|
Exhibit 10.30
AMENDED AND RESTATED
SPANSION INC.
CHANGE OF CONTROL
SEVERANCE AGREEMENT
This Amended and Restated
Change of Control Severance Agreement (the “Agreement”)
is made and entered into by and between _____________ (the
“Executive”) and Spansion Inc. (the
“Company”), effective as of the latest date set forth
by the signatures of the parties hereto below (the “Effective
Date”). For purposes of the employment relationship, only,
the “Company” includes Spansion LLC.
R E C I T A L
S
A. It is expected that the
Company from time to time will consider the possibility of an
acquisition by another company or other change of control. The
Board of Directors of the Company (the “Board”)
recognizes that such consideration can be a distraction to the
Executive and can cause the Executive to consider alternative
employment opportunities. The Board has determined that it is in
the best interests of the Company and its securityholders to assure
that the Company will have the continued dedication and objectivity
of the Executive, notwithstanding the possibility, threat or
occurrence of a Change of Control (as defined below) of the
Company.
B. The Board believes that it
is in the best interests of the Company and its securityholders to
provide the Executive with an incentive to continue the
Executive’s employment and to motivate the Executive to
maximize the value of the Company upon a Change of Control for the
benefit of its securityholders.
C. The Board believes that it
is imperative to provide the Executive with severance benefits upon
the Executive’s termination of employment following a Change
of Control that provides the Executive with enhanced financial
security and provides incentive and encouragement to the Executive
to remain with the Company notwithstanding the possibility of a
Change of Control.
D. Certain capitalized terms
used in the Agreement are defined in Section 4
below.
The parties hereto agree as
follows:
1. Term of Agreement .
This Agreement shall terminate upon the date that all obligations
of the parties hereto with respect to this Agreement have been
satisfied or upon cancellation with written notice by either of the
parties setting forth the effective date of such cancellation;
provided , however , that the effective date of such
cancellation shall in no event be earlier than two (2) years
from the date on which the written notice of cancellation is
given.
2. At-Will Employment
. The Company and the Executive acknowledge that the
Executive’s employment is and shall continue to be
“at-will,” as defined under applicable law. The
Executive understands that nothing in this Agreement modifies the
Executive’s “at-will” employment status with the
Company; the Company or the Executive may terminate the employment
relationship at any time, with or without cause.
3. Change of Control
Severance Benefits .
(a) Involuntary
Termination other than for Cause, Death or Disability or Voluntary
Termination for Good Reason Following A Change of Control . If,
within twenty-four (24) months following a Change of Control,
the Executive’s employment is terminated involuntarily by the
Company other than for Cause, death or Disability or by the
Executive pursuant to a Voluntary Termination for Good Reason, and
the Executive executes and does not revoke a general release of
claims against the Company and its affiliates in a form acceptable
to the Company, then the Company shall provide the Executive with
the benefits as set forth below:
(i) Cash Award. A lump
sum payment in the amount of _________ percent (___%) of the
aggregate of (AA) the Executive’s annual base salary plus
(BB) the Executive’s target for the annual short term
incentive portion of the corporate bonus program for such year as
in effect immediately prior to such termination, in addition to any
other earned but unpaid base salary or vacation pay due through the
date of such termination, as well as a pro rata portion of the
Executive’s annual short term incentive portion of the
corporate bonus program for such year (if any) and a pro rata
portion of the Executive’s long term incentive portion of the
corporate bonus program (if any) (based on the number of days
elapsed during such year through the date of termination) as in
effect immediately prior to such termination. This lump sum payment
is to be paid as soon as practicable after the effective date of
the termination for Cause or Voluntary Termination for Good Reason
but in any case, by no later than March 14 of the calendar
year following the calendar year in which such termination
occurs.
(ii) Acceleration of
Equity Awards. All (AA) outstanding and unvested options to
purchase the common stock of the Company or any affiliate of the
Company granted under any equity plan of the Company or affiliate
of the Company, (BB) restricted stock then held by the
Executive and (CC) other equity and equity equivalent awards
then held by the Executive shall be accelerated in full, and
thereafter all such options, restricted stock and other equity
awards shall be immediately vested, and exercisable for such period
of time following termination as provided for by the specific
agreements governing each such award.
