Offer Letter - Clark

Change in Control Agreement - Clark

Employment Agreement - Borman

Change in Control Agreement - Borman

Separation Agreement - Borman

 

 

 

 

EX-10.1 2 dex101.htm OFFER LETTER AGREEMENT

Exhibit 10.1

 

August 10, 2011

Gregory S. Clark

Dear Greg:

I am pleased to offer you a position with Blue Coat Systems, Inc. (the “Company”) as President and Chief Executive Officer, reporting to the Company’s Board of Directors. In this role you will be expected to perform such duties as are consistent with your title and position, as well as any other reasonable duties determined by the Company’s Board of Directors. We anticipate that you will commence employment with the Company on or before September 12, 2011.

We have structured a compensation package for you that includes the following:

 

 

 

You will receive an initial annual base salary of $500,000 (“Base Salary”), paid according to the Company’s standard payroll policies. The Company’s Compensation Committee will annually review your Base Salary.

 

 

 

You will be eligible to participate in the Company’s FY 12 Bonus Plan, or such successor plan or program as may be implemented by the Company from time to time to provide short term incentive compensation or bonuses to senior executives. Your initial annual target incentive compensation under the FY 12 Bonus Plan will be 100% of your Base Salary. The Company’s Compensation Committee will annually review your target incentive compensation.

 

 

 

You will be recommended for a non-qualified option to purchase 300,000 shares of the Company’s Common Stock. The exercise price per share will be equal to the fair market value per share on the date the option is granted, which will be the third Thursday of the month after you commence employment. 25% of the option shares will vest and be exercisable after 12 months of service, and the balance will vest and be exercisable in monthly installments over the next 36 months of service, as described in the applicable stock option agreement and subject to your execution of that agreement. This award will be subject to applicable NASDAQ rules on inducement awards.

 

 

 

You will be recommended for an award of 100,000 restricted stock units (“RSUs”). 25% of the RSUs will vest on September 15, 2012, and the balance will vest in 12 quarterly installments (on the 15th of December, March, June and September) over the following 3 years of service, as described in the applicable restricted stock unit agreement and subject to your execution of that agreement. This award will be made promptly after the Company’s filing of a Registration Statement on Form S-8, which the Company anticipates will be made at or about the time the Company files its quarterly report on Form 10-Q for the first fiscal quarter ending July 31, 2011. This award will be subject to applicable NASDAQ rules on inducement awards.

 

 

 

You will be eligible to participate in the Company’s standard benefits plans and programs generally available to employees in the U.S., as they may be amended from time to time in the sole discretion of the Company. This includes automatic enrollment in the Company’s 401(k) Plan, unless you give our provider, Fidelity Investments, prompt notice of your election not to participate in that plan.

 

Blue Coat Systems, Inc.    420 North Mary Ave Sunnyvale, CA 94085 866.30BCOAT    T: 408.220.2200    F: 408.220.2250    www.bluecoat.com


 

 

You will be eligible for other benefits offered to the Company’s senior executive officers and you shall participate in the CEO Executive Change in Control Severance Agreement provided herewith and be provided with the benefits of the Indemnification Agreement provided herewith, subject to your execution of those agreements.

Your employment shall be “at will,” meaning that either you or the Company will be entitled to terminate your employment at any time and for any reason, with or without cause. Nonetheless, you shall be entitled to certain benefits under the Company’s Executive Separation Policy provided herewith in the event of a termination without Cause or upon your termination for Good Reason (each as defined in the Company’s Executive Separation Policy), and contingent on your executing the prescribed form of release for the Executive Separation Policy. The definition of “Cause” under the Executive Separation Policy, to the extent it relates to your willful and material breach of any agreement with the Company, as provided in Section (A)(iv) of the Executive Separation Policy, shall be amended to read as follows:

(iv) any willful and material breach of any agreement with the Company resulting in material damage to the Company that is not corrected within thirty (30) days following written notice thereof to the Executive by his or her immediate supervisor, such notice to state with specificity the nature of the breach; provided that if the breach cannot reasonably be corrected within thirty (30) days of written notice thereof, correction shall be commenced by the Executive within thirty (30) days and may be corrected within a reasonable period thereafter.

To the extent not otherwise provided in the Executive Separation Policy, you shall also be entitled to the following benefits in the event of a termination without Cause or upon your termination for Good Reason (each as defined in the Company’s Executive Separation Policy), and contingent on your executing the prescribed form of release for the Executive Separation Policy: (a) acceleration of the lesser of (i) 25,000 RSUs and 75,000 option shares, or (ii) all unvested equity awards made in connection with your initial employment; and (b) a prorated portion of your target incentive compensation for the period in which your employment terminates (i.e., if your employment terminates effective January 31, 2012, you would be entitled to $125,000, or 50% of the target incentive compensation under the Company’s FY12 Bonus Plan for the second half of FY 2012; amounts payable for the first half of FY 2012 would be payable based on actual attainment).

In the event that the severance and other benefits provided for in this offer letter or otherwise payable to you (i) constitute “parachute payments” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”) and (ii) but for this provision, would be subject to the excise tax imposed by Section 4999 of the Code, then, at Employee’s discretion, Employee’s severance, vesting and other benefits under this offer letter or otherwise shall be payable either (i) in full, or (ii) as to such lesser amount which would result in no portion of such severance and other benefits being subject to the excise tax under Section 4999 of the Code, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the excise tax imposed by Section 4999, results in the receipt by you on an after-tax basis, of the greatest amount of severance benefits under this offer letter or otherwise, notwithstanding that all or some portion of such severance benefits may be taxable under Section 4999 of the Code. Any reduction shall be made in the following manner: first a pro rata reduction of (i) cash payments subject to Section 409A of the Code as deferred compensation and (ii) cash payments not subject to Section 409A of the Code, and second a pro rata cancellation of (i) equity-based compensation subject to Section 409A of the Code as deferred compensation and (ii) equity-based compensation not subject to Section 409A of the Code. Reduction in either cash payments or equity compensation benefits shall be made prorata between and among benefits which are subject to Section 409A of the Code and benefits which are exempt from Section 409A of the Code. Unless the Company and you otherwise agree in writing, any determination required under this provision shall be made in writing by the Company’s independent public accountants (the “Accountants”), whose determination shall be conclusive and binding upon you and the Company for all purposes. For purposes of making the calculations required by this provision, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code. The Company and you shall furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this provision. The Company shall bear all costs the Accountants may reasonably incur in connection with any calculations contemplated by this provision.

 

Blue Coat Systems, Inc.    420 North Mary Ave Sunnyvale, CA 94085 866.30BCOAT    T: 408.220.2200    F: 408.220.2250    www.bluecoat.com


While you remain an employee of the Company, to the extent consistent with the exercise of its fiduciary duties, the Company’s Board of Directors will recommend to the Company’s stockholders that you be elected to serve as a member of the Board of Directors. No compensation will be paid for such service. You agree to resign from the Board upon termination of your employment. It presently is anticipated that the Company will appoint you to the Board of Directors as soon as practicable after your commencement of employment.

In accordance with the Company’s vacation policy for senior level employees, you will not accrue vacation, but you will be expected to take a reasonable amount of vacation or personal time on an annual basis.

Like all Company employees, you will be required, as a condition of your employment with the Company, to sign the Company’s standard Proprietary Information and Inventions Agreement, a copy of which is enclosed. You agree that, during the term of your employment with the Company, you will not engage in any other employment, occupation, consulting or other business activity directly related to the business in which the Company is now involved or becomes involved during the term of your employment, nor will you engage in any other activities that conflict with your obligations to the Company. While you render services to the Company, you also will not assist any person or organization in competing with the Company, in preparing to compete with the Company or in hiring any employees or consultants of the Company.

In accordance with the requirements of the Immigration Reform and Control Act of 1986, you will be required to provide verification of your identity and your legal right to work in the United States. This offer is contingent upon your ability to provide us with such documentation. You also will be required to complete an application form and a reference and background check authorization form. Your offer of employment is contingent upon your execution of the application form and our receipt of satisfactory results from the background check, including verification of education and employment and a criminal records search.

Any dispute between you and the Company with respect to your employment and the terms and conditions of this offer of employment will be governed by the Arbitration Provision attached hereto as Exhibit A.

 

Blue Coat Systems, Inc.    420 North Mary Ave Sunnyvale, CA 94085 866.30BCOAT    T: 408.220.2200    F: 408.220.2250    www.bluecoat.com


To the extent (a) any payments or benefits to which you become entitled under this offer letter, or under any agreement or plan referenced herein, in connection with Employee’s termination of employment with the Company constitute deferred compensation subject to Section 409A of the Code and (b) you are deemed at the time of such termination of employment to be a “specified employee” under Section 409A of the Code, then such payments shall not be made or commence until the earliest of (i) the expiration of the six (6)-month period measured from the date of your “separation from service” (as such term is at the time defined in Treasury Regulations under Section 409A of the Code) from the Company; or (ii) the date of your death following such separation from service; provided, however, that such deferral shall only be effected to the extent required to avoid adverse tax treatment to you, including (without limitation) the additional twenty percent (20%) tax for which you would otherwise be liable under Section 409A(a)(1)(B) of the Code in the absence of such deferral. Upon the expiration of the applicable deferral period, any payments which would have otherwise been made during that period (whether in a single sum or in installments) in the absence of this paragraph shall be paid to you or your beneficiary in one lump sum (without interest).

