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EMPLOYMENT, CONFIDENTIALITY, SEVERANCE AND NON-COMPETITION AGREEMENT

Confidentiality Agreement

EMPLOYMENT, CONFIDENTIALITY, SEVERANCE AND NON-COMPETITION AGREEMENT | Document Parties: SAVVIS, INC. You are currently viewing:
This Confidentiality Agreement involves

SAVVIS, INC.

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Title: EMPLOYMENT, CONFIDENTIALITY, SEVERANCE AND NON-COMPETITION AGREEMENT
Governing Law: Missouri     Date: 2/27/2009
Industry: Computer Services     Sector: Technology

EMPLOYMENT, CONFIDENTIALITY, SEVERANCE AND NON-COMPETITION AGREEMENT, Parties: savvis  inc.
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Exhibit 10.32

EMPLOYMENT, CONFIDENTIALITY, SEVERANCE

AND NON-COMPETITION AGREEMENT

THIS EMPLOYMENT, CONFIDENTIALITY, SEVERANCE AND NON-COMPETITION AGREEMENT (this “Agreement”) is effective as of March 13, 2007 by and between Bill Fathers, an individual residing at [                                                                         ] (the “Executive”), and SAVVIS, INC., a Delaware corporation, and all its subsidiaries (collectively referred to as the “Company”). Capitalized terms used but not defined herein have the respective meanings ascribed to such terms in Section 7 of this Agreement.

WHEREAS, Executive acknowledges that:

 

 

 

the Company and its Affiliates are and will be engaged in a number of highly competitive lines of business;

 

 

 

the Company and its Affiliates conduct business throughout the United States and in numerous foreign countries;

 

 

 

the Company and its Affiliates possess Confidential Information and customer goodwill that provide the Company and its Affiliates with a significant competitive advantage; and

 

 

 

the Company’s and its Affiliates’ success depends to a substantial extent upon the protection of its Confidential Information (which includes trade secrets and customer lists) and customer goodwill by all of their employees;

 

 

 

Executive has and will continue to have possession of Confidential Information; and

WHEREAS, if Executive were to leave the Company, the Company and its Affiliates would in all fairness need certain protections to prevent competitors from gaining an unfair competitive advantage over them.

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

1. Term of Agreement . This Agreement will remain in effect from the date hereof until the date the Executive’s employment with the Company terminates for any reason. The following provisions shall survive termination or expiration of this Agreement for any reason, to the extent applicable and in accordance with their terms: Sections 4, 5, 6 and 8. Executive’s employment is “at-will”, and nothing contained herein shall be deemed a guarantee of employment with Company for any period of time.

2. Capacity and Performance .

(a) During the term hereof, the Executive shall serve the Company in the position to which he or she is appointed from time to time. Executive’s position as of the date of this Agreement is Senior Vice President, Engineering and Development. During the term hereof, Executive will be employed by the Company on a full-time basis and shall perform the duties and responsibilities of his or her position and such other duties and responsibilities on behalf of the Company and its Affiliates, reasonably related to that position, as may be designated from time to time by the Compensation Committee (the “Compensation Committee”) of the Board of Directors of the Company (the “Board”) or other designee.

(b) During the term hereof, the Executive shall devote his full business time and his best efforts, business judgment, skill and knowledge to the advancement of the business and interests of the Company and its Affiliates and to the discharge of his duties and responsibilities hereunder. The Executive shall not engage in any other business activity or serve in any industry, trade, professional, governmental or academic position during the term of this Agreement, except as may otherwise be expressly approved in advance by the Compensation Committee or other designee in writing.


3. Compensation and Benefits . As compensation for all services performed by the Executive under and during the term hereof, and subject to performance of the Executive’s duties and the fulfillment of the obligations of the Executive to the Company and its Affiliates, pursuant to this Agreement or otherwise:

(a) Base Salary . During the term hereof, the Company shall pay the Executive a base salary, which as of the date of execution of this Agreement is set at the rate of Two Hundred Ninety Seven Thousand Dollars ($297,000) per annum, payable in accordance with the regular payroll practices of the Company for its executives subject to adjustment from time to time by the Compensation Committee, in its sole discretion. Such base salary, as from time to time adjusted, is hereafter referred to as the “Base Salary”.

(b) Incentive and Bonus Compensation .

