ATMEL CORPORATION CHANGE OF
CONTROL AND SEVERANCE PLAN
AND SUMMARY PLAN DESCRIPTION
1.
Introduction. The purpose of this Atmel Corporation Change
of Control and Severance Plan (the “ Plan ”) is
to provide assurances of specified severance benefits to eligible
employees of the Company whose employment is subject to being
involuntarily terminated due to death, Disability, or other than
for Cause or voluntarily terminated for Good Reason under the
circumstances described in the Plan, including but not limited to
following a Change of Control of the Company. The Company
recognizes that the potential of a Change of Control can be a
distraction to employees and can cause such employees to consider
alternative employment opportunities. The Plan is intended to (i)
assure that the Company will have continued dedication and
objectivity of key employees, notwithstanding the possibility,
threat or occurrence of a Change of Control and (ii) provide
such employees with an incentive to continue their employment and
to motivate them to maximize the value of the Company prior to and
following a Change of Control for the benefit of its stockholders.
This Plan is an “ employee welfare benefit plan
,” as defined in Section 3(1) of the Employee Retirement
Income Security Act of 1974, as amended. This document constitutes
both the written instrument under which the Plan is maintained and
the required summary plan description for the Plan.
2.
Important Terms. To help you understand how this Plan works,
it is important to know the following terms:
2.1
“Administrator” means the Compensation Committee
of the Board or another duly constituted committee of members of
the Board, or officers of the Company as delegated by the Board, or
any person to whom the Administrator has delegated any authority or
responsibility pursuant to Section 12, but only to the extent of
such delegation.
2.2
“Base Pay” means a Covered Employee’s
regular straight-time salary as in effect during the last regularly
scheduled payroll period immediately preceding the date on which an
Involuntary Termination occurs. Base Pay does not include payments
for overtime, shift premium, incentive compensation, incentive
payments, bonuses, commissions or other compensation.
2.3
“Board” means the Board of Directors of the
Company.
2.4
“Cause” means (i) the Covered
Employee’s willful and continued failure to perform the
duties and responsibilities of his or her position after there has
been delivered to the Covered Employee a written demand for
performance from the Company’s Chief Executive Officer which
describes the basis for the Chief Executive Officer’s belief
that the Covered Employee has not substantially performed his or
her duties and the Covered Employee has not corrected such failure
within thirty (30) days of such written demand; (ii) any
act of personal dishonesty taken by the Covered Employee in
connection with his or her responsibilities as an employee of the
Company with the intention or reasonable expectation that such
action may result in the substantial personal enrichment of the
Covered Employee; (iii) the Covered Employee’s
conviction of, or plea of nolo contendere to, a felony that the
Board reasonably believes has had or will have a material
detrimental effect on the Company’s reputation or business;
(iv) a breach of any fiduciary duty owed to the Company by the
Covered Employee that has a material detrimental effect on the
Company’s reputation or business; (v) the Covered
Employee being found liable in any Securities and Exchange
Commission or other civil or criminal securities law action or
entering any cease and desist order with respect to such action
(regardless of whether or not the Covered Employee admits or denies
liability); (vi) the Covered Employee (A) obstructing or
impeding;
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(B) endeavoring to obstruct, impede or
improperly influence, or (C) failing to materially cooperate
with, any investigation authorized by the Board or any governmental
or self-regulatory entity (an “ Investigation
”); however, the Covered Employee’s failure to waive
attorney-client privilege relating to communications with the
Covered Employee’s own attorney in connection with an
Investigation will not constitute “Cause”; or
(vii) the Covered Employee’s disqualification or bar by
any governmental or self-regulatory authority from serving in the
capacity contemplated by his or her position or the Covered
Employee’s loss of any governmental or self-regulatory
license that is reasonably necessary for the Covered Employee to
perform his or her responsibilities to the Company, if (A) the
disqualification, bar or loss continues for more than thirty
(30) days, and (B) during that period the Company uses its
good faith efforts to cause the disqualification or bar to be
lifted or the license replaced, it being understood that while any
disqualification, bar or loss continues during the Covered
Employee’s employment, the Covered Employee will serve in the
capacity contemplated by his or her position to whatever extent
legally permissible and, if the Covered Employee’s service in
the capacity contemplated by his or her position is not
permissible, the Covered Employee will be placed on leave (which
will be paid to the extent legally permissible).
