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Exhibit
10.6
EMPLOYMENT
AGREEMENT
THIS EMPLOYMENT AGREEMENT is
effective as of May 1, 2007 (“Effective Date”),
between BEA Systems, Inc., a Delaware corporation (the
“Company”), and Thomas M. Ashburn
(“Employee”).
RECITALS
A. Employee is an employee of
the Company.
B. Company desires to obtain
the continued services of Employee, on its own behalf and on behalf
of all existing and future Affiliated Companies (defined to mean
any corporation or other business entity or entities that directly
or indirectly controls, is controlled by, or is under common
control with the Company), and Employee desires to secure continued
employment from the Company upon the following terms and conditions
set forth in this Agreement. Employee’s initial assignments
shall include the assignments and tasks listed on Attachment A
hereto. Company and Employee wish to enter into an employment
relationship with a written Employment Agreement intended to
supersede all other written and oral representations regarding
Employee’s employment with Company.
AGREEMENT
ACCORDINGLY, THE PARTIES AGREE AS
FOLLOWS:
1. Position, Period of
Employment .
(a) Term . Under this
Agreement, the Company shall employ Employee for a period of six
months following the Effective Date, unless Executive’s
employment is terminated sooner in accordance with Section 3
below.
(b) Position . As of
the Effective Date of this Agreement, Employee shall be employed by
Company to render services to Company in the position of Executive
Vice President (or in such other position(s) as the Company shall
designate). Employee shall devote his full time and attention and
his best efforts to the performance of the duties customarily
incident to such position and/or to such other duties as may be
assigned to Employee by the Company. Key projects are indicated on
Attachment A. Employee shall abide by the rules, regulations, and
practices of the Company, as adopted or modified from time to time
in the sole discretion of the Company.
(c) Other Activities .
Except upon the prior written consent of the Company, Employee,
during his employment with the Company, will not (i) accept
any other employment; (ii) engage, directly or indirectly, in
any other business activity (whether or not pursued for
pecuniary advantage) that is
or may be competitive with, or that might place him in a competing
position to that of the Company or any Affiliated Company, as
determined in the discretion of the Company; or (iii) engage
in any work or business activity of any kind outside those of the
Company.
(d) Proprietary
Information Agreement; Arbitration Agreement . The Proprietary
Information and Inventions Agreement and Arbitration Agreement
dated and executed by the Employee January 18, 2002 shall
continue in effect during the term of this Agreement and,
Employee’s obligations under both such agreements shall
survive any termination of this Agreement or of Employee’s
employment.
2. Compensation, Benefits,
Expenses .
(a) Compensation . In
consideration of the services to be rendered hereunder, Employee
shall be paid an annualized base salary of Two Hundred and Fifty
Thousand Dollars ($ 250,000) (“Annual Salary”), payable
at the times and pursuant to the procedures regularly established,
and as they may be amended, by the Company.
(b) Bonus . Employee
is no longer eligible to participate in the Company’s
executive bonus plan.
(c) Vacation and
Benefits . Employee shall be entitled to vacation in accordance
with the Company’s vacation policies for similarly situated
employees, as such policies may be amended from time to time. As he
becomes eligible therefor, the Company shall provide Employee with
the right to participate in and to receive benefits from all
present and future life, accident, disability, medical, pension,
and savings plans and all similar benefits made available generally
to similarly situated employees of the Company, except that
Employee shall not be entitled to any leaves of absence (defined as
a hospitalization or absence due to illness/injury for five or more
days) other than as permitted by the Company’s
CEO.
3. Termination of
Employment .
(a) At-Will Employment
. Employee’s employment with Company shall be at-will, which
means either Employee or Company may terminate his employment at
any time, with or without notice, and with or without cause.
However, the Company will provide at least 14 days notice to
Employee of any termination without Cause, as defined below. Not
withstanding anything to the contrary herein, upon termination,
employee shall be entitled to receive his compensation and all
perquisites and benefits (including the vesting of any stock
options, stock grants, or restricted stock units) only through the
date of termination; but in no event for more than 14 days after
the date of notice. The at-will nature of Employee’s
employment may not be changed except in an express written
agreement signed by Employee and the Company’s Chief
Executive Officer or Chief Financial Officer.
(b) Change in Control
Agreement. Employee’s Change in Control Agreement with
the Company, as amended, dated November 1, 2003 shall continue
in accordance with its terms and shall not be effected by this
Employment Agreement.
(c) Termination with
Cause . The Company may immediately terminate Employee’s
employment under this Agreement for “Cause” if:
(i) Employee engages in material misconduct, including but not
limited to fraud, dishonesty, misappropriation of Company’s
trade secrets or proprietary information, embezzlement,
(ii) Employee exhibits unfitness or unavailability for service
including taking any leave of absence, deficiencies in performance
or attendance , or otherwise fails to substantially perform his
duties under this Agreement, which Employee fails to cure within
ten (10) days following written notice to Employee from the
Company (iii) Employee commits a felony, a crime of moral
turpitude, or a criminal act against the Company or any Affiliated
Company thereof or any of the assets of any of them,
(iv) Employee breaches any material provision of this
Agreement, any material policy of the Company, or any other
agreement between the Employee and the Company, (v) Employee
refuses to follow a specific, lawful direction or order of the
Company, or (vi) Employee dies or becomes mentally or
physically incapacitated and cannot carry out his duties. A
termination for
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