Unassociated Document


     

    
      Exhibit
10.9

       

    

    CORNERSTONE
ONDEMAND, INC.

     

    AMENDED
AND RESTATED EMPLOYMENT AGREEMENT

     

     

    This
Amended and Restated Employment Agreement (the “Agreement”), is entered into
and is effective as of November 8, 2010, (the “Effective Date”) by and
between Cornerstone OnDemand, Inc. (the “Company”) and Dave Carter
(“Executive”).

     

    WHEREAS,
the Company and Executive previously entered into an certain Employment
Agreement dated as of May 1, 2008 (the “Prior
Agreement”);

     

    WHEREAS,
the Company and Executive wish to supersede the Prior Agreement and further
desire that this Agreement amend and restate the Prior Agreement in its
entirety;

     

    WHEREAS,
the Company desires to continue to retain the services of Executive as its Vice
President of Sales, and Executive desires and is willing to continue employment
with the Company in that capacity; and

     

    WHEREAS,
the Company and Executive desire to embody the terms and conditions of
Executive’s continued employment in this Agreement.

     

    NOW,
THEREFORE, in consideration of the mutual promises, terms, covenants and
conditions set forth herein and the performance of each, it is hereby agreed as
follows:

     

    1.      Duties and Scope of
Employment.

     

    (a)           Positions and
Duties.  As of the Effective Date, Executive will continue to
serve as Vice President of Sales of the Company.  Executive will
render such business and professional services in the performance of his duties,
consistent with Executive’s position within the Company, as will reasonably be
assigned to him by the Company’s Board of Directors (the “Board”) or the Company’s Chief Executive
Officer (the “CEO”).  The Board or CEO
may modify Executive’s job title and duties as it deems necessary and
appropriate in light of the Company’s needs and interests from time to
time.  The period of
Executive’s employment under this Agreement is referred to herein as the
“Employment
Term.”

     

    (b)           Obligations.  During
the Employment Term, Executive will perform his duties faithfully and to the
best of his ability and will devote his full business efforts and time to the
Company.  For the duration of the Employment Term, Executive agrees
not to actively engage in any other employment, occupation or consulting
activity for any direct or indirect remuneration without the prior approval of
the Board.

     

    2.      At-Will
Employment.  The
parties agree that Executive’s employment with the Company will be “at-will”
employment and may be terminated at any time with or without cause or
notice.  Executive understands and agrees that neither his job
performance nor promotions, commendations, bonuses or the like from the Company
give rise to or in any way serve as the basis for modification, amendment, or
extension, by implication or otherwise, of his employment with the
Company.  However, as described in this Agreement, Executive
may be entitled to severance benefits depending on the circumstances of
Executive’s termination of employment with the Company.


    
      
         


      

      
         


        
          

        

      

      
         


      

    

     

    3.      Compensation.

     

    (a)           Base
Salary.  During the Employment Term, the Company will pay
Executive an annual salary of $230,000 as compensation for his services (the
“Base
Salary”).  The Base Salary will be paid periodically in
accordance with the Company’s normal payroll practices and be subject to the
usual, required withholding.  Executive’s salary will be subject to
review and adjustments will be made based upon the Company’s standard
practices.

     

    (b)           Bonus.  Executive
will be entitled to participate in the applicable commission plan adopted by the
Company for its employees or executive officers on such terms as the Board may
determine in its discretion.   

     

    (c)            Equity
Awards.  The parties acknowledge that the Executive has
previously been granted options to purchase 275,000 shares of the Company’s
common stock. The options were granted under the Company’s 1999 Stock Option
Plan pursuant to the terms and conditions contained in the Company’s standard
form of option agreement.

     

    4.      Employee
Benefits.  During the Employment Term, Executive will be
entitled to participate in the employee benefit plans currently and hereafter
maintained by the Company of general applicability to other senior executives of
the Company.  The Company reserves the right to cancel or change the
benefit plans and programs it offers to its employees at any time.

