AMENDMENT NO. 1 TO SEPARATION
AGREEMENT
This Amendment
No. 1 to Separation Agreement is made this 4th day of
December 2008, by and between Arthur Becker (the
“Employee”) and NaviSite, Inc. (the
“Company”).
Whereas, the
Employee and the Company are parties to a Separation Agreement
dated April 3, 2006 (the “Separation Agreement”);
and
Whereas, the
Employee and the Company desire to amend the Separation Agreement
as set forth herein;
Now, therefore,
for good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, the parties agree as
follows:
1. The Employee
shall pay ten dollars ($10) to the Company in return for its
agreement to the changes to the Separation Agreement as set forth
herein.
2. The
Separation Agreement is hereby amended to add the following
Section 3(d):
“(d)
Payments to the Employee under Section 3 shall be bifurcated
into two portions, consisting of the portion, if any, that includes
the maximum amount of the payments that does not constitute
“nonqualified deferred compensation” within the meaning
of Section 409A of the Internal Revenue Code of 1986, as
amended (the “Code”), and the portion, if any, that
includes the excess of the total payments that does constitute
nonqualified deferred compensation. Payments hereunder shall first
be made from the portion that does not consist of nonqualified
deferred compensation until such portion is exhausted and then
shall be made from the portion that does constitute nonqualified
deferred compensation. Notwithstanding the foregoing, if the
Employee is a “specified employee” as defined in
Section 409A(a)(3)(B)(i) of the Code, the commencement of the
delivery of the portion that constitutes nonqualified deferred
compensation will be delayed to the date that is 6 months and
one day after the Employee’s termination of employment (the
“Earliest Payment Date”). Any payments that are delayed
pursuant to the preceding sentence shall be paid pro rata during
the period beginning on the Earliest Payment Date and ending on the
date that is 6 months following the Earliest Payment Date. The
determination of whether, and the extent to which, any of the
payments to be made to the Employee hereunder are nonqualified
deferred compensation shall be made after the application of all
applicable exclusions under Treasury Reg. § 1.409A-1(b)(9).
Any payments that are intended to qualify for the exclusion for
separation pay due to involuntary separation from service set forth
in Treasury Regulation Section 1.409A-1(b)(9)(iii) must
be paid no later than the last day of the second taxable year of
the Employee following the taxable year of the Employee in which
the Employee’s termination of employment occurs.
3. Section 1(e)
of the Separation Agreement is hereby amended to add the following
Section 1(e)(vii):
“(vii) In
order to establish “Good Reason” for a termination, the
Employee must provide notice to the Company of the existence of the
condition giving rise to the “Good Reason” within 90
days following the initial existence of the condition, and the
Company has 30 days following receipt of such notice to remedy
such condition.”
4. Section 1(a)
of the Separation Agreement is hereby amended and restated in its
entirety to read as follows:
“(d)
“Change of Control” shall mean the first to occur of
any of the following:
(A) the
acquisition by an individual, entity or group (within the meaning
of Section 13(d)(3) or 14(d)(2) of the Securities Exchange Act
of 1934 (the “Exchange Act”)) (a “Person”)
of beneficial ownership of any capital stock of the Company if,
after such acquisition, such Person beneficially owns (within the
meaning of Rule 13d-3 promulgated under the Exchange Act)
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