Exhibit 10.53
E MPLOYMENT A GREEMENT
T HIS A GREEMENT is
entered into as of July 21, 2008, by and between
A HMED
R
UBAIE (the “Employee”) and A
RIBA , I NC . , a
Delaware corporation (the “Company”).
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D
UTIES AND S COPE OF E MPLOYMENT .
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(a) Position . The
Employee’s employment hereunder (the
“Employment”) shall commence on the date of this
Agreement. Effective August 10, 2008, the Employee shall be
employed in the position of Executive Vice President and Chief
Financial Officer. The Employee shall report to the Chief Executive
Officer of the Company. The Employee shall have such duties and
responsibilities as the Company may reasonably assign to him that
are commensurate with his title and position with the Company. The
Employee’s principal place of Employment shall be determined
by the Company’s Chief Executive Officer.
(b) Obligations to the
Company . During his Employment, the Employee shall devote his
full business efforts and time to the Company. During his
Employment, without the prior written approval of the Company, the
Employee shall not render services in any capacity to any other
person or entity and shall not act as a sole proprietor or partner
of any other person or entity or as a shareholder owning more than
five percent of the stock of any other corporation. The Employee
shall comply with the Company’s policies and rules, as they
may be in effect from time to time during his Employment.
Notwithstanding the foregoing, nothing herein shall preclude the
Employee from (i) serving on the boards of directors of a
reasonable number of trade associations and/or charitable
organizations, (ii) engaging in charitable activities and
community affairs and (iii) managing his personal investments
and affairs, provided that such activities do not materially
interfere with the proper performance of his duties and
responsibilities as set forth in Subsection (a)
above.
(a) Salary . The Company
shall pay the Employee as compensation for his services a base
salary at a gross annual rate of not less than $400,000. Such
salary shall be payable in accordance with the Company’s
standard payroll procedures. (The annual compensation specified in
this Subsection (a), together with any increases in such
compensation that the Company may grant from time to time, is
referred to in this Agreement as the “Base
Salary.”)
(b) Signing Bonuses . Within
30 days after the Employee’s first day of Employment, the
Company shall pay him $100,000 in a lump sum in cash. Within six
months after the Employee’s first day of Employment (on a
date determined by the Company at its sole discretion), the Company
shall pay him an additional $100,000 in a lump sum in cash. The
Employee shall immediately repay all amounts that he received under
this Subsection (b) if he resigns his position with the
Company within six months after his first day of
Employment.
(c) Incentive Bonuses .
Commencing with fiscal year 2009, the Employee shall be eligible to
be considered for an annual incentive bonus with a target amount of
not less than $200,000. The bonus shall be paid in accordance with
the Company’s generally applicable bonus payment procedures
for similarly situated employees. The bonus shall be awarded based
on the criteria established by the Company and communicated to the
Employee during the first quarter of the applicable fiscal year.
Except as otherwise provided in the Agreement, the Employee shall
not be entitled to an incentive bonus if he is not employed by the
Company on the date when such bonus is payable in accordance with
the Company’s generally applicable bonus payment procedures
for similarly situated employees.
Solely with respect to fiscal year
2009, the Employee’s incentive bonus shall not be less than
$150,000, of which $50,000 shall be payable in November 2008 and
$100,000 shall be payable in June 2009 (collectively, the
“Advance Payments”). The Employee shall not be entitled
to an Advance Payment if he is not employed by the Company on the
date when such Advance Payment is due. The amount of the Advance
Payments shall be subtracted from the final incentive bonus earned
by the Employee for Fiscal Year 2009.
(d) Initial Equity Award .
Subject to the approval of the Compensation Committee of the
Company’s Board of Directors, the Employee shall receive
restricted stock units (the “RSUs”) representing shares
of the Company’s Common Stock (the “Stock”) with
a market value equal to $1,400,000, rounded off to the nearest
whole share. For this purpose, the market value per share of Stock
shall be deemed to be equal to the average of the closing prices on
the 30 consecutive trading days immediately preceding the date of
grant, as reported by The Wall Street Journal . The RSUs
shall be subject to the terms and conditions applicable to stock
units granted under the Company’s 1999 Equity Incentive Plan
(the “Plan”), as described in the Plan and in the
applicable Stock Unit Agreement. The Employee shall vest in
one-third of the RSUs after 12 months from the vesting commencement
date provided his service is continuous from his first date of
employment, an additional one-third of the RSUs after 24 months
from the vesting commencement date provided his service is
continuous from his first date of employment, and the remaining
one-third of the RSUs after 36 months from the vesting commencement
date provided his service is continuous from his first date of
employment, as described in the applicable Stock Unit
Agreement.
