Netscout Systems Inc 8-K Exhibit 10.1


     

    Exhibit
      10.1

     

    SEPARATION
      AGREEMENT


     

    
      	 	 January 3, 2007


    

     

    


    Mr.
      Narendra Popat

    [Intentionally
      omitted]

    


     

    Dear
      Narendra:

     

    In
      consideration for your long-term contributions to NetScout Systems, Inc.
      (“NetScout”) and in connection with the termination of your employment
      contemplated herein, this letter agreement outlines and confirms the terms
      and
      conditions of severance and other benefits being offered to you as a result
      of
      your separation from employment with NetScout.

    


    1. Termination.
      Your employment with NetScout will terminate as of 5:00 p.m. on January 19,
      2007
      (the “Separation Date”).

     

    2. Advisor
      to CEO. 
      Until the third anniversary of the date hereof, you will act as advisor to
      the
      current CEO of NetScout, Anil Singhal, at reasonable times by telephone or
      in
      person by mutual agreement, to respond to inquiries regarding matters in which
      you were involved during your employment with NetScout. Your role as an advisor
      shall immediately terminate if NetScout is sold, whether by merger, sale of
      assets or otherwise, or if Anil Singhal ceases to serve as the CEO of
      NetScout.

     

    3. Severance
      Payments and Benefits.
      Until the day that you turn 65 years of age, provided that you (a) sign this
      Agreement and (b) comply with the provisions of this Agreement (subject to
      Section 12(a) below), NetScout will provide you with the following payments
      and
      benefits:

     

    a) Severance.
      NetScout will pay you severance of $16,208 per month, minus any withholdings
      as
      required by law. Such payments will be paid concurrently with NetScout’s
      ordinary payroll, but no less than monthly. This severance will be paid to
      you
      no later than the 15th
      day of each calendar month beginning on the month following your Separation
      Date. In order to provide for a cost of living increase with respect to certain
      benefits to be borne by you that the monthly payments under this Section 3(a)
      are intended to cover, $4,443 of such monthly 

    

      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

          Mr.
            Narendra Popat

          January
            3, 2007

          Page
            2

           

        

      

payments
      will be adjusted on
      January 1, 2008 and, with respect to such adjusted amount, on January 1 of
      each
      following calendar year in which NetScout is required to make such payments
      by
      the percentage change in the Consumer Price Index (CPI-U), U.S. City Average,
      all items, published
      by the United States Bureau of Labor Statistics, during the immediately
      preceding calendar year.
      The foregoing notwithstanding, any adjustment due to the percentage change
      in
      the CPI-U shall not decrease any payments to be made pursuant to this
      Section.

     

    b) Benefits.
      NetScout will either (a) continue your coverage under NetScout’s group health,
      dental and vision plans at no expense to you or (b) will pay for you to obtain
      similar and comparable benefits. 

     

    c) Executive
      Assistant and Office Space.
      During the period in which you are providing advisory services under this
      Agreement, NetScout will provide you with office space and provide you with
      access to an executive assistant.  

     

    d) Section
      409A Prohibited Payments.
      In order to comply with Section 409A of the Internal Revenue Code of 1986,
      as
      amended (the “Code”),
      for
      the period from June 15, 2007 through June 30, 2007, NetScout will not make
      any
      payments to you that are taxable under the Code, and NetScout will make any
      such
      payments you were otherwise entitled to during such period under this Agreement
      on July 1, 2007.

     

    4. Other
      Payments.
      

     

    a) FY
      2007 Bonus.
      With respect to the period that you were employed by NetScout during its fiscal
      year 2007, you will be eligible to receive a fiscal year 2007 year-end bonus
      based on Company performance and other objectives as determined and awarded
      by
      the Board of Directors, which bonus shall be paid at the same time or times
      as
      other executive level officers of NetScout, other than from June 15, 2007
      through June 30, 2007, but in no event later than December 31,
      2007.

     

    b) Vacation.
      NetScout will pay you the balance of your vacation days accrued but not yet
      taken as of the Separation Date, minus tax withholdings as required by
      law.

     

    5. Death
      Before Age 65.
      In the event that you die before the age of 65, until the date that you would
      have turned 65:

     

    a) NetScout
      will pay the balance of the severance payments payable under Section 3(a) of
      this Agreement to your wife (or in the event of your wife’s death, your estate)
      in a lump sum on a net present value basis in a matter mutually agreed by
      NetScout and Mr. Popat’s survivors. NetScout will make such lump sum payment (i)
      if you die before November 1 of the year of your death, not later than December
      31 of such year, provided that NetScout will make such payment within thirty
      (30) days after written notice of your death, or the death of your wife, if
      such
      notice is given prior to November 1 of such year or (ii) if you die on or after
      

    

      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

          Mr.
            Narendra Popat

          January
            3, 2007

          Page
            3

           

        

      

November 1 of the year of your death,
      on the earliest date reasonably practicable in the following January.

