(AS AMENDED AND RESTATED MAY 20,
2009)
NOTICE OF GRANT OF RESTRICTED
STOCK UNITS
Unless
otherwise defined herein, the terms defined in the Atmel
Corporation 2005 Stock Plan (the “Plan”) shall have the
same defined meanings in this Notice of Grant of Restricted Stock
Units (the “Notice of Grant”).
You
have been granted an Award of restricted stock units
(“Restricted Stock Units”), subject to the terms and
conditions of the Plan and this Notice of Grant, the Restricted
Stock Unit Agreement, attached hereto as Exhibit A, and the
Performance Matrix, attached hereto as Exhibit B (together,
the “Award Agreement”), as follows:
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Grant
Number:
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Grant
Date:
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Maximum Number
of
Restricted Stock Units:
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[INSERT]
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Performance
Period:
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July 1,
2008 through December 31, 2012
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Performance
Matrix:
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The number of
Restricted Stock Units, if any, in which you may vest in accordance
with the Vesting Schedule below will depend upon achievement of
goals for the Company’s Operating Margin during the
Performance Period and will be determined in accordance with
paragraph 1 of Exhibit A and the Performance Matrix, attached
hereto as Exhibit B.
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Vesting
Schedule:
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The Participant
will vest on the date the Administrator determines the number of
Restricted Stock Units earned in accordance with paragraph 1 of
Exhibit A and the Performance Matrix, attached hereto as
Exhibit B (a “Vesting Date”), provided that such
determination will be made within forty-five (45) days after
the end of each Quarterly Performance Period beginning on or after
April 1, 2009. Except as otherwise provided in Exhibit A,
the Participant will not vest in the Restricted Stock Units unless
he or she remains a Service Provider through each Vesting
Date.
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Your
signature below indicates your agreement and understanding that
this Award is subject to and governed by the terms and conditions
of the Plan and this Award Agreement. For example, important
additional information on vesting and forfeiture of the Restricted
Stock Units is contained in paragraphs 3 through 5 of
Exhibit A. PLEASE BE SURE TO READ ALL OF EXHIBIT A AND EXHIBIT
B, WHICH CONTAIN THE SPECIFIC TERMS AND CONDITIONS OF THIS AWARD
AGREEMENT. You further represent that you have reviewed the Plan
and this Award Agreement in their entirety, have had an opportunity
to obtain the advice of counsel prior to executing this Award
Agreement and fully understand all provisions of the Plan and Award
Agreement. You hereby agree to accept as binding, conclusive and
final all decisions or interpretations of the Administrator upon
any questions relating to the Plan and Award Agreement. You further
agree to notify the Company upon any change in the residence
address indicated below.
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ATMEL
CORPORATION:
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/s/ Steven
Laub
By: Steven
Laub
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President and
Chief Executive Officer
Title
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2
(AS AMENDED AND RESTATED MAY 20,
2009)
RESTRICTED STOCK UNIT
AGREEMENT
1.1.
The Company hereby grants to the Participant under the Plan an
Award of the Maximum Number of Restricted Stock Units set forth on
the first page of this Award Agreement, subject to all of the terms
and conditions in this Award Agreement and the Plan.
1.2.
The number of Restricted Stock Units in which the Participant may
vest, if any, will depend upon achievement of goals for the
Company’s Operating Margin during the Performance Period and
will be determined as follows:
1.2.1.
The Company’s Operating Margin for each Quarterly Performance
Period will be determined and certified by the Administrator
following the end of each such Quarterly Performance Period, but in
no event later than forty-five (45) days
thereafter.
1.2.2.
Following the end of each Quarterly Performance Period beginning
with the fourth Quarterly Performance Period, but in no event later
than forty-five (45) days thereafter, the Administrator will
determine and certify the Company’s Current Average Operating
Margin and the Company’s Performance Period-To-Date Average
Operating Margin.
1.2.2.1.
If the Company’s (i) Performance Period-To-Date Average
Operating Margin equals or exceeds seven and a half percent (7.5%)
and (ii) the Operating Margin for at least four (4) of
the Quarterly Performance Periods during the Determination Period
equals or exceeds ten percent (10%), the Administrator then will
identify the Percent of Maximum Shares Earned by comparing the
Company’s Current Average Operating Margin to the Performance
Matrix, attached hereto as Exhibit B. The Participant will
vest on the Vesting Date for the applicable Determination Period in
the number of Restricted Stock Units determined by
(y) multiplying the Maximum Number of Restricted Stock Units
set forth on the first page of this Award Agreement by the Percent
of Maximum Shares Earned determined in accordance with the
preceding sentence, rounded down to the nearest whole Share and
(z) subtracting the number of any previously vested Restricted
Stock Units.
1.2.2.2.
If the Company’s (i) Performance Period-To-Date Average
Operating Margin is less than seven and a half percent (7.5%) or
(ii) the Company’s Operating Margin for at least four of
the Quarterly Performance Periods during the Determination Period
did not equal or exceed ten percent (10%), the Participant will not
vest in any Restricted Stock Units on the Vesting Date for the
applicable Determination Period. The number of Restricted Stock
Units in which the
3
Participant may
vest, if any, will depend upon achievement during subsequent
Quarterly Performance Periods of goals for the Company’s
Operating Margin.
1.3.1.
For purposes of this Award Agreement, “Annual Revenue”
will have the meaning ascribed to such term in Section 3(d) of the
Plan, but will be determined on a quarterly basis for each
Quarterly Performance Period. Annual Revenue for a Quarterly
Performance Period will be adjusted in accordance with
Section 3(jj) of the Plan to exclude the Company’s FAS
123R stock compensation expense, legal, accounting and related
expenses associated with independent investigations, restructuring
and impairment charges, and acquisition related charges incurred
during such Quarterly Performance Period.
1.3.2.
For purposes of this Award Agreement, “Current Average
Operating Margin” will mean:
1.3.2.1.
As of the end of the fourth Quarterly Performance Period, the
average of the Operating Margins for the first four
(4) Quarterly Performance Periods;
1.3.2.2.
As of the end of the fifth Quarterly Performance Period, the
average of the (4) four highest Operating Margins for the
period including such Quarterly Performance Period and the four
(4) immediately preceding consecutive Quarterly Performance
Periods; and
1.3.2.3.
As of the end of each Quarterly Performance Period thereafter, the
average of the (4) four highest Operating Margins for the period
including such Quarterly Performance Period and the five
(5) immediately preceding consecutive Quarterly Performance
Periods.
1.3.3.
For purposes of this Award Agreement, “Determination
Period” will mean:
1.3.3.1.
As of the end of the fourth Quarterly Performance Period and the
fifth Quarterly Performance Period, the period including the first
four (4) Quarterly Performance Periods and the first five
(5) Quarterly Performance Periods, respectively;
1.3.3.2.
As of the end of each Quarterly Performance Period thereafter, the
period including such Quarterly Performance Period and the five
(5) immediately preceding consecutive Quarterly Performance
Periods.
1.3.4.
For purposes of this Award Agreement, “Operating
Margin” will mean, as to any Quarterly Performance Period,
the percentage equal to the Company’s Operating Profit for
such Quarterly Performance Period divided by the Company’s
Annual Revenue as determined on a quarterly basis for such
Quarterly Performance Period.
1.3.5.
For purposes of this Award Agreement, “Operating
Profit” for a Quarterly Performance Period will have the
meaning ascribed to such term in Section 3(bb) of the Plan.
Operating Profit for a Quarterly Performance Period will be
adjusted in accordance with Section 3(jj) of the Plan to
exclude the following from the Company’s operating expenses:
FAS 123R stock compensation expense, legal, accounting and related
expenses associated with independent
4
investigations,
restructuring and impairment charges, and acquisition related
charges incurred during such Quarterly Performance
Period.
1.3.6.
For purposes of this Award Agreement, “Performance
Period-To-Date Average Operating Margin” will mean, as of the
end of a Quarterly Performance Period, the average of the Operating
Margins for the period including such Quarterly Performance Period
and all previous Quarterly Performance Periods.
1.3.7.
For purposes of this Award Agreement, “Quarterly Performance
Period” will mean each fiscal quarter of the Company that
occurs during the Performance Period. For the avoidance of doubt,
the Performance Period will consist of eighteen (18) Quarterly
Performance Periods commencing on July 1, 2008.
1.4.
When Shares are paid to the Participant in payment for vested
Restricted Stock units, par value will be deemed paid by the
Participant for each Restricted Stock Unit by services rendered by
the Participant to the Company, and will be subject to the
appropriate tax withholdings.
2.
Company’s Obligation to Pay . Each Restricted Stock
Unit has a value equal to the Fair Market Value of a Share on the
date it vests. Unless and until the Restricted Stock Units will
have vested in the manner set forth in paragraphs 3 through 5, the
Participant will have no right to payment of any such Restricted
Stock Units. Prior to actual payment of any vested Restricted Stock
Units, such Restricted Stock Units will represent an unsecured
obligation of the Company, payable (if at all) only from the
general assets of the Company.
