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Exhibit
10.9
BEA SYSTEMS, INC. CHANGE
IN CONTROL SEVERANCE PLAN
Introduction
The Board of Directors of BEA
Systems, Inc. (the “Company”) recognizes that the
possibility of a Change in Control of the Company, and the
uncertainty it creates, may result in the loss or distraction of
employees of the Company to the detriment of the Company and its
stockholders.
The Board considers the
avoidance of such loss and distraction to be essential to
protecting and enhancing the best interests of the Company and its
stockholders. The Board also believes that when a Change in Control
is perceived as imminent, or is occurring, the Board should be able
to receive and rely on disinterested service from employees
regarding the best interests of the Company and its stockholders
without concern that employees might be distracted or concerned by
the personal uncertainties and risks created by the perception of
an imminent or occurring Change in Control.
In addition, the Board
believes that it is consistent with the Company’s employment
practices and policies and in the best interests of the Company and
its stockholders to treat fairly its employees whose employment
terminates in connection with or following a Change in
Control.
Accordingly, the Board has
determined that appropriate steps should be taken to assure the
Company of the continued employment and attention and dedication to
duty of its employees and to seek to ensure the availability of
their continued service, notwithstanding the possibility or
occurrence of a Change in Control.
Therefore, in order to
fulfill the above purposes, the following plan has been developed
and is hereby adopted.
1. Establishment of
Plan . As of the Effective Date, the Company hereby establishes
the BEA Systems, Inc. Change in Control Severance Plan, as set
forth in this document.
2. Definitions . As
used herein the following words and phrases shall have the
following respective meanings:
(a) Affiliate . Any
company controlled by, controlling or under common control with the
Company.
(b) Base Salary . The
annual base rate of compensation payable to a Participant by the
Company, before deductions or voluntary deferrals authorized by the
Participant or required by law to be withheld from the Participant
by the Company.
(c) Board . The Board
of Directors of the Company.
(d) Bonus Amount . The
Participant’s annual commission targets for all Participants
who are in a sales position and annual target bonus for all other
Participants for the fiscal year in which the Change in Control
occurs or, if higher, the fiscal year in which the Date of
Termination occurs, provided , that if annual commission
targets or annual target bonuses have not
been established for the
Participant and Participants generally for the fiscal year in which
the Change in Control occurs, the Bonus Amount shall be the
Participant’s annual commission targets or annual target
bonus, as applicable, for the year immediately preceding the year
in which the Change in Control occurs.
(e) Cause . A
termination for “Cause” shall have occurred where a
Participant’s employment is terminated because of the
Participant’s (i) conviction of a felony (other than a
traffic-related felony) or (ii) gross negligence or willful
misconduct having a material adverse impact on the
Company.
(f) Change in Control
. A “Change in Control” means the first to occur of any
of the following:
(i) The acquisition by any
individual, entity or group (within the meaning of
Section 13(d)(3) or 14(d)(2) of the Securities Exchange Act of
1934, as amended (the “Exchange Act”)) (a
“Person”) of beneficial ownership (within the meaning
of Rule 13d-3 promulgated under the Exchange Act) of 20% or more of
either (A) the then-outstanding shares of common stock of the
Company (the “Outstanding Company Common Stock”) or
(B) the combined voting power of the then-outstanding voting
securities of the Company entitled to vote generally in the
election of directors (the “Outstanding Company Voting
Securities”); provided , however , that, for
purposes of this Section 1(f), the following acquisitions
shall not constitute a Change in Control: (i) any acquisition
directly from the Company, (ii) any acquisition by the
Company, (iii) any acquisition by any employee benefit plan
(or related trust) sponsored or maintained by the Company or any of
its Affiliates or (iv) any acquisition by any corporation
pursuant to a transaction that complies with Sections 1(d)(3)(A),
1(d)(3)(B) and 1(d)(3)(C);
(ii) Individuals who, as of
the date hereof, constitute the Board (the “Incumbent
Board”) cease for any reason to constitute at least a
majority of the Board; provided , however , that any
individual becoming a director subsequent to the date hereof whose
election, or nomination for election by the Company’s
shareholders, was approved by a vote of at least a majority of the
directors then comprising the Incumbent Board shall be considered
as though such individual were a member of the Incumbent Board, but
excluding, for this purpose, any such individual whose initial
assumption of office occurs as a result of an actual or threatened
election contest with respect to the election or removal of
directors or other actual or threatened solicitation of proxies or
consents by or on behalf of a Person other than the
Board;
(iii) Consummation of a
reorganization, merger, statutory share exchange or consolidation
or similar corporate transaction involving the Company or any of
its subsidiaries, a sale or other disposition of all or
substantially all of the assets of the Company, or the acquisition
of assets or stock of another entity by the Company or any of its
subsidiaries (each, a “Business Combination”), in each
case unless, following such Business Combination, (A) all or
substantially all of the individuals and entities that were the
beneficial owners of the Outstanding Company Common Stock and the
Outstanding Company Voting Securities immediately prior to such
Business Combination beneficially own, directly or indirectly, more
than 50% of the then-outstanding shares of common stock and the
combined voting power of the then-outstanding voting securities
entitled to
vote generally in the
election of directors, as the case may be, of the corporation
resulting from such Business Combination (including, without
limitation, a corporation that, as a result of such transaction,
owns the Company or all or substantially all of the Company’s
assets either directly or through one or more subsidiaries) in
substantially the same proportions as their ownership immediately
prior to such Business Combination of the Outstanding Company
Common Stock and the Outstanding Company Voting Securities, as the
case may be, (B) no Person (excluding any corporation
resulting from such Business Combination or any employee benefit
plan (or related trust) of the Company or such corporation
resulting from such Business Combination) beneficially owns,
directly or indirectly, 20% or more of, respectively, the
then-outstanding shares of common stock of the corporation
resulting from such Business Combination or the combined voting
power of the then-outstanding voting securities of such
corporation, except to the extent that such ownership existed prior
to the Business Combination, and (C) at least a majority of
the members of the board of directors of the corporation resulting
from such Business Combination were members of the Incumbent Board
at the time of the execution of the initial agreement or of the
action of the Board providing for such Business Combination;
or
(iv) Approval by the
shareholders of the Company of a complete liquidation or
dissolution of the Company.
