ex10_2.htm


    


    EXHIBIT
      10.2

     

    MICROCHIP
      TECHNOLOGY INCORPORATED

     

    CHANGE
      OF CONTROL SEVERANCE AGREEMENT

     

     

    This
      Change of Control Severance Agreement (the “Agreement”) is made and entered into
      by and between _______________ (the “Employee”) and Microchip Technology
      Incorporated (the “Company”), effective as of __________________ (the “Effective
      Date”).

     

    RECITALS

     

        1.           It
      is expected that the Company from time to time will consider the possibility
      of
      an acquisition by another company or other change of control.  The
      Board of Directors of the Company (the “Board”) recognizes that such
      consideration can be a distraction to the Employee and can cause the Employee
      to
      consider alternative employment opportunities.  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 and objectivity
      of
      the Employee, notwithstanding the possibility, threat or occurrence of a Change
      of Control (as defined herein) of the Company.

     

        2.           The
      Board believes that it is in the best interests of the Company and its
      stockholders to provide the Employee with an incentive to continue his or her
      employment and to motivate the Employee to maximize the value of the Company
      upon a Change of Control for the benefit of its stockholders.

     

        3.           The
      Board believes that it is imperative to provide the Employee with certain
      severance benefits upon the Employee’s termination of employment following a
      Change of Control.  These benefits will provide the Employee with
      enhanced financial security and incentive and encouragement to remain with
      the
      Company notwithstanding the possibility of a Change of Control.

     

        4.           Certain
      capitalized terms used in the Agreement are defined in Section 5
      below.

    


    AGREEMENT

    


    NOW,
      THEREFORE, in consideration of the mutual covenants contained herein, the
      parties hereto agree as follows:

     

        1.           Term
      of Agreement.  This Agreement shall terminate upon the date that
      all of the obligations of the parties hereto with respect to this Agreement
      have
      been satisfied.

     

        2.           At-Will
      Employment.  The Company and the Employee acknowledge that the
      Employee’s employment is and shall continue to be at-will, as defined under
      applicable law, except as may otherwise be specifically provided under the
      terms
      of any written formal employment agreement or offer letter between the Company
      and the Employee (an “Employment Agreement”).  If the Employee’s
      employment terminates prior to the Change of Control Period, the Employee shall
      not be entitled to any payments, benefits, damages, awards or compensation
      other
      than as provided by this Agreement, or under his or her Employment Agreement
      if
      any exists in writing, or as may otherwise be available in accordance with
      the
      Company’s established employee plans.


    
      
        
        

      

      
        
        

        
          

        

      

       

    

        3.           Severance
      Benefits.

    


    (a)           Benefits
      Following Termination During Change of Control Period.  Upon
      termination of employment for any reason other than for “Cause” (as defined
      herein) during the Change of Control Period the Employee shall receive the
      following benefit:

     

    (i)         Equity
      Compensation Acceleration.  One hundred percent (100%) of the
      Employee’s outstanding stock options, stock appreciation rights, restricted
      stock units and other Company equity compensation awards (the “Equity
      Compensation Awards”) shall immediately vest and become
      exercisable.  Any Company stock options and stock appreciation rights
      shall remain exercisable following the Employee’s employment termination for the
      period prescribed in the respective option and stock appreciation right
      agreements.

     

    (b)           Involuntary
      Termination Other than for Cause, Voluntary Termination for Good Reason During
      the Change of Control Period.  If within the three-month period
      preceding or any time following a Change of Control (the “Change of Control
      Period”), (i) the Employee terminates his or her employment with the Company (or
      any parent or subsidiary of the Company) for “Good Reason” (as defined herein)
      or (ii) the Company (or any parent or subsidiary of the Company) terminates
      the
      Employee’s employment for other than “Cause” (as defined herein), and the
      Employee signs, and does not revoke, a standard release of claims with the
      Company in a form acceptable to the Company (the “Release”), then the Employee
      shall receive the following severance from the Company:

     

    (i)         Severance
      Payment.  The Employee shall be entitled to receive a lump-sum
      severance payment (less applicable withholding taxes) equal to one hundred
      percent of the Employee’s annual base salary (as in effect immediately prior to
      (A) the Change of Control, or (B) the Employee’s termination of employment,
      whichever is greater) plus one hundred percent (100%) of the Employee’s target
      bonuses for which the Employee was or would have been eligible (for the fiscal
      year in which the Change of Control or the Employee’s termination occurs,
      whichever is greater.)

