CHANGE OF CONTROL AGREEMENT
Exhibit 10.16
This
Agreement is made this day of , 2002 by and between (the “Executive”) and Pericom Semiconductor Corporation, a
California corporation (the “Company”).
WHEREAS, the Executive is employed by the Company; and
WHEREAS, the Company desires to retain the services of Executive in the event of a change of control (as
hereinafter defined) of the Company.
NOW, THEREFORE, in consideration of the mutual covenants contained herein,
the parties hereto agree as follows:
1. Definitions.
(a) Change of Control. For purposes of this Agreement only, a “Change of
Control” shall be defined as any of the following events:
(i) An acquisition
(other than directly from the Company) of any voting securities of the Company (the “Voting Securities”) by any “Person” (as the term is used for purposes of Section 13(d) or 14(d) of the Securities Exchange Act of 1934, as
amended (the “1934 Act”)) immediately after which such Person has “Beneficial Ownership” (within the meaning of Rule 13d-3 promulgated under the 1934 Act), directly or indirectly, of securities of the Company representing fifty
percent (50%) or more of the combined voting power of the Company’s then outstanding Voting Securities;
(ii) A merger or consolidation in which the Company is not the surviving entity, except for (1) a transaction in which the principal purpose is to change the state of the Company’s incorporation, or (2) a transaction
in which the Company’s stockholders immediately prior to such merger or consolidation hold (by virtue of securities received in exchange for their shares in the Company) securities of the surviving entity representing more than fifty percent
(50%) of the total voting power of such entity immediately after such transaction;
(iii) The individuals who are members of the Company’s Board of Directors (the “Board”) as of the date this Agreement is approved by the Board (the “Incumbent Board”) cease for any reason to
constitute at least a majority of the Board; provided, however, that if the appointment, election or nomination for election by the Company’s stockholders, of any new director is approved by a vote of at least two-thirds of the
Incumbent Board, such new director shall, for purposes of this Agreement, be considered a member of the Incumbent Board; provided further, however, that no individual shall be considered a member of the Incumbent Board if such
individual initially assumed office as a result of either an actual or threatened “Election Contest”
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(as described in Rule 14a-11 promulgated under the 0000 Xxx) or other actual or threatened solicitation of proxies or
consents by or on behalf of a Person other than the Board (a “Proxy Contest”) including by reason of any agreement intended to avoid or settle any Election Contest or Proxy Contest;
(iv) The sale, transfer or other disposition of all or substantially all of the assets of the Company, unless the Company’s
stockholders immediately prior to such sale, transfer or other disposition hold (by virtue of securities received in exchange for their shares in the Company) securities of the purchaser or other transferee representing more than fifty percent (50%)
of the total voting power of such entity immediately after such transaction; or
(v) Any reverse merger in which the Company is the surviving entity but in which the Company’s stockholders immediately prior to such merger do not hold (by virtue of their shares in the Company held immediately prior
to such transaction) securities of the Company representing more than fifty percent (50%) of the total voting power of the Company immediately after such transaction.
(b) Cause. For purposes of this Agreement only, the Company shall have “Cause” to immediately terminate
the Executive’s employment hereunder if (i) Executive engages in fraud or embezzlement against the Company and/or its subsidiaries, (ii) Executive misappropriates Company property, proprietary information and/or trade secrets, (iii) Executive
demonstrates material unfitness for service or persistent deficiencies in performance, (iv) Executive engages in misconduct, which misconduct is demonstrably and materially injurious to the Company and/or its subsidiaries; (v) Executive refuses to
follow a specific, lawful direction or order of the Company; (vi) Executive breaches any provision of this Agreement or other agreements between Executive and the Company; or (vii) Executive dies or becomes mentally or physically incapacitated and
cannot carry out his duties.