     

    5.      Vacation.  Executive
will be entitled to paid vacation of three (3) weeks per year in accordance with
the Company’s vacation policy (including, without limitation, its policy related
to maximum accrual), with the timing and duration of specific vacations mutually
and reasonably agreed to by the parties hereto.

     

    6.      Attendance at Company
Headquarters. The parties hereby agree that regular attendance at Company
Headquarters is reasonable and expected. In addition, Executive will be required
to be in attendance at Company Headquarters at times and as requested by the
CEO.

     

    7.      Expenses.  Subject
to Section 6 above, the Company will reimburse Executive for reasonable travel,
entertainment or other expenses incurred by Executive in the furtherance of or
in connection with the performance of Executive’s duties hereunder, in
accordance with the Company’s expense reimbursement policy as in effect from
time to time.

     

    8.      Severance.

     

    (a)           Termination for other than
Cause, Death or Disability.

     

    (i)                 If
the Company terminates Executive’s employment with the Company on or after the
Effective Date, other than for Cause, death or disability, then, subject to Section 8,
Executive will be entitled to (i) receive continuing payments of severance pay
at a rate equal to his Base Salary rate, as then in effect, for a period of four
(4) months in accordance with the Company’s normal payroll policies, and (ii) Company-paid coverage for Executive and
Executive’s eligible dependents under the Company’s Benefit Plans (as defined
herein) for three (3) months following such
termination.   Subject to Section 8(a)(iii), upon such
termination, all vesting will terminate immediately with respect to Executive’s
outstanding equity awards.


    
      
         


      

      
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    (ii)                 Should
the Company be acquired and the Executive be terminated within six months of
such sale, or should the Executive’s position be materially diminished with six
months following such sale, then the unvested portion of the Executive’s Option
shall immediately vest.

     

    (b)           Termination for Cause;
Voluntary Termination.  If Executive’s employment with the
Company terminates voluntarily by Executive, for Cause by the Company or due to
Executive’s death or disability, then (i) all vesting will terminate immediately
with respect to Executive’s outstanding equity awards, (ii) all payments of
compensation by the Company to Executive hereunder will terminate immediately
(except as to amounts already earned), and (iii) Executive will only be
eligible for severance benefits in accordance with the Company’s established
policies, if any, as then in effect.

     

    9.      Conditions to Receipt of
Severance.

     

    (a)           Separation Agreement and
Release of Claims.  The receipt of any severance pursuant to
Section 8 will be subject to Executive signing and not revoking a separation
agreement and release of claims in a form reasonably acceptable to the Company
(the “Release”), which
must become effective and irrevocable no later than the sixtieth (60th) day
following the termination of employment (the “Release
Deadline”).  If the Release does not become effective and
irrevocable by the Release Deadline, Executive will forfeit any rights to
severance payment or benefits under this Agreement.  No severance will
be paid or provided until the separation agreement and release agreement becomes
effective and irrevocable, and any such severance payments and benefits
otherwise payable between the date of Executive’s termination of employment and
the date the Release becomes effective and irrevocable will be paid on the date
the Release becomes effective and irrevocable.

     

    (b)           Noncompete.  Executive
acknowledges that the nature of the Company’s business is such that if Executive
were to become employed by, or substantially involved in, the business of a
competitor of the Company following the termination of Executive’s employment
with the Company, it would be very difficult for Executive not to rely on or use
the Company’s trade secrets and confidential information.  Thus, to
avoid the inevitable disclosure of the Company’s trade secrets and confidential
information, Executive agrees and acknowledges that Executive’s right to receive
the severance payments set forth in Section 8 (to the extent Executive is
otherwise entitled to such payments) will be conditioned upon Executive not
directly or indirectly engaging in (whether as an employee, consultant, agent,
proprietor, principal, partner, stockholder, corporate officer, director or
otherwise), nor having any ownership interest in or participating in the
financing, operation, management or control of, any person, firm, corporation or
business that competes with Company or is a customer of the
Company.  Upon any breach of this section, all severance payments
pursuant to this Agreement will immediately cease.

