Exhibit 10.2
EMPLOYMENT
AGREEMENT
This Employment Agreement (this
“Agreement”), by and between Saba Software, Inc., a
Delaware corporation (the “Company”), and Bobby Yazdani
(“Executive”), is effective as of February 1, 2006
(the “Effective Date”).
R E C I T A L
S
A. Executive has been Chief Executive Officer of
the Company since September, 2003 and from inception until March,
2002.
B. The Board of Directors of the Company (the
“Board of Directors”) recognizes that Executive has
made important contributions to the success of the
Company.
C. The Company believes that maintaining sound
management is essential to protect and enhance the best interests
of the Company and its stockholders.
D. 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. Company and Executive wish to enter into an
employment relationship with a written employment agreement
intended to supersede all other written and oral representations
regarding Executive’s employment with Company.
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
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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 three hundred fifty thousand dollars ($350,000), 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 quarterly 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 quarterly after the end
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of each fiscal quarter, and shall be prorated
for partial fiscal quarters. 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.
2.3. Stock Option
. Subject to approval by
the Board of Directors, Executive will be granted a stock option to
purchase 90,000 shares of the Company’s Common Stock at the
market price in effect 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”). The stock
option will vest over the course of one year in four equal
quarterly installments with the first installment vesting one
quarter after the Effective Date of this employment
agreement.
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 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
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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 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, 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.
For the purposes of this Agreement, 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 reduction by the Company in
Executive’s annual base salary then in effect without
Executive’s consent; or (iii) Executive’s
principal work location is relocated outside of the San Francisco
Bay Area without Executive’s consent. 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.
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, 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 year 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
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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 either as a lump-sum or in the form of salary
continuation (with amounts attributable to the Target Bonus
prorated monthly), whichever the Company shall determine in its
sole discretion.
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 option 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 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 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.
4.4. Termination for
Incapacity . In the
event that Executive suffers an Incapacity during Executive’s
employment, the Company may elect to terminate Executive’s
employment pursuant to this Section 4.4. In such event, the
Company shall pay Executive, or to Executive’s beneficiaries
or estate if applicable, all base salary due and owing and all
other accrued but unpaid benefits (e.g., accrued vacation) through
the date on which an Incapacity is determined to exist (the
“Determination Date”), less applicable standard
deductions and withholdings. In addition, within ten days of such
termination of Executive’s employment, the Company shall pay
to Executive, or to Executive’s beneficiaries or estate if
applicable, in a single lump-sum payment, subject to applicable
standard deductions and withholdings, an amount equal to the Target
Bonus, pro rated based on the number of days through the
Determination Date in the year in which such termination occurs,
less amounts of the Target Bonus previously paid to Executive for
the year 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 Severance Months and, (ii) the Bonus Severance
Amount, less all applicable standard deductions and withholdings
and any disability payment otherwise payable by or pursuant to
plans provided by the Company and actually paid to Executive. Such
amounts payable in the preceding sentence shall be payable either
as a lump-sum or in the form of salary continuation (with amounts
attributable to the Bonus Severance Amount prorated monthly),
whichever the Company shall determine in its sole discretion.
Thereafter the Company’s obligations under this Agreement
shall terminate; provided, however, that nothing contained in this
Agreement shall limit Executive’s rights to payments or other
benefits under any long-term disability plans of the Company in
which Executive participates, if any. For the purposes of this
Agreement, Executive shall be deemed to have suffered an
“Incapacity” if Executive shall, due to illness or
mental or physical incapacity, be unable to perform the duties and
responsibilities required to be performed by him on behalf of the
Company for a period of at least 180 days.
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4.5. Termination upon
Death . In the event
that Executive dies during Executive’s employment,
Executive’s employment shall be deemed to have terminated
upon the date of death. In such event, the Company shall pay
Executive’s estate all base salary due and owing and all
other accrued but unpaid benefits (e.g., accrued vacation) through
the date of death. In addition, within ten days of such termination
of Executive’s employment, the Company shall pay to
Executive’s estate, in a si