CHANGE IN CONTROL AGREEMENT
This CHANGE IN CONTROL AGREEMENT (the "Agreement") is entered into effective as of February 1, 2005, by and between RF MICRO DEVICES, INC., a North Carolina corporation (the "Company"), and Xxxxxxxxx X. Xxxxxx (the "Executive").
WHEREAS, the Executive is currently employed by the Company; and
WHEREAS, the Company considers the establishment and maintenance of a sound and vital management group to be essential to protecting and enhancing the best interests of the Company and its shareholders; and
WHEREAS, the Company has determined that the best interests of the Company and its shareholders will be served by reinforcing and encouraging the continued dedication of the Executive to his assigned duties without distractions arising from a potential change in control of the Company; and
WHEREAS, this Agreement is intended to remove such distractions and to reinforce the continued attention and dedication of the Executive to his assigned duties;
NOW, THEREFORE, in consideration of the mutual promises and agreements contained in this Agreement and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Executive and the Company hereby agree as follows:
1. Term of Agreement. This Agreement shall become effective on the date hereof and shall continue in effect until the earliest of (a) February 1, 2008, if no Change in Control has occurred before that date; provided, however, that commencing on February 1, 2008 and each year thereafter, the term of this Agreement shall automatically be extended for an additional one year unless, not later than January 1 of the same year, the Company shall have given notice to the Executive that it does not wish to extend this Agreement (such three-year period, as it may be extended as described in Section 1(a) herein, being referred to as the "Term"); (b) the termination by either party of the Executive's employment with the Company for any reason prior to a Change in Control; or (c) the expiration following a Change in Control of two years and the fulfillment by the Company and the Executive of all of their obligations hereunder. Notice by the Company of its intention not to extend the term of this Agreement and its expiration at the end of the Term shall not constitute termination of employment and the Executive shall not be entitled to the payment of benefits under Sections 4 and 5 unless he is otherwise entitled to such benefits pursuant to the terms herein. Furthermore, nothing in the Section 1 shall cause this Agreement to terminate before both the Company and the Executive have fulfilled all of their obligations hereunder.
2. Change in Control.
(a) No
compensation shall be payable under this Agreement unless and until (i) there
has been a Change in Control of the Company while the Executive is still an
employee of the Company and (ii) the Executive's employment by the
Company is terminated for a reason other than one or more of the
circumstances specified in Section 3(a)(i) through (v).
(b) For the purposes of this Agreement, a "Change in Control" of the Company shall be deemed to have occurred on the first to occur of the following:
(i) The date any entity or person shall have become the beneficial owner of, or shall have obtained voting control over, fifty-one percent (51%) or more of the outstanding Common Stock of the Company;
(ii) The date
the shareholders of the Company approve a definitive agreement (A) to merge or
consolidate the Company with or into another corporation or other business
entity (for these purposes, each, a "corporation"), in which the
Company is not the continuing or surviving corporation or pursuant to which any
shares of Common Stock of the Company would be converted into cash, securities
or other property of another corporation, other than a merger or consolidation
of the Company in which holders of Common Stock immediately prior to the merger
or consolidation have the same proportionate ownership of Common Stock of the
surviving corporation immediately after the merger as immediately before, or
(B) to sell or otherwise dispose of all or substantially all the assets of the
Company; or
(iii) The date
there shall have been a change in a majority of the Board of Directors of the
Company within a 12-month period unless the nomination for election by the
Company's shareholders of each new director was approved by the vote of
two-thirds of the directors then still in office who were in office at the
beginning of the 12-month period.
For purposes herein, the term "person" shall mean any individual, corporation, partnership, group, association or other person, as such term is defined in Section 13(d)(3) or Section 14(d)(2) of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), other than the Company, a subsidiary of the Company or any employee benefit plan(s) sponsored or maintained by the Company or any subsidiary thereof, and the term "beneficial owner" shall have the meaning given the term in Rule 13d-3 under the Exchange Act.
3.
Termination
Following Change in Control.
(a) Termination. If a Change in Control of
the Company shall have occurred while the Executive is still an employee of the
Company, the Executive shall be entitled to the payments provided in Sections 4
and 5 herein upon the termination of the Executive's employment with the
Company within the twenty-four (24) month period following a Change in Control,
whether such termination is by the Executive or by the Company, unless
such termination is as a result of (i) the Executive's death; (ii) the
Executive's Disability (as defined in Section 3(b) below); (iii) the
Executive's Retirement (as defined in Section 3(c) below); (iv) the Executive's
termination of employment by the Company for Cause (as defined in Section 3(d)
below); or (v) the Executive's decision to terminate employment other than for
Good Reason (as defined in Section 3(e) below). For the purposes of this
Agreement, the twenty-four (24) month period following a Change in
Control shall be referred to as the "Termination Period."