2.5
“Change of Control” means the occurrence of any
of the following events: (i) the consummation by the Company
of a merger or consolidation of the Company with any other
corporation, other than a merger or consolidation which would
result in the voting securities of the Company outstanding
immediately prior thereto continuing to represent (either by
remaining outstanding or by being converted into voting securities
of the surviving entity) more than fifty percent (50%) of the total
voting power represented by the voting securities of the Company or
such surviving entity outstanding immediately after such merger or
consolidation; (ii) the consummation of the sale or
disposition by the Company of all or substantially all of the
Company’s assets; (iii) any “ person
” (as such term is used in Sections 13(d) and 14(d) of the
Securities Exchange Act of 1934, as amended) becoming the “
beneficial owner ” (as defined in Rule 13d-3
under said Act), directly or indirectly, of securities of the
Company representing more than fifty percent (50%) of the total
voting power represented by the Company’s then outstanding
voting securities; or (iv) a change in the composition of the
Board occurring within a one-year period, as a result of which
fewer than a majority of the directors are Incumbent Directors.
“ Incumbent Directors ” will mean directors who
either (A) are directors of the Company as of the date hereof,
or (B) are either (x) elected by the Board pursuant to
Section 3.4 of the Bylaws of the Company, or
(y) nominated by the Board for election by the stockholders
pursuant to Section 3.3 of the Bylaws of the Company, in
either case (x) or (y), with the affirmative votes of at least
a majority of those directors whose election or nomination was not
in connection with any transactions described in subsections (i),
(ii), or (iii) or in connection with an actual or threatened proxy
contest relating to the election of directors of the
Company.
2.6
“Change of Control Determination Period” means
the time period beginning three (3) months before the Change
of Control and ending twelve (12) months following the Change
of Control. Notwithstanding the foregoing, if a Change of Control
event described in Section 2.5(iv) occurs and, within twelve
(12) months following such Change of Control, a Change of
Control event described in Section 2.5(i) through
Section 2.5(iii) occurs (the “Subsequent Change of
Control”), the “Change of Control Determination
Period” will also include the time period beginning on the
date of the Subsequent Change of Control and ending on the date
that is twelve (12) months following such Subsequent Change of
Control.
2.7
“Change of Control Severance Benefits” means the
compensation and other benefits the Covered Employee will be
provided pursuant to Section 4.
2.8
“Company” means Atmel Corporation, a Delaware
corporation.
2.9
“Covered Employee” means an employee of the
Company or any parent or subsidiary of the Company who has been
designated by the Administrator to participate in the Plan as shown
on
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Appendix A
and/or Appendix B, attached hereto, and has executed and
delivered a Participation Agreement to the Company. For this
purpose, each U.S. employee of the Company who becomes a
Section 16 Officer on or after the Effective Date shall be
deemed to have been designated by the Administrator to participate
in the Plan under Tier 1 of Appendix A and Appendix B as
of the date he or she becomes a Section 16 Officer and shall
be a Covered Employee upon executing and delivering a Participation
Agreement to the Company.
2.10
“Disability” means total and permanent
disability as defined in Section 22(e)(3) of the Internal
Revenue Code of 1986, as amended (the “ Code
”).
2.10
“Effective Date” means August 5,
2008.
2.11
“Equity Compensation Awards” means, with respect
to a Covered Employee, the Covered Employee’s unvested equity
compensation awards outstanding on the later of the date of his or
her Involuntary Termination or the Change of Control, other than
performance-based restricted stock unit awards or other equity
compensation awards that vest based on achievement of performance
goals. For the sake of clarity, nothing herein will be deemed to
extend the maximum term of a Covered Employee’s stock options
as set forth in the applicable stock option agreements by and
between the Covered Employee and the Company.
2.12
“ERISA” means the Employee Retirement Income
Security Act of 1974, as amended.