Any termination of your employment is intended to constitute a “separation from service” and will be determined consistent with the rules relating to a “separation from service” as such term is defined in Treasury Regulation Section 1.409A-1. It is intended that each installment of the payments provided hereunder constitute separate “payments” for purposes of Treasury Regulation Section 1.409A-2(b)(2)(i). It is further intended that payments hereunder satisfy, to the greatest extent possible, the exemption from the application of Section 409A of the Code (and any state law of similar effect) provided under Treasury Regulation Section 1.409A-1(b)(4) (as a “short-term deferral”). To the extent that any provision of this Offer Letter is ambiguous as to its compliance with Section 409A of the Code, the provision will be read in such a manner so that all payments hereunder comply with Section 409A of the Code.

Except as otherwise expressly provided herein, to the extent any expense reimbursement or the provision of any in-kind benefit under this Offer Letter is determined to be subject to Section 409A of the Code, the amount of any such expenses eligible for reimbursement, or the provision of any in-kind benefit, in one calendar year shall not affect the expenses eligible for reimbursement in any other taxable year (except for any lifetime or other aggregate limitation applicable to medical expenses), in no event shall any expenses be reimbursed after the last day of the calendar year following the calendar year in which you incurred such expenses, and in no event shall any right to reimbursement or the provision of any in-kind benefit be subject to liquidation or exchange for another benefit.

This letter, together with the other policies and agreements referenced herein, and when accepted by you, constitutes the entire agreement between us with respect to your employment. It supersedes any prior understandings or agreements, whether oral or written, between you and the Company. This offer will remain open until the close of business on August 11, 2011. Your signature below acknowledges your acceptance of these terms.

Sincerely,

 

/s/ David W. Hanna

David W. Hanna

  

/s/ Gregory S. Clark

Gregory S. Clark

 

08/10/2011

Date

Chairman of the Board of Directors

  

 

 

Blue Coat Systems, Inc.    420 North Mary Ave Sunnyvale, CA 94085 866.30BCOAT    T: 408.220.2200    F: 408.220.2250    www.bluecoat.com


EXHIBIT A

BLUE COAT SYSTEMS, INC.

EMPLOYMENT ARBITRATION PROVISION

(a) Any dispute arising under my offer letter from the Company or otherwise relating to my employment with the Company, including the termination of my employment or any condition of or benefit with respect to my employment (“Dispute”), shall be finally resolved by arbitration under the administration of JAMS and in accordance with the then-current JAMS Employment Arbitration Rules & Procedures (“Rules”) in the jurisdiction in which I am, or was, employed by the Company. Copies of these rules are available at http://www.jamsadr.com, and shall be made available to me upon request. Any disputes concerning the enforcement, scope, or applicability of this Arbitration Provision shall in the first instance be determined by the arbitrator in accordance with the Federal Arbitration Act. Should either of us disregard this provision and initiate an action in any court or administrative agency with respect to a Dispute, the other party may apply to a court of competent jurisdiction to order the matter to arbitration. The prevailing party in any such hearing shall be entitled to recover its reasonable costs and attorneys’ fees incurred in connection therewith.

(b) Either of us may initiate arbitration to resolve a Dispute by delivering to the other party through personal delivery, certified or registered mail, a written demand for arbitration. The demand shall include a concise statement of the issue(s) to be arbitrated, along with a statement setting forth the relief requested. Along with the demand for arbitration, if I am the filing party, I shall submit a check or money order payable to “JAMS” in the amount of the then prevailing JAMS initial Case Management Fee, as my portion of the administrative fees of the arbitration. Thereafter, the remaining costs of the arbitration (such as the arbitrator’s fees, costs of a court reporter, and room rental fees, if any), but not the cost of any transcript, shall be paid by the Company. Any remaining fees and costs, including but not limited to attorneys’ fees shall, subject to any remedy to which the prevailing party may be entitled to under the law, be borne by each party to the same extent as that party would be responsible for such fees and costs were the Dispute litigated in court. Any demand for arbitration by either of us must be filed within the statute or statutes of limitation that is or are applicable to the claim or claims relating to the Dispute upon which arbitration is sought or required. Any failure to request arbitration within this time frame and according to this Arbitration Provision shall constitute a waiver of all rights to raise any claims in any forum arising out of the Dispute.

(c) The arbitrator be empowered to award either party any remedy at law or in equity to which the prevailing party would otherwise have been entitled had the Dispute been litigated in court, including but not limited to, general, special and punitive damages, recoverable costs, attorney fees (where provided by statute or contract) and injunctive relief; provided, however, that the authority to award any remedy is subject to whatever limitations, if any, exist in the applicable law on such remedies. The arbitrator shall have no jurisdiction to issue any award contrary to or inconsistent with law. The arbitrator shall issue a signed written statement regarding the disposition of each claim of the Dispute and the relief, if any, awarded as to each claim. The arbitrator will also provide a concise written statement of the reasons for the award, stating the essential findings and conclusions on which the award was based.

 

Blue Coat Systems, Inc.    420 North Mary Ave Sunnyvale, CA 94085 866.30BCOAT    T: 408.220.2200    F: 408.220.2250    www.bluecoat.com


(d) Notwithstanding the foregoing provisions of this provision, nothing herein is intended to nor shall preclude (i) me from filing any administrative charge of discrimination with the United States Equal Employment Opportunity Commission or equivalent state agency, or (ii) either me or the Company from seeking temporary or preliminary injunctive relief from a court of applicable jurisdiction pending final resolution of a Dispute.

(e) Except for the Federal Arbitration Act, the interpretation of any matter in the Dispute (including matters arising under my offer letter from the Company or otherwise relating to my employment with the Company, including the termination of my employment or any condition of or benefit with respect to my employment) shall be governed by and construed in accordance with the laws of (a) the State of Texas, if I am employed in Texas; (b) the State of Utah, if I am employed in Utah; and (c) the State of California, if I am employed in a state other than Texas or Utah. The application of Texas, Utah or California law to this Agreement shall not act as a means to add to or increase the statutory or administrative rights granted to employees in the jurisdiction in which I am, or was, employed by the Company in the event that I seek enforcement of such statutory or administrative rights against the Company. In such event, the arbitrator or presiding official shall apply only the statutory and administrative laws of the state in the jurisdiction in which I am, or was, employed by the Company.

 

Blue Coat Systems, Inc.    420 North Mary Ave Sunnyvale, CA 94085 866.30BCOAT    T: 408.220.2200    F: 408.220.2250    www.bluecoat.com

 

 

 

 

 

EX-10.2 3 dex102.htm CEO CHANGE IN CONTROL SEVERANCE AGREEMENT

Exhibit 10.2

CEO CHANGE IN CONTROL SEVERANCE AGREEMENT

This CEO CHANGE IN CONTROL SEVERANCE AGREEMENT (“Agreement”), is dated as of                     (the “Effective Date”) and made by and between Blue Coat Systems, Inc., a Delaware corporation (the “Company”), and Gregory S. Clark (Employee”).

NOW THEREFORE, in consideration 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

TERM AND NATURE OF AGREEMENT

Section 1.01. Term. This Agreement shall be in force until the fourth 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

CHANGE IN CONTROL TERMINATION

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) 150% of Employee’s then-existing annual base salary and (y) the Employee’s annual target incentive compensation under the Employee’s then existing incentive compensation plan, which shall be paid as soon as administratively practicable provided the Release has become 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) 18 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 100% vested and exercisable, and in the case of restricted stock units, settled within 30 days of termination.

(b) Definitions. For purposes of this Agreement, the following definitions shall have the following meanings:

(i) “Cause” shall exist under only the following circumstances:

(i) any willful and material act of personal dishonesty taken by the Executive in connection with his or her job responsibilities which is intended to result in the Executive’s substantial personal enrichment;

(ii) any willful act of fraud, embezzlement or other misconduct that materially damages the Company;

(iii) any willful failure to follow the legal directives of the Executive’s immediate supervisor (other than failure to meet performance goals, objectives or measures), in each case in a manner that results in material damage to the Company and that is not corrected within thirty (30) days following written notice thereof to the Executive by his or her immediate supervisor, such notice to state with specificity the nature of the failure; provided that if the failure cannot be reasonably be corrected by the Executive within thirty (30) days of written notice thereof, correction shall be commenced by the Executive within thirty (30) days and may be corrected within a reasonable period thereafter; or

(iv) any willful and material breach of any agreement with the Company resulting in material damage to the Company that is not corrected within thirty (30) days following written notice thereof to the Executive by his or her immediate supervisor, such notice to state with specificity the nature of the breach; provided that if the breach cannot reasonably be corrected within thirty (30) days of written notice thereof, correction shall be commenced by the Executive within thirty (30) days and may be corrected within a reasonable period thereafter.

 

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(i) “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.

(ii) “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

 

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(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 90 days of the initial existence of such condition (which notice specifically identifies such condition), (y) gives the Company at least 30 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).