(b) Death or Disability.
(i) Disability.
In the event that the Executive's employment terminates because of Disability,
the Company shall have no obligation or liability to the Executive pursuant to
this Agreement by reason of such termination (except as may be otherwise
provided in Section 4(d) herein) and this Agreement shall terminate upon the
Executive's termination of employment due to Disability; provided, however,
that the Executive's termination of employment due to Disability shall be
effective only at the end of thirty (30) days following the delivery of written
notice by the Company to the Executive of such termination due to Disability
and only if Executive fails to return to the full-time performance of duties by
the end of such 30-day notice period. For the purposes of this Agreement,
"Disability" shall mean a physical or mental illness or injury that
prevents the Executive from performing the essential functions of his duties
(as they existed immediately before the illness or injury) on a full-time basis
for a period of at least six (6) consecutive months. The Board of Directors of
the Company (the "Board") shall have sole authority to determine if a
Disability exists.
(ii) Death.
This Agreement shall terminate immediately in the event of the death of the
Executive occurring at any time during the Term hereof, and in such event the
Company shall have no obligation or liability to the Executive or his legal
representatives by reason of such termination (except as may be otherwise
provided in Section 4(d) herein).
(c) Retirement.
In the event that the Executive's employment terminates due to his
Retirement, the Company shall have no obligation or liability to the Executive
pursuant to this Agreement upon such termination (except as otherwise provided
in Section 4(d) herein), and the Agreement shall terminate upon the Executive's
termination of employment due to such Retirement. "Retirement" as
used in this Agreement shall mean the earlier to occur of (A) the Executive's
normal retirement date under the Company's tax-qualified retirement plan or any
successor plan thereto applicable to the Executive or (B) the Executive's
retirement date under a contract, if any, between the Executive and the Company
providing for his retirement from the employment of the Company or an affiliate
(as defined in Section 11(a) herein) on a date other than such normal
retirement date.
(d) Cause.
(i) If the
Executive's employment with the Company is terminated for Cause, the Company
shall have no obligation or liability to the Executive under this Agreement
(except as may be otherwise provided in Section 4(d) herein), and this
Agreement shall terminate upon the Executive's termination of employment for
Cause.
(ii) For purposes of this Agreement, "Cause" shall be determined solely by the Board in the exercise of good faith and reasonable judgment, and shall mean the occurrence of any one or more of the following:
(A) The
continued failure of the Executive to perform his duties with the Company
(other than any such failure resulting from the Executive's incapacity due to
physical or mental illness or any such failure after the Executive has received
a Notice of Termination without Cause by the Company or has delivered a Notice
of Termination for Good Reason to the Company) which has not been corrected
within thirty (30) days after a written demand for performance is delivered to
the Executive by the Board which specifically identifies the manner in which
the Board believes that the Executive has not substantially performed the
Executive's duties;
(B) The
Executive's engaging in conduct that damages or prejudices the Company or any
affiliate or engaging in conduct or activities damaging to the property,
business or reputation of the Company or any affiliate, including but not
limited to breaching Company policies including those related to equal
employment opportunity and unlawful harassment;
(C) The
conviction of the Executive of, or a plea by the Executive of nolo contendere
to, a felony, or any misdemeanor that involves moral turpitude;
(D) The
Executive's engaging in any act of fraud, theft, misappropriation, embezzlement
or dishonesty to the material detriment of the Company;
(E) Any
diversion by the Executive of a material business opportunity from the Company
without written Board consent;
(F) Any breach
by the Executive of a material term of the Agreement (including but not limited
to the Executive's breach of any covenant contained in Section 9 herein); or
(G) The Executive's continued substance abuse, as determined by the Board after written notice from the Board and a reasonable opportunity to undergo appropriate treatment for a reasonable period.
Any act, or failure to
act, based upon authority given pursuant to a resolution duly adopted by the
Board shall be conclusively presumed to be done, or omitted to be done, by the
Executive in good faith and in the best interests of the Company. Cause shall
not exist unless and until the Company has delivered to the Executive a copy of
a resolution duly adopted by the majority of the Board (excluding the Executive
if the Executive is a Board member) at a meeting of the Board called and held
for such purpose (after reasonable notice to the Executive and an opportunity
for the Executive, together with counsel, to be heard before the Board),
finding that in the good faith opinion of the Board an event set forth in any
one or more of clauses (A) through (G) herein has occurred and specifying the
particulars thereof in detail.
