Employment Agreement - Frontier Software Development Inc. and Narendra Popat
AGREEMENT RELATING TO EMPLOYMENT
Agreement dated June 1, 1994, by and between Frontier Software
Development, Inc., a Delaware corporation ("Frontier") and Narendra Popat, a
founder of Frontier ("Mr. Popat").
INTRODUCTION AND BACKGROUND
Mr. Popat is one of the founders of Frontier and in that capacity over the past
ten years has worked diligently, for long hours and for relatively low pay.
As a result of Mr. Popat's efforts, in the past year Frontier has
begun to experience growth and income as its products have started to become
sought after in the marketplace.
In recognition of Mr. Popat's efforts and desiring to continue to
retain Mr. Popat's services, the Board of Directors of Frontier has authorized
the granting of the benefits described in this Agreement.
NOW, THEREFORE, in consideration of the foregoing and for other good
and valuable consideration, the receipt and sufficiency of which is
acknowledged, the parties, intending to be legally bound, agree as follows:
1. TITLE AND DUTIES. Frontier hereby employs Mr. Popat to serve
Frontier in the capacities of President and Chief Operating
Officer. In accordance with such position Mr. Popat will have
appropriate responsibilities, duties and authority for the
management of Frontier, sufficient for the accomplishment of the
goals set for him by the Board of Directors to whom he shall be
responsible. Mr. Popat shall use his best efforts in directing
the business of Frontier with the objective of providing maximum
profit and return on invested capital; establishing current and
long-range objectives, plans and policies subject to the approval
of the Board, and representing Frontier with its major customers,
the financial community and the public.
The term of this Agreement will be for five (5) years commencing
on June 1, 1994 and shall be automatically renewed for additional
one-year periods thereafter unless either Frontier or Mr. Popat
gives the other written notice of non-renewal at least twelve
(12) months prior to the expiration of the original term or any
renewal term hereof.
Mr. Popat's salary and bonuses will be determined by the Board of
Directors on an annual basis based on the condition and prospects
of Frontier and the achievements of Mr. Popat. Mr. Popat will be
eligible for annual merit increases in accordance with Frontier's
compensation plan.
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2. BONUS PLAN. Mr. Popat will participate in Frontier's executive
incentive plan with a target level bonus of 40% and a maximum
bonus of 50% of base salary as outline in Frontier's executive
incentive plan as from time to time in effect.
3. BENEFITS. Frontier will provide Mr. Popat with and shall pay for
$2,000,000 in life insurance. In addition Mr. Popat will be
eligible for and receive all Frontier benefits, including but not
limited to, disability insurance at no less than 100% of salary,
eight (8) weeks of paid vacation, and Frontier's medical, dental
and vision care plans providing for family coverage as from time
to time in effect.
4. DEATH OF MR. POPAT. If Mr. Popat's employment terminates by
reason of death, Frontier will have no severance obligations to
Mr. Popat aside from the foregoing Frontier provided life
insurance; provided, however, if the proceeds of such life
insurance are not available to Mr. Popat's beneficiaries for any
reason, then Frontier will pay such beneficiaries an amount which
is equivalent to Mr. Popat's Severance Pay (as defined below) as
if Mr. Popat were terminated without Due Cause.
5. DISABILITY. If Mr. Popat's employment terminates because Mr.
Popat is Disabled, then Frontier will pay Mr. Popat an amount
equal to (a) his base salary minus (b) any payments he actually
receives under the disability policy provided for him by
Frontier. This amount will be paid monthly until he is no longer
Disabled. In addition during such period Frontier will provide
Mr. Popat with all benefits in effect prior to his termination.
As used herein the terms "Disabled" and "Disability" shall have
the meanings set forth in the disability income insurance policy
provided for Mr. Popat by Frontier.
6. TERMINATION WITHOUT DUE CAUSE. In the event that Mr. Popat is
terminated by Frontier without Due Cause, as defined herein,
Frontier's sole liability to Mr. Popat will be to pay the amounts
set forth in this Section. Specifically Frontier will pay Mr.
Popat Severance Pay for a period of three (3) years as follows:
(a) for the first twelve (12) month period following such
termination an amount equal to the greater of (i) $175,000 and
(ii) Mr. Popat's base salary as of the date of termination, and
(b) for each subsequent period of twelve (12) months an amount
equal to 120% of the amount of Mr. Popat's Severance Pay for the
immediately preceding twelve (12) months. Payments of Severance
Pay will be made at such time as Frontier makes its normal
payroll payments. Notwithstanding the foregoing, Mr. Popat's
Severance Pay will be discontinued if Mr. Popat secures
comparable alternative employment as to position and pay. During
the period in which Frontier is required to make payments of
Severance Pay to Mr. Popat Frontier will continue to provide to
Mr. Popat all benefits, reimbursement of expenses for his company
car, reimbursement for full out-placement assistance by a
counselor of Mr. Popat's choice up to a maximum of $25,000
reimbursement, and reimbursement for
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reasonable travel and expenses (to the extent not reimbursed by
others) connected with Mr. Popat's efforts to seek comparable
employment.
7. TERMINATION FOR DUE CAUSE. In the event that Mr. Popat is
terminated for Due Cause he will not be entitled to any severance
payment and Frontier will have all of the rights and remedies
available to it at law and in equity.