     

    (c)           Nonsolicitation.  The
receipt of any severance benefits pursuant to Section 8 will be subject to
Executive not violating the provisions of Section 12.  In the event
Executive breaches the provisions of Section 12, all continuing payments and
benefits to which Executive may otherwise be entitled pursuant to Section 8 will
immediately cease (including Executive’s ability to exercise any outstanding
stock options).


    
      
         


      

      
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    10.           Definitions.

     

    (a)           Benefit
Plans.  For purposes of this Agreement, “Benefit Plans” means plans,
policies or arrangements that the Company sponsors (or participates in) and that
immediately prior to Executive’s termination of employment provide Executive
and/or Executive’s eligible dependents with medical, dental, and/or vision
benefits.  Benefit Plans do not include any other type of benefit
(including, but not by way of limitation, disability, life insurance or
retirement benefits).  The Company may, at its option, satisfy any
requirement that the Company provide coverage under any Benefit Plan by (i)
reimbursing Executive’s premiums under Title X of the Consolidated Budget
Reconciliation Act of 1985, as amended (“COBRA”) after Executive has
properly elected continuation coverage under COBRA (in which case Executive will
be solely responsible for electing such coverage for his and his eligible
dependents), or (ii) providing coverage under a separate plan or plans
providing coverage that is no less favorable or by paying Executive a lump-sum
payment which is, on an after-tax basis, sufficient to provide Executive and
Executive’s eligible dependents with equivalent coverage under a third party
plan that is reasonably available to Executive and Executive’s eligible
dependents.

     

    (b)           Cause.  For
purposes of this Agreement, “Cause” means a termination by
the Company because of any one of the following events: (i) Executive’s breach
of this Agreement that results in material injury to the Company which, if
capable of cure, has not been cured by Executive within ten (10) days after
receipt by Executive of written notice from the CEO of such breach;
(ii) Executive’s misconduct, fraud, dishonesty, or malfeasance that results
in material injury to the Company; (iii) Executive’s willful or intentional
failure to (a) perform Executive’s duties under this Agreement, (b) follow
the reasonable and legal direction of the Board or CEO, or (c) follow the
policies, procedures, and rules of the Company, or (iv) Executive’s conviction
of, or plea of nolo contendre to, a felony.  For any such failure
listed in clause (iii), the CEO shall first give Executive written notice
setting forth with specificity the reasons that the CEO believes Executive is
failing, and ten (10) days to cure such failure.

     

    For
purposes of this definition, Executive’s failure to achieve certain results,
such as those set forth in a business plan of the Company, that is not the
result of Executive’s demonstrating willful and deliberate dereliction of duty
will not constitute Cause;

     

    11.           Confidential
Information.  Executive agrees to enter into the Company’s
standard Employment, Non-Disclosure and Invention Assignment Agreement (the
“Confidential Information
Agreement”) upon commencing employment hereunder.

     

    12.           Non-Solicitation.  Until
the date two (2) years after the termination of Executive’s employment with the
Company for any reason, Executive agrees not, either directly or indirectly, to
solicit, induce, attempt to hire, recruit, encourage, take away, hire any
employee of the Company or cause an employee to leave his employment either for
Executive or for any other entity or person.  Executive represents
that he (i) is familiar with the foregoing covenant not to solicit, and (ii) is
fully aware of his obligations hereunder, including, without limitation, the
reasonableness of the length of time, scope and geographic coverage of these
covenants.


    
      
         


      

      
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    13.           Term of
Agreement.  This
Agreement will have a term of two (2) years commencing on the Effective
Date.

     

    14.           Assignment.  This
Agreement will be binding upon and inure to the benefit of (a) the heirs,
executors and legal representatives of Executive upon Executive’s death and (b)
any successor of the Company.  Any such successor of the Company will
be deemed substituted for the Company under the terms of this Agreement for all
purposes.  For this purpose, “successor” means any person,
firm, corporation or other business entity which at any time, whether by
purchase, merger or otherwise, directly or indirectly acquires all or
substantially all of the assets or business of the Company.  None of
the rights of Executive to receive any form of compensation payable pursuant to
this Agreement may be assigned or transferred except by will or the laws of
descent and distribution.  Any other attempted assignment, transfer,
conveyance or other disposition of Executive’s right to compensation or other
benefits will be null and void.

