EXHIBIT 10.21
AMENDED AND RESTATED EMPLOYMENT
AGREEMENT
This Amended and Restated Employment
Agreement (the “Agreement”) is entered into as of April
8, 2009 (the “Effective Date”) by and between William
Slater (“Executive”) and Saba Software, Inc., a
Delaware corporation (the “Company”), and amends and
restates in its entirety that Employment Agreement dated as of
December 8, 2008 (the “Existing
Agreement”).
R E C I T A L
S
A. Executive and the Company entered
into the Existing Agreement to set forth the terms of
Executive’s employment with the Company as Chief Financial
Officer.
B. The Company believes that
maintaining sound management is essential to protect and enhance
the best interests of the Company and its stockholders.
C. The Company desires assurance of
the continued association and services of Executive in order to
retain Executive’s experience, skills, abilities, background
and knowledge, and is willing to engage Executive’s services
on the terms and conditions set forth in this Agreement.
E. Executive desires to continue to
be in the employ of the Company, and is willing to accept such
employment on the terms and conditions set forth in this
Agreement.
F. Executive and the Company desire
to amend and restate the Existing Agreement upon the terms and
conditions more fully set forth herein.
A G R E E M E N
T
NOW, THEREFORE, based on the
foregoing recitals and in consideration of the commitments set
forth below, Executive and the Company agree as follows:
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1.
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Term,
Position, Duties and Responsibilities
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1.1. Term .
The Company hereby employs Executive
to render services to the Company in the position of Chief
Financial Officer, reporting directly to the Chief Executive
Officer of the Company, for the period commencing on the Effective
Date and ending on the date Executive’s employment is
terminated under this Agreement (the “Term”). The
Company and Executive hereby acknowledge that either of them may
terminate Executive’s term of Employment for any reason or no
reason at all.
1.2. Position .
The duties of this position shall
include such duties and responsibilities as are reasonably assigned
to Executive by the Chief Executive Officer, including but not
limited to those customarily performed by chief financial officers
of similarly situated corporations. Executive agrees to serve in a
similar capacity for the benefit of any of the Company’s
direct or indirect, wholly-owned or partially-owned subsidiaries or
affiliates. Additionally, Executive shall serve in such other
capacity or capacities as the Chief Executive Officer may from time
to time prescribe. During his employment by the Company, Executive
shall, subject to Section 1.3, devote his full energies,
interest, abilities and productive time to the proper and efficient
performance of his duties under this Agreement.
1.3. Other Activities
. Except upon the prior
written consent of the Chief Executive Officer of the Company,
Executive will not (i) accept any other employment, or
(ii) engage, directly or indirectly, in any other business
activity (whether or not pursued for pecuniary advantage) that is
or may be in conflict with, or that might place Executive in a
conflicting position to that of, the Company. Notwithstanding the
foregoing, Executive shall be permitted to engage in occasional
professional or charitable activities outside the scope of his
employment with the Company so long as such activities (A) do
not conflict with the actual or proposed business of the Company or
any of its subsidiaries or affiliates, and (B) do not affect
the performance of his duties hereunder. In addition, subject to
the prior written consent of the Chief Executive Officer and the
Board of Directors of the Company and subject to Executive’s
fiduciary duties to the Company, Executive shall be permitted to
serve as a director of other corporations provided that their
businesses are not competitive with the actual or proposed business
of the Company or any of its subsidiaries or affiliates and
provided further that Executive’s service as a director of
such other corporations does not interfere with his performance of
his duties hereunder. Any such prior written consent may be
subsequently revoked in the event that the Board of Directors
determines, in good faith, that Executive’s position as a
director of any such other corporation has developed into a
conflict of interest.
1.4. Proprietary
Information . Executive recognizes that his employment with
the Company will involve contact with information of substantial
value to the Company, which is not generally known in the trade,
and which gives the Company an advantage over its competitors who
do not know or use it. Executive has previously executed and
delivered to the Company a copy of the Company’s standard
form of Employee Proprietary Information and Inventions Agreement
(the “Employee Proprietary Information and Inventions
Agreement”).
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2.
