Employment Agreement - NaviSite Inc. and Ken Drake
[NAVISITE LOGO]
Personal & Confidential
July 15, 2003
Ken Drake
RE: OFFER OF EMPLOYMENT
Dear Ken:
NaviSite, Inc. ("NaviSite" or the "Company")) is pleased to offer you the
opportunity to join our company. You are being offered a position as General
Counsel initially reporting to me. If you decide to join us, your annualized
base salary will be $180,000.00, less applicable withholdings. You will be paid
bi-weekly in accordance with the Company's standard payroll practice. You will
be located at the Company's office in New York, New York. You will have such
duties, authorities and responsibilities commensurate with your position and
such other duties and responsibilities as the Chief Executive Officer of
NaviSite, or his designee, shall designate from time to time. Your salary will
be reviewed by the Chief Executive Officer of NaviSite and/or the Board of
Directors from time to time (but generally no more frequently than annually) and
may be subject to adjustment based upon various factors, including, but not
limited to, your performance.
BONUS:
You will be eligible for a discretionary performance bonus based in part on
mutual objectives that you and I will set no later than 60 days after the
earlier of (i) the date you commence employment with the Company and (ii) the
date of the adoption of a bonus plan by the Company.
STOCK OPTIONS PLAN:
Subject to the Board's approval, you will be granted an option to purchase
80,000 of shares of the Company's common stock in accordance with the Company's
stock option plan with the purchase price for such shares being set at the
market price on the date of issuance by the Board. The option schedule will be
based on the Company's stock plan. The options will be governed by and subject
to the terms, conditions and termination provisions of the Company's standard
form of stock option agreement (which you will be required to sign in connection
with the issuance of your option).
SEVERANCE:
If your employment is terminated (i) by the Company without cause (and not as a
result of your death or disability) or (ii) by you for "good reason", and if you
enter into a binding general release of known and unknown claims in a form
satisfactory to the Company, you will receive severance payments at your final
base salary rate, less applicable withholding, and continuation of medical
benefits pursuant to COBRA until six months after the date of your termination
without cause or for good reason. Severance payments will be made in accordance
with the Company's normal payroll procedures. For purposes of this section ,
"cause" shall mean (a) a good faith finding by the Board that (i) you have
failed to perform your reasonably assigned duties for the Company and have
failed to remedy such failure within 10 days of the initial written notice from
the Company to you informing you of such failure, (ii) you have engaged in
dishonesty, gross negligence or willful misconduct, (b) your indictment of, the
entry of a pleading of guilty or nolo contendere by you to, any crime involving
moral turpitude or any felony, or your disbarment from the practice of law in
any state of the United States, or (iii) your breach of any of your obligations
to the Company, including your failure to provide the Company with necessary I-9
documentation as set forth below. For purposes of this section "good reason"
means (i) a material breach by the Company of the terms of this offer, which
breach is not remedied by the Company within 10 days following the first written
notice by you to the Company notifying it of such breach or (ii) the relocation
without your authorization of your place of work more than 50 miles from your
principal place of employment set forth in the first paragraph above.
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BENEFITS:
As an employee, you will also be eligible to receive certain employee benefits
including medical, dental, 401 (k) Plan, employee assistance program, life
insurance and accidental death and dismemberment on your date of hire. The
Company reserves the right to revise or discontinue any or all of its benefit
plans, at any time, in the Company's sole discretion. The Company will also pay
any applicable professional licensing fees, bar association memberships and
requisite continuing legal education expenses in order for you to keep in good
standing as an attorney in New York. In accordance with Company policy, you will
be promptly reimbursed for reasonable, documented out of pocket expenses,
including travel, incurred in connection with your service to the Company.
PAID TIME OFF:
In order to allow employees the greatest possible control of their time,
NaviSite has a combined program of paid time off as detailed in your new hire
packet. Each new employee begins to accrue paid time off immediately, provided
that in no event shall your annual paid time off be less than 3 weeks per year
(pro rated for any partial year of employment)
2003 HOLIDAYS:
2003 holiday schedule and policy is included in your new hire package.
I-9:
For purposes of federal immigration law, you will be required to provide to
NaviSite documentary evidence of your identity and eligibility for employment in
the United States. Such documentation must be provided to us within three (3)
business days of your first date of hire with NaviSite, or our employment
relationship with you may be terminated.
