Employment Agreement - CommVault Systems Inc.
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT, dated as of February 1, 2004 (the "Commencement
Date"), by and between CommVault Systems Inc., a Delaware corporation, with its
principal office at 2 Crescent Place, Oceanport, NJ, 07757 (the "Company"), and
____________, residing at __________________ ("Executive").
WHEREAS, the Company desires to continue to employ Executive as
___________________________, and
WHEREAS, Executive desires to enter into this agreement (the "Agreement")
as to the terms of his employment by the Company and his position with the
Company.
NOW, THEREFORE, in consideration of the promises and mutual covenants
contained herein and for other good and valuable consideration, the parties
agree as follows:
1. Term of Employment. Except for earlier termination as provided in
Section 7 hereof, Executive's employment under this Agreement shall be for a
term commencing on the Commencement Date and ending on March 31, 2005 (the
"Initial Term"). Subject to Section 7 hereof, the Initial Term shall be
automatically extended for additional terms of successive one (1) year periods
(the "Additional Term") unless the Company or Executive gives written notice to
the other at least thirty (30) days prior to the expiration of the Initial Term
or the then current Additional Term of the termination
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of Executive's employment hereunder at the end of such current term. (The
Initial Term and any Additional Term(s) shall hereinafter be referred to as the
"Employment Term".)
2. Positions. (a) Executive shall continue to serve as the
____________________ of the Company. If requested by the Board of Directors of
the Company (the "Board") or the Chairman of the Board of the Company (the
"Chairman"), the Executive shall also serve as an executive officer or director
of subsidiaries and a director of associated companies of the Company without
additional compensation and subject to any policy of the Compensation Committee
of the Board (the "Compensation Committee") with regard to retention or turnover
of the director's fees.
(b) Executive shall report to the Chairman, President and Chief Executive
Officer (the "CEO") and shall have such duties and authority consistent with his
then position as shall be assigned to him from time to time by the CEO or the
Board.
(c) During the Employment Term, Executive shall devote substantially all of
his business time and efforts to the performance of his duties hereunder and use
his best efforts in such endeavors; provided, however, that Executive shall be
allowed, to the extent that such activities do not materially interfere with the
performance of his duties and responsibilities hereunder, to manage his passive
personal investments and to serve on corporate, civic, or charitable boards or
committees. Notwithstanding the foregoing, the Executive shall not serve on any
corporate board of directors if such service would be inconsistent with his
fiduciary responsibilities to the Company and in no event shall Executive serve
on any such board unless approved in writing by the CEO.
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3. Base Salary. During the Employment Term, the Company shall pay Executive
a base salary at the annual rate of $231,000. Base salary shall be payable in
accordance with the usual payroll practices of the Company. Executive's Base
Salary shall be subject to annual review by the CEO or his designee. The base
salary as determined as aforesaid from time to time shall constitute "Base
Salary" for purposes of this Agreement.
4. Incentive Compensation. For each fiscal year or portion thereof during
the Employment Term, Executive shall be eligible to participate in an annual
bonus plan of the Company in accordance with, and subject to the terms of, such
plan, that provides an annualized cash bonus opportunity with a target bonus
potential equal to a percentage of Base Salary (the "Target Bonus").
5. Employee Benefits and Vacation. (a) During the Employment Term,
Executive shall be entitled to participate in all retirement, savings, incentive
compensation, welfare and other employee benefit plans and arrangements and
fringe benefits and perquisites generally maintained by the Company from time to
time for the benefit of executives of the Company, in accordance with their
respective terms as in effect from time to time (other than any special
arrangement entered into with an executive).
(b) During the Employment Term, Executive shall be entitled to vacation
each year in accordance with the Company's policies in effect from time to time,
but in no event less than three (3) weeks paid vacation per calendar year. The
Executive shall also be entitled to such periods of sick leave as is customarily
provided by the Company for its senior executive employees.
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6. Business Expenses. The Company shall reimburse Executive for the travel,
entertainment and other business expenses incurred by Executive in the
performance of his duties hereunder, in accordance with the Company's policies
as in effect from time to time.
7. Termination. (a) The employment of Executive under this Agreement shall
terminate upon the occurrence of any of the following events:
(i) the death of the Executive;
(ii) the termination of the Executive's employment by the Company due
to the Executive's Disability pursuant to Section 7(b) hereof;
(iii) the termination of the Executive's employment by the Company
without Cause or by the Company in accordance with Section 1 hereof;
(iv) the termination of the Executive's employment by the Company for
Cause pursuant to Section 7(c) hereof;
(v) the retirement of the Executive by the Company at or after his
sixty-fifth (65th) birthday to the extent such termination is specifically
permitted as a stated exception from applicable federal and state age
discrimination laws based on position and retirement benefits.
