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Exhibit 10.1 ATMEL CORPORATION
STEVEN LAUB AMENDED EMPLOYMENT AGREEMENT This
Amended Employment Agreement (the "Agreement") is entered into
effective as of December 31, 2008, by and between Atmel
Corporation (the "Company") and Steven Laub ("Executive") and
amends and restates the employment agreement entered into as of
August 6, 2006, by the Company and Executive, and amended
effective as of March 13, 2007.
1. Duties and Scope of
Employment .
(a)
Positions and Duties . As of December 31, 2008,
Executive will continue to serve as the Company’s Chief
Executive Officer and President. Executive will report to the
Company’s Board of Directors (the "Board"). Further,
Executive will continue to render such business and professional
services in the performance of his duties, consistent with
Executive’s position within the Company, as will reasonably
be assigned to him by the Board. The period Executive is employed
by the Company under this Agreement is referred to herein as the
"Employment Term".
(b)
Board Membership . As of December 31, 2008, Executive
will continue to serve as a member of the Board. At each annual
meeting of the Company’s stockholders during the Employment
Term, the Company will nominate Executive to serve as a member of
the Board. Executive’s service as a member of the Board will
be subject to any required stockholder approval. Upon the
termination of Executive’s employment for any reason, unless
otherwise requested by the Board, Executive will be deemed to have
resigned from the Board (and all other positions held at the
Company and its affiliates) voluntarily, without any further
required action by Executive, as of the end of Executive’s
employment and Executive, at the Board’s request, will
execute any documents necessary to reflect his resignation.
(c)
Obligations . During the Employment Term, Executive, except
as provided below, will devote Executive’s full business
efforts and time to the Company and will use good faith efforts to
discharge Executive’s obligations under this Agreement to the
best of Executive’s ability and in accordance with each of
the Company’s written corporate guidance and ethics
guidelines, conflict of interests policies and code of conduct. For
the duration of the Employment Term, Executive agrees not to
actively engage in any other employment, occupation, or consulting
activity for any direct or indirect remuneration without the prior
approval of the Board (which approval will not be unreasonably
withheld); provided, however, that Executive may, without the
approval of the Board, (i) serve in any capacity with any
civic, educational, professional, industry or charitable
organization, provided such services do not interfere with
Executive’s obligations to Company, and (ii) serve on
the board of directors of one (1) company of his choosing,
with such company to be reasonably acceptable to the Board
(currently Teridian Semiconductor Corporation, as to which
Executive is paid by Golden Gate Capital and such service will not
constitute a violation of this Section 1(c)).
(i) Executive
hereby represents and warrants to the Company that Executive is not
party to any contract, understanding, agreement or policy, written
or otherwise, that would be breached by Executive’s entering
into, or performing services under, this
Agreement. Executive further represents that he disclosed to the
Company in writing all threatened, pending, or actual claims that
were unresolved and still outstanding as of August 6, 2006, in
each case, against Executive of which he was aware, if any, as a
result of his employment with any previous employer or his
membership on any boards of directors.
(d)
Other Entities . Executive agrees to serve and will be
appointed, without additional compensation, as an officer and
director for each of the Company’s subsidiaries,
partnerships, joint ventures, limited liability companies and other
affiliates, including entities in which the Company has a
significant investment as determined by the Company. As used in
this Agreement, the term "affiliates" will mean any entity
controlled by, controlling, or under common control of the Company.
2. At-Will Employment .
Executive and the Company agree that Executive’s employment
with the Company constitutes "at-will" employment. Executive and
the Company acknowledge that this employment relationship may be
terminated at any time, upon written notice to the other party,
with or without good cause or for any or no cause, at the option
either of the Company or Executive. However, as described in this
Agreement, Executive may be entitled to severance benefits
depending upon the circumstances of Executive’s termination
of employment. 3.
Compensation .
(a)
Base Salary . The Company will pay Executive an annual
salary of $755,000 as compensation for his services (such annual
salary, as is then effective, to be referred to herein as "Base
Salary"). Executive’s Base Salary will be subject to annual
review (subject to the provisions of Section 10(e)(iii) of
this Agreement). The Base Salary will be paid periodically in
accordance with the Company’s normal payroll practices and
will be subject to the usual, required withholdings.