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3.
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V
ACATION AND E MPLOYEE B ENEFITS .
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During his Employment, the Employee
shall be eligible for paid vacations in accordance with the
Company’s vacation policy for similarly situated employees,
as it may be amended from time to time. During his Employment, the
Employee shall be eligible to participate in the retirement,
medical, dental, vision, life insurance, disability, tuition
assistance and other benefit and fringe benefit plans
(collectively, the “Employee Benefit Plans”) maintained
by the Company for similarly situated employees, subject in each
case to the generally applicable terms and conditions of the plan
in question and to the determinations of any person or committee
administering such Employee Benefit Plan.
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4.
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B
USINESS AND R ELOCATION E XPENSES .
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(a) Business Expenses .
During his Employment, the Employee shall be authorized to incur
necessary and reasonable travel, entertainment and other business
expenses in connection with his duties hereunder. The Company shall
reimburse the Employee for such expenses upon presentation of an
itemized account and appropriate supporting documentation, all in
accordance with the Company’s generally applicable policies
for similarly situated employees.
(b) Relocation Expenses . The
Company shall reimburse the Employee for the reasonable expenses of
relocating himself, his family and his household to his principal
place of Employment, as determined by the Company’s Chief
Executive Officer. Eligibility for reimbursement shall be
determined in accordance with the Company’s relocation policy
for similarly situated employees.
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5.
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T
ERM OF E MPLOYMENT .
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(a) Termination of Employment
. The Company may terminate the Employee’s Employment at any
time and for any reason (or no reason), and with or without cause,
by giving the Employee 30 days’ advance notice in writing.
The Employee may terminate his Employment at any time and for any
reason (or no reason) by giving the Company 30 days’ advance
notice in writing. The Employee’s Employment shall terminate
automatically in the event of his death. The termination of the
Employee’s Employment shall not limit or otherwise affect his
obligations under Section 8.
(b) Employment at Will . The
Employee’s Employment with the Company shall be “at
will.” Any contrary representations that may have been made
to the Employee shall be superseded by this Agreement. This
Agreement shall constitute the full and complete agreement between
the Employee and the Company on the “at will” nature of
the Employee’s Employment, which may only be changed in an
express written agreement signed by the Employee and a duly
authorized officer of the Company.
(c) Rights upon Termination .
Except as expressly provided in Sections 6 and 7, upon
the termination of the Employee’s Employment, the Employee
shall only be entitled to the compensation, benefits and expense
reimbursements that the Employee has earned under this Agreement
before the effective date of the termination. The payments under
this Agreement shall fully discharge all responsibilities of the
Company to the Employee.
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6.
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T
ERMINATION
B ENEFITS (N O C HANGE IN C ONTROL ).
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(a)
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Qualifying
Terminations . This
Section 6 shall only apply if:
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(i)
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Section 7
does not apply;
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(ii) A Separation
occurs because the Company terminates the Employee’s
Employment for a reason other than Cause or Permanent
Disability; 1 and
(iii) Either (A) the Employee
and the Company have executed a reciprocal general release (in the
form attached hereto as Exhibit A ) of all known and
unknown claims that they may then have against each other and have
agreed not to prosecute any legal action or other proceeding based
on such claims or (B) the Company (at its sole discretion) has
determined within 30 days after the Separation to waive the
requirement of a reciprocal general release. Absent a waiver by the
Company, the Company shall complete the form of release and deliver
it to the Employee within 30 days after the Separation. The
Employee shall execute and return the release within the period set
forth in such form.