(b) Disability. If, by reason of the same or related physical or mental
reasons, Executive is unable to carry out his material duties pursuant to this
Agreement for more than six (6) months in any twelve (12) consecutive month
period, the Company
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may terminate Executive's employment for Disability upon thirty (30) days prior
written notice, by a Notice of Disability Termination, at any time thereafter
during such twelve (12) month period in which Executive is unable to carry out
his duties as a result of the same or related physical or mental illness. Such
termination shall not be effective if Executive returns to the full time
performance of his material duties within such thirty (30) day notice period. If
Executive is eligible for disability payments prior to said termination under
any disability plan sponsored by the Company, his Base Salary shall be reduced
by the amount of such disability payments.
(c) Cause. Subject to the notification provisions of Section 7(d) below,
Executive's employment hereunder may be terminated by the Company for Cause. For
purposes of this Agreement, the term "Cause" shall be limited to (i) willful
misconduct by Executive with regard to the business, assets or employees of the
Company; (ii) the refusal or willful failure of Executive to follow the proper
written direction of the CEO or the Board, provided that the foregoing refusal
or willful failure shall not be "Cause" if Executive in good faith believes that
such direction is illegal and promptly so notifies the CEO or the Board; (iii)
continuing refusal or willful failure by the Executive to perform the duties
required of him hereunder (other than any such failure resulting from incapacity
due to physical or mental illness) after a written demand for substantial
performance is delivered to the Executive by the CEO or the Board which
specifically identifies the manner in which it is believed that the Executive
has substantially and continually refused to perform his duties hereunder; (iv)
the Executive pleading nolo contendere or guilty to, or being convicted of, a
felony (other than a traffic infraction); (v) the breach by Executive of any
fiduciary duty owed by Executive to the Company;
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(vi) your abuse of alcohol or drugs (legal or illegal) that, in the CEO's sole
and absolute judgment, is deemed to materially impair your ability to perform
your duties hereunder; or (vii) Executive's dishonesty, misappropriation or
fraud with regard to the Company (other than good faith expense account
disputes).
(d) Notice of Termination for Cause. A Notice of Termination for Cause
shall mean a notice that shall indicate the specific termination provision in
Section 7(c) relied upon and shall set forth in reasonable detail the facts and
circumstances which provide for a basis for Termination for Cause. The date of
termination for a Termination for Cause shall be the date indicated in the
Notice of Termination. Any purported Termination for Cause which is held by a
court not to have been based on the grounds set forth in this Agreement or not
to have followed the procedures set forth in this Agreement shall be deemed a
Termination by the Company without Cause.
8. Consequences of Termination of Employment. (a) Death. If Executive's
employment is terminated during the Employment Term by reason of Executive's
death, the employment period under this Agreement shall terminate without
further obligations to the Executive's legal representatives under this
Agreement or otherwise except for: (i) any compensation earned but not yet paid,
including without limitation, any declared but unpaid bonus for the prior fiscal
year, any amount of Base Salary earned but unpaid, any accrued vacation pay
payable pursuant to the Company's policies and any unreimbursed business
expenses payable pursuant to Section 6, which amounts shall be promptly paid in
a lump sum to Executive's estate; and (ii) any other amounts or benefits owing
to Executive under the then applicable
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employee benefit plans, long term incentive plans and programs or equity plans
of the Company, which shall be paid in accordance with such plans and programs.
(b) Disability. If Executive's employment, pursuant to this Agreement, is
terminated by reason of Executive's Disability, Executive shall be entitled to
receive the payments and benefits to which his representatives would be entitled
in the event of a termination of employment by reason of his death (other than
life insurance benefits). Executive shall thereafter be eligible for disability
benefits and entitlements, if any, pursuant to the Company's Human Resource
policies and employee benefit programs.
