STEVEN LAUB AMENDED EMPLOYMENT
AGREEMENT
This Amended
Employment Agreement (the “Agreement”) is entered into
effective as of May 31, 2009, 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, amended effective as of March 13, 2007, and
further amended effective December 31, 2008.
1. Duties
and Scope of Employment .
(a)
Positions and Duties . As of the date hereof, 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 the date hereof, 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.
(i) 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)).
(ii) 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.
(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), which review typically
will occur in August. 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 calendar 2009, 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.
(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.
(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
Certificate 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 addition, if
the termination is by the Company without Cause or due to death or
Disability or Executive resigns for Good Reason, Executive will be
entitled to the amounts and benefits specified in
Section 7.
(a)
Termination Without Cause or Due to Death or Disability 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, if Executive’s employment
terminates due to his death or Disability, 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 (or in the case of death, Executive’s heirs)
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 (subject to applicable tax
withholdings); and (B) an amount equal to the current
year’s Target Annual Incentive; (ii) twelve
(12) months accelerated vesting (i.e., with respect to
time-based vesting awards, the vesting that Executive would have
achieved had Executive remained in the employ of the Company for an
additional twelve (12) months) 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. For the purposes hereof, “equity awards”
will include, but not be limited to, stock options, restricted
stock, stock appreciation rights and restricted stock
units.
(b)
Termination Without Cause or Due to Death or Disability or
Resignation for Good Reason in Connection with a Change of
Control . If Executive’s employment is terminated by the
Company without Cause, if Executive’s employment terminates
due to his death or Disability, or if Executive resigns 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 (or
in the case of death, Executive’s heirs) 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 thirty-six (36) 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
300% of Executive’s Target Annual Incentive for the year in
which the termination occurs (subject to applicable tax
withholdings); (ii) 100% vesting 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), (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 COBRA), or (B) the date upon which
Executive and Executive’s eligible dependents become covered
under similar plans, and (iv) 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) 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.
(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)(ii) and 7(b)(ii) 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)(iii) and 7(b)(iii). 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 that 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 separation
agreement and release of claims in a form reasonably acceptable to
the Company. The separation agreement and release of claims must be
executed and effective within the period required by the release
but in no event later than the scheduled payment date set forth in
Section 7(a)(i) or Section 7(a)(ii), as applicable. No
severance or other benef
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