Employment Agreement - NaviSite Inc. and James Pluntze
AGREEMENT
THIS AGREEMENT ("Agreement") by and between NaviSite, Inc. a Delaware
corporation with offices located at 400 Minuteman Rd., Andover, MA 01810 (the
"Company"), and James Pluntze of 93 Fairchild Drive, Reading, MA 01867 (the
"Executive"), is made as of April 4, 2003 ("Effective Date").
WHEREAS, the Board of Directors of the Company (the "Board") has
determined that the Executive will play a critical role in the operations of the
Company; and
WHEREAS, the Board has determined that appropriate steps should be
taken to reinforce and encourage the continued employment and dedication of the
Executive;
NOW, THEREFORE, as an inducement for and in consideration of the
Executive remaining in its employ, the Company agrees that the Executive shall
receive the benefits set forth in this Agreement in the circumstances described
below.
1. Not a Guarantee of Employment. The Executive acknowledges that this
Agreement does not constitute a guarantee of employment or impose on the Company
any obligation to retain the Executive as an employee and that this Agreement
does not prevent the Executive from terminating his employment. The Executive
understands and acknowledges that he is an employee "at-will" and that either he
or the Company may terminate the employment relationship between them at any
time and for any lawful reason.
2. Severance Pay under Certain Circumstances. In the event the employment
of the Executive is terminated (i) by the Company for a reason other than for
Cause (as defined below) or (ii) by the Executive for Good Reason (as defined
below), then the Executive shall be eligible for severance pay in accordance
with the terms set forth below:
(a) If employment is terminated pursuant to sub-paragraphs (i) or
(ii) above after three (3) months of employment, such severance pay shall amount
to the equivalent of one (1) month's base wages, less applicable taxes and
withholding;
(b) If employment is terminated pursuant to sub-paragraphs (i) or
(ii) above after six (6) months of employment, such severance pay shall amount
to the equivalent of two (2) months' base wages, less applicable taxes and
withholding;
(c) If employment is terminated pursuant to sub-paragraphs (i) or
(ii) above after nine (9) months of employment, such severance pay shall amount
to the equivalent of three (3) months' base wages, less applicable taxes and
withholding; or
(d) If employment is terminated pursuant to sub-paragraphs (i) or
(ii) above after twelve (12) months of employment, such severance pay shall
amount to the equivalent of six (6) months' base wages, less applicable taxes
and withholding.
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Such severance pay shall be paid in a lump sum on the date of such
termination described in (i) or (ii) above and only due and/or payable in
exchange for a full release of all claims signed by the Employee.
3. Sole Remedy. The payment to the Executive of the amounts payable under
Section 2 along with payment of any accrued but unused vacation and/or PTO shall
constitute the sole remedy of the Executive in the event of a termination of the
Executive's employment with the Company.
4. Definitions. For purposes of this Agreement, the following terms shall
have the following meanings:
(a) "Cause" shall mean a good faith finding by the Company of: (i) gross
negligence or willful misconduct by the Executive in connection with the
Executive's employment duties, (ii) failure by the Executive to substantially
perform his duties or responsibilities required pursuant to the Executive's
employment after written notice and a 30-day opportunity to cure, (iii)
misappropriation by the Executive for the Executive's personal use of the assets
or business opportunities of the Company or its affiliates, (iv) embezzlement or
other financial fraud committed by the Executive, (v) the Executive knowingly
allowing any third party to commit any of the acts described in any of the
preceding clauses (iii) or (iv), or (vi) the Executive's indictment for,
conviction of, or entry of a plea of no contest with respect to, any felony.
(b) "Good Reason" shall mean the occurrence of any of the following
conditions without the Executive's written consent, which condition continues
after notice by the Executive to the Company and a reasonable opportunity to
cure such condition: (i) a decrease in the Executive's base salary, (ii)
relocation of the Executive's primary work place to a location more than 60
miles from the Executive's primary work place at the Effective Date, or (iii)
the Executive's assignment to a position where the duties of the position are
outside his area of professional competence or (iv) a substantial and material
diminution of Employee's position or duties as they existed as of the Effective
Date of this Agreement.
5. Miscellaneous.
(a) Notices. Any notice delivered under this Agreement shall be deemed duly
delivered four (4) business days after it is sent by registered or certified
mail, return receipt requested, postage prepaid, or one (1) business day after
it is sent for next-business day delivery via a reputable nationwide overnight
courier service, in each case to the address of the recipient set forth in the
introductory paragraph hereto. Either party may change the address to which
notices are to be delivered by giving notice of such change to the other party.
(b) Pronouns. Whenever the context may require, any pronouns used in this
Agreement shall include the corresponding masculine, feminine or neuter forms,
and the singular forms of nouns and pronouns shall include the plural, and vice
versa.
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(c) Entire Agreement. This Agreement constitutes the entire agreement
between the parties and supersedes all prior agreements and understandings,
whether written or oral, relating to the subject matter of this Agreement.
(d) Amendment. This Agreement may be amended or modified only by a written
instrument executed by both the Company and the Executive.
(e) Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the Commonwealth of Massachusetts.
(f) 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 with which or into which the Company may be merged or
which may succeed to its assets or business, provided, however, that the
obligations of the Executive are personal and shall not be assigned by him.
(g) Waivers. 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.
(h) 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) Severability. In case any provision of this Agreement shall be invalid,
illegal or otherwise unenforceable, the validity, legality and enforceability of
the remaining provisions shall in no way be affected or impaired thereby.
THE EXECUTIVE ACKNOWLEDGES THAT HE HAS CAREFULLY READ THIS AGREEMENT
AND UNDERSTANDS AND AGREES TO ALL OF THE PROVISIONS IN THIS AGREEMENT.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year set forth above.
NAVISITE, INC.
By: /s/ Arthur P. Becker
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Title: CEO
EXECUTIVE
/s/ Jim Pluntze
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