(b)
Annual Incentive . Executive will be eligible to receive
annual cash incentives payable for the achievement of performance
goals established by the Board or by the Compensation Committee of
the Board (the "Committee"). During the Employment Term,
Executive’s target annual incentive ("Target Annual
Incentive") will be not less than 100% of Base Salary. For fiscal
2008, Executive’s Target Annual Incentive is 125% of Base
Salary. The actual earned annual cash incentive, if any, payable to
Executive for any performance period will depend upon the extent to
which the applicable performance goal(s) specified by the Committee
with the input of Executive are achieved or exceeded and will be
adjusted for under- or over-performance.
(c)
Equity Awards .
(i) As
of August 7, 2006, Executive was granted a nonstatutory stock
option to purchase 1,450,000 shares of Company common stock at a
per share exercise price equal to the closing price per share on
the Nasdaq National Market ("Nasdaq") for the common stock of the
Company on August 7, 2006 (the "Initial Option"). The Initial
Option was granted under and is subject to the terms, definitions
and provisions of the Company’s 2005 Stock Plan (the "Plan")
and was and is scheduled to vest at a rate of 25% of the shares
subject to the Initial
Option on the first anniversary of the grant and 1/48 of the
shares was and is scheduled to vest monthly thereafter assuming
Executive’s continued employment with the Company on each
scheduled vesting date. Except as provided in this Agreement, the
Initial Option is subject to the Company’s standard terms and
conditions for options granted under the Plan.
(ii) On
January 2, 2007, the Company granted to Executive a
nonstatutory stock option to purchase 500,000 shares of Company
common stock at a per share exercise price equal to the closing
price per share on the Nasdaq for the common stock of the Company
on January 2, 2007 (the "Additional Option"). The Additional
Option was granted under and is subject to the same terms,
definitions and provisions applicable to the Initial Option, and
was and is scheduled to vest at a rate of 25% of the shares subject
to the award on August 7, 2007, and the remainder of the
shares was and is scheduled to vest pro-rata monthly over the three
(3) year period commencing on August 7, 2007, assuming
Executive’s continued employment with the Company on each
scheduled vesting date. In addition, on July 11, 2007, the
Company granted 1,000,000 restricted stock units to Executive under
and subject to the same terms, definitions and provisions
applicable to the Initial Option assuming exercise thereof, except
that such shares were and are scheduled to vest at a rate of 25% of
the shares subject to the award vesting on August 7, 2007, and
the remainder of the shares was and is scheduled to vest pro-rata
quarterly over the three (3) year period commencing on
August 7, 2007, assuming Executive’s continued
employment with the Company on each scheduled vesting date. The
Company agrees (to the extent permitted by the Company’s
Insider Trading Policy), at the request of Executive, to facilitate
the implementation by Executive of a 10b5-1 trading plan to
accommodate Executive’s ability to sell such portion of the
relevant shares as may be necessary to cover Executive’s tax
withholding obligations with respect to such vesting, if any, at
such tax rate as Executive may specify. If the Company’s
Insider Trading Policy does not permit the implementation of a
10b5-1 trading plan, Executive will be allowed to have the Company
withhold the number of shares necessary to satisfy his minimum tax
withholding obligation.
(iii) Executive
has received grants of equity awards under the Plan other than the
equity awards described in Section 3(c)(i) and
(ii) above. As determined by the Committee, Executive will
continue to be eligible for grants of equity compensation awards
under the Plan (or any other stock plan maintained by the Company)
in accordance with the Company’s policies, as in effect from
time to time, and subject to such terms and conditions as the
Committee determines, including vesting criteria such as continued
service or performance objectives.
4. Employee Benefits .
(a)
Generally . Executive will be eligible to participate in
accordance with the terms of all Company employee benefit plans,
policies and arrangements that are applicable to other executive
officers of the Company, as such plans, policies and arrangements
may exist from time to time.
(b)
Vacation . Executive will be entitled to receive paid annual
vacation in accordance with Company policy for other senior
executive officers, but with vacation accrual of not less than four
(4) weeks per year.
5. Expenses . The
Company will reimburse Executive for reasonable travel,
entertainment and other expenses incurred by Executive in the
furtherance of the performance of Executive’s duties
hereunder, in accordance with the Company’s expense
reimbursement policy as in effect from time to time.