     

    15.           Notices.  All
notices, requests, demands and other communications called for hereunder will be
in writing and will be deemed given (i) on the date of delivery if delivered
personally, (ii) one (1) day after being sent by a well established commercial
overnight service, or (iii) four (4) days after being mailed by registered or
certified mail, return receipt requested, prepaid and addressed to the parties
or their successors at the following addresses, or at such other addresses as
the parties may later designate in writing:

     

    If to the
Company:

     

    Cornerstone
OnDemand, Inc.

    1601
Cloverfield Blvd., Suite 620

    Santa Monica, CA 90404

    Attn:
Adam Miller

     

    If to
Executive:

     

    at the
last residential address known by the Company.

     

    16.           Severability.  In
the event that any provision hereof becomes or is declared by a court of
competent jurisdiction to be illegal, unenforceable or void, this Agreement will
continue in full force and effect without said provision.

     

    17.           Arbitration.

     

    (a)           General.  In
consideration of Executive’s service to the Company, its promise to arbitrate
all employment related disputes and Executive’s receipt of the compensation, pay
raises and other benefits paid to Executive by the Company, at present and in
the future, Executive agrees that any and all controversies, claims, or disputes
with anyone (including the Company and any employee, officer, director,
shareholder or benefit plan of the Company in their capacity as such or
otherwise) arising out of, relating to, or resulting from Executive’s service to
the Company under this Agreement or otherwise or the termination of Executive’s
service with the Company, including any breach of this Agreement, will be
subject to binding arbitration under the Arbitration Rules set forth in
California Code of Civil Procedure Section 1280 through 1294.2, including
Section 1283.05 (the “Rules”) and pursuant to
California law.  Disputes which Executive agrees to arbitrate, and
thereby agrees to waive any right to a trial by jury, include any statutory
claims under state or federal law, including, but not limited to, claims under
Title VII of the Civil Rights Act of 1964, the Americans with Disabilities
Act of 1990, the Age Discrimination in Employment Act of 1967, the Older Workers
Benefit Protection Act, the California Fair Employment and Housing Act, the
California Labor Code, claims of harassment, discrimination or wrongful
termination and any statutory claims.  Executive further understands
that this Agreement to arbitrate also applies to any disputes that the Company
may have with Executive.


    
      
         


      

      
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    (b)           Procedure.  Executive
agrees that any arbitration will be administered by the American Arbitration
Association (“AAA”) and
that a neutral arbitrator will be selected in a manner consistent with its
National Rules for the Resolution of Employment Disputes.  The
arbitration proceedings will allow for discovery according to the rules set
forth in the National Rules
for the Resolution of Employment Disputes or California Code of Civil
Procedure.  Executive agrees that the arbitrator will have the
power to decide any motions brought by any party to the arbitration, including
motions for summary judgment and/or adjudication and motions to dismiss and
demurrers, prior to any arbitration hearing.  Executive agrees that
the arbitrator will issue a written decision on the merits.  Executive
also agrees that the arbitrator will have the power to award any remedies,
including attorneys’ fees and costs, available under applicable
law.  Executive understands the Company will pay for any
administrative or hearing fees charged by the arbitrator or AAA except that
Executive will pay the first $125.00 of any filing fees associated with any
arbitration Executive initiates.  Executive agrees that the arbitrator
will administer and conduct any arbitration in a manner consistent with the
Rules and that to the extent that the AAA’s National Rules for the Resolution of
Employment Disputes conflict with the Rules, the Rules will take
precedence.

     

    (c)           Remedy.  Except
as provided by the Rules, arbitration will be the sole, exclusive and final
remedy for any dispute between Executive and the
Company.  Accordingly, except as provided for by the Rules, neither
Executive nor the Company will be permitted to pursue court action regarding
claims that are subject to arbitration.  Notwithstanding, the
arbitrator will not have the authority to disregard or refuse to enforce any
lawful Company policy, and the arbitrator will not order or require the Company
to adopt a policy not otherwise required by law which the Company has not
adopted.