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Compensation
of Executive
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2.1. Base Salary
. In consideration of the
services to be rendered under this Agreement, while employed by the
Company, Company shall pay Executive an initial base annual salary
of two hundred seventy thousand dollars ($270,000.00), less
standard deductions and withholdings, payable in regular periodic
payments in accordance with Company payroll policy. Such salary
shall be prorated for any partial month of employment on the basis
of a 30-day fiscal month. Such base salary shall be subject to
annual review by the Board of Directors in consultation with the
Chief Executive Officer.
2.2. Bonus .
Executive will be eligible to
receive bonuses totaling fifty percent (50%) of his base
salary annually (such annual amount, the “Target
Bonus”), the exact amount of each such bonus to be determined
by the Board of Directors in consultation with the Chief Executive
Officer based upon Executive achieving certain performance criteria
and the Company achieving specific financial goals, in each case to
be determined by the Board of Directors in consultation with the
Chief Executive Officer. Any such bonus shall be payable at the
direction of the Board of Directors either after the end of the
fiscal year or quarterly after the end of each fiscal quarter, and
shall be prorated for partial fiscal periods. Such bonuses shall
in
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no event be paid
later than 2 1 / 2 months after the close of the
Company’s fiscal year in which such bonus was earned. In
addition, Executive shall be eligible for such additional bonuses
as may be awarded by the Board of Directors in its sole discretion
from time to time in consultation with the Chief Executive
Officer.
2.3. Stock Option
. Executive has been
granted a stock option to purchase 300,000 shares of the
Company’s Common Stock at the market price in effect on the
date the Board of Directors approved the grant pursuant to the
Company’s standard form of Stock Option Agreement (the
“Stock Option Agreement”). Twenty-five percent
(25%) of the shares subject to the stock option will vest on
the one (1) year anniversary of the Effective Date and the
remaining seventy-five percent of the shares subject to the stock
option will vest in 12 equal quarterly installments with the first
installment vesting one quarter after the first anniversary of the
Effective Date of this employment agreement. Vested options subject
to the Stock Option Agreement will remain exercisable for a period
of six (6) months after Executive’s termination of
employment other than for Cause, subject to the terms of the stock
option.
2.4. Benefits .
Executive shall be entitled to
participate in the Company’s group medical, dental, life
insurance, 401(k), deferred compensation or other benefit plans and
programs on the same terms and conditions as other members of the
Company’s senior executive management. Executive shall be
provided such perquisites of employment, including at least four
(4) weeks paid vacation, and all paid holidays and sick leave
as are provided to all other members of the Company’s senior
executive management. Executive shall be entitled to reimbursement
of all reasonable expenses incurred by Executive in the performance
of his duties hereunder, in accordance with the policies and
procedures established by the Company from time to time, and as may
be amended from time to time.
Company or Executive may terminate
Executive’s employment with Company at any time for any
reason, including no reason at all, notwithstanding anything to the
contrary contained in or arising from any statements, policies, or
practices of Company relating to the employment, discipline, or
termination of its employees. This at-will employment relationship
cannot be changed except in writing signed by a duly authorized
officer of the Company other than Executive. This Section 3
shall survive any termination or expiration of this
Agreement.
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4.
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Termination
of Employment
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4.1. Termination by
Executive . Executive
may terminate his employment upon notice to the Company. In the
event that Executive elects to terminate his employment other than
for Good Reason (as defined below) in accordance with
Section 4.3 or 4.4, the Company shall pay Executive all base
salary due and owing and all other accrued but unpaid benefits
(e.g., accrued vacation) through the last day actually worked and
thereafter the Company’s obligations under this Agreement
shall terminate.