"Due Cause", as used herein, shall mean that (a) Mr. Popat has
committed a willful, serious act, such as embezzlement, against
Frontier intending to enrich himself at the expense of Frontier
or, (e) the conviction of Mr. Popat of a felonious crime, but not
a misdemeanor, involving moral turpitude. For purposes of this
paragraph, no act, or failure to act, on Mr. Popat's part shall
be considered "willful" unless done, or omitted to be done, by
Mr. Popat, not in good faith and without reasonable belief that
Mr. Popat's action or omission was in the best interest of
Frontier.
Notwithstanding the foregoing, Mr. Popat shall not be deemed to
have been terminated for Due Cause unless and until there shall
have been delivered to him a copy of a resolution duly adopted by
the unanimous affirmative vote of all of the members of the Board
of Directors (exclusive of Mr. Popat) at a meeting of the Board
called and held for the purpose (after reasonable notice to Mr.
Popat and an opportunity for Mr. Popat, together with his
counsel, to be heard before the Board) finding that in the good
faith opinion of the Board Mr. Popat was guilty of conduct set
forth above and specifying the particulars thereof in detail.
8. TERMINATION BY MR. POPAT FOR GOOD REASON. If in anticipation of
or following a Change in Control of Frontier, or following an
investment of at least $1,000,000 by investors in Frontier or
following an initial public offering of Frontier's stock, Mr.
Popat terminates his employment for Good Reason he shall be paid
the Severance Pay described above. As used herein the term
"Change in Control" shall mean any event as a result of which the
stockholders of Frontier immediately prior to such Change in
Control would not immediately after such Change in Control
beneficially own voting securities representing in the aggregate
more than 50% of the combined voting power of the voting
securities of the surviving entity, or the members of the Board
of Directors of Frontier immediately prior to the Change in
Control would not immediately after the change in Control
constitute a majority of the Board of Directors of the subsequent
corporation or entity. As used herein the term "Good Reason"
shall mean:
(a) Without Mr. Popat's express written consent, the assignment
to Mr. Popat of any duties inconsistent with his positions,
duties, responsibilities and status with frontier
immediately prior to a Change in Control, as defined above,
or a change in his reporting responsibilities, title or
offices as in effect
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immediately prior to a Change in Control, or a reduction in
job responsibilities or authority to a position subordinate
to that provided for in this Agreement or any removal of Mr.
Popat from or any failure to re-elect him to any of such
positions, except in connection with the termination of his
employment for Due Cause, disability or retirement or as a
result of his death or by Mr. Popat other than for Good
Reason;
(b) A reduction in Mr. Popat's base salary or benefits or a
breach of Frontier's obligations undertaken in this
Agreement
9. COMPANY CAR. Frontier will provide Mr. Popat with or will
reimburse Mr. Popat for the cost of leasing a company car or make
and model comparable to that provided to senior executives of
companies in the computer hardware or software industries.
Frontier will reimburse Mr. Popat for all operating expenses,
maintenance and fees, including automobile insurance. In the
event Mr. Popat's employment is terminated Frontier will at its
expense purchase and transfer to Mr. Popat title to such company
car.
10. Frontier shall require any successor to all or substantially all
of the business or assets of Frontier to assume and agree to
perform this agreement in the same manner and to the same extent
that Frontier would be required to perform it if no such
succession had taken place.
11. The laws of the Commonwealth of Massachusetts shall apply to the
construction, interpretation and enforcement of this Agreement.
FRONTIER SOFTWARE DEVELOPMENT, INC. MR. POPAT
By: /s/ Anil Singhal /s/ Narendra Popat
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Title: Chairman Narendra Popat
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AMENDMENT NO. 1 TO AGREEMENT RELATING TO EMPLOYMENT
AMENDMENT, dated January 14, 1999 by and between NetScout Systems,
Inc., a Delaware corporation ("NetScout"), and Narendra Popat, a founder of
NetScout ("Mr. Popat").
WHEREAS, the Company and Mr. Popat entered into an Agreement Relating
to Employment dated as of June 1, 1994 (the "Employment Agreement");
WHEREAS, the parties desire to amend the Employment Agreement to add
provisions with respect to Mr. Popat's compensation;
NOW, THEREFORE, for good and valuable consideration, the sufficiency
of which is hereby acknowledged, the parties hereto agree to amend the
Employment Agreement as follows:
1. That Section 2 be amended by deleting it in its entirety and
replacing it with the following:
"BASE SALARY AND BONUS. During the term of this Agreement, the
Company shall pay Mr. Popat a base salary at an annual rate of at least $250,000
and a year-end, non-discretionary bonus of at least $250,000. The base salary
shall be payable in installments in accordance with the Company's regular
practices, as such practices may be modified from time to time.
2. This Amendment shall be governed by the laws of the
Commonwealth of Massachusetts and shall be binding upon the heirs, personal
representatives, executors, administrators, successors and assigns of the
parties.
3. This Amendment may be executed in two or more counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
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IN WITNESS WHEREOF, this Amendment has been executed as of the date
and year first above written.
NETSCOUT SYSTEMS, INC.
By: /s/ Anil Singhal
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Anil Singhal
Chief Executive Officer
/s/ Narendra Popat
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Narendra Popat
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