Exhibit 10.62
AMENDED AND
RESTATED
EXECUTIVE CHANGE IN CONTROL
SEVERANCE AGREEMENT
This AMENDED AND RESTATED EXECUTIVE
CHANGE IN CONTROL SEVERANCE AGREEMENT (“ Agreement
”), is dated as of August 20, 2009 (the “
Effective Date ”) and made by and between Blue Coat
Systems, Inc., a Delaware corporation (the “ Company
”), and
(“ Employee ”), and amends and restates the
Executive Change in Control Severance Agreement earlier entered
into between the Company and Employee, as of May 1, 2009 (the
“Initial Agreement”), in its entirety.
WHEREAS, the parties desire to amend
Section 2.01(a)(i) of the Initial Agreement to provide that
the Change in Control Severance Benefits will include 50% of the
Employee’s annual target incentive compensation under the
Employee’s then existing incentive compensation
plan.
NOW THEREFORE, in consideration of
the foregoing and of the mutual covenants and agreements of the
parties set forth in this Agreement, and of other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto, intending to be legally bound,
agree as follows:
ARTICLE 1
T ERM A ND
N ATURE O F
A GREEMENT
Section 1.01 . Term.
This Agreement shall be in force until the second anniversary of
the Effective Date, and thereafter renew for automatic one-year
terms, unless the Company shall give the Employee written notice of
termination at least 30 days before the expiration of the then
current term, provided that no Change in Control has occurred prior
to such date. Notwithstanding the foregoing, this Agreement shall
terminate (i) 12 months after a Change in Control (subject to
satisfaction of any obligations hereunder as a result of a
termination of employment prior to such expiration) and
(ii) upon on any termination of employment prior to a Change
in Control.
Section 1.02. At-Will
Employment . Nothing in this Agreement shall change the at-will
nature of Employee’s employment with the Company.
ARTICLE 2
C HANGE IN C
ONTROL T ERMINATION
Section 2.01 . Severance
Benefits.
(a) If upon, or within 18 months
following, or within two months preceding a Change in Control,
Employee is terminated by the Company without Cause or Employee
resigns for Good Reason, Employee shall be entitled to the
following (“ Change in Control Severance Benefits
”), provided that Employee executes and lets become effective
a release of claims, in the form attached hereto as Exhibit A (the
“ Release ”), within 45 days following the
termination of employment:
(i) a lump sum cash payment equal to
the sum of (x) Employee’s then-existing annual base
salary and (y) 50% of the Employee’s annual target
incentive compensation under the Employee’s then existing
incentive compensation plan (e.g., as of May 1, 2009, the
Company’s profit sharing plan or, with respect to sales
executives, the approved sales compensation plan), which shall be
paid as soon as administratively practicable after the date on
which the Release becomes effective, and, in any event, no later
than two and one-half (2 1 / 2
) months after the end of the
taxable year of the Employee in which the termination of employment
occurs;
(ii) payment or reimbursement of
health benefit continuation coverage under COBRA or otherwise from
the termination date through the earlier of (A) 12 months
following the termination date or (B) the date Employee
becomes eligible for health benefits with another employer, which
shall be paid no later than the month of such coverage;
and
(iii) all of the Employee’s
unvested and outstanding Equity Awards shall become vested in
accordance with the terms of the applicable equity plans and award
agreements.
(b) Definitions. For purposes of
this Agreement, the following definitions shall have the following
meanings:
(i) “ Cause ”
shall exist if: (A) Employee is convicted of, or pleads guilty
or no contest to, a criminal offense; (B) Employee engages in
any act of fraud or dishonesty; (C) Employee breaches any
agreement with the Company; (D) Employee commits any material
violation of Company policy; or (E) Employee fails, refuses or
neglects to perform the services required of Employee in his
position at the Company.