3.
Vesting Schedule . Subject to paragraphs 4 and 5, the
Restricted Stock Units awarded by this Award Agreement will vest in
the Participant according to the Vesting Schedule set forth on the
first page of this Award Agreement, subject to the
Participant’s continuing to be a Service Provider through
each such Vesting Date.
4. [
insert for certain employees: Change of Control
.
4.1.
In the event of a Change of Control during the Performance Period,
the Performance Period shall be deemed to end immediately prior to
the Change of Control. However, the Participant may be entitled to
vest in a portion of the Restricted Stock Units (the
“Modified Number of Restricted Stock Units”) in
accordance with the schedule set forth in Section 4.1.1 below.
The Modified Number of Restricted Stock Units will be the amount
equal to (A) fifty percent (50%) of the Maximum Number of
Restricted Stock Units set forth on the first page of this Award
Agreement less (B) the number of any previously vested
Restricted Stock Units. In addition, the Participant may be
entitled to vest in an additional number of Restricted Stock Units
(the “Additional Modified Number of Restricted Stock
Units”) in accordance with the schedule set forth in
Section 4.1.2 below. The Additional Modified Number of
Restricted Stock Units will be the amount equal to (Y) fifty
percent (50%) of the Maximum Number of Restricted Stock Units set
forth on the first page of this Award Agreement less (Z) the
Modified Number of Restricted Stock Units; provided, however, that
if the Participant has previously vested in more than fifty percent
(50%) of such Maximum Number of Restricted Stock Units, the
Additional Modified Number of Restricted Stock Units will be the
amount equal to (i) the Maximum Number of Restricted Stock
Units set forth on the first page of this Award Agreement, less
(ii) the number of previously vested Restricted Stock
Units.
5
By way of
example, the following table shows the Modified Number of
Restricted Stock Units and the Additional Modified Number of
Restricted Stock Units, assuming the Participant had been awarded a
Maximum Number of Restricted Stock Units of 100 and assuming the
Participant had previously vested in the Restricted Stock Units set
forth below:
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Scenario 1
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Scenario 2
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Scenario 3
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30
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50
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60
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Modified Number of Restricted Stock
Units
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20
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0
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0
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Additional Modified Number of Restricted Stock
Units
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30
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50
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40
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4.1.1.
Notwithstanding anything to the contrary herein and subject to
Section 16(c) of the Plan, the Modified Number of Restricted Stock
Units will be scheduled to vest in accordance with the following
schedule, subject to the Participant continuing to be a Service
Provider through each vesting date:
4.1.1.1.
If the Change of Control occurs on or prior to December 31,
2008 one-seventh (1/7) of the Modified Number of Restricted Stock
Units, rounded down to the nearest whole Share, will vest on
December 31, 2008. The remaining unvested Modified Number of
Restricted Stock Units will vest in equal annual installments on
each of the next three (3) annual anniversaries of
December 31, 2008.
4.1.1.2.
If the Change of Control occurs after December 31, 2008, but
on or prior to December 31, 2009, three-sevenths (3/7) of the
Modified Number of Restricted Stock Units, rounded down to the
nearest whole Share, will vest on December 31, 2009. The
remaining unvested Modified Number of Restricted Stock Units will
vest in equal annual installments on each of the next two
(2) annual anniversaries of December 31, 2009.
4.1.1.3.
If the Change of Control occurs after December 31, 2009, but
on or prior to December 31, 2010, five-sevenths (5/7) of the
Modified Number of Restricted Stock Units, rounded down to the
nearest whole Share, will vest on December 31, 2010. The
remaining unvested Modified Number of Restricted Stock Units will
vest on December 31, 2011.
4.1.1.4.
If the Change of Control occurs after December 31, 2010, but
on or prior to December 31, 2011, one hundred percent (100%) of the
Modified Number of Restricted Stock Units will vest on
December 31, 2011.
4.1.1.5.
If the Change of Control occurs after December 31, 2011, but
on or prior to December 31, 2012, one hundred percent (100%) of the
Modified Number of Restricted Stock Units will vest on
December 31, 2012.
6
4.1.2.
Notwithstanding anything to the contrary herein and subject to
Section 16(c) of the Plan, the Additional Modified Number of
Restricted Stock Units will be scheduled to vest in accordance with
the following schedule, subject to the Participant continuing to be
a Service Provider through each vesting date:
4.1.2.1.
If the Change of Control is triggered by an occurrence described in
Section 4.3.2(iii) that is not approved by the Board or an
occurrence described in Section 4.3.2(iv) and the Change of
Control occurs on or prior to December 31, 2011,
then:
4.1.2.1.1.
If the Change of Control occurs on or prior to December 31,
2008, one-seventh (1/7) of the Additional Modified Number of
Restricted Stock Units, rounded down to the nearest whole Share,
will vest on December 31, 2008. The remaining unvested
Additional Modified Number of Restricted Stock Units will vest in
equal annual installments on each of the next three (3) annual
anniversaries of December 31, 2008.
4.1.2.1.2.
If the Change of Control occurs after December 31, 2008, but
on or prior to December 31, 2009, three-sevenths (3/7) of the
Additional Modified Number of Restricted Stock Units, rounded down
to the nearest whole Share, will vest on December 31, 2009.
The remaining unvested Additional Modified Number of Restricted
Stock Units will vest in equal annual installments on each of the
next two (2) annual anniversaries of December 31,
2009.
4.1.2.1.3.
If the Change of Control occurs after December 31, 2009, but
on or prior to December 31, 2010, five-sevenths (5/7) of the
Additional Modified Number of Restricted Stock Units, rounded down
to the nearest whole Share, will vest on December 31, 2010.
The remaining unvested Additional Modified Number of Restricted
Stock Units will vest on December 31, 2011.
4.1.2.1.4.
If the Change of Control occurs after December 31, 2010, one
hundred percent (100%) of the Additional Modified Number of
Restricted Stock Units will vest on December 31,
2011.
4.1.2.2.
If the Change of Control is triggered by an occurrence described in
Section 4.3.2(iii) that is not approved by the Board or an
occurrence described in Section 4.3.2(iv) and the Change of
Control occurs after December 31, 2011, but on or prior to
December 31, 2012, then one hundred percent (100%) of the
Additional Modified Number of Restricted Stock Units will vest on
December 31, 2012.
4.1.2.3.
If the Change of Control is triggered by an occurrence described in
Sections 4.3.2(i) or (ii) or an occurrence described in
Section 4.3.2(iii) that is approved by the Board,
then:
4.1.2.3.1.
If the Change of Control occurs on or prior to December 31,
2008, one-ninth (1/9) of the Additional Modified Number of
Restricted Stock Units, rounded down to the nearest whole Share,
will vest on December 31, 2008. The remaining unvested
Additional Modified Number of Restricted Stock Units will vest in
equal annual installments on each of the next four (4) annual
anniversaries of December 31, 2008.
7
4.1.2.3.2.
If the Change of Control occurs after December 31, 2008, but
on or prior to December 31, 2009, three-ninths (3/9) of the
Additional Modified Number of Restricted Stock Units, rounded down
to the nearest whole Share, will vest on December 31, 2009.
The remaining unvested Additional Modified Number of Restricted
Stock Units will vest in equal annual installments on each of the
next three (3) annual anniversaries of December 31,
2009.
4.1.2.3.3.
If the Change of Control occurs after December 31, 2009, but
on or prior to December 31, 2010, five-ninths (5/9) of the
Additional Modified Number of Restricted Stock Units, rounded down
to the nearest whole Share, will vest on December 31, 2010.
The remaining unvested Additional Modified Number of Restricted
Stock Units will vest in equal annual installments on each of the
next two (2) annual anniversaries of December 31,
2010.
4.1.2.3.4.
If the Change of Control occurs after December 31, 2010, but
on or prior to December 31, 2011, seven-ninths (7/9) of the
Additional Modified Number of Restricted Stock Units, rounded down
to the nearest whole Share, will vest on December 31, 2011.
The remaining unvested Additional Modified Number of Restricted
Stock Units will vest on December 31, 2012.
4.1.2.3.5.
If the Change of Control occurs after December 31, 2011, one
hundred percent (100%) of the Additional Modified Number of
Restricted Stock Units will vest on December 31,
2012.
4.2.
Notwithstanding anything herein to the contrary, in the event the
Participant incurs a Termination of Service in Connection with a
Change of Control on account of a termination by the Company (or
any Subsidiary) due to death, Disability, or any reason other than
Cause or on account of a termination by the Participant for Good
Reason, then this award immediately will vest in one hundred
percent (100%) of the then unvested Modified Number of Restricted
Stock Units and the then unvested Additional Modified Number of
Restricted Stock Units.