(iii) “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 (provided that any portion of the award subject to time based vesting will vest to the extent of the time based component).

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.

 

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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.

ARTICLE 3

MISCELLANEOUS

Section 3.01. Assignment; Successors and Assigns. This Agreement shall inure to the benefit of and be enforceable by Employee’s personal or legal representatives, executors, administrators, successors, heirs, distributees, devisees, and legatees. If Employee should die or become subject to a permanent disability while any amount is owed but unpaid to Employee hereunder, all such amounts, unless otherwise provided herein, shall be paid to Employee’s devisee, legatee, legal guardian or other designee, or if there is no such designee, to Employee’s estate. Employee’s rights hereunder shall not otherwise be assignable. This Agreement shall be binding on the Company’s successors and assigns.

Section 3.02. Dispute Resolution. To ensure rapid and economical resolution of any and all disputes that might arise in connection with this Agreement, Employee and the Company agree that any and all disputes, claims, and causes of action, in law or equity, arising from or relating to this Agreement or its enforcement, performance, breach, or interpretation, will be resolved solely and exclusively by final, binding, and confidential arbitration, by a single arbitrator, in San Francisco, California, and conducted by Judicial Arbitration & Mediation Services, Inc. (“JAMS”) under its then-existing employment rules and procedures. Nothing in this section, however, is intended to prevent either party from obtaining injunctive relief in court to prevent irreparable harm pending the conclusion of any such arbitration. Each party to an arbitration or litigation hereunder shall be responsible for the payment of its own attorneys’ fees.

Section 3.03. Unfunded Agreement. The obligations of the Company under this Agreement represent an unsecured, unfunded promise to pay benefits to Employee and/or Employee’s beneficiaries, and shall not entitle Employee or such beneficiaries to a preferential claim to any asset of the Company.

 

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Section 3.04. Non-Exclusivity of Benefits. Unless specifically provided herein, neither the provisions of this Agreement nor the benefits provided hereunder shall reduce any amounts otherwise payable, or in any way diminish Employee’s rights as an employee of the Company, whether existing now or hereafter, under any compensation and/or benefit plans (qualified or nonqualified), programs, policies, or practices provided by the Company, for which Employee may qualify; provided that the Change in Control Severance Benefits shall not be duplicative of any severance benefits under any such plans, programs, policies or practices and that any amounts payable to Employee hereunder shall be reduced by any amounts paid to Employee as required by any applicable federal, state or local law (including without limitation the WARN Act) in connection with any termination of Employee’s employment. Vested benefits or other amounts which Employee is otherwise entitled to receive under any plan, policy, practice, or program of the Company (i.e., including, but not limited to, vested benefits under any qualified or nonqualified retirement plan, but not including severance benefits), at or subsequent to the termination date shall be payable in accordance with such plan, policy, practice, or program except as expressly modified by this Agreement.

Section 3.05. Mitigation. In no event shall Employee be obligated to seek other employment or take any other action by way of mitigation of the amounts payable to Employee under any of the provisions of this Agreement nor shall the amount of any payment or benefit hereunder be reduced by any compensation earned by Employee as a result of employment by another employer.

Section 3.06. Entire Agreement. This Agreement, together with the offer letter, dated August     , 2011, between Employee and the Company, represents the entire agreement between Employee and the Company and its affiliates with respect to Employee’s severance rights in a Change in Control situation, and is primary to and supersedes all prior and contemporaneous discussions, negotiations, and agreements concerning such rights, including, but not limited to, any rights under the Company’s Executive Separation Policy.

Section 3.07. Tax Withholding. Notwithstanding anything in this Agreement to the contrary, the Company shall withhold from any amounts payable under this Agreement all federal, state, city, or other taxes as are legally required to be withheld.

Section 3.08. Waiver of Rights. The waiver by either party of a breach of any provision of this Agreement shall not operate or be construed as a continuing waiver or as a consent to or waiver of any subsequent breach hereof.

Section 3.09. Severability. In the event any provision of the Agreement shall be held illegal or invalid for any reason, the illegality or invalidity shall not affect the remaining parts of the Agreement, and the Agreement shall be construed and enforced as if the illegal or invalid provision had not been included.

Section 3.10. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of California without reference to principles of conflict of laws.

 

6


Section 3.11. Counterparts. This Agreement may be signed in several counterparts, each of which shall be an original, with the same effect as if the signatures thereto and hereto were on the same instrument.

Section 3.12. Code Section 409A. This Agreement and the payments and benefits hereunder are intended to qualify for the short-term deferral exception to Section 409A of the Code, and all regulations, rulings and other guidance issued thereunder, all as amended and in effect from time to time (“Section 409A”), described in Treasury Regulation Section 1.409A-1(b)(4) to the maximum extent possible, and to the extent they do not so qualify, they are intended to qualify for the involuntary separation pay plan exception to Section 409A described in Treasury Regulation Section 1.409A-1(b)(9)(iii) to the maximum extent possible. To the extent Section 409A is applicable to this Agreement, this Agreement is intended to comply with Section 409A. Without limiting the generality of the foregoing, if on the date of termination of employment Employee is a “specified employee” within the meaning of Section 409A as determined in accordance with the Company’s procedures for making such determination, to the extent required in order to comply with Section 409A, amounts that would otherwise be payable under this Agreement during the six-month period immediately following the termination date shall instead be paid on the first business day after the date that is six months following the termination date. All references herein to “termination date” or “termination of employment” shall mean separation from service as an employee within the meaning of Section 409A. The Company makes no representation or warranty and shall have no liability to the Employee or any other person if any provisions of this Agreement are determined to constitute deferred compensation subject to Section 409A of the Code but do not satisfy an exemption from, or the conditions of, such Section. Except as otherwise expressly provided herein, to the extent any expense reimbursement or the provision of any in-kind benefit under this Agreement is determined to be subject to Section 409A of the Code, the amount of any such expenses eligible for reimbursement, or the provision of any in-kind benefit, in one calendar year shall not affect the expenses eligible for reimbursement in any other taxable year (except for any lifetime or other aggregate limitation applicable to medical expenses), in no event shall any expenses be reimbursed after the last day of the calendar year following the calendar year in which you incurred such expenses, and in no event shall any right to reimbursement or the provision of any in-kind benefit be subject to liquidation or exchange for another benefit.

[Signature page follows]

 

7


IN WITNESS WHEREOF, the Company and the Employee have executed this Agreement, to be effective as of the date and year first written above.

 

BLUE COAT SYSTEMS, INC.

By:

 

 

Name:

Title:

 

EMPLOYEE:

By:

 

 

Name:

Title:

 

8


EXHIBIT A

GENERAL RELEASE OF ALL CLAIMS

In consideration of the Change in Control Severance Payment to be paid to                     (“Employee”) by Blue Coat Systems, Inc. ( the “Company”), as described in the attached Executive Change in Control Severance Agreement (the “Agreement”), Employee, on Employee’s own behalf and on behalf of Employee’s heirs, executors, administrators and assigns, to the fullest extent permitted by applicable law, hereby fully and forever releases and discharges the Company and its past, present and future directors, officers, employees, agents, successors, predecessors, subsidiaries, parent, shareholders, employee benefit plans and assigns (together called “the Releasees”), from all known and unknown claims and causes of action including, without limitation, any claims or causes of action arising out of or relating in any way to Employee’s employment with the Company, including the termination of that employment.

Employee understands and agrees that this General Release of All Claims (the “Release”) is a full and complete waiver of all claims including, without limitation, claims of wrongful discharge, constructive discharge, breach of contract, breach of the covenant of good faith and fair dealing, harassment, retaliation, discrimination, violation of public policy, defamation, invasion of privacy, interference with a leave of absence, personal injury or emotional distress and claims under Title VII of the Civil Rights Act of 1964, the Fair Labor Standards Act, the Equal Pay Act of 1963, the Americans With Disabilities Act, the Civil Rights Act of 1866, the Age Discrimination in Employment Act of 1967 (ADEA), the California Labor Code, the California Fair Employment and Housing Act or any other federal or state law or regulation relating to employment or employment discrimination. Employee further understands and agrees that this waiver includes all claims, known and unknown, to the greatest extent permitted by applicable law. Notwithstanding the foregoing, this Release does not apply to (x) claims which cannot be released as a matter of law, (y) any right Employee may have to enforce the Agreement or (z) Employee’s eligibility for indemnification in accordance with applicable laws, the charter and bylaws of the Company or any indemnification agreement or fiduciary insurance policy Employee has with the Company.

Employee also hereby agrees that nothing contained in this Release shall constitute or be treated as an admission of liability or wrongdoing by the Releasees or Employee.

 

A-9


In addition, Employee hereby expressly waives any and all rights and benefits conferred upon Employee by the provisions of Section 1542 of the Civil Code of the State of California, and any law of any jurisdiction of similar effect. Section 1542 states as follows:

A general release does not extend to claims which the

creditor does not know or suspect to exist in his or her

favor at the time of executing the release, which if known

by him or her must have materially affected his or her

settlement with the debtor.

If any provision of this Release is found to be unenforceable, it shall not affect the enforceability of the remaining provisions and the court shall enforce all remaining provisions to the fullest extent permitted by applicable law.