(e) Good
Reason. The Executive may terminate his employment for Good Reason at any
time after a Change of Control during ther Termination Period. For purposes of this
Agreement, "Good Reason" shall mean any of the following:
(i) A
material reduction by the Company without the Executive's written consent in
the Executive's basic duties and responsibilities;
(ii) Any material reduction by the Company without the Executive's written consent of the Executive's base salary as in effect on the date hereof (or as the same may be adjusted with Executive's written consent from time to time during the Term), other than a reduction which is part of a salary reduction plan applicable to all officers or all employees of the Company, as the case may be (and not the Executive singly);
(iii) Any
failure by the Company to continue the Executive's ability to participate in
any plan or arrangement, including, without limitation, any life insurance,
accident, disability or health insurance plan, thrift plan, pension plan,
retirement plan, profit-sharing plan, or any other qualified or non-qualified
employee benefit plan, bonus plan, incentive plan, stock option, restricted
stock, stock purchase or other stock-based plan, and all other similar plans or
arrangements which are from time to time made generally available to officers
of the Company and in which the Executive participates, unless there are
substituted therefore plans or arrangements providing the Executive with
essentially equivalent and no less favorable benefits, or any action or
inaction by the Company which would adversely affect the Executive's
participation in or materially reduce the Executive's benefits under any such
plan or successor plan or deprive the Executive of any material fringe benefit
enjoyed by the Executive; provided, however, that (A) a reduction
in the Executive's incentive or bonus plan payments due to the failure to
attain certain performance-based objectives or (B) a reduction in the
Executive's benefits due to the Company's decision to discontinue the
availability of any plan or arrangement to all officers or all employees, as
the case may be (and not the Executive singly), shall not be deemed to
constitute "Good Reason" under this Section 3(e)(iii);
(iv) A
relocation of the Company's principal executive offices to a location in excess
of 30 miles from Greensboro, North Carolina, or the Executive's relocation to
any place other than the location at which the Executive performed the
Executive's duties prior to a Change in Control of the Company, except for (A)
required travel by the Executive on the Company's business to an extent
substantially consistent with the Executive's business travel obligations
during the 12 months immediately preceding a Change of Control of the Company
or (B) a relocation with the Executive's express written consent;
(v) Any
material reduction in the number of paid vacation days to which the Executive
is entitled at the time of a Change of Control of the Company (other than a
reduction with the Executive's written consent);
(vi) Any failure by the Company without the Executive's written consent to obtain the express assumption of this Agreement by any successor or assignee of the Company (and parent corporation of such successor or assignee, if applicable) as provided in Section 11(a) herein.
(f) Notice
of Termination. Any
termination of the Executive's employment (i) by the Company due to Disability,
Retirement or for Cause or (ii) by the Executive for Good Reason shall be
communicated by a Notice of Termination. For purposes of this Agreement, a
"Notice of Termination" shall mean a written notice which shall
indicate those specific termination provisions in this Agreement relied upon
and which sets forth in reasonable detail the facts and circumstances claimed
to provide a basis for termination of the Executive's employment under the
provisions so indicated. For purposes of this Agreement, no such purported
termination by the Company or the Executive shall be effective without such
Notice of Termination.
(g) Date
of Termination. "Date of Termination" shall mean (i) if the Executive is
terminated by the Company for Disability, 30 days after Notice of Termination
is given to the Executive (provided that the Executive shall not have returned
to the performance of the Executive's duties on a full-time basis during such
30-day period); (ii) if the Executive is terminated by the Company for any
other reason, the date on which a Notice of Termination is given (or such later
date as is specified in such notice); or (iii) if the Executive terminates for
Good Reason, the date on which a Notice of Termination is given (or such later
date as is specified in such notice).
4.
Payment of
Compensation upon Termination of Employment. If, during the Termination Period, the employment of the Executive shall
terminate pursuant to a "Qualifying Termination" (as defined herein),
then the Company shall provide to the Executive the payments described in this
Section 4 and, if applicable, Section 5. For the purposes of the Agreement, a
"Qualifying Termination" means (i) the Company's termination of the
Executive's employment other than because of death, Disability,
Retirement or Cause, as provided in Sections 3(b), 3(c) and 3(d) herein, or
(ii) the Executive's termination of his employment for Good Reason pursuant to
Section 3(e) herein.
