of your employment with
and/or separation from the Company, including but not limited to all claims
under or arising out of Title VII of the Civil Rights Act of 1964, 42
U.S.C. (S)2000e et seq., the Americans With Disabilities Act of 1990, 42
U.S.C., (S)12101 et seq., the Rehabilitation Act of 1973, 29 U.S.C. (S) 701
et seq., the Family and Medical Leave Act, 29 U.S.C. (S) 2601 et seq., the
Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. section 729, et
seq., the Fair Credit Reporting Act, 15 U.S.C. (S)1681 et seq., the
Employee Retirement Income Security Act of 1974 ("ERISA"), 29 U.S.C. (S)
1001 et seq., the Worker Adjustment and Retraining Notification Act, 29
U.S.C. (S) 2101 et seq., the California Fair Employment and Housing Act,
Cal. Gov't Code (S) 12900 et seq., the California Family Rights Act, Cal.
Gov't Code (S) 12945.2, the California Labor Code, and the California Unruh
Civil Rights Act, Cal. Civil Code (S) 51 et seq., the Massachusetts Fair
Employment Practices Act, M.G.L. c. 151B, (S) 1 et seq., the Massachusetts
Civil Rights Act, M.G.L. c. 12 (S)(S)11H and 11I, the Massachusetts Equal
Rights Act, M.G.L. c. 93, (S)102 and M.G.L. c. 214, (S) 1 C, the
Massachusetts Labor and Industries Act, M.G.L. c. 149, (S) 1 et seq., the
Massachusetts Privacy Act, M.G.L. c. 214, (S) 1B, and the Massachusetts
Maternity Leave Act , M.G.L. c. 149, (S)105(d), all as amended; all common
law claims, including but not limited to actions in tort, defamation and
breach of contract; all claims to any non-vested ownership interest in the
Company, contractual or otherwise, including but not limited to claims to
stock or stock options; and any claim or damage arising out of your
employment with or separation from the Company (including a claim for
retaliation) under any common law theory or any federal, state or local
statute or ordinance not expressly referenced above; provided, however,
that nothing in this agreement prevents you from filing, cooperating with,
or participating in any proceeding before the Equal Employment Opportunity
Commission or a state fair employment practices agency (except that you
acknowledge that you may not be able to recover any monetary benefits in
connection with any such Claim, charge or proceeding). Further excepted
from this promise not to sue are claims under the ADEA to the extent such
an exception is required by law.
4. Acknowledgments - This agreement is intended to comply with the Older
Workers Benefit Protection Act of 1990 with regard to your waiver of rights
under the ADEA.
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a. You are specifically waiving rights and claims under the ADEA.
b. You are entering into this agreement knowingly and voluntarily.
c. The waiver of rights and claims under the ADEA does not extend to any
rights or claims arising after you execute this agreement.
d. You acknowledge that the Company has advised you in writing to consult
with an attorney prior to signing this agreement. You further
acknowledge that you have had the opportunity to consult with an
attorney of your choice with respect to all terms and conditions set
forth in this agreement and to have the advise of counsel with respect
to your decision to sign and enter into this agreement.
e. You acknowledge that the Company offered you twenty-one (21) days to
consider the terms and conditions of this agreement, to consult with
counsel of your choice, and to decide whether to sign and enter into
this agreement.
f. You have seven (7) days after your execution of this agreement to
revoke your acceptance of it. Any such revocation must be received
within the seven-day period by Richard DeWaele, NaviSite, 400
Minuteman Road, Andover, MA 01810. The parties acknowledge and agree
that this agreement is neither effective nor enforceable and neither
party is obligated to perform the promises contained herein in the
event that the agreement is revoked or until expiration of the
seven-day revocation period (the "Effective Date").
5. Non-Disclosure - You acknowledge your obligation to keep confidential all
non-public information concerning the Company which you acquired during the
course of your employment with the Company, as stated more fully in the
non-disclosure agreement you executed at the inception of your employment,
which remains in full force and effect. You further acknowledge and
reaffirm your obligations under the non-competition and/or non-solicitation
agreement you previously executed for the benefit of the Company at the
inception of your employment, which also remains in full force and effect.
6. Return of Company Property - You confirm that you have returned to the
Company all keys, files, records (and copies thereof), equipment (other
than the cell phone which you were using immediately prior to your
termination, which you will keep and assume all bills associated therewith)
and other Company-owned property in your possession or control and have
left intact all electronic Company documents, including but not limited to
those which you developed or helped to develop during your employment. You
further confirm that you have cancelled all accounts for your benefit, if
any, in the Company's name, including but not limited to credit cards,
telephone charge cards, cellular phone and/or pager accounts and computer
accounts.
