Exhibit No. 10.1
VOTING AGREEMENT
THIS VOTING AGREEMENT (this “
Agreement ”) is entered into as of the 5th day of
October, 2005 by and among Centra Software, Inc., a Delaware
corporation (the “ Company ”), and the
undersigned holders of common stock of Saba Software, Inc., a
Delaware corporation (“ Parent ”), $0.001 par
value (“ Parent Common Stock ”), listed on the
Schedule of Stockholders attached hereto as Schedule A
(individually referred to herein as a “ Stockholder
,” and collectively referred to herein as the “
Stockholders ”). Capitalized terms used but not
otherwise defined herein shall have the meanings given to such
terms in the Merger Agreement (as defined below).
RECITALS
A. Parent, Spruce Acquisition
Corporation, a Delaware corporation and a wholly-owned subsidiary
of Parent (“ Merger Sub 1 ”), Spruce
Acquisition, LLC, a Delaware limited liability company and a
wholly-owned subsidiary of Parent (“ Merger Sub 2
”), and the Company have concurrently herewith entered into
an Agreement and Plan of Reorganization, dated as of the date
hereof (the “ Merger Agreement ”), pursuant to
which (i) Merger Sub 1 will merge with and into the Company,
with the Company as the surviving corporation (the “
First Step Merger ”), and (ii) immediately
after the effective time of the First Step Merger, the Company, as
a wholly-owned subsidiary of Parent, will be merged with and into
Merger Sub 2, with Merger Sub 2 as the surviving company (the
“ Second Step Merger ”).
B. In order to induce the Company to
enter into the Merger Agreement, the Company has requested that
each of the Stockholders, and each of the Stockholders has agreed
to, enter into this Agreement.
C. Each Stockholder beneficially
owns the number of shares of Parent Common Stock and the options to
purchase Parent Common Stock set forth opposite such
Stockholder’s name on Schedule A hereto as of the date
hereof, and the Company and each Stockholder wish to bind each
Stockholder to vote such number of shares of Parent Common Stock so
owned by such Stockholder as contemplated herein.
NOW, THEREFORE, in consideration of
the promises and the mutual agreements, provisions and covenants
set forth in the Merger Agreement and in this Agreement, it is
hereby agreed as follows:
1. Agreement to Retain
Shares.
1.1 Agreement to Retain
Shares . Each Stockholder agrees not to transfer (except as may
be specifically required by court order, by operation of law or as
a distribution to members or partners of such Stockholder (a
“ Permitted Transferee ”)), sell, exchange,
pledge or otherwise dispose of or encumber such Stockholder’s
Shares (as defined below) or deposit any of such
Stockholder’s Shares into a voting trust or grant a proxy
(except for a Proxy (as defined below)) or to make or accept any
offer or other agreement relating thereto, at any time prior to the
Expiration Date (as defined below), unless the Permitted Transferee
of such Stockholder’s Shares agrees in writing to be bound by
the terms hereof. Each Stockholder agrees and consents
to the entry of stop transfer
instructions by Parent consistent with the terms of this
Section 1 against the transfer of any of such
Stockholder’s Shares. As used herein, the term “
Expiration Date ” shall mean the earlier to occur of
(i) the Effective Time (as defined in the Merger Agreement),
or (ii) the termination of the Merger Agreement. As used
herein, the term “ Shares ” shall mean all
issued and outstanding shares of Parent Common Stock owned of
record or beneficially by Stockholder or over which Stockholder
exercises voting power, in each case, as of the record date for
persons entitled (i) to receive notice of, and to vote at, the
meeting of the stockholders of Parent called for the purpose of
voting on matters referred to in section 2.1, or (ii) to take
action by written consent of the stockholders of Parent with
respect to the matters referred to in Section 2.1; all other
securities of Parent (including all options, warrants and other
rights to acquire shares of Parent Common Stock) beneficially owned
by the Stockholder as of the date of this Agreement; and all
additional securities of Parent (including all additional shares of
Parent Common Stock and all additional options, warrants and other
rights to acquire shares of Parent Common Stock) of which
Stockholder acquires ownership during the period from the date of
this Agreement through the earlier of termination of this Agreement
pursuant to Section 6 or the record date for the meeting at
which the stockholders of Parent are asked to vote upon the
approval and adoption of the Merger Agreement and the approval of
the First Step Merger. Stockholder agrees that any shares of
capital stock of Parent that Stockholder purchases or with respect
to which Stockholder otherwise acquires beneficial ownership or
over which Stockholder exercises voting power after the execution
of this Agreement and prior to the earlier of termination of this
Agreement pursuant to Section 6 or the record date for the
meeting at which the stockholders of Parent are asked to vote upon
the approval and adoption of the Merger Agreement and the approval
of the First Step Merger, shall be subject to the terms and
conditions of this Agreement to the same extent as if they
constituted Shares on the date hereof.
2. Voting.
2.1 Agreement to Vote Shares
. Each Stockholder hereby agrees to appear, or cause the holder of
record (the “ Record Holder ”) of any shares of
Parent Common Stock included in such Stockholder’s Shares on
any applicable record date to appear, in person or by proxy, for
the purpose of obtaining a quorum at any annual or special meeting
of the stockholders of Parent and at any adjournment thereof and on
every action or approval by written consent or resolution of the
stockholders of Parent for the purpose of voting on the Merger
Agreement and the transactions contemplated thereby (a “
Meeting ”). Prior to the Expiration Date, at every
Meeting, each Stockholder shall vote or cause the Record Holder to
vote, such Shares:
(a) in favor of approval of the
First Step Merger and the Merger Agreement and the transactions
contemplated thereby, and any matter that could reasonably be
expected to facilitate the First Step Merger; and
(b) against any action which would,
impede, interfere with, delay, postpone, discourage or adversely
affect the consummation of the First Step Merger or any of the
other transactions contemplated by the Merger Agreement.
2
Stockholder further agrees not to
enter into any agreement or understanding with any person the
effect of which would be inconsistent with, or would violate, any
provision contained in this Section 2.1.
2.2 Obligations as Director
and/or Officer . If at any time prior to the Expiration Date, a
Stockholder (or any affiliate of Stockholder) is a member of the
board of directors of Parent (“ Director ”) or
an officer of Parent (“ Officer ”), nothing in
this Agreement shall be deemed to limit or restrict such
Stockholder’s ability to act or vote in his or her capacity
as a Director or Officer in any manner he or she so chooses, it
being agreed and understood that this Agreement shall apply to such
Stockholder solely in his or her capacity as a stockholder of
Parent and shall not apply to his or her actions, judgments or
decisions as a Director or Officer.
3. Irrevocable Proxy .
Promptly after the execution of this Agreement, each Stockholder
shall execute and deliver to the Company a duly executed
proxy