The foregoing notwithstanding, the
Employee and the Company shall not be required to release any
claims that they may have against each other arising under
(i) any indemnification agreement between the Employee and the
Company or (ii) any rights to indemnification, advancement of
expenses or repayment arising under the Company’s Amended and
Restated Certificate of Incorporation or the Company’s
Amended and Restated Bylaws, in each case as currently in effect or
as subsequently amended.
(b) Severance Pay . If this
Section 6 applies, then the Employee shall be entitled to
receive severance payments from the Company for a period of 12
months following the Separation (the “Continuation
Period”). Such severance payments shall be made in accordance
with the Company’s standard payroll procedures and shall
commence within 30 days after the Employee returns the release
described in Subsection (a)(iii)(A) above or the Company makes
the determination described in Subsection (a)(iii)(B) above,
as applicable. The annual rate of such severance payments shall be
equal to the sum of:
(i) The Employee’s Base Salary
at the annual rate in effect when the Separation occurs;
plus
(ii) The Employee’s annual
target bonus for the fiscal year in which the Separation
occurs.
In addition to any other remedies
that may be available to the Company, severance payments shall
cease immediately if the Employee fails to comply with the
covenants set forth in Section 8.
(c) Acceleration of Vesting .
If this Section 6 applies, then:
(i) The vested portion of all
restricted shares of Stock held by the Employee when the Separation
occurs shall at all times thereafter be determined by adding 12
months to his actual period of Employment with the
Company.
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Certain capitalized terms are
defined in Section 12.
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(ii) During the Continuation Period,
the Employee shall continue to vest in the Equity held by him when
the Separation occurs (other than restricted shares of Stock),
subject to his compliance with the covenants set forth in
Section 8 below. The monthly rate of vesting during the
Continuation Period shall be the same as prior to the
Separation.
(d) Extension of Option Exercise
Period . If this Section 6 applies, then all options and
other rights to purchase shares of Stock, and all stock
appreciation rights measured by the value of Stock, that are held
by the Employee when the Separation occurs shall remain exercisable
until the earlier of:
(i) The later of (A) the date
12 months after the Separation or (B) with respect to any
increment of options or rights that becomes exercisable later than
nine months after the Separation, the date three months after such
increment becomes exercisable; or
(ii) The date the options or rights
would have expired if the Separation had not occurred.
(e) COBRA Premiums . If this
Section 6 applies, and if the Employee elects to continue
health insurance coverage under COBRA for himself and, if
applicable, his dependents following the Separation, then the
Company shall pay the employer portion of the monthly premium under
COBRA for the Employee and, if applicable, such dependents until
the earliest of:
(i) The end of the Continuation
Period;
(ii) The expiration of the
Employee’s continuation coverage under COBRA; or
(iii) The date when the Employee
receives equivalent health insurance coverage in connection with
new employment.
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7.
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T
ERMINATION
B ENEFITS A FTER C HANGE IN C ONTROL .
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(a)
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Qualifying
Terminations . This
Section 7 shall apply if a Separation occurs
because:
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(i) The Company terminates the
Employee’s Employment with the Company for a reason other
than Cause or Permanent Disability within 12 months after a Change
in Control; or
(ii) The Employee resigns for Good
Reason within 12 months after a Change in Control.
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(b) Severance Payment . If
this Section 7 applies, then the Employee shall be entitled to
receive a severance payment from the Company. The amount of such
payment shall be equal to 200% of the sum of:
(i) The Employee’s Base Salary
at the annual rate in effect when the Separation occurs or at the
annual rate in effect when the Change in Control occurs, whichever
is greater; plus
(ii) The Employee’s annual
target bonus for the fiscal year in which the Separation
occurs.
Such payment shall be made in a lump
sum in cash on the date a Separation occurs under
Subsection (a)(i) above or not later than the date three
business days after a Separation occurs under
Subsection (a)(ii) above.
(c) Acceleration of Vesting .
If this Section 7 applies, then all of the Equity held by the
Employee when the Separation occurs shall become fully and
unconditionally vested, fully exercisable and fully transferable
(except for transfer restrictions imposed by law).
