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EXHIBIT 10.57(c)
ALTERA CORPORATION
CHANGE IN CONTROL SEVERANCE AGREEMENT
This Change in Control Severance Agreement (the "Agreement") is made and
entered into effective as of November 30, 2000 (the "Effective Date") by and
between Xxxx Xxxxx (hereinafter referred to as "you," "your" or "Executive") and
Altera Corporation (the "Company").
WHEREAS, the Company considers it essential to the best interests of its
stockholders to xxxxxx the continuous employment of key management personnel,
and in this connection, the Board of Directors of the Company (the "Board")
recognizes that, as is the case with many publicly held corporations, the
possibility of a change in control of the Company may exist and that such
possibility, and the uncertainty and questions that it may raise among
management, may result in the departure or distraction of management personnel
to the detriment of the Company and its stockholders;
WHEREAS, the Board has determined that appropriate steps should be taken
to reinforce and encourage the continued attention and dedication of members of
the Company's senior management, including yourself, to their assigned duties
without distraction in the face of the possibility of a change in control of the
Company; and
WHEREAS, in order to induce you to accept the position as Chief
Executive Officer ("CEO") of the Company, the Company agrees that you shall
receive the severance benefits set forth in Section 3 of this Agreement in the
event your employment with the Company is terminated under the circumstances
described in Section 2(b), below, subsequent to a "Change in Control" of the
Company;
Accordingly, the parties agree as follows:
1. Term of Agreement. This Agreement shall commence on the first day of
your employment with the Company, and shall terminate on the date which is five
(5) years following such date, unless within such term a Change in Control has
occurred, in which case this Agreement shall terminate upon the date that all
obligations of the parties hereto under this Agreement have been satisfied.
2. Change in Employment Status.
(a) Any termination of your employment following a Change in
Control by the Company or by you shall be communicated by written notice of
termination to the other party hereto in accordance with Section 7, which notice
shall specify the effective date of such termination and specify the provisions
of this Agreement, if any, upon which such termination is based.
(b) You shall be entitled to the benefits provided in Section 3
if (but only if) within 24 months following a Change in Control one or more of
the following events (the "Trigger Events") occur: (i) your employment is
terminated with an effective date within such 24 month period by the Company for
reasons other than (A) your death; (B) for Cause, (ii) you are reassigned by the
Company to a position other than CEO and you terminate your employment with an
effective date within 90 days of such reassignment; or (iii) the Company moves
its
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headquarters more than 60 miles from the location of its present headquarters
and you terminate your employment with an effective date within 90 days of such
move.
3. Severance Upon the Occurrence of a Trigger Event. In the event of the
occurrence of a Trigger Event, you shall receive from the Company within thirty
(30) days of the date of termination the "Change in Control Severance Package,"
as herein defined. The Change in Control Severance Package shall consist of (i)
payment equivalent to twenty-four months of your then-current base salary, (ii)
a bonus equivalent to two times your target bonus, if any, for the fiscal year
in which the Change in Control occurs, and (iii) accelerated vesting of all
options and restricted shares which have been granted or issued at least six
months prior to the Change in Control. The Change in Control Severance Package
(or Limited Payment Amount, as defined in Section 4) provided for herein shall
be paid in lieu of any other severance to you.
4. Limits on Amounts Payable.
(a) 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 Code to you or for your benefit, paid or payable or
distributed or distributable pursuant to Section 3 of this Agreement ("Payment"
or "Payments"), would be subject to the excise tax imposed under Code Section
4999, or any interest or penalties are incurred by you 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"), the Payments shall be
reduced (but not below zero) if and to the extent that a reduction in the
Payments would result in you retaining a larger amount, on an after-tax basis
(taking into account federal, state and local income taxes and the Excise Tax),
than if you received all of the Payments (any such reduced amount is hereinafter
referred to as the "Limited Payment Amount"). Unless you 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 which are not payable in cash,
and then (ii) by reducing or eliminating cash Payments. Any notice given by you
pursuant to the preceding sentence shall take precedence over the provisions of
any other plan, arrangement or agreement governing your rights and entitlements
to any benefits set forth in Section 3.
