exv10w54






Exhibit 10.54




NAVISITE, INC.




Separation Agreement




     This Separation Agreement (the “Agreement”) is made and entered into by and between
NaviSite, Inc., a Delaware corporation (the “Company”), and Mark Zingale (“You” or
the “Employee”), as of August 31, 2009.



     WHEREAS, the Company recognizes that, as is the case with many publicly held corporations, the
possibility of a change in control may exist and that such possibility may result in the departure
or distraction of key personnel to the detriment of the Company, its stockholders and its
customers.



     WHEREAS, in order to induce you to remain in its employ, the Company agrees that you shall receive
the benefits set forth in this Agreement.



     NOW, THEREFORE, in consideration of the mutual covenants and agreements set forth herein, the
parties agree as follows:




	1.	 	Certain Definitions.





     As used herein, the following terms shall have the meanings set forth below:




	 	(a)	 	A “Change in Control” shall occur or be deemed to have occurred only if any of the
following events occur:






	 	(i)	 	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) 50% or more
of either (x) the then-outstanding shares of common stock of the Company (the “Outstanding
Company Common Stock”) or (y) the combined voting power of the then-outstanding securities of
the Company entitled to vote generally in the election of directors (the “Outstanding Company
Voting Securities”); provided, however, that, for purposes of this subsection (i), any
acquisition directly from the Company shall not constitute a Change in Control; or
	 
	 	(ii)	 	such time as the Continuing Directors (as defined below) do not constitute a majority of the
Board (or, if applicable, the Board of Directors of a successor corporation to the Company), where
the term “Continuing Director” means at any date a member of the Board (x) who was a member
of the Board on the date of the initial adoption of this Agreement by the Board or (y) who was
nominated or elected subsequent to such date by at least a majority of the directors who were
Continuing Directors at the time of such nomination or election or whose election to the Board was
recommended or endorsed by at least a majority of the directors who were Continuing Directors at
the time of such nomination or election; provided, however, that there shall be excluded from this
clause (y) any individual whose initial assumption of office occurred as a result of an actual or
threatened election contest with respect to the election or removal of directors or other actual or
threatened solicitation of proxies or consents, by or on behalf of a person other than the Board;
or




 









 












	 	(iii)	 	the consummation of a merger, consolidation, reorganization, recapitalization or share
exchange involving the Company or a sale or other disposition of all or substantially all of the
assets of the Company (a “Business Combination”), unless, immediately following such Business
Combination, each of the following two conditions is satisfied: (x) all or substantially all of the
individuals and entities who were the beneficial owners of the Outstanding Company Common Stock and
Outstanding Company Voting Securities immediately prior to such Business Combination beneficially
own, directly or indirectly, more than 50% of the then-outstanding shares of common stock and the
combined voting power of the then-outstanding securities entitled to vote generally in the
election of directors, respectively, of the resulting or acquiring corporation in such Business
Combination (which shall include, without limitation, a corporation which as a result of such
transaction owns the Company or substantially all of the Company‘s assets either directly or
through one or more subsidiaries) (such resulting or acquiring corporation is referred to herein as
the “Acquiring Corporation”) in substantially the same proportions as their ownership of the
Outstanding Company Common Stock and Outstanding Company Voting Securities, respectively,
immediately prior to such Business Combination and (y) no person (excluding any employee benefit
plan (or related trust) maintained or sponsored by the Company or by the Acquiring Corporation)
beneficially owns, directly or indirectly, 50% or more of the then-outstanding shares of common
stock of the Acquiring Corporation, or of the combined voting power of the then-outstanding
securities of such corporation entitled to vote generally in the election of directors (except to
the extent that such ownership existed prior to the Business Combination); or
	 
	 	(iv)	 	the liquidation or dissolution of the Company.




Notwithstanding anything to the contrary, none of the following shall constitute a Change in
Control event: (A) any acquisition directly from the Company (excluding an acquisition pursuant to
the exercise, conversion or exchange of any security exercisable for, convertible into or
exchangeable for common stock or voting securities of the Company, unless the Person exercising,
converting or exchanging such security acquired such security directly from the Company or an
underwriter or agent of the Company), (B) any acquisition by any employee benefit plan (or related
trust) sponsored or maintained by the Company or any corporation controlled by the Company, (C) any
acquisition by any corporation or other business entity pursuant to a Business Combination which
complies with clauses (x) and (y) of subsection (iii) of this definition or (D) any acquisition by
Atlantic Investors, LLC, or its successors or affiliates (collectively “Atlantic” ), of any shares
of common stock or any ownership by Atlantic of any shares of common stock.