2.13
“Good Reason” means the Covered Employee’s
termination of employment within ninety (90) days following the end
of the Cure Period (as defined below) as a result of the occurrence
of any of the following without his or her written consent:
(i) a material diminution of the Covered Employee’s
authority, duties, or responsibilities, relative to the Covered
Employee’s authority, duties, or responsibilities in effect
immediately prior to such reduction; provided, however, that solely
with respect to the Tier 2 Covered Employees whose names are
indicated with an asterisk (“*”) on Appendix A
attached hereto, a reduction of authority, duties, or
responsibilities that occurs solely as a necessary and direct
consequence of the Company undergoing a Change of Control and being
made part of a larger entity will not be considered material,
(ii) a material diminution by the Company in the Base Pay of
the Covered Employee as in effect immediately prior to such
reduction; provided, however, that following a Change of Control, a
comparable reduction of the Base Pay of substantially all other
executives of the consolidated entity that includes the Company
will not constitute “Good Reason”, (iii) the
relocation of the Covered Employee to a facility or a location more
than fifty (50) miles from his or her then present location,
or (iv) the failure of the Company to obtain the assumption of
the Plan by any successor in accordance with Section 21 below;
provided, however, that the Covered Employee must provide written
notice to the Board of the condition that could constitute a
“Good Reason” event within ninety (90) days of the
initial existence of such condition and such condition must not
have been remedied by the Company within thirty (30) days (the
“ Cure Period ”) of such written
notice.
2.14
“Involuntary Termination” means a termination of
employment of a Covered Employee under the circumstances described
in Sections 4.1 and 5.1.
2.15
“ Participation Agreement ” means the individual
agreement (a form of which is shown in Appendix C) provided by
the Administrator to an employee of the Company designating such
employee as a Covered Employee under the Plan, which has been
signed and accepted by the employee.
2.16
“Plan” means the Atmel Corporation Change of
Control Severance and Plan, as set forth in this document, and as
hereafter amended from time to time.
2.17
“ Section 16 Officer ” means a U.S.
employee of the Company who has been designated by the Board, at
its discretion and consistent with applicable law, as being subject
to the reporting requirements
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of
Section 16 of the Securities Exchange Act of 1934, as
amended.
2.18
“ Section 409A Limit ” means the lesser of
two (2) times: (i) the Covered Employee’s
annualized compensation based upon the annual rate of pay paid to
the Covered Employee during his or her taxable year preceding the
Covered Employee’s taxable year in which the Covered
Employee’s separation from service occurs as determined under
Treasury Regulation Section 1.409A-1(b)(9)(iii)(A)(1) and any
Internal Revenue Service guidance issued with respect thereto; or
(ii) the maximum amount that may be taken into account under a
qualified plan pursuant to Section 401(a)(17) of the Code for the
year in which the Covered Employee’s employment is
terminated.
2.19
“Severance Benefits” means the compensation and
other benefits the Covered Employee will be provided pursuant to
Section 5.
2.20
“Target Bonus” means, with respect to a Covered
Employee, the Covered Employee’s target bonus pursuant to the
Company’s applicable corporate bonus plan (i) at the
rate in effect for the fiscal year in which the Covered
Employee’s Involuntary Termination occurs and
(ii) assuming one hundred percent (100%) achievement of the
Covered Employee’s and the Company’s performance
objectives, if any. Notwithstanding the foregoing, the Covered
Employee’s Target Bonus for purposes of the Plan shall be
deemed to be the amount received as a bonus by the Covered Employee
for the Company’s fiscal year preceding the date of the
Covered Employee’s termination of employment if a target
bonus has not been established for the then current fiscal
year.
2.21
“Tier 1 Covered Employee” means (i) with
respect to the Change of Control Severance Benefits provided
pursuant to Section 4, a Covered Employee who has been
designated by the Administrator under Tier 1 as shown on
Appendix A attached hereto and (ii) with respect to the
Severance Benefits provided pursuant to Section 5, a Covered
Employee who has been designated by the Administrator under Tier 1
as shown on Appendix B attached hereto.
2.22
“Tier 2 Covered Employee” means with respect to
the Change of Control Severance Benefits provided pursuant to
Section 4, a Covered Employee who has been designated by the
Administrator under Tier 2 as shown on Appendix A attached
hereto.
3.
