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Exhibit
10.44
CHANGE OF CONTROL
SEVERANCE AGREEMENT
CHANGE OF CONTROL SEVERANCE
AGREEMENT (“ Agreement ”), dated as of
(the “ Effective Date ”) by and between AMIS
Holdings, Inc., a Delaware corporation (the “ Company
”), and
(“ Executive ”).
WHEREAS, the Company employs
the Executive as its
, and
WHEREAS the Company and the
Executive wish to enter into an agreement specifying the benefits
the Executive will receive in certain circumstances relating to a
Change of Control ;
NOW THEREFORE, in
consideration of the foregoing and of the mutual covenants and
agreements of the parties set forth in this Agreement, and of other
good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto, intending to be
legally bound, agree as follows:
ARTICLE 1
TERM AND NATURE OF
AGREEMENT
Section 1.01
Term. This Agreement shall commence on January 1, 2008
and expire on June 30, 2008(the “ Term
”).
Section 1.02
Employment . Executive and the Company acknowledge that
either party may terminate this employment relationship at any time
and for any or no reason, provided that each party complies with
the terms of this Agreement.
ARTICLE 2
CHANGE OF CONTROL
BENEFITS
Section 2.01 Certain
Events. (a) A “ Qualifying Event ”
means the Involuntary Termination of Executive’s
Employment other than (x) for Cause , or
(y) by reason of Executive’s death or Disability
. The Executive shall be entitled to the following upon a
Qualifying Event that occurs at any time within ninety days prior
to or two years after a Change of Control (a “ Change of
Control Severance ”):
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(i) |
The Company shall pay Executive a lump sum, in cash, equal to
Executive’s earned but unpaid base salary and other vested
but unpaid cash entitlements for the period through and including
the date of the Termination of the Executive’s employment
with the Company (the “Termination Date” ),
including unused earned vacation pay and unreimbursed documented
business expenses incurred by Executive prior to the date of
Termination (collectively “ Accrued Compensation and
Expenses ”). In addition, Executive shall be entitled to
any other vested benefits earned by Executive for the period
through and including the Termination Date of Executive’s
employment under any other employee benefit plans and arrangements
maintained by the Company, in accordance with the terms of such
plans and arrangements, except as modified herein (collectively
“ Accrued Benefits ”); |
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(ii) |
Provided that the Executive executes a release of claims in a
form reasonably acceptable to the Company (and does not revoke such
release during the revocation period set forth therein), within the
period to permit payment pursuant to clause (b) below, the
Company shall pay Executive a cash payment in an amount equal to
the sum of (A) nine-twelfths (9/12) of the
Executive’s annual base salary in effect immediately prior to
such Qualifying Event, (B) nine-twelfths (9/12) of the
Executive’s Target Bonus Opportunity for the year in
which the Qualifying Event occurs, and (C) an amount equal to
the cost to the Executive to purchase COBRA benefits for the
eighteen month period after the Termination Date (collectively the
“ Change of Control Severance Benefits
”); |
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(iii) |
Provided that the Executive executes a release of claims in a
form reasonably acceptable to the Company (and does not revoke such
release during the revocation period set forth therein), within the
period to permit payment pursuant to clause (b) below, fifty
percent (50%) of all of the Executive’s unvested
Options as of the Termination Date shall become one hundred
percent (100%) vested on such date. |
(b) Time of Payment
.
