Exhibit
10.31
AMENDED AND
RESTATED
CHANGE OF CONTROL
AGREEMENT
THIS AMENDED AND RESTATED CHANGE
OF CONTROL AGREEMENT by
and between RF M ONOLITHICS , I NC . , a
Delaware corporation (the “Company”), and
(the “Executive”), executed this
day of
, 20 , but effective as of the date
of the Original Agreement (defined hereafter).
WHEREAS, the Company and Executive entered into that
certain Change of Control Agreement, dated
, 20
(the “Original
Agreement”), and the parties hereto desire to amend and
restate the Original Agreement in its entirety;
WHEREAS, the Board of Directors believe it imperative and
in the best interests of the Company and its stockholders to
protect the Company’s valuable trade secrets, confidential
information and other proprietary information;
WHEREAS, as such, it is necessary to reaffirm
Executive’s covenants in the Original Agreement not to
compete with the Company and to further obtain Executive’s
agreement not to solicit Customers of the Company;
WHEREAS, in exchange for such promises by Executive, the
Company will provide Executive with confidential and proprietary
information of the Company, specialized training, Customer good
will, and other good and valuable consideration.
NOW, THEREFORE
, in consideration of the above
premises and mutual agreements herein set forth, the Company and
the Executive agree as follows:
1. DEFINITIONS
a. “Cause” shall mean
(i) breach of fiduciary duty to the Company or its
stockholders; (ii) gross negligence or willful misconduct
which results in material harm to the Company; (iii) actions
or inactions resulting in material harm to the Company;
(iv) conviction or plea of nolo contendere or guilty for a
felony or other crime involving fraud, theft, embezzlement,
dishonesty, or moral turpitude; (v) misappropriation of a
material business opportunity of the Company; (vi) breach of a
Company rule, policy or practice which results in material harm to
the Company; (vii) failure to perform the tasks, duties or
responsibilities assigned from time to time, as determined in the
sole discretion of the Company; (viii) acceptance of a bribe,
or material benefit from a Customer or
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vendor without the prior written consent of the
Company; (ix) any act of personal dishonesty taken in
connection with the Executive’s responsibilities as an
employee of the Company; (x) inability to perform job duties
due to current alcohol or illegal drug use; or (xi) failure to
comply with a lawful directive of the Company’s Board of
Directors; provided, that Cause shall not mean bad judgment or
negligence other than habitual neglect of duties, responsibilities
or tasks.
b. “Change of Control”
shall mean:
i. Any acquisition, merger or
reorganization by any individual, entity or group (within the
meaning of Section 13(d)(3) or 14(d)(2) of the Securities
Exchange Act of 1934, as amended (the “Exchange Act”))
(a “Person”) of beneficial ownership (within the
meaning of Rule 13d-3 under the Exchange Act), in which the
stockholders of the Company immediately before the acquisition,
merger or reorganization have less than 65% of either (A) the
then outstanding shares of common stock of the Company (the
“Outstanding Common Stock”) or (B) the combined
voting power of the then outstanding voting securities of the
Company entitled to vote generally in the election of the Board of
Directors of the Company (the “Outstanding Voting
Securities”);
ii. In connection with or
anticipation of any acquisition, merger or reorganization in which
individuals who, as of the date hereof, constitute the Board (the
“Incumbent Board”) cease for any reason to constitute
at least a majority of the Board; provided, however, that any
individual becoming a director subsequent to the date hereof whose
election, or nomination for election by the Company’s
stockholders, was approved by a vote of at least a majority of the
directors then comprising the Incumbent Board shall be considered
as though such individual were a member of the Incumbent Board, but
excluding, for this purpose, any such individual whose initial
assumption of office occurs as a result of either an actual or
threatened election contest (as such terms are used in Rule 14a-11
of Regulation 14A of the Exchange Act) or other actual or
threatened solicitation of proxies or consents by or on behalf of a
Person other than the Board; or
iii. The equity holders of the
Company approve a plan of complete liquidation of the Company or
the consummation of an agreement for the sale or disposition by the
Company of all or substantially all of the Company’s assets
to a third party that is not affiliated with the Company and such
plan or agreement becomes effective.
c. “Change of Control”
shall not mean (i) any acquisition, merger, or reorganization
in which the stockholders of the Company immediately before the
acquisition, merger, or reorganization have beneficial ownership
(within the meaning of Rule 13d-3 under the Exchange Act) of 65% or
more of either (A) the Outstanding Common Stock, (B) the
Outstanding Voting Securities, (C) the then Outstanding Common
Stock of the surviving entity in the acquisition, merger, or
reorganization, or (D) the combined voting power of
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the then Outstanding Voting Securities of the
surviving entity in the acquisition, merger, or reorganization or
(ii) any acquisition, merger or reorganization by any employee
benefit plan (or related trust) sponsored or maintained by the
Company or any corporation controlled by the Company.
d. “Code” shall mean the
Internal Revenue Code of 1986, as amended. Any reference to a
particular section of the Code includes any successor provision to
that particular Code section.
e. “Confidential
Information” shall mean all technical and business
information of the Company, whether patentable or not, which is of
a confidential, trade secret, and/or proprietary character, which
is either developed or discovered by Executive (alone or along with
others) or disclosed or made available to Executive during his
employment. It shall also include, without limitation, confidential
evaluations of technical or business information in the public
domain and information as to whether the Company uses or does not
use any item in the public domain, particularly (but not exclusive
of) such information as the Company may treat or consider
“Confidential” or “Proprietary.”
