Exhibit 10.52
[FORM OF]
CHANGE-IN-CONTROL SEVERANCE AGREEMENT
This Change-in-Control Severance Agreement (the "Agreement") is entered into
as of April 25, 2007 (the "Effective Date"), by and between -----------------
("Executive") and Ramtron International Corporation, a Delaware corporation
(the "Company").
Whereas, the Board of Directors of the Company (the "Board") has determined
that it is in the best interests of the Company and its stockholders to
assure that the Company will have the continued dedication of its executive
and senior officers notwithstanding the possibility or occurrence of a Change
in Control (as defined below) of the Company;
Whereas, the Board also believes that it is desirable to encourage
Executive's full attention and dedication to the Company and alleviate
uncertainty, and to provide Executive with compensation and benefits in the
event of a Change-in-Control and Executive's termination of employment under
the circumstances described in this Agreement;
Now, therefore, in consideration of the agreements contained herein and other
good and valuable consideration, the receipt of which is mutually
acknowledged, Executive and the Company hereby agree as follows:
1. Definitions. The following definitions shall apply for all purposes
under this Agreement:
(a) Affiliate. "Affiliate" shall have the meaning assigned to such term
in Rule 12b-2 promulgated under the Exchange Act.
(b) Change-in-Control. "Change-in-Control" means the consummation of a
transaction or series of transactions resulting in one or more of
the following events:
(i) The acquisition, directly or indirectly, in one or more
transactions, by any individual, person or group of persons,
within the meaning of Section 13(d)(3) or 14(d)(2) of the
Exchange Act (a "Person") of beneficial ownership (within the
meaning of Rule 13d-3 promulgated under the Exchange Act),
individually or in the aggregate, of fifty percent (50%) or
more of either (1) the outstanding shares of common stock of
the Company or (2) the combined voting power of the Company's
outstanding securities entitled to vote generally in the
election of directors; provided, however, that the following
transactions shall not constitute, or be deemed to cause a
Change-in-Control of the Company: (A) any increase in
percentage ownership by a Person to fifty percent (50%) or more
resulting solely from any acquisition of shares directly from
the Company or any acquisition of shares by the Company that
reduces the number of shares outstanding; or (B) any Business
Combination described in clauses (A) and (B) of Section
1(a)(iii) below;
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(ii) A change in the composition of the Board of the Company as a
result of which fewer than a majority of the directors are
Incumbent Directors. "Incumbent Directors" shall mean
directors who either: (A) are directors of the Company as of
the Effective Date hereof; (B) are elected, or nominated for
election, to the Board of the Company with the affirmative vote
of at least a majority of the directors of the Company who are
Incumbent Directors described in (A) above at the time of such
election or nomination; or (C) are elected, or nominated for
election, to the Board of the Company with the affirmative
votes of at least a majority of the directors of the Company
who are Incumbent Directors described in (B) above at the time
of such election or nomination. Notwithstanding the foregoing,
"Incumbent Directors" shall not include an individual whose
election or nomination is in connection with an actual or
threatened proxy contest relating to the election of directors
to the Company;
(iii) Consummation of a reorganization, merger or consolidation or
sale or other disposition of all or substantially all of the
assets of the Company (a "Business Combination"), in each case,
unless, following such Business Combination, (A) no Person,
individually or in the aggregate, nor any corporation resulting
from such Business Combination or any employee benefit plan (or
related trust) sponsored or maintained by the Company or such
corporation resulting from such Business Combination
beneficially owns, directly or indirectly, individually or in
the aggregate, fifty percent (50%) or more of the then
outstanding shares of common stock of the corporation resulting
from such Business Combination or the combined voting power of
the then outstanding voting securities of such corporation
except to the extent that such ownership existed prior to the
Business Combination, and (B) at least a majority of the
members of the Board of the corporation resulting from such
Business Combination were members of the Incumbent Board at the
time of the execution of the initial agreement, or of the
action of the Board, providing for such Business Combination;
or
(iv) Approval by the stockholders of the Company of the liquidation
or dissolution of the Company.
(c) Cause. "Cause" shall mean any of the actions relevant to Executive
committed by Executive (or omitted to be done by Executive) that
occur on or after the Effective Date:
(i) A conviction of or plea of "guilty" or "no contest" to a felony
under the laws of the United States or any state thereof;
(ii) Conviction of any crime constituting fraud, theft or
misappropriation of Company property, or of any other crime that
materially injures the Company's business or reputation;
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(iii) Any material violation or breach of the Company's Code of
Business Conduct and Ethics, as determined by the Board;
(iv) Willful or intentional failure by Executive to materially comply
with a specific direction by the Board; or
(v) Any serious misconduct or negligence in the course of
Executive's employment, as determined by the Board.