     

    (ii)         Continued
      Employee Benefits.  Reimbursement of Employee’s health, dental,
      vision, and life insurance coverage at the same level of coverage as was
      provided to such Employee immediately prior to termination and at the same
      ratio
      of Company premium subsidy to Employee premium payment as was in effect
      immediately prior to termination (the “Company-Paid Coverage”).  If
      such coverage included the Employee’s eligible dependents immediately prior to
      termination, such dependents shall also be covered at Company
      expense.  Company-Paid Coverage shall continue until the earlier of
      (A) twelve (12) months from the date of termination, or (B) the date upon which
      the Employee and his dependents become covered under another employer’s group
      health, dental, vision, long-term disability or life insurance plans that
      provide Employee and his dependents with comparable benefits and levels of
      coverage; provided, however that if such reimbursement results in the imposition
      of additional taxes to the Employee under Section 409A of the Internal Revenue
      Code of 1986, as amended (the “Code”), Employee shall be paid an additional full
      gross-up for such additional taxes, so that he is in the same position, on
      an
      after-tax basis, as if such taxes did not apply.  For purposes of
      Title X of the Consolidated Budget Reconciliation Act of 1985 (“COBRA”), the
      date of the “qualifying event” for Employee and his or her dependents shall be
      the date upon which the Company-Paid Coverage terminates.  Coverage in
      this section is dependent on the valid and timely election of continued COBRA
      coverage under applicable law.


    
      
        
        

      

      
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               (c)           Timing
      of Severance Payments.  Except as otherwise provided herein, the
      severance payment to which Employee is entitled shall be paid by the Company
      to
      Employee in cash and in full, not later than ten (10) calendar days after the
      effective date of the Release.  If the Employee should die before all
      amounts have been paid, such unpaid amounts shall be paid in a lump-sum payment
      (less any withholding taxes) to the Employee’s designated beneficiary, if
      living, or otherwise to the personal representative of the Employee’s
      estate.

     

    (d)           Voluntary
      Resignation.  If the Employee’s employment with the Company
      terminates during the Change of Control Period voluntarily by the Employee
      other
      than for Good Reason, then the Employee shall not be entitled to receive
      severance or other benefits except for those described in 3(a)(i) and as may
      then be established under the Company’s then existing severance and benefits
      plans and practices or pursuant to other written agreements with the
      Company.

     

    (e)           Termination
      for Cause; Termination Prior to Change of Control Period.  In the
      event the Employee’s employment is terminated for Cause, or for any reason prior
      to the Change of Control Period, then the Employee shall not be entitled to
      receive severance and any other benefits except as may then be established
      under
      the Company’s existing written severance and benefits plans and practices or
      pursuant to other written agreements with the Company.

     

    (f)           Internal
      Revenue Code Section 409A.   Notwithstanding any other
      provision of this Agreement, if the Employee is a “key employee” under Code
      Section 409A and a delay in making any payment or providing any benefit under
      this Agreement is required by Code Section 409A and any Treasury Regulations,
      and IRS guidance thereunder, or necessary in the good faith judgment of the
      Company, to avoid the Employee incurring additional tax under Section 409A,
      such
      payments shall not be made until the end of six (6) months following the date
      of
      the Employee’s separation from service in accordance with Code Section
      409A.

     

    4.           Golden
      Parachute Excise Tax.

     

    (a)           Parachute
      Payment Full Gross-Up.  In the event that the benefits provided
      for in this agreement or otherwise payable to Employee, including vesting
      acceleration upon a change of control pursuant to Company equity plans or any
      Employment Agreement which may exist (i) constitute “parachute payments”
within the meaning of Section 280G of the Code, (ii) are subject to the
      excise tax imposed by Section 4999 of the Code, then (A) the benefits shall
      be
      delivered in full, and (B) the Employee shall receive a payment from the Company
      sufficient to pay such excise tax plus an additional payment from the Company
      sufficient to pay the excise tax and federal and state income and employment
      taxes arising from the payments made by the Company to Employee pursuant to
      this
      sentence.

     

    (b)           280G
      Determinations.  Unless the Company and the Employee otherwise agree in
      writing, the determination of Employee’s excise tax liability and the amount
      required to be paid under this Section 4 shall be made in writing by a national
      “Big Four” accounting firm selected by the Company (the
“Accountants”).  For purposes of making the calculations required by
      this Section 4, the Accountants may make reasonable assumptions and
      approximations concerning applicable taxes and may rely on reasonable, good
      faith interpretations concerning the application of Sections 280G and 4999
      of
      the Code.  The Company and the Employee shall furnish to the
      Accountants such information and documents as the Accountants may reasonably
      request in order to make a determination under this Section.  The
Company
      shall bear all costs the Accountants may reasonably incur in connection with
      any
      calculations contemplated by this Section 4.