     

    (d)           Availability of Injunctive
Relief.  In addition to the right under the Rules to petition
the court for provisional relief, Executive agrees that any party may also
petition the court for injunctive relief where either party alleges or claims a
violation of this Agreement or the Confidentiality Agreement or any other
agreement regarding trade secrets, confidential information, nonsolicitation or
Labor Code §2870.  In the event either party seeks injunctive
relief, the prevailing party will be entitled to recover reasonable costs and
attorneys’ fees.

     

    (e)           Administrative
Relief.  Executive understands that this Agreement does not
prohibit Executive from pursuing an administrative claim with a local, state or
federal administrative body such as the Department of Fair Employment and
Housing, the Equal Employment Opportunity Commission or the workers’
compensation board.  This Agreement does, however, preclude Executive
from pursuing court action regarding any such claim.


    
      
         


      

      
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    (f)           Voluntary Nature of
Agreement.  Executive acknowledges and agrees that Executive is
executing this Agreement voluntarily and without any duress or undue influence
by the Company or anyone else. Executive further acknowledges and agrees that
Executive has carefully read this Agreement and that Executive has asked any
questions needed for Executive to understand the terms, consequences and binding
effect of this Agreement and fully understand it, including that Executive is
waiving Executive’s right to a jury trial.  Finally, Executive agrees
that Executive has been provided an opportunity to seek the advice of an
attorney of Executive’s choice before signing this Agreement.

     

    18.           Integration.  This
Agreement, together with the Confidential Information Agreement, represent the
entire agreement and understanding between the parties as to the subject matter
herein and supersedes all prior or contemporaneous agreements whether written or
oral, including, but not limited to, the Prior Agreement.  No waiver,
alteration, or modification of any of the provisions of this Agreement will be
binding unless in writing and signed by duly authorized representatives of the
parties hereto.

     

    19.           Waiver of
Breach.  The waiver of a breach of any term or provision of
this Agreement, which must be in writing, will not operate as or be construed to
be a waiver of any other previous or subsequent breach of this
Agreement.

     

    20.           Headings.  All
captions and section headings used in this Agreement are for convenient
reference only and do not form a part of this Agreement.

     

    21.           Tax
Withholding.  All payments made pursuant to this Agreement will
be subject to withholding of applicable taxes.

     

    22.           Governing
Law.  This Agreement will be governed by the laws of the State
of California (with the exception of its conflict of laws
provisions).

     

    23.           Acknowledgment.  Executive
acknowledges that he has had the opportunity to discuss this matter with and
obtain advice from his private attorney, has had sufficient time to, and has
carefully read and fully understands all the provisions of this Agreement, and
is knowingly and voluntarily entering into this Agreement.

     

    24.           Counterparts.  This
Agreement may be executed in counterparts, and each counterpart will have the
same force and effect as an original and will constitute an effective, binding
agreement on the part of each of the undersigned.

     

    25.           Section
409A.

     

    (a)           Notwithstanding
anything to the contrary in this Agreement, no severance pay or benefits to be
paid or provided to Executive, if any, pursuant to this Agreement that, when
considered together with any other severance payments or separation benefits,
are considered deferred compensation under Internal Revenue Code Section 409A
(together, the “Deferred
Payments”) will be payable until Executive has a “separation from
service” within the meaning of Section 409A (“Section 409A”) of the Internal
Revenue Code of 1986, as amended (the “Code”).  Similarly,
no severance payable to Executive, if any, pursuant to this Agreement that
otherwise would be exempt from Section 409A pursuant to Treasury Regulation
Section 1.409A-1(b)(9) will be payable until Executive has a “separation
from service” within the meaning of Section 409A.


    
      
         


      

      
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    (b)           Any
severance payments or benefits under this Agreement that would be considered
Deferred Payments will be paid on, or, in the case of installments, will not
commence until, the sixtieth (60th) day following Executive’s separation from
service, or, if later, such time as required by Section 25(c).  Except
as required by Section 25(c), any installment payments that would have
been made to Executive during the sixty (60) day period immediately following
Executive’s separation from service but for the preceding sentence will be paid
to Executive on the sixtieth (60th) day following Executive’s separation from
service and the remaining payments will be made as provided in this
Agreement.

