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Exhibit
10.2
CHANGE OF CONTROL
AGREEMENT
THIS CHANGE OF CONTROL
AGREEMENT (the “ Agreement ”) is made as
of October 24, 2007 (the “ Effective Date
”) by and between Microtune, Inc., a Delaware corporation
(the “ Company ”), and Barry F. Koch
(“ Employee ”), and the foregoing parties
hereby agree as follows:
1. Revocation of Existing
Change of Control Agreements . All existing agreements or
arrangements between the Company and Employee that provide for or
relate to the payment of cash or other benefits in connection with
a change of control are hereby revoked and superseded by this
Agreement.
2. Employment
.
(a) As of the Effective Date,
Employee, who currently serves as Vice President of the Company and
Managing Director of Microtune GmbH & Co. KG, shall
continue to serve in such capacity.
(b) In the event of a Change
of Control (as defined in Section 3(g) below) that results in
the termination of Employee, the Company shall pay Employee
severance benefits as set forth in Section 4 below: provided,
however, that to the extent Employee is entitled to any severance
payments as a result of any legal or contractual obligation arising
under his employment relationship with Microtune GmbH &
Co. KG, the severance benefits payable pursuant to Section 4
shall be reduced by such other payments up to the aggregate amount
payable pursuant to Section 4.
(c) Notwithstanding
anything herein to the contrary, nothing in this Agreement shall
change Employee’s status as an “at will” employee
prior to a Change of Control.
3. Certain Definitions
. For the purposes of this Agreement, the following terms have the
meanings set forth below.
(a) “
Affiliate ” shall have the meaning ascribed to
such term in Rule 12b-2 of the General Rules and Regulations under
the Exchange Act, as in effect on the Effective Date.
(b) “
Associate ” means, with reference to any
Person:
(i) any corporation, firm,
partnership, association, unincorporated organization or other
entity (other than the Company or a subsidiary of the Company) of
which such Person is an officer or general partner (or officer or
general partner of a general partner) or is, directly or
indirectly, the Beneficial Owner of 10% or more of any class of
equity securities,
(ii) any trust or other
estate in which such Person has a substantial beneficial interest
or as to which such Person serves as trustee or in a similar
fiduciary capacity, and
(iii) any relative or spouse
of such Person, or any relative of such spouse, who has the same
home as such Person.
(c) “ Base
Compensation ” means the higher of Employee’s
rate of annual base salary, as in effect at any time during the
twelve-month period that ends on (i) the date of any Change of
Control or (ii) Employee’s Date of Termination.
Notwithstanding anything herein to
the contrary, Base
Compensation does not include elements such as bonuses,
reimbursement of interest paid on guaranteed loans, auto
allowances, or any income from any form of equity based
compensation, such as may result from the exercise of stock options
or stock appreciation rights, or the receipt of restricted stock
unit awards, restricted stock awards or the lapse of the
restrictions on such awards.
(d) “ Beneficial
Owner ” means (subject to the exception contained in
Section 3(d)(iv) below), with reference to any securities, any
Person if:
(i) such Person or any of
such Person’s Affiliates and Associates, directly or
indirectly, is the “beneficial owner” (as determined
pursuant to Rule 13d-3 of the General Rules and Regulations under
the Exchange Act, as in effect on the Effective Date) of such
securities or otherwise has the right to vote or dispose of such
securities, including pursuant to any agreement, arrangement or
understanding (whether or not in writing); provided, however, that
a Person shall not be deemed the Beneficial Owner of, or to
“beneficially own,” any security under this
Section 3(d)(i) as a result of an agreement, arrangement or
understanding to vote such security if such agreement, arrangement
or understanding:
(1) arises solely from a
revocable proxy or consent given in response to a public (i.e., not
including a solicitation exempted by Rule 14a-2(b)(2) of the
General Rules and Regulations under the Exchange Act) proxy or
consent solicitation made pursuant to, and in accordance with, the
applicable provisions of the General Rules and Regulations under
the Exchange Act, and
(2) is not then reportable by
such Person on Schedule 13D under the Exchange Act (or any
comparable or successor report);
(ii) such Person or any of
such Person’s Affiliates and Associates, directly or
indirectly, has the right or obligation to acquire such securities
(whether such right or obligation is exercisable or effective
immediately or only after the passage of time or the occurrence of
an event) pursuant to any agreement, arrangement or understanding
(whether or not in writing) or upon the exercise of conversion
rights, exchange rights, other rights, warrants or options, or
otherwise; provided, however, that a Person shall not be deemed the
Beneficial Owner of or to “beneficially
own”:
(1) securities tendered
pursuant to a tender or exchange offer made by such Person or any
of such Person’s Affiliates or Associates until such tendered
securities are accepted for purchase or exchange, or
(2) securities issuable upon
exercise of Exempt Rights; or
(iii) such Person or any of
such Person’s Affiliates or Associates:
(1) has any agreement,
arrangement or understanding (whether or not in writing) with any
other Person (or any Affiliate or Associate thereof) that
beneficially owns such securities for the purpose of acquiring,
holding, voting (except as set forth in the proviso contained in
Section 3(d)(i)) or disposing of such securities,
or
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(2) is a member of a group
(as that term is used in Rule 13d-5(b) of the General Rules and
Regulations under the Exchange Act) that includes any other Person
that beneficially owns such securities.