(g) Code . The
Internal Revenue Code of 1986, as amended from time to
time.
(h) Committee .
Subject to Section 13, the Compensation Committee of the
Board.
(i) Company . BEA
Systems, Inc. and any successor thereto or, if applicable, the
ultimate parent of any such successor.
(j) Compensatory Award
. As defined in Section 4(c).
(k) Date of
Termination . The date of receipt of a notice of termination
from the Company or the Participant as applicable or any later date
specified in the notice of termination, which date shall not be
more than 30 days after the giving of such notice. The Company and
the Participant shall take all steps necessary (including with
regard to any post-termination services by the Participant) to
ensure that any termination under this Plan constitutes a
“separation from service” within the meaning of
Section 409A of the Code, and notwithstanding anything
contained herein to the contrary, the date on which such separation
from service takes place shall be the “Date of
Termination.”
(l) Disability . A
termination for “Disability” shall have occurred if a
Participant’s employment is terminated because of a
disability entitling him or her to long-term disability benefits
under the applicable long-term disability plan of the
Company.
(m) Effective Date .
November 7, 2007.
(n) Employee . Any
regular, full-time employee or part-time employee (who is regularly
scheduled to work at least twenty (20) hours per week) of the
Company or any of its Affiliates. Part-time employees who are
regularly scheduled to work less than twenty (20) hours per
week and individuals who are classified by the Company as
independent contractors are not Employees.
(o) Good Reason . With
respect to any Participant, the occurrence of any of the following
events after a Change in Control, without the Participant’s
prior written consent: (i) the Company’s requiring the
Participant to be based at any location other than the location at
which the Participant was based immediately prior to the Change in
Control or within 35 miles of such location, (ii) a reduction
of more than 10 percent in the Participant’s annual base
salary or target bonus or other incentive compensation
opportunities; provided that if none of the Company, a
surviving entity nor its parent following a Change in Control is a
publicly-held company, the failure to provide stock-based benefits
shall not be deemed Good Reason if benefits of comparable value
using recognized valuation methodology are substituted,
(iii) a failure to provide the Participant with aggregate
pension and welfare benefits which are substantially comparable in
value to those provided to similarly situated employees of the
Company, a surviving entity or its parent , or (iv) failure of
the Company to require any successor to the Company to comply with
the Plan. Notwithstanding the foregoing, in order to invoke a
termination for Good Reason, a Participant must provide written
notice to the Company of the existence of one or more of the
conditions described in clauses (i), (ii), (iii) or
(iv) within 90 days after having knowledge of such condition
or conditions, and the Company shall have 30 days following receipt
of such written notice (the “Cure Period”) during which
it may remedy the condition. In the event that the Company fails to
remedy any condition constituting Good Reason during the Cure
Period, the Participant must terminate employment, if at all,
within 90 days following the Cure Period in order to terminate
employment for Good Reason.
(p) Individual
Contributor . An Employee that is not a Manager, Senior
Manager, Director, Senior Director, Vice President or Senior Vice
President.
(q) Monthly Pay . The
quotient obtained by dividing (i) the sum of (A) the
Participant’s Required Base Salary and (B) the
Participant’s Bonus Amount by (ii) 12.
(r) Net After-Tax
Receipt . As defined in Section 5.
(s) Non-U.S.
Participant . As defined in Section 4(b).
(t) Participant . An
Employee who meets the eligibility requirements of
Section 3.
(u) Payment . As
defined in Section 5.
(v) Plan . The BEA
Systems, Inc. Change in Control Severance Plan.
(w) Present Value . As
defined in Section 5.
(x) Qualified
Termination . Any termination of a Participant’s
employment, on or during the one-year period following a Change in
Control, by the Company other than for Cause, death or Disability
or by the Participant for Good Reason. Notwithstanding the
foregoing, if a Change in Control occurs and if the
Participant’s employment with the Company is terminated prior
to the date on which the Change in Control occurs, and if it is
reasonably demonstrated by the Participant that such termination of
employment (i) was at the request of a third party that has
taken steps reasonably calculated to effect a Change in Control or
(ii) otherwise arose in connection with or anticipation of a
Change in Control, then a “Qualifying Termination”
shall be deemed to have occurred on the Change in
Control.
(y) Reduced Amount .
As defined in Section 5.
(z) Required Base
Salary . With respect to any Participant, the higher of
(i) the Participant’s Base Salary as in effect
immediately prior to the Change in Control and (ii) the
Participant’s highest Base Salary in effect at any time
thereafter.
(aa) Separation
Payment . As defined in Section 5.
(bb) Separation Period
. The period beginning on a Participant’s Date of Termination
and continuing for (i) three months, in the case of an
Individual Contributor, Manager or Senior Manager; (ii) six
months in the case of a Director or Senior Director; and
(iii) 12 months in the case of a Vice President or Senior Vice
President.
3. Eligibility . Each
Employee who (a) is not party to a Change in Control
Employment Agreement as of immediately prior to a Change in
Control,
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