(d) Change-in-Control Period. "Change-in-Control Period" means the
twelve (12) month period immediately following the date of a Change
in Control under this Agreement, provided, however, that
notwithstanding anything in this Agreement to the contrary, if a
Change-in-Control occurs and not more than 60 days prior to the date
on which the Change-in-Control occurs, Executive's employment with
the Company is terminated by the Company, such termination of
employment will be deemed to be a termination of employment after a
Change-in-Control for purposes of this Agreement if Executive
reasonably demonstrates that such termination of employment (i) was
at the request of a third party who has taken steps reasonably
calculated to effect a Change-in-Control, or (ii) otherwise arose in
connection with or in anticipation of such Change-in-Control.
(e) Control. "Control" shall have the meaning assigned to such term in
Rule 12b-2 promulgated under the Exchange Act.
(f) Good Reason. "Good Reason" shall mean, without the express written
consent of Executive, the occurrence after a Change-in-Control of
any of the following circumstances, unless such circumstances are
fully corrected prior to the date of termination specified in a
notice of termination by Executive:
(i) the material diminishment of Executive's authority, duties or
responsibilities, or the assignment to Executive of any duties
inconsistent with Executive's authority, duties or
responsibilities from those in effect immediately prior to the
Change-in-Control;
(ii) a reduction in Executive's base salary as in effect immediately
prior to the Change-in-Control, or diminishment of Executive's
bonus opportunity at the Company;
(iii) a reduction by the Company in the kind or level of employee
benefits to which Executive was entitled to immediately prior
to such reduction with the result that Executive's overall
benefits package provided by the Company is materially reduced;
(iv) the Company requiring Executive to be based at any office or
location more than 50 miles the Company's principal
headquarters prior to the Change-in-Control event, except for
travel reasonably required in the performance of Executive's
responsibilities; or
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(v) the failure of the Company to obtain agreement from any
successor to assume and agree to perform this Agreement.
(g) Total Disability. "Total Disability" of Executive shall be deemed
to occur on the one-hundred and eightieth (180th) consecutive, or
non-consecutive calendar day, within any twelve (12) month period
that Executive is unable to perform the duties commensurate with
Executive's position with the Company due to physical or mental
disability or illness.
2. Severance Payment and Other Benefits.
(a) Eligibility for Severance Payment. Executive shall be entitled to
receive the severance payment (the "Severance Payment") and benefits
set forth in this Section 2 from the Company if any of the below
events occurs during the Change-in-Control Period:
(i) Executive resigns his employment with the Company for Good
Reason, which notice must be given by Executive to the Board
within seventy-five (75) days following the occurrence of the
event giving rise to Good Reason for termination;
(ii) The Company terminates Executive's employment with the Company
for any reason other than Cause; or
(iii) In the event of Executive's death or Total Disability.
(iv) In the event of Executive's "separation from service" (within
the meaning of Section 409A of the Code), due to Executive's
Total Disability.
(b) Severance Payment.
(i) For all purposes under this Agreement, upon Executive becoming
eligible for the Severance Payment as provided above, the
Company shall pay to Executive in cash an amount equal to (A)
Executive's base salary multiplied by two (2) plus (B) an
amount equal to the greater of (1) 200% of the bonus paid to
Executive for the preceding fiscal year or (2) 200% of the
target bonus for Executive approved by the Board for the fiscal
year during which the Change-in-Control occurs plus (C) an
amount equal to the difference between (1) the Company's
reasonable determination of present value of the continuation
of the benefits described in Section 2(e) for 24 months and (2)
the Company's reasonable determination of the present value of
the benefits Executive may receive under Section 2(e)(ii).
(ii) The Severance Payment shall be paid in equal monthly
installments over the twelve (12) month period commencing on
the date the Executive becomes eligible for the Severance
Payment as provided in Section 2(a). Notwithstanding the
foregoing, if the Executive is a "specified employee" (within
the meaning of Section 409A of the Code), and the Severance
Payment is made on account of the Executive's "separation from
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service" (within the meaning of Section 409A of the Code) and
would not meet the "short-term deferral" exemption under
Section 409A of the Code (or otherwise qualify for exemption
under Section 409A of the Code), then the Severance Payment
shall commence on the first business day next following the
first business day of the seventh month following the
Executive's "separation from service" (or, if earlier, the date
of death) and the total amount of monthly installment payments
to which such Executive would otherwise be entitled during the
six-month period following the date of such "separation from
service" shall also be paid on the first business day next
following the first business day of the seventh month following
such "separation from service" (or, if earlier, the date of
death).
