under the Exchange Act) of 35% or more of either (i) the then outstanding shares of commonstock of the Company (the “Outstanding Company Common Stock”) or (ii) the combined votingpower of the then outstanding voting securities of the Company entitled to vote generally in theelection of directors (the “Outstanding Company Voting Securities”); provided,however, that for purposes of this subsection (a), the following acquisitions shall notconstitute a Change of Control: (i) any acquisition directly from the Company, (ii) anyacquisition by the Company, (iii) any acquisition by any employee benefit plan (or related trust)sponsored or maintained by the Company or any corporation controlled by the Company or (iv) anyacquisition pursuant to a transaction which complies with clauses (i), (ii) and (iii) of subsection(c) of this Section 2; or          (b) Individuals who, as of the date of the distribution of the Outstanding Company CommonStock to the holders of capital stock of Conexant Systems, Inc., constituted the Board (the“Incumbent Board”) cease for any reason to constitute at least a majority of the Board;provided, however, that any individual becoming a director subsequent to the date thereof whoseelection, or nomination for election by the Company’s shareholders, was approved by a vote of atleast a majority of the directors then comprising the Incumbent Board shall be considered as thoughsuch individual were a member of the Incumbent Board, but excluding, for this purpose, any suchindividual whose initial assumption of office occurs as a result of an actual or threatenedelection contest with respect to the election or removal of directors or other actual or threatenedsolicitation of proxies or consents by or on behalf of a Person other than the Board; or          (c) Consummation of a reorganization, merger or consolidation or sale or other disposition ofall or substantially all of the assets of the Company or the acquisition of assets of anotherentity (a “Business Combination”), in each case, unless, following such BusinessCombination, (i) all or substantially all of the individuals and entities who were the beneficialowners, respectively, of the Outstanding Company Common Stock and Outstanding Company VotingSecurities immediately prior to such Business Combination beneficially own, directly or indirectly,more than 60% of, respectively, the then outstanding shares of common stock and the combined votingpower of the then outstanding voting securities entitled to vote generally in the election ofdirectors, as the case may be, of the corporation resulting from such Business Combination(including, without limitation, a corporation which as a result of such transaction owns theCompany or all or substantially all of the Company’s assets either directly or through one or moresubsidiaries) in substantially the same proportions as their ownership, immediately prior to suchBusiness Combination, of the Outstanding Company Common Stock and Outstanding Company VotingSecurities, as the case may be, (ii) no Person (excluding the Company, any employee benefit plan(or related trust) of the Company or of such corporation resulting from such Business Combination)beneficially owns, directly or indirectly, 35% or more of, respectively, the then outstandingshares of common stock of the corporation resulting from such Business Combination or the combinedvoting power of the then outstanding voting securities of such corporation except to the extentthat such ownership existed prior to the Business Combination and (iii) at least a majority of themembers of the board of directors of the corporation resulting from such Business Combination weremembers of the Incumbent Board at the time of the execution of the initial agreement, or of theaction of the Board, providing for such Business Combination; or
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          (d) Approval by the Company’s shareholders of a complete liquidation or dissolution of theCompany.     3. Employment Period. The Company hereby agrees to continue the Executive in itsemploy, and the Executive hereby agrees to remain in the employ of the Company subject to the termsand conditions of this Agreement, for the period commencing on the Effective Date and ending on thethird anniversary of such date (the “Employment Period”).     4. Terms of Employment. (a) Position and Duties. (i) During the EmploymentPeriod, (A) the Executive’s position (including status, offices, titles and reportingrequirements), authority, duties and responsibilities shall be at least commensurate in allmaterial respects with the most significant of those held, exercised and assigned at any timeduring the 120-day period immediately preceding the Effective Date and (B) the Executive’s servicesshall be performed at the location where the Executive was employed immediately preceding theEffective Date or any office or location less than 35 miles from such location.               (ii) During the Employment Period, and excluding any periods of vacation and sick leave towhich the Executive is entitled, the Executive agrees to devote reasonable attention and timeduring normal business hours to the business and affairs of the Company and, to the extentnecessary to discharge the responsibilities assigned to the Executive hereunder, to use theExecutive’s reasonable best efforts to perform faithfully and efficiently such responsibilities.During the Employment Period it shall not be a violation of this Agreement for the Executive to (A)serve on corporate, civic or charitable boards or committees, (B) deliver lectures, fulfillspeaking engagements or teach at educational institutions and (C) manage personal investments, solong as such activities do not significantly interfere with the performance of the Executive’sresponsibilities as an employee of the Company in accordance with this Agreement. It is expresslyunderstood and agreed that to the extent that any such activities have been conducted by theExecutive prior to the Effective Date, the continued conduct of such activities (or the conduct ofactivities similar in nature and scope thereto) subsequent to the Effective Date shall notthereafter be deemed to interfere with the performance of the Executive’s responsibilities to theCompany.          (b) Compensation. (i) Base Salary. During the Employment Period, theExecutive shall receive an annual base salary (“Annual Base Salary”), which shall be paidat a monthly rate, at least equal to twelve times the highest monthly base salary paid or payable,including any base salary which has been earned but deferred, to the Executive by the Company andits affiliated companies in respect of the twelve-month period immediately preceding the month inwhich the Effective Date occurs. During the Employment Period, the Annual Base Salary shall bereviewed no more than 12 months after the last salary increase awarded to the Executive prior tothe Effective Date and thereafter at least annually. Any increase in Annual Base Salary shall notserve to limit or reduce any other obligation to the Executive under this Agreement. Annual BaseSalary shall not be reduced after any such increase and the term Annual Base Salary as utilized inthis Agreement shall refer to Annual Base Salary as so increased. As used in this Agreement, theterm “affiliated companies” shall include any company controlled by, controlling or under commoncontrol with the Company.
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               (ii) Annual Bonus. In addition to Annual Base Salary, the Executive shall be awarded,for each fiscal year ending during the Employment Period, an annual bonus (the “AnnualBonus”) in cash at least equal to the Executive’s highest bonus under the Company’s annualincentive plans for the last three full fiscal years prior to the Effective Date (annualized in theevent that the Executive was not employed by the Company for the whole of such fiscal year) (the“Recent Annual Bonus”). Each such Annual Bonus shall be paid no later than the end of thethird month of the fiscal year next following the fiscal year for which the Annual Bonus isawarded, unless the Executive shall elect to defer the receipt of such Annual Bonus.               (iii) Incentive and Savings Plans. During the Employment Period, the Executive shallbe entitled to participate in all incentive and savings plans, practices, policies and programsapplicable generally to other peer executives of the Company and its affiliated companies, but inno event shall such plans, practices, policies and programs provide the Executive with incentiveopportunities (measured with respect to both regular and special incentive opportunities, to theextent, if any, that such distinction is applicable) and savings opportunities, in each case, lessfavorable, in the aggregate, than the most favorable of those provided by the Company and itsaffiliated companies for the Executive under such plans, practices, policies and programs as ineffect at any time during the 120-day period immediately preceding the Effective Date or if morefavorable to the Executive, those provided generally at any time after the Effective Date to otherpeer executives of the Company and its affiliated companies.               (iv) Welfare Benefit Plans. During the Employment Period, the Executive and/or theExecutive’s family, as the case may be, shall be eligible for participation in and shall receiveall benefits under welfare benefit plans, practices, policies and programs provided by the Companyand its affiliated companies (including, without limitation, medical, prescription, dental,disability, employee life, group life, accidental death and travel accident insurance plans andprograms) to the extent applicable generally to other peer executives of the Company and itsaffiliated companies, but in no event shall such plans, practices, policies and programs providethe Executive with benefits which are less favorable, in the aggregate, than the most favorable ofsuch plans, practices, policies and programs in effect for the Executive at any time during the120-day period immediately preceding the Effective Date or, if more favorable to the Executive,those provided generally at any time after the Effective Date to other peer executives of theCompany and its affiliated companies.               (v) Expenses. During the Employment Period, the Executive shall be entitled toreceive prompt reimbursement for all reasonable expenses incurred by the Executive in accordancewith the most favorable policies, practices and procedures of the Company and its affiliatedcompanies in effect for the Executive at any time during the 120-day period immediately precedingthe Effective Date or, if more favorable to the Executive, as in effect generally at any timethereafter with respect to other peer executives of the Company and its affiliated companies.               (vi) Fringe Benefits. During the Employment Period, the Executive shall be entitled tofringe benefits, including, without limitation, tax and financial planning services, payment ofclub dues, and, if applicable, use of an automobile and payment of related