(c) Termination by the Company without Cause or by Nonextension of
Employment Term. If (i) Executive's employment with the Company is terminated by
the Company without Cause or (ii) by the Company pursuant to Section 1 hereof
(except as provided in Section 7(a)(v) hereof), the Company shall have no
further obligations to the Executive under this Agreement or otherwise, except
that, subject to Sections 8(e), 9, and 11 hereof, Executive shall be entitled to
receive (A) either equal bi-weekly payments or a lump sum payment, at the
Company's discretion, of an amount equal to one-twenty sixth of Executive's then
Base Salary, but off the employee payroll, for a period of twelve (12) months
following the date of his termination, (B) within five (5) days after such
termination (i) any unreimbursed business expenses payable pursuant to Section
6; and (ii) any Base Salary through the date of termination, and accrued
vacation pay payable pursuant to the Company's policies; (C) any other amounts
or benefits previously accrued on behalf of the Executive under the then
applicable employee benefit plans, incentive plans or programs of the Company
and paid in accordance with such plans and programs; any vested benefit pursuant
to any
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Company equity plans and paid in accordance with such plans and programs; (D)
payment by the Company of the premiums for the Executive and his dependents
health coverage for twelve (12) months under the Company's health plans which
cover the senior executives of the Company or materially similar benefits.
Payments under (D) above may at the discretion of the Company be made by
continuing participation of Executive in the plan as a terminee, by paying the
applicable COBRA premium for Executive and his dependents, or by covering
Executive and his dependents under substitute arrangements.
(d) Termination with Cause or Voluntary Resignation or Retirement. If
Executive's employment hereunder is terminated (i) by the Company for Cause,
(ii) voluntarily by the Executive or (iii) by the Company pursuant to Section
7(a)(v) hereof, the Executive shall be entitled to receive only his Base Salary
through the date of termination and any unreimbursed business expenses payable
pursuant to Section 6. Any Executive's rights under any benefit plan of the
Company or any equity plan of the Company following such termination of
employment shall be determined in accordance with the provisions of the
applicable benefit or equity plan.
(e) Release. Executive agrees that, as a condition to receiving the
payments and benefits provided under Section 8(c) (other than payments provided
under Section 8(c)(B)), he will execute and deliver to the Company a release,
promptly following his final day of employment with the Company, of all claims
of any kind against the Company and its affiliates (including, without
limitation, any civil rights claim) and their officers, directors and employees,
in such form as reasonably requested by the Company.
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9. No Mitigation; Set-Off. In the event of any termination of employment
under Section 7, Executive shall be under no obligation to seek other employment
and, subject to Section 11 below, there shall be no offset against any amounts
due Executive under this Agreement on account of any remuneration attributable
to any subsequent employment that Executive may obtain. Any amounts due under
Section 8 are in the nature of severance payments, or liquidated damages, or
both, and are not in the nature of a penalty. Such amounts are inclusive, and in
lieu of any amounts payable under any other salary continuation or cash
severance arrangement of the Company and to the extent paid or provided under
any other such arrangement shall be offset from the amount due hereunder. The
Company shall have no obligations to Executive upon a termination of employment
except as provided in Section 8. If the Executive dies while receiving payments
under Section 8(c), any remaining payments shall be paid to Executive's estate.
10. Change in Control. Notwithstanding anything to the contrary in this
Agreement, the Executive and the Company acknowledge that the Executive has
entered into an agreement, designated as the Corporate Change of Control
Agreement (the "COC Agreement"), with the terms and conditions applicable to
termination of employment benefits, including, salary continuation in the event
of a change in control (as defined in the COC Agreement) To the extent that the
terms of this Agreement conflict with or overlap with any terms of the COC
Agreement, the terms of the COC Agreement shall control, and only the terms of
the COC Agreement shall be given effect with regard to any benefits paid to the
Executive upon his termination of employment in the event of a change in control
(as defined in the COC Agreement).
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11. Confidential Information, Non-Competition and Non-Solicitation of the
Company. (a) (i) Executive acknowledges that as a result of his employment by
the Company, the Executive will obtain secret and confidential information as to
the Company and its affiliates, create relationships with customers, suppliers
and other persons dealing with the Company and its affiliates, and the Company
and its affiliates will suffer substantial damage, which would be difficult to
ascertain, if Executive should use such confidential information or take
advantage of such relationships and that because of the nature of the
information that will be known to Executive and the relationships created it is
necessary for the Company and its affiliates to be protected by the prohibition
against Competition as set forth herein, as well as the Confidentiality
restrictions set forth herein.