This Release constitutes the entire agreement between Employee and Releasees with regard to the subject matter of this Release. It supersedes any other agreements, representations or understandings, whether oral or written and whether express or implied, which relate to the subject matter of this Release. Employee understands and agrees that this Release may be modified only in a written document signed by Employee and a duly authorized officer of the Company.

Employee agrees that the Company shall have no duty to provide to Employee any severance benefits described in the Agreement unless and until Employee (a) has signed the Company’s Proprietary Information and Inventions Agreement (“PIIA”) and (b) has returned to the Company any and all of the Company’s property in Employee’s possession or under Employee’s control (including, but not limited to, cellular phones; computers; keys; credit cards; access badges; Company files or documents, including copies thereof; or facsimile machines). Employee further agrees that at all times in the future Employee shall remain bound by the PIIA.

Employee understands that Employee has the right to consult with an attorney before signing this Release. Employee also understands that Employee has [21/45] days after receipt of this Release to review and consider this Release, discuss it with an attorney of Employee’s own choosing, and decide to execute it or not execute it. Employee also understands that Employee may revoke this Release during a period of seven days after Employee signs it and that this Release will not become effective for seven days after Employee signs it (and then only if Employee does not revoke it). In order to revoke this Release, within seven days after Employee executes this Release Employee must deliver to                     at the Company a letter stating that Employee is revoking it. Employee understands that if Employee chooses to revoke this Release within seven days after Employee signs it, Employee will not receive any Change in Control Severance Payment and the Release will have no effect.

[Signature page follows]

 

A-10


Employee states that before signing this Release, Employee:

Has read it;

Understands it;

Knows that he or she is giving up important rights;

Is aware of his or her right to consult an attorney before signing it; and

Has signed it knowingly and voluntarily.

 

Date:                                                                                       

 

Signature

 

Print Full Name

 

A-11

 

 

 

 

 

EX-10.1 2 dex101.htm OFFER LETTER AGRMNT BY AND BETWEEN BLUE COAT SYSTEMS, INC. AND MICHAEL J. BORMAN

 

 

 

Exhibit 10.1

August 30, 2010

Dear Mike:

I am pleased to offer you a position with Blue Coat Systems, Inc. (the “Company”) as President and Chief Executive Officer, reporting to the Company’s Board of Directors. In this role you will be expected to perform such duties as are consistent with your title and position, as well as any other reasonable duties determined by the Company’s Board of Directors. We anticipate that you will commence employment with the Company on September 1, 2010.

We have structured a compensation package for you that includes the following:

 

 

 

You will receive an initial annual base salary of $585,000 (“Base Salary”), paid according to the Company’s standard payroll policies. The Company’s Compensation Committee will annually review your Base Salary.

 

 

 

You will be eligible to participate in the Company’s Profit Sharing Plan, or such successor plan or program as may be implemented by the Company from time to time to provide short term incentive compensation or bonuses to senior executives. Your initial annual target incentive compensation under the Profit Sharing Plan will be 100% of your Base Salary. The Company’s Compensation Committee will annually review your target incentive compensation.

 

 

 

You will be paid a relocation allowance of $200,000, less applicable withholding, with your first payroll check after your commencement of employment with the Company.

 

 

 

You will be recommended for a non-qualified option to purchase 225,000 shares of the Company’s Common Stock. The exercise price per share will be equal to the fair market value per share on the date the option is granted, which will be the third Thursday of the month after you commence employment. 25% of the option shares will vest and be exercisable after 12 months of service, and the balance will vest and be exercisable in monthly installments over the next 36 months of service, as described in the applicable stock option agreement and subject to your execution of that agreement. This award will be subject to applicable NASDAQ rules on inducement awards.

 

 

 

You will be recommended for an award of 75,000 restricted stock units (“RSUs”). 25% of the RSUs will vest on September 15, 2011, and the balance will vest in annual installments on the anniversary of such date over the following 3 years of service, as described in the applicable restricted stock unit agreement and subject to your execution of that agreement. This award will be subject to applicable NASDAQ rules on inducement awards.

 

 

 

You will be eligible to participate in the Company’s standard benefits plans and programs generally available to employees in the U.S., as they may be amended from time to time in the sole discretion

 

Blue Coat Systems, Inc.    420 North Mary Ave Sunnyvale, CA 94085    866.30BCOAT    T: 408.220.2200    F: 408.220.2250    www.bluecoat.com

 

 


 

 

 

 

of the Company. This includes automatic enrollment in the Company’s 401(k) Plan, unless you give our provider, Fidelity Investments, prompt notice of your election not to participate in that plan.

 

 

 

You will be eligible for other benefits offered to the Company’s senior executive officers and you shall participate in the CEO Executive Change in Control Severance Agreement provided herewith and be provided with the benefits of the Indemnification Agreement provided herewith, subject to your execution of those agreements.

Your employment shall be “at will,” meaning that either you or the Company will be entitled to terminate your employment at any time and for any reason, with or without cause. Nonetheless, you shall be entitled to certain benefits under the Executive Separation Policy provided herewith in the event of a termination without Cause or upon your termination for Good Reason (each as defined in your CEO Change in Control Severance Agreement (instead of the Executive Separation Policy)), and contingent on your executing the Release attached as Exhibit A hereto (instead of the Release attached to the Executive Separation Policy). In addition to the caveats to the Executive Separation Policy set forth above, the Executive Separation Policy solely as it applies to you is modified to provide that your “Separation Payment” may not be amended without your consent and shall be as follows:

You shall be paid an amount equal to your annual Base Salary plus 100% of your annual target incentive compensation payable in a single lump sum, and shall receive 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 you become eligible for health benefits with another employer, which shall be paid no later than the month of such coverage.

In the event that the severance and other benefits provided for in this offer letter or otherwise payable to you (i) constitute “parachute payments” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”) and (ii) but for this provision, would be subject to the excise tax imposed by Section 4999 of the Code, then, at Employee’s discretion, Employee’s severance, vesting and other benefits under this offer letter or otherwise shall be payable either (i) in full, or (ii) as to such lesser amount which would result in no portion of such severance and other benefits being subject to the excise tax under Section 4999 of the Code, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the excise tax imposed by Section 4999, results in the receipt by you on an after-tax basis, of the greatest amount of severance benefits under this offer letter or otherwise, notwithstanding that all or some portion of such severance benefits may be taxable under Section 4999 of the Code. Any reduction shall be made in the following manner: first a pro rata reduction of (i) cash payments subject to Section 409A of the Code as deferred compensation and (ii) cash payments not subject to Section 409A of the Code, and second a pro rata cancellation of (i) equity-based compensation subject to Section 409A of the Code as deferred compensation and (ii) equity-based compensation not subject to Section 409A of the Code. Reduction in either cash payments or equity compensation benefits shall be made prorata between and among benefits which are subject to Section 409A of the Code and benefits which are exempt from Section 409A of the Code. Unless the Company and you otherwise agree in writing, any determination required under this provision shall be made in writing by the Company’s independent public accountants (the “Accountants”), whose determination shall be conclusive and binding upon you and the Company for all purposes. For purposes of making the calculations required by this provision, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code. The Company and

 

Blue Coat Systems, Inc.    420 North Mary Ave Sunnyvale, CA 94085    866.30BCOAT    T: 408.220.2200    F: 408.220.2250    www.bluecoat.com

 

 


 

 

 

you shall furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this provision. The Company shall bear all costs the Accountants may reasonably incur in connection with any calculations contemplated by this provision.

While you remain an employee of the Company, to the extent consistent with the exercise of its fiduciary duties, the Company’s Board of Directors will recommend to the Company’s stockholders that you be elected to serve as a member of the Board of Directors. No compensation will be paid for such service. You agree to resign from the Board upon termination of your employment. It presently is anticipated that the Company will appoint you to the Board of Directors on October 7, 2010 to fill a vacant position.

In accordance with the Company’s vacation policy for senior level employees, you will not accrue vacation, but you will be expected to take a reasonable amount of vacation or personal time on an annual basis.

Like all Company employees, you will be required, as a condition of your employment with the Company, to sign the Company’s standard Proprietary Information and Inventions Agreement, a copy of which is enclosed. You agree that, during the term of your employment with the Company, you will not engage in any other employment, occupation, consulting or other business activity directly related to the business in which the Company is now involved or becomes involved during the term of your employment, nor will you engage in any other activities that conflict with your obligations to the Company. While you render services to the Company, you also will not assist any person or organization in competing with the Company, in preparing to compete with the Company or in hiring any employees or consultants of the Company.

In accordance with the requirements of the Immigration Reform and Control Act of 1986, you will be required to provide verification of your identity and your legal right to work in the United States. This offer is contingent upon your ability to provide us with such documentation. You also will be required to complete an application form and a reference and background check authorization form. Your offer of employment is contingent upon your execution of the application form and our receipt of satisfactory results from the background check, including verification of education and employment and a criminal records search.

Any dispute between you and the Company with respect to your employment and the terms and conditions of this offer of employment will be governed by the Arbitration Provision attached hereto as Exhibit B.