(c) Accrued Compensation. In addition to the Severance Payment provided
above, Executive will also receive a lump cash payment on the date
of termination, of any accrued and unpaid salary through the date of
termination and/or bonuses earned for any completed performance
period but not yet paid and any earned, unused vacation time.
(d) Other Compensation Programs. A termination of employment as
described in this Section 2 will not affect any rights that
Executive may have pursuant to any other agreement, policy, plan,
program or arrangement of the Company providing for benefits, which
rights will be governed by the terms thereof. Notwithstanding any
provision to the contrary in any applicable plan, program or
agreement, upon the occurrence of a Change-in-Control, all
restricted stock or other equity incentive awards held by Executive
will become fully vested and all stock options held by Executive
will become fully exercisable.
(e) Health Coverage. If Executive is entitled to the Severance Payment
under Section 2(a), the Company shall reimburse Executive for the
full cost of any group health continuation coverage that the Company
is otherwise required to offer under the Consolidated Omnibus Budget
Reconciliation Act of 1986 ("COBRA") until the earlier of the date
that:
(i) Executive becomes covered by comparable health coverage offered
by another employer, or
(ii) Is eighteen months (18) months after the date of termination of
Executive's employment.
(f) Conditions. All payments and benefits provided under this Section 2
are conditioned on Executive's continuing compliance with this
Agreement (including, but not limited to Section 4 hereof) and
Executive's execution (and effectiveness) of a release of claims and
covenant not to ▇▇▇ substantially in the form provided in Exhibit A
upon termination of employment.
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3. Certain Additional Payments by the Company.
(a) Definitions. The following terms shall have the following meanings
for purposes of this Section 3:
(i) "Code" shall mean the Internal Revenue Code of 1986, as
amended.
(ii) "Excise Tax" shall mean the excise tax imposed by Section 4999
of the Code, together with any interest or penalties imposed
with respect to such excise tax.
(iii) "Parachute Value" of a Payment shall mean the present value as
of the date of the change of control for purposes of Section
280G of the Code of the portion of such Payment that
constitutes a "parachute payment" under Section 280G(b)(2), as
determined by the accounting firm for purposes of determining
whether and to what extent the Excise Tax will apply to such
Payment.
(iv) "Payment" shall mean any payment, distribution or other benefit
in the nature of compensation (within the meaning of Section
280G(b)(2) of the Code) to or for the benefit of Executive to
be paid or provided pursuant to this Agreement or any other
agreement contingent upon a change in control.
(v) "Safe Harbor Amount" shall mean 2.99 times Executive's "base
amount," within the meaning of Section 280G(b)(3) of the Code.
(vi) "Value" of a Payment shall mean the economic present value of a
Payment as of the date of the Change-in-Control for purposes of
Section 280G of the Code, as determined by the accounting firm
using the discount rate required by Section 280G(d)(4) of the
Code.
(b) Anything in this Agreement to the contrary notwithstanding and
except as set forth below, in the event it shall be determined that
any Payment would be subject to the Excise Tax, then Executive shall
be entitled to receive an additional payment (the "Excise Tax Gross-
Up Payment") in an amount such that, after payment by Executive of
all taxes (and any interest or penalties imposed with respect to
such taxes), including, without limitation, any income taxes (and
any interest and penalties imposed with respect thereto) and Excise
Tax imposed upon the Excise Tax Gross-Up Payment, Executive retains
an amount of the Excise Tax Gross-Up Payment equal to the Excise Tax
imposed upon the Payments.
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(c) Subject to the provisions of Section 3(d), all determinations
required to be made under this Section 3, including whether and when
an Excise Tax Gross-Up Payment is required, the amount of such
Excise Tax Gross-Up Payment and the assumptions to be utilized in
arriving at such determination, shall be made by such nationally
recognized accounting firm as may be selected by the Company and
reasonably acceptable to Executive; provided, that the accounting
firm's determination shall be made based upon "substantial
authority" within the meaning of Section 6662 of the Code. The
accounting firm shall provide detailed supporting calculations both
to the Company and Executive as is requested by the Company. All
fees and expenses of the accounting firm shall be borne solely by
the Company. Any Excise Tax Gross-Up Payment, as determined
pursuant to this Section 3, shall be paid by the Company to
Executive within five days of the receipt of the accounting firm's
determination. Any determination by the accounting firm shall be
binding upon the Company and Executive, unless the Company obtains
an opinion of outside legal counsel, based upon at least
"substantial authority" within the meaning of Section 6662 of the
Code, reaching a different determination, in which event such legal
opinion shall be binding upon the Company and Executive. As a result
of the uncertainty in the application of Section 4999 of the Code at
the time of the initial determination by the accounting firm
hereunder, it is possible that Excise Tax Gross-Up Payments will not
have been made by the Company that should have been made
("Underpayment"), consistent with the calculations required to be
made hereunder. In the event Executive is required to make a payment
of any Excise Tax after the initial determination, the accounting
firm shall determine the amount of the Underpayment that has
occurred and any such Underpayment shall be promptly paid by the
Company to or for the benefit of Executive. Notwithstanding the
foregoing, no Excise Tax Gross-Up Payment shall be paid later than
December 31 of the Executive's taxable year next following the
Executive's taxable year in which the Executive pays the taxes
(including the Excise Tax and any interest or penalties imposed with
respect to such taxes) related to such Excise Tax Gross-Up Payment.