(c) Voluntary Resignation for Good
Reason. A voluntary resignation by Executive “Good Reason” shall mean a voluntary resignation by Executive following any one of the following events, provided Executive provides Company with at least two (2)
weeks notice of such termination, and provides such notice no later than thirty (30) days following any one of the following events: (i) a material change in Executive’s position, title, duties, or responsibilities, without Employee’s
consent, which results in a material reduction of Executive’s level of responsibility, the assignment of duties and responsibilities which are materially inconsistent with Executive’s position or responsibilities, or the removal of the
Executive from or failure to reelect the Executive to any of such positions, except in connection with the termination of employment for Cause; (ii) a reduction by the Company in the Executive’s annual salary then in effect, without
Executive’s consent, other than a reduction similar in percentage to a reduction generally applicable to similarly situated employees of the Company; (iii) a material reduction without the Executive’s consent in the kind or level of
benefits provided to Executive under any benefit plan of the Company in which the Executive is participating or deprive the Executive of any material fringe benefit enjoyed by the Executive, except those changes generally affecting similarly
situated employees of the Company.
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(d) Closing
Date. “Closing Date” shall mean the date of the first closing of any transactions constituting a Change of Control.
(e) Termination Date. “Termination Date” shall mean the date the Executive’s employment is
terminated by the Company other than for Cause or is terminated by the Executive for Good Reason.
(f) Company. “Company” shall mean Pericom Semiconductor Corporation and its successors or assigns (including without limitation, any entity, entities or persons acquiring control of
the Company through a Change of Control).
2. Continuation of Salary and Benefits; Vesting of Equity
Incentives. If, during the twelve (12) month period following the Closing Date of a Change of Control, the Company shall terminate the Executive’s employment other than for Cause or the Executive shall voluntarily
resign from employment for Good Reason, then in such event:
(a) Continuation of
Salary. The Company shall continue to pay the Executive’s base salary in effect as of the Termination Date for a period of twelve (12) months after the Termination Date (“Salary Continuation Period”). Such
salary shall be paid to the Executive in accordance with the Company’s regular payroll practices then currently in effect;
(b) Bonus. In addition to the salary continuation set forth in Section 2(a) above, the Company shall pay the Executive a bonus according to the following
formula:
(i) If the Termination Date occurs after the Executive’s bonus for the
last completed fiscal year has been determined by the Compensation Committee of the Board of Directors (the “Compensation Committee”) and paid to the Executive, then the Executive shall receive a bonus in the amount of no less than:
X1 + X1(Y/365)
(ii) If the Termination Date occurs before the Executive’s bonus for the last completed fiscal year has
been determined by the Compensation Committee and paid to the Executive, then the Executive shall receive a bonus in the amount of no less than:
2(X2) + X2(Y/365)
where:
“X1” = the bonus amount paid to the Executive for the last completed fiscal year;
“X2” = the bonus amount paid to the Executive for the fiscal year prior to the last completed fiscal year; and
“Y” = the number of days in the current fiscal year prior to and including the Termination date.
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The bonus shall be paid in equal monthly payments over a period
of twelve (12) months after the Termination Date. Such amount shall be payable to the Executive regardless of the Company’s financial performance, and shall not be conditioned on the Company’s continued satisfaction of any goals or
criteria required by any compensation plan;
(c) Medical and Dental
Benefits. During the Salary Continuation Period, the Company shall either, at its discretion: (i) continue the Executive’s medical and dental benefits as such benefits are generally offered to the Company’s
employees as of the Termination Date, or (ii) reimburse the Executive for COBRA payments made by the Executive to maintain his medical and dental benefits, as applicable under the Company’s insurance policies;
(d) Life Insurance. During the Salary Continuation Period, the Company shall
continue payment of the Executive’s life insurance premiums, if applicable.
(e) Stock Options, Performances Shares or Units and Restricted Shares or Units. Any outstanding stock option, performance share or unit, or restricted share or unit shall vest as to that
number of shares or other units that would have been vested on the various anniversary dates of the Termination Date and become exercisable or, with respect to such performance share or unit or restricted share or unit, be released from
restrictions on transfer and repurchase rights, immediately prior to the Termination Date; (see addendum relating to vesting and length of service) and
(f) Extension of Stock Option Exercise Term. All vested stock options held by the Executive as of the Termination
Date shall expire six (6) months after the Termination Date. Note: Exercising ISO stock options later than three months after the Executive’s termination date is a disqualifying event for ISO purposes and will turn the ISO into a
non-qualifying stock option.
