Exhibit 10.52
[FORM OF]
CHANGE-IN-CONTROL SEVERANCE AGREEMENT
This Change-in-Control Severance Agreement (the "Agreement") is
entered into
as of April 25, 2007 (the "Effective Date"), by and between
-----------------
("Executive") and Ramtron International Corporation, a Delaware
corporation
(the "Company").
Whereas, the Board of Directors of the Company (the "Board") has
determined
that it is in the best interests of the Company and its
stockholders to
assure that the Company will have the continued dedication of its
executive
and senior officers notwithstanding the possibility or occurrence
of a Change
in Control (as defined below) of the Company;
Whereas, the Board also believes that it is desirable to
encourage
Executive's full attention and dedication to the Company and
alleviate
uncertainty, and to provide Executive with compensation and
benefits in the
event of a Change-in-Control and Executive's termination of
employment under
the circumstances described in this Agreement;
Now, therefore, in consideration of the agreements contained herein
and other
good and valuable consideration, the receipt of which is
mutually
acknowledged, Executive and the Company hereby agree as
follows:
1. Definitions.
The following
definitions shall apply for all purposes
under this Agreement:
(a)
Affiliate.
"Affiliate" shall have
the meaning assigned to such term
in Rule 12b-2 promulgated under the Exchange Act.
(b)
Change-in-Control.
"Change-in-Control"
means the consummation of a
transaction or series of transactions resulting in one or more
of
the following events:
(i) The acquisition,
directly or indirectly, in one or more
transactions, by any individual, person or group of persons,
within the meaning of Section 13(d)(3) or 14(d)(2) of the
Exchange Act (a "Person") of beneficial ownership (within the
meaning of Rule 13d-3 promulgated under the Exchange Act),
individually or in the aggregate, of fifty percent (50%) or
more of either (1) the outstanding shares of common stock of
the Company or (2) the combined voting power of the Company's
outstanding securities entitled to vote generally in the
election of directors; provided, however, that the following
transactions shall not constitute, or be deemed to cause a
Change-in-Control of the Company: (A) any increase in
percentage ownership by a Person to fifty percent (50%) or more
resulting solely from any acquisition of shares directly from
the Company or any acquisition of shares by the Company that
reduces the number of shares outstanding; or (B) any Business
Combination described in clauses (A) and (B) of Section
1(a)(iii) below;
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(ii) A change in the
composition of the Board of the Company as a
result of which fewer than a majority of the directors are
Incumbent Directors.
"Incumbent Directors" shall mean
directors who either: (A) are directors of the Company as of
the Effective Date hereof; (B) are elected, or nominated for
election, to the Board of the Company with the affirmative vote
of at least a majority of the directors of the Company who are
Incumbent Directors described in (A) above at the time of such
election or nomination; or (C) are elected, or nominated for
election, to the Board of the Company with the affirmative
votes of at least a majority of the directors of the Company
who are Incumbent Directors described in (B) above at the time
of such election or nomination. Notwithstanding the foregoing,
"Incumbent Directors" shall not include an individual whose
election or nomination is in connection with an actual or
threatened proxy contest relating to the election of directors
to the Company;
(iii) Consummation of
a reorganization, merger or consolidation or
sale or other disposition of all or substantially all of the
assets of the Company (a "Business Combination"), in each case,
unless, following such Business Combination, (A) no Person,
individually or in the aggregate, nor any corporation resulting
from such Business Combination or any employee benefit plan (or
related trust) sponsored or maintained by the Company or such
corporation resulting from such Business Combination
beneficially owns, directly or indirectly, individually or in
the aggregate, fifty percent (50%) or more of the then
outstanding shares of common stock of the corporation resulting
from such
Business Combination or the combined voting power of
the then outstanding voting securities of such corporation
except to the extent that such ownership existed prior to the
Business Combination, and (B) at least a majority of the
members of the Board of the corporation resulting from such
Business Combination were members of the Incumbent Board at the
time of the execution of the initial agreement, or of the
action of the Board, providing for such Business Combination;
or
(iv) Approval by the
stockholders of the Company of the liquidation
or dissolution of the Company.
