exv10w58






Exhibit 10.58




AMENDMENT NO. 1 TO SEPARATION AGREEMENT




     This Amendment No. 1 to Separation Agreement is made this 8 day of December 2008, by
and between Denis Martin (the “Employee”) and NaviSite, Inc. (the “Company”).



     Whereas, the Employee and the Company are parties to a Separation Agreement dated April 6,
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)
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 (A), any
acquisition directly from the Company shall not constitute a Change in Control; or




     (B) 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 Plan 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




     (C) 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’, 40% 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




     (D) the liquidation or dissolution of the Company.”




     Notwithstanding anything to the contrary, the following acquisitions shall not
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 pursuant to a Business Combination (as defined below)
which complies with clauses (x) and (y) of subsection (iii) of this definition or (D)
any acquisition by ClearBlue Technologies, Inc. or its affiliates, including Atlantic
Investors, LLC, or Waythere, Inc. (each such party is referred to herein as “ClearBlue”)
of any shares of common stock.


4. Section 7 of the Separation Agreement is hereby amended to add the following Section 7(g):





“(g) Section 409A. 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



 









 







     IN WITNESS HEREOF, the parties hereto have executed this Amendment No. 1 to Separation
Agreement as of the day and year first set forth above.



	 	 	 	 	 
	 	NAVISITE, INC.

 	 
	 	By:  	/s/ James W. Pluntze
 	 
	 	 	Name:  	James W. Pluntze  	 
	 	 	Title:  	Chief Financial Officer 	 
	 
	 	 	 	 	 
	 	EMPLOYEE 

 	 
	 	/s/
Denis J. Martin
 	 
	 	Name:   Denis Martin