     

    (c)           Further,
if Executive is a “specified employee” within the meaning of Section 409A at the
time of Executive’s separation from service (other than due to death), any
Deferred Payments that otherwise are payable within the first six (6) months
following Executive’s separation from service will become payable on the first
payroll date that occurs on or after the date six (6) months and one (1) day
following the date of Executive’s separation from service.  All
subsequent Deferred Payments, if any, will be payable in accordance with the
payment schedule applicable to each payment or
benefit.  Notwithstanding anything herein to the contrary, in the
event of Executive’s death following Executive’s separation from service but
prior to the six (6) month anniversary of Executive’s separation from service
(or any later delay date), then any payments delayed in accordance with this
paragraph will be payable in a lump sum as soon as administratively practicable
after the date of Executive’s death and all other Deferred Payments will be
payable in accordance with the payment schedule applicable to each payment or
benefit.  Each payment and benefit payable under the Agreement is
intended to constitute a separate payment for purposes of Section 1.409A-2(b)(2)
of the Treasury Regulations.

     

    (d)           Any
amount paid under this Agreement that satisfies the requirements of the
“short-term deferral” rule set forth in Section 1.409A-1(b)(4) of the Treasury
Regulations will not constitute Deferred Payments for purposes of clause (i)
above.  Any amount paid under this Agreement that qualifies as a
payment made as a result of an involuntary separation from service pursuant to
Section 1.409A-1(b)(9)(iii) of the Treasury Regulations that does not exceed the
Section 409A Limit will not constitute Deferred Payments for purposes of clause
(a) above.  “Section 409A
Limit” means the lesser of
two (2) times: (i) Executive’s annualized compensation based upon the annual
rate of pay paid to Executive during the Executive’s taxable year preceding the
Executive’s taxable year of Executive’s termination of employment as determined
under, and with such adjustments as are set forth in, Treasury
Regulation 1.409A-1(b)(9)(iii)(A)(1) and any Internal Revenue Service
guidance issued with respect thereto; or (ii) the maximum amount that may be
taken into account under a qualified plan pursuant to Section 401(a)(17) of
the Code for the year in which Executive’s employment is
terminated.

     

    (e)           The
foregoing provisions are intended to comply with, or be exempt from, the
requirements of Section 409A so that none of the severance payments and benefits
to be provided under the Agreement will be subject to the additional tax imposed
under Section 409A, and any ambiguities herein will be interpreted to so comply
or be exempt.  Executive and the Company agree to work together in
good faith to consider amendments to the Agreement and to take such reasonable
actions which are necessary, appropriate or desirable to avoid imposition of any
additional tax or income recognition prior to actual payment to Executive under
Section 409A.  In no event will the Company reimburse Executive for
any taxes that may be imposed on Executive as result of Section
409A.

     

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    IN
WITNESS WHEREOF, each of the parties has executed this Agreement, in the case of
the Company by their duly authorized officers, as of the day and year first
above written.

     

    COMPANY:

     

    CORNERSTONE
ONDEMAND, INC.

     

    


    
      
        
          
            
              
                
                  	
                          By:

                        	
                          /s/
      Adam Miller

                        	 
      	
                          Date:
      November 8, 2010

                        
	 	 	 
	
                          Adam
      Miller

                        	 
      	 
      
	
                          President
      and CEO

                        	 
      	 
      
	 
      	 
      	 
      
	 	 	 
	
                          EXECUTIVE:

                        	 
      	 
      
	 	 	 
	
                          /s/
      Dave Carter

                        	 
      	
                          Date:
      November 8, 2010

                        
	
                          Dave
      Carter

                        	 
      	 
      
	 
      	 
      	 
      


                

              

            

          

        

      

    

    


    


    


    


    


    [SIGNATURE
PAGE TO EMPLOYMENT AGREEMENT]


    
      
         


      

      
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