(b) 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 you within five (5) days of
your termination date, if applicable, or such other time as requested by the
Company or by you (provided you reasonably believe that any of the Payments may
be subject to the Excise Tax). If the Accounting Firm determines that no Excise
Tax is payable by you with respect to a Payment or Payments, it shall furnish
you with an opinion reasonably acceptable to you that no Excise Tax will be
imposed with respect to any such Payment or Payments. Within ten (10) days of
the delivery of the Determination to you, you 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 you.
5. Certain Definitions. As used herein, the following terms shall have
the following respective meanings:
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(a) Change in Control. A "Change in Control" shall occur or be
deemed to have occurred only if any of the following events occur:
(i) any "person" as such term is defined in Sections
13(d) and 14(d) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), (other than (A) the Company, (B) any "group" including you, (C)
any employee benefit plan of the Company, or (D) any corporation owned directly
or indirectly by the stockholders of the Company in substantially the same
proportion as their ownership of stock of the Company) is or becomes the
"beneficial owner" (as defined in Rule 13d-3 under the Exchange Act), directly
or indirectly, of securities of the Company representing in the aggregate more
than 50% of either (A) the total combined voting power of the Company's then
outstanding stock or (B) the total fair market value of the Company's then
outstanding stock.
(ii) the stockholders of the Company approve a merger or
consolidation of the Company with any other corporation, other than (A) a merger
or consolidation which would result in the stock of the Company outstanding
immediately prior thereto continuing to represent (either by remaining
outstanding or by being converted into stock of the surviving entity) 50% or
more of the total combined voting power and the total combined fair market value
of the stock of the Company or such surviving entity outstanding immediately
after such merger or consolidation; or
(iii) the stockholders of the Company approve a plan of
complete liquidation of the Company or an agreement for the sale, lease,
exchange or disposition by the Company of all or substantially all of the
Company's assets.
(b) Disability. If, in the sole opinion of the Company,
Executive shall be prevented from properly performing his duties hereunder by
reason of any physical or mental incapacity for a period of more than ninety
(90) days in the aggregate in any twelve-month period, then, to the extent
permitted by law, Company may terminate Executive's employment. Nothing in this
Section shall affect Executive's rights under any disability plan in which he is
a participant. If the Company terminates Executive's employment pursuant to this
provision within 24 months following a Change in Control, Executive shall
receive the Change in Control Severance Package provided in this Agreement. If
Executive elects to receive disability benefits due to a Disability, such
election shall not prohibit Executive from receiving severance benefits.
(c) Cause. The following shall constitute "Cause" for
termination:
(i) Your deliberate dishonesty with respect to the
Company or any subsidiary or affiliate thereof; or
(ii) Your conviction of a crime involving moral
turpitude; or
(iii) Criminal acts pertaining to the Company or any of
its affiliates or shareholders; material and fraudulent falsification;
embezzlement or unauthorized conversion of property; violation of conflict of
interest or vendor relations policies; or willful disclosure of trade secrets or
other information likely to be used to the detriment of the Company.
6.
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Successors; Binding Agreement.
(a) The Company will require any successor (whether direct or
indirect, by purchase, merger, consolidation or otherwise) to all or
substantially all of the business or assets of the Company expressly to assume
and agree to perform this Agreement to the same extent that the Company would be
required to perform it if no such succession had taken place. Failure of the
Company to obtain an assumption of this Agreement prior to the effectiveness of
any succession shall be a breach of this Agreement and shall entitle you to
compensation from the Company in the same amount and on the same terms as you
would be entitled hereunder if you had been terminated without Cause. As used in
this Agreement, "Company" shall mean the Company as defined above and any
successor to its business or assets as aforesaid which assumes and agrees to
perform this Agreement by operation of law, or otherwise.