	 	(b)	 	“Cause” shall mean (i) an intentional act of fraud, embezzlement or theft in connection with
your duties to the company or in the course of your employment with the company, (ii) your willful
engaging in gross misconduct which is demonstrably and materially injurious to the Company, or
(iii) your willful and continued failure to perform substantially your duties with the Company or
one of its affiliates (other than any such failure resulting from incapacity due to physical or
mental illness), which failure is not cured within ten (10) business days after a written demand
for substantial performance is delivered to you by the Company which specifically identifies the
manner in which the Company believes that you have not substantially performed your duties. For
purposes of this Subsection, no act or failure to act on your part shall be deemed “willful”
unless done




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	 	 	 	or omitted to be done by you not in good faith and without reasonable belief that your action or
omission was in the best interest of the Company.






	 	(c)	 	“Date of Termination” shall have the meaning set forth in Section 2(c).
	 
	 	(d)	 	“Disability” shall be deemed to have occurred if, as a result of incapacity due to
physical or mental illness, you shall have been absent from the full time performance of your
duties with the Company for forty-five (45) days (whether or not consecutively) within a 90-day
period.
	 
	 	(e)	 	“Good Reason” shall mean, without your express written consent, the occurrence of any
of the following circumstances unless, in the cases of paragraphs (i), (ii), (iii), (iv), (v) or
(vi), such circumstances are fully corrected prior to the Date of Termination specified in the
Notice of Termination given in respect thereof:






	 	(i)	 	any significant diminution in your position, duties, responsibilities, power,
or office (not solely a change in title) (unless such changes are required and solely
related to the reporting structures of an Acquiring Corporation);
	 
	 	(ii)	 	any reduction, without your consent, in your annual base salary as in effect
on the date hereof or as the same may be increased from time to time;
	 
	 	(iii)	 	the failure by the Company to (i) continue in effect any material
compensation or benefit plan in which you participate immediately prior to a Change in
Control, unless an equitable arrangement (embodied in an ongoing substitute or
alternative plan) has been made with respect to such plan, or (ii) continue your
participation therein (or in such substitute or alternative plan) or a basis not
materially less favorable, both in terms of the amount of benefits provided (compared
to the amount provided immediately prior to a Change in Control) and the level of your
participation relative to other participants (compared to the level of your
participation relative to other participants as in effect at any time during your
employment with the Company);
	 
	 	(iv)	 	the failure by the Company to continue to provide you with benefits
substantially similar to those enjoyed by you under any of the Company’s life
insurance, medical, health and accident, or disability plans in which you were
participating at the time of a Change in Control, the taking of any action by the
Company which would directly or indirectly materially reduce any of such benefits, or
the failure by the Company to provide you with the number of paid vacation days to
which you are entitled on the basis of years of service with the Company in accordance
with the Company’s normal vacation policy in effect at the time of a Change in
Control;
	 
	 	(v)	 	any requirement by the Company or of any person in control of the Company
that the location at which you perform you principal duties for the Company be changed
to a new location that is outside a radius of thirty (30) miles from your principal
residence as of the date hereof; provided however, that your performance of a material
portion of your principal duties for the Company at the location of the headquarters
of the Company located in Andover, Massachusetts, shall not be deemed such a change;
or






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	 	(vi)	 	the failure of the Company to obtain a reasonably satisfactory agreement from any
successor to assume and agree to perform this Agreement, as contemplated in Section 6.
	 
	 	(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 ninety (90) days following the initial existence of the
condition, and the Company has ten (10) business days following receipt of such notice
to remedy such condition.






	 	(f)	 	“Notice of Termination” shall have the meaning set forth in Section 2(b).

	 
	 	(g)	 	“Severance Payments” shall have the meaning set forth in Section 3(b)(ii).






	2.	 	Employment Status.






	 	(a)	 	You acknowledge that this Agreement does not constitute a contract of employment or impose
on the Company any obligation to retain you as an employee. You may terminate your employment at
any time, with or without Good Reason.
	 
	 	(b)	 	Any termination of your employment by the Company or by you during the term of this
Agreement shall be communicated by written notice that indicates the specific provision in this
Agreement relied upon and sets forth in reasonable detail the facts and circumstances claimed to
provide a basis for termination of your employment under the provision so indicated (“Notice of
Termination”). A Notice of Termination shall be delivered to the other party hereto in
accordance with Section 7.
	 