(d) Executive shall notify the Company in writing of any claim by the
Internal Revenue Service that, if successful, would require the
payment by the Company of the Excise Tax Gross-Up Payment. Such
notification shall be given as soon as practicable, but no later
than 10 business days after Executive is informed in writing of such
claim. Executive shall apprise the Company of the nature of such
claim and the date on which such claim is requested to be paid.
Executive shall not pay such claim prior to the expiration of the
30-day period following the date on which Executive gives such
notice to the Company (or such shorter period ending on the date
that any payment of taxes with respect to such claim is due). If the
Company notifies Executive in writing prior to the expiration of
such period that the Company desires to contest such claim,
Executive shall:
(i) give the Company any information reasonably requested by the
Company relating to such claim,
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(ii) take such action in connection with contesting such claim as
the Company shall reasonably request in writing from time to
time, including, without limitation, accepting legal
representation with respect to such claim by an attorney
reasonably selected by the Company,
(iii) cooperate with the Company in good faith in order effectively
to contest such claim, and
(iv) permit the Company to participate in any proceedings relating
to such claim;
provided, however, that the Company shall bear and pay directly
all costs and expenses (including additional interest and
penalties) incurred in connection with such contest, and shall
indemnify and hold Executive harmless, on an after-tax basis, for
any Excise Tax or income tax (including interest and penalties)
imposed as a result of such representation and payment of costs and
expenses. Without limitation on the foregoing provisions of this
Section 3(d), the Company shall control all proceedings taken in
connection with such contest, and, at its sole discretion, may
pursue or forgo any and all administrative appeals, proceedings,
hearings and conferences with the applicable taxing authority in
respect of such claim and may, at its sole discretion, either direct
Executive to pay the tax claimed and ▇▇▇ for a refund or contest the
claim in any permissible manner, and Executive agrees to prosecute
such contest to a determination before any administrative tribunal,
in a court of initial jurisdiction and in one or more appellate
courts, as the Company shall determine; provided, however, that, if
the Company directs Executive to pay such claim and ▇▇▇ for a
refund, the Company shall advance the amount of such payment to
Executive, on an interest-free basis, and shall indemnify and hold
Executive harmless, on an after-tax basis, from any Excise Tax or
income tax (including interest or penalties) imposed with respect to
such advance or with respect to any imputed income in connection
with such advance; and provided, further, that any extension of the
statute of limitations relating to payment of taxes for the taxable
year of Executive with respect to which such contested amount is
claimed to be due is limited solely to such contested amount.
Furthermore, the Company's control of the contest shall be limited
to issues with respect to which the Excise Tax Gross-Up Payment
would be payable hereunder, and Executive shall be entitled to
settle or contest, as the case may be, any other issue raised by the
Internal Revenue Service or any other taxing authority.
(e) If, after the receipt by Executive of an Excise Tax Gross-Up Payment
or an amount advanced by the Company pursuant to Section 3(d),
Executive becomes entitled to receive any refund with respect to the
Excise Tax to which such Excise Tax Gross-Up Payment relates or with
respect to such claim, Executive shall (subject to the Company's
complying with the requirements of Section 3(d), if applicable)
promptly pay to the Company the amount of such refund (together with
any interest paid or credited thereon after taxes applicable
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thereto). If, after the receipt by Executive of an amount advanced
by the Company pursuant to Section 3(d), a determination is made
that Executive shall not be entitled to any refund with respect to
such claim and the Company does not notify Executive in writing of
its intent to contest such denial of refund prior to the expiration
of 30 days after such determination, then such advance shall be
forgiven and shall not be required to be repaid and the amount of
such advance shall offset, to the extent thereof, the amount of
Excise Tax Gross-Up Payment required to be paid.