Confidential Information shall include, without limitation,
(i) identities of Customers and vendors, whether current,
former or prospective, (ii) Customer lists,
(iii) marketing materials and sales plans, (iv) business
plans and strategic models, (v) terms of existing Customer
and/or vendor contracts, (vi) business methods, operations,
procedures or other technical know-how, (vii) private
financial data, (viii) research activities, data resources and
compilations, (ix) reference manuals and training aides,
(x) proprietary software code and (xi) other confidential
or proprietary information or secret aspects of the Company’s
business. Confidential Information shall not include any knowledge
or information that (i) is now or subsequently becomes
generally publicly known in the form in which it was obtained from
the Company, other than by Executive’s breach of this
Agreement, (ii) is independently made available to Executive
in good faith by a third party who has not violated a confidential
relationship with the Company, or (iii) is disclosed pursuant
to the requirement or request of a governmental agency or court of
competent jurisdiction to the extent such disclosure is required by
law, so long as Executive has provided the Company with sufficient
notice prior to such disclosure in order that the Company may seek
a protective order, if necessary.
f. “Customer” shall mean
any person or entity which at the time of Executive’s
Termination shall be an existing client or customer of the Company,
or a prospective client or customer of the Company, and as to whom
Executive obtained any Confidential Information (either concerning
the Customer or an aspect of the Company’s business relevant
to that Customer) while employed by the Company.
g. “Good Reason” shall
mean a Separation from Service upon Executive’s own
initiative that satisfies the requirements of (i), (ii) and
(iii) below.
(i) A Separation from Service shall
be for Good Reason only if Executive resigns after a material
reduction in Executive’s base compensation; after a material
diminution of Executive’s authority, duties or
responsibilities; after a material change in the geographic
location at which Executive must perform Executive’s duties
or after a material breach by the Company of the agreement, if any,
under which Executive provides services to the Company. For
purposes of this Agreement, Executive’s authority, duties or
responsibilities shall not be deemed to be diminished solely
because the Company no longer has publicly traded
securities.
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(ii) A Separation from Service shall
be for Good Reason only if Executive provides written notice to the
Company of the existence of a condition described in paragraph
(i) above (which notice shall set forth the facts that
Executive asserts constitute such condition) within thirty
(30) days of the initial existence of the condition and the
Company fails to remedy or cure the condition within thirty
(30) days after receipt of Executive’s written
notice.
(iii) A Separation from Service
shall be for Good Reason only if the Separation from Service occurs
within thirty (30) days after the end of the remedial or cure
period described in paragraph (ii).
h. “Restricted Business”
shall mean those businesses or enterprises which are
(i) directly in competition with the Company, or are regarded
by the Company as its then-current primary competitors and
(ii) engaged in the business of designing, developing,
manufacturing, distributing, marketing, leasing or selling
(x) wireless networks which incorporate any low-power radio
frequency integrated circuits, standard or custom radio modules,
packaged radio or network gateway products or (y) low-power
components, frequency control modules or filters.
i. “Restricted Position”
shall mean any position or arrangement that involves similar
duties, functions and responsibilities to the position(s) Executive
held at the Company during the last twelve (12) months of
Executive’s employment with the Company.
j “Restricted Territory”
shall mean the counties, cities, states, and territories of the
United States of America and Canada (i) where the Company
conducts business or (ii) where the Confidential Information
that Executive has learned as a result of his agreements herein
would be of value in competing with the Company.
k. “Separation from
Service” shall mean a termination of employment with the
Company and its affiliates, determined in a manner consistent with
the requirements of Treasury Regulation Section 1.409A-1(b).
In accordance with, and subject to, the requirements of Treasury
Regulation Section 1.409A-1(b), Executive will experience a
Separation from Service when the facts and
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circumstances indicate that Executive and the
Company or an affiliate reasonably anticipate that either
(i) no further services will be performed by Executive for the
Company or an affiliate after such date (whether as an employee or
independent contractor) or (ii) the bona fide services to be
performed by Executive (whether as an employee or independent
contractor) after such date would permanently decrease to no more
than twenty percent of the average level of such services Executive
provided over the thirty-six month period immediately preceding
such date. If Executive provides services to the Company or an
affiliate both as an employee and as a director of the Company or
an affiliate, the services that Executive provides as a director
shall not be taken into account in determining whether Executive
experienced a Separation from Service to the extent provided in
Treasury Regulation Section 1.409A-1(h).
l. “Specified Employee”
shall have the meaning set forth in Treasury Regulation
Section 1.409A-1(i). Whether Executive is a Specified Employee
shall be determined using December 31 as the “specified
employee identification date” under Treasury Regulation
Section 1.409A-1(i) and a “specified employee effective
date” of the April 1 following the applicable
“specified employee identification date.”
m. “Voluntary
Resignation” shall mean any Separation from Service upon
Executive’s own initiative, including without limitation
Executive’s retirement, other than for Good
Reason.
2. CHANGE OF
CONTROL
If, following a Change of Control
and before the second anniversary of a Change of Control, Executive
has a Separation from Service for any reason other than
(i) death, (ii) Cause, (iii) illness, accident, or
other physical or mental incapacity which prevents Executive from
performing his or her duties for more than one hundred and eighty
(180) days during any twelve (12) month period, or
(iv) Voluntary Resignation that is not for Good Reason
(“Termination”), Execut
