Exhibit 10.27
AMENDED AND RESTATED
EMPLOYMENT
AGREEMENT
AGREEMENT, dated as of the 1st day
of November, 2003 (this “Agreement”), by and between
BEA Systems, Inc., a Delaware corporation (the
“Company”), and Jeanne Wu (the
“Executive”).
WHEREAS, the Board of Directors of
the Company (the “Board”), has determined that it is in
the best interests of the Company and its shareholders to assure
that the Company will have the continued dedication of the
Executive, notwithstanding the possibility, threat or occurrence of
a Change in Control (as defined herein). The Board believes it is
imperative to diminish the inevitable distraction of the Executive
by virtue of the personal uncertainties and risks created by a
pending or threatened Change in Control and to encourage the
Executive’s full attention and dedication to the current
Company and in the event of any threatened or pending Change in
Control, and to provide the Executive with compensation and
benefits arrangements upon a Change in Control that ensure that the
compensation and benefits expectations of the Executive will be
satisfied and that are competitive with those of other
corporations. Therefore, in order to accomplish these objectives,
the Board has caused the Company to enter into this
Agreement.
NOW, THEREFORE, IT IS HEREBY AGREED
AS FOLLOWS:
Section 1. Certain
Definitions . (a)
“Effective Date” means the first date during the Change
in Control Period (as defined herein) on which a Change in Control
occurs. Notwithstanding anything in this Agreement to the contrary,
if a Change in Control occurs and if the Executive’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 Executive that such termination of employment
(1) was at the request of a third party that has taken steps
reasonably calculated to effect a Change in Control or (2)
otherwise arose in connection with or anticipation of a Change in
Control, then “Effective Date” means the date
immediately prior to the date of such termination of
employment.
(b) “Change in Control
Period” means the period commencing on the date hereof and
ending on the third anniversary of the date hereof; provided
, however , that, commencing on the date one year after the
date hereof, and on each annual anniversary of such date (such date
and each annual anniversary thereof, the “Renewal
Date”), unless previously terminated, the Change in Control
Period shall be automatically extended so as to terminate three
years from such Renewal Date, unless, at least 60 days prior to the
Renewal Date, the Company shall give notice to the Executive that
the Change in Control Period shall not be so extended.
(c) “Affiliated Company”
means any company controlled by, controlling or under common
control with the Company.
(d) “Assume” means that
pursuant to a Change in Control either (i) the Compensatory Award
is expressly affirmed by the Company or (ii) the contractual
obligations represented by the Compensatory Award are expressly
assumed (and not simply by operation of law) by the successor
entity or its parent in connection with the Change in Control with
appropriate
adjustments to the number and type of securities
of the successor entity or its parent subject to the Compensatory
Award and the exercise or purchase price thereof (if any) which
preserves the compensation element of the Compensatory Award
existing at the time of the Change in Control as determined in
accordance with the instruments evidencing the agreement to assume
the Compensatory Award.
(e) “Change in Control”
means the first to occur of any of the following:
(1) 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(e), 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
Affiliated Company or (iv) any acquisition by any corporation
pursuant to a transaction that complies with Sections 1(e)(3)(A),
1(e)(3)(B) and 1(e)(3)(C).
(2) 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.
(3) 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
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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
(4) Approval by the shareholders of
the Company of a complete liquidation or dissolution of the
Company.
Section 2. Employment
Period . The Company
hereby agrees to continue the Executive in its employ, subject to
the terms and conditions of this Agreement, for the period
commencing on the Effective Date and ending on the first
anniversary of the Effective Date (the “Employment
Period”). The Employment Period shall terminate upon the
Executive’s termination of employment for any
reason.
Section 3. Terms of
Employment . (a)
Position and Duties . (1) During the Employment
Period, (A) the Executive’s position (including status,
offices, titles and reporting requirements), authority, duties and
responsibilities shall be at least commensurate in all material
respects with the most significant of those held, exercised and
assigned at any time during the 120-day period immediately
preceding the Effective Date and (B) the Executive’s services
shall be performed at the office where the Executive was employed
immediately preceding the Effective Date or at any other location
less than 35 miles from such office.
(2) During the Employment Period,
and excluding any periods of vacation and sick leave to which the
Executive is entitled, the Executive agrees to devote reasonable
attention and time during normal business hours to the business and
affairs of the Company and, to the extent necessary to discharge
the responsibilities assigned to the Executive hereunder, to use
the Executive’s reasonable best efforts to perform faithfully
and efficiently such responsibilities. During the Employment
Period, it shall not be a violation of this Agreement for the
Executive to (A) serve on corporate, civic or charitable boards or
committees, (B) deliver lectures, fulfill speaking engagements or
teach at educational institutions and (C) manage personal
investments, so long as such activities do not significantly
interfere with the performance of the Executive’s
responsibilities as an employee of the Company in accordance with
this Agreement. It is expressly understood and agreed that, to the
extent that any such activities have been conducted by the
Executive prior to the Effective Date, the continued conduct of
such activities (or the conduct of activities similar in nature and
scope thereto) subsequent to the Effective Date shall not
thereafter be deemed to interfere with the performance of the
Executive’s responsibilities to the Company.