To the extent (a) any payments or benefits to which you become entitled under this offer letter, or under any agreement or plan referenced herein, in connection with Employee’s termination of employment with the Company constitute deferred compensation subject to Section 409A of the Code and (b) you are deemed at the time of such termination of employment to be a “specified employee” under Section 409A of the Code, then such payments shall not be made or commence until the earliest of (i) the expiration of the six (6)-month period measured from the date of your “separation from service” (as such term is at the time defined in Treasury Regulations under Section 409A of the Code) from the Company; or (ii) the date of your death following such separation from service; provided, however, that such deferral shall only be effected to the extent required to avoid adverse tax treatment to you, including (without limitation) the additional twenty percent (20%) tax for which you would otherwise be liable under Section 409A(a)(1)(B) of the Code in the absence of such deferral. Upon the expiration of the applicable deferral period, any payments which would have otherwise been made during that period (whether in a single sum or in installments) in the absence of this paragraph shall be paid to you or your beneficiary in one lump sum (without interest).

 

Blue Coat Systems, Inc.    420 North Mary Ave Sunnyvale, CA 94085    866.30BCOAT    T: 408.220.2200    F: 408.220.2250    www.bluecoat.com

 

 


 

 

 

Any termination of your employment is intended to constitute a “separation from service” and will be determined consistent with the rules relating to a “separation from service” as such term is defined in Treasury Regulation Section 1.409A-1. It is intended that each installment of the payments provided hereunder constitute separate “payments” for purposes of Treasury Regulation Section 1.409A-2(b)(2)(i). It is further intended that payments hereunder satisfy, to the greatest extent possible, the exemption from the application of Section 409A of the Code (and any state law of similar effect) provided under Treasury Regulation Section 1.409A-1(b)(4) (as a “short-term deferral”). To the extent that any provision of this Offer Letter is ambiguous as to its compliance with Section 409A of the Code, the provision will be read in such a manner so that all payments hereunder comply with Section 409A of the Code.

Except as otherwise expressly provided herein, to the extent any expense reimbursement or the provision of any in-kind benefit under this Offer Letter is determined to be subject to Section 409A of the Code, the amount of any such expenses eligible for reimbursement, or the provision of any in-kind benefit, in one calendar year shall not affect the expenses eligible for reimbursement in any other taxable year (except for any lifetime or other aggregate limitation applicable to medical expenses), in no event shall any expenses be reimbursed after the last day of the calendar year following the calendar year in which you incurred such expenses, and in no event shall any right to reimbursement or the provision of any in-kind benefit be subject to liquidation or exchange for another benefit.

This letter, together with the other policies and agreements referenced herein, and when accepted by you, constitutes the entire agreement between us with respect to your employment. It supersedes any prior understandings or agreements, whether oral or written, between you and the Company. This offer will remain open until the close of business on August 30, 2010. Your signature below acknowledges your acceptance of these terms.

On behalf of the entire Board of Directors, we look forward to working with you.

Sincerely,

 

/s/    David W. Hanna

 

/s/    Michael J. Borman        

 

August 30, 2010

David W. Hanna

Chairman of the Board of Directors

 

Michael J. Borman

 

Date

 

Blue Coat Systems, Inc.    420 North Mary Ave Sunnyvale, CA 94085    866.30BCOAT    T: 408.220.2200    F: 408.220.2250    www.bluecoat.com

 

 


 

 

 

EXHIBIT A

GENERAL RELEASE OF ALL CLAIMS

In consideration of the [describe payment] to be paid              (“Employee”) by Blue Coat Systems, Inc. ( the “Company”), as described in the attached Executive Change in Control Severance Agreement (the “Agreement”), Employee, on Employee’s own behalf and on behalf of Employee’s heirs, executors, administrators and assigns, to the fullest extent permitted by applicable law, hereby fully and forever releases and discharges the Company and its past, present and future directors, officers, employees, agents, successors, predecessors, subsidiaries, parent, shareholders, employee benefit plans and assigns (together called “the Releasees”), from all known and unknown claims and causes of action including, without limitation, any claims or causes of action arising out of or relating in any way to Employee’s employment with the Company, including the termination of that employment.

Employee understands and agrees that this General Release of All Claims (the “Release”) is a full and complete waiver of all claims including, without limitation, claims of wrongful discharge, constructive discharge, breach of contract, breach of the covenant of good faith and fair dealing, harassment, retaliation, discrimination, violation of public policy, defamation, invasion of privacy, interference with a leave of absence, personal injury or emotional distress and claims under Title VII of the Civil Rights Act of 1964, the Fair Labor Standards Act, the Equal Pay Act of 1963, the Americans With Disabilities Act, the Civil Rights Act of 1866, the Age Discrimination in Employment Act of 1967 (ADEA), the California Labor Code, the California Fair Employment and Housing Act or any other federal or state law or regulation relating to employment or employment discrimination. Employee further understands and agrees that this waiver includes all claims, known and unknown, to the greatest extent permitted by applicable law. Notwithstanding the foregoing, this Release does not apply to (x) claims which cannot be released as a matter of law, (y) any right Employee may have to enforce the Agreement or (z) Employee’s eligibility for indemnification in accordance with applicable laws, the charter and bylaws of the Company or any indemnification agreement or fiduciary insurance policy Employee has with the Company.

Employee also hereby agrees that nothing contained in this Release shall constitute or be treated as an admission of liability or wrongdoing by the Releasees or Employee.

In addition, Employee hereby expressly waives any and all rights and benefits conferred upon Employee by the provisions of Section 1542 of the Civil Code of the State of California, and any law of any jurisdiction of similar effect. Section 1542 states as follows:

A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing

 

Blue Coat Systems, Inc.    420 North Mary Ave Sunnyvale, CA 94085    866.30BCOAT    T: 408.220.2200    F: 408.220.2250    www.bluecoat.com

 

 


 

 

 

the release, which if known by him or her must have materially affected his or her settlement with the debtor.

If any provision of this Release is found to be unenforceable, it shall not affect the enforceability of the remaining provisions and the court shall enforce all remaining provisions to the fullest extent permitted by applicable law.

This Release constitutes the entire agreement between Employee and Releasees with regard to the subject matter of this Release. It supersedes any other agreements, representations or understandings, whether oral or written and whether express or implied, which relate to the subject matter of this Release. Employee understands and agrees that this Release may be modified only in a written document signed by Employee and a duly authorized officer of the Company.

Employee agrees that the Company shall have no duty to provide to Employee any severance benefits described in the Agreement unless and until Employee (a) has signed the Company’s Proprietary Information and Inventions Agreement (“PIIA”) and (b) has returned to the Company any and all of the Company’s property in Employee’s possession or under Employee’s control (including, but not limited to, cellular phones; computers; keys; credit cards; access badges; Company files or documents, including copies thereof; or facsimile machines). Employee further agrees that at all times in the future Employee shall remain bound by the PIIA.

Employee understands that Employee has the right to consult with an attorney before signing this Release. Employee also understands that Employee has [21/45] days after receipt of this Release to review and consider this Release, discuss it with an attorney of Employee’s own choosing, and decide to execute it or not execute it. Employee also understands that Employee may revoke this Release during a period of seven days after Employee signs it and that this Release will not become effective for seven days after Employee signs it (and then only if Employee does not revoke it). In order to revoke this Release, within seven days after Employee executes this Release Employee must deliver to              at the Company a letter stating that Employee is revoking it. Employee understands that if Employee chooses to revoke this Release within seven days after Employee signs it, Employee will not receive any Change in Control Severance Payment and the Release will have no effect.

[Signature page follows]

 

Blue Coat Systems, Inc.    420 North Mary Ave Sunnyvale, CA 94085    866.30BCOAT    T: 408.220.2200    F: 408.220.2250    www.bluecoat.com

 

 


 

 

 

Employee states that before signing this Release, Employee:

Has read it;

Understands it;

Knows that he or she is giving up important rights;

Is aware of his or her right to consult an attorney before signing it; and

Has signed it knowingly and voluntarily.

 

Date:

 

 

 

 

Signature

 

Print Full Name

 

Blue Coat Systems, Inc.    420 North Mary Ave Sunnyvale, CA 94085    866.30BCOAT    T: 408.220.2200    F: 408.220.2250    www.bluecoat.com

 

 


 

 

 

EXHIBIT B

BLUE COAT SYSTEMS, INC.

EMPLOYMENT ARBITRATION PROVISION

(a) Any dispute arising under my offer letter from the Company or otherwise relating to my employment with the Company, including the termination of my employment or any condition of or benefit with respect to my employment (“Dispute”), shall be finally resolved by arbitration under the administration of JAMS and in accordance with the then-current JAMS Employment Arbitration Rules & Procedures (“Rules”) in the jurisdiction in which I am, or was, employed by the Company. Copies of these rules are available at http://www.jamsadr.com, and shall be made available to me upon request. Any disputes concerning the enforcement, scope, or applicability of this Arbitration Provision shall in the first instance be determined by the arbitrator in accordance with the Federal Arbitration Act. Should either of us disregard this provision and initiate an action in any court or administrative agency with respect to a Dispute, the other party may apply to a court of competent jurisdiction to order the matter to arbitration. The prevailing party in any such hearing shall be entitled to recover its reasonable costs and attorneys’ fees incurred in connection therewith.