4.3.1.
For purposes of this Award Agreement, “Cause” will mean
(i) the Participant’s willful and continued failure to
perform the duties and responsibilities of his or her position
after there has been delivered to the Participant a written demand
for performance from the CEO which describes the basis for the
CEO’s belief that the Participant has not substantially
performed his or her duties and the Participant has not corrected
such failure within 30 days of such written demand;
(ii) any act of personal dishonesty taken by the Participant
in connection with his or her responsibilities as an employee of
the Company with the intention or reasonable expectation that such
action may result in the substantial personal enrichment of the
Participant; (iii) the Participant’s conviction of, or
plea of nolo contendere to, a felony that the Board reasonably
believes has had or will have a material detrimental effect on the
Company’s reputation or business; (iv) a breach of any
fiduciary duty owed to the Company by the Participant that has a
material detrimental effect on the Company’s reputation or
business; (v) the Participant being found liable in any
Securities and Exchange Commission or other civil or criminal
securities law action or entering any cease and desist order with
respect to such action (regardless of whether or not the
Participant admits or denies liability); (vi) the Participant
(A) obstructing or impeding, (B) endeavoring to obstruct,
impede or
8
improperly
influence, or (C) failing to materially cooperate with, any
investigation authorized by the Board or any governmental or
self-regulatory entity (an “Investigation”); however,
the Participant’s failure to waive attorney-client privilege
relating to communications with his or her own attorney in
connection with an Investigation will not constitute
“Cause”; or (vii) the Participant’s
disqualification or bar by any governmental or self-regulatory
authority from serving in the capacity contemplated by his or her
position or the Participant’s loss of any governmental or
self-regulatory license that is reasonably necessary for the
Participant to perform his or her responsibilities to the Company,
if (A) the disqualification, bar or loss continues for more
than thirty (30) days, and (B) during that period the
Company uses its good faith efforts to cause the disqualification
or bar to be lifted or the license replaced, it being understood
that while any disqualification, bar or loss continues during the
Participant’s employment, the Participant will serve in the
capacity contemplated by his or her position to whatever extent
legally permissible and, if the Participant’s service in the
capacity contemplated by his or her position is not permissible, he
or she will be placed on leave (which will be paid to the extent
legally permissible).
4.3.2.
For purposes of this Award Agreement, “Change of
Control” will mean the occurrence of any of the following
events: (i) the consummation by the Company of a merger or
consolidation of the Company with any other corporation, other than
a merger or consolidation which would result in the voting
securities of the Company outstanding immediately prior thereto
continuing to represent (either by remaining outstanding or by
being converted into voting securities of the surviving entity)
more than 50% of the total voting power represented by the voting
securities of the Company or such surviving entity outstanding
immediately after such merger or consolidation; (ii) the
consummation of the sale or disposition by the Company of all or
substantially all of the Company’s assets; (iii) any
“person” (as such term is used in Sections 13(d) and
14(d) of the Securities Exchange Act of 1934, as amended) becoming
the “beneficial owner” (as defined in Rule 13d-3
under said Act), directly or indirectly, of securities of the
Company representing more than 50% of the total voting power
represented by the Company’s then outstanding voting
securities; or (iv) a change in the composition of the Board
occurring within a one-year period, as a result of which fewer than
a majority of the directors are Incumbent Directors.
“Incumbent Directors” will mean directors who either
(A) are directors of the Company as of the date hereof, or
(B) are either (x) elected by the Board pursuant to
Section 3.4 of the Bylaws of the Company or (y) nominated
by the Board for election by the stockholders pursuant to
Section 3.3 of the Bylaws of the Company, in either case
(x) or (y), with the affirmative votes of at least a majority
of those directors whose election or nomination was not in
connection with any transactions described in subsections (i),
(ii), or (iii) or in connection with an actual or threatened
proxy contest relating to the election of directors of the
Company.
4.3.3.
For purposes of this Award Agreement, “Good Reason”
will mean the Participant’s termination of employment within
ninety (90) days following the end of the Cure Period (as
defined below) as a result of the occurrence of any of the
following without the Participant’s consent: (i) a material
diminution of the Participant’s authority, duties, or
responsibilities, relative to the Participant’s authority,
duties, or responsibilities in effect immediately prior to such
reduction, [ insert for certain employees: provided,
however, that a reduction of authority, duties, or responsibilities
that occurs solely as a necessary and direct consequence of the
Company undergoing a Change of Control and being made part of a
larger entity will not be considered material,] (ii) a
material diminution by the Company in the base salary of the
Participant as in effect immediately prior to such reduction;
provided, however, that following a
9
Change of
Control, a comparable reduction of the Base Pay of substantially
all other executives of the consolidated entity that includes the
Company will not constitute “Good Reason”, or
(iii) the relocation of the Participant to a facility or a
location more than fifty (50) miles from the
Participant’s then present location; provided, however, that
the Participant must provide written notice to the Board of the
condition that could constitute a “Good Reason” event
within ninety (90) days of the initial existence of such
condition and such condition must not have been remedied by the
Company within thirty (30) days (the “Cure
Period”) of such written notice.
4.3.4.
For purposes of this Award Agreement, a Participant’s
Termination of Service will be “in Connection with a Change
of Control” if the Participant incurs a Termination of
Service within three (3) months prior or eighteen
(18) months following a Change of Control.]
5.
Forfeiture upon Termination of Continuous Service .
Notwithstanding any contrary provision of this Award Agreement, if
the Participant ceases to be a Service Provider for any or no
reason, the then-unvested Restricted Stock Units (after taking into
account any accelerated vesting that may occur as the result of any
such termination, including in accordance with Section 4.2
above) awarded by this Award Agreement will thereupon be forfeited
at no cost to the Company and the Participant will have no further
rights thereunder.
6.
Payment after Vesting . Any Restricted Stock Units that vest
in accordance with paragraph 3 or 4 will be paid to the Participant
(or in the event of the Participant’s death, to his or her
estate) in whole Shares as soon as administratively practicable
following the Vesting Date for the applicable Determination Period,
subject to paragraph 8, but in each such case no later than the
date that is two-and-one-half months from the end of the
Company’s tax year that includes the Vesting Date.
Notwithstanding anything in the Plan or this Award Agreement to the
contrary, if the vesting of the balance, or some lesser portion of
the balance, of the Restricted Stock Units is accelerated in
connection with the Participant ceasing to be a Service Provider
(provided that such cessation is a “separation from
service” within the meaning of Section 409A, as
determined by the Company), other than due to death, and if
(x) the Participant is a “specified employee”
within the meaning of Section 409A at the time of such
cessation and (y) the payment of such accelerated Restricted
Stock Units will result in the imposition of additional tax under
Section 409A if paid to the Participant on or within the six
(6) month period following the Participant ceasing to be a
Service Provider, then the payment of such accelerated Restricted
Stock Units will not be made until the date six (6) months and
one (1) day following the date of such cessation, unless the
Participant dies during such six (6) month period, in which
case, the Restricted Stock Units will be paid to the
Participant’s estate as soon as practicable following his or
her death, subject to paragraph 8. It is the intent of this Award
Agreement to comply with the requirements of Section 409A so
that none of the Restricted Stock Units provided under this Award
Agreement or Shares issuable thereunder will be subject to the
additional tax imposed under Section 409A, and any ambiguities
herein will be interpreted to so comply. For purposes of this Award
Agreement, “Section 409A” means Section 409A
of the Internal Revenue Code of 1986, as amended (the
“Code”), and any proposed, temporary or final Treasury
Regulations and Internal Revenue Service guidance thereunder, as
each may be amended from time to time.
7.
Payments after Death . Any distribution or delivery to be
made to the Participant under this Award Agreement will, if the
Participant is then deceased, be made to the Participant’s
designated beneficiary, provided such beneficiary has been
designated prior to the Participant’s death in a
form
10
and manner
acceptable to the Administrator, pursuant to
Section 5(b)(viii) of the Plan. If no beneficiary has been
designated by the Participant in a form and manner acceptable to
the Administrator, then such earned Restricted Stock Units shall be
paid to the personal representative of the Participant’s
estate or in the event no administration of the Participant’s
estate is required, then to the successor-in-interest pursuant to
the Participant’s will or in accordance with the laws of
descent and distribution, as the case may be. Any such transferee
must furnish the Company with (a) written notice of his or her
status as transferee, and (b) evidence satisfactory to the
Company to establish the validity of the transfer and compliance
with any laws or regulations pertaining to said
transfer.
8.