(b) Compensation . (1)
Base Salary . During the Employment Period, the
Executive shall receive an annual base salary (the “Annual
Base Salary”) at an annual rate at least equal to 12 times
the highest monthly base salary paid or payable, including any base
salary that has been earned but deferred, to the Executive by the
Company and the Affiliated Companies
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in respect of the 12-month period immediately
preceding the month in which the Effective Date occurs. The Annual
Base Salary shall be paid at such intervals as the Company pays
executive salaries generally. During the Employment Period, the
Annual Base Salary shall be reviewed at least annually, beginning
no more than 12 months after the last salary increase awarded to
the Executive prior to the Effective Date. Any increase in the
Annual Base Salary during the Employment Period shall not serve to
limit or reduce any other obligation to the Executive under this
Agreement. The Annual Base Salary shall not be reduced after any
such increase and the term “Annual Base Salary” shall
refer to the Annual Base Salary as so increased.
(2) Annual Bonus . In
addition to the Annual Base Salary, the Executive shall be awarded,
for each fiscal year ending during the Employment Period, an annual
bonus (the “Annual Bonus”) in cash at least equal to
the Executive’s highest bonus earned under the
Company’s Executive Bonus Plan, or any comparable bonus under
any predecessor or successor plan, for the last three full fiscal
years prior to the Effective Date (or for such lesser number of
full fiscal years prior to the Effective Date for which the
Executive was eligible to earn such a bonus, and annualized in the
case of any bonus earned for a partial fiscal year) (the
“Recent Annual Bonus”). (If the Executive has not been
eligible to earn such a bonus for any period prior to the Effective
Date, the “Recent Annual Bonus” shall mean the
Executive’s target annual bonus for the year in which the
Effective Date occurs.) Each such Annual Bonus shall be paid no
later than the end of the third month of the fiscal year next
following the fiscal year for which the Annual Bonus is awarded,
unless the Executive shall elect to defer the receipt of such
Annual Bonus.
(3) Incentive, Savings and
Retirement Plans . During the Employment Period, the
Executive shall be entitled to participate in all cash incentive,
equity incentive, savings and retirement plans, practices,
policies, and programs applicable generally to other peer
executives of the Company and the Affiliated Companies, but in no
event shall such plans, practices, policies and programs provide
the Executive with incentive opportunities (measured with respect
to both regular and special incentive opportunities, to the extent,
if any, that such distinction is applicable), savings opportunities
and retirement benefit opportunities, in each case, less favorable,
in the aggregate, than the most favorable of those provided by the
Company and the Affiliated Companies for the Executive under such
plans, practices, policies and programs as in effect at any time
during the 120-day period immediately preceding the Effective Date
or, if more favorable to the Executive, those provided generally at
any time after the Effective Date to other peer executives of the
Company and the Affiliated Companies. In the event that, in
connection with a Change of Control, the party effectuating the
Change of Control does not agree to Assume any stock option,
restricted stock award, restricted stock unit award or other
equity-based award or performance award held by the Executive or
any transferee of the Executive (each, a “Compensatory
Award”) that is unvested and outstanding as of immediately
prior to the Change of Control, such Compensatory Award shall as of
immediately prior to the Change of Control vest in full and be
immediately exercisable, provided , that if the
Executive’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 Executive that such termination of
employment (1) was at the request of a third party that has taken
steps reasonably calculated to effect a Change in Control or (2)
otherwise arose in connection with or anticipation of a Change in
Control, then each Compensatory Award that is unvested and
outstanding as of immediately prior to the Date of Termination
shall not be forfeited, shall remain outstanding following the Date
of Termination, and shall not vest unless and until a Change of
Control occurs within one year following the Date of
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Termination, in which case, immediately prior to
a Change of Control, such Compensatory Awards shall vest in full
and become immediately exercisable. In the event that a Change in
Control does not occur within one year following the Date of
Termination as described in the proviso of the preceding sentence,
each unvested Compensatory Award shall be immediately forfeited by
the Executive.