	 	(c)	 	The “Date of Termination” shall mean the date specified in the Notice of
Termination.
	 
	 	(d)	 	Your right to terminate your employment for Good Reason shall not be affected by your incapacity
due to physical or mental illness. Your continued employment shall not constitute consent to, or a
waiver of rights with respect to, any circumstance constituting Good Reason under this Agreement.






	3.	 	Compensation Upon Termination.
	 
	 	 	Subject to the terms and conditions of this Agreement, including without limitation Section
3(c), you shall be entitled to the following benefits upon
termination of your employment,
provided that such period of termination occurs during the term of this Agreement.






	 	(a)	 	Cause, Disability, Death and Voluntary Termination other
than for Good Reason. If your employment shall be terminated by the
Company for Cause, for Disability, for your death or by you other than for
Good Reason, the Company shall pay you your full base salary through the Date
of Termination at the
rate in effect at the time the Notice of Termination is given or at the rate in effect at the
 time of a Change in Control if such rate is greater, in
accordance with the Company’s normal payroll procedures unless otherwise
provided by law, plus all other amounts to which you are entitled under any
compensation plan of the Company at the time such payments are due, and the
Company shall have no further obligations to you under this Agreement.





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	 	(b)	 	Termination Without Cause; Voluntary Termination for Good Reason. If your employment with the
Company is terminated by the Company (other than for Cause, Disability or your death) or by you
for Good Reason, then you shall be entitled to the benefits below upon effectiveness (taking into
account any applicable statutory revocation periods) of a general waiver and release from you in
favor of the Company, its directors, officers, employees, representatives, agents and affiliates in
a form satisfactory to the Company (“Release”); provided that such Release is executed within
twenty-one (21) days of the Company presenting it to you for execution (or such longer period as
required under applicable law) and such Release has not been revoked within such twenty-one day
period (or within any longer applicable revocation period as set forth in the Release).
Notwithstanding the foregoing, the Company shall not provide any benefit and may reduce dollar for
dollar any benefit otherwise receivable by you pursuant to subsections (ii) - (iv) of this
paragraph (b) if such benefit (including without limitation salary payments from another employer)
is actually received by you from another employer during the six (6) month period following your
termination, and any such benefit actually received by you shall be reported to the Company.






	 	(i)	 	The Company shall pay to you your full base salary through the Date of Termination at
the rate in effect at the time the Notice of Termination is given or at the rate in
effect at the time of a Change in Control if such rate is greater, in accordance with the
Company’s normal payroll procedures unless otherwise provided by law, plus all other
amounts to which you are entitled under any compensation plan of the Company at the time
such payments are due.
	 
	 	(ii)	 	The Company will pay as severance pay to you, severance payments at your annual base
salary at the rate in effect at the time the Notice of Termination is given or at the
rate in effect at the time of a Change in Control if such rate is greater, less applicable
withholding, (together with the payments provided in paragraph (iii)
- (iv) below, the
“Severance Payments”) until six (6) months following the Date of Termination. Severance
Payments will be made in accordance with the Company’s normal payroll procedures.
	 
	 	(iii)	 	For up to the six (6) month period after such termination, the Company shall
provide reimbursement to you for your actual COBRA payments for health and welfare benefit
continuation provided you elect COBRA coverage.
	 
	 	(iv)	 	The Company will provide a bonus payment equal to your target bonus for the current
fiscal year pro rated to your Date of Termination. This bonus payment will be made in a
lump sum within the later of (i) five (5) full days following the execution of the Release
and (ii) any applicable revocation period will respect to the Release. In addition, the
Company will pay you any earned but unpaid bonus from the prior fiscal year by the later
of (i) five (5) full days following the execution of the Release and (ii) any applicable
revocation period with respect to the Release.






	 	(c)	 	In the event you fail to sign the Release within the time period set forth above (or you
otherwise revoke the Release during the time period set forth above), then you shall not be
entitled to any Severance Payments and you shall only be entitled to receive your full base salary
through the Date of Termination at the rate in effect at the time the Notice of Termination is
given or at the rate in effect at the time of a Change in Control of such rate
is greater, in accordance with the Company’s normal payroll procedures unless otherwise




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	 	 	 	provided by law, plus all other amounts to which you are entitled under any compensation plan of
the Company at the time such payments are due. Notwithstanding the foregoing, the Company may
immediately terminate any or all Severance Payments upon material breach by you of the Release or
any other agreement or contract with the Company. The remedy set forth in the proceeding sentence
is in addition to all other remedies of the Company available at law and/or in equity and shall not
in any way impair or terminate the effectiveness of the Release.