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4.2. Termination by the
Company for Cause . In the event that the Company terminates
Executive’s employment for Cause, the Company shall pay
Executive all base salary due and owing and all other accrued but
unpaid benefits (e.g., accrued vacation) through the last day
actually worked and thereafter the Company’s obligations
under this Agreement shall terminate. For the purposes of this
Agreement, termination shall be for “Cause” if
(i) Executive refuses or fails to act in accordance with any
lawful order or instruction of the Chief Executive Officer, and
such refusal or failure to act has not been cured within 30 days of
notice of such disobedience, (ii) Executive fails to devote
reasonable attention and time during normal business hours to the
business affairs of the Company or Executive is reasonably
determined by the Board of Directors to have been unfit (other than
as a result of an Incapacity), unavailable for service (other than
as a result of an Incapacity) or grossly negligent in connection
with the performance of his duties on behalf of the Company, which
unfitness, unavailability or gross negligence has not been cured
within 30 days of notice of the same; (iii) Executive is
reasonably determined by the Board of Directors to have committed a
material act of dishonesty or willful misconduct or to have acted
in bad faith to the material detriment of the Company in connection
with the performance of his duties on behalf of the Company;
(iv) Executive is convicted of a felony or other crime
involving dishonesty, breach of trust, moral turpitude or physical
harm to any person, or (v) Executive materially breaches any
agreement with the Company which breach has not been cured within
30 days notice of the same. For purposes of this Agreement, the
term “without Cause” shall mean termination of
Executive’s employment for reasons other than for
“Cause.”
4.3. Termination by the
Company without Cause or by Executive for Good Reason
. In the event that the
Company terminates Executive’s employment without Cause or
Executive terminates his employment for Good Reason, and in either
case a Separation (as defined below) occurs, the Company shall pay
Executive all base salary due and owing and all other accrued but
unpaid benefits (e.g., accrued vacation) through the last day
actually worked, and Executive shall be entitled to receive the
severance payments and benefits set forth below in this
Section 4.3; provided, however, that such severance and
benefits are conditioned on Executive’s execution and
non-revocation of a release agreement, the form of which is
attached hereto as Exhibit A , and thereafter the
Company’s obligations under this Agreement shall terminate.
Executive shall execute and return such release agreement no later
than sixty (60) days from the date of Executive’s
Separation (the “Release Date”). For purposes of this
Agreement, the term “Separation” shall mean a
“separation from service,” as defined in the
regulations under Section 409A of the Internal Revenue Code of
1986, as amended (the “Code”).
4.3.1. Target Bonus and Base
Salary . On the date
of the termination of Executive’s employment, the Company
shall pay to Executive, in a single lump-sum payment, subject to
standard deductions and withholdings, Executive’s Target
Bonus for any partially completed bonus period, as if the
applicable performance criteria and Company financial goals had
been achieved completely, pro rated based on the number of days
actually elapsed through the date of termination in the bonus
period in which such termination occurs. In addition, the Company
shall pay to Executive an amount equal to that number of months of
Executive’s then current base salary equal to the sum of six
(6) months plus one month for every twelve month period
Executive has been employed by the Company prior to the date of
termination (which sum shall not exceed twelve (12) months)
(collectively, the “Severance Months”), less all
applicable standard deductions and withholdings. Such amount
payable in
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accordance with the preceding
sentence shall be payable in the form of salary continuation.
Subject to timely receipt by the Company of the executed release
agreement, the first payment of any such salary continuation shall
be made within ten (10) days after the Release Date and shall
include any salary continuation payments that accrued to Executive
post-termination of employment but that were not paid pending
receipt of the executed release agreement.
4.3.2. Group Medical
Coverage . The
Company shall, following the Executive’s timely election,
provide the Executive with continued coverage, for that number of
months after termination of Executive’s employment equal to
the number of Severance Months, under the Company’s group
health insurance plans in effect upon termination of
Executive’s employment in accordance with the provisions of
the Consolidated Omnibus Budget Reconciliation Act of 1985
(“COBRA”), at no cost to Executive. If COBRA or similar
benefits are not available by law during any portion of the
remainder of such six-month period, then the Company shall pay
Executive each month during which COBRA or similar benefits are not
available by law an amount equal to the premium paid by Executive
for the last month during which such COBRA or similar benefits were
available.
4.3.3. Acceleration of Vesting
of Stock Option . On
the date of Executive’s termination of employment, the
vesting of the shares subject to any stock option then held by
Executive, including without limitation the option described in
Section 2.4, shall accelerate as though Executive had remained
in employment for an additional twelve (12) months.
4.4. Termination by the
Company without Cause or by Executive for Good Reason at the Time
of or within 12 Months After a Change of Control .
