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CHANGE IN CONTROL AGREEMENT
This
CHANGE IN CONTROL AGREEMENT (the "Agreement") is entered into
effective as of 11-14-07 , by and between RF Micro Devices,
Inc., a North Carolina corporation (the "Company"), and Robert Van
Buskirk (the "Executive").
WHEREAS, the Executive is currently employed by the Company;
and
WHEREAS, the Company considers the establishment and maintenance of
a sound and vital management group to be essential to protecting
and enhancing the best interests of the Company and its
shareholders; and
WHEREAS, the Company has determined that the best interests of the
Company and its shareholders will be served by reinforcing and
encouraging the continued dedication of the Executive to his
assigned duties without distractions arising from a potential
change in control of the Company; and
WHEREAS, this Agreement is intended to remove such distractions and
to reinforce the continued attention and dedication of the
Executive to his assigned duties;
NOW, THEREFORE, in
consideration of the mutual promises and agreements contained in
this Agreement and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the
Executive and the Company hereby agree as follows:
1.
Term of Agreement . This Agreement shall become
effective on the date hereof and shall continue in effect until the
earliest of (a) April 5, 2010, if no Change in Control has occurred
before that date; provided, however, that commencing on April 5,
2010 and each year thereafter, the term of this Agreement shall
automatically be extended for an additional one year unless, not
later than January 1 of the same year, the Company shall have given
notice to the Executive that it does not wish to extend this
Agreement (such three-year period, as it may be extended as
described in Section 1(a) herein, being referred to as the "Term");
(b) the termination by either party of the Executive's employment
with the Company for any reason prior to a Change in Control; or
(c) the expiration following a Change in Control of two years and
the fulfillment by the Company and the Executive of all of their
obligations hereunder. Notice by the Company of its intention
not to extend the term of this Agreement and its expiration at the
end of the Term shall not constitute termination of employment and
the Executive shall not be entitled to the payment of benefits
under Sections 4 and 5 unless he is otherwise entitled to such
benefits pursuant to the terms herein. Furthermore, nothing
in the Section 1 shall cause this Agreement to terminate before
both the Company and the Executive have fulfilled all of their
obligations hereunder.
2.
Change in Control.
( a) No compensation shall be
payable under this Agreement unless and until (i) there has been a
Change in Control of the Company while the Executive is still an
employee of the Company and (ii) the Executive's employment
by the Company is
terminated for a
reason other than one or more of the circumstances
specified in Section 3(a)(i) through (v).
(b)
For the purposes of this Agreement, a "Change in Control" of the
Company shall be deemed to have occurred on the first to occur of
the following:
(i)
The date any entity or person shall have become the beneficial
owner of, or shall have obtained voting control over, forty percent
(40%) or more of the outstanding Common Stock of the Company;
(ii)
The date the shareholders of the Company approve a definitive
agreement (A) to merge or consolidate the Company with or into
another corporation or other business entity (for these purposes,
each, a "corporation"), in which the holders of the Company's
Common Stock immediately prior to the merger or consolidation have
voting control over less than sixty percent (60%) of the voting
securities of the surviving corporation outstanding immediately
after such merger or consolidation, or (B) to sell or otherwise
dispose of all or substantially all the assets of the Company;
or
(iii)
The date there shall have been a change in a majority of the Board
of Directors of the Company within a 12-month period unless the
nomination for election by the Company's shareholders of each
new director was approved by the vote of two-thirds of the
directors then still in office who were in office at the beginning
of the 12-month period.
For purposes herein, the
term "person" shall mean any individual, corporation, partnership,
group, association or other person, as such term is defined in
Section 13(d)(3) or Section 14(d)(2) of the Securities Exchange Act
of 1934, as amended (the "Exchange Act"), other than the Company, a
subsidiary of the Company or any employee benefit plan(s) sponsored
or maintained by the Company or any subsidiary thereof, and the
term "beneficial owner" shall have the meaning given the term in
Rule 13d-3 under the Exchange Act.
3.
Termination Following Change in Control .
(a)
Termination . If a Change in Control of the Company
shall have occurred while the Executive is still an employee of the
Company, the Executive shall be entitled to the payments provided
in Sections 4 and 5 herein upon the termination of the Executive's
employment with the Company within the twenty-four (24) month
period following a Change in Control, whether such termination is
by the Executive or by the Company, unless such termination
is as a result of (i) the Executive's death; (ii) the Executive's
Disability (as defined in Section 3(b) below); (iii) the
Executive's Retirement (as defined in Section 3(c) below); (iv) the
Executive's termination of employment by the Company for Cause (as
defined in Section 3(d) below); or (v) the Executive's decision to
terminate employment other than for Good Reason (as defined in
Section 3(e) below). For the purposes of this Agreement,
the twenty-four (24) month period following a Change in Control
shall be referred to as the "Termination Period."
(b)
Death or Disability .