(f) Notwithstanding any other provision of this Section 3, the Company
may, in its sole discretion, withhold and pay over to the Internal
Revenue Service or any other applicable taxing authority, for the
benefit of Executive, all or any portion of any Excise Tax Gross-Up
Payment, and Executive hereby consents to such withholding.
(g) Any other liability for unpaid or unwithheld Excise Taxes shall be
borne exclusively by the Company, in accordance with Section 3403 of
the Code. The foregoing sentence shall not in any manner relieve the
Company of any of its obligations under this Employment Agreement.
4. Non-Competition Agreement. During the course of Executive's employment
with the Company, Executive has gained access to or knowledge of, or has
worked on the development or creation of, confidential and proprietary
information within the Restricted Field (as defined below), including: (a)
supplier and customer lists and supplier and customer-specific information;
(b) marketing plans and proposals; (c) product and process designs, formulas,
processes, plans, drawings and concepts; (d) research and development data
and materials, including those relating to the research and development of
products, materials or manufacturing and other processes; (e) financial and
accounting records; and (f) other information with respect to the Company and
its subsidiaries which if divulged to the Company's competitors would impair
the Company's ability to compete in the marketplace (such information is
collectively referred to as "Proprietary Information"). The "Restricted
Field," as used herein means the field of non-volatile memory technologies
that are novel, including, by way of example, FRAM, MRAM, RRAM, ovonics and
phase-change, but excluding FLASH and EEPROM.
Executive agrees that during his employment with the Company and, if
Executive has received a Severance Payment pursuant to this Agreement, for a
period of 24 months following termination of employment, Executive shall not
directly or indirectly engage in any business activity for the development,
production or sale of any product, material or process within the Restricted
Field, whether on Executive's own behalf or as an employee, consultant or
independent contractor of any other person or entity within the Americas,
Canada, Europe or the Asia Pacific region or otherwise utilize Proprietary
Information or his or her relationships with Company customers, suppliers or
others to engage or facilitate others to engage in any facet of the business
associated with the Restricted Field.
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The non-competition covenant set forth above will not impose undue hardship
on Executive and is reasonable in both geographic scope and duration in view
of: (a) the Company's legitimate interest in protecting its Proprietary
Information, the disclosure of which to the Company's competitors would
substantially and unfairly impair the Company's ability to compete in the
marketplace or substantially and unfairly benefit the Company's competitors;
(b) the specialized knowledge and experience gained by Executive during the
course of Executive's employment with the Company; (c) the fact that the
services rendered by Executive on behalf of the Company were specialized,
unique and extraordinary; (d) the fact that the Company directly competes
within the Americas, Canada, Europe and the Asia Pacific region in the sale,
production and development of products, materials or processes; and (e) the
consideration, including the Severance Payment, provided by the Company to
Executive as provided herein.
Executive shall not disclose or divulge Proprietary Information to any person
or entity at any time during the course of Executive's employment with the
Company or at any time thereafter, except as may be required in the ordinary
course and good-faith performance of Executive's employment with the Company.
At the time of termination of Executive's employment with the Company for any
reason, or at such time as the Company may request, Executive shall promptly
deliver or return, without retaining any copies, all Proprietary Information
in Executive's possession or control, whether in the form of computer-
generated documents or otherwise, and, pursuant to the Company's
instructions, shall erase, destroy or return all stored data, whether stored
on computer or otherwise, and shall not attempt to use or restore any such
data.
Following termination of Executive's employment, Executive will not employ,
hire, solicit, induce or identify for employment or attempt to employ, hire,
solicit, induce or identify for employment, directly or indirectly, any
employee(s) of the Company to leave his or her employment and become an
employee, consultant or representative of any other entity, including but not
limited to Executive's new employer, if any.
The non-competition and disclosure covenants set forth above are of a
special, unique, extraordinary and intellectual character, which gives them a
peculiar value, the loss of which cannot be reasonably or adequately
compensated for in damages in an action at law. A breach by Executive of the
provisions set forth in this Section 4 of this Agreement will cause the
Company great and irreparable injury and damage. Therefore, the Company
shall be entitled to the remedies of injunction, specific performance and
other equitable relief to prevent a breach of this Agreement by Executive.
This paragraph shall not, however, be construed as a waiver of any of the
rights which the Company may have for damages or otherwise.
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5. Successors.
(a) Company's Successors. This Agreement shall inure to the benefit of
and be binding upon the Company and its successors and assigns. Any
successor (whether direct or indirect and whether by purchase,
merger, consolidation or otherwise) to all or substantially all of
the Company's business and/or assets, shall be obligated to perform
this Agreement, and the Company shall require any such successor to
assume expressly and agree to perform this Agreement, in the same
manner and to the same extent as the Company would be required to
perform it in the absence of a succession. As used in this
Agreement, "Company" shall mean the Company as defined herein and
any successor to its business and/or assets as aforesaid which
assumes and agrees to perform this Agreement by operation of law,
contract or otherwise.