    
      
        
        

      

      
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      5.           Definition
      of Terms.  The following terms referred to in this Agreement shall
      have the following meanings:

     

    (a)           Cause.  “Cause”
      shall mean (i) a willful act of personal dishonesty taken by the Employee
      in connection with his responsibilities as an employee and intended to result
      in
      substantial personal enrichment of the Employee, (ii) Employee being
      convicted of, or pleading nolo contendere to, a felony that is materially and
      demonstrably injurious to the Company, and (iii) following delivery to the
      Employee of a written demand for performance from the Company which describes
      the basis for the Company’s reasonable belief that the Employee has not
      substantially performed his duties, continued violations by the Employee of
      the
      Employee’s obligations to the Company which are demonstrably willful and
      deliberate on the Employee’s part.

     

    For
      the
      purposes of this Section 5(a), no act or failure to act shall be considered
      “willful” unless done or omitted to be done in bad faith and without reasonable
      belief that the act or omission was in or not opposed to the best interests
      of
      the Company.  Any act or failure to act based upon authority given
      pursuant to a resolution duly adopted by the Board of Directors of the Company
      or based upon the advice of counsel for the Company shall be conclusively
      presumed to be done or omitted to be done in good faith and in the best
      interests of the Company.  Notwithstanding anything herein to the
      contrary, the Employee shall not be deemed to have been terminated for Cause
      unless and until there shall have been delivered to the Employee a copy of
      a
      resolution duly adopted by the affirmative vote of not less than three-quarters
      of the entire membership of the Board of Directors of the Company at a meeting
      of the Board called and held for the purpose (after reasonable notice to the
      Employee and an opportunity for the Employee with Employee’s counsel to be heard
      before the Board) finding that in the good faith opinion of the Board the
      Employee was properly terminated for Cause.

     

    (b)           Change
      of Control.  “Change of Control” means the occurrence of any of
      the following:

     

    (i)         Any
      “person” (as such term is used in Sections 13(d) and 14(d) of the Securities
      Exchange Act of 1934, as amended) becomes the “beneficial owner” (as defined in
      Rule 13d-3 under said Act), directly or indirectly, of securities of the Company
      representing fifty percent (50%) or more of the total voting power represented
      by the Company’s then outstanding voting securities; or

     

    (ii)         A
      change in the composition of the Board of Directors 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 date hereof, or (B) are elected, or
      nominated for election, to the Board of Directors with the affirmative votes
      (either by a specific vote or by approval of the proxy statement of the Company
      in which such person is named as a nominee for election as a director without
      objection to such nomination) of at least three-quarters of the Incumbent
      Directors at the time of such election or nomination (but 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 of the Company);
      or


    
      
        
        

      

      
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    (iii)          The
      consummation 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) at least fifty percent (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; or

     

    (iv)         The
      consummation of the sale, lease or other disposition by the Company of all
      or
      substantially all the Company’s assets.

     

    (c)           Good
      Reason.  “Good Reason” means without the Employee’s express
      written consent (i) a material reduction of the Employee’s duties, title,
      authority or responsibilities, relative to the Employee’s duties, title,
      authority or responsibilities as in effect immediately prior to such reduction,
      or the assignment to Employee of such reduced duties, title, authority or
      responsibilities, including a reduction in duties, title, authority or
      responsibilities solely by virtue of the Company being acquired and made part
      of
      a larger entity; (ii) a substantial reduction of the facilities and perquisites
      (including office space and location) available to the Employee immediately
      prior to such reduction; (iii) a reduction by the Company in the base salary
      or
      target bonus opportunity of the Employee as in effect immediately prior to
      such
      reduction; (iv) a material reduction by the Company in the kind or level of
      benefits to which the Employee was entitled immediately prior to such reduction
      with the result that such Employee’s overall benefits package is significantly
      reduced; (v) the relocation of the Employee to a facility or a location more
      than thirty (30) miles from the one at which Employee is then presently
      employed.

     

    6.           Successors.

     

    (a)           The
      Company’s Successors.  Any successor to the Company (whether
      direct or indirect and whether by purchase, merger, consolidation, liquidation
      or otherwise) to all or substantially all of the Company’s business and/or
      assets shall assume the obligations under this Agreement and agree expressly
      to
      perform the obligations under this Agreement in the same manner and to the
      same
      extent as the Company would be required to perform such obligations in the
      absence of a succession.  For all purposes under this Agreement, the
      term “Company” shall include any successor to the Company’s business and/or
      assets which executes and delivers the assumption agreement described in this
      Section 6(a) or which becomes bound by the terms of this Agreement by operation
      of law.

     

    (b)           The
      Employee’s Successors.  The terms of this Agreement and all rights
      of the Employee hereunder shall inure to the benefit of, and be enforceable
      by,
      the Employee’s personal or legal representatives, executors, administrators,
      successors, heirs, distributees, devisees and legatees.