In the event of any dispute or claim relating to or arising out of our
employment relationship, this agreement, or the termination of our employment
relationship (including, but not limited to, any claims of wrongful termination
or age, sex, disability, race or other discrimination), you and NaviSite agree
that all such disputes shall be fully, finally and exclusively resolved by
binding arbitration conducted by the American Arbitration Association in San
Francisco County California or the state in which you work, and we waive our
rights to have such disputes tried by a court or jury. However, we agree that
this arbitration provision shall not apply to any disputes or claims relating to
or arising out of the misuse or misappropriation of your or the Company's trade
secrets or proprietary information.
NAVISITE CONFIDENTIAL INFORMATION:
In consideration of your employment with NaviSite, you agree that you will not
while employed by NaviSite or for a period of twelve (12) months thereafter,
except in scope of your employment with NaviSite, directly or indirectly,
disclose any confidential information that you may learn or have learned by
reason of you association with NaviSite or its affiliates unless required by
law. The term "confidential information" includes information not previously
disclosed to the public or to the trade by NaviSite's management, or otherwise
in the public domain, with respect to the NaviSite's, or any of its affiliates',
trade secrets and other intellectual property, confidential reports, client
lists, technical information, or financial information concerning NaviSite. You
agree that all confidential information is and shall remain the exclusive
property of NaviSite. All business records, papers and documents kept or made by
you relating to the business of NaviSite (the "Business Records") shall be and
remain the property of NaviSite. Upon termination of your employment with
NaviSite or at any other time upon request, you will promptly deliver to
NaviSite all Business Records (and all copies of reproductions of such material)
in you possession or under you control, whether prepared by you or others, which
contain confidential information. You agree that a breach of this provision may
result in material and irreparable injury to NaviSite or its affiliates for
which there is no adequate remedy at law, that it will not be possible to
measure damages for such injuries precisely and that, in the event of such a
breach or threat thereof, NaviSite shall be entitled to obtain a Court order
restraining you from engaging in activities prohibited by this letter agreement
or such other relief as may be appropriate. This provision shall specifically
survive the termination of this letter, as applicable.
AT WILL:
If you choose to accept this offer, your employment with NaviSite will be
voluntarily entered into and will be for no specified period. As a result, you
will be free to resign at any time, for any reason, as you deem appropriate.
NaviSite will have a similar right and may conclude its employment relationship
with you at any time, with or without cause.
ACCEPTANCE OF OFFER:
To indicate your acceptance of this employment agreement, please sign, date in
the space provided below and return it to Joe Hayes, at NaviSite, 400 Minuteman
Road, Andover, MA 01810 no later than no later than July 25, 2003. A duplicate
original is enclosed for your records. This letter, along with any agreements
relating to proprietary rights between you and the Company, set forth the terms
of your employment with the Company.
<PAGE>
This letter, along with any agreements may not be modified or amended except by
a written agreement signed by an authorized officer of the Company. This letter
sets forth the terms of your employment with NaviSite and supersedes any prior
representations or agreements, whether written or oral. If we do not hear from
you by July 25, 2003 we will assume you have decided not to join NaviSite.
NaviSite reserves the right to withdraw this offer at any time prior to receipt
of your signed acceptance of the offer.
If you do accept employment with NaviSite it is very important that you submit
your new hire documentation within (3) days of your start date in the enclosed
envelope. NaviSite will need the following:
1. New Hire Check List complete with the documents listed below
2. Offer letter signed by you
3. W-4 form
4. State withholdings (if Applicable)
5. I-9 form
6. Employment Application / EEO Form
7. Emergency Contact
8. Direct Deposit (All employees must complete even if you do not want
direct deposit, check NO).
9. Employee Invention and Confidentiality Agreement
10. Acknowledgement Anti Harassment Policy
11. Benefit Forms (Health / Life / 401K)
If you have any questions regarding your new hire paperwork contact Pat Schoof
at (415) 901 - 6508.
By signing below and thus, accepting the Company's offer, you represent and
acknowledge that you are aware of the Company's business affairs and financial
condition and have acquired sufficient information about the Company to reach an
informed and knowledgeable decision regarding whether or not to join the Company
and that the Company makes no representations regarding the future success of
the Company.
We look forward to your positive response and welcoming you to the NaviSite
Team.
Sincerely,
/s/ Arthur Becker
Arthur Becker
CEO / President
____________________________________________________________________________
I accept the terms of this letter and agree to keep the terms of this letter
confidential.
/s/ Ken Drake ______________ September 8, 2003
---------------------- Date Start Date
Signature of Ken Drake