Eligibility for Change of Control Severance Benefits and
Severance Benefits . An individual is eligible for the Change
of Control Severance Benefits or the Severance Benefits under the
Plan, in the amount set forth in Section 4 or Section 5,
respectively, only if he or she is a Covered Employee on the
date he or she experiences an Involuntary Termination.
4. Change
of Control Severance Benefits.
4.1
Involuntary Termination in Connection with a Change of
Control . If, at any time within the Change of Control
Determination Period, (i) a Covered Employee terminates his or
her employment with the Company (or any parent or subsidiary of the
Company) for Good Reason, or (ii) the Company (or any parent
or subsidiary of the Company) terminates such Covered
Employee’s employment due to death, Disability, or other than
for Cause, then, subject to the Covered Employee’s compliance
with Section 7, the Covered Employee shall receive the
following Change of Control Severance Benefits from the
Company:
4.1.1
Cash Severance Benefits .
4.1.1.1
Tier 1 Covered Employee . If the Covered Employee is a Tier
1 Covered Employee, he or she shall be entitled to (i) a lump
sum payment in cash equal to one (1) times the Covered
Employee’s Base Pay and (ii) a lump sum payment in cash
equal to the Covered Employee’s Target
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Bonus, prorated
to the date of the Covered Employee’s Involuntary
Termination. The prorated amount of the Covered Employee’s
Target Bonus that is payable in accordance with the preceding
sentence will be calculated by multiplying the Covered
Employee’s Target Bonus by a fraction with the numerator
equal to the number of days during the year in which his or her
Involuntary Termination occurs that the Covered Employee was
employed by the Company, and the denominator equal to
365;
4.1.1.2
Tier 2 Covered Employee . If the Covered Employee is a Tier
2 Covered Employee, he or she shall be entitled to (i) a lump
sum payment in cash equal to 0.75 times the Covered
Employee’s Base Pay and (ii) a lump sum payment in cash
equal to the Covered Employee’s Target Bonus, prorated to the
date of the Covered Employee’s termination. The prorated
amount of the Covered Employee’s Target Bonus that is payable
in accordance with the preceding sentence will be calculated by
multiplying the Covered Employee’s Target Bonus by a fraction
with the numerator equal to the number of days during the year in
which his or her Involuntary Termination occurs that the Covered
Employee was employed by the Company, and the denominator equal to
365.
4.1.2
Continued Medical Benefits . If the Covered Employee, and
any spouse and/or dependents of the Covered Employee (“
Family Members ”), has coverage on the date of the
Covered Employee’s Involuntary Termination under a group
health plan sponsored by the Company, the Company will pay the
total applicable premium cost for continued group health plan
coverage under the Consolidated Omnibus Budget Reconciliation Act
of 1986, 29 U.S.C. Sections 1161-1168; 26 U.S.C. Section
4980B(f), as amended, and all applicable regulations (referred to
collectively as “ COBRA ”), provided that the
Covered Employee is eligible for and validly elects to continue
coverage under COBRA for the Covered Employee and his Family
Members, as follows:
4.1.2.1
Tier 1 Covered Employee . For a period of up to twelve
(12) months.
4.1.2.2
Tier 2 Covered Employee . For a period of up to nine
(9) months.
4.1.3
Equity Award Accelerated Vesting. Except as otherwise
provided in an appendix attached hereto with respect to Covered
Employees employed in one or more jurisdictions outside the United
States, one hundred percent (100%) of each Tier 1 Covered
Employee’s and each Tier 2 Covered Employee’s Equity
Compensation Awards automatically shall accelerate and all
restrictions or repurchase rights applicable thereto shall
immediately lapse so as to become fully vested and exercisable. The
period over which such Equity Compensation Awards may be exercised
shall be governed by the applicable provisions of the
Company’s stock plans and related award
agreements.
4.1.4
Outplacement Assistance . The Covered Employee shall be
entitled to transitional outplacement benefits in accordance with
the policies and guidelines of the Company as in effect immediately
prior to the Change of Control.
