Exhibit 10.23
TIBCO SOFTWARE
INC.
VIVEK RANADIVE AMENDED AND
RESTATED
EMPLOYMENT
AGREEMENT
This Agreement is effective as of
the last date signed below (the “Amendment Date”), by
and between TIBCO Software Inc. (the “Company”) and
Vivek Ranadive (“Executive”), and amends and restates
the employment agreement entered into as of November 30, 2004
(the “Effective Date”) by the Company and
Executive.
1. Duties and Scope of
Employment .
(a) Positions and
Duties . Beginning on the
Effective Date, and continuing as of the Amendment Date, Executive
will serve as Chief Executive Officer and Chairman of the Board of
Directors (the “Board”). 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 Board. The
period of Executive’s employment under this Agreement is
referred to herein as the “Employment Term.”
(b) Board Membership
. At each annual meeting of the
Company’s stockholders during the Employment Term, the
Company will nominate Executive to serve as a member of the Board.
Executive’s service as a member of the Board will be subject
to any required stockholder approval.
(c) Obligations
. During the Employment Term,
Executive will devote Executive’s 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 (which
approval will not be unreasonably withheld); provided, however,
that Executive may, without the approval of the Board, serve in any
capacity with any civic, educational, or charitable organization,
provided such services do not interfere with Executive’s
obligations to Company.
2. At-Will Employment .
Executive and the Company agree that Executive’s employment
with the Company constitutes “at-will” employment.
Executive and the Company acknowledge that this employment
relationship may be terminated at any time, upon written notice to
the other party, with or without good cause or for any or no cause,
at the option either of the Company or Executive. However, as
described in this Agreement, Executive may be entitled to severance
benefits depending upon the circumstances of Executive’s
termination of employment. Upon the termination of
Executive’s employment with the Company for any reason,
Executive will be entitled to payment of all accrued but unpaid
compensation, vacation, expense reimbursements, and other benefits
due to Executive through his termination date under any
Company-provided or paid plans, policies, and arrangements.
Executive agrees to resign from all positions that he holds with
the Company, including, without limitation, his position as a
member of the Board, immediately following the termination of his
employment if the Board so requests.
3. Term of Agreement . This
Agreement shall be renewed for a term of three years commencing on
the Amendment Date.
4. Compensation .
(a) Base Salary . During
fiscal year 2008, the Company will pay Executive an annual salary
of $575,000 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 Companys standard practices.
(b) Annual Bonus .
Executive’s annual target bonus, including Executive’s
2008 fiscal year target bonus, will be 100% of Base Salary
(“Target Bonus”). Executive’s annual bonus will
be payable upon achievement of performance goals established by the
Compensation Committee of the Board (the “Committee”).
Executive will have the opportunity to discuss the nature of such
achievement or performance goals with the Committee prior to such
goals being established. The actual bonus paid may be higher or
lower than the Target Bonus for over- or under-achievement of
Executive’s performance goals, as determined by the
Committee. The Committee also will take into account changes to the
size or capabilities of the Company in determining actual bonus
amounts. Bonuses, if any, will accrue and become payable in
accordance with the Committee’s standard practices for paying
executive incentive compensation, provided however that any
bonus payable under this Section 4(b) will be paid by the
later of (i) two-and-one-half months after the end of the
Company’s fiscal year to which it relates or
(ii) two-and-one-half months after the end of the
Executive’s taxable year in which the bonus becomes
payable.
(c) Equity Compensation . In
each of fiscal years 2008, 2009, and 2010, and assuming the
Executive has not received an unsatisfactory performance review
with respect to the applicable year, Executive will be granted one
or more stock awards as follows: at such time during each year as
the Compensation Committee determines appropriate
(1) Executive shall be granted stock options to purchase up to
1,000,000 shares of the Company common stock (any such option
granted under this Section 4(c) is referred to as an
“Option”), and (2) up to 250,000 shares of
restricted Company common stock (any such award of shares of stock
under this Section 4(c) is referred to as “Restricted
Stock”). In addition to the foregoing, the Committee may also
grant Executive a further award of up to 250,000 shares of
Restricted Stock (or Options to purchase up to such number of
shares of common stock as the Committee determines) as a bonus or
additional compensation in consideration of Executive achieving
heightened performance or other targets established by the
Committee from time to time. In each case, any award of Options or
Restricted Stock shall be in the sole discretion of the Committee.