In the event that, at the time of or
within twelve (12) months after a Change of Control (as
defined below), the Company terminates Executive’s employment
without Cause or Executive terminates his employment for Good
Reason, and in either case a Separation occurs, the Company shall
pay Executive all base salary due and owing and all other accrued
but unpaid benefits (e.g., accrued vacation) through the last day
actually worked, and Executive shall be entitled to receive the
severance payments and benefits set forth below in this
Section 4.4; provided, however, that such severance and
benefits are conditioned on Executive’s execution and
non-revocation of a release agreement, the form of which is
attached hereto as Exhibit A , and thereafter the
Company’s obligations under this Agreement shall terminate.
Executive shall execute and return such release agreement no later
than the Release Date. Executive agrees that he may be required to
travel from time to time as required by the Company’s
business and that such travel shall not constitute grounds for
Executive to terminate his employment for Good Reason. For the
purposes of this Agreement:
“Good Reason” means any
of the following by the Company or any successor with respect to
Executive: (1) a material reduction in salary or target
compensation without Executive’s consent; (2) the
relocation of work location to a location more than fifty miles
from the Company’s current work location without
Executive’s consent; or (3) there is a material
diminution of Executive’s responsibilities with the Company,
or a material change in Executive’s reporting
responsibilities or title, in each case without Executive’s
consent. A condition shall not be considered “Good
Reason” unless Executive gives the Company written notice of
such condition within ninety (90) days after such condition
comes into existence and the Company fails to remedy such condition
within thirty (30) days after receiving Executive’s
written notice.
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“Change of Control”
means the occurrence of any of the following events:
(i) The sale, exchange, lease or
other disposition or transfer of all or substantially all of the
consolidated assets of the Company to a person or group (as such
terms are defined or described in Sections 3(a)(9) and 13(d)(3) of
the Securities Exchange Act of 1934, as amended (the
“Exchange Act”)) which will continue the business of
the Company in the future; or
(ii) A merger or consolidation
involving the Company in which the shareholders of the Company
immediately prior to such merger or consolidation are not the
beneficial owners (within the meaning of Rules 13d-3 and 13d-5
promulgated under the Exchange Act) of more than 50% of the total
voting power of the outstanding voting securities of the
corporation resulting from such transaction in substantially the
same proportion as their ownership of the total voting power of the
outstanding voting securities of the Company immediately prior to
such merger or consolidation; or
(iii) The acquisition of beneficial
ownership (within the meaning of Rules 13d-3 and 13d-5 promulgated
under the Exchange Act) of at least 50% of the total voting power
of the outstanding voting securities of the Company by a person or
group (as such terms are defined or described in Sections 3(a)(9)
and 13(d)(3) of the Exchange Act).
For purposes of this
Section 4.4, the term Company shall include any successor to
Saba Software, Inc., a Delaware corporation.
4.4.1. Target Bonus and Base
Salary . On the date
of the termination of Executive’s employment, the Company
shall pay to Executive, or to Executive’s beneficiaries or
estate as appropriate, in a single lump-sum payment, subject to
standard deductions and withholdings, Executive’s Target
Bonus for any partially completed bonus period, as if the
applicable performance criteria and Company financial goals had
been achieved completely, pro rated based on the number of days
actually elapsed through the date of termination in the bonus
period in which such termination occurs. In addition, the Company
shall pay to Executive, or to Executive’s beneficiaries or
estate, as appropriate, the sum of (i) twelve (12) months
of Executive’s then current base salary , and (ii) the
Target Bonus amount, less all applicable standard deductions and
withholdings. Such amounts payable in the preceding sentence shall
be payable in the form of salary continuation (with amounts
attributable to the Target Bonus prorated monthly). Subject to
timely receipt by the Company of the executed release agreement,
the first payment of any such salary continuation shall be made
within ten (10) days after the Release Date and shall include
any salary continuation payments (including amounts attributable to
the Target Bonus) that accrued to Executive post-termination of
employment but that were not paid pending receipt of the executed
release agreement.
4.4.2. Acceleration of Vesting
of Stock Option . On
the date of termination of Executive’s employment, 100% of
the shares subject to any stock option then held by Executive,
including without limitation, the option described in
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