Withholding of Taxes . Notwithstanding any contrary
provision of this Award Agreement, no certificate representing the
Shares will be issued to the Participant, unless and until
satisfactory arrangements (as determined by the Administrator) will
have been made by the Participant with respect to the payment of
income, employment and other taxes which the Company determines
must be withheld with respect to such shares so issuable. The
Administrator, in its sole discretion and pursuant to such
procedures as it may specify from time to time, may permit the
Participant to satisfy such tax withholding obligation, in whole or
in part (without limitation) by one or more of the following:
(a) paying cash, (b) electing to have the Company
withhold otherwise deliverable shares of Common Stock having a Fair
Market Value equal to the minimum amount required to be withheld,
(c) delivering to the Company already vested and owned shares
of Common Stock having a Fair Market Value equal to the amount
required to be withheld, or (d) selling a sufficient number of
such shares of Common Stock otherwise deliverable to Participant
through such means as the Company may determine in its sole
discretion (whether through a broker or otherwise) equal to the
amount required to be withheld. If the Participant fails to make
satisfactory arrangements for the payment of any required tax
withholding obligations hereunder at the time any applicable Shares
otherwise are scheduled to vest pursuant to paragraph 3 or 4, the
Participant will permanently forfeit such Shares and the Shares
will be returned to the Company at no cost to the
Company.
9. Rights
as Stockholder . Neither the Participant nor any person
claiming under or through the Participant will have any of the
rights or privileges of a stockholder of the Company in respect of
any Shares deliverable hereunder unless and until certificates
representing such Shares (which may be in book entry form) will
have been issued, recorded on the records of the Company or its
transfer agents or registrars, and delivered to the Participant
(including through electronic delivery to a brokerage account).
After such issuance, recordation and delivery, the Participant will
have all the rights of a stockholder of the Company with respect to
voting such Shares and receipt of dividends and distributions on
such Shares.
10. No
Effect on Employment or Service . The Participant’s
employment or other service with the Company and its Subsidiaries
is on an at-will basis only. Accordingly, the terms of the
Participant’s employment or service with the Company and its
Subsidiaries will be determined from time to time by the Company or
the Subsidiary employing the Participant (as the case may be), and
the Company or the Subsidiary will have the right, which is hereby
expressly reserved, to terminate or change the terms of the
employment or service of the Participant at any time for any reason
whatsoever, with or without good cause. The transactions
contemplated hereunder and the Vesting Schedule set forth on the
first page of this Award Agreement do not constitute an express or
implied promise of continued employment for any period of
time.
11
11.
Address for Notices . Any notice to be given to the Company
under the terms of this Award Agreement will be addressed to the
Company at Atmel Corporation, Attention: Stock Administration
Department, 2325 Orchard Parkway, San Jose, California 95131, or at
such other address as the Company may hereafter designate in
writing.
12. Grant
is Not Transferable . Except to the limited extent provided in
paragraph 7, this Award and the rights and privileges conferred
hereby will not be transferred, assigned, pledged or hypothecated
in any way (whether by operation of law or otherwise) and will not
be subject to sale under execution, attachment or similar process.
Upon any attempt to transfer, assign, pledge, hypothecate or
otherwise dispose of this Award, or any right or privilege
conferred hereby, or upon any attempted sale under any execution,
attachment or similar process, this Award and the rights and
privileges conferred hereby immediately will become null and
void.
13.
Restrictions on Sale of Securities . The Shares issued as
payment for vested Restricted Stock Units under this Award
Agreement will be registered under U.S. federal securities laws and
will be freely tradable upon receipt. However, a
Participant’s subsequent sale of the Shares may be subject to
any market blackout-period that may be imposed by the Company and
must comply with the Company’s insider trading policies, and
any other applicable securities laws.
14.
Binding Agreement . Subject to the limitation on the
transferability of this grant contained herein, this Award
Agreement will be binding upon and inure to the benefit of the
heirs, legatees, legal representatives, successors and assigns of
the parties hereto.
15.
Additional Conditions to Issuance of Stock . The Company
will not be required to issue any certificate or certificates for
Shares hereunder prior to fulfillment of all the following
conditions: (a) the admission of such Shares to listing on all
stock exchanges on which such class of stock is then listed;
(b) the completion of any registration or other qualification
of such Shares under any U.S. state or federal law or under the
rulings or regulations of the Securities and Exchange Commission or
any other governmental regulatory body, which the Administrator
will, in its absolute discretion, deem necessary or advisable;
(c) the obtaining of any approval or other clearance from any
U.S. state or federal governmental agency, which the Administrator
will, in its absolute discretion, determine to be necessary or
advisable; and (d) the lapse of such reasonable period of time
following the date of vesting of the Restricted Stock Units as the
Administrator may establish from time to time for reasons of
administrative convenience.
16. Plan
Governs . This Award Agreement is subject to all terms and
provisions of the Plan. In the event of a conflict between one or
more provisions of this Award Agreement and one or more provisions
of the Plan, the provisions of the Plan will govern.
17.
Administrator Authority . The Administrator will have the
power to interpret the Plan and this Award Agreement and to adopt
such rules for the administration, interpretation and application
of the Plan as are consistent therewith and to interpret or revoke
any such rules (including, but not limited to, the determination of
whether or not any Restricted Stock Units have vested). All actions
taken and all interpretations and determinations made by the
Administrator in good faith will be final and binding upon
Participant, the Company and all other interested persons. No
member of the Board or its Committee administering the Plan will be
personally liable for any action, determination or interpretation
made in good faith with respect to the Plan or this Award
Agreement.
12
18.
Captions . Captions provided herein are for convenience only
and are not to serve as a basis for interpretation or construction
of this Award Agreement.
19.
Agreement Severable . In the event that any provision in
this Award Agreement will be held invalid or unenforceable, such
provision will be severable from, and such invalidity or
unenforceability will not be construed to have any effect on, the
remaining provisions of this Award Agreement.
20.
Modifications to the Award Agreement . This Award Agreement
constitutes the entire understanding of the parties on the subjects
covered. The Participant expressly warrants that he or she is not
accepting this Award Agreement in reliance on any promises,
representations, or inducements other than those contained herein.
Modifications to this Award Agreement or the Plan can be made only
in an express written contract executed by a duly authorized
officer of the Company. Notwithstanding anything to the contrary in
the Plan or this Award Agreement, the Company reserves the right to
revise this Award Agreement as it deems necessary or advisable, in
its sole discretion and without the consent of the Participant, to
comply with Section 409A or to otherwise avoid imposition of
any additional tax or income recognition under Section 409A
prior to the actual payment of Shares pursuant to this Award of
Restricted Stock Units.
21.
Amendment, Suspension or Termination of the Plan . By
accepting this Restricted Stock Unit award, the Participant
expressly warrants that he or she has received a right to receive
stock under the Plan, and has received, read and understood a
description of the Plan. The Participant understands that the Plan
is discretionary in nature and may be amended, suspended or
terminated by the Company at any time. Notwithstanding the
foregoing, no amendment, suspension or termination of the Plan
shall impair the Participant’s rights under this Award of
Restricted Stock Units, unless the Participant consents in writing
to such action.
22.
Notice of Governing Law . This award of Restricted Stock
Units shall be governed by the internal substantive laws, without
regard to the choice of law rules, of the State of
California.
23.
Electronic Delivery . The Company may, in its sole
discretion, decide to deliver any documents related to Restricted
Stock Units awarded under the Plan or future Restricted Stock Units
that may be awarded under the Plan by electronic means, or to
request the Participant’s consent to participate in the Plan
by electronic means. The Participant hereby consents to receive
such documents by electronic delivery and if requested, to agree to
participate in the Plan through an on-line or electronic system
established and maintained by the Company or another third party
designated by the Company.
13
PERFORMANCE MATRIX FOR RESTRICTED
STOCK UNITS
[INSERT PERFORMANCE
MATRIX]
(AS AMENDED AND RESTATED
MAY 20, 2009)
NOTICE OF GRANT OF RESTRICTED
STOCK UNITS
Unless otherwise
defined herein, the terms defined in the Atmel Corporation 2005
Stock Plan (the “Plan”) shall have the same defined
meanings in this Notice of Grant of Restricted Stock Units (the
“Notice of Grant”).
You have been
granted an Award of restricted stock units (“Restricted Stock
Units”), subject to the terms and conditions of the Plan and
this Notice of Grant, the Restricted Stock Unit Agreement, attached
hereto as Exhibit A, including any country-specific appendix
thereto, and the Performance Matrix, attached hereto as
Exhibit B (together, the “Award Agreement”), as
follows:
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Grant
Number:
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Grant
Date:
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Maximum Number
of Restricted Stock Units:
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[INSERT]
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Performance
Period:
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July 1,
2008 through December 31, 2012
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Performance
Matrix:
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The number of
Restricted Stock Units, if any, in which you may vest in accordance
with the Vesting Schedule below will depend upon achievement of
goals for the Company’s Operating Margin during the
Performance Period and will be determined in accordance with
paragraph 1 of Exhibit A and the Performance Matrix, attached
hereto as Exhibit B.