5.1
Involuntary Termination Other Than During the Change of Control
Determination Period . If, at any time before or after the
Change of Control Determination Period, the Company (or any parent
or subsidiary of the Company) terminates a Tier 1 Covered
Employee’s employment due to death, Disability, or other than
for Cause, then, subject to the Covered Employee’s compliance
with Section 7, the Tier 1 Covered Employee shall be entitled
to (i) a lump sum payment in cash equal to one (1) times
the Covered Employee’s Base Pay, (ii) a lump sum payment
in cash equal to the Covered Employee’s Target Bonus,
prorated to the date of the Covered Employee’s Involuntary
Termination and (iii) if the Tier 1 Covered Employee and his
Family Members have coverage on the date of the Tier 1 Covered
Employee’s Involuntary Termination under a group health plan
sponsored by the Company, the Company will pay the total applicable
premium cost for continued group health plan coverage under COBRA,
provided that the Tier 1 Covered Employee is eligible for and
validly elects to continue coverage under COBRA for the Tier 1
Covered Employee and his Family Members, for a period of up to
twelve (12 ) months. The prorated amount of the
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Covered
Employee’s Target Bonus that is payable in accordance with
the preceding sentence will be calculated by multiplying the
Covered Employee’s Target Bonus by a fraction with the
numerator equal to the number of days during the year in which his
or her Involuntary Termination occurs that the Covered Employee was
employed by the Company, and the denominator equal to
365.
6.
Parachute Payments. In the event that the severance and
other benefits provided for in this Plan or otherwise payable or
provided to the Covered Employee (i) constitute
“parachute payments” within the meaning of
Section 280G of the Code and (ii) but for this
Section 6, would be subject to the excise tax imposed by
Section 4999 of the Code (the “ Excise Tax
”), then the Employee’s severance benefits hereunder
shall be either
(a) delivered
in full, or
(b) delivered
as to such lesser extent which would result in no portion of such
severance benefits being subject to the Excise Tax,
whichever of
the foregoing amounts, taking into account the applicable federal,
state and local income taxes and the Excise Tax, results in the
receipt by the Covered Employee on an after-tax basis, of the
greatest amount of severance benefits, notwithstanding that all or
some portion of such severance benefits may be taxable under
Section 4999 of the Code. Unless the Company and the Covered
Employee otherwise agree in writing, any determination required
under this Section 6 shall be made in writing in good faith by
the Company’s independent tax accountants immediately prior
to the Change of Control (the “ Accountants ”).
In the event of a reduction in accordance with subsection
(b) above, the reduction will occur, with respect to such
severance and other benefits considered “parachute
payments” within the meaning of Section 280G of the
Code, in accordance with the following:
(x)
Assignment of Values . Each payment will be assigned an
“Economic Value” and a “280G Value.” The
280G Value will equal the value of the payment for purposes of
Section 280G of the Code as determined by the Accountants in
accordance with Section 280G of the Code and applicable
Treasury Regulations. The Economic Value will be determined as
follows:
(1)
Cash payments . The Economic Value of cash payments will
equal the 280G Value of each such payment.
A. Options
and Stock Appreciation Rights. The Economic Value of a Share (as
defined below) subject to a stock option or stock appreciation
right will be the difference equal to (i) the fair market
value of such Share as of the date the 280G Value of the Share is
determined for purposes of this Section, minus (ii) the per
share exercise price of the award.
B. Restricted
Stock and Restricted Stock Units. The Economic Value of a Share
subject to a restricted stock or restricted stock unit award will
be the difference equal to (i) the fair market value of such
Share as of the date the 280G Value of the Share is determined for
purposes of this Section, less (ii) the per share purchase
price of the award, if any.
C. For
purposes of this Section 6, each share of common stock subject
to each stock option, stock appreciation right, restricted stock
award and restricted stock unit award, the payment or vesting
acceleration of which constitutes a parachute payment within the
meaning of Section 280G of the Code (a “Share”),
will be a separate “payment.” As a result, an Economic
Value, 280G Value, and 280G Ratio (as defined below) will be
determined for each Share. For purposes of illustration only,
assume that the Covered Employee is granted an option on
January 1, 2008, covering 500 Shares at a per share exercise
price of $5. The option is scheduled to vest in equal annual
installments of 250 Shares on January 1, 2010 and
January 1, 2011. However, if a change of control occurs and
the Covered Employee is terminated without cause, the Covered
Employee is entitled to 100% vesting acceleration. On March 1,
2009, a change of control occurs with a deal price of $10 and the
Covered Employee is terminated without cause. The Accountants
determine that the
6
Covered
Employee’s severance benefits should be reduced in accordance
with this Section 6 and that the amount of the 280G Value to
be reduced is $100. The Accountants determine that the Economic
Value, 280G Value, and 280G Ratio for each of the 500 Shares
subject to the option are as follows:
(i) The
Economic Value for each Share is $5 (i.e., $10 deal price less the
$5 per share exercise price).
