Severance Agreement and General Release - NaviSite Inc. and Kevin Lo
[NAVISITE LOGO]
SEVERANCE AGREEMENT AND GENERAL RELEASE
April 30, 2003
Mr. Kevin Lo
15 Upton Street #4
Boston, MA 02118
Dear Kevin:
In connection with your termination from NaviSite, Inc. (the "Company")
effective April 25, 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
May 9, 2003. You have agreed to waive the 10 day notice period. 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.
If you choose not to sign and return this agreement by May 9, 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:
1. TERMINATION DATE - Your effective date of termination from the Company
is April 25, 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
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. Section 2000e et seq., the Americans With Disabilities
Act of 1990, 42 U.S.C., Section 12101 et seq., the Rehabilitation Act
of 1973, 29 U.S.C. Section 701 et seq., the Family and Medical Leave
Act, 29 U.S.C. Section 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. Section 1681 et seq., the Employee
Retirement Income Security Act of 1974 ("ERISA"), 29 U.S.C. Section
1001 et seq., the Worker Adjustment and Retraining Notification Act, 29
U.S.C. Section 2101 et seq.,
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the California Fair Employment and Housing Act, Cal. Gov't Code Section
12900 et seq., the California Family Rights Act, Cal. Gov't Code
Section 12945.2, the California Labor Code, and the California Unruh
Civil Rights Act, Cal. Civil Code Section 51 et seq., the Massachusetts
Fair Employment Practices Act, M.G.L. c. 151B, Section 1 et seq., the
Massachusetts Civil Rights Act, M.G.L. c. 12 Sections 11H and 11I, the
Massachusetts Equal Rights Act, M.G.L. c. 93, Section 102 and M.G.L. c.
214, Section 1C, the Massachusetts Labor and Industries Act, M.G.L. c.
149, Section 1 et seq., the Massachusetts Privacy Act, M.G.L. c. 214,
Section 1B, and the Massachusetts Maternity Leave Act, M.G.L. c. 149,
Section 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. 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.
5. 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.
6. 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 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.
7. 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.
8. 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.
9. 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.
10. 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
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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.
11. 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.
12. 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.
13. 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, freely and voluntarily
assent to all of the terms and conditions hereof, and sign your name of
your own free act.
14. 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.
15. 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 DeWaele
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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/ Kevin Lo Date 5/1/03
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Kevin Lo
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ATTACHMENT A
DESCRIPTION OF SEPARATION BENEFITS
The Company will pay you the equivalent of three (3) months of premium $1,000
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 following the
return of an executed copy of this agreement to the Company.
Initials of Kevin Lo: K.L. Date: 5/1/03
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[NAVISITE LOGO]
PERSONAL & CONFIDENTIAL
May 9, 2003
Mr. Kevin Lo
15 Upton Street #4
Boston, MA 02118
Dear Kevin:
This letter formalizes the agreement that Arthur Becker, CEO and President of
NaviSite and you reached verbally during the week of April 21, 2003. You have
agreed to waive the 10 day Notice of Termination as defined in the Agreement.
Your official date of termination will be April 25, 2003. This letter will be
submitted to the full Board of Directors for approval.
In gratitude for your service and as per the Executive Retention Agreement (the
"Agreement") you signed in April 2001 the Company will pay you compensation
pursuant to Section 3.1 (a) of the Agreement. Additionally, in exchange for your
signing the Release of Claims attached hereto, the Company will pay you the
equivalent of three (3) months of premiums ($1,000) (the "Separation Benefit")
for the same health benefits you had immediately prior to your termination. Said
Separation Benefit shall be paid in a lump sum on the eighth (8th) day after
your execution of the Release of Claims. This Release of Claims contains
important information. We urge you to review the document carefully and to feel
free to ask any questions you may have or to consult with your own attorney. All
questions should be directed to Pat Schoof, Vice President of Human Resources,
at (415) 901 - 6508.
FINAL PAYCHECK:
You will receive your final paycheck on May 1, 2003. Your final paycheck will
include pay through April 25, 2003, as well as any accrued but unused paid time
off as of April 25, 2003. If you decide not to sign the Release of Claims, you
will only receive your final paycheck, and the compensation described in the
Agreement but not the Separation Benefit. If you do sign the Release of Claims,
you will receive your Separation Benefits described herein and as set forth in
the Release of Claims.
COBRA:
Your current health insurance benefits will continue until April 30, 2003, if
you are currently enrolled in the health plan(s). Thereafter, beginning May 1,
2003, you will have the right to elect to continue your health insurance
benefits pursuant to COBRA (a federal law that permits employer's to provide
continuation of group health coverage to employees who would otherwise lose
coverage). Cobra Serve, our COBRA administrator, will be sending you and your
covered dependents important information regarding your right to continue health
care coverage under the Company's group health plans in accordance with COBRA.
If you do not receive a COBRA packet within 21 days of your termination date,
please contact Human Resources as soon as possible. If you fail to make a timely
COBRA election or fail to make timely payments once you elect COBRA, your COBRA
coverage will stop and you will lose health coverage.
401(K)
If you participated in the 401(k) plan your contributions will cease as of your
date of termination. You will receive a packet of information from Principal
regarding your 401(k) plan.
EMPLOYEE PROPRIETARY INFORMATION AGREEMENT:
You will be expected to abide by the terms of the Employee Proprietary
Information Agreement that you signed when you began your employment with the
Company and to return all Company property and confidential and proprietary
information by your termination date.
DEADLINE FOR SUBMISSION FOR SIGNED RELEASE OF CLAIMS:
In order to receive the Separation Benefits described herein, you must sign and
return one copy of the attached Release of Claims on or before May 9, 2003. If
the Company does not receive a copy of the Release of Claims signed by you on or
before May 9, 2003, you will not receive any of the benefits provided by the
Release of Claims.
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If you have any questions regarding the Release of Claims, we encourage you to
seek legal assistance. Please forward the signed copy of your Release of Claims,
via U.S. mail, in the enclosed envelope to the attention of Human Resources at
NaviSite. 55 Francisco St. Suite 100, San Francisco, CA 94133 or Fax to (415)
901-6632.
Your work has been greatly appreciated. We wish you the best of luck in your
future endeavors.
Sincerely,
/s/ Pat Schoof
Pat Schoof
NaviSite
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