(a) Cash Payments. If, during the Termination Period, the employment of the Executive shall terminate pursuant to a Qualifying Termination, then the Company shall provide to the Executive the following cash payments:
(i) Within thirty (30) days following the
Date of Termination (or such earlier date, if any, as may be required under
applicable wage payment laws), a lump-sum cash amount equal to the sum of (A)
the Executive's base salary through the Date of Termination and any bonus amounts
which have been earned or become payable, to the extent not theretofore paid or
deferred, (B) a pro rata portion of the Executive's annual bonus for the fiscal
year in which the Executive's Date of Termination occurs in an amount at least
equal to (1) the Executive's Bonus Amount, multiplied by (2) a fraction, the
numerator of which is the number of days in the fiscal year in which the Date
of Termination occurs through the Date of Termination and the denominator of
which is three hundred sixty-five (365), and reduced by (3) any amounts paid
from the Company's incentive plan for the fiscal year in which the Executive's
Date of Termination occurs and (C) any accrued vacation pay, to the extent not
theretofore paid; plus
(ii) A severance benefit equal to the sum of (i) one (1) times the Executive's highest annual rate of base salary during the 12-month period immediately prior to Executive's Date of Termination, plus (ii) one (1) times the Executive's Bonus Amount. The severance benefits provided for pursuant to this Section 4(a)(ii) shall be paid in periodic installments over the Compensation Period (as defined herein) in accordance with the normal payroll practices of the Company. For the purposes of Section 4(a) herein, "Bonus Amount" shall mean the average annual incentive bonus earned by the Executive under any incentive bonus plan or plans of the Company (or its affiliates) during the last three (3) completed fiscal years of the Company immediately preceding the Executive's Date of Termination (or such shorter period that the Executive has been employed by the Company). The one (1) -year period following the Qualifying Termination of an Executive and during which the benefits provided pursuant to Section 4(a)(ii) and Section 4(b) shall be provided is referred to herein as the "Compensation Period."
(b) Continued Coverage. If, during the Termination Period, the employment of the Executive shall terminate pursuant to a Qualifying Termination, the Company shall continue to provide, during the Compensation Period, the Executive (and the Executive's dependents, if applicable) with the same level of medical, dental, vision, accident, disability and life insurance benefits upon substantially the same terms and conditions (including contributions required by the Executive for such benefits) as existed immediately prior to the Executive's Date of Termination; provided, however, that if the Company is unable to provide any of these benefits under its benefit plans in effect during the Compensation Period, the Company shall pay to the Executive an amount sufficient to enable the Executive to procure comparable benefits on his own. Notwithstanding the foregoing, in the event the Executive becomes reemployed with another employer and becomes eligible to receive welfare benefits from such employer, the welfare benefits described herein shall be secondary to such benefits during the period of the Executive's eligibility, but only to the extent that the Company reimburses the Executive for any increased cost and provides any additional benefits necessary to give the Executive the benefits provided hereunder. The Executive's accrued benefits as of the Date of Termination under the Company's employee benefit plans shall be paid to the Executive in accordance with the terms of such plans. In addition, if, during the Termination Period, the employment of the Executive shall terminate pursuant to a Qualifying Termination, the Company shall provide the Executive with one (1) additional year of service credit under all non-qualified retirement plans and excess benefit plans in which the Executive participated as of his Date of Termination.
(c) Stock Awards. If, during the Termination
Period, the employment of the Executive shall terminate pursuant to a
Qualifying Termination, then the following shall apply with respect to any
stock-based awards granted by the Company.
(i) Stock
Options and Stock Appreciation Rights. All Company stock options, stock
appreciation rights or similar stock-based awards held by the Executive will be
accelerated and exercisable in full as of the Date of Termination, without
regard to the exercisability or vesting of such awards prior to the Date of
Termination.
(ii) Restricted Stock.
All restrictions on any
restricted stock, performance stock or similar stock-based awards granted by
the
Company, including without limitation any vesting or performance criteria,
held by the Executive as of the Date of Termination shall
be removed and such
awards shall be deemed vested and earned in full.
(d) Payments Due to Termination Other than Qualifying Termination. If, during the Termination Period, the Executive shall terminate other than by reason of a Qualifying Termination, then the Company shall pay to Executive within thirty (30) days following the Date of Termination (or such earlier date, if any, as may be required under applicable wage payment laws) a lump-sum cash amount equal to the sum of (i) Executive's base salary through the Date of Termination and any bonus amounts which have become payable, to the extent not theretofore paid or deferred, and (ii) any accrued vacation pay, to the extent not theretofore paid. The Company may make such additional payments, and provide such additional benefits, to Executive as the Company and Executive may agree in writing. The Executive's accrued benefits as of the Date of Termination under the Company's employee benefit plans shall be paid to Executive in accordance with the terms of such plans.