(ii) Executive acknowledges that the (a) retention of nonclerical
employees employed by the Company and its affiliates in which the Company and
its affiliates have invested training and depends on for the operation of their
businesses is important to the businesses of the Company and its affiliates,
that Executive will obtain unique information as to such employees as an
executive of the Company and will develop a unique relationship with such
persons as a result of being an executive of the Company and (b) retention of
customers by the Company and its affiliates in which the Company and its
affiliates have invested time and efforts and depends on for the operation of
their businesses is important to the businesses of the Company and its
affiliates, that Executive will obtain unique information as to such customers
as an executive of the Company and will develop a unique relationship with such
customers as a result of being an executive of the Company, therefore, in each
case it is
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necessary for the Company and its affiliates to be protected from the
Executive's Solicitation of such employees and customers as set forth below.
(iii) Executive acknowledges that the provisions of this Agreement are
reasonable and necessary for the protection of the businesses of the Company and
its affiliates and that part of the compensation paid under this Agreement and
the agreement to pay severance in certain instances is in consideration for the
agreements in this Section 11.
(b) Competition shall mean: (i) participating, directly or indirectly, as
an individual proprietor, partners, stockholder, officer, employee, director,
joint venturer, investor, lender, consultant or in any capacity whatsoever,
within the United States of America, in a business in competition with any
business conducted by the Company provided, however, that such participation
shall not include (i) the mere ownership of not more than one percent (1%) of
the total outstanding stock of a publicly held company; or (ii) any activity
engaged in with the prior written approval of the Board.
(c) Solicitation shall mean: (i) recruiting, soliciting or inducing, of any
nonclerical employee or employees of the Company or its affiliates to terminate
their employment with, or otherwise cease their relationship with, the Company
or its affiliates or hiring or assisting another person or entity to hire any
nonclerical employee of the Company or its affiliates or any person who within
six (6) months before had been a nonclerical employee of the Company or its
affiliates and were recruited or solicited for such employment or other
retention while an employee of the Company or affiliate, or (ii) call upon any
Person who or that is, on the Termination Date, or has been, within one year
prior to the Termination Date, a customer of the Company or an affiliate
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or a subsidiary for the purpose of (A) soliciting or selling services in
competition with services that the Company or an affiliate or a subsidiary
offers or has under development on the Termination Date, or (B) causing any such
customers to refrain from doing business with or patronizing the Company or an
affiliate or a subsidiary..
(d) If any restriction set forth with regard to Competition or Solicitation
is found by any court of competent jurisdiction, or an arbitrator, to be
unenforceable because it extends for too long a period of time or over too great
a range of activities or in too broad a geographic area, it shall be interpreted
to extend over the maximum period of time, range of activities or geographic
area as to which it may be enforceable. If any provision of this Section 11
shall be declared to be invalid or unenforceable, in whole or in part, as a
result of the foregoing, as a result of public policy or for any other reason,
such invalidity shall not affect the remaining provisions of this Section which
shall remain in full force and effect.
(e) During and after the Employment Term, Executive shall hold in a
fiduciary capacity for the benefit of the Company and its affiliates all secret
or confidential information, knowledge or data relating to the Company and its
affiliates, and their respective businesses, including any confidential
information as to customers of the Company and its affiliates, (i) obtained by
Executive during his employment by the Company and its affiliates and (ii) not
otherwise public knowledge or known within the applicable industry (other than
by acts by Executive in violation of this Agreement). The Executive shall not,
without prior written consent of the Company, unless compelled pursuant to the
order of a court or other governmental or legal body having jurisdiction over
such matter, communicate or divulge any such information, knowledge
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or data to anyone other than the Company and those designated by it. In the
event Executive is compelled by order of a court or other governmental or legal
body to communicate or divulge any such information, knowledge or data to anyone
other than the Company and those designated by it, he shall promptly notify the
Company of any such order and he shall cooperate fully with the Company in
protecting such information to the extent possible under applicable law.
(f) Upon termination of his employment with the Company and its affiliates,
or at any time as the Company may request, the Executive will promptly deliver
to the Company all documents (whether prepared by the Company, an affiliate, the
Executive or a third party) relating to the Company, an affiliate or any of
their businesses or property which he may possess or have under his direction or
control.
(g) During the Employment Term and for one (1) year following a termination
of Executive's employment for any reason whatsoever, whether by the Company or
by Executive and whether or not for Cause or non-extension of the Employment
Term, Executive will not enter into Competition with the Company or its
affiliates. Furthermore, in the event of any termination of Executive's
employment for any reason whatsoever, whether by the Company or by the Executive
and whether or not for Cause or non-extension of the Employment Term, the
Executive for one (1) year thereafter will not violate paragraph (c) above.