(b) Executive's Successors. This Agreement and all rights of Executive
hereunder shall inure to the benefit of, and be enforceable by,
Executive's personal or legal representatives, executors,
administrators, successors, heirs, distributes, devisees and
legatees.
6. Legal Fees and Expenses/Funding of Benefits. It is the intent of the
Company that Executive not be required to incur legal fees and the related
expenses associated with the interpretation, enforcement or defense of
Executive's rights in connection with any dispute arising under this
Agreement because the cost and expense thereof would substantially detract
from the benefits intended to be extended to Executive hereunder.
Accordingly, if it should appear to Executive that the Company has failed to
comply with any of its obligations under this Agreement or in the event that
the Company or any other person takes or threatens to take any action to
declare this Agreement void or unenforceable, or institutes any proceeding
designed to deny, or to recover from, Executive the benefits provided or
intended to be provided to Executive hereunder, the Company irrevocably
authorizes Executive from time to time to retain counsel of Executive's
choice, at the expense of the Company as hereafter provided, to advise and
represent Executive in connection with any such dispute or proceeding.
Notwithstanding any prior attorney-client relationship between the Company
and such selected counsel, the Company irrevocably consents to Executive's
entering into an attorney-client relationship with such counsel, and in that
connection the Company and Executive agree that a confidential relationship
will exist between Executive and such counsel, provided, however, that this
consent shall not apply to any counsel with which the Company has an existing
attorney-client relationship, nor as to any counsel as to which the Company
previously had an attorney-client relationship and pursuant to which such
counsel may have received confidential information relating to the Company or
Executive's performance of this Agreement. Such payments will be made within
five business days after delivery of Executive's written requests for
payment, accompanied by such evidence of fees and expenses incurred as the
Company may reasonably require, provided, however, that no such payments
shall be made later than December 31 of the Executive's taxable year
following the taxable year in which the fees and expenses were incurred. The
Company will pay and be solely financially responsible for any and all
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attorneys' and related fees and expenses incurred by Executive in connection
with any of the foregoing, provided, however, that in the event Executive
shall be finally determined in accordance with Section 7(g) to not be
entitled to payments and benefits under this Agreement, than Executive shall
immediately repay to the Company all attorneys' and related fees and expenses
paid by the Company on Executive's behalf pursuant to this Section 6.
7. Miscellaneous Provisions.
(a) Notice. Notices and all other communications contemplated by this
Agreement shall be in writing and shall be deemed to have been duly
given when personally delivered or when mailed by U.S. registered or
certified mail, return receipt requested and postage prepaid. In
the case of Executive, mailed notices shall be addressed to him at
the home address which he most recently communicated to the Company
in writing. In the case of the Company, mailed notices shall be
addressed to Ramtron International Corporation, ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇, and all notices shall be directed
to the attention of its Corporate Secretary.
(b) Amendment; Waiver; Remedies. No provision of this Agreement may be
amended, modified, waived or discharged unless the amendment,
modification, waiver or discharge is agreed to in writing and signed
by Executive (or Executive's personal or legal representative(s),
executor(s), administrator(s), successor(s), heir(s), distribute(s),
devisee(s) and legatee(s)) and by two (2) authorized officers of the
Company (other than Executive). No waiver by either party of any
breach of, or of compliance with, any condition or provision of this
Agreement by the other party shall be considered a waiver of any
other condition or provision or of the same condition or provision
at another time. Executive's or the Company's failure to insist
upon strict compliance with any provision of this Agreement or the
failure to assert any right of Executive or the Company may have
hereunder, including the right of Executive to terminate employment
for any reason pursuant to Section 2(a) and therefore become
entitled to receive the Severance Payment, shall not be deemed to be
a waiver of such provision or right or any other provision or right
of this Agreement. The rights and remedies of the parties to this
Agreement are cumulative and not alternative of any other remedy
conferred hereby or by law or equity, and the exercise of any remedy
will not preclude the exercise of any other.
(c) Entire Agreement. This Agreement contains all the legally binding
understandings and agreements between Executive and the Company
pertaining to the subject matter of this Agreement and supersedes
all such agreements, whether oral or in writing, previously entered
into between the parties. In the event of any inconsistency,
conflict or ambiguity as to the rights and obligations of the
parties under this Agreement and any other agreement entered into by
the Company and Executive, the terms of this Agreement shall control
unless otherwise expressly provided in such other agreement, if any,
and the parties further acknowledge and agree that there shall not
be any duplication of benefits or payments under this Agreement and
any other agreement, including any employment agreement.