6. Termination of
Employment . In the event Executive’s employment with the
Company terminates for any reason, Executive will be entitled to
any (a) unpaid Base Salary accrued up to the effective date of
termination; (b) unpaid, but earned and accrued annual
incentive for any completed fiscal year as of his termination of
employment; (c) pay for accrued but unused vacation;
(d) benefits or compensation as provided under the terms of
any employee benefit and compensation agreements or plans
applicable to Executive; (e) unreimbursed business expenses
required to be reimbursed to Executive; and (f) rights to
indemnification Executive may have under the Company’s
Articles of Incorporation, Bylaws, this Agreement, and/or separate
indemnification agreement, as applicable. In the event
Executive’s employment with the Company terminates for any
reason, Executive will be entitled to exercise any outstanding
stock options for at least twelve (12) months after the later of
such termination of employment or the date upon which Executive
ceases to provide any other services to the Company or any of its
affiliates, whether as a director, independent contractor or
otherwise, but in no event later than the applicable scheduled
expiration date of such award (in the absence of any termination of
employment) as set forth in the award agreement. In the event
Executive’s employment with the Company terminates due to
death or Disability, then there will be acceleration of vesting of
any then unexpired and unvested equity awards (including, but not
limited to, awards of stock appreciation rights or restricted stock
units but excluding the award of performance-based restricted stock
units granted to Executive on August 15, 2008, which instead
will be subject to the terms of such grant, including without
limitation the provisions regarding vesting following a change of
control and in connection with certain terminations of employment)
held by Executive based on the vesting that Executive would have
achieved had Executive remained in the employ of the Company for an
additional twelve (12) months. In addition, if the termination
is by the Company without Cause or Executive resigns for Good
Reason, Executive will be entitled to the amounts and benefits
specified in Section 7. 7.
Severance .
(a)
Termination Without Cause or Resignation for Good Reason other
than in Connection with a Change of Control . If
Executive’s employment is terminated by the Company without
Cause or if Executive resigns for Good Reason, and such termination
is not in Connection with a Change of Control, then, subject to
Section 8 and Section 7(d) below, Executive will receive:
(i) in a lump sum payment on the sixty-first (61st) day
following Executive’s termination of employment: (A) an
amount equal to twenty-four (24) months of Executive’s
Base Salary (subject to applicable tax withholdings); and
(B) an amount equal to the current year’s Target Annual
Incentive pro-rated to the date of termination, with such pro-rated
amount to be calculated by multiplying the current year’s
Target Annual Incentive by a fraction with a numerator equal to the
number of days inclusive between the start of the current calendar
year and the date of termination and a denominator equal to 365;
(ii) twelve (12) months accelerated vesting with respect
to Executive’s then outstanding, unvested equity awards
(other than the award of performance-based restricted stock units
granted to Executive on August 15, 2008, which instead will be
subject to the terms of such grant, including without limitation
the
provisions regarding vesting following a change of control and
in connection with certain terminations of employment); and
(iii) reimbursement for premiums paid for continued health
benefits for Executive (and any eligible dependents) under the
Company’s health plans until the earlier of (A) eighteen
(18) months, payable when such premiums are due (provided
Executive validly elects to continue coverage under the
Consolidated Omnibus Budget Reconciliation Act ("COBRA")), or
(B) the date upon which Executive and Executive’s
eligible dependents become covered under similar plans.
(b)
Termination Without Cause or Resignation for Good Reason in
Connection with a Change of Control . If Executive’s
employment is terminated by the Company without Cause or by
Executive for Good Reason, and the termination is in Connection
with a Change of Control, then, subject to Section 8 and
Section 7(d) below, Executive will receive: (i) in a lump sum
payment on the ninety-sixth (96th) day following Executive’s
termination of employment: (A) an amount equal to twenty-four
(24) months of Executive’s Base Salary for the year in
which the termination occurs (subject to applicable tax
withholdings); and (B) an amount equal to 100% of
Executive’s Target Annual Incentive for the year in which the
termination occurs (subject to applicable tax withholdings);
(ii) an amount equal to the current year’s Target Annual
Incentive pro-rated to the date of termination, with such pro-rated
amount to be calculated by multiplying the current year’s
Target Annual Incentive by a fraction with a numerator equal to the
number of days inclusive between the start of the current calendar
year and the date of termination and a denominator equal to 365;
(iii) 100% of Executive’s then outstanding unvested
equity awards (other than the award of performance-based restricted
stock units granted to Executive on August 15, 2008, which
instead will be subject to the terms of such grant, including
without limitation the provisions regarding vesting following a
change of control and in connection with certain terminations of
employment) will vest, (iv) reimbursement for premiums paid
for continued health benefits for Executive (and any eligible
dependents) under the Company’s health plans until the
earlier of (A) eighteen (18) months, payable when such
premiums are due (provided Executive validly elects to continue
coverage under COBRA), or (B) the date upon which Executive
and Executive’s eligible dependents become covered under
similar plans, and (v) transitional outplacement benefits in
accordance with the policies and guidelines of the Company as in
effect immediately prior to the Change of Control.
