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EXHIBIT 10.1 AMENDED AND RESTATED CHANGE OF CONTROL
AGREEMENT This Amended and Restated Change of Control
Agreement (this “Agreement”) is made this _______ day
of ________, 2008 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
Executive and the Company are party to that certain Change of
Control Agreement dated as of [•] (the “Prior
Agreement”), which provides for, among other provisions, the
payment of severance and other benefits to the Executive upon the
termination of the Executive’s employment with the Company
following a Change of Control (as hereinafter defined), under
certain circumstances specified in the Prior Agreement.
WHEREAS, the Company and the Executive now find it desirable and
necessary to enter into this Agreement, which amends the provisions
of the Prior Agreement to comply with the requirements of Section
409A of the Internal Revenue Code of 1986, as amended (the
“Code”), and the Executive now wishes to manifest his
or her consent to the amendments to the Prior Agreement by entering
into this Agreement. 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” (as described in Rule 14a 11 promulgated the 1934
Act) 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. 2
(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. Severance
Payments 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) Severance
Payments. The Company shall pay the Executive, in a lump
sum in cash within 30 days after the Termination Date, an amount
equal to Executive’s annualized base salary as in effect as
of the Termination Date;
(b) Bonus. In
addition to the severance payments 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:
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“X1” =
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the bonus amount paid to the Executive for the last completed
fiscal year;
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“X2” =
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the bonus amount paid to the Executive for the fiscal year prior
to the last completed fiscal year;
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and
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“Y” =
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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 a lump sum in cash within 30
days 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; 3
(c) Medical
and Dental Benefits. During the period of twelve months
commencing on the date next following the Termination Date (the
“Severance 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 Severance 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 to the
extent provided in the addendum to this Agreement relating to
vesting acceleration; 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; provided, however, that any
extension contemplated by this provision shall not extend beyond
the date that is the earlier of the tenth anniversary of the date
of grant or the original expiration date of the term of the
option. 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 forest
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