(4) Welfare Benefit Plans
. During the Employment Period, the Executive and/or the
Executive’s family, as the case may be, shall be eligible for
participation in and shall receive all benefits under welfare
benefit plans, practices, policies and programs provided by the
Company and the Affiliated Companies (including, without
limitation, medical, prescription, dental, disability, employee
life, group life, accidental death and travel accident insurance
plans and programs) to the extent applicable generally to other
peer executives of the Company and the Affiliated Companies, but in
no event shall such plans, practices, policies and programs provide
the Executive with benefits that are less favorable, in the
aggregate, than the most favorable of such plans, practices,
policies and programs in effect for the Executive at any time
during the 120-day period immediately preceding the Effective Date
or, if more favorable to the Executive, those provided generally at
any time after the Effective Date to other peer executives of the
Company and the Affiliated Companies.
(5) Expenses . During
the Employment Period, the Executive shall be entitled to receive
prompt reimbursement for all reasonable expenses incurred by the
Executive in accordance with the most favorable policies, practices
and procedures of the Company and the Affiliated Companies in
effect for the Executive at any time during the 120-day period
immediately preceding the Effective Date or, if more favorable to
the Executive, as in effect generally at any time thereafter with
respect to other peer executives of the Company and the Affiliated
Companies.
(6) Fringe Benefits .
During the Employment Period, the Executive shall be entitled to
fringe benefits, including, without limitation, tax and financial
planning services, payment of club dues, and, if applicable, use of
an automobile and payment of related expenses, in accordance with
the most favorable plans, practices, programs and policies of the
Company and the Affiliated Companies in effect for the Executive at
any time during the 120-day period immediately preceding the
Effective Date or, if more favorable to the Executive, as in effect
generally at any time thereafter with respect to other peer
executives of the Company and the Affiliated Companies.
(7) Office and Support
Staff . During the Employment Period, the Executive shall
be entitled to an office or offices of a size and with furnishings
and other appointments, and to exclusive personal secretarial and
other assistance, at least equal to the most favorable of the
foregoing provided to the Executive by the Company and the
Affiliated Companies at any time during the 120-day period
immediately preceding the Effective Date or, if more favorable to
the Executive, as provided generally at any time thereafter with
respect to other peer executives of the Company and the Affiliated
Companies.
(8) Vacation . During
the Employment Period, the Executive shall be entitled to paid
vacation in accordance with the most favorable plans, policies,
programs and practices of the Company and the Affiliated Companies
as in effect for the Executive at any time during the
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120-day period immediately preceding the
Effective Date or, if more favorable to the Executive, as in effect
generally at any time thereafter with respect to other peer
executives of the Company and the Affiliated Companies.
Section 4. Termination of
Employment . (a)
Death or Disability . The Executive’s
employment shall terminate automatically if the Executive dies
during the Employment Period. If the Company determines in good
faith that the Disability (as defined herein) of the Executive has
occurred during the Employment Period (pursuant to the definition
of “Disability”), it may give to the Executive written
notice in accordance with Section 11(b) of its intention to
terminate the Executive’s employment. In such event, the
Executive’s employment with the Company shall terminate
effective on the 30th day after receipt of such notice by the
Executive (the “Disability Effective Date”),
provided that, within the 30 days after such receipt, the
Executive shall not have returned to full-time performance of the
Executive’s duties. “Disability” means the
absence of the Executive from the Executive’s duties with the
Company on a full-time basis for 180 consecutive business days as a
result of incapacity due to mental or physical illness that is
determined to be total and permanent by a physician selected by the
Company or its insurers and acceptable to the Executive or the
Executive’s legal representative.
(b) Cause . The
Company may terminate the Executive’s employment during the
Employment Period for Cause. “Cause” means:
(1) the willful and continued
failure of the Executive to perform substantially the
Executive’s duties (as contemplated by Section 3(a)(1)(A))
with the Company or any Affiliated Company (other than any such
failure resulting from incapacity due to physical or mental illness
or following the Executive’s delivery of a Notice of
Termination for Good Reason), after a written demand for
substantial performance is delivered to the Executive by the Board
or the Chief Executive Officer of the Company that specifically
identifies the manner in which the Board or the Chief Executive
Officer of the Company believes that the Executive has not
substantially performed the Executive’s duties, or
(2) the willful engaging by the
Executive in illegal conduct or gross misconduct that is materially
and demonstrably injurious to the Company.
For purposes of this Section 4(b), no act, or
failure to act, on the part of the Executive shall be considered
“willful” unless it is done, or omitted to be done, by
the Executive in bad faith or without reasonable belief that the
Executive’s action or omission was in the best interests of
the Company. Any act, or failure to act, based upon authority given
pursuant to a resolution duly adopted by the Board or upon the
instructions of the Chief Executive Officer of the Company or a
senior officer of the Company or based upon the advice of counsel
for the Company shall be conclusively presumed to be done, or
omitted to be done, by the Executive in good faith and in the best
interests of the Company. The cessation of employment of the
Executive shall not be deemed to be for Cause unless and
un