(b) Either of us may initiate arbitration to resolve a Dispute by delivering to the other party through personal delivery, certified or registered mail, a written demand for arbitration. The demand shall include a concise statement of the issue(s) to be arbitrated, along with a statement setting forth the relief requested. Along with the demand for arbitration, if I am the filing party, I shall submit a check or money order payable to “JAMS” in the amount of the then prevailing JAMS initial Case Management Fee, as my portion of the administrative fees of the arbitration. Thereafter, the remaining costs of the arbitration (such as the arbitrator’s fees, costs of a court reporter, and room rental fees, if any), but not the cost of any transcript, shall be paid by the Company. Any remaining fees and costs, including but not limited to attorneys’ fees shall, subject to any remedy to which the prevailing party may be entitled to under the law, be borne by each party to the same extent as that party would be responsible for such fees and costs were the Dispute litigated in court. Any demand for arbitration by either of us must be filed within the statute or statutes of limitation that is or are applicable to the claim or claims relating to the Dispute upon which arbitration is sought or required. Any failure to request arbitration within this time frame and according to this Arbitration Provision shall constitute a waiver of all rights to raise any claims in any forum arising out of the Dispute.

(c) The arbitrator be empowered to award either party any remedy at law or in equity to which the prevailing party would otherwise have been entitled had the Dispute been litigated in court, including but not limited to, general, special and punitive damages, recoverable costs, attorney fees (where provided by statute or contract) and injunctive relief; provided, however, that the authority to award any remedy is subject to whatever limitations, if any, exist in the applicable law on such remedies. The arbitrator shall have no jurisdiction to issue any award contrary to or inconsistent with law. The arbitrator shall issue a signed written statement regarding the disposition of each claim of the Dispute and the relief, if any, awarded as to each claim. The arbitrator will also provide a concise written statement of the reasons for the award, stating the essential findings and conclusions on which the award was based.

 

Blue Coat Systems, Inc.    420 North Mary Ave Sunnyvale, CA 94085    866.30BCOAT    T: 408.220.2200    F: 408.220.2250    www.bluecoat.com

 

 


 

 

 

(d) Notwithstanding the foregoing provisions of this provision, nothing herein is intended to nor shall preclude (i) me from filing any administrative charge of discrimination with the United States Equal Employment Opportunity Commission or equivalent state agency, or (ii) either me or the Company from seeking temporary or preliminary injunctive relief from a court of applicable jurisdiction pending final resolution of a Dispute.

(e) Except for the Federal Arbitration Act, the interpretation of any matter in the Dispute (including matters arising under my offer letter from the Company or otherwise relating to my employment with the Company, including the termination of my employment or any condition of or benefit with respect to my employment) shall be governed by and construed in accordance with the laws of (a) the State of Texas, if I am employed in Texas; (b) the State of Utah, if I am employed in Utah; and (c) the State of California, if I am employed in a state other than Texas or Utah. The application of Texas, Utah or California law to this Agreement shall not act as a means to add to or increase the statutory or administrative rights granted to employees in the jurisdiction in which I am, or was, employed by the Company in the event that I seek enforcement of such statutory or administrative rights against the Company. In such event, the arbitrator or presiding official shall apply only the statutory and administrative laws of the state in the jurisdiction in which I am, or was, employed by the Company.

 

Blue Coat Systems, Inc.    420 North Mary Ave Sunnyvale, CA 94085    866.30BCOAT    T: 408.220.2200    F: 408.220.2250    www.bluecoat.com

 

 

 

 

 

 

 

 

EX-10.2 3 dex102.htm CEO CHANGE IN CONTROL SEVERANCE AGREEMENT

Exhibit 10.2

CEO CHANGE IN CONTROL SEVERANCE AGREEMENT

This CEO CHANGE IN CONTROL SEVERANCE AGREEMENT (“Agreement”), is dated as of             (the “Effective Date”) and made by and between Blue Coat Systems, Inc., a Delaware corporation (the “Company”), and Michael J. Borman (“Employee”).

NOW THEREFORE, in consideration 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

TERM AND NATURE OF AGREEMENT

Section 1.01. Term. This Agreement shall be in force until the fourth 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

CHANGE IN CONTROL TERMINATION

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) 150% of Employee’s then-existing annual base salary and (y) the Employee’s annual target incentive compensation under the Employee’s then existing incentive compensation plan, which shall be paid as soon as administratively practicable provided the Release has become 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) 18 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 100% vested and exercisable, and in the case of restricted stock units, settled within 30 days of termination.

(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 felony; (B) Employee engages in any act of fraud or dishonesty that relates to the performance of his duties and is detrimental, or reasonably likely to be detrimental, to the Company; (C) Employee materially breaches any material 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; provided, however, that any action under (C), (D) or (E) that is curable without material detriment to the Company will not constitute Cause if corrected within 30 days following written notice thereof to the Employee by the Board of Directors, such notice to state with specificity the nature of the failure.

(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

 

2


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 90 days of the initial existence of such condition (which notice specifically identifies such condition), (y) gives the Company at least 30 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,

 

3


restricted stock units or stock appreciation rights, except for performance stock awards which remain subject to performance criteria as of the Effective Date (provided that any portion of the award subject to time based vesting will vest to the extent of the time based component).

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.

ARTICLE 3

MISCELLANEOUS

Section 3.01. Assignment; Successors and Assigns. This Agreement shall inure to the benefit of and be enforceable by Employee’s personal or legal representatives, executors, administrators, successors, heirs, distributees, devisees, and legatees. If Employee should die or become subject to a permanent disability while any amount is owed but unpaid to Employee hereunder, all such amounts, unless otherwise provided

 

4


herein, shall be paid to Employee’s devisee, legatee, legal guardian or other designee, or if there is no such designee, to Employee’s estate. Employee’s rights hereunder shall not otherwise be assignable. This Agreement shall be binding on the Company’s successors and assigns.

Section 3.02. Dispute Resolution. To ensure rapid and economical resolution of any and all disputes that might arise in connection with this Agreement, Employee and the Company agree that any and all disputes, claims, and causes of action, in law or equity, arising from or relating to this Agreement or its enforcement, performance, breach, or interpretation, will be resolved solely and exclusively by final, binding, and confidential arbitration, by a single arbitrator, in San Francisco, California, and conducted by Judicial Arbitration & Mediation Services, Inc. (“JAMS”) under its then-existing employment rules and procedures. Nothing in this section, however, is intended to prevent either party from obtaining injunctive relief in court to prevent irreparable harm pending the conclusion of any such arbitration. Each party to an arbitration or litigation hereunder shall be responsible for the payment of its own attorneys’ fees.

Section 3.03. Unfunded Agreement. The obligations of the Company under this Agreement represent an unsecured, unfunded promise to pay benefits to Employee and/or Employee’s beneficiaries, and shall not entitle Employee or such beneficiaries to a preferential claim to any asset of the Company.

Section 3.04. Non-Exclusivity of Benefits. Unless specifically provided herein, neither the provisions of this Agreement nor the benefits provided hereunder shall reduce any amounts otherwise payable, or in any way diminish Employee’s rights as an employee of the Company, whether existing now or hereafter, under any compensation and/or benefit plans (qualified or nonqualified), programs, policies, or practices provided by the Company, for which Employee may qualify; provided that the Change in Control Severance Benefits shall not be duplicative of any severance benefits under any such plans, programs, policies or practices and that any amounts payable to Employee hereunder shall be reduced by any amounts paid to Employee as required by any applicable federal, state or local law (including without limitation the WARN Act) in connection with any termination of Employee’s employment. Vested benefits or other amounts which Employee is otherwise entitled to receive under any plan, policy, practice, or program of the Company (i.e., including, but not limited to, vested benefits under any qualified or nonqualified retirement plan, but not including severance benefits), at or subsequent to the termination date shall be payable in accordance with such plan, policy, practice, or program except as expressly modified by this Agreement.

Section 3.05. Mitigation. In no event shall Employee be obligated to seek other employment or take any other action by way of mitigation of the amounts payable to Employee under any of the provisions of this Agreement nor shall the amount of any payment or benefit hereunder be reduced by any compensation earned by Employee as a result of employment by another employer.

Section 3.06. Entire Agreement. This Agreement, together with the offer letter, dated August 30, 2010, between Employee and the Company, represents the entire

 

5


agreement between Employee and the Company and its affiliates with respect to Employee’s severance rights in a Change in Control situation, and is primary to and supersedes all prior and contemporaneous discussions, negotiations, and agreements concerning such rights, including, but not limited to, any rights under the Company’s Executive Separation Policy.

Section 3.07. Tax Withholding. Notwithstanding anything in this Agreement to the contrary, the Company shall withhold from any amounts payable under this Agreement all federal, state, city, or other taxes as are legally required to be withheld.

Section 3.08. Waiver of Rights. The waiver by either party of a breach of any provision of this Agreement shall not operate or be construed as a continuing waiver or as a consent to or waiver of any subsequent breach hereof.

Section 3.09. Severability. In the event any provision of the Agreement shall be held illegal or invalid for any reason, the illegality or invalidity shall not affect the remaining parts of the Agreement, and the Agreement shall be construed and enforced as if the illegal or invalid provision had not been included.