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Vesting
Schedule:
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The Participant
will vest on the date the Administrator determines the number of
Restricted Stock Units earned in accordance with paragraph 1 of
Exhibit A and the Performance Matrix, attached hereto as
Exhibit B (a “Vesting Date”), provided that such
determination will be made within forty-five (45) days after
the end of each Quarterly Performance Period beginning on or after
April 1, 2009. Except as otherwise provided in Exhibit A,
the Participant will not vest in the Restricted Stock Units unless
he or she remains a Service Provider through each Vesting
Date.
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Your signature
below indicates your agreement and understanding that this Award is
subject to and governed by the terms and conditions of the Plan and
this Award Agreement. For example, important additional information
on vesting and forfeiture of the Restricted Stock Units is
contained in paragraphs 3 through 5 of Exhibit A.
PLEASE BE SURE TO READ ALL OF EXHIBIT A, THE APPENDIX AND
EXHIBIT B, WHICH CONTAIN THE SPECIFIC TERMS AND CONDITIONS OF THIS
AWARD AGREEMENT. You further represent that you have reviewed the
Plan and this Award Agreement in their entirety, have had an
opportunity to obtain the advice of counsel prior to executing this
Award Agreement and fully understand all provisions of the Plan and
Award Agreement. You hereby agree to accept as binding, conclusive
and final all decisions or interpretations of the Administrator
upon any questions relating to the Plan and Award Agreement. You
further agree to notify the Company upon any change in the
residence address indicated below.
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ATMEL
CORPORATION:
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/s/ Steven
Laub
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By: Steven
Laub
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President and
Chief Executive Officer
Title
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2
(AS AMENDED AND RESTATED
MAY 20, 2009)
RESTRICTED STOCK UNIT
AGREEMENT
1.1.
The Company hereby grants to the Participant under the Plan an
Award of the Maximum Number of Restricted Stock Units set forth on
the first page of this Award Agreement, subject to all of the terms
and conditions in this Award Agreement, including any
country-specific appendix thereto, and the Plan.
1.2.
The number of Restricted Stock Units in which the Participant may
vest, if any, will depend upon achievement of goals for the
Company’s Operating Margin during the Performance Period and
will be determined as follows:
1.2.1.
The Company’s Operating Margin for each Quarterly Performance
Period will be determined and certified by the Administrator
following the end of each such Quarterly Performance Period, but in
no event later than forty-five (45) days
thereafter.
1.2.2.
Following the end of each Quarterly Performance Period beginning
with the fourth Quarterly Performance Period, but in no event later
than forty-five (45) days thereafter, the Administrator will
determine and certify the Company’s Current Average Operating
Margin and the Company’s Performance Period-To-Date Average
Operating Margin.
1.2.2.1.
If the Company’s (i) Performance Period-To-Date Average
Operating Margin equals or exceeds seven and a half percent (7.5%)
and (ii) the Operating Margin for at least four (4) of
the Quarterly Performance Periods during the Determination Period
equals or exceeds ten percent (10%), the Administrator then will
identify the Percent of Maximum Shares Earned by comparing the
Company’s Current Average Operating Margin to the Performance
Matrix, attached hereto as Exhibit B. The Participant will
vest on the Vesting Date for the applicable Determination Period in
the number of Restricted Stock Units determined by
(y) multiplying the Maximum Number of Restricted Stock Units
set forth on the first page of this Award Agreement by the Percent
of Maximum Shares Earned determined in accordance with the
preceding sentence, rounded down to the nearest whole Share and
(z) subtracting the number of any previously vested Restricted
Stock Units.
1.2.2.2.
If the Company’s (i) Performance Period-To-Date Average
Operating Margin is less than seven and a half percent (7.5%) or
(ii) the Company’s Operating Margin for at least four of
the Quarterly Performance Periods during the Determination Period
did
3
not equal or
exceed ten percent (10%), the Participant will not vest in any
Restricted Stock Units on the Vesting Date for the applicable
Determination Period. The number of Restricted Stock Units in which
the Participant may vest, if any, will depend upon achievement
during subsequent Quarterly Performance Periods of goals for the
Company’s Operating Margin.
1.3.1.
For purposes of this Award Agreement, “Annual Revenue”
will have the meaning ascribed to such term in Section 3(d) of the
Plan, but will be determined on a quarterly basis for each
Quarterly Performance Period. Annual Revenue for a Quarterly
Performance Period will be adjusted in accordance with
Section 3(jj) of the Plan to exclude the Company’s FAS
123R stock compensation expense, legal, accounting and related
expenses associated with independent investigations, restructuring
and impairment charges, and acquisition related charges incurred
during such Quarterly Performance Period.
1.3.2.
For purposes of this Award Agreement, “Current Average
Operating Margin” will mean:
1.3.2.1.
As of the end of the fourth Quarterly Performance Period, the
average of the Operating Margins for the first four
(4) Quarterly Performance Periods;
1.3.2.2.
As of the end of the fifth Quarterly Performance Period, the
average of the (4) four highest Operating Margins for the
period including such Quarterly Performance Period and the four
(4) immediately preceding consecutive Quarterly Performance
Periods; and
1.3.2.3.
As of the end of each Quarterly Performance Period thereafter, the
average of the (4) four highest Operating Margins for the period
including such Quarterly Performance Period and the five
(5) immediately preceding consecutive Quarterly Performance
Periods.
1.3.3.
For purposes of this Award Agreement, “Determination
Period” will mean:
1.3.3.1.
As of the end of the fourth Quarterly Performance Period and the
fifth Quarterly Performance Period, the period including the first
four (4) Quarterly Performance Periods and the first five
(5) Quarterly Performance Periods, respectively;
1.3.3.2.
As of the end of each Quarterly Performance Period thereafter, the
period including such Quarterly Performance Period and the five
(5) immediately preceding consecutive Quarterly Performance
Periods.
1.3.4.
For purposes of this Award Agreement, “Operating
Margin” will mean, as to any Quarterly Performance Period,
the percentage equal to the Company’s Operating Profit for
such Quarterly Performance Period divided by the Company’s
Annual Revenue as determined on a quarterly basis for such
Quarterly Performance Period.
1.3.5.
For purposes of this Award Agreement, “Operating
Profit” for a Quarterly Performance Period will have the
meaning ascribed to such term in Section 3(bb) of the Plan.
Operating Profit for a Quarterly Performance Period will be
adjusted in accordance with Section
4
3(jj) of the
Plan to exclude the following from the Company’s operating
expenses: FAS 123R stock compensation expense, legal, accounting
and related expenses associated with independent investigations,
restructuring and impairment charges, and acquisition related
charges incurred during such Quarterly Performance
Period.
1.3.6.
For purposes of this Award Agreement, “Performance
Period-To-Date Average Operating Margin” will mean, as of the
end of a Quarterly Performance Period, the average of the Operating
Margins for the period including such Quarterly Performance Period
and all previous Quarterly Performance Periods.
1.3.7.
For purposes of this Award Agreement, “Quarterly Performance
Period” will mean each fiscal quarter of the Company that
occurs during the Performance Period. For the avoidance of doubt,
the Performance Period will consist of eighteen (18) Quarterly
Performance Periods commencing on July 1, 2008.
1.4.
When Shares are issued to the Participant in accordance with
paragraph 6 for vested Restricted Stock Units, par value will be
deemed paid by the Participant for each Restricted Stock Unit by
services rendered by the Participant to the Company or its
Subsidiary or Affiliate, and will be subject to the appropriate
withholding for Tax-Related Items (as defined in paragraph
8).
2.
Company’s Obligation to Pay . Each Restricted Stock
Unit has a value equal to the Fair Market Value of a Share on the
date it vests. Unless and until the Restricted Stock Units will
have vested in the manner set forth in paragraphs 3 through 5,
the Participant will have no right to settlement of any such
Restricted Stock Units. Prior to actual settlement of any vested
Restricted Stock Units, such Restricted Stock Units will represent
an unsecured obligation of the Company, payable (if at all) only
from the general assets of the Company. Settlement of any vested
Restricted Stock Units will be made in whole Shares only and not
cash.
3.
Vesting Schedule . Subject to paragraphs 4 and 5, the
Restricted Stock Units awarded by this Award Agreement will vest in
the Participant according to the Vesting Schedule set forth on the
first page of this Award Agreement, subject to the
Participant’s continuing to be an active Service Provider
through each such Vesting Date.
4. [
insert for certain employees: Change of Control
.
4.1.
In the event of a Change of Control during the Performance Period,
the Performance Period shall be deemed to end immediately prior to
the Change of Control. However, the Participant may be entitled to
vest in a portion of the Restricted Stock Units (the
“Modified Number of Restricted Stock Units”) in
accordance with the schedule set forth in Section 4.1.1 below.