5. Certain Additional Payments by the Company.
(a) Anything in this Agreement to the contrary notwithstanding, in the event it shall be determined that any payment, award, benefit or distribution (or any acceleration of any payment, award, benefit or distribution) by the Company (or any of its affiliated entities) or any entity which effectuates a Change in Control (or any of its affiliated entities) to or for the benefit of the Executive (whether pursuant to the terms of this Agreement or otherwise, but determined without regard to any additional payments required under this Section 5) (the "Payments") would be subject to the excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the "Code"), or any interest or penalties are incurred by the Executive with respect to such excise tax (such excise tax, together with any such interest and penalties, are hereinafter collectively referred to as the "Excise Tax"), then the Company shall pay to the Executive an additional payment (a "Gross-Up Payment") in an amount such that after payment by the Executive of all taxes (including any Excise Tax) imposed upon the Gross-Up Payment, the Executive retains an amount of the Gross-Up Payment equal to the sum of (i) the Excise Tax imposed upon the Payments and (ii) the product of any deductions disallowed because of the inclusion of the Gross-Up Payment in the Executive's adjusted gross income and the highest applicable marginal rate of federal income taxation for the calendar year in which the Gross-Up Payment is to be made. For purposes of determining the amount of the Gross-Up Payment, the Executive shall be deemed to (i) pay federal income taxes at the highest marginal rates of federal income taxation for the calendar year in which the Gross-Up Payment is to be made, (ii) pay applicable state and local income taxes at the highest marginal rate of taxation for the calendar year in which the Gross-Up Payment is to be made, net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes and (iii) have otherwise allowable deductions for federal income tax purposes at least equal to the Gross-Up Payment. Notwithstanding the foregoing provisions of this Section 5(a), if it shall be determined that the Executive is entitled to a Gross-Up Payment, but that the Payments would not be subject to the Excise Tax if the Payments were reduced by an amount that is less than 5% of the portion of the Payments that would be treated as "parachute payments" under Section 280G of the Code, then the amounts payable to the Executive under this Agreement shall be reduced (but not below zero) to the maximum amount that could be paid to Executive without giving rise to the Excise Tax (the "Safe Harbor Cap"), and no Gross-Up Payment shall be made to the Executive. The reduction of the amounts payable hereunder, if applicable, shall be made by reducing first the payments under Section 4(a)(ii), unless an alternative method of reduction is elected by the Executive. For purposes of reducing the Payments to the Safe Harbor Cap, only amounts payable under this Agreement (and no other Payments) shall be reduced. If the reduction of the amounts payable hereunder would not result in a reduction of the Payments to the Safe Harbor Cap, no amounts payable under this Agreement shall be reduced pursuant to this provision.
(b) Subject to the provisions of Section 5(a), all determinations required to be made under this Section 5, including whether and when a Gross-Up Payment is required, the amount of such Gross-Up Payment, the reduction of the Payments to the Safe Harbor Cap and the assumptions to be utilized in arriving at such determinations, shall be made by the public accounting firm that is retained by the Company as of the date immediately prior to the Change in Control (the "Accounting Firm") which shall provide detailed supporting calculations both to the Company and the Executive within forty-five (45) business days of the receipt of notice from the Company or the Executive that there has been a Payment, or such earlier time as is requested by the Company (collectively, the "Determination"). In the event that the Accounting Firm is serving as accountant or auditor for the individual, entity or group effecting the Change in Control, the Company and the Executive may agree to appoint another nationally recognized public accounting firm to make the determinations required hereunder (which accounting firm shall then be referred to as the Accounting Firm hereunder). All fees and expenses of the Accounting Firm shall be borne solely by the Company and the Company shall enter into any agreement requested by the Accounting Firm in connection with the performance of the services hereunder. The Gross-Up Payment under this Section 5 with respect to any Payments shall be made no later than thirty (30) days following such Payment. If the Accounting Firm determines that no Excise Tax is payable by the Executive, it shall furnish the Executive with a written opinion to such effect, and to the effect that failure to report the Excise Tax, if any, on the Executive's applicable federal income tax return will not result in the imposition of a negligence or similar penalty. In the event the Accounting