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expenses, in accordance with the most favorable plans, practices, programs and policies of theCompany and its affiliated companies in effect for the Executive at any time during the 120-dayperiod immediately preceding the Effective Date or, if more favorable to the Executive, as ineffect generally at any time thereafter with respect to other peer executives of the Company andits affiliated companies.               (vii) Office and Support Staff. During the Employment Period, the Executive shall beentitled to an office or offices of a size and with furnishings and other appointments, and toexclusive personal secretarial and other assistance, at least equal to the most favorable of theforegoing provided to the Executive by the Company and its affiliated companies at any time duringthe 120-day period immediately preceding the Effective Date or, if more favorable to the Executive,as provided generally at any time thereafter with respect to other peer executives of the Companyand its affiliated companies.               (viii) Vacation. During the Employment Period, the Executive shall be entitled to paidvacation in accordance with the most favorable plans, policies, programs and practices of theCompany and its affiliated companies as in effect for the Executive at any time during the 120-dayperiod immediately preceding the Effective Date or, if more favorable to the Executive, as ineffect generally at any time thereafter with respect to other peer executives of the Company andits affiliated companies.     5. Termination of Employment. (a) Death or Disability. The Executive’semployment shall terminate automatically upon the Executive’s death during the Employment Period.If the Company determines in good faith that the Disability of the Executive has occurred duringthe Employment Period (pursuant to the definition of Disability set forth below), it may give tothe Executive written notice in accordance with Section 12(b) of this Agreement of its intention toterminate the Executive’s employment. In such event, the Executive’s employment with the Companyshall terminate effective on the 30th day after receipt of such notice by the Executive (the“Disability Effective Date”), provided that, within the 30 days after such receipt, theExecutive shall not have returned to full-time performance of the Executive’s duties. For purposesof this Agreement, “Disability” shall mean the absence of the Executive from the Executive’s dutieswith the Company on a full-time basis for 180 consecutive business days as a result of incapacitydue to mental or physical illness which is determined to be total and permanent by a physicianselected by the Company or its insurers and acceptable to the Executive or the Executive’s legalrepresentative.          (b) Cause. The Company may terminate the Executive’s employment during the EmploymentPeriod for Cause. For purposes of this Agreement, “Cause” shall mean:               (i) the willful and continued failure of the Executive to perform substantially theExecutive’s duties with the Company or one of its affiliates (other than any such failure resultingfrom incapacity due to physical or mental illness), after a written demand for substantialperformance is delivered to the Executive by the Board or the Chief Executive Officer of theCompany which specifically identifies the manner in which the Board or Chief Executive Officerbelieves that the Executive has not substantially performed the Executive’s duties, or
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               (ii) the willful engaging by the Executive in illegal conduct or gross misconduct which ismaterially and demonstrably injurious to the Company.          For purposes of this provision, no act or failure to act, on the part of the Executive, shallbe considered “willful” unless it is done, or omitted to be done, by the Executive in bad faith orwithout reasonable belief that the Executive’s action or omission was in the best interests of theCompany. Any act, or failure to act, based upon authority given pursuant to a resolution dulyadopted by the Board or upon the instructions of the Chief Executive Officer or a senior officer ofthe Company or based upon the advice of counsel for the Company shall be conclusively presumed tobe done, or omitted to be done, by the Executive in good faith and in the best interests of theCompany. The cessation of employment of the Executive shall not be deemed to be for Cause unlessand until there shall have been delivered to the Executive a copy of a resolution duly adopted bythe affirmative vote of not less than three-quarters of the entire membership of the Board at ameeting of the Board called and held for such purpose (after reasonable notice is provided to theExecutive and the Executive is given an opportunity, together with counsel, to be heard before theBoard), finding that, in the good faith opinion of the Board, the Executive is guilty of theconduct described in subparagraph (i) or (ii) above, and specifying the particulars thereof indetail.          (c) Good Reason. The Executive’s employment may be terminated by the Executive forGood Reason. For purposes of this Agreement, “Good Reason” shall mean:               (i) the assignment to the Executive of any duties inconsistent in any respect with theExecutive’s position (including status, offices, titles and reporting requirements), authority,duties or responsibilities as contemplated by Section 4(a) of this Agreement, or any other actionby the Company which results in a diminution in such position, authority, duties orresponsibilities, excluding for this purpose an isolated, insubstantial and inadvertent action nottaken in bad faith and which is remedied by the Company promptly after receipt of notice thereofgiven by the Executive;               (ii) any failure by the Company to comply with any of the provisions of Section 4(b) of thisAgreement, other than an isolated, insubstantial and inadvertent failure not occurring in bad faithand which is remedied by the Company promptly after receipt of notice thereof given by theExecutive;               (iii) the Company’s requiring the Executive to be based at any office or location other thanas provided in Section 4(a)(i)(B) hereof or the Company’s requiring the Executive to travel onCompany business to a substantially greater extent than required immediately prior to the EffectiveDate;               (iv) any purported termination by the Company of the Executive’s employment otherwise than asexpressly permitted by this Agreement; or               (v) any failure by the Company to comply with and satisfy Section 11(c) of this Agreement.          For purposes of this Section 5(c), any good faith determination of “Good Reason” made by theExecutive shall be conclusive.
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          (d) Notice of Termination. Any termination by the Company for Cause, or by theExecutive for Good Reason, shall be communicated by Notice of Termination to the other party heretogiven in accordance with Section 12(b) of this Agreement. For purposes of this Agreement, a“Notice of Termination” means a written notice which (i) indicates the specific terminationprovision in this Agreement relied upon, (ii) to the extent applicable, sets forth in reasonabledetail the facts and circumstances claimed to provide a basis for termination of the Executive’semployment under the provision so indicated and (iii) if the Date of Termination (as defined below)is other than the date of receipt of such notice, specifies the termination date (which date shallbe not more than thirty days after the giving of such notice). The failure by the Executive or theCompany to set forth in the Notice of Termination any fact or circumstance which contributes to ashowing of Good Reason or Cause shall not waive any right of the Executive or the Company,respectively, hereunder or preclude the Executive or the Company, respectively, from asserting suchfact or circumstance in enforcing the Executive’s or the Company’s rights hereunder.          (e) Date of Termination. “Date of Termination” means (i) if the Executive’semployment is terminated by the Company for Cause, or by the Executive for Good Reason, the date ofreceipt of the Notice of Termination or any later date specified therein, as the case may be, (ii)if the Executive’s employment is terminated by the Company other than for Cause or Disability, theDate of Termination shall be the date on which the Company notifies the Executive of suchtermination and (iii) if the Executive’s employment is terminated by reason of death or Disability,the Date of Termination shall be the date of death of the Executive or the Disability EffectiveDate, as the case may be.     6. Obligations of the Company upon Termination. (a) Good Reason; Other Than forCause, Death or Disability. If, during the Employment Period, the Company shall terminate theExecutive’s employment other than for Cause or Disability or the Executive shall terminateemployment for Good Reason:               (i) the Company shall pay to the Executive in a lump sum in cash within 30 days after the Dateof Termination the aggregate of the following amounts:                    (A) the sum of (1) the Executive’s Annual Base Salary through the Date of Termination to theextent not theretofore paid, (2) the product of (x) the higher of (I) the Recent Annual Bonus and(II) the Annual Bonus paid or payable, including any bonus or portion thereof which has been earnedbut deferred (and annualized for any fiscal year consisting of less than twelve full months orduring which the Executive was employed for less than twelve full months), for the most recentlycompleted fiscal year during the Employment Period, if any (such higher amount being referred to asthe “Highest Annual Bonus”) and (y) a fraction, the numerator of which is the number of days in thecurrent fiscal year through the Date of Termination, and the denominator of which is 365 and (3)any compensation previously deferred by the Executive (together with any accrued interest orearnings thereon) and any accrued vacation pay, in each case to the extent not theretofore paid(the sum of the amounts described in clauses (1), (2), and (3) shall be hereinafter referred to asthe “Accrued Obligations”); and                    (B) the amount equal to the product of (1) two and (2) the sum of (x) the Executive’s AnnualBase Salary and (y) the Highest Annual Bonus.