The Options will be subject to the Company’s then standard
terms and conditions for executive stock option grants and may also
be subject to performance based vesting in accordance with then
current market practices. The Restricted Stock will be subject to
the Company’s then standard terms and conditions for
executive restricted stock awards and may vest on a sliding scale
based on Company performance, with the actual performance goals set
by the Committee. The Executive will have the opportunity to
discuss the nature of such performance goals with the Committee
prior to such performance goals being established.
The Company and Executive agree that
for fiscal year 2008 Executive will be granted 700,000 Options and
awarded 100,000 shares of non-performance based Restricted Stock at
the same time and in the same manner as the Company makes its
annual 2008 Option grants and Restricted Stock awards to all
eligible employees.
Notwithstanding anything in this
Section 4(c) to the contrary, the Company’s ability to
grant stock awards, including the Restricted Stock, under Company
stock plans is subject to stockholder approval of reservation of
the requisite number of shares.
5. Employee Benefits . During
the Employment Term, Executive will be eligible to participate in
accordance with the terms of all Company employee benefit plans,
policies, and arrangements that are applicable to other senior
executives of the Company, as such plans, policies, and
arrangements may exist from time to time.
6. Expenses . The Company
will reimburse Executive for reasonable travel, entertainment, and
other expenses incurred by Executive in the furtherance of the
performance of Executive’s duties hereunder, in accordance
with the Company’s expense reimbursement policy as in effect
from time to time.
7. Severance .
(a) Termination Without Cause or
Resignation for Good Reason other than in connection with a Change
of Control . If Executive’s employment is terminated by
the Company without Cause or by Executive for Good Reason, and the
termination is not in Connection with a Change of Control, then,
subject to Section 8, Executive will receive:
(i) continued payment of Base Salary for a period of 12
months, (ii) a lump-sum payment, paid at the time fiscal year
bonuses are paid to other executives, equal to 1.0 times
Executive’s actual bonus for the fiscal year immediately
preceding the fiscal year in which the termination occurs,
(iii) reimbursement for premiums paid to continue coverage for
Executive and Executive’s eligible dependents under the
Company’s Benefit Plans (as defined in Section 9 below)
for the Continuance Period (as defined in Section 9 below),
or, if earlier, until Executive is eligible for similar benefits
from another employer (provided Executive validly elects to
continue coverage under applicable law), and (iv) 12
months’ accelerated vesting of equity awards then held by the
Executive (performance conditions applicable to performance-based
equity awards that might under the award terms have been satisfied
in such 12-month period shall remain in place unless the Board, in
its sole discretion, waives such condition as of the termination
date) whether granted prior to, on or after the Effective Date. In
addition, Executive will have 12 months to exercise equity awards
that have the accelerated vesting described in the preceding
sentence. In no case, however, shall any equity award be
exercisable after the expiration of its term.
(b) Termination Without Cause or
Resignation for Good Reason in connection with a Change of
Control . If Executive’s employment is terminated by the
Company without Cause or by Executive for Good Reason, and the
termination is in Connection with a Change of Control, then,
subject to Section 8, Executive will receive:
(i) continued payment of Base Salary for a period of 24
months, (ii) a lump-sum payment, paid at the time fiscal year
bonuses are paid to other executives, equal to twice the average of
Executive’s actual bonuses for the two fiscal years
immediately preceding the fiscal year in which the Change of
Control occurs, (iii) reimbursement for premiums paid to
continue coverage for Executive and Executive’s eligible
dependents under the Company’s Benefit Plans for the
Continuance Period, or, if earlier, until Executive is eligible for
similar benefits from another employer (provided Executive validly
elects to continue coverage
under applicable law), (iv) 100% vesting of
all equity awards then held by Executive, whether granted prior to,
on or after the Effective Date, and (v) a Section 280G
gross-up, as described in Section 7(b)(i) below. In addition,
Executive will have 24 months to exercise equity awards that have
the accelerated vesting described in the preceding sentence. In no
case, however, shall any equity award be exercisable after the
expiration of its term.