Page-12
(d) Withholding Taxes. All payments made under this Agreement shall be
subject to reduction to reflect taxes required to be withheld by
law.
(e) Choice of Law. The validity, interpretation, construction and
performance of this Agreement shall be governed by the laws of the
State of Colorado without regard to the conflicts of laws principles
thereof.
(f) Severability. The invalidity or unenforceability of any provision
or provisions of this Agreement shall not affect the validity or
enforceability of any other provision hereof, which shall remain in
full force and effect.
(g) Arbitration. Any dispute, controversy or claim between the parties
arising out of or relating to this Agreement (or any subsequent
amendments thereof or waiver thereto), including as to its
existence, enforceability, validity, interpretation, performance,
breach or damages, shall be settled by binding arbitration in
Colorado Springs, Colorado in accordance with applicable rules then
in effect of the American Arbitration Association (the
"Association"). All proceedings and documents prepared in
connection with any arbitration under this Agreement shall
constitute confidential information and, unless otherwise required
by law, the contents or the subject matter thereof shall not be
disclosed to any Person other than the parties to the proceedings,
their counsel, witnesses and experts, the arbitrator, and, if court
enforcement of the award is sought, the court and court staff
hearing such matter.
(h) No Assignment. The Company may not assign its rights and
obligations under this Agreement, unless such assignment is made in
compliance with the second sentence of Section 5(a). This Agreement
may not be assigned by Executive otherwise than by will or the laws
of descent and distribution.
(i) Interpretation. When a reference is made in this Agreement to
sections, subsections or clauses, such references shall be to a
section, subsection or clause of this Agreement, unless otherwise
indicated. The words "herein" and "hereof" mean, except where a
specific section, subsection or clause reference is expressly
indicated, the entire Agreement rather than any specific section,
subsection or clause. The words "include", "includes" and
"including" when used in this Agreement shall be deemed to in each
case to be followed by the words "without limitation". The headings
contained in this Agreement are for reference purposes only and
shall not affect in any way the meaning or interpretation of this
Agreement.
(j) Counterparts. This Agreement may be executed in one or more
counterparts, and by the different parties hereto in separate
counterparts, each of which when executed shall be deemed to be an
original, but all of which taken together shall constitute one and
the same agreement.
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(k) Section 409A of the Code. To the extent applicable, it is intended
that this Agreement complies with the provisions of Section 409A of
the Code. This Agreement shall be administered in a manner
consistent with this intent, and any provision that would cause this
Agreement to fail to satisfy Section 409A of the Code shall have no
force and effect until amended to comply with Section 409A of the
Code (which amendment may be retroactive to the extent permitted by
Section 409A of the Code and may be made by the Company without the
consent of Executive). Notwithstanding the foregoing, the Company
shall not be obligated to guarantee any particular tax result for
Executive with respect to any payment or benefit provided to
Executive hereunder, and Executive shall be responsible for any
taxes imposed on Executive in connection with any such payment or
benefit.
8. Term of Agreement. This Agreement shall continue in effect from the
Effective Date hereof until the two (2) year anniversary of the Effective
Date and then shall automatically renew for successive one (1) year terms
unless notice of non-renewal is given 90 days prior to such renewal date;
provided, however, that, notwithstanding the foregoing, this Agreement shall
continue in effect for a period of thirteen (13) months after a Change in
Control, if such Change-in-Control shall have occurred during the above term
of this Agreement, and, further, this Agreement if applicable, shall continue
thereafter, until all payments and provision of benefits under Section 2 have
been provided to Executive, if such Change-in-Control shall have occurred
during the above initial two (2) year term of this Agreement and Executive
becomes entitled to such payments and benefits hereunder. This Agreement
shall terminate without notice or action if, prior to the Change-in-Control
Period, Executive's employment with the Company is terminated.
IN WITNESS WHEREOF, each of the parties has executed this Agreement as of the
day and year first above written.