(iii) Benefits
Continuation. For the period beginning on the date of such
involuntary termination by the Company other than for Cause, death
or Disability or the Executive’s Voluntary Termination for
Good Reason occurs and ending on the earlier of (AA) the date
which is eighteen (18) months following the date of such
termination or (BB) the date upon which the Executive
commences receiving generally comparable medical benefits through
employment elsewhere, the Company shall pay directly or reimburse
the Executive, at its option, for premium costs incurred by the
Executive and the Executive’s dependents for medical and
dental benefits continuation coverage pursuant to
Section 4980B of the Internal Revenue Code of 1986, as amended
(the “Code”), Sections 601-608 of the Executive
Retirement Income Security Act of 1974, as amended, and under any
other applicable law, to the extent required by such laws, as if
the Executive had terminated employment with the Company on the
date such benefits coverage terminates.
(iv) All of the foregoing
benefits shall replace and be in lieu of any other severance
benefit(s) to which Executive would otherwise be entitled following
a Change of Control.
-2-
(b) Voluntary Resignation;
Termination For Cause . If the Executive’s employment
terminates by reason of the Executive’s voluntary resignation
(and is not a Voluntary Termination for Good Reason), or if the
Executive is terminated for Cause, then the Executive shall not be
entitled to receive severance or other benefits pursuant to this
Agreement.
(c) Disability; Death
. If the Executive’s employment with the Company terminates
as a result of the Executive’s Disability, or if the
Executive’s employment is terminated due to the death of the
Executive, then the Executive shall not be entitled to receive
severance or other benefits pursuant to this Agreement.
(d) Termination Apart from
Change of Control . In the event the Executive’s
employment is terminated for any reason not related to a Change of
Control prior to the occurrence of a Change of Control, or for any
reason after the twenty-four (24) month period following a
Change of Control, then the Executive shall not be entitled to
receive severance or other benefits pursuant to this
Agreement.
4. Definition of Terms
. The following terms referred to in this Agreement shall have the
following meanings:
(a) Cause .
“Cause” shall mean (i) an act of personal
dishonesty taken by the Executive in connection with the
Executive’s responsibilities as an employee and intended to
result in substantial personal enrichment of the Executive,
(ii) the Executive’s conviction of, or plea of guilty or
no contest to, any felony, (iii) a willful act by the
Executive which constitutes gross misconduct and which is injurious
to the Company, (iv) following delivery to the Executive of a
written demand for performance from the Company which describes the
basis for the Company’s reasonable belief that the Executive
has not substantially performed the Executive’s duties,
continued violations by the Executive of the Executive’s
obligations to the Company that are demonstrably willful and
deliberate on the Executive’s part.
(b) Change of Control
. “Change of Control” means the occurrence of any of
the following events:
(1) The acquisition 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”)) other than
Advanced Micro Devices, Inc. and its affiliates (collectively,
“AMD”) (a “Person”) of beneficial ownership
(within the meaning of Rule 13d-3 promulgated under the Exchange
Act), directly or indirectly, of more than thirty-three percent
(33%) of either (1) the then-outstanding membership
interests or shares of common stock of the Company (the
“Outstanding Company Common Stock”) or (2) the
combined voting power of the then-outstanding voting securities of
the Company entitled to vote generally in the election of directors
(the “Outstanding Company Voting Securities”) (in
either case including in connection with a Business Combination);
provided , however , that, for purposes of this
clause (a), the following acquisitions shall not constitute a
Change of Control: (A) any acquisition directly from the
Company, (B) any acquisition by the Company, (C) any
acquisition by any employee benefit plan (or related trust)
sponsored or maintained by the Company or any affiliate of the
Company or a successor or (D) any acquisition by any entity
pursuant to a transaction that complies with Sections
(4)(b) (2), (3) and (4) of this definition
below;
-3-
(2) Individuals who, as of
the date hereof, constitute the Board or the board of directors of
any entity that directly or indirectly owns all of the outstanding
equity securities of the Company (the “Incumbent
Board”) cease for any reason to constitute at least a
majority of the Board (or the board of directors of any entity that
directly or indirectly owns all of the outstanding equity
securities of the Company), including in connection with a Business
Combination; provided, however, that any individual becoming a
Board manager or director subsequent to the date hereof whose
election, or nomination for election by the Company’s
securityholders was approved by a vote of at least two-thirds of
the individuals then comprising the Incumbent Board (including for
these purposes, the new members whose election or nomination was so
approved, without counting the member and the member’s