(i) Section 280G
Gross-up . Executive and
the Company hereby agree that the version of this
Section 7(b)(i) contained in Executive’s previous
employment agreement is no longer in effect. At the time of
any renewal or replacement of this Agreement, Executive and the
Company agree to negotiate in good faith the issue of whether they
will reinstitute a gross-up of any taxes to which Executive might
become subject as a result of application of Sections 280G and 4999
of the Internal Revenue Code of 1986, as amended (the
“Code”), to payments or benefits received by or owed to
him under such subsequent agreement.
(c) Voluntary Termination without
Good Reason; Termination for Cause . If Executive’s
employment with the Company terminates voluntarily by Executive
without Good Reason or is terminated for Cause by the Company, then
(i) all further vesting of Executive’s outstanding
equity awards will terminate immediately, (ii) all payments of
compensation by the Company to Executive hereunder will terminate
immediately (except as to amounts already earned), and
(iii) Executive will not be entitled to any severance but
Executive will be paid all accrued but unpaid vacation, expense
reimbursements and other benefits due to Executive through his
termination date under any Company-provided or paid plans,
policies, and arrangements.
(d) Termination due to Death or
Disability . If Executive’s employment terminates by
reason of death or Disability, then (i) Executive will be
entitled to receive benefits only in accordance with the
Company’s then applicable plans, policies, and arrangements;
and (ii) Executive’s outstanding equity awards will
terminate in accordance with the terms and conditions of the
applicable award agreement(s).
(e) Sole Right to Severance .
This Agreement is intended to represent Executive’s sole
entitlement to severance payments and benefits in connection with
the termination of his employment. To the extent Executive is
entitled to receive severance or similar payments and/or benefits
under any other Company plan, program, agreement, policy, practice,
or the like, severance payments and benefits due to Executive under
this Agreement will be so reduced.
8. Conditions to Receipt of
Severance; No Duty to Mitigate .
(a) Separation Agreement and
Release of Claims . The receipt of any severance pursuant to
Section 7 will be subject to Executive signing and not
revoking a separation agreement and release of claims in a form
reasonably acceptable to the Company. Such agreement will provide
(among other things) that Executive will not disparage the Company,
its directors, or its executive officers during the Continuance
Period. The Company will have no obligation to make any payment
under Section 7 until it has received an effective separation
and release of claims agreement.
(b) Non-Competition . In the
event of a termination of Executive’s employment that
otherwise would entitle Executive to the receipt of severance
pursuant to Section 7(b), Executive agrees not to engage in
Competition (as defined below) during the Continuance Period. If
Executive engages in Competition within the Continuance Period, all
continuing payments and benefits to which Executive otherwise may
be entitled pursuant to Section 7(b) will cease immediately.
The sole remedy the Company will have against Executive in the
event of a breach of this Section 8(b) shall be that provided
in the preceding sentence.
(c) Nonsolicitation . In the
event of a termination of Executive’s employment that
otherwise would entitle Executive to the receipt of severance
pursuant to Section 7, Executive agrees that, during the
Continuance Period, Executive, directly or indirectly, whether as
employee, owner, sole proprietor, partner, director, member,
consultant, agent, founder, co-venturer or otherwise, (i) will
not solicit, induce, or influence any person to modify his or her
employment or consulting relationship with the Company (the
“No-In