     

    b) NetScout
      will continue to provide your wife and children with group health, dental and
      vision benefits at no expense to them, to the extent they are eligible for
      coverage under such group plans, or will pay for them to obtain similar and
      comparable benefits for as long as they would have been eligible for coverage
      if
      you had continued to work as an employee of NetScout until you turned 65.


     

    6. Confidential
      Information; Return of Company Property.
      You agree to treat as strictly confidential all proprietary and other
      confidential information of NetScout, and to not at any time, without NetScout’s
      prior written consent, reveal or disclose to any person outside of NetScout,
      or
      use for your own benefit or for the benefit of any other person or entity,
      any
      confidential information concerning NetScout’s business, clients, or employees.
      Confidential information includes, without limitation, financial information,
      reports, forecasts, intellectual property, trade secrets, know-how, software,
      market or sales information and plans, client lists, business plans, prospects
      and opportunities. All documents, records, materials, computers, software,
      equipment, office entry keys, credit cards and other physical property, and
      all
      copies of the same that have come into your possession or been produced by
      you
      in connection with your employment, have been and remain the sole property
      of
      NetScout. You agree that you will return all such property to NetScout, or
      certify its destruction, no later than the third anniversary of the date
      hereof.

     

    7. General
      Release of Claims.
      In consideration of the promises made in this Agreement, you on behalf of
      yourself and your heirs, executors, administrators and assigns, hereby release
      and forever discharge NetScout and its parents and affiliates, and each of
      their
      respective officers, directors, employees, agents, successors and assigns (the
      “Released Parties”), from any and all suits, claims, demands, debts, sums of
      money, damages, interest, attorneys’ fees, expenses, actions, causes of action,
      judgments, accounts, promises, contracts, agreements, and any and all claims
      of
      law or in equity, whether now known or unknown, which you now have or ever
      have
      had against the Released Parties, or any of them, including, but not limited
      to,
      any claims under Title VII of the Civil Rights Act of 1964, the Americans With
      Disabilities Act, the Age Discrimination in Employment Act of 1967, the Older
      Workers Benefit Protection Act, the Family and Medical Leave Act, Mass. G.L.
      c.
      148 and 151B, and any other federal, state or local statute, regulation,
      ordinance or common law creating employment-related causes of action, and all
      claims related to or arising out of your employment or your separation from
      employment with NetScout. Nothing in this General Release shall prevent you
      from
      seeking to enforce your rights under this Agreement and your rights under the
      Indemnification Agreement between you and NetScout dated as of September 13,
      2006.

     

    8. Second
      General Release of Claims.
      You agree that, on your Separation Date, you will sign and deliver to NetScout
      a
      second General Release of Claims containing substantially the same provisions
      of
      Section 7 with such changes as may be necessary or deemed desirable by


    

      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

          Mr.
            Narendra Popat

          January
            3, 2007

          Page
            4

           

        

      

NetScout because of changes in
      applicable law, releasing NetScout and its parents and affiliates, and each
      of
      their respective officers, directors, employees, agents, successors and assigns
      from any and all claims that may have arisen between the date you sign this
      Agreement and the third anniversary of the date hereof. Your eligibility to
      continue to receive the severance and benefits described in Section 3 is
      conditional upon your signing and delivering to NetScout this second General
      Release of Claims as provided in this Section 8. Nothing in this Second General
      Release shall prevent you from seeking to enforce your rights under this
      Agreement and your rights under the Indemnification Agreement between you and
      NetScout dated as of September 13, 2006.

     

    9. Affirmation
      of Continuing Obligations.
      You hereby acknowledge and reaffirm your continuing obligations under the
      Non-Competition Agreement dated January 15, 1999 between you and
      NetScout.

     

    10. Confidentiality
      of Agreement.
      Unless your public disclosure of this Agreement is required, you agree to keep
      strictly confidential, not to make public and not to disclose to anyone in
      any
      manner the terms of this Agreement except to your immediate family or other
      heirs entitled to a benefit hereunder, state and federal tax authorities, your
      attorneys, tax preparers, accountants or other professional advisers, and as
      may
      be necessary to enforce this Agreement or upon court order.