Firm determines that the Payments shall be reduced to the Safe Harbor Cap, it shall furnish the Executive with a written opinion to such effect. The Determination by the Accounting Firm shall be binding upon the Company and the Executive. As a result of the uncertainty in the application of Section 4999 of the Code at the time of the Determination, it is possible that Gross-Up Payments which will not have been made by the Company should have been made ("Underpayment") or Gross-Up Payments are made by the Company which should not have been made ("Overpayment"), consistent with the calculations required to be made hereunder. In the event that the Executive thereafter is required to make payment of any Excise Tax or additional Excise Tax, the Accounting Firm shall determine the amount of the Underpayment that has occurred and any such Underpayment (together with interest at the rate provided in Section 1274(b)(2)(B) of the Code) shall be promptly paid by the Company to or for the benefit of Executive. In the event the amount of the Gross-Up Payment exceeds the amount necessary to reimburse the Executive for his Excise Tax, the Accounting Firm shall determine the amount of the Overpayment that has been made and any such Overpayment (together with interest at the rate provided in Section 1274(b)(2) of the Code) shall be promptly paid by the Executive (to the extent he has received a refund if the applicable Excise Tax has been paid to the Internal Revenue Service) to or for the benefit of the Company. The Executive shall cooperate, to the extent his expenses are reimbursed by the Company, with any reasonable requests by the Company in connection with any contests or disputes with the Internal Revenue Service in connection with the Excise Tax.
6. Withholding. The Company shall withhold from any amount payable to the Executive (or to his beneficiary or estate or any other person) hereunder all federal, state, local or other taxes that the Company may reasonably determine are required to be withheld pursuant to any applicable law, rule or regulation.
7. No Right to Continued Employment.
Nothing in this Agreement shall be deemed to entitle Executive to continued
employment with the Company or any of its affiliates, and if Executive's
employment with the Company or an affiliate shall terminate prior to a Change
in Control, Executive shall have no further rights under this Agreement (except
as otherwise provided hereunder); provided, however, that, notwithstanding the
foregoing, any termination of Executive's employment during the Termination
Period shall be subject to the provisions of this Agreement.
8. Offset; No Obligation to Mitigate Damages.
(a)
Offset. The Company's obligation to make any payments provided
for in this Agreement and otherwise to perform its obligations hereunder shall
be subject to, and may be reduced by the amount related to, any right of
set-off, counterclaim, recoupment, defense or other claim, right or action
which the Company may have against the Executive.
(b)
No Obligation to Mitigate. In no event shall the
Executive be obligated to seek other employment or take any other action by way
of mitigation of the amounts payable to the Executive under any of the
provisions of this Agreement and such amounts shall not be reduced whether or
not the Executive obtains other employment (except as otherwise provided in
Section 4(b) with respect to the payment of welfare plan benefits).
9.
Confidentiality;
Competition; Solicitation.
(a) Covenants of Executive.
The Company and the Executive recognize that the Executive's services are
special and unique and that the provisions herein for compensation under Section
4 and Section 5 are partly in consideration of and conditioned upon the
Executive's compliance with the covenants contained in this Section 9.
Accordingly, during the Term of the Agreement and until the end of the
Compensation Period (as defined in Section 4(a)(ii) herein), the Executive shall
be subject to the covenants contained in Sections 9(b), 9(c) and 9(d) herein.
(b) Confidentiality. During the Compensation Period, (i) the Executive covenants and agrees that he shall hold in a fiduciary capacity for the benefit of the Company all secret or confidential information, knowledge or data relating to the Company or any of its affiliates and their respective businesses, which shall have been obtained by the Executive during the Executive's employment by the Company or any of its affiliates and which shall not be or become public knowledge (other than by acts by the Executive or representatives of the Executive in violation of this Agreement); and (ii) the Executive shall not, without the prior written consent of the Company or as may otherwise be required by law or legal process, communicate or divulge any such information, knowledge or data to anyone other than the Company and those designated by it.
(c) Solicitation. During the Compensation Period, the Executive covenants and agrees that he shall not directly or indirectly disrupt, damage or interfere with the operation or business of the Company by soliciting or recruiting the employees of the Company or an affiliate to work for Executive or other persons or entities.