7. Non-Disparagement - You understand and agree that as a condition for
payment to you of the consideration herein described, you shall not make
any false, disparaging or
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derogatory statements to any media outlet, industry group, financial
institution or current or former employee, consultant, client or customer
of the Company regarding the Company or any of its directors, officers,
employees, agents or representatives or about the Company's business
affairs and financial condition.
8. Amendment - This agreement shall be binding upon the parties and may not be
modified in any manner, including but not limited to handwritten changes,
deletions or additions of any kind, whether or not initialed by you. This
agreement can only be modified by an instrument in writing of concurrent or
subsequent date signed by duly authorized representatives of the parties
hereto. This agreement is binding upon and shall inure to the benefit of
the parties and their respective agents, assigns, heirs, executors,
successors and administrators.
9. Waiver of Rights - 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 shall
be effective only in that instance and shall not be construed as a bar or
waiver of any right on any other occasion.
10. Validity - Should any provision of this agreement be declared or be
determined by any court of competent jurisdiction to be illegal or invalid,
the validity of the remaining parts, terms or provisions shall not be
affected thereby and said illegal or invalid part, term or provision shall
be deemed not to be a part of this agreement.
11. Confidentiality - You understand and agree that as a condition for payment
to you of the consideration herein described, the terms and contents of
this agreement and the contents of the negotiations and discussions
resulting in this agreement shall be maintained as confidential by you and
your agents and representatives and shall not be disclosed except to the
extent required by federal or state law or as otherwise agreed to in
writing by the Company.
12. Nature of Agreement - You understand and agree that this agreement is a
severance agreement and does not constitute an admission of liability or
wrongdoing on the part of the Company, or any other person.
13. Additional Employee Acknowledgments - You acknowledge that once you have
been paid the final pay check described in the attached letter you have
received all wages and other compensation due and owing through the
Termination Date and that you have been paid for any and all unused
vacation which has accrued through the Termination Date.
14. Voluntary Assent - You affirm that no other promises or agreements of any
kind have been made to or with you by any person or entity whatsoever to
cause you to sign this agreement, and that you fully understand the meaning
and intent of this agreement. You state and represent that you have had an
opportunity to fully discuss and review the terms of this agreement with an
attorney. You further state and represent that you have carefully read this
agreement, including Attachment A, understand the contents herein,
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freely and voluntarily assent to all of the terms and conditions hereof,
and sign your name of your own free act.
15. Applicable Law - This agreement shall be interpreted and construed by the
laws of the Commonwealth of Massachusetts, without regard to conflict of
laws provisions. You hereby irrevocably submit to and acknowledge and
recognize the jurisdiction of the courts of the Commonwealth of
Massachusetts, or if appropriate, a federal court located in Massachusetts
(which courts, for purposes of this agreement, are the only courts of
competent jurisdiction), over any suit, action or other proceeding arising
out of, under or in connection with this agreement or the subject matter
hereof.
16. Entire Agreement - This agreement along with Attachment A and the letter
referenced herein and attached hereto contains and constitutes the entire
understanding and agreement between the parties hereto with respect to your
severance benefits and the settlement of claims against the Company. This
agreement supersedes all previous oral and written negotiations,
agreements, commitments, and writings in connection therewith excepting
only the Executive Retention Agreement between you and the Company dated as
of April 13, 2001, which shall remain in full force and effect according to
its terms.
If you have any questions about the matters covered in this agreement,
please contact Human Resources.
Very truly yours,
NaviSite, Inc.
By: /s/ Richard M. DeWaele
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V.P. and General Counsel
I hereby agree to the terms and conditions set forth above and in the
Description of Separation Benefits, attached hereto as Attachment A. I intend
that this agreement, including Attachment A, become a binding agreement between
me and the Company.
/s/ Patricia Gilligan Date 2-20-03
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Patricia Gilligan
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ATTACHMENT A
DESCRIPTION OF SEPARATION BENEFITS
The Company will pay you the equivalent of three (3) months of premiums
($1,756.24) for the same health benefits you had immediately prior to your
termination, less all applicable state and federal taxes and payroll
withholdings (the "Separation Benefits"). This Separation Benefits will be paid
in one lump sum eight (8) days following the return of an executed copy of this
agreement to the Company.
Initials: PG
RMD
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