The Modified Number of Restricted Stock Units will be the amount
equal to (A) fifty percent (50%) of the Maximum Number of
Restricted Stock Units set forth on the first page of this Award
Agreement less (B) the number of any previously vested
Restricted Stock Units. In addition, the Participant may be
entitled to vest in an additional number of Restricted Stock Units
(the “Additional Modified Number of Restricted Stock
Units”) in accordance with the schedule set forth in
Section 4.1.2 below. The Additional Modified Number of
Restricted Stock Units will be the amount equal to (Y) fifty
percent (50%) of the Maximum Number of Restricted Stock Units set
forth on the first page of this Award Agreement less (Z) the
Modified Number of Restricted Stock Units; provided, however,
that
5
if the
Participant has previously vested in more than fifty percent (50%)
of such Maximum Number of Restricted Stock Units, the Additional
Modified Number of Restricted Stock Units will be the amount equal
to (i) the Maximum Number of Restricted Stock Units set forth
on the first page of this Award Agreement, less (ii) the
number of previously vested Restricted Stock Units.
By way of
example, the following table shows the Modified Number of
Restricted Stock Units and the Additional Modified Number of
Restricted Stock Units, assuming the Participant had been awarded a
Maximum Number of Restricted Stock Units of 100 and assuming the
Participant had previously vested in the Restricted Stock Units set
forth below:
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Scenario 1
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Scenario 2
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Scenario 3
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30
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50
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60
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Modified Number
of Restricted Stock Units
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20
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0
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0
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Additional
Modified Number of Restricted Stock Units
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30
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50
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40
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4.1.1.
Notwithstanding anything to the contrary herein and subject to
Section 16(c) of the Plan, the Modified Number of Restricted Stock
Units will be scheduled to vest in accordance with the following
schedule, subject to the Participant continuing to be a Service
Provider through each vesting date:
4.1.1.1.
If the Change of Control occurs on or prior to December 31,
2008 one-seventh (1/7) of the Modified Number of Restricted Stock
Units, rounded down to the nearest whole Share, will vest on
December 31, 2008. The remaining unvested Modified Number of
Restricted Stock Units will vest in equal annual installments on
each of the next three (3) annual anniversaries of
December 31, 2008.
4.1.1.2.
If the Change of Control occurs after December 31, 2008, but
on or prior to December 31, 2009, three-sevenths (3/7) of the
Modified Number of Restricted Stock Units, rounded down to the
nearest whole Share, will vest on December 31, 2009. The
remaining unvested Modified Number of Restricted Stock Units will
vest in equal annual installments on each of the next two
(2) annual anniversaries of December 31, 2009.
4.1.1.3.
If the Change of Control occurs after December 31, 2009, but
on or prior to December 31, 2010, five-sevenths (5/7) of the
Modified Number of Restricted Stock Units, rounded down to the
nearest whole Share, will vest on December 31, 2010. The
remaining unvested Modified Number of Restricted Stock Units will
vest on December 31, 2011.
4.1.1.4.
If the Change of Control occurs after December 31, 2010, but
on or prior to December 31, 2011, one hundred percent (100%) of the
Modified Number of Restricted Stock Units will vest on
December 31, 2011.
6
4.1.1.5.
If the Change of Control occurs after December 31, 2011, but
on or prior to December 31, 2012, one hundred percent (100%) of the
Modified Number of Restricted Stock Units will vest on
December 31, 2012.
4.1.2.
Notwithstanding anything to the contrary herein and subject to
Section 16(c) of the Plan, the Additional Modified Number of
Restricted Stock Units will be scheduled to vest in accordance with
the following schedule, subject to the Participant continuing to be
a Service Provider through each vesting date:
4.1.2.1.
If the Change of Control is triggered by an occurrence described in
Section 4.3.2(iii) that is not approved by the Board or an
occurrence described in Section 4.3.2(iv) and the Change of
Control occurs on or prior to December 31, 2011,
then:
4.1.2.1.1.
If the Change of Control occurs on or prior to December 31,
2008, one-seventh (1/7) of the Additional Modified Number of
Restricted Stock Units, rounded down to the nearest whole Share,
will vest on December 31, 2008. The remaining unvested
Additional Modified Number of Restricted Stock Units will vest in
equal annual installments on each of the next three (3) annual
anniversaries of December 31, 2008.
4.1.2.1.2.
If the Change of Control occurs after December 31, 2008, but
on or prior to December 31, 2009, three-sevenths (3/7) of the
Additional Modified Number of Restricted Stock Units, rounded down
to the nearest whole Share, will vest on December 31, 2009.
The remaining unvested Additional Modified Number of Restricted
Stock Units will vest in equal annual installments on each of the
next two (2) annual anniversaries of December 31,
2009.
4.1.2.1.3.
If the Change of Control occurs after December 31, 2009, but
on or prior to December 31, 2010, five-sevenths (5/7) of the
Additional Modified Number of Restricted Stock Units, rounded down
to the nearest whole Share, will vest on December 31, 2010.
The remaining unvested Additional Modified Number of Restricted
Stock Units will vest on December 31, 2011.
4.1.2.1.4.
If the Change of Control occurs after December 31, 2010, one
hundred percent (100%) of the Additional Modified Number of
Restricted Stock Units will vest on December 31,
2011.
4.1.2.2.
If the Change of Control is triggered by an occurrence described in
Section 4.3.2(iii) that is not approved by the Board or an
occurrence described in Section 4.3.2(iv) and the Change of
Control occurs after December 31, 2011, but on or prior to
December 31, 2012, then one hundred percent (100%) of the
Additional Modified Number of Restricted Stock Units will vest on
December 31, 2012.
4.1.2.3.
If the Change of Control is triggered by an occurrence described in
Sections 4.3.2(i) or (ii) or an occurrence described in
Section 4.3.2(iii) that is approved by the Board,
then:
4.1.2.3.1.
If the Change of Control occurs on or prior to December 31,
2008, one-ninth (1/9) of the Additional Modified Number of
Restricted Stock Units, rounded down to the nearest whole Share,
will vest on December 31, 2008. The remaining
unvested
7
Additional
Modified Number of Restricted Stock Units will vest in equal annual
installments on each of the next four (4) annual anniversaries
of December 31, 2008.
4.1.2.3.2.
If the Change of Control occurs after December 31, 2008, but
on or prior to December 31, 2009, three-ninths (3/9) of the
Additional Modified Number of Restricted Stock Units, rounded down
to the nearest whole Share, will vest on December 31, 2009.
The remaining unvested Additional Modified Number of Restricted
Stock Units will vest in equal annual installments on each of the
next three (3) annual anniversaries of December 31,
2009.
4.1.2.3.3.
If the Change of Control occurs after December 31, 2009, but
on or prior to December 31, 2010, five-ninths (5/9) of the
Additional Modified Number of Restricted Stock Units, rounded down
to the nearest whole Share, will vest on December 31, 2010.
The remaining unvested Additional Modified Number of Restricted
Stock Units will vest in equal annual installments on each of the
next two (2) annual anniversaries of December 31,
2010.
4.1.2.3.4.
If the Change of Control occurs after December 31, 2010, but
on or prior to December 31, 2011, seven-ninths (7/9) of the
Additional Modified Number of Restricted Stock Units, rounded down
to the nearest whole Share, will vest on December 31, 2011.
The remaining unvested Additional Modified Number of Restricted
Stock Units will vest on December 31, 2012.
4.1.2.3.5.
If the Change of Control occurs after December 31, 2011, one
hundred percent (100%) of the Additional Modified Number of
Restricted Stock Units will vest on December 31,
2012.
4.2.
Notwithstanding anything herein to the contrary, in the event the
Participant incurs a Termination of Service in Connection with a
Change of Control on account of a termination by the Company (or
any Subsidiary) due to death, Disability or any reason other than
Cause or on account of a termination by the Participant for Good
Reason, then this award immediately will vest in one hundred
percent (100%) of the then unvested Modified Number of Restricted
Stock Units and the then unvested Additional Modified Number of
Restricted Stock Units.
4.3.1.