Section 3.10. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of California without reference to principles of conflict of laws.

Section 3.11. Counterparts. This Agreement may be signed in several counterparts, each of which shall be an original, with the same effect as if the signatures thereto and hereto were on the same instrument.

Section 3.12. Code Section 409A. This Agreement and the payments and benefits hereunder are intended to qualify for the short-term deferral exception to Section 409A of the Code, and all regulations, rulings and other guidance issued thereunder, all as amended and in effect from time to time (“Section 409A”), described in Treasury Regulation Section 1.409A-1(b)(4) to the maximum extent possible, and to the extent they do not so qualify, they are intended to qualify for the involuntary separation pay plan exception to Section 409A described in Treasury Regulation Section 1.409A-1(b)(9)(iii) to the maximum extent possible. To the extent Section 409A is applicable to this Agreement, this Agreement is intended to comply with Section 409A. Without limiting the generality of the foregoing, if on the date of termination of employment Employee is a “specified employee” within the meaning of Section 409A as determined in accordance with the Company’s procedures for making such determination, to the extent required in order to comply with Section 409A, amounts that would otherwise be payable under this Agreement during the six-month period immediately following the termination date shall instead be paid on the first business day after the date that is six months following the termination date. All references herein to “termination date” or “termination of employment” shall mean separation from service as an employee within the meaning of Section 409A. The Company makes no representation or warranty and shall have no liability to the Employee or any other person if any provisions of this Agreement are determined to constitute deferred compensation subject to Section 409A of the Code but

 

6


do not satisfy an exemption from, or the conditions of, such Section. Except as otherwise expressly provided herein, to the extent any expense reimbursement or the provision of any in-kind benefit under this Agreement is determined to be subject to Section 409A of the Code, the amount of any such expenses eligible for reimbursement, or the provision of any in-kind benefit, in one calendar year shall not affect the expenses eligible for reimbursement in any other taxable year (except for any lifetime or other aggregate limitation applicable to medical expenses), in no event shall any expenses be reimbursed after the last day of the calendar year following the calendar year in which you incurred such expenses, and in no event shall any right to reimbursement or the provision of any in-kind benefit be subject to liquidation or exchange for another benefit.

[Signature page follows]

 

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IN WITNESS WHEREOF, the Company and the Employee have executed this Agreement, to be effective as of the date and year first written above.

 

BLUE COAT SYSTEMS, INC.

By:

 

 

Name:

Title:

 

EMPLOYEE:

By:

 

 

Name:

Title:

 

8


EXHIBIT A

GENERAL RELEASE OF ALL CLAIMS

In consideration of the Change in Control Severance Payment to be paid to             (“Employee”) by Blue Coat Systems, Inc. ( the “Company”), as described in the attached Executive Change in Control Severance Agreement (the “Agreement”), Employee, on Employee’s own behalf and on behalf of Employee’s heirs, executors, administrators and assigns, to the fullest extent permitted by applicable law, hereby fully and forever releases and discharges the Company and its past, present and future directors, officers, employees, agents, successors, predecessors, subsidiaries, parent, shareholders, employee benefit plans and assigns (together called “the Releasees”), from all known and unknown claims and causes of action including, without limitation, any claims or causes of action arising out of or relating in any way to Employee’s employment with the Company, including the termination of that employment.

Employee understands and agrees that this General Release of All Claims (the “Release”) is a full and complete waiver of all claims including, without limitation, claims of wrongful discharge, constructive discharge, breach of contract, breach of the covenant of good faith and fair dealing, harassment, retaliation, discrimination, violation of public policy, defamation, invasion of privacy, interference with a leave of absence, personal injury or emotional distress and claims under Title VII of the Civil Rights Act of 1964, the Fair Labor Standards Act, the Equal Pay Act of 1963, the Americans With Disabilities Act, the Civil Rights Act of 1866, the Age Discrimination in Employment Act of 1967 (ADEA), the California Labor Code, the California Fair Employment and Housing Act or any other federal or state law or regulation relating to employment or employment discrimination. Employee further understands and agrees that this waiver includes all claims, known and unknown, to the greatest extent permitted by applicable law. Notwithstanding the foregoing, this Release does not apply to (x) claims which cannot be released as a matter of law, (y) any right Employee may have to enforce the Agreement or (z) Employee’s eligibility for indemnification in accordance with applicable laws, the charter and bylaws of the Company or any indemnification agreement or fiduciary insurance policy Employee has with the Company.

Employee also hereby agrees that nothing contained in this Release shall constitute or be treated as an admission of liability or wrongdoing by the Releasees or Employee.

In addition, Employee hereby expressly waives any and all rights and benefits conferred upon Employee by the provisions of Section 1542 of the Civil Code of the State of California, and any law of any jurisdiction of similar effect. Section 1542 states as follows:

 

A-1


A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if known by him or her must have materially affected his or her settlement with the debtor.

If any provision of this Release is found to be unenforceable, it shall not affect the enforceability of the remaining provisions and the court shall enforce all remaining provisions to the fullest extent permitted by applicable law.

This Release constitutes the entire agreement between Employee and Releasees with regard to the subject matter of this Release. It supersedes any other agreements, representations or understandings, whether oral or written and whether express or implied, which relate to the subject matter of this Release. Employee understands and agrees that this Release may be modified only in a written document signed by Employee and a duly authorized officer of the Company.

Employee agrees that the Company shall have no duty to provide to Employee any severance benefits described in the Agreement unless and until Employee (a) has signed the Company’s Proprietary Information and Inventions Agreement (“PIIA”) and (b) has returned to the Company any and all of the Company’s property in Employee’s possession or under Employee’s control (including, but not limited to, cellular phones; computers; keys; credit cards; access badges; Company files or documents, including copies thereof; or facsimile machines). Employee further agrees that at all times in the future Employee shall remain bound by the PIIA.

Employee understands that Employee has the right to consult with an attorney before signing this Release. Employee also understands that Employee has [21/45] days after receipt of this Release to review and consider this Release, discuss it with an attorney of Employee’s own choosing, and decide to execute it or not execute it. Employee also understands that Employee may revoke this Release during a period of seven days after Employee signs it and that this Release will not become effective for seven days after Employee signs it (and then only if Employee does not revoke it). In order to revoke this Release, within seven days after Employee executes this Release Employee must deliver to              at the Company a letter stating that Employee is revoking it. Employee understands that if Employee chooses to revoke this Release within seven days after Employee signs it, Employee will not receive any Change in Control Severance Payment and the Release will have no effect.

[Signature page follows]

 

A-2


Employee states that before signing this Release, Employee:

Has read it;

Understands it;

Knows that he or she is giving up important rights;

Is aware of his or her right to consult an attorney before signing it; and

Has signed it knowingly and voluntarily.

 

Date:

 

 

 

 

Signature

 

Print Full Name

 

A-3

 

 

 

 

EX-10.1 2 dex101.htm SEPARATION AGREEMENT

Exhibit 10.1

August 16, 2011

Michael J. Borman

 

Re:

Separation Agreement

Dear Mike:

This letter agreement (this “Agreement”) constitutes the agreement between you and Blue Coat Systems, Inc. (the “Company”) regarding your separation from employment with the Company.

Separation Date. Your employment with the Company will terminate on August 16, 2011 (hereinafter “Separation Date”). As of the Separation Date, you resign from all of your positions with the Company and its subsidiaries. As of the Separation Date, you resign from the Company’s Board of Directors.

Final Salary; COBRA. Regardless of whether you sign the Release (as defined in Section 4), you will be paid the balance of your earned salary through the Separation Date, which shall be paid in accordance with applicable law. As of the Separation Date, you will no longer be eligible to participate in any of the Company’s benefit or compensation plans, except as provided by law or the terms of the applicable plans, and your Company equity awards will cease vesting. Information regarding your rights to continuation of your health insurance coverage under the terms of COBRA will be sent to you under separate cover. To the extent that you have such rights, nothing in this Agreement will impair them.

Status as of Separation Date. As of your Separation Date, you will no longer be an employee of the Company or its affiliates. As of your Separation Date, you will return to the Company any building key, security pass, or other access or identification cards (including any business cards) and any company property that is currently in your possession, including any documents, credit cards, computer equipment and mobile phones. By no later than ten days after your Separation Date, you will clear all expense accounts and pay all amounts owed on any corporate credit card(s) that the Company previously issued to you. The Company will reimburse you in accordance with its existing policies for any legitimate expenses you incurred on company business prior to the effective date of your termination consistent with the Company’s expense reimbursement policy.


Separation Benefits. In consideration of your execution of the execution of the General Release of All Claims in the form attached hereto as Exhibit A (the “Release”), the Company will provide to you the following separation benefits (the “Separation Benefits”), less customary payroll deductions, if you sign and do not revoke this Agreement, and subject to your compliance with this Agreement and the Release:

The amount of $1,170,000, representing an amount equal to your annual base salary and 100% of your annual target compensation, which shall be paid in a single lump sum on the 35th calendar day following the Separation Date; and

If you timely elect COBRA coverage for yourself and your eligible dependents, reimbursement of COBRA premiums for up to 12 months from your Separation Date (which payment shall be made no later than the month of such coverage), subject to earlier cessation in the event you become eligible for group health coverage from another employer.