(d) Non-Competition. During the Compensation Period, the Executive covenants and agrees that he shall not render services for any organization or engage directly or indirectly in any business that, in the opinion of the Company, competes with or is in conflict with the interests of the Company in the Noncompetition Area. For purposes of this Section 9(d), the "Noncompetition Area" shall mean the following geographic area:
(i) The Noncompetition Area shall mean any area within or without the United States in which the Company or an affiliate has operations, including but not limited to any area within a 30-mile radius of any of the following: Guilford County, North Carolina; Boston, Massachusetts; Cedar Rapids, Iowa; Scotts Valley, California; San Diego, California; San Jose, California; Boulder, Colorado; Phoenix, Arizona; Reading, United Kingdom; Copenhagen, Denmark; Pandrup, Denmark; Oulu, Finland; and Taiwan, ROC.
(ii) In the event the preceding paragraph shall be determined by judicial action to define too broad a territory to be enforceable, the Noncompetition Area shall mean any area within a 30-mile radius of any of the following: Guilford County, North Carolina; Boston, Massachusetts; Cedar Rapids, Iowa; Scotts Valley, California; San Diego, California; San Jose, California; Boulder, Colorado and Phoenix, Arizona.
(iii) In the event that the two preceding paragraphs shall be determined by judicial action to define too broad a territory to be enforceable, the Noncompetition Area shall mean any area within a 30-mile radius of Guilford County, North Carolina.
(e) Enforceability. If any of the restrictions contained in this Section 9 shall be deemed to be unenforceable by reason of the extent, duration, geographical scope or other provisions thereof, then the parties hereto contemplate that the court shall reduce such extent, duration, geographical scope or other provision hereof and enforce this Section 9 in its reduced form for all purposes in the manner contemplated thereby.
(f) Failure to Comply. The Executive acknowledges that the covenants included in Section 9 of this Agreement are crucial to the success of the Company and that violation of the covenants would immeasurably damage the Company and/or its affiliates. In the event that the Executive shall fail to comply with any provision of this Section 9, and the failure shall continue for ten (10) days following delivery of notice by the Company to the Executive, all rights of the Executive and any person claiming under or through him to the payments or benefits described in this Agreement shall thereupon terminate, and no person shall be entitled thereafter to receive any payments or benefits hereunder. In addition to the foregoing, in the event of a breach by the Executive of the provisions of this Section 9, the Company shall have and may exercise any and all other rights and remedies available to the Company at law or otherwise, including but not limited to obtaining an injunction from a court of competent jurisdiction enjoining and restraining the Executive from committing a violation, and the Executive hereby consents to the issuance of an injunction. The provisions of this Section 9(f) shall control in the event that the Executive fails to comply with any covenant or term contained in Section 9 herein, notwithstanding the terms of Section 17 herein.
10. Nonalienability. No right of or amount payable to the Executive under this Agreement shall be subject in any manner to anticipation, alienation, sale, transfer, assignment, pledge, hypothecation, encumbrance, charge, execution, attachment, levy or similar process or to setoff against any obligations or to assignment by operation of law. Any attempt, voluntary or involuntary, to effect any action specified in the immediately preceding sentence shall be void. However, this Section 10 shall not prohibit the Executive from designating one or more persons, on a form satisfactory to the Company, as beneficiary to receive amounts payable to him under this Agreement in the event that he should die before receiving them.
11. Successors and Assigns.
(a) The Company. As used in this Agreement, "Company" shall mean the Company as defined above and any successor or assignee to its business and/or assets as aforesaid which assumes the obligations of the Company under this Agreement or which otherwise becomes bound by all of the terms and provisions of this Agreement by operation of law. If at any time during the term of this Agreement the Executive is employed by an affiliate (as defined herein) of the Company, such indirect employment of the Executive by the Company shall not excuse the Company from performing its obligations under this Agreement as if the Executive were directly employed by the Company, and the Company agrees that it shall pay or shall cause such employer to pay any amounts owed to the Executive pursuant to Section 4 and Section 5 hereof, notwithstanding any such indirect employment relationship. For the purposes of this Agreement, an "affiliate" of the Company shall mean a corporation or other entity a majority of the voting securities of which is beneficially owned by the Company, or any other corporation or other entity controlling, controlled by, or under common control with the Company.
(b) The Executive. This Agreement shall inure to the benefit of and be enforceable by the Executive's personal and legal representatives, executors, administrators, successors, heirs, distributees, devisees and legatees. If the Executive should die while any amounts are still payable to him hereunder, all such amounts, unless otherwise provided herein, shall be paid in accordance with the terms of this Agreement to the Executive's beneficiary (in accordance with Section 10 herein) or, if there be no such beneficiary, to the Executive's estate.