(i) For service rendered during the Company’s fiscal year ending December 31, 2007, the Executive will be eligible, at the Compensation Committee’s discretion, to receive a bonus payment equal to 50% of Base Salary, pro rated for the number of months of service rendered by the Executive during 2007 and payable in accordance with the terms of the Company’s 2007 Annual Incentive Plan.

(ii) Commencing on January 1, 2008 and for the remainder of the term hereof, the Executive shall be entitled to participate in the Company’s Annual Incentive Plan (the “Annual Incentive Plan”) on terms to be determined annually by the Compensation Committee prior to the commencement of each fiscal year. Nothing contained herein shall obligate the Company to continue the Annual Incentive Plan. Any compensation paid to the Executive under the Annual Incentive Plan shall be in addition to the Base Salary. Except as otherwise expressly provided under the terms of the Annual Incentive Plan or this Agreement, the Executive shall not be entitled to earn bonus or other compensation for services rendered to the Company.

(c) Stock Options . Subject to approval by the compensation committee, the Company shall grant to the Executive an option to purchase 125,000 shares of the common stock, $.01 par value, of the Company under the SAVVIS, Inc. Amended and Restated 2003 Incentive Compensation Plan (the “Plan”) at an exercise price per share equal to the public market closing price on the business day immediately prior to the date of grant (the “Option”). The shares that are subject to the Option shall vest at the rate of twenty-five percent (25%) per year on each of the first four (4) anniversaries of the grant date; provided that the Executive is still employed by the Company on each such vesting date. Vesting of the Option is also subject to the terms of Section 4(c)(ii) of the Agreement. Except as may be modified by the terms of this Agreement, the Option and all other options granted to the Executive by the Company shall be subject to the terms of the Plan and any applicable option certificate and shareholder and/or option holder agreements and other restrictions and limitations generally applicable to equity held by Company executives or otherwise required by law.

4. Termination of Employment.

 

 

(a)

Executive’s employment with the Company may be terminated as follows:

 

 

(i)

by the Company with Cause;

 

 

(ii)

by the Company without Cause;

 

 

(iii)

upon Executive’s death or Disability (defined herein);

 

 

(iv)

by Executive with Good Reason; or

 

 

(v)

by Executive without Good Reason.

 

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(b) Upon termination of Executive’s employment for any reason, all rights and obligations under this Agreement shall cease, except as referred to in Section 1 and except that Executive shall be entitled to (i) payment of his or her salary through the effective date of termination, plus (ii) payment of any other amounts owed but not yet paid to Executive as of the effective date of termination (such as reimbursement for business expenses incurred prior to termination in accordance with the Company’s expense and reimbursement policy, plus (iii) any other benefits to which Executive may be entitled which provide for payment or other benefits following termination (such as under disability insurance plan).

(c) Severance Benefits .

(i) If the Executive is subject to termination pursuant to an Involuntary Termination (as defined in Section 7), then in addition to any amounts/benefits owed under Section 4(b), the Company shall pay the Executive: (x) an amount equal to 100% of his or her then current annual Base Salary for one year, plus (y) at the discretion of the Compensation Committee, a pro-rated portion of the bonus that the Executive would be entitled to receive under the Company’s Annual Incentive Plan (“Bonus”). The pro-rated Bonus will be calculated by the Compensation Committee by extrapolating the Company’s anticipated full year performance based on the current year performance to date and then multiplying the resulting full year extrapolation a fraction the numerator of which is the number of days during the calendar year the Executive worked in the year of Involuntary Termination up to the termination date and the denominator of which is 365 (the amounts paid under (i) and (ii) constitute the “ Severance Payment ”). If the Executive is subject to an Involuntary Termination prior to March 31 of any calendar year, and has, therefore, not yet received payment for the prior year under the Annual Incentive Plan, then the Executive will also be entitled to such payment under the Annual Incentive Plan as he would otherwise have been entitled to receive to receive had he remained employed on March 31 of the year of Involuntary Termination.

(ii) Further, if and only if the Involuntary Termination occurs within twelve (12) months of a Change in Control (a “Change in Control Termination”), then (x) in addition to the Severance Payment, any stock awards, stock options, stock appreciation rights or other equity-based awards (each an “Equity Award”) that were outstanding immediately prior to the effective date of the Change in Control Termination shall, provided such Equity Awards are assumed by the acquirer in such Change in Control, to the extent not then vested, fully vest and become exercisable as of such date and the Executive shall have the right to exercise any such Equity Award until the earlier to occur of (A) twelve (12) months from the date of the Change in Control Termination and (B) the expiration date of such Equity Award as set forth in the agreement evidencing such award; and (y) the Executive shall be entitled to the Bonus.