     

    11. CONSULTATION
      WITH COUNSEL; TIME FOR SIGNING; REVOCATION.
      YOU
      HAVE THE RIGHT TO CONSULT WITH AN ATTORNEY OF YOUR OWN CHOICE PRIOR TO SIGNING
      THIS AGREEMENT. YOU HAVE UNTIL TWENTY-ONE (21) DAYS FROM YOUR RECEIPT OF THIS
      AGREEMENT TO DECIDE WHETHER TO SIGN IT. YOU WILL HAVE SEVEN (7) DAYS AFTER
      SIGNING THIS AGREEMENT TO REVOKE YOUR SIGNATURE. IF YOU INTEND TO REVOKE YOUR
      SIGNATURE, YOU MUST DO SO IN WRITING ADDRESSED AND DELIVERED TO ME PRIOR TO
      THE
      END OF THE 7-DAY REVOCATION PERIOD. THIS
      AGREEMENT SHALL NOT BE EFFECTIVE, AND NEITHER NETSCOUT NOR YOU SHALL HAVE ANY
      RIGHTS OR OBLIGATIONS HEREUNDER, UNTIL THE EXPIRATION OF THE 7-DAY REVOCATION
      PERIOD.

     

    12. General
      Provisions.

     

    a) Right
      to Cure.
      NetScout will provide you with written notice in the event that it determines
      you have failed to comply with the provisions of this Agreement, and you shall
      have 30 business days to cure any such noncompliance after delivery of such
      written notice to you.

     

    b) Severability.
      You agree that if any of the provisions of this Agreement are declared or
      determined by any court to be illegal or invalid, the validity of the remaining
      parts, terms or provisions shall not be affected.

    


    
      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

          Mr.
            Narendra Popat

          January
            3, 2007

          Page
            5

           

        

      

    

     

    c) Enforcement;
      Applicable Law; Jurisdiction.
      This Agreement is intended to operate as a contract under seal and shall be
      governed by and construed in accordance with the laws of the Commonwealth of
      Massachusetts. You hereby agree that any dispute concerning or arising out
      of
      this Agreement shall be brought in any court of competent jurisdiction within
      the Commonwealth of Massachusetts, and you hereby consent to jurisdiction in
      such courts.

     

    d) Entire
      Agreement; No Representations.
      This Agreement constitutes the entire agreement between you and NetScout
      concerning the terms and conditions of your separation from employment with
      NetScout and supersedes all prior and contemporaneous agreements,
      understandings, negotiations and discussions, whether oral or written, between
      you and NetScout, except as provided in Section 9 and except as provided under
      the Indemnification Agreement between you and NetScout dated as of September
      13,
      2006. You agree that NetScout has not made any statements or promises to you
      regarding the meaning or implication of any provision of this Agreement other
      than as stated herein.

     

    e) Modification
      and Waiver.
      This Agreement may be amended or modified only in a writing signed by you and
      an
      authorized representative of NetScout. The failure of you or NetScout at any
      time to require the performance of any provision of this Agreement shall in
      no
      manner affect either party’s right at a later time to enforce the same
      provision.

     

    f) Section
      409A.
      It is the intention of the parties that no payment or entitlement pursuant
      to
      this Agreement will give rise to any adverse tax consequences to any person
      pursuant to Section
      409A of the Code. Notwithstanding any provision in this Agreement to the
      contrary, this Agreement shall be interpreted, applied and to the minimum extent
      necessary, amended, so that this Agreement does not fail to meet, and is
      operated in accordance with, the requirements of Section 409A of the Code.
      It is
      the intent of the parties that any such amendment will give you substantially
      the same economic value as contained in this Agreement. Any
      reference in this Agreement to Section 409A of the Code shall also include
      any
      proposed, temporary or final regulations, or any other guidance, promulgated
      with respect to such Section by the U.S. Department of the Treasury or the
      Internal Revenue Service.

     

    g) Successors
      and Assigns.
      All of the terms and conditions hereof shall be for and inure to the benefit
      of
      and shall bind the successors and assigns of NetScout. NetScout shall cause
      any
      successor to NetScout’s business (whether by merger, consolidation, sale of
      assets or otherwise) to agree to be bound by NetScout’s obligations under this
      Agreement, including, without limitation, this Section 12(g).

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

        Mr.
          Narendra Popat

        January
          3, 2007

        Page
          6

         

      

    


    Please
      indicate your understanding and acceptance of this Agreement by signing and
      returning one copy to me. The other copy is for your records.

     

    


     

    
      	 	
              Very
                truly yours,

               

               

              /s/
                Anil Singhal

              Anil
                Singhal

              CEO

              NetScout
                Systems, Inc.

            
	 	 
	
              Accepted
                and Agreed:

            	 
	 	 
	
              /s/
                Narendra
                Popat                         
                

              Narendra
                Popat

            	
              Dated:
                January 3, 2007