Exhibit 10.31
MOSYS, INC.
CHANGE-IN-CONTROL
AGREEMENT
THIS CHANGE-IN-CONTROL
AGREEMENT (this
“Agreement”), made and entered into as of
August 18, 2008, by and between MoSys, Inc., a Delaware
corporation (“MoSys”), and David DeMaria (the
“Officer”).
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 Officer
hereby agree as follows:
1.
DEFINITIONS
(a)
“Base
Salary” shall mean
the annual salary of the Officer 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 Officer, 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 Officer, 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’
stockholders) of 45 percent or more of MoSys’ 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’
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 Officer’s prior written consent or
acquiescence:
(i) assignment to the Officer
of duties incompatible with the Officer’s position, failure
to maintain the Officer in this position and its reporting
relationship or a substantial diminution in the nature of the
Officer’s authority or responsibilities;
(ii) reduction in the
Officer’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
Officer’s employment, for any reason other than death,
disability, voluntary termination or Misconduct (as defined
below);
(iv) relocation of the
Officer’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 Officer any material amounts otherwise vested and due the
Officer 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 Officer, any unauthorized use or disclosure by
the Officer of confidential information or trade secrets of MoSys
or other breach by the Officer of a material agreement between the
Company and the Officer, or any other intentional misconduct by the
Officer 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 Officer 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 Officer (the
“Effective Date”) and shall remain in effect until the
earliest to occur of: (a) termination of the
Officer’s employment with MoSys following a Change-in-Control
(i) by reason of death or disability, (ii) by the Officer
other than for Good Reason, or (iii) by MoSys for Misconduct,
or (b) two years after the date of a
Change-in-Control.
2
3.
CHANGE IN CONTROL
BENEFITS
In the event of termination of the
Officer’s employment by the Officer for Good Reason within
two years following a Change-in-Control, the Officer 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 paid time off, in accordance with MoSys’ paid time off
policy and applicable laws;
(iii) 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 Officer may
then be entitled in accordance with the applicable terms of each
grant, award or plan; and
(iv) reimbursement of any
business expenses incurred by the Officer through the date of
termination but not yet paid to the Officer.
(b)
Stock Option
Acceleration. During
MoSys’ employment of the Officer, immediate and unconditional
vesting of one year of the remaining then unvested stock options
and stock awards previously granted to the Officer and, for the
one-year period following termination, the right to exercise any
stock o