(d) Timing of and Conditions to Payment . Any Severance Payment due under Section 4(c) shall be paid bi-monthly, in accordance with the Company’s standard payroll procedures, for the twelve (12) month period following the effective date of termination. Any other provision of this Agreement notwithstanding, no severance benefits shall be payable unless and until each of the following has occurred:

(i) the Executive has executed and delivered to the Company a general release (in a form prescribed by the Company) of all known and unknown claims that he or she may then have against the Company or persons affiliated with the Company and has agreed not to prosecute any legal action or other proceeding based upon any of such claims;

(ii) the Executive has, no later than the effective date of termination, delivered to the Company a resignation from all offices, directorships and fiduciary positions with the Company and it affiliates;

(iii) the effective date of the Executive’s Involuntary Termination;

(iv) the date of the Company’s receipt of the Executive’s executed General Release, which must be no later than 21 days following the effective date of termination (except in the case of group terminations, such time period shall be 45 days);

 

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(v) the expiration of any rescission or revocation period applicable to the Executive’s executed General Release; and

(vi) the Executive is and continues to be in compliance with all of his or her obligations under this Agreement, including, without limitation, Sections 5 and 6, and under the agreements and other documents referred to or incorporated by reference herein.

The Company will commence payment of the Severance Payment within ten (10) business days of satisfaction / occurrence of the last of the foregoing items (1) through (5). For purposes of Section 409A of the Internal Revenue Code of 1986, as amended (“Code”), an installment Severance Payment shall be deemed to be made as of the applicable bimonthly payroll date following the Executive’s effective date of termination if made by the 15th day of the third calendar month following such payroll date.

(e) Health Care Benefit . If the Executive elects to continue his or her health insurance coverage under the Consolidated Omnibus Budget Reconciliation Act (“COBRA”) following an Involuntary Termination, then in addition to the benefits noted above, the Company shall pay the Executive’s monthly premium under COBRA until the earliest of (i) the close of the twelve-month period following cessation of his or her employment or (ii) the expiration of the Executive’s continuation coverage under COBRA.

(f) Withholding Taxes . All payments made under this Agreement shall be subject to reduction to reflect taxes or other charges required to be withheld by law.

(g) Section 409A Savings Clause . If any compensation or benefits provided by this Agreement may result in the application of Section 409A of the Code, the Company shall, in consultation with the Executive, modify the Agreement in the least restrictive manner necessary in order to exclude such compensation from the definition of “deferred compensation” within the meaning of such Section 409A or in order to comply with the provisions of Section 409A, other applicable provision(s) of the Code and/or any rules, regulations or other regulatory guidance issued under such statutory provisions and without any diminution in the value of the payments to the Executive. Notwithstanding any provision of this Agreement to the contrary, to the extent required in order to comply with Section 409A of the Code, amounts to be paid under this Agreement upon the Executive’s termination of employment shall be paid, with interest on any payment from the termination date until the first business day after the date that is six months following the termination date at the applicable federal rate provided in Section 7872(f)(2)(A) of the Code, to the Executive on the first business day after the date that is six months following the termination date.

5. Confidential Information .

(a) The Executive acknowledges that the Company and its Affiliates continually develop Confidential Information, that the Executive may develop Confidential Information for the Company or its Affiliates and that the Executive will have possession of and access to Confidential Information during the course of employment. The Executive will comply with the policies and procedures of the Company and its Affiliates for protecting Confidential Information, and shall not disclose to any Person or use, other than as required by applicable law or for the proper performance of his duties and responsibilities to the Company and its Affiliates, any Confidential Information obtained by the Executive incident to his employment or other association with the Company or any of its Affiliates. The Executive understands that this restriction shall continue to apply after his employment terminates, regardless of the reason for such termination. The confidentiality obligation under this Section 5 shall not apply to information which is generally known or readily available to the public at the time of disclosure or becomes generally known through no wrongful act on the part of the Executive or any other Person having an obligation of confidentiality to the Company or any of its Affiliates.

(b) All documents, records, tapes and other media of every kind and description relating to the business, present or otherwise, of the Company or its Affiliates and any cop


 
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