(c)
Cause. "Cause" shall mean any of the
actions relevant to Executive
committed by Executive (or omitted to be done by Executive)
that
occur on or after the Effective Date:
(i) A conviction of or
plea of "guilty" or "no contest" to a felony
under the laws of the United States or any state thereof;
(ii)
Conviction of any
crime constituting fraud, theft or
misappropriation of Company property, or of any other crime
that
materially injures the Company's business or reputation;
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(iii)
Any material violation
or breach of the Company's Code of
Business Conduct and Ethics, as determined by the Board;
(iv)
Willful or intentional
failure by Executive to materially comply
with a specific direction by the Board; or
(v) Any serious
misconduct or negligence in the course of
Executive's employment, as determined by the Board.
(d)
Change-in-Control
Period.
"Change-in-Control Period" means the
twelve (12) month period immediately following the date of a
Change
in Control under this Agreement, provided, however, that
notwithstanding anything in this Agreement to the contrary, if
a
Change-in-Control occurs and not more than 60 days prior to the
date
on which the Change-in-Control occurs, Executive's employment
with
the Company is terminated by the Company, such termination of
employment will be deemed to be a termination of employment after
a
Change-in-Control for purposes of this Agreement if Executive
reasonably demonstrates that such termination of employment (i)
was
at the request of a third party who has taken steps reasonably
calculated to effect a Change-in-Control, or (ii) otherwise arose
in
connection with or in anticipation of such Change-in-Control.
(e)
Control. "Control" shall have the meaning
assigned to such term in
Rule 12b-2 promulgated under the Exchange Act.
(f)
Good Reason.
"Good Reason" shall
mean, without the express written
consent of Executive, the occurrence after a Change-in-Control
of
any of the following circumstances, unless such circumstances
are
fully corrected prior to the date of termination specified in a
notice of termination by Executive:
(i) the material
diminishment of Executive's authority, duties or
responsibilities, or the assignment to Executive of any duties
inconsistent with Executive's authority, duties or
responsibilities from those in effect immediately prior to the
Change-in-Control;
(ii) a reduction in
Executive's base salary as in effect immediately
prior to the Change-in-Control, or diminishment of Executive's
bonus opportunity at the Company;
(iii) a reduction by
the Company in the kind or level of employee
benefits to which Executive was entitled to immediately prior
to such reduction with the result that Executive's overall
benefits package provided by the Company is materially reduced;
(iv) the Company
requiring Executive to be based at any office or
location more than 50 miles the Company's principal
headquarters prior to the Change-in-Control event, except for
travel reasonably required in the performance of Executive's
responsibilities; or
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(v) the failure of the
Company to obtain agreement from any
successor to assume and agree to perform this Agreement.
(g)
Total Disability.
"Total Disability" of
Executive shall be deemed
to occur on the one-hundred and eightieth (180th) consecutive,
or
non-consecutive calendar day, within any twelve (12) month
period
that Executive is unable to perform the duties commensurate
with
Executive's position with the Company due to physical or mental
disability or illness.
2. Severance Payment
and Other Benefits.
(a)
Eligibility for
Severance Payment.
Executive shall be entitled to
receive the severance payment (the "Severance Payment") and
benefits
set forth in this Section 2 from the Company if any of the
below
events occurs during the Change-in-Control Period:
(i) Executive resigns
his employment with the Company for Good
Reason, which notice must be given by Executive to the Board
within seventy-five (75) days following the occurrence of the
event giving rise to Good Reason for termination;
(ii) The Company
terminates Executive's employment with the Company
for any reason other than Cause; or
(iii) In the event of
Executive's death or Total Disability.
(iv) In the event of
Executive's "separation from service" (within
the meaning of Section 409A of the Code), due to Executive's
Total Disability.