(c)
Voluntary Termination Without Good Reason or Termination for
Cause . If Executive’s employment is terminated
voluntarily (excluding a termination for Good Reason), including
due to death or Disability or is terminated for Cause by the
Company, then, except as provided in Section 6, (i) all
further vesting of Executive’s outstanding equity awards will
terminate immediately; (ii) all payments of compensation by
the Company to Executive hereunder will terminate immediately, and
(iii) Executive will be eligible for severance benefits only
in accordance with the Company’s then established plans;
provided, however, that any such severance benefits will be paid or
provided at the same time and in the same form as similar severance
benefits would be paid or provided under Section 7(a) or
(b) in connection with Executive’s termination without
Cause or resignation for Good Reason.
(d)
Code Section 409A .
(i)
Six-Month Delay . Notwithstanding anything to the contrary
in this Agreement, no Deferred Compensation Separation Benefits (as
defined below) or other
severance benefits that otherwise are exempt from
Section 409A (as defined below) pursuant to Treasury
Regulation Section 1.409A-1(b)(9) will be considered due
or payable until Executive has a "separation from service" within
the meaning of Section 409A of the Internal Revenue Code of
1986, as amended (the "Code"), and the final regulations and any
guidance promulgated thereunder ("Section 409A"). Further, if
Executive is a "specified employee" within the meaning of Section
409A at the time of his separation from service (other than due to
death), then the severance benefits payable to Executive under this
Agreement that are considered deferred compensation under
Section 409A, if any, and any other severance payments or
separation benefits that are considered deferred compensation under
Section 409A, if any (together, the "Deferred Compensation
Separation Benefits") otherwise due to Executive on or within the
six (6) month period following his separation from service
will accrue during such six (6) month period and will become
payable in a lump sum payment (less applicable withholding taxes)
on the date six (6) months and one (1) day following the
date of Executive’s separation from service. All subsequent
payments of Deferred Compensation Separation Benefits, if any, will
be payable in accordance with the payment schedule applicable to
each payment or benefit. For purposes of clarity, the following
severance benefits shall not constitute Deferred Compensation
Separation Benefits: (A) the vesting acceleration of
outstanding awards of stock options, stock appreciation rights or
restricted stock described in Sections 7(a)(iii) and 7(b)(iv)
unless such awards include deferral or other features that cause
such awards to be subject to Section 409A; and (B) the
COBRA reimbursements described in Sections 7(a)(iv) and 7(b)(v). If
Executive dies following his separation from service but prior to
the six (6) month anniversary of his date of separation, then
any payments delayed in accordance with this paragraph will be
payable in a lump sum (less applicable withholding taxes) to
Executive’s estate as soon as administratively practicable
after the date of his death and all other Deferred Compensation
Separation Benefits will be payable in accordance with the payment
schedule applicable to each payment or benefit.
(ii)
Amendments to this Agreement to Comply with
Section 409A . It is the intent of this Agreement to
comply with the requirements of Section 409A so that none of
the severance payments and benefits to be provided hereunder will
be subject to the additional tax imposed under Section 409A,
and any ambiguities herein will be interpreted to so comply.
Executive and the Company agree to work together in good faith to
consider amendments to this Agreement and to take such reasonable
actions which are necessary, appropriate or desirable to avoid
imposition of any additional tax or income recognition under
Section 409A prior to actual payment to Executive.
8. Conditions to Receipt of
Severance; No Duty to Mitigate .
(a)
Separation Agreement and Release of Claims . The receipt of
any severance or other benefits pursuant to Section 7 will be
subject to Executive signing and not revoking a separ
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