12. Waiver; Governing Law. No waiver
by either party hereto at any time of any breach by the other party hereto of,
or compliance with, any condition or provision of this Agreement to be
performed by such other party shall be deemed a waiver of similar or dissimilar
provisions or conditions at the same or at any prior or subsequent time. This
Agreement shall be governed by and construed in accordance with the laws of the
State of North Carolina, without regard to the conflict of laws provisions of
any state.
13. Entire Agreement; Amendment. This Agreement contains all of the terms agreed upon between the Executive and the Company with respect to the subject matter hereof and replaces and supersedes all prior understandings and agreements between the Executive and the Company with respect to the matters contemplated in the Agreement (except for any understandings or agreements reflected in a separate non-competition, confidentiality, invention or other similar agreement or agreements between the Company and the Executive). The Executive and the Company agree that no term, provision or condition of this Agreement shall be held to be altered, amended, changed or waived in any respect except as evidenced by written agreement of the Executive and the Company.
14. Reasonable and Necessary Restrictions. The Executive acknowledges that the restrictions, prohibitions and other provisions set forth in this Agreement, including without limitation the provisions of Section 9 herein, are reasonable, fair and equitable in scope, terms and duration, are necessary to protect the legitimate business interests of the Company, and are a material inducement to the Company to enter into this Agreement. The Executive covenants that he or she will not challenge the enforceability of this Agreement nor will he or she raise any equitable defense to its enforcement.
15. No Trust Fund; Unfunded Obligation.
The obligation of the Company to make payments hereunder shall constitute an
unsecured liability of the Company to the Executive. The Company shall not be
required to establish or maintain any special or separate fund, or otherwise to
segregate assets to assure that such payments shall be made, and the Executive
shall not have any interest in any particular assets of the Company by reason of
its obligations hereunder. Nothing contained in this Agreement shall
create or be construed as creating a trust of any kind or any other fiduciary
relationship between or among the Company, the Executive, or any other person.
To the extent that any person acquires a right to receive payment from the
Company, such right shall be no greater than the right of an unsecured creditor
of the Company.
16. Notices.
For
purposes of this Agreement, notices and all other communications provided for
in the Agreement shall be in writing and shall be deemed to have been duly
given when delivered, one business day after being sent for overnight delivery
by a nationally recognized overnight courier or three business days after being
mailed by United States registered mail, return-receipt requested,
postage-prepaid, addressed as follows:
If to the Company:
RF Micro Devices, Inc.
0000 Xxxxxxxxx Xxxx
Xxxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
Attention: Chief Financial Officer
If to the Executive:
Xxxxxxxxx X. Xxxxxx
0000 Xxxxxxxxx Xxxx
Xxxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
or such other address as either party have furnished to the other in writing in accordance herewith, except that notices of change of address shall be effective only upon receipt.
17. Arbitration, Legal Fees and Expenses. In the event of any controversy, claim or dispute between the parties hereto arising out of or relating to this Agreement (except for any dispute or controversy arising under or in connection with Section 9), the matter shall be determined by arbitration, which shall take place in Guilford County, North Carolina, under the rules of the American Arbitration Association; and a judgment upon such award may be entered in any court having jurisdiction thereof. Any decision or award of such arbitrator shall be final and binding upon the parties. The parties hereby consent to the jurisdiction of such arbitrator and of any court having jurisdiction to enter judgment upon and enforce any action taken by such arbitrator. The Company shall pay all reasonable legal fees and expenses that the Executive may incur as a result of the Company's contesting the validity, enforceability or the Executive's interpretation of, or determinations under, this Agreement.
18. Severability.
If any provision of this
Agreement shall be held invalid or unenforceable in whole or in part, such
invalidity or unenforceability shall not affect any other provision of this
Agreement or part thereof, each of which shall remain in full force and effect.
19. Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed to be an original but all of which together will constitute one and the same instrument.
20. Captions; Gender.
The headings and captions contained in the Agreement are intended for
convenience of reference only and have no substantive significance. References
to the masculine gender shall include references to the feminine gender, and
vice versa.
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[Signature Page to Follow] |
IN WITNESS WHEREOF, the parties have executed this Agreement effective as of the date and year first above written.
RF MICRO DEVICES, INC.
By: /s/ Xxxxxx X. Xxxxxxxxxxx
Printed Name: Xxxxxx X. Xxxxxxxxxxx
Title: Chief Executive Officer
ATTEST:
/s/ Xxxx Xxxxxx
Secretary
[Corporate Seal]
EXECUTIVE
/s/
Xxxxxxxxx X. Xxxxxx
Printed Name: Xxxxxxxxx X. Xxxxxx