For purposes of this Award Agreement, “Cause” will mean
(i) the Participant’s willful and continued failure to
perform the duties and responsibilities of his or her position
after there has been delivered to the Participant a written demand
for performance from the CEO which describes the basis for the
CEO’s belief that the Participant has not substantially
performed his or her duties and the Participant has not corrected
such failure within 30 days of such written demand;
(ii) any act of personal dishonesty taken by the Participant
in connection with his or her responsibilities as an employee of
the Company with the intention or reasonable expectation that such
action may result in the substantial personal enrichment of the
Participant; (iii) the Participant’s conviction of, or
plea of nolo contendere to, a felony that the Board reasonably
believes has had or will have a material detrimental effect on the
Company’s reputation or business; (iv) a breach of any
fiduciary duty owed to the Company by the Participant that has a
material detrimental effect on the Company’s reputation or
business; (v) the Participant being found liable in any
Securities and
8
Exchange
Commission or other civil or criminal securities law action or
entering any cease and desist order with respect to such action
(regardless of whether or not the Participant admits or denies
liability); (vi) the Participant (A) obstructing or
impeding, (B) endeavoring to obstruct, impede or improperly
influence, or (C) failing to materially cooperate with, any
investigation authorized by the Board or any governmental or
self-regulatory entity (an “Investigation”), however,
the Participant’s failure to waive attorney-client privilege
relating to communications with his or her own attorney in
connection with an Investigation will not constitute
“Cause”; or (vii) the Participant’s
disqualification or bar by any governmental or self-regulatory
authority from serving in the capacity contemplated by his or her
position or the Participant’s loss of any governmental or
self-regulatory license that is reasonably necessary for the
Participant to perform his or her responsibilities to the Company,
if (A) the disqualification, bar or loss continues for more
than thirty (30) days, and (B) during that period the
Company uses its good faith efforts to cause the disqualification
or bar to be lifted or the license replaced, it being understood
that while any disqualification, bar or loss continues during the
Participant’s employment, the Participant will serve in the
capacity contemplated by his or her position to whatever extent
legally permissible and, if the Participant’s service in the
capacity contemplated by his or her position is not permissible, he
or she will be placed on leave (which will be paid to the extent
legally permissible).
4.3.2.
For purposes of this Award Agreement, “Change of
Control” will mean the occurrence of any of the following
events: (i) the consummation by the Company of a merger or
consolidation of the Company with any other corporation, other than
a merger or consolidation which would result in the voting
securities of the Company outstanding immediately prior thereto
continuing to represent (either by remaining outstanding or by
being converted into voting securities of the surviving entity)
more than 50% of the total voting power represented by the voting
securities of the Company or such surviving entity outstanding
immediately after such merger or consolidation; (ii) the
consummation of the sale or disposition by the Company of all or
substantially all of the Company’s assets; (iii) any
“person” (as such term is used in Sections 13(d) and
14(d) of the Securities Exchange Act of 1934, as amended) becoming
the “beneficial owner” (as defined in Rule 13d-3
under said Act), directly or indirectly, of securities of the
Company representing more than 50% of the total voting power
represented by the Company’s then outstanding voting
securities; or (iv) a change in the composition of the Board
occurring within a one-year period, as a result of which fewer than
a majority of the directors are Incumbent Directors.
“Incumbent Directors” will mean directors who either
(A) are directors of the Company as of the date hereof, or
(B) are either (x) elected by the Board pursuant to
Section 3.4 of the Bylaws of the Company or (y) nominated
by the Board for election by the stockholders pursuant to
Section 3.3 of the Bylaws of the Company, in either case
(x) or (y), with the affirmative votes of at least a majority
of those directors whose election or nomination was not in
connection with any transactions described in subsections (i),
(ii), or (iii) or in connection with an actual or threatened
proxy contest relating to the election of directors of the
Company.
4.3.3.
For purposes of this Award Agreement, “Good Reason”
will mean the Participant’s termination of employment within
ninety (90) days following the end of the Cure Period (as
defined below) as a result of the occurrence of any of the
following without the Participant’s consent: (i) a material
diminution of the Participant’s authority, duties, or
responsibilities, relative to the Participant’s authority,
duties, or responsibilities in effect immediately prior to such
reduction, [ insert for certain employees: provided,
however, that a reduction of authority, duties, or responsibilities
that occurs solely as a necessary and direct
9
consequence of
the Company undergoing a Change of Control and being made part of a
larger entity will not be considered material,] (ii) a
material diminution by the Company in the base salary of the
Participant as in effect immediately prior to such reduction;
provided, however, that following a Change of Control, a comparable
reduction of the Base Pay of substantially all other executives of
the consolidated entity that includes the Company will not
constitute “Good Reason”, or (iii) the relocation
of the Participant to a facility or a location more than fifty
(50) miles from the Participant’s then present location;
provided, however, that the Participant must provide written notice
to the Board of the condition that could constitute a “Good
Reason” event within ninety (90) days of the initial
existence of such condition and such condition must not have been
remedied by the Company within thirty (30) days (the
“Cure Period”) of such written notice.
4.3.4.
For purposes of this Award Agreement, a Participant’s
Termination of Service will be “in Connection with a Change
of Control” if the Participant incurs a Termination of
Service within three (3) months prior or eighteen
(18) months following a Change of Control.]
5.
Forfeiture upon Termination of Continuous Service .
Notwithstanding any contrary provision of this Award Agreement, if
the Participant ceases to be an active Service Provider for any or
no reason, then the unvested Restricted Stock Units (after taking
into account any accelerated vesting that may occur as the result
of any such termination, including in accordance with
Section 4.2 above) awarded by this Award Agreement will
thereupon be forfeited at no cost to the Company and the
Participant will have no further rights thereunder.
6.
Payment after Vesting . Any Restricted Stock Units that vest
in accordance with paragraph 3 or 4 will be paid to the Participant
(or in the event of the Participant’s death, to his or her
heirs) in whole Shares as soon as administratively practicable
following the Vesting Date for the applicable Determination Period,
subject to paragraph 8, but in each such case no later than the
date that is two-and-one-half months from the end of the
Company’s tax year that includes the Vesting Date.
Notwithstanding anything in the Plan or this Award Agreement to the
contrary, if the vesting of the balance, or some lesser portion of
the balance, of the Restricted Stock Units is accelerated in
connection with the Participant ceasing to be a Service Provider
(provided that such cessation is a “separation from
service” within the meaning of Section 409A, as
determined by the Company), other than due to death, and if
(x) the Participant is a “specified employee”
within the meaning of Section 409A at the time of such
cessation and (y) the payment of such accelerated Restricted
Stock Units will result in the imposition of additional tax under
Section 409A if paid to the Participant on or within the six
(6) month period following the Participant ceasing to be a
Service Provider, then the payment of such accelerated Restricted
Stock Units will not be made until the date six (6) months and
one (1) day following the date of such cessation, unless the
Participant dies during such six (6) month period, in which
case, the Restricted Stock Units will be paid to the
Participant’s heirs as soon as practicable following his or
her death, subject to paragraph 8. It is the intent of this Award
Agreement to comply with the requirements of Section 409A so
that none of the Restricted Stock Units provided under this Award
Agreement or Shares issuable thereunder will be subject to the
additional tax imposed under Section 409A, and any ambiguities
herein will be interpreted to so comply. For purposes of this Award
Agreement, “Section 409A” means Section 409A
of the U.S. Internal Revenue Code of 1986, as amended (the
“Code”), and any proposed, temporary or final Treasury
Regulations and Internal Revenue Service guidance thereunder, as
each may be amended from time to time.
10
7.
Payments after Death . Any distribution or delivery to be
made to the Participant under this Award Agreement will, if the
Participant is then deceased, be made to the Participant’s
heirs. Any such transferee must furnish the Company with
(a) written notice of his or her status as transferee, and
(b) evidence satisfactory to the Company to establish the
validity of the transfer and compliance with any laws or
regulations pertaining to said transfer.
8.
Responsibility for Taxes . Notwithstanding any contrary
provision of this Award Agreement, no certificate representing the
Shares will be issued to the Participant, unless and until
satisfactory arrangements (as determined by the Administrator) will
have been made by the Participant with respect to the payment of
any or all income tax, social insurance, payroll tax, payment on
account or other tax-related withholding (“Tax-Related
Items”). The Administrator, in its sole discretion and
pursuant to such procedures as it may specify from time to time,
may satisfy such withholding for Tax-Related Items, in whole or in
part (without limitation) by one or more of the
following:
a)
accepting cash from the Participant;
b)
withholding from Shares otherwise deliverable to the Participant
upon vesting/settlement of the Restricted Stock Unit having a Fair
Market Value equal to the minimum statutory withholding amount or
such other amount as may be necessary to avoid adverse accounting
treatment;
c)
accepting already vested and owned Shares of the Participant having
a Fair Market Value equal to the amount required to be
withheld;
d)
withholding from the Participant’s wages or other cash
compensation paid to the Participant by the Company and/or the
Participant’s employer (the
“Employer”);
e)
withholding from proceeds of the sale of Shares acquired upon
vesting/settlement of the Restricted Stock Units equal to the
amount required to be withheld; or
f)
arranging for the sale of Shares issued upon vesting/settlement of
the Restricted Stock Units (on the Participant’s behalf and
at the Participant’s direction pursuant to this
authorization) equal to amount required to be withheld.
If the
obligation for Tax-Related Items is satisfied by withholding from
Shares otherwise deliverable to the Participant, the Participant is
deemed to have been issued the full number of Shares subject to the
vested Restricted Stock Units, notwithstanding that a number of the
Shares are held back solely for the purpose of paying the
Tax-Related Items due as a result of any aspect of the Restricted
Stock Units. The Participant acknowledges that the ultimate
liability for all Tax-Related Items legally due by the Participant
is and remains the Participant’s. Further, if the Participant
has relocated to a different jurisdiction between the Grant Date
and the date of any taxable event, the Participant acknowledges
that the Company and/or the Employer (or former employer, as
applicable) may be required to withhold or account for Tax-Related
Items in more than one jurisdiction.