(b)
Severance Payment.
(i) For all purposes
under this Agreement, upon Executive becoming
eligible for the Severance Payment as provided above, the
Company shall pay to Executive in cash an amount equal to (A)
Executive's base salary multiplied by two (2) plus (B) an
amount equal to the greater of (1) 200% of the bonus paid to
Executive for the preceding fiscal year or (2) 200% of the
target bonus for Executive approved by the Board for the fiscal
year during which the Change-in-Control occurs plus (C) an
amount equal to the difference between (1) the Company's
reasonable determination of present value of the continuation
of the benefits described in Section 2(e) for 24 months and (2)
the Company's reasonable determination of the present value of
the benefits Executive may receive under Section 2(e)(ii).
(ii) The Severance
Payment shall be paid in equal monthly
installments over the twelve (12) month period commencing on
the date the Executive becomes eligible for the Severance
Payment as provided in Section 2(a). Notwithstanding the
foregoing, if the Executive is a "specified employee" (within
the meaning of Section 409A of the Code), and the Severance
Payment is made on account of the Executive's "separation from
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service" (within the meaning of Section 409A of the Code) and
would not meet the "short-term deferral" exemption under
Section 409A of the Code (or otherwise qualify for exemption
under Section 409A of the Code), then the Severance Payment
shall commence on the first business day next following the
first business day of the seventh month following the
Executive's "separation from service" (or, if earlier, the date
of death) and the total amount of monthly installment payments
to which such Executive would otherwise be entitled during the
six-month period following the date of such "separation from
service" shall also be paid on the first business day next
following the first business day of the seventh month following
such "separation from service" (or, if earlier, the date of
death).
(c)
Accrued Compensation.
In addition to the
Severance Payment provided
above, Executive will also receive a lump cash payment on the
date
of termination, of any accrued and unpaid salary through the date
of
termination and/or bonuses earned for any completed performance
period but not yet paid and any earned, unused vacation time.
(d)
Other Compensation
Programs. A
termination of employment as
described in this Section 2 will not affect any rights that
Executive may have pursuant to any other agreement, policy,
plan,
program or arrangement of the Company providing for benefits,
which
rights will be governed by the terms thereof. Notwithstanding any
provision to the contrary in any applicable plan, program or
agreement, upon the occurrence of a Change-in-Control, all
restricted stock or other equity incentive awards held by
Executive
will become fully vested and all stock options held by
Executive
will become fully exercisable.
(e)
Health Coverage.
If Executive is
entitled to the Severance Payment
under Section 2(a), the Company shall reimburse Executive for
the
full cost of any group health continuation coverage that the
Company
is otherwise required to offer under the Consolidated Omnibus
Budget
Reconciliation Act of 1986 ("COBRA") until the earlier of the
date
that:
(i) Executive becomes
covered by comparable health coverage offered
by another employer, or
(ii) Is eighteen
months (18) months after the date of termination of
Executive's employment.
(f)
Conditions.
All payments and
benefits provided under this Section 2
are conditioned on Executive's continuing compliance with this
Agreement (including, but not limited to Section 4 hereof) and
Executive's execution (and effectiveness) of a release of claims
and
covenant not to sue substantially in the form provided in Exhibit
A
upon termination of employment.
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3. Certain Additional
Payments by the Company.
(a)
Definitions. The
following terms shall have the following meanings
for purposes of this Section 3:
(i) "Code" shall mean
the Internal Revenue Code of 1986, as
amended.
(ii) "Excise Tax"
shall mean the excise tax imposed by Section 4999
of the Code, together with any interest or penalties imposed
with respect to such excise tax.
(iii) "Parachute
Value" of a Payment shall mean the present value as
of the date of the change of control for purposes of Section
280G of the Code of the portion of such Payment that
constitutes a "parachute payment" under Section 280G(b)(2), as
determined by the accounting firm for purposes of determining
whether and to what extent the Excise Tax will apply to such
Payment.