	 	(d)	 	In the event that you become entitled to the Severance Payments, if any of the Severance
Payments will be subject to the tax imposed by Section 4999 of the Internal Revenue Code of 1986,
as amended (the “Code”) (or any similar tax that may hereafter be imposed) (the “Excise
Tax”) the Company shall pay to you an additional amount (the “Gross-Up Payment”) such
that the net amount retained by you, after deduction of any Excise Tax on the Total Payments (as
hereinafter defined) and any federal, state and local income tax and Excise Tax upon the payment
provided for by this Subsection, shall be equal to the Total Payments. For purposes of determining
whether any of the Severance Payments will be subject to the Excise Tax and the amount of such
Excise Tax, (a) any
other payments or benefits received by you in connection with a Change in Control of the Company or
your termination of employment (whether pursuant to the terms of this Agreement or any other plan,
arrangement or agreement with the Company, any person whose actions result in a Change in Control
of the Company or any person affiliated with the Company or such person) (which together with the
Severance Payments, constitute the “Total Payments”) shall be treated as “parachute
payments” within the meaning of Section 280G(b)(2) of the Code, and all “excess parachute payments”
within the meaning of Section 280G(b)(1) shall be treated as subject to the Excise Tax, unless in
the opinion of tax counsel selected by the Company’s independent auditors such other payments or
benefits (in whole or in part) do not constitute parachute payments, or such excess parachute
payments (in whole or in part) represent reasonable compensation for services actually rendered
within the meaning if Section 280G(b)(4) of the Code in excess of the base amount within the
meaning of Section 280G(b)(3) of the Code, or are otherwise not subject to the Excise Tax, (b) the
amount of the Total Payments which shall be treated as subject to the Excise Tax shall be equal to
the lesser of (1) the total amount of the Total Payments or (2) the amount of excess parachute
within the meaning of Section 280G(b)(1) (after applying paragraph (a), above), and (c) the value
of any non-cash benefits or any deferred payment or benefit shall be determined by the Company’s
independent auditors in accordance with the principles of Sections 280G(b)(3) and (4) of the Code.
For purposes of determining the amount of the Gross-Up Payment, you
shall be
deemed to pay federal income taxes at the highest marginal rate of
federal income taxation in the calender year in which the Gross-Up Payment is to be
made and state and local
income taxes at the highest marginal rate of taxation in the state and
locality of your residence on the Date of Termination, net of the maximum reduction in federal income taxes, which could be obtained from
deduction of such state and
local taxes. In the event that the Excise Tax is
subsequently determined to be less than the amount taken into account hereunder at the time of
termination of your employment, you shall repay to the Company at the time the amount of such
reduction in excise tax is finally determined the portion of the Gross-Up Payment attributable to
such reduction (plus the portion of the Gross-Up Payment attributable to
the Excise Tax and federal, state and local income tax imposed on the Gross-Up Payment being repaid
by you if such repayment results in a reduction in Excise Tax and/or a federal, state and local
income tax deduction) plus interest on the amount of such repayment at the rate provided in Section
1274(b)(2)(B) of the Code. In the event that the Excise Tax is determined to exceed the amount
taken into




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	 	 	 	account hereunder at the time of the termination of your employment (including by reason of any
payment the existence or amount of which cannot be determined at the time of Gross-Up Payment), the
Company shall make an additional gross-up payment in respect of such excess (plus any interest
payable with respect to such excess) at the time that amount of such excess is finally determined.






	 	(e)	 	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 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 payment 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.






	4.	 	Compensation upon a Change in Control. Following a Change in
Control of the Company and except as set forth in any option agreement, restricted
stock agreement or other applicable agreement, all unvested options and shares of
restricted stock then held by you that were issued or granted under the Company’s
Amended and Restated 2003 Stock Incentive Plan or any other stock incentive plan
of the Company shall become exercisable and vested in full on the date of a Change
in Control. Notwithstanding the foregoing, in the event a Change in Control occurs
within six months after your employment start date with the Company, the only 50%
of all then unvested options and shares of restricted stock held by you shall
immediately vest and become exercisable.
	 
	5.	 	Compensation During Period of Disability. During a period of
Disability in which you are employed by the Company, the Company will pay you your
base salary minus gross amounts received by you under any of the Company’s
disability insurance policies, Upon termination of your employment for a
Disability, you shall thereafter only be entitled to the benefits set forth in
Section 3(a).
	 