(h) In the event of a breach or potential breach or threatened breach of
this Section 11, the Executive acknowledges that the Company and its affiliates
will be caused irreparable injury and that money damages may not be an adequate
remedy and agree that the Company and its affiliates shall be entitled to
injunctive relief (in
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addition to its other remedies at law) to have the provisions of this Section 11
enforced. It is hereby acknowledged that the provisions of this Section 11 are
for the benefit of the Company and all of the affiliates of the Company and each
such entity may enforce the provisions of this Section 11 and only the
applicable entity can waive the rights hereunder with respect to its
confidential information and employees.
(i) Furthermore, in the event of breach of this Section 11 by the
Executive, the Company shall suffer substantial damages that may be difficult to
measure. Accordingly, the parties agree that as liquidated damages, and not a
penalty, in the event of breach of the Section 11 by Executive while he is
receiving amounts under Section 8(c) hereof, Executive shall not be entitled to
receive any future amounts pursuant to Section 8(c) hereof and that this
provision shall not be an exclusive remedy.
12. Executive's Representation. The Executive represents and warrants to
the Company that there is no legal impediment to his performing his obligations
under this Agreement and neither entering into this Agreement nor performing his
contemplated service hereunder will violate any agreement to which he is a party
or any other legal restriction.
13. Miscellaneous.
(a) Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New Jersey without reference to
principles of conflict of laws.
(b) Entire Agreement/Amendments. This Agreement and the instruments
contemplated herein contain the entire understanding of the parties with
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respect to the employment of Executive by the Company and supersedes any policy
of the Company with regard to severance payments and any prior agreements
between the Company and Executive with regard to employment or severance. There
are no restrictions, agreements, promises, warranties, covenants or undertakings
between the parties with respect to the subject matter herein other than those
expressly set forth herein and therein. This Agreement may not be altered,
modified, or amended except by written instrument signed by the parties hereto.
(c) No Waiver. The failure of a party to insist upon strict adherence to
any term of this Agreement on any occasion shall not be considered a waiver of
such party's rights or deprive such party of the right thereafter to insist upon
strict adherence to that term or any other term of this Agreement. Any such
waiver must be in writing and signed by Executive or an authorized officer of
the Company, as the case may be.
(d) Assignment. This Agreement shall not be assignable by Executive. This
Agreement shall be assignable by the Company only to either an entity which is
owned, directly or indirectly, in whole or in part by the Company or by any
successor to the Company or an acquiror of all or substantially all of the
assets of the Company provided such entity or acquiror promptly assumes all of
the obligations hereunder of the Company in a writing delivered to the Executive
and otherwise complies with the provisions hereof with regard to such
assumption. Upon such assignment and assumption, all references to the Company
herein shall be to the assignee entity or acquiror, as the case may be.
(e) Successors; Binding Agreement. This Agreement shall inure to the
benefit of and be binding upon the personal or legal representatives, executors,
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administrators, successors, heirs, distributees, and devisees legatees and
permitted assignees of the parties hereto.
(f) Communications. For the purpose of this Agreement, notices and all
other communications provided for in this Agreement shall be in writing and
shall be deemed to have been duly given (i) when faxed or delivered by hand,
provided there is documentation of delivery, or (ii) two business days after
being mailed by United States registered or certified mail, return receipt
requested, postage prepaid, addressed to the respective addresses set forth on
the initial page of this Agreement, provided that all notices to the Company
shall be directed to the attention of the CEO of the Company with a copy to the
Vice President, General Counsel, or to such other address as any party may have
furnished to the other in writing in accordance herewith. Notice of change of
address shall be effective only upon receipt.
(g) Withholding Taxes. The Company may withhold from any and all amounts
payable under this Agreement such Federal, state and local taxes as may be
required to be withheld pursuant to any applicable law or regulation.
(h) Survivorship. The respective rights and obligations of the parties
hereunder shall survive any termination of Executive's employment to the extent
necessary to the agreed preservation of such rights and obligations.
(i) Counterparts. This Agreement may be signed in counterparts, each of
which shall be an original, with the same effect as if the signatures thereto
and hereto were upon the same instrument.
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(j) Headings. The headings of the sections contained in this Agreement are
for convenience only and shall not be deemed to control or affect the meaning or
construction of any provision of this Agreement.
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as
of the day and year first above written.
For: CommVault Systems, Inc. (the "Company")
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N. Robert Hammer Date
President and Chief Executive Officer
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Date
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