(iv) "Payment" shall
mean any payment, distribution or other benefit
in the nature of compensation (within the meaning of Section
280G(b)(2) of the Code) to or for the benefit of Executive to
be paid or provided pursuant to this Agreement or any other
agreement contingent upon a change in control.
(v) "Safe Harbor
Amount" shall mean 2.99 times Executive's "base
amount," within the meaning of Section 280G(b)(3) of the Code.
(vi) "Value" of a
Payment shall mean the economic present value of a
Payment as of the date of the Change-in-Control for purposes of
Section 280G of the Code, as determined by the accounting firm
using the discount rate required by Section 280G(d)(4) of the
Code.
(b)
Anything in this
Agreement to the contrary notwithstanding and
except as set forth below, in the event it shall be determined
that
any Payment would be subject to the Excise Tax, then Executive
shall
be entitled to receive an additional payment (the "Excise Tax
Gross-
Up Payment") in an amount such that, after payment by Executive
of
all taxes (and any interest or penalties imposed with respect
to
such taxes), including, without limitation, any income taxes
(and
any interest and penalties imposed with respect thereto) and
Excise
Tax imposed upon the Excise Tax Gross-Up Payment, Executive
retains
an amount of the Excise Tax Gross-Up Payment equal to the Excise
Tax
imposed upon the Payments.
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(c)
Subject to the
provisions of Section 3(d), all determinations
required to be made under this Section 3, including whether and
when
an Excise Tax Gross-Up Payment is required, the amount of such
Excise Tax Gross-Up Payment and the assumptions to be utilized
in
arriving at such determination, shall be made by such
nationally
recognized accounting firm as may be selected by the Company
and
reasonably acceptable to Executive; provided, that the
accounting
firm's determination shall be made based upon "substantial
authority" within the meaning of Section 6662 of the Code. The
accounting firm shall provide detailed supporting calculations
both
to the Company and Executive as is requested by the Company.
All
fees and expenses of the accounting firm shall be borne solely
by
the Company. Any
Excise Tax Gross-Up Payment, as determined
pursuant to this Section 3, shall be paid by the Company to
Executive within five days of the receipt of the accounting
firm's
determination. Any
determination by the accounting firm shall be
binding upon the Company and Executive, unless the Company
obtains
an opinion of outside legal counsel, based upon at least
"substantial authority" within the meaning of Section 6662 of
the
Code, reaching a different determination, in which event such
legal
opinion shall be binding upon the Company and Executive. As a
result
of the uncertainty in the application of Section 4999 of the Code
at
the time of the initial determination by the accounting firm
hereunder, it is possible that Excise Tax Gross-Up Payments will
not
have
been made by the Company that should have been made
("Underpayment"), consistent with the calculations required to
be
made hereunder. In the event Executive is required to make a
payment
of any Excise Tax after the initial determination, the
accounting
firm shall determine the amount of the Underpayment that has
occurred and any such Underpayment shall be promptly paid by
the
Company to or for the benefit of Executive. Notwithstanding the
foregoing, no Excise Tax Gross-Up Payment shall be paid later
than
December 31 of the Executive's taxable year next following the
Executive's taxable year in which the Executive pays the taxes
(including the Excise Tax and any interest or penalties imposed
with
respect to such taxes) related to such Excise Tax Gross-Up
Payment.
(d)
Executive shall notify
the Company in writing of any claim by the
Internal Revenue Service that, if successful, would require the
payment by the Company of the Excise Tax Gross-Up Payment. Such
notification shall be given as soon as practicable, but no
later
than 10 business days after Executive is informed in writing of
such
claim. Executive shall apprise the Company of the nature of
such
claim and the date on which such claim is requested to be paid.
Executive shall not pay such claim prior to the expiration of
the
30-day period following the date on which Executive gives such
notice to the Company (or such shorter period ending on the
date
that any payment of taxes with respect to such cl