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(i) |
Any Accrued Compensation and Expenses to which the Executive is
entitled under Section 2.01(a)(i) shall be paid to the
Executive in cash as soon as administratively practicable after the
Termination Date, and, in any event, no later than two and one-half
(2-1/2) months after the end of the taxable year of the Executive
in which the Termination Date occurs. Any Accrued Benefits to which
the Executive is entitled under Section 2.01(a)(i) shall be
paid to the Executive as provided in the relevant plans and
arrangements; |
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(ii) |
Any Change of Control Severance Benefits to which the Executive
becomes entitled under Section 2.01(a)(ii) shall be paid to
the Executive in cash as soon as administratively practicable after
the later of the Termination Date and the date on which the release
referred to in Section 2.01(a)(ii) becomes effective, and, in
any event, no later than two and one-half (2-1/2) months after
the end of the taxable year of the Executive in which the
Termination Date occurs; |
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(iii) |
Any Options that become vested pursuant to
Section 2.01(a)(iii) shall be settled promptly after the
latest to occur of the Termination Date, the effective date of the
release referred to in Section 2.01(iii) and exercise and, in
any event, to the extent they would otherwise be subject to
Section 409A, no later than two and one-half months
(2-1/2) months after the end of the taxable year of the
Executive in which the Termination Date occurs. |
Section 2.02 Change
of Control Project Bonus . In the event of a Change of Control,
provided that the Executive remains in the Company’s employ
as of the day prior to effective date of the Change of Control, the
Company will pay the Executive a cash payment in an amount equal to
three-twelfths (3/12) of the Executive’s annual base
salary in effect immediately prior to the Change of Control. This
amount will be paid promptly after the Change of Control and, in
any event, no later than two and one-half (2-1/2) months after the
end of the taxable year of the Executive in which the Change of
Control occurs.
Section 2.03
Resignation of Corporate Offices; Reasonable Assistance.
Executive will resign Executive’s office, if any, as a
director, officer or trustee of the Company, its subsidiaries or
affiliates and of any other corporation or trust of which Executive
serves as such at the request of the Company, effective as of the
date of Termination of employment. Executive further agrees that,
if requested by the Company or the surviving company following a
Change of Control, Executive will continue his employment with the
Company or the surviving company for a period of up to thirty days
following the Change of Control in any capacity requested,
consistent with Executive’s area of expertise, provided that
the Executive receives the same salary and substantially the same
benefits as in effect prior to the Change of Control.
ARTICLE 3
ASSIGNMENT
Section 3.01 A
ssignment by Executive. This Agreement shall inure to the
benefit of and be enforceable by Executive’s personal or
legal representatives, executors, administrators, successors,
heirs, distributees, devisees, and legatees. If Executive should
die or become subject to a Disability while any amount is owed but
unpaid to Executive hereunder, all such amounts, unless otherwise
provided herein, shall be paid to Executive’s devisee,
legatee, legal guardian or other designee, or if there is no such
designee, to Executive’s estate. Executive’s rights
hereunder shall not otherwise be assignable.
ARTICLE 4
MISCELLANEOUS
Section 4.01
Notices. Any notice required to be delivered hereunder shall
be in writing and shall be addressed
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if to the Company, to:
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AMIS
Holdings, Inc. |
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2300
Buckskin Road |
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Pocatello, Idaho 83201 |
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Fax:
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208-234-6841 |
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Attn:
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Chief
Executive Officer |
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With a copy to:
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AMIS
Holdings, Inc. |
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2300
Buckskin Road |
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Pocatello, Idaho 83201 |
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Fax:
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208-234-6935 |
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Attn:
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Chairman
of the Compensation Committee of the Board of Directors |
if to Executive, to
Executive’s last known address as reflected on the books and
records of the Company; or, in each case, to such other address as
such party may hereafter specify for the purpose by written notice
to the other party hereto. Any such notice shall be deemed received
on the date of receipt by the recipient thereof if received prior
to 5:00 p.m. in the place of receipt and such day is a business day
in the place of receipt. Otherwise, any such notice shall be deemed
not to have been received until the next succeeding business day in
the place of receipt.
Section 4.02 Dispute
Resolution. (a) Each of Executive and the Company shall
have the right and option to elect (in lieu of litigation) to have
any dispute or controversy arising under or in connection with this
Agreement settled by arbitration, conducted before a panel of three
arbitrators sitting in a location in Delaware, in accordance with
the rules of the American Arbitration Association then in effect. A
party’s election to arbitrate, as herein provided, and the
decision of the arbitrators in that proceeding, shall be binding on
the other party. Judgment may be entered on the award of the
arbitrator in any court having jurisdiction.
(b) Each party shall pay its
own expenses of such arbitration or litigation and all common
expenses of such arbitration or litigation shall be
borne
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