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EXHIBIT 10.23
MOSYS, INC.
CHANGE-IN-CONTROL AGREEMENT
THIS CHANGE-IN-CONTROL AGREEMENT (this "Agreement"), made and
entered into as of October 6, 2006, by and between Mosys, Inc., a
Delaware corporation ("MoSys"), and Raj Singh (the
"Executive").
WHEREAS , MoSys considers it essential to its best
interests to foster the continued employment of key management
personnel and recognizes the distraction and disruption that the
possibility of a Change-in-Control (as defined in Section 1(d)
below) may raise to the detriment of MoSys and its stockholders;
and
WHEREAS , MoSys has determined to take appropriate steps
to reinforce and encourage the continued attention and dedication
of key management personnel to their assigned duties in the face of
a possible Change-in-Control;
NOW, THEREFORE , in consideration of the premises and the
mutual covenants contained herein, MoSys and the Executive hereby
agree as follows:
1.
DEFINITIONS
(a)
"Base Salary" shall mean the annual salary of the Executive at the
time of termination of his employment within the application of
this Agreement.
(b)
"Beneficiary" shall mean (i) the person or persons named
by the Executive, by notice to MoSys, to receive any compensation
or benefit payable under this Agreement or (ii) in the event
of his death, if no such person is named and survives the
Executive, his estate.
(c)
"Board" shall mean the Board of Directors of MoSys.
(d)
"Change-in-Control" means the occurrence of any of the
following:
(i) an acquisition after the Effective Date by an
individual, an entity or a group in one or more related
transactions (excluding MoSys or an employee benefit plan of MoSys
or a corporation controlled by MoSys’s stockholders) of 45
percent or more of MoSys’s common stock or voting securities;
or
(ii) consummation of a complete liquidation or dissolution
of MoSys or a merger, consolidation, reorganization or sale of all
or substantially all of MoSys’s assets (collectively, a
"Business Combination") other than a Business Combination in which
(A) the stockholders of MoSys receive 50 percent or more of the
stock of the corporation resulting from the Business Combination
and (B) at least a majority of the board of directors of such
resulting corporation were incumbent directors of MoSys immediately
prior to the consummation of the Business Combination, and (C)
after which no individual, entity or group (excluding any
corporation or
other entity resulting from the Business
Combination or any employee benefit plan of such corporation or of
MoSys) who did not own 45 percent or more of the stock of the
resulting corporation or other entity immediately before the
Business Combination owns 45 percent or more of the stock of such
resulting corporation or other entity.
(e)
"Good Reason" means, without the Executive’s prior
written consent or acquiescence:
(i) assignment to the Executive of duties incompatible
with the Executive’s position, failure to maintain the
Executive in this position and its reporting relationship or a
substantial diminution in the nature of the Executive’s
authority or responsibilities;
(ii) reduction in the Executive’s then current Base
Salary or in the bonus or incentive compensation opportunities or
benefits coverage available during the term of this Agreement,
except pursuant to an across-the-board reduction similarly
affecting all senior executives of MoSys;
(iii) termination of the Executive’s employment, for
any reason other than death, disability, voluntary termination or
Misconduct (as defined below);
(iv) relocation of the Executive’s principal place
of business to a location more than 30 miles from the location of
such office on the date of this Agreement;
(v) MoSys’s failure to pay the Executive any
material amounts otherwise vested and due the Executive hereunder
or under any plan, program or policy of MoSys; or
(vi) failure of a successor to MoSys following a
Change-in-Control to expressly assume or affirm MoSys’s
obligations under this Agreement as specified in Section 6.
(f)
"Misconduct" means the commission of any act of fraud,
embezzlement or dishonesty or other violation of MoSys’s Code
of Business Conduct and Ethics for Employees, Executive Officers
and Directors by the Executive, any unauthorized use or disclosure
by the Executive of confidential information or trade secrets of
MoSys or other breach by the Executive of a material agreement
between the Company and the Executive, or any other intentional
misconduct by the Executive adversely affecting the business
affairs of MoSys in a material manner.
(g)
"MoSys" when used herein shall be deemed to refer to MoSys and
any entity or entities that succeed to the assets and properties of
MoSys following a Change-in-Control, or any other corporation or
other entity which is a subsidiary or parent of such successor
entity or entities for whom the Executive is employed at any time
within two years following the Change-in-Control.
2.
TERM OF AGREEMENT
This Agreement shall be effective immediately upon its execution
by MoSys and the Executive (the "Effective Date") and shall remain
in effect until the earliest to occur of: (a) termination of
the Executive’s employment with MoSys following a
Change-in-Control (i) by reason
of death or disability, (ii) by the Executive
other than for Good Reason, or (iii) by MoSys for Misconduct, or
(b) two years after the date of a Change-in-Control.
3.
CHANGE IN CONTROL BENEFITS
In the event of termination of the Executive’s employment
by the Executive for Good Reason within two years following a
Change-in-Control, the Executive will be entitled to the
following:
(a)
Salary and Benefits:
(i) his Base Salary through the date of termination;
(ii) payment in lieu of any unused vacation, in accordance
with MoSys’s vacation policy and applicable laws;
(iii) any annual or discretionary bonus earned but not yet
paid to the Executive for any calendar year prior to the year in
which his termination occurs;
(iv) any compensation under any deferred compensation plan
of MoSys or deferred compensation agreement with MoSys then in
effect;
(v) any other compensation or benefits, including without
limitation any benefits under long-term incentive compensation
plans, any benefits under equity grants and awards and employee
benefits under plans that have vested through the date of
termination or to which the Executive may then be entitled in
accordance with the applicable terms of each grant, award or plan;
and
(vi) reimbursement of any business expenses incurred by
the Executive through the date of termination but not yet paid to
the Executive.
(b)
Stock Option Acceleration: Immediate and unconditional
vesting of 50 percent of the then unvested stock options and stock
awards
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