     

    7.           Notice.

     

    (a)           General.  All
      notices and other communications required or permitted hereunder shall be in
      writing, shall be effective when given, and shall in any event be deemed to
      be
      given upon receipt or, if earlier, (i) five (5) days after deposit
      with the U.S. Postal Service or other applicable postal service, if delivered
      by
      first class mail, postage prepaid, (ii) upon delivery, if delivered by
      hand, (iii) one (1) business day after the business day of deposit with
      Federal Express or similar overnight courier, freight prepaid or
      (iv) one (1) business 


    
      
        
        

      

      
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    day
      after
      the business day of facsimile transmission, if delivered by facsimile
      transmission with copy by first class mail, postage prepaid, and shall be
      addressed (A) if to Employee, at his or her
      last known residential address and (B) if to the
      Company, at the address of its principal corporate offices
      (attention:  Secretary), or in any such case at such other address as
      a party may designate by ten (10) days’ advance written notice to the other
      party pursuant to the provisions above.

     

    (b)           Notice
      of Termination.  Any termination by the Company for Cause or by
      the Employee for Good Reason or as a result of a voluntary resignation shall
      be
      communicated by a notice of termination to the other party hereto given in
      accordance with Section 7(a) of this Agreement.  Such notice shall
      indicate the specific termination provision in this Agreement relied upon,
      shall
      set forth in reasonable detail the facts and circumstances claimed to provide
      a
      basis for termination under the provision so indicated, and shall specify the
      termination date (which shall be not more than thirty (30) days after the giving
      of such notice).  The failure by the Employee to include in the notice
      any fact or circumstance which contributes to a showing of Good Reason shall
      not
      waive any right of the Employee hereunder or preclude the Employee from
      asserting such fact or circumstance in enforcing his or her rights
      hereunder.

     

    8.           Miscellaneous
      Provisions.

     

    (a)           No
      Duty to Mitigate.  The Employee shall not be required to mitigate
      the amount of any payment contemplated by this Agreement, nor shall any such
      payment be reduced by any earnings that the Employee may receive from any other
      source, except as set forth in Section 3(b)(ii)(B).

     

    (b)           Waiver.
      No provision of this Agreement shall be modified, waived or discharged unless
      the modification, waiver or discharge is agreed to in writing and signed by
      the
      Employee and by an authorized officer of the Company (other than the
      Employee).  Employee and the Company agree to work in good faith to
      consider amendments to this Agreement which are necessary or appropriate to
      avoid imposition of any additional tax or income recognition under Section
      409A
      prior to the actual payment of amounts to the Employee. The parties agree to
      cooperate with each other and to take reasonably necessary steps in this
      regard.  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.

     

    (c)           Headings.  All
      captions and section headings used in this Agreement are for convenient
      reference only and do not form a part of this Agreement.

     

    (d)           Entire
      Agreement.  This Agreement, along with other written agreements
      relating to the subject matter hereof between Employee and a duly authorized
      Company officer constitute the entire agreement of the parties hereto and
      supersede in their entirety all prior representations, understandings,
      undertakings or agreements (whether oral or written and whether expressed or
      implied) of the parties with respect to the subject matter hereof.

     

    (e)           Choice
      of Law; Arbitration.  The validity, interpretation, construction
      and performance of this Agreement shall be governed by the laws of the State
      of
      Arizona.  Any dispute or controversy arising under or in connection
      with this Agreement shall be settled exclusively by arbitration in Phoenix,
      Arizona, by three arbitrators in accordance with the then current rules of
      the
      American Arbitration Association. The prevailing party in any arbitration shall
      be entitled to injunctive relief to enforce the arbitration award. 


    
      
        
        

      

      
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    The
      parties agree to waive their right to have any dispute regarding this Agreement
      resolved in a court of law by judge or jury.  The Judgment may be
      entered on the arbitrator’s award in any court having
      jurisdiction.  This Section shall not prevent either party from
      seeking injunctive relief (or any other provisional remedy) relating to
      employee’s obligations under this Agreement. The Company shall bear the costs
      and expenses arising out of or in connection with any arbitration pursuant
      to
      this Section 8(e), including Employee’s costs and reasonable attorney’s
      fees.

     

    (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)           Withholding.  All
      payments made pursuant to this Agreement will be subject to withholding of
      applicable income and employment taxes.

     

    (h)           Counterparts.  This
      Agreement may be executed in counterparts, each of which shall be deemed an
      original, but all of which together will constitute one and the same
      instrument.

     

    IN
      WITNESS WHEREOF, each of the parties has executed this Agreement, in the case
      of
      the Company by its duly authorized officer, as of the day and year set forth
      below.

    


    


    
      	
              COMPANY

            	
              MICROCHIP
                TECHNOLOGY INC.

            
	 	
               

              By:

            	 
	 	
              Title:

            	 
	 	 	 
	
              EMPLOYEE

            	
               

              By:

            	 
	 	
              Title:

            	 


    

    


    


    



    
      
        
        

      

      
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