(b) This Agreement shall inure to the benefit of and be
enforceable by your personal or legal representatives, executors,
administrators, successors, heirs, distributees, devisees and legatees. If you
should die while any amount would still be payable to you hereunder if you had
continued to live, all such amounts, unless otherwise provided herein, shall be
paid in accordance with the terms of this Agreement to your devisee, legatee or
other designee or if there is no such designee, to your estate.
7. Notice. 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 (a) by hand or (b) by a nationally recognized overnight courier
service or (c) by United States first class registered or certified mail, return
receipt requested, to the principal address of the other party, as set forth
below. The date of notice shall be deemed to be the earlier of actual receipt of
notice by any permitted means, or five business days following dispatch by
overnight delivery service or the United States Mail. You shall be obligated to
notify the Company in writing of any change in your address. Notice of change of
address shall be effective only when done in accordance with this section.
Company's Notice Address:
C. Xxxxxxx Xxxxxxx, Esq.
Vice President, General Counsel and Secretary
Altera Corporation
000 Xxxxxxxxxx Xxxxx
Xxx Xxxx, Xxxxxxxxxx 00000
Executive's Notice Address:
Xxxx Xxxxx
000 Xxxxxxxx Xxxxxx
Xxx Xxxxx, Xxxxxxxxxx 00000
8. At-Will Employment Status. Nothing in this Agreement creates any
contractual rights in favor of you with respect to the terms of your employment.
Additionally, as set forth in detail in the Company's Employee Handbook, your
employment with the Company is "at-will." This means that you are free to resign
at any time and the Company is free to terminate your employment at any time for
any reason. Your "at-will" status cannot be altered except in a writing which
has been approved by the Board of Directors of the Company.
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9. Miscellaneous
(a) The invalidity or unenforceability of any provision of this
Agreement shall not affect the validity or enforceability of any other provision
of this Agreement, which shall remain in full force and effect.
(b) The validity, interpretation, construction and performance
of this Agreement shall be governed by the laws of the State of California.
(c) No waiver by you at any time of any breach of, or compliance
with, any provision of this Agreement to be performed by the Company shall be
deemed a waiver of that or any other provisions at any subsequent time.
(d) This Agreement may be amended only by a written agreement
executed by each of the parties hereto. No amendment of or waiver of, or
modification of any obligation under this Agreement will be enforceable unless
set forth in a writing signed by the party against which enforcement is sought.
Any amendment effected in accordance with this Section will be binding upon all
parties hereto and each of their respective successors and assigns.
(e) This Agreement may be executed in several counterparts, each
of which shall be deemed to be an original but all of which together will
constitute one and the same instrument.
(f) Any payments provided for hereunder shall be paid net of any
applicable withholding required under federal, state or local law.
(g) The Company shall do, make, execute and deliver all such
additional and further acts, things, assurances and instruments as you may
reasonably request in order to assure you your rights hereunder and to carry
into effect the provisions and intent of this Agreement. The Company shall upon
your request, convert any options which are incentive stock options into
nonqualified options and shall amend any outstanding option agreements in a
manner consistent with this Agreement.
10. Entire Agreement. This Agreement sets forth the entire agreement of
the parties hereto in respect of the subject matter contained herein and during
the term of the Agreement supercedes the provisions of all prior agreements,
promises, covenants, arrangements, communications, representations or
warranties, whether oral or written, by any officer, employee or representative
of any party hereto with respect to the subject matter hereof.
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11. Acknowledgement. Executive acknowledges that he has had the
opportunity to consult legal counsel concerning this Agreement, that Executive
has read and understands the Agreement, that Executive is fully aware of its
legal effect, and that Executive has entered into it freely based on his own
judgment and not on any representations or promises other than those contained
in this Agreement.
ALTERA CORPORATION, EXECUTIVE
a Delaware corporation
Date: 11/29/00 Date: 11/30/00
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By: /s/ XXXXXX XXXXX /s/ XXXX XXXXX
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Name: Xxxxxx Xxxxx Name of Executive
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Title: CEO
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