(d) Extension of Option Exercise
Period . If this Section 7 applies, then all options and
other rights to purchase shares of Stock, and all stock
appreciation rights measured by the value of Stock, that are held
by the Employee when the Separation occurs shall remain exercisable
until the earlier of:
(i) The date 24 months after the
Separation; or
(ii) The date such options or rights
would have expired if the Separation had not occurred.
(e) COBRA Premiums . If this
Section 7 applies, and if the Employee elects to continue
health insurance coverage under the Consolidated Omnibus Budget
Reconciliation Act (“COBRA”) for himself and, if
applicable, his dependents following the Separation, then the
Company shall pay the employer portion of the monthly premium under
COBRA for the Employee and, if applicable, such dependents until
the earliest of:
(i) The date 24 months after the
Separation;
(ii) The expiration of the
Employee’s continuation coverage under COBRA; or
(iii) The date when the Employee
receives equivalent health insurance coverage in connection with
new employment.
(a) Non-Solicitation . During
his Employment and, if Section 6 applies, during the
Continuation Period, the Employee shall not directly or indirectly,
personally or
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through others, solicit or attempt to solicit
the employment of any employee of the Company or any of the
Company’s affiliates, whether on the Employee’s own
behalf or on behalf of any other person or entity. The term
“employment” for purposes of this Subsection (a)
means to enter into an arrangement for services as a full-time or
part-time employee, independent contractor, agent or otherwise. The
Employee and the Company agree that this provision is reasonably
enforced as to any geographic area in which the Company conducts
its business.
(b) Non-Competition . The
Employee agrees that, during his Employment and during the
Continuation Period (if any), he shall not:
(i) Directly or indirectly,
individually or in conjunction with others, engage in activities
that compete with the Company or work for any entity that is part
of the Company’s Market;
(ii) Solicit, serve, contract with
or otherwise engage any existing or prospective customer, client or
account of the Company on behalf of any entity that is part of the
Company’s Market; or
(iii) Cause or attempt to cause any
existing or prospective customer, client or account of the Company
to divert from, terminate, limit or in any manner modify, or fail
to enter into, any actual or potential business relationship with
the Company. The Employee and the Company agree that this provision
is reasonably enforced with reference to any geographic area in
which the Company maintains any such relationship.
For purposes of this
Subsection (b), the Company’s “Market” shall
mean (i) all companies that derive their revenue primarily
from e-procurement and/or spend management software or service
sales or sales of software or services aiding companies in sourcing
and/or spend management activities and (ii) those companies
set forth on Exhibit B attached hereto. The Employee
and the Company agree that the Company’s Market is global in
scope.
(c) Cooperation and
Non-Disparagement . The Employee agrees that, during the
Continuation Period, he shall cooperate with and assist the Company
in every reasonable respect in facilitating the transition of his
duties to his successor; provided that the Employee shall not be
required to devote more than 20 hours per month to providing such
assistance and cooperation. The Employee further agrees that,
during the Continuation Period, he shall not in any way or by any
means disparage the Company, the members of the Board or the
Company’s officers and employees.
(d) Disclosure . The Employee
agrees that, during the Continuation Period, he shall inform any
new employer or other person or entity with whom the Employee
enters into a business relationship, before accepting employment or
entering into a business relationship, of the existence of this
Section 8.
(e) Construction . If any
provision set forth in this Section 8 is not enforceable under
the laws of the state in which the Employee is employed following
his
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Separation, nothing in this Agreement shall
prohibit the Employee from engaging in such lawful conduct;
provided, however, that if the Employee elects to do so, his rights
to any of the benefits set forth in Section 6 shall terminate
immediately.
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9.
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P
ARACHUTE
P AYMENTS .
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(a) Parachute Gross-Up
Payment . If it is determined that any payment or distribution
of any type to the Employee or for his benefit by the Company, any
of its affiliates, any person who acquires ownership or effective
control of the Company or ownership of a substantial portion of the
Company’s assets (within the meaning of section 280G of
the Internal Revenue Code of 1986, as amended (the
“Code”), and the regulations thereunder) or any
affiliate of such person, whether paid, payable, distributed or
distributable pursuant to the terms of this Agreement or otherwise
(the “Total Payments”), would be subject to the excise
tax imposed by section