EXHIBIT 10.14
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 Bobby
Yazdani (“Executive”) and Saba Software, Inc., a
Delaware corporation (the “Company”), and amends and
restates in its entirety that Employment Agreement dated as of
February 1, 2006 (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 Executive
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
Executive Officer, reporting directly to the Board of Directors 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 Board of Directors, including but not limited
to those customarily performed by chief executive 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 Board of Directors of the Company 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 Board of Directors 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 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 four hundred thousand dollars ($400,000.00), 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.
2.2.
Bonus
. Executive will be eligible to receive bonuses totaling 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 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. 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 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.
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2.3. Stock Option . Executive has been
and may in the future be granted stock options to purchase shares
of the Company’s Common Stock at the market price in effect
on the date the Board of Directors approves the grant pursuant to
the Company’s standard form of Stock Option Agreement to be
entered into by and between Executive and the Company (the
“Stock Option Agreement”). Unless otherwise agreed by
the Board, future stock options will vest over the course of four
(4) years in 16 equal quarterly installments. Notwithstanding
anything set forth in any existing stock options or, unless any
future stock option contains language expressly modifying the
provisions of this Agreement, any future stock options, the
following additional provisions shall apply:
(a) Executive shall have until the
first to occur of the following to exercise any stock option held
by Executive on the date of termination of Executive’s
employment: (i) the expiration of the maximum term of such
option, (ii) the termination of the option in connection with
a Change in Control or similar event as provided in the applicable
option agreement and/or plan under which the option was granted, or
(iii) six (6) months from the date of termination of
Executive’s employment.
(b) Immediately prior to the
specified effective date of a Change of Control (as defined below)
pursuant to which a portion of any stock option is neither Assumed
(as defined below) nor Replaced (as defined below), such portion of
the stock option that is neither Assumed nor Replaced shall
automatically become fully vested and exercisable for all of the
shares at the time represented by such portion of the stock option;
provided that Executive’s employment has not terminated. In
such event, to the extent not exercised prior to the consummation
of such Change of Control, such portion of the stock option shall
terminate upon closing of the Change of Control pursuant to the
terms of the Company’s applicable Stock Incentive Plan. For
the purpose of this Section, the terms below shall have the
following meanings:
“Assumed” means that
pursuant to a Change of Control either (i) the stock option is
expressly affirmed by the Company or (ii) the contractual
obligations represented by the stock option are expressly assumed
(and not simply by operation of law) by the successor entity or its
parent in connection with the Change of Control with appropriate
adjustments to the number and type of securities of the successor
entity or its parent subject to the stock option and the exercise
or purchase price thereof which at least preserves the compensation
element of the stock option existing at the time of the Change of
Control as determined in accordance with the instruments evidencing
the agreement to assume the stock option.
“Replaced” means that
pursuant to a Change of Control the stock option is replaced with a
comparable stock award or a cash incentive program of the Company,
the successor entity (if applicable) or parent of either of them
which preserves the compensation element of such Award existing at
the time of the Change of Control and provides for subsequent
payout in accordance with the same (or a more favorable) vesting
schedule applicable to such stock option.
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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), 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.
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 Board of Directors of the Company, 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
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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 Termination 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”);
Termination shall be for “Good
Reason” if (i) 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; (ii) there is a
material reduction by the Company in Executive’s annual base
salary or target compensation then in effect without
Executive’s consent; (iii) Executive’s principal
work location is relocated outside of the San Francisco Bay Area
without Executive’s consent or (iv) there is a Change of
Control. 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. 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 (if capable of remedy).
“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
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(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).
4.3.1. 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) 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, including nonconsecutive months, 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”), and (ii) an amount equal
to the product of (x) the quotient of the number of Severance
Months divided by 12, and (y) the Target Bonus amount (the
“Bonus Severance 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.
4.3.2. 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 options described in
Section 2.3, shall vest and become immediately
exercisable.
4.3.3. Group Medical Coverage . The
Company shall, following the Executive’s timely election,
provide the Executive with continued coverage for one year after
termination of Executive’s employment under the
Company’s group health insurance plans in effect upon
termination of Executive’s employment without Cause or for
Good Reason in
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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 one year period, then the Company shall pay
Executive each month during which CO