(ii) The
280G Value of each Share that would have vested on January 1,
2010 (the “2010 Shares”), is $1, as determined by the
Accountants based on appropriate assumptions used in calculating
the 280G Value in accordance with Section 280G of the Code and
applicable Treasury Regulations.
(iii) The
280G Value of each Share that would have vested on January 1,
2011 (the “2011 Shares”), is $2, as determined by the
Accountants based on appropriate assumptions used in calculating
the 280G Value in accordance with Section 280G of the Code and
applicable Treasury Regulations.
(iv) The
280G Ratio of each 2010 Share is 5:1 (i.e., $5 Economic Value
divided by the $1 280G Value).
(v) The
280G Ratio of each 2011 Share is 5:2 (.i.e., the $5 Economic Value
divided by the $2 280G Value).
The
280G Ratio of a 2011 Share is lower than the 280G Ratio of a 2010
Share. Consequently, the Accountants will reduce the 2011 Shares
first. As each 2011 Share has a 280G Value of $2, the Accountants
must reduce the 2011 Shares by 50 Shares (i.e., reducing the 2011
Shares by 50 Shares will reduce the Covered Employee’s
aggregate 280G Value by $100 (50 Shares multiplied by $2). After
taking the reduction into account, the Covered Employee vests in a
total of 450 Shares (i.e., 250 Shares that would have vested on
January 1, 2010 and 200 Shares that would have vested on
January 1, 2011).
(3)
Other Benefits and Payments . The Economic Value of each
payment attributable to Company-paid continued coverage under a
group health plan sponsored by the Company and outplacement
assistance, if any, will equal the 280G Value of each payment, such
that the 280G Ratio for each such payment will be equal to one
(1).
(y)
Ranking of Payments . After the 280G Value and Economic
Value of each payment are determined, the Accountants will rank the
payments in order of increasing 280G Ratio as follows: the payment
with the lowest 280G Ratio will be ranked first and all other
payments will be ranked in ascending order with respect to their
280G Ratios with the payment with the highest 280G Ratio ranked
last. For this purpose, the “280G Ratio” will mean,
with respect to each payment, the ratio determined by dividing:
(1) the Economic Value of the payment by (2) the 280G
Value of the payment. For purposes of clarity, the Accountants will
determine a separate 280G Ratio for each Share.
(z)
Reduction of Parachute Payments . The portion of each
payment that is a parachute payment under Section 280G of the
Code will be reduced in the order in which the payments have been
ranked in accordance with subsection (y) above. For purposes
of clarity, a Share or the acceleration of a Share, as applicable,
may be reduced in whole Shares only and may not be reduced by a
fraction of such Share. In the event that two or more payments have
the same 280G Ratio, the portion of each payment that is a
parachute payment will be reduced in accordance with the following
rules:
A. With
respect to two or more cash payments that have the same 280G Ratio,
such payments will be reduced on a pro-rata basis.
B. Any
cash payments that have the same 280G Ratio as payments that are
not cash payments will be reduced prior to reducing the payments
that are not cash payments.
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A. With
respect to two or more Shares, if the Shares have the same 280G
Ratio, the order of reduction of such Shares will be based on the
280G Value of the Shares. Shares with a higher 280G Value will be
subject to earlier reduction, such that a Share with the highest
280G Value will be reduced first and a Share with the lowest 280G
Value will be reduced last.
B. In
the event that two or more Shares (i) have the same 280G Ratio
and (ii) have the same 280G Value, the Shares will be subject
to reduction based on the dates of grant of the equity awards
covering such Shares. Shares subject to equity awards granted
earlier will be subject to earlier reduction, such that a Share
subject to an equity award with the earliest grant date will be
reduced first and a Share
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