(iv) Notwithstanding anything
herein to the contrary, nothing in this Section 3(d) shall
cause a Person engaged in business as an underwriter of securities
to be the Beneficial Owner of, or to “beneficially
own,” any securities acquired through such Person’s
participation in good faith in a firm commitment underwriting until
the expiration of 40 days after the date of such acquisition. For
purposes hereof, “voting” a security shall include
voting, granting a proxy, consenting or making a request or demand
relating to corporate action (including, without limitation, a
demand for a stockholder list, to call a stockholder meeting or to
inspect corporate books and records) or otherwise giving an
authorization (within the meaning of Section 14(a) of the
Exchange Act) in respect of such security, and the terms
“beneficially own” and “beneficially
owning” shall have meanings that are correlative to the
definition of the term Beneficial Owner contained
herein.
(e) “
Board ” means the Board of Directors of the
Company.
(f) “
Cause ” means the occurrence of any of the
following events: (i) Employee is determined by a court of law
or pursuant to arbitration to have committed a willful act of
embezzlement, fraud or dishonesty which resulted in material loss,
material damage or material injury to the Company;
(ii) Employee is convicted of, or pleads nolo
contendere to, a felony; or (iii) the failure of Employee
to resolve or otherwise cure any substantial violations of his or
her employment duties within thirty (30) days after the
provision of a written communication from the Company to Employee
that specifically sets forth the factual basis supporting the
Company’s belief that Employee has not substantially
performed his or her duties. However, Employee shall not be deemed
to have been terminated for Cause pursuant to 3(f)(i) or
(iii) without (A) reasonable notice to Employee setting
forth the reasons for the Company’s intention to terminate
for Cause and (B) an opportunity for Employee, together with
his or her counsel, if any, to be heard before the Board (or the
board of directors of the Company’s successor, the Acquiring
Entity or the parent corporation resulting from a Business
Combination, if applicable).
(g) “ Change of
Control ” shall mean:
(i) The acquisition by any
Person of beneficial ownership of Outstanding Company Voting
Securities (including any such acquisition of beneficial ownership
deemed to have occurred pursuant to Rule 13d-5 under the Exchange
Act) if, immediately thereafter, such Person is the beneficial
owner of 35% or more of either (a) the then Outstanding
Company Common Stock or (b) the then Outstanding Company
Voting Securities, unless such acquisition is made
(A) directly from the Company in a transaction approved by a
majority of the members of the Board, (B) by any employee
benefit plan (or related trust) sponsored or maintained by the
Company or any corporation controlled by the Company, or
(C) by a parent corporation resulting from a Business
Combination if, following such Business Combination, the conditions
specified in clauses (a), (b) and (c) of subsection
(ii) of this Section 3(g) are satisfied;
(ii) Approval by the
stockholders of the Company of a Business Combination (or if there
is no such approval by stockholders, consummation of such Business
Combination) unless, immediately following such Business
Combination, (a) more than 50% of, respectively, the then
outstanding shares of common stock of the
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parent corporation resulting
from such Business Combination and the total combined voting power
of the then outstanding voting securities of such parent
corporation entitled to vote generally in the election of directors
will be (or is) then beneficially owned, directly or indirectly, by
all or substantially all of the individuals and entities who were
the beneficial owners, respectively, of the Outstanding Company
Common Stock and Outstanding Company Voting Securities immediately
prior to such Business Combination in substantially the same
proportions as their ownership immediately prior to such Business
Combination, (b) no Person (other than any employee benefit
plan (or related trust) of the Company or any parent corporation
resulting from such Business Combination) beneficially owns,
directly or indirectly, 20% or more, respectively, of the then
outstanding shares of common stock of the parent corporation
resulting from such Business Combination or the combined voting
power of the then outstanding voting securities of such corporation
entitled to vote generally in the election of directors and
(c) at least a majority of the members of the board of
directors of the parent corporation resulting from such Business
Combination were members of the Board at the time of the execution
of the initial agreement providing for, or action of the Board
authorizing, such Business Combination; or
(iii) Approval by the
stockholders of the Company of (a) a complete liquidation or
dissolution of the Company or (b) a Major Asset Disposition
(or if there is no such approval by stockholders, consummation of
such Major Asset Disposition) unless, immediately following such
Major Asset Disposition, (A) all or substantially all of the
individuals and entities that were beneficial owners of the
Outstanding Company Common Stock and the Outstanding Company Voting
Securities immediately prior to such Major Asset Disposition
beneficially own immediately after the transaction, directly or
indirectly, more than 50% of, respectively, the then outstanding
shares of common stock, the combined voting power of the then
outstanding voting securities, and the total value of all the then
outstanding stock of the Company (if it continues to exist) and of
the Acquiring Entity, in substantially the same proportions as
their ownership immediately prior to such Major Asset Disposition
of the Outstanding Company Common Stock and the Outstanding Company
Voting Securities, as the case may be; (B) no Person, other
than any employee benefit plan (or related trust) of the Company or
such entity, beneficially owns, directly or indirectly, 20% or more
of, respectively, the then Outstanding shares of Common Stock and
the combined voting power of the Outstanding Voting Securities of
the Company (if it continues to exist) or of the Acquiring Entity
and (C) at least a majority of the members of the board of
directors (or comparable governing body) of the Company (if it
continues to exist) or of the Acquiring Entity were members of the
Board at the time of the execution of the initial agreement
providing for, or action of the Board authorizing, such Major Asset
Disposition.
For purposes of the foregoing
definition:
(1) the term “
Acquiring Entity ” means the entity that acquires the
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