	6.	 	Successors; Binding Agreement.






	 	(a)	 	The Company will require any successor (whether direct or indirect, by purchase,
merger, consolidation or otherwise) to all or substantially all of the business or
assets of the Company expressly to assume and agree to perform this Agreement to the
same extent that the Company would be required to perform it if no such succession had
taken place.





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	 	 	 	Failure of the Company to obtain an assumption of this Agreement at or prior to the effectiveness
of any succession shall be a breach of this Agreement and shall constitute Good Reason if you elect
to terminate your employment, except that for purposes of implementing the foregoing, the date on
which any such succession becomes effective shall be deemed the Date of Termination. As used in
this Agreement, Company shall mean the Company as defined above and any successor to its business
or assets as aforesaid which successor assumes and agrees to perform this Agreement by operation of
law, or otherwise.






	 	(b)	 	This Agreement shall inure to the benefit of and be enforceable by your personal or legal
representatives, executors, administrators, successors, heirs, distributes, devisees and legatees.
If you should die while any amount would still be payable to you hereunder if you had continued to
live, all such amounts, unless otherwise provided herein, shall be paid in accordance with the
terms of this Agreement to your devisee, legatee or other designee or if there is no such designee,
to your estate.






	7.	 	Notice. For the purposes of this Agreement, notices and all other communications
provided for in this Agreement shall be in writing and shall be duly given when delivered or when
mailed by United States registered or certified mail, return receipt requested, postage prepaid,
addressed to the Company, at 400 Minuteman Road, Andover, MA 01810, Attention: Chief Executive
Officer and Chief Financial Officer, and to you at the address set forth below or to such other
address as either the Company or you may have furnished to the other in writing in accordance
herewith, except that notice of change of address shall be effective only upon receipt.
	 
	8.	 	Miscellaneous.






	 	(a)	 	The invalidity or unenforceability of any provision of this Agreement shall not
affect the validity or enforceability of any other provision of this
Agreement, which shall
otherwise remain in full force and effect.
	 
	 	(b)	 	The validity, interpretation, construction and performance of this Agreement shall be
governed by the laws of the Commonwealth of Massachusetts (without giving effect to any
conflicts or choice of law provisions thereof that would cause the application of the
domestic substantive laws of any other jurisdiction).
	 
	 	(c)	 	No waiver by you at any time of any breach of, or compliance with, any provision of
this Agreement to be performed by the Company shall be deemed a waiver of that or any
other provision at any subsequent time.
	 
	 	(d)	 	This Agreement may be executed in counterparts, each of which shall be deemed to be
an original but both of which together will constitute one and the same instrument.
	 
	 	(e)	 	Any payments provided for hereunder shall be paid net of any applicable withholding
required under federal, state or local law.
	 
	 	(f)	 	This Agreement sets forth the entire agreement of the parties hereto in respect of
the subject matter contained herein and supersedes all prior agreements, promises,
covenants, arrangements, communications, representations or warranties, whether oral or
written, by any officer, employee or representative of any party hereto; and any prior
agreement of the parties hereto in respect of the subject matter contained herein is
hereby superseded.





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	 	(g)	 	This Agreement is intended to comply with the provisions of Section 409A and the Agreement
shall, to the extent practicable, be construed in accordance therewith. Terms defined in the
Agreement shall have the meanings given such terms under Section 409A if and to the extent required
in order to comply with Section 409A. No payments to be made under this Agreement may be
accelerated or deferred except as specifically permitted under Section 409A, in the event that the
Agreement shall be deemed not to comply with Section 409A, then neither the Company, the Board nor
its or their designees or agents shall be liable to the Employee or other person for actions,
decisions or determinations made in good faith.





[Remainder of page intentionally left blank]





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If this letter sets forth our agreement on the subject
matter hereof, kindly sign and return to the Company the enclosed copy of this letter, which will
then constitute our agreement on this subject.




	 	 	 	 	 
	 	NAVISITE, INC.

 	 
	 	By:  	/s/ Arthur Becker
 	 
	 	 	Arthur Becker 	 
	 	 	CEO 	 
	 



Acknowledged and Agreed this 31st day of August, 2009:




	 	 	 	 	 
	EMPLOYEE

 	 	 
	/s/ Mark Zingale
 	 	 
	Mark Zingale 	 	 
	General Counsel 	 	 
	 



[Separation Agreement]