(g) Noncompetition and
Nonsolicitation. Executive acknowledges and agrees that during his employment with the Company he has had access to the Company’s confidential and proprietary information and the activities forbidden by this
subsection would necessarily involve the improper use and disclosure of such information. To forestall this use or disclosure, Executive agrees that during the Salary Continuation Period he shall not, directly or indirectly: (i) engage in (whether
as an employee, consultant, proprietor, partner, director or otherwise) or have any ownership interest in, or participate in the financing operation, management, control of, any person, firm, corporation or business that engages in any business
activity that is competitive with the Company (or of any Affiliated Company), provided, however, that nothing contained in this Section 2(g)(1) shall be construed to prohibit Executive from purchasing and owning (directly or indirectly) up to one
percent (1%) of the capital stock or other securities of any corporation or other entity whose stock or securities are traded on any national or regional securities exchange or the national over-the-counter market and such ownership shall not
constitute a violation of this Section 1(e)(1); (ii) divert or attempt to divert from the Company (or any Affiliated Company) any business of any kind in which it is engaged, including, without limitation, the solicitation of or interference with
any of its suppliers or customers; (iii) solicit, hire, recruit, or employ any person or entity who is employed by or has a contractual relationship with the Company, or encourage any person or entity who is employed by or has a contractual
relationship with the Company to
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terminate their employment or contractual relationship with the Company. Executive understands and agrees his receipt of
the benefits described in paragraphs 2(a)-(f) above is contingent upon his continued adherence to the restrictions set forth in this paragraph 2(g) during the Salary Continuation Period.
3. No Employment Agreement, Employment at Will. Executive and the Company each acknowledge and agree that: (i) this Agreement does
not provide for the terms and conditions of Executive’s employment with the Company prior to any Change of Control and does not require or obligate Executive to provide services to the Company or the Company to continue to employ Executive; and
(ii) Executive’s employment with the Company is and remains an employment relationship terminable at will and without advance notice by either Executive or the Company.
4. Release of the Company and Its Affiliates. Executive’s receipt of the benefits described in paragraphs 2(a)-(f) above shall
be contingent upon Executive executing a general release of claims in a commercially customary form prescribed by the Company, which releases and discharges the Company and any past, present or future agents, attorneys, directors, officers,
stockholders, employees, affiliates, predecessors and successors of the Company, of and from any and all claims and demands of every kind and nature, in law, equity or otherwise, known or unknown, disclosed or undisclosed, and a covenant not to xxx
or prosecute any legal action or proceeding based upon such claims.
5. Exclusive
Remedy. Executive’s right to salary continuation and other severance benefits pursuant to paragraphs 2(a)-(f) above shall be Executive’s sole and exclusive remedy for any termination of Executive’s
employment by the Company other than for Cause or by Executive for Good Reason following a Change of Control. The payments, severance benefits and severance protections provided to Executive pursuant to this Agreement are provided in lieu of any
severance payments, severance benefits and severance protections provided in any other plan or policy of the Company, except as may be expressly provided in writing under the terms of any plan or policy of the Company, or in a written agreement
between the Company and Executive entered into after the date of this Agreement. Notwithstanding the foregoing, nothing in this Agreement shall prevent or limit Executive’s continuing or future participation in any benefit, bonus, incentive or
other plan or program provided by the Company (except for any severance or termination policies, plans, programs or practices) and for which Executive may qualify, nor shall anything herein limit or reduce such rights as Executive may have under any
other agreements with the Company (except for any severance or termination agreement). Amounts which are vested benefits or which Executive is otherwise entitled to receive under any plan or program of the Company shall be payable in accordance with
such plan or program, except as explicitly modified by this Agreement.