(i) Disability . In the event that the
Executive's employment terminates because of Disability, the
Company shall have no obligation or liability
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to the Executive pursuant to this Agreement by reason of such
termination (except as may be otherwise provided in Section 4(d)
herein) and this Agreement shall terminate upon the Executive's
termination of employment due to Disability; provided, however,
that the Executive's termination of employment due to Disability
shall be effective only at the end of thirty (30) days following
the delivery of written notice by the Company to the Executive of
such termination due to Disability and only if Executive fails to
return to the full-time performance of duties by the end of such
30-day notice period. For the purposes of this Agreement,
"Disability" shall mean a physical or mental illness or injury that
prevents the Executive from performing the essential functions of
his duties (as they existed immediately before the illness or
injury) on a full-time basis for a period of at least six (6)
consecutive months. The Board of Directors of the Company
(the "Board") shall have sole authority to determine if a
Disability exists.
(ii)
Death . This Agreement shall terminate immediately in
the event of the death of the Executive occurring at any time
during the Term hereof, and in such event the Company shall have no
obligation or liability to the Executive or his legal
representatives by reason of such termination (except as may be
otherwise provided in Section 4(d) herein).
(c)
Retirement . In the event that the Executive's
employment terminates due to his Retirement, the Company shall have
no obligation or liability to the Executive pursuant to this
Agreement upon such termination (except as otherwise provided in
Section 4(d) herein), and the Agreement shall terminate upon the
Executive's termination of employment due to such Retirement.
"Retirement" as used in this Agreement shall mean the earlier to
occur of (A) the Executive's normal retirement date under the
Company's tax-qualified retirement plan or any successor plan
thereto applicable to the Executive or (B) the Executive's
retirement date under a contract, if any, between the Executive and
the Company providing for his retirement from the employment of the
Company or an affiliate (as defined in Section 11(a) herein) on a
date other than such normal retirement date.
(d)
Cause .
(i)
If the Executive's employment with the Company is terminated for
Cause, the Company shall have no obligation or liability to the
Executive under this Agreement (except as may be otherwise provided
in Section 4(d) herein), and this Agreement shall terminate upon
the Executive's termination of employment for Cause.
(ii)
For purposes of this Agreement, "Cause" shall be determined solely
by the Board in the exercise of good faith and reasonable judgment,
and shall mean the occurrence of any one or more of the
following:
(A)
The continued failure of the Executive to perform his duties with
the Company (other than any such failure resulting from the
Executive's incapacity due to physical or mental illness or any
such failure after the Executive has received a Notice of
Termination without Cause by the Company or has delivered a Notice
of Termination for Good Reason to the Company) which has not been
corrected within thirty (30) days after a written demand for
performance is delivered to the Executive by the Board which
specifically identifies the manner in which the Board
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believes that the Executive has not substantially performed the
Executive's duties;
(B)
The Executive's engaging in conduct that damages or prejudices the
Company or any affiliate or engaging in conduct or activities
damaging to the property, business or reputation of the Company or
any affiliate, including but not limited to breaching Company
policies including those related to equal employment opportunity
and unlawful harassment;
(C)
The conviction of the Executive of, or a plea by the Executive of
nolo contendere to, a felony, or any misdemeanor that involves
moral turpitude;
(D)
The Executive's engaging in any act of fraud, theft,
misappropriation, embezzlement or dishonesty to the material
detriment of the Company;
(E)
Any diversion by the Executive of a material business opportunity
from the Company without written Board consent;
(F)
Any breach by the Executive of a material term of the Agreement
(including but not limited to the Executive's breach of any
covenant contained in Section 9 herein); or
(G)
The Executive's continued substance abuse, as determined by the
Board after written notice from the Board and a reasonable
opportunity to undergo appropriate treatment for a reasonable
period.
Any
act, or failure to act, based upon authority given pursuant to a
resolution duly adopted by the Board shall be conclusively presumed
to be done, or omitted to be done, by the Executive in good faith
and in the best interests of the Company. Cause shall not exist
unless and until the Company has delivered to the Executive a copy
of a resolution duly adopted by the majority of the Board
(excluding the Executive if the Executive is a Board member) at a
meeting of the Board called and held for such purpose (after
reasonable notice to the Executive and an opportunity for the
Executive, together with counsel, to be heard before the Board),
finding that in the good faith opinion of the Board an event set
forth in any one or more of clauses (A) through (G) herein has
occurred and specifying the particulars thereof in detail.