EXECUTIVE
----------------------------
Name: ---------------------
RAMTRON INTERNATIONAL CORPORATION
By: -----------------------
Its: Chairman of the Board
and
By: -----------------------
Its: ----------------------
Page-14
Exhibit A
Form of Release of Claims and Covenant Not to ▇▇▇
In consideration of the payments and other benefits that Ramtron
International Corporation, a Delaware corporation (the "Company"), is
providing to ------------------- ("Executive") under the Change-in-Control
Severance Agreement entered into by and between Executive and the Company,
dated as of -------------------, 2007, Executive, on his/her own behalf and
on behalf of Executive's representatives, agents, heirs, executors,
administrators and assigns, hereby waives, releases, discharges and promises
not to assert any claims, demands, actions, rights or obligations of every
kind and nature, whether known or unknown, suspected or unsuspected that
Executive ever had, now has or might have as of the date of Executive's
termination of employment with the Company against the Company or its
predecessors, affiliates, subsidiaries, directors, officers, employees,
agents, insurers, successors, or assigns (including all such persons or
entities that have a current and/or former relationship with the Company) for
any claims arising from or related to Executive's employment with the
Company, its parent or any of its affiliates and subsidiaries and the
termination of that employment.
These claims include, but are not limited to: any and all claims, causes of
action, suits, claims for attorneys' fees, damages or demand; all claims of
discrimination, on any basis, including, without limitation, claims of race,
sex, age, ancestry, national origin, religion and/or disability
discrimination; any and all claims arising under federal, state and/or local
statutory, or common law, such as, but not limited to, Title VII of the Civil
Rights Act, as amended, including the amendments to the Civil Rights Act of
1991, the Employee Retirement Income Security Act, the Equal Pay Act, the
Americans with Disabilities Act, the Age Discrimination in Employment Act of
1967, the Older Workers Benefit Protection Act, any U.S. State laws against
discrimination; any and all claims arising under any other state and/or local
anti-discrimination statute or any other federal, state or local
constitution, law, regulation or ordinance governing the terms and conditions
of employment or the termination of employment; and the law of contract and
tort; and any and all claims, demands and causes of action, including, but
not limited to, breach of public policy, unjust discharge, wrongful
discharge, intentional or negligent infliction of emotional distress,
misrepresentation, negligence or breach of contract. Executive further
waives, releases, and promises never to assert any such claims,
notwithstanding any belief Executive has no such claims.
Executive also agrees not to initiate or pursue any complaint or charge
against the Company, its affiliates or any of the released parties identified
above with any local, state or federal agency or court for the purpose of
recovering damages on Executive's own behalf for any claims of any type
Executive might have against the Company based on any act or event occurring
on or before the effective date of this release, including claims based on
future effects of any past acts. Additionally, Executive agrees not to
accept any individualized relief arising out of suits brought by any other
party on Executive's behalf. Executive also represents that Executive has
not filed or initiated any such complaint or charge against the Company or
any Company affiliate or released party, and Executive acknowledges that the
Company is relying on such representations in entering into the Agreement
with Executive.
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Executive understands that the claims Executive is releasing do not include
rights or claims which may arise out of acts occurring after the effective
date of this release which do not in any way relate to the facts and
circumstances of this release or Executive's employment relationship with the
Company.
Executive also understands that the above provisions do not preclude
Executive from instituting an action to enforce the terms of the Agreement,
or from challenging the validity of the Agreement.
Furthermore, Executive acknowledges that this waiver and release is knowing
and voluntary and that the consideration given for this waiver and release is
in addition to anything of value to which Executive was already entitled.
Executive acknowledges that there may exist facts or claims in addition to or
different from those which are now known or believed by Executive to exist.
Nonetheless, this Agreement extends to all claims of every nature and kind
whatsoever, whether known or unknown, suspected or unsuspected, past or
present, and Executive further waives all rights under Section 1542 of the
California Civil Code, as applicable, which section Executive acknowledges to
be fully understood by him or her and which Section states:
"A general release does not extend to claims which the creditor does not know
or suspect to exist in his favor at the time of executing the release, which
if known by him must have materially affected his settlement with the
debtor."
FOR EXECUTIVES AGE 40 OR OLDER. Executive further acknowledges that he/she
has been advised by this writing that:
- Executive should consult with an attorney prior to executing this
release;
- Executive has at least twenty-one (21) days within which to consider
this release;
- Executive has up to seven (7) days following the execution of this
release, to revoke the release; and to revoke, Executive must deliver to
the Company a written statement of revocation by hand-delivery or
registered/certified mail, return receipt requested. To be effective
the Company must receive this revocation by the close of business on the
seventh (7th) day after execution of this release; and
- this release shall not be effective until such seven (7) day revocation
period has expired.
- Executive agrees that the release set forth above shall be and remain in
effect in all respects as a complete general release as to the matters
released.
- this release shall not be effective until such seven (7) day revocation
period has expired.
Page-16
- Executive agrees that the release set forth above shall be and remain in
effect in all respects as a complete general release as to the matters
released.
EXECUTIVE
Name: ---------------------
Date: ---------------------
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