6. Excise
Tax. Notwithstanding anything contained in this Agreement to the contrary, to the extent that any payment or benefit (within the meaning of Section 280G(b)(2) of the Internal Revenue Code of 1986, as amended (the
“Code”)) to Executive or for Executive’s benefit, paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise in connection with, or arising out of, Executive’s employment with the Company
or a Change in Control (a “Payment” or “Payments”), would be subject to the excise tax imposed under Code Section 4999, or any interest or penalties are incurred by Executive with respect to such excise tax (such excise tax,
together with any such interest and penalties, are hereinafter collectively referred
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to as the “Excise Tax”), the Payments shall be reduced (but not below zero) if and to the extent necessary so that no Payment to be
made or benefit to be provided to Executive shall be subject to the Excise Tax (such reduced amount is hereinafter referred to as the “Limited Payment Amount”). Unless Executive shall have given prior written notice specifying a different
order to the Company to effectuate the Limited Payment Amount, the Company shall reduce or eliminate the Payments by (i) first reducing or eliminating those payments or benefits which are payable in cash and (ii) then reducing or eliminating
non-cash payments, in each case in reverse order beginning with payments or benefits which are to be paid the furthest in time from the Determination (as hereinafter defined). Any notice given by Executive pursuant to the preceding sentence
shall take precedence over the provisions of any other plan, arrangement or agreement governing Executive’s rights and entitlements to any benefits or compensation.
(a) An initial determination as to whether the Payments shall be reduced to the Limited Payment Amount and the amount of such Limited Payment
Amount shall be made, at the Company’s expense, by the accounting firm that is the Company’s independent accounting firm as of the date of the Change in Control (the “Accounting Firm”). The Accounting Firm shall provide its
determination (the “Determination”), together with detailed supporting calculations and documentation, to the Company and Executive within five (5) days after the Termination Date, if applicable, or such other time as requested by the
Company or by Executive (provided Executive reasonably believes that any of the Payments may be subject to the Excise Tax) and, if the Accounting Firm determines that no Excise Tax is payable by Executive with respect to a Payment or Payments, it
shall furnish Executive with an opinion reasonably acceptable to Executive that no Excise Tax will be imposed with respect to any such Payment or Payments. Within ten (10) days after the delivery of the Determination to Executive, Executive shall
have the right to dispute the Determination (the “Dispute”). If there is no Dispute, the Determination shall be binding, final and conclusive upon the Company and Executive, subject to the application of Section 6(b) below.
(b) As a result of the uncertainty in the application of Sections 4999 and 280G of the Code, it is
possible that the Payments to be made to, or provided for the benefit of, Executive will be either greater (an “Excess Payment”) or less (an “Underpayment”) than the amounts provided for by the limitations contained in Section 6.
(i) If it is established, pursuant to a final determination of a court or an Internal
Revenue Service (the “IRS”) proceeding which has been finally and conclusively resolved, that an Excess Payment has been made, such Excess Payment shall be deemed for all purposes to be a loan to Executive made on the date Executive
received the Excess Payment, which loan Executive must repay to the Company together with interest at the applicable federal rate under Code Section 7872(f)(2); provided, that no loan shall be deemed to have been made and no amount will be
payable by Executive to the Company unless, and only to the extent that, the deemed loan and payment would either reduce the amount on which Executive is subject to tax under Code Section 4999 or generate a refund of tax imposed under Code Section
4999.
(ii) In the event that it is determined (i) by the Accounting Firm, the Company
(which shall include the position taken by the Company, or together with its consolidated group, on its federal income tax return) or the IRS, (ii) pursuant to a determination by a court, or (iii) upon the resolution to Executive’s satisfaction
of the Dispute, that an
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Underpayment has occurred, the Company shall pay an amount equal to the Underpayment to Executive within ten (10) days
after such determination or resolution, together with interest on such amount at the applicable federal rate under Code Section 7872(f)(2) from the date such amount would have been paid to Executive until the date of payment.