predecessor twice) 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 an actual or threatened election contest with
respect to the election or removal of Board managers or directors
or other actual or threatened solicitation of proxies or consents
by or on behalf of a Person other than the Board or the board of
directors of any entity that directly or indirectly owns all of the
outstanding equity securities of the Company;
(3) Consummation of a
reorganization, merger, statutory share exchange or consolidation
or similar transaction involving the Company or any of its
subsidiaries or any parent entity, a sale or other disposition of
all or substantially all of the assets of the Company, or the
acquisition of assets or stock of another entity by the Company or
any of its subsidiaries (each, a “Business
Combination”), in each case unless, following such Business
Combination, all or substantially all of the individuals and
entities that were the beneficial owners of the Outstanding Company
Common Stock and the Outstanding Company Voting Securities
immediately prior to such Business Combination beneficially own,
directly or indirectly, more than fifty percent (50%) of the
then-outstanding equity interests and the combined voting power of
the then-outstanding voting securities entitled to vote generally
in the election of directors, as the case may be, of the entity
resulting from such Business Combination (including, without
limitation, an entity that, as a result of such transaction, owns
the Company or all or substantially all of the Company’s
assets directly or through one or more subsidiaries (a
“Parent”)) in substantially the same proportions as
their ownership immediately prior to such Business Combination of
the Outstanding Company Common Stock and the Outstanding Company
Voting Securities, as the case may be; or
(4) Approval by the
stockholders of the Company of a complete liquidation or
dissolution of the Company other than in the context of a
transaction that does not constitute a Change of Control under
clause (3) of this definition above.
For the avoidance of doubt, the
reorganization of the Company as described in the Company’s
Registration Statement on Form S-1 shall not constitute a Change of
Control and Fujitsu’s ownership of 40% or less of either the
Outstanding Company Common Stock or the Outstanding Company Voting
Securities shall not constitute a Change of Control.
-4-
(c) Disability .
“Disability” shall mean that the Executive has been
unable to perform the Executive’s Company duties as the
result of the Executive’s incapacity due to physical or
mental illness, and such inability, at least twenty-six
(26) weeks after its commencement, is determined to be total
and permanent by a physician selected by the Company or its
insurers and acceptable to the Executive or the Executive’s
legal representative (such Agreement as to acceptability not to be
unreasonably withheld). Termination resulting from Disability may
only be effected after at least thirty (30) days’
written notice by the Company of its intention to terminate the
Executive’s employment. In the event that the Executive
resumes the performance of substantially all of the
Executive’s Company duties before the termination of the
Executive’s employment becomes effective, the notice of
intent to terminate shall automatically be deemed to have been
revoked. $
(d) Voluntary Termination
for Good Reason .
“Voluntary Termination
for Good Reason” shall mean the Executive voluntarily resigns
after the occurrence of any of the following (i) without the
Executive’s express written consent, a material reduction of
the Executive’s duties, title, authority or responsibilities;
provided , however , that a reduction in duties,
title, authority or responsibilities solely by virtue of the
Company being acquired and made part of a larger entity (e.g., when
the Chief Financial Officer of the Company remains as such
following a Change of Control and is not made the Chief Financial
Officer of the acquiring corporation) shall not by itself
constitute grounds for a “Voluntary Termination for Good
Reason”; (ii) without the Executive’s express
written consent a reduction in the base salary of the Executive
greater than ten percent (10%); (iii) the relocation of the
Executive to a facility or a location more than
forty-five (45) miles from the Executive’s then present
location of employment; or (iv) the failure of the Company to
obtain the assumption of this agreement by any successors
contemplated in Section 5(a) below. The Executive and the
Company intend the foregoing definition to comply with the
requirements of Treasury Regulation Section 1.409A-1(n) and
hereby agree that such definition shall be interpreted in a manner
consistent with such requirements.
5.
Successors
(a) Company’s
Successors . Any successor to the Company (whether direct or
indirect and whether by purchase, merger, consolidation,
liquidation or otherwise) or to all or substantially all of the
Company’s business and/or assets shall assume the obligations
under this Agreement and agree expressly to perform the obligations
under this Agreement in the same manner and to the same extent as
the Company would be required to perform such obligations in the
absence of a succession. For all purposes under this Agreement, the
term “Company” shall include any successor to the
Company’s business and/or assets which executes and delivers
the assumption agreement described in this Section&n
| 