Finally, the
Participant shall pay to the Company or the Employer any amount of
Tax-Related Items that the Company or the Employer may be required
to withhold as a result of participation in the Plan that cannot be
satisfied by the means previously described. The Participant will
permanently forfeit the Restricted Stock Units and the Company may
refuse to deliver the Shares if the
11
Participant
fails to comply with his or her obligations in connection with the
Tax-Related Items as described in this paragraph.
9. Rights
as Stockholder . Neither the Participant nor any person
claiming through the Participant will have any of the rights or
privileges of a stockholder of the Company in respect of any Shares
deliverable hereunder unless and until certificates representing
such Shares (which may be in book entry form) will have been
issued, recorded on the records of the Company or its transfer
agents or registrars, and delivered to the Participant (including
through electronic delivery to a brokerage account). After such
issuance, recordation and delivery, the Participant will have all
the rights of a stockholder of the Company with respect to voting
such Shares and receipt of dividends and distributions on such
Shares.
10.
Nature of Grant . In accepting the Award, the Participant
acknowledges that:
a)
the Plan is established voluntarily by the Company, it is
discretionary in nature and it may be modified, amended, suspended
or terminated by the Company at any time, unless otherwise provided
in the Plan and this Award Agreement; notwithstanding the
foregoing, no amendment, suspension or termination of the Plan
shall impair the Participant’s rights under this Award of
Restricted Stock Units, unless the Participant consents in writing
to such action;
b)
the grant of the Restricted Stock Units is voluntary and occasional
and does not create any contractual or other right to receive
future Awards of Restricted Stock Units, or benefits in lieu of
Restricted Stock Units, even if Restricted Stock Units have been
granted repeatedly in the past;
c)
all decisions with respect to future Restricted Stock Unit Awards,
if any, will be at the sole discretion of the Company;
d)
the Participant’s participation in the Plan and the vesting
schedule set forth on the first page of this Award Agreement shall
not create a right to further employment with the Employer and
shall not interfere with the ability of the Employer to terminate
any employment relationship at any time;
e)
the Participant is voluntarily participating in the
Plan;
f)
the Restricted Stock Units and the Shares subject to the Restricted
Stock Units are an extraordinary item that does not constitute
compensation of any kind for services of any kind rendered to the
Company or the Employer, and which is outside the scope of the
employment contract, if any;
g)
the Restricted Stock Units and the Shares subject to the Restricted
Stock Units are not part of normal or expected compensation or
salary for any purposes, including, but not limited to, calculating
any severance, resignation, termination, redundancy, end of service
payments, bonuses, long-service awards, pension or retirement or
welfare benefits or similar payments and in no event should be
considered as compensation for, or relating in any way to, past
services for the Company or the Employer;
12
h)
in the event that the Participant is not an employee of the
Company, the Restricted Stock Units Award and the
Participant’s participation in the Plan will not be
interpreted to form an employment contract or relationship with the
Company; and furthermore, the Restricted Stock Units Award will not
be interpreted to form an employment contract with any Subsidiary
or Affiliate of the Company;
i)
the future value of the underlying Shares is unknown and cannot be
predicted with certainty;
j)
the value of the Shares acquired upon vesting or settlement of the
Restricted Stock Units may increase or decrease in
value;
k)
in consideration of the Award of the Restricted Stock Units, no
claim or entitlement to compensation or damages shall arise from
termination of the Restricted Stock Units or diminution in value of
the Restricted Stock Units or Shares subject to the Restricted
Stock Units resulting from termination of the Participant’s
employment by the Company or the Employer (for any reason
whatsoever and whether or not in breach of local labor laws) and
the Participant irrevocably releases the Company and the Employer
from any such claim that may arise; if, notwithstanding the
foregoing, any such claim is found by a court of competent
jurisdiction to have arisen, then, by signing this Award Agreement,
the Participant shall be deemed irrevocably to have waived any
entitlement to pursue such claim;
l)
in the event of termination of the Participant’s status as a
Service Provider (whether or not in breach of local labor laws),
the Participant’s right to vest in the Restricted Stock Units
under the Plan, if any, will terminate effective as of the date
that the Participant is no longer actively providing service and
will not be extended by any notice period mandated under local law
(e.g., active employment would not include a period of
“garden leave” or similar period pursuant to local
law); the Administrator shall have the exclusive discretion to
determine when the Participant is no longer actively providing
service as a Service Provider for purposes of the Restricted Stock
Units Award;
m)
the Company is not providing any tax, legal or financial advice,
nor is the Company making any recommendations regarding
participation in the Plan, or the acquisition or sale of the
underlying Shares; and
n)
the Participant is hereby advised to consult with his or her own
personal tax, legal and financial advisors regarding participation
in the Plan before taking any action related to the
Plan.
11.
Address for Notices . Any notice to be given to the Company
under the terms of this Award Agreement will be addressed to the
Company at Atmel Corporation, Attention: Stock Administration
Department, 2325 Orchard Parkway, San Jose, California 95131,
U.S.A. or at such other address as the Company may hereafter
designate in writing.
12. Grant
is Not Transferable . Except in the case of the
Participant’s death, as provided in paragraph 7, this
Award and the rights and privileges conferred hereby will not be
transferred, assigned, pledged or hypothecated in any way (whether
by operation of law or otherwise) and will not be subject to sale
under execution, attachment or similar process. Upon any attempt to
transfer,
13
assign, pledge,
hypothecate or otherwise dispose of this Award, or any right or
privilege conferred hereby, or upon any attempted sale under any
execution, attachment or similar process, this Award and the rights
and privileges conferred hereby immediately will become null and
void.
13.
Restrictions on Sale of Securities . The Shares issued as
payment for vested Restricted Stock Units under this Award
Agreement will be registered under U.S. federal securities laws and
will be freely tradable upon receipt. However, a
Participant’s subsequent sale of the Shares may be subject to
any market blackout-period that may be imposed by the Company and
must comply with the Company’s insider trading policies, and
any other applicable securities laws. Further, the subsequent sale
of Shares may be subject to additional terms and conditions for the
Participant’s country of residence, as set forth in any
country-specific appendix to the Award Agreement.
14.
Data Privacy . The Participant hereby explicitly and
unambiguously consents to the collection, use and transfer, in
electronic or other form, of his or her personal data as described
in this Award Agreement and any other Restricted Stock Units Award
materials by and among, as applicable, the Employer, the Company
and its Subsidiaries and Affiliates for the exclusive purpose of
implementing, administering and managing the Participant’s
participation in the Plan.
The Participant understands that the Company and the Employer
may hold certain personal information about the Participant,
including, but not limited to, the Participant’s name, home
address and telephone number, date of birth, social insurance
number or other identification number, salary, nationality, job
title, any Shares or directorships held in the Company, details of
all Restricted Stock Units or any other entitlement to Shares
awarded, canceled, exercised, vested, unvested or outstanding in
the Participant’s favor, for the exclusive purpose of
implementing, administering and managing the Plan
(“Data”).
The Participant understands that Data will be transferred to
E*Trade or such other stock plan service provider as may be
selected by the Company in the future, which is assisting the
Company with the implementation, administration and management of
the Plan. The Participant understands that the recipients of the
Data may be located in the United States or elsewhere, and that the
recipients’ country (e.g., the United States) may have
different data privacy laws and protections than the
Participant’s country. The Participant understands that the
Participant may request a list with the names and addresses of any
potential recipients of the Data by contacting his or her local
human resources representative. The Participant authorizes the
Company, E*Trade and any other possible recipients which may assist
the Company (presently or in the future) with implementing,
administering and managing the Plan to receive, possess, use,
retain and transfer the Data, in electronic or other form, for the
sole purpose of implementing, administering and managing the
Participant’s participation in the Plan.
The Participant understands that he or she may, at any time,
view Data, request additional information about the storage and
processing of Data, require any necessary amendments to Data or
refuse or withdraw the consents herein, in any case without cost,
by contacting in writing his or her local human
resources
14
representative. The Participant understands,
however, that refusing or withdrawing his or her consent may affect
the Participant’s ability to participate in the Plan. For
more information on the consequences of refusal to consent or
withdrawal of consent, the Participant understands that he or she
may contact his or her local human resources
representative.
15.
Binding Agreement . Subject to the limitation on the
transferability of this Award contained herein, this Award
Agreement will be binding upon and inure to the benefit of the
heirs, legatees, legal representatives, successors and assigns of
the parties hereto.
16.
Additional Conditions to Issuance of Stock . The Company
will not be required to issue any certificate or certificates for
Shares hereunder prior to fulfillment of all the following
conditions: (a) the admission of such
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