(e)
Good Reason . The Executive may terminate his
employment for Good Reason at any time after a Change of Control
during the Termination Period. For purposes of this
Agreement, "Good Reason" shall mean any of the following:
(i)
A material reduction by the Company without the Executive's written
consent in the Executive's basic duties and responsibilities;
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(ii)
Any material reduction by the Company without the Executive's
written consent of the Executive's base salary as in effect on the
date hereof (or as the same may be adjusted with Executive's
written consent from time to time during the Term), other than a
reduction which is part of a salary reduction plan applicable to
all officers or all employees of the Company, as the case may be
(and not the Executive singly);
(iii)
Any failure by the Company to continue the Executive's ability to
participate in any plan or arrangement, including, without
limitation, any life insurance, accident, disability or health
insurance plan, thrift plan, pension plan, retirement plan,
profit-sharing plan, or any other qualified or non-qualified
employee benefit plan, bonus plan, incentive plan, stock option,
restricted stock, stock purchase or other stock-based plan, and all
other similar plans or arrangements which are from time to time
made generally available to officers of the Company and in which
the Executive participates, unless there are substituted therefore
plans or arrangements providing the Executive with essentially
equivalent and no less favorable benefits, or any action or
inaction by the Company which would adversely affect the
Executive's participation in or materially reduce the Executive's
benefits under any such plan or successor plan or deprive the
Executive of any material fringe benefit enjoyed by the Executive;
provided , however , that (A) a reduction in the
Executive's incentive or bonus plan payments due to the failure to
attain certain performance-based objectives or (B) a reduction in
the Executive's benefits due to the Company's decision to
discontinue the availability of any plan or arrangement to all
officers or all employees, as the case may be (and not the
Executive singly), shall not be deemed to constitute "Good Reason"
under this Section 3(e)(iii);
(iv)
A relocation of the Company's principal executive offices to a
location in excess of 30 miles from Greensboro, North Carolina, or
the Executive's relocation to any place other than the location at
which the Executive performed the Executive's duties prior to a
Change in Control of the Company, except for (A) required travel by
the Executive on the Company's business to an extent substantially
consistent with the Executive's business travel obligations during
the 12 months immediately preceding a Change of Control of the
Company or (B) a relocation with the Executive's express written
consent;
(v)
Any material reduction in the number of paid vacation days to which
the Executive is entitled at the time of a Change of Control of the
Company (other than a reduction with the Executive's written
consent);
(vi)
Any failure by the Company without the Executive's written consent
to obtain the express assumption of this Agreement by any successor
or assignee of the Company (and parent corporation of such
successor or assignee, if applicable) as provided in Section 11(a)
herein.
(f)
Notice of Termination . Any termination of the
Executive's employment (i) by the Company due to Disability,
Retirement or for Cause or (ii) by the Executive for Good Reason
shall be communicated by a Notice of Termination. For
purposes of this Agreement, a "Notice of Termination" shall mean a
written notice which shall indicate those specific termination
provisions in this Agreement relied upon and which sets forth in
reasonable detail the facts and
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circumstances claimed to provide a basis for termination of the
Executive's employment under the provisions so indicated. For
purposes of this Agreement, no such purported termination by the
Company or the Executive shall be effective without such Notice of
Termination.
(g)
Date of Termination . Date of Termination" shall mean
(i) if the Executive is terminated by the Company for Disability,
30 days after Notice of Termination is given to the Executive
(provided that the Executive shall not have returned to the
performance of the Executive's duties on a full-time basis during
such 30-day period); (ii) if the Executive is terminated by the
Company for any other reason, the date on which a Notice of
Termination is given (or such later date as is specified in such
notice); or (iii) if the Executive terminates for Good Reason, the
date on which a Notice of Termination is given (or such later date
as is specified in such notice).
4.
Payment of Compensation upon Termination of
Employment . If, during the Termination Period, the
employment of the Executive shall terminate pursuant to a
"Qualifying Termination" (as defined herein), then the Company
shall provide to the Executive the payments described in this
Section 4 and, if applicable, Section 5. For the purposes of
the Agreement, a "Qualifying Termination" means (i) the Company's
termination of the Executive's employment other than
because of death, Disability, Retirement or Cause, as provided in
Sections 3(b), 3(c) and 3(d) herein, or (ii) the Executive's
termination of his employment for Good Reason pursuant to Section
3(e) herein.
(a)
Cash Payments . If, during the Termination
Period, the employment of the Executive shall terminate pursuant to
a Qualifying Termination, then the Company shall provide to the
Executive the following cash payments:
(i)
Within thirty (30) days following the Date of Termination (or such
earlier date, if any, as may be required under applicable wage
payment laws), a lump-sum cash amount equal to the sum of (A) the
Executive's base salary through the Date of Termination and any
bonus amounts which have been earned or become payable, to the
extent not theretofore paid or deferred, (B) a pro rata portion of
the Executive's annual bonus for the fiscal year in which the
Executive's Date of Termination occurs in an amount at least equal
to (1) the Executive's Bonus Amount, multiplied by (2) a fraction,
the numerator of which is the number of days in the fiscal year in
which the Date of Termination occurs through the Date of
Termination and the denominator of which is three hundred
sixty-five (365), and reduced by (3) any amounts paid from the
Company's incentive plan for the fiscal year in which the
Executive's Date of Termination occurs and (C) any accrued vacation
pay, to the extent not theretofore paid; plus
(ii) &nbs
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