(ii) “ Change in
Control ” means the occurrence of any one or more of the
following:
(A) the consummation of a merger or
consolidation of the Company with or into any other entity (other
than with any entity or group in which Executive has not less than
a 5% beneficial interest) pursuant to which the holders of
outstanding equity of the Company immediately prior to such merger
or consolidation hold directly or indirectly 50% or less of the
voting power of the equity securities of the surviving
entity;
(B) the sale or other disposition of
all or substantially all of the Company’s assets (other than
to any entity or group in which Executive has not less than a 5%
beneficial interest);
(C) any acquisition by any person or
persons (other than any entity or group in which Executive has not
less than a 5% beneficial interest) of the beneficial ownership of
more than 50% of the voting power of the Company’s equity
securities in a single transaction or series of related
transactions; provided , however , that an
underwritten public offering of the Company’s securities
shall not be considered a Change in Control; or
(D) if during any period of 12
consecutive months, individuals who at the beginning of any such
period constitute the Board cease for any reason to constitute at
least a majority thereof, unless the election, or the nomination
for election by the Company’s stockholders, of each director
of the Company first elected during such period was approved or
recommended by at least a majority of the directors then still in
office who were directors of the Company at the beginning of any
such period and any such newly approved directors;
provided , however , that a transaction shall not
constitute a Change in Control if its sole purpose is to change the
state of the Company’s incorporation or to create a holding
company that will be owned in substantially the same proportions by
the persons who directly or indirectly held the Company’s
securities immediately before such transaction.
(iii) “ Good Reason
” means:
(A) a material diminution of
Employee’s then-existing annual base salary (other than in
connection with an action affecting a majority of the executive
officers of the Company);
(B) relocation of the principal
place of Employee’s employment to a location that is more
than 50 miles from the principal place of Employee’s
employment immediately prior to the date of the Change in Control;
or
(C) a material reduction in the
Employee’s authority, duties or responsibilities after the
Change in Control when compared to Employee’s authority,
duties and responsibilities prior to the Change in
Control;
provided that notwithstanding the foregoing, an
Employee’s termination will not be for Good Reason unless the
Employee (x) notifies the Company in writing of the existence
of the condition which the Employee believes constitutes Good
Reason within 60 days of the initial existence of such condition
(which notice specifically identifies such condition),
(y) gives the Company at least 10 days following the date on
which the Company receives such notice (and prior to termination)
in which to remedy the condition, and (z) if the Company does
not remedy such condition within such period, actually terminates
employment within 15 days after the expiration of such remedy
period (and before the Company remedies such condition).
(iv) “ Equity Awards
” means all options to purchase shares of Company common
stock as well as any and all other stock-based awards granted to
the Employee, including but not limited to stock bonus awards,
restricted stock, restricted stock units or stock appreciation
rights, except for performance stock awards which remain subject to
performance criteria as of the Effective Date.
Section 2.02. Resignation of
Corporate Offices . In connection with any termination of
employment following a Change in Control, Employee will resign
Employee’s office, if any, as a director, officer, trustee or
employee of the Company, its subsidiaries or affiliates and of any
other corporation or trust of which Employee serves as such at the
request of the Company, effective as of the date of termination of
employment.
Section 2.03. Accrued
Compensation and Benefits . In connection with any termination
of employment upon or following a Change in Control (whether or not
under Section 2.01 above), the Company shall pay
Employee’s earned but unpaid base salary and other vested but
unpaid cash entitlements for the period through and including the
termination of employment, including unused earned vacation pay and
unreimbursed documented business expenses incurred by Employee
prior to the date of termination (collectively “ Accrued
Compensation and Expenses ”), as required by law and the
applicable Company plan or policy. In addition, Employee shall be
entitled to any other vested benefits earned by Employee for the
period through and including the termination date of
Employee’s employment under any other employee benefit plans
and arrangements maintained by the Company, in accordance with the
terms of such plans and arrangements, except as modified herein
(collectively “ Accrued Benefits ”). Any Accrued
Compensation and Expenses to which the Employee is entitled shall
be paid to the Employee in cash as soon as administratively
practicable after the termination, and, in any event, no later than
two and one-half (2 1 / 2
) months after the end of the
taxable year of the Employee in which the termination occurs. Any
Accrued Benefits to which the Employee is entitled shall be paid to
the Employee as provided in the relevant plans and
arrangement.
Section 2.04 . Continuing
Obligations. Employee acknowledges his or her continuing
obligations under the Confidential and Non-Disclosure Agreement
with the Company, including but not limited to Employee’s
obligations not to use or disclose, at any time, any trade secret,
confidential or proprietary information of the Company.
Section 2.05. Limitation on
Payments .
(a) If the Change in Control
Severance Benefits together with any other payment or benefit
Employee would receive pursuant to a Change in Control
(collectively, “ Payment ”) would
(i) constitute a “parachute payment” within the
meaning of Section 280G of the Internal Revenue Code of 1986,
as amended (the “ Code ”), and (ii) but for
this sentence, be subject to the excise tax imposed by
Section&