CEO Change in Control Severance Agreement. Notwithstanding anything to the contrary in this Agreement, including without limitation payment of the Separation Benefits and your execution and non-revocation of this Agreement and/or the Release, in the event of a Change in Control (as defined in the CEO Change in Control Severance Agreement between you and the Company, dated September 1, 2010 (the “CEO Change in Control Agreement”)) occurring on or prior to October 16, 2011 and provided you satisfy the conditions set forth in such CEO Change in Control Agreement, you shall be entitled to all of the Change in Control Severance Benefits (as defined in the CEO Change in Control Agreement), less any amount previously paid as Separation Benefits under this Agreement.

Arbitration. Any dispute relating to the terms of your Separation or the Release (“Dispute”), shall be finally resolved by arbitration under the administration of JAMS and in accordance with the then-current JAMS Employment Arbitration Rules & Procedures (“Rules”) in Santa Clara County, California. Copies of these rules are available at http://www.jamsadr.com, and shall be made available to you upon request. Any disputes concerning the enforcement, scope, or applicability of this Arbitration Provision shall in the first instance be determined by the arbitrator in accordance with the Federal Arbitration Act. Should either of us disregard this provision and initiate an action in any court or administrative agency with respect to a Dispute, the other party may apply to a court of competent jurisdiction to order the matter to arbitration. The prevailing party in any such hearing shall be entitled to recover its reasonable costs and attorneys’ fees incurred in connection therewith.

Either of us may initiate arbitration to resolve a Dispute by delivering to the other party through personal delivery, certified or registered mail, a written demand for arbitration. The demand shall include a concise statement of the issue(s) to be arbitrated, along with a statement setting forth the relief requested. Along with the demand for arbitration, if you are the filing party, you shall submit a check or money order payable to “JAMS” in the amount of the then prevailing JAMS initial Case Management Fee, as your portion of the administrative fees of the arbitration. Thereafter, the remaining costs of the arbitration (such as the arbitrator’s fees, costs of a court reporter, and room rental fees, if any), but not the cost of any transcript, shall be paid by the Company. Any remaining fees and costs, including but not limited to attorneys’ fees shall, subject to any remedy to which the prevailing party may be entitled to under the law, be borne by each party to the same extent as that party would be responsible for such fees and costs were the


Dispute litigated in court. Any demand for arbitration by either of us must be filed within the statute or statutes of limitation that is or are applicable to the claim or claims relating to the Dispute upon which arbitration is sought or required. Any failure to request arbitration within this time frame and according to this Arbitration Provision shall constitute a waiver of all rights to raise any claims in any forum arising out of the Dispute.

The arbitrator shall be empowered to award either party any remedy at law or in equity to which the prevailing party would otherwise have been entitled had the Dispute been litigated in court, including but not limited to, general, special and punitive damages, recoverable costs, attorney fees (where provided by statute or contract) and injunctive relief; provided, however, that the authority to award any remedy is subject to whatever limitations, if any, exist in the applicable law on such remedies. The arbitrator shall have no jurisdiction to issue any award contrary to or inconsistent with law. The arbitrator shall issue a signed written statement regarding the disposition of each claim of the Dispute and the relief, if any, awarded as to each claim. The arbitrator will also provide a concise written statement of the reasons for the award, stating the essential findings and conclusions on which the award was based.

Governing Law. This Agreement will in all respects be interpreted and governed under the laws of the State of California.

Governing Law. This Agreement will in all respects be interpreted and governed under the laws of the State of California.

Severability. If any provision of this Agreement is determined by an arbitrator or court of competent jurisdiction to be invalid, unenforceable or void, such provision shall be enforced to the extent permitted by law and the remainder of this Agreement shall remain in full force and effect.

Consideration and Acceptance of Agreement; Effective Date of Agreement. You have 21 days to consider and accept the terms of this Agreement and the Release (although you may accept it at any time within those 21 days). Once signed, please send the Agreement and the Release to the attention of Betsy E. Bayha, General Counsel, at the Company. The date of your signature will constitute the “effective date” of this Agreement. This Agreement may be signed in counterparts, which together shall constitute one agreement. Notifications given under this Agreement and with respect to the Release should be personally delivered, sent by recognized international courier (e.g. Federal Express) with a return receipt requested or sent certified mail.

No Further Claims. As of the date of your signature below, you agree that you have received all compensation and benefits owed to you by the Company (except your earned salary through the Separation Date and, if you sign and do not revoke the Release, the Severance Payment). As of the date of your signature below, you have no employment-related claims against the Company and have no intention of filing such claims in the future. You further acknowledge that you have not assigned any claims arising out of your employment to any third party.


We wish you every success in your future endeavors.

 

Sincerely,

Blue Coat Systems, Inc.

By:

 

/s/ David W. Hanna

 

David W. Hanna

 

Chairman of the Board of Directors

By signing this Agreement, I acknowledge that I have carefully reviewed and considered this Agreement; that I fully understand all of its terms; and that I voluntarily agree to them.

 

/s/ Michael J. Borman

Michael J. Borman

Dated: August 17, 2011


GENERAL RELEASE OF CLAIMS

Michael J. Borman (“Employee”), on Employee’s own behalf and on behalf of Employee’s heirs, executors, administrators and assigns, to the fullest extent permitted by applicable law, hereby fully and forever releases and discharges Blue Coat Systems, Inc. (the “Company”) and its past, present and future directors, officers, employees, agents, successors, predecessors, subsidiaries, parent, shareholders, employee benefit plans and assigns (together called “the Releasees”), from all known and unknown claims and causes of action including, without limitation, any claims or causes of action arising out of or relating in any way to Employee’s employment with the Company, including the termination of that employment.

Employee understands and agrees that this General Release of All Claims (the “Release”) is a full and complete waiver of all claims including, without limitation, claims of wrongful discharge, constructive discharge, breach of contract, breach of the covenant of good faith and fair dealing, harassment, retaliation, discrimination, violation of public policy, defamation, invasion of privacy, interference with a leave of absence, personal injury or emotional distress and claims under Title VII of the Civil Rights Act of 1964, the Fair Labor Standards Act, the Equal Pay Act of 1963, the Americans With Disabilities Act, the Civil Rights Act of 1866, the Age Discrimination in Employment Act of 1967 (ADEA), the California Labor Code, the California Fair Employment and Housing Act or any other federal or state law or regulation relating to employment or employment discrimination. Employee further understands and agrees that this waiver includes all claims, known and unknown, to the greatest extent permitted by applicable law. Notwithstanding the foregoing, this Release does not apply to (x) claims which cannot be released as a matter of law, (y) any right Employee may have to enforce the Agreement or (z) Employee’s eligibility for indemnification in accordance with applicable laws, the charter and bylaws of the Company or any indemnification agreement or fiduciary insurance policy Employee has with the Company.

Employee also hereby agrees that nothing contained in this Release shall constitute or be treated as an admission of liability or wrongdoing by the Releasees or Employee.

In addition, Employee hereby expressly waives any and all rights and benefits conferred upon Employee by the provisions of Section 1542 of the Civil Code of the State of California, and any law of any jurisdiction of similar effect. Section 1542 states as follows:

A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if known by him or her must have materially affected his or her settlement with the debtor.

If any provision of this Release is found to be unenforceable, it shall not affect the enforceability of the remaining provisions and the court shall enforce all remaining provisions to the fullest extent permitted by applicable law.


This Release constitutes the entire agreement between Employee and Releasees with regard to the subject matter of this Release. It supersedes any other agreements, representations or understandings, whether oral or written and whether express or implied, which relate to the subject matter of this Release. Employee understands and agrees that this Release may be modified only in a written document signed by Employee and a duly authorized officer of the Company.

Employee agrees that the Company shall have no duty to provide to Employee any severance benefits described in the Agreement unless and until Employee (a) has signed the Company’s Proprietary Information and Inventions Agreement (“PIIA”) and (b) has returned to the Company any and all of the Company’s property in Employee’s possession or under Employee’s control (including, but not limited to, cellular phones; computers; keys; credit cards; access badges; Company files or documents, including copies thereof; or facsimile machines). Employee further agrees that at all times in the future Employee shall remain bound by the PIIA.

Employee understands that Employee has the right to consult with an attorney before signing this Release. Employee also understands that Employee has 21 days after receipt of this Release to review and consider this Release, discuss it with an attorney of Employee’s own choosing, and decide to execute it or not execute it. Employee also understands that Employee may revoke this Release during a period of seven days after Employee signs it and that this Release will not become effective for seven days after Employee signs it (and then only if Employee does not revoke it). In order to revoke this Release, within seven days after Employee executes this Release Employee must deliver to Betsy E. Bayha, General Counsel, at the Company a letter stating that Employee is revoking it. Employee understands that if Employee chooses to revoke this Release within seven days after Employee signs it, Employee will not receive any Severance Payment and the Release will have no effect.

Employee states that before signing this Release, Employee:

Has read it;

Understands it;

Knows that he is giving up important rights;

Is aware of his or her right to consult an attorney before signing it; and

Has signed it knowingly and voluntarily.

 

/s/ Michael J. Borman

Michael J. Borman

Dated: August 17, 2011