7. Notices. All notices or other communications required or permitted hereunder shall
be made in writing and shall be deemed to have been duly given if delivered by hand, by facsimile or mailed, postage prepaid, by certified or registered mail, return receipt requested, and addressed to the Company at:
Pericom Semiconductor Corporation
0000 Xxxxxx Xxxxx
Xxx Xxxx, XX 00000
Attention: Chief Executive Officer
or to the
Executive at:
Notice of change of address shall be effective only when done in accordance with this Section.
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8. Arbitration. The parties hereby agree
that any dispute, claim or controversy arising out of, relating to or in connection with this Agreement (“Arbitrable Claims”) shall be determined exclusively by and through final and binding arbitration in Santa Xxxxx County, California,
each party hereto expressly and conclusively waiving its right to proceed to a judicial determination with respect to the merits of such arbitrable matters. Such arbitration shall be conducted in accordance with the American Arbitration Association
National Rules for Resolution of Employment Disputes then in effect before a neutral and impartial arbitrator who shall be selected by mutual agreement of the parties. The arbitrator shall prepare a written decision containing the essential findings
and conclusions on which the award is based so as to ensure meaningful judicial review of the decision. The arbitrator shall apply the same substantive law, with the same statutes of limitations and same remedies, that would apply if the claims were
brought in a court of law. This Agreement shall be governed by the California Arbitration Act and the arbitrator, in ruling on procedural and substantive issues raised in the arbitration itself, shall apply the substantive law of the State of
California. Either party may bring an action in court to compel arbitration under this Agreement and to enforce an arbitration award. Otherwise, neither party shall initiate or prosecute any lawsuit in any way related to any Arbitrable Claim.
Notwithstanding the foregoing, the parties shall have the right to obtain provisional remedies or interim relief from a court of competent jurisdiction for any claim or controversy arising out of or related to violations of Section 2(g) of this
Agreement. THE PARTIES HEREBY WAIVE ANY RIGHTS THEY MAY HAVE TO TRIAL BY JURY IN REGARD TO ARBITRABLE CLAIMS.
9. Successors. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective heirs, executors, administrators, successors and assigns. Neither
this Agreement nor any right or interest hereunder shall be assignable or transferable by Executive or Executive’s beneficiaries or legal representatives, except by will or by the laws of descent and distribution. This Agreement shall inure to
the benefit of and be enforceable by Executive’s legal personal representative.
10. Governing
Law. The interpretation, performance and enforcement of this Agreement shall be governed by the laws of the State of California.
11. Entire Agreement. This Agreement represents the entire Agreement and understanding between the Company and the Executive concerning the Executive’s
termination of employment with the Company after a Change in Control. This Agreement supersedes any prior agreement or understanding of the parties with respect to the subject matter hereof.
12. No Oral Modification. This Agreement may only be amended in a writing signed by the Executive and the Company.
13. Severability. If any provision of this Agreement of the application thereof to any
person, place, or circumstance, shall be held by a court of competent jurisdiction to be invalid, unenforceable, or voice, the remainder of this Agreement and such provisions as applied to other persons, places, and circumstances shall remain in
full force and effect.
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14. Counterparts. This Agreement may be
executed in counterparts, and each counterpart shall have the same force and effect as the original and shall constitute an effective, binding agreement on the part of each of the undersigned.
15. Attorneys’ Fees. If any legal action, arbitration or other proceeding is brought to interpret or enforce the terms of
this Agreement, the prevailing party shall be entitled to recover reasonable attorneys’ fees and any other costs incurred in that proceeding, in addition to any other relief to which it is entitled.
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IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as of
the date first above written.
| PERICOM SEMICONDUCTOR CORPORATION, a California corporation |
EXECUTIVE: | |||||||
| By: |
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| [Signature] |
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| Title: |
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| [Print Name] |
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Addendum—Vesting Acceleration
If during the 12 (twelve) months following a change in control, the Company shall terminate the Executives employment for other
than Cause or the Executive shall voluntarily resign from employment for Good Reason, than options granted shall be accelerated as follows:
Up to two years of employment—one full year of acceleration
Over two years but less
than four years—two full years of acceleration
Over four years—all options are accelerated
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