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               (ii) for two years after the Executive’s Date of Termination, or such longer period as may beprovided by the terms of the appropriate plan, program, practice or policy, the Company shallcontinue benefits to the Executive and/or the Executive’s family at least equal to those whichwould have been provided to them in accordance with the plans, programs, practices and policiesdescribed in Section 4(b)(iv) of this Agreement if the Executive’s employment had not beenterminated or, if more favorable to the Executive, as in effect generally at any time thereafterwith respect to other peer executives of the Company and its affiliated companies and theirfamilies, provided, however, that if the Executive becomes reemployed with anotheremployer and is eligible to receive medical or other welfare benefits under another employerprovided plan, the medical and other welfare benefits described herein shall be secondary to thoseprovided under such other plan during such applicable period of eligibility. For purposes ofdetermining eligibility (but not the time of commencement of benefits) of the Executive for retireebenefits pursuant to such plans, practices, programs and policies, the Executive shall beconsidered to have remained employed until two years after the Date of Termination and to haveretired on the last day of such period;               (iii) the Company shall, at its sole expense as incurred, provide the Executive withoutplacement services the scope and provider of which shall be selected by the Executive in hissole discretion;               (iv) all options, stock appreciation rights, stock purchase rights, restricted stock, stockbonuses and other awards which consist of, or relate to, equity securities of the Company that areheld by the Executive shall vest in full and, as applicable, shall become fully exercisable, as ofthe Date of Termination; and               (v) to the extent not theretofore paid or provided, the Company shall timely pay or provide tothe Executive any other amounts or benefits required to be paid or provided or which the Executiveis eligible to receive under any plan, program, policy or practice or contract or agreement of theCompany and its affiliated companies (such other amounts and benefits shall be hereinafter referredto as the “Other Benefits”).          (b) Death. If the Executive’s employment is terminated by reason of the Executive’sdeath during the Employment Period, this Agreement shall terminate without further obligations tothe Executive’s legal representatives under this Agreement, other than for payment of AccruedObligations and the timely payment or provision of Other Benefits. Accrued Obligations shall bepaid to the Executive’s estate or beneficiary, as applicable, in a lump sum in cash within 30 daysof the Date of Termination. With respect to the provision of Other Benefits, the term OtherBenefits as utilized in this Section 6(b) shall include, without limitation, and the Executive’sestate and/or beneficiaries shall be entitled to receive, benefits at least equal to the mostfavorable benefits provided by the Company and affiliated companies to the estates andbeneficiaries of peer executives of the Company and such affiliated companies under such plans,programs, practices and policies relating to death benefits, if any, as in effect with respect toother peer executives and their beneficiaries at any time during the 120-day period immediatelypreceding the Effective Date or, if more favorable to the Executive’s estate and/or the
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Executive’s beneficiaries, as in effect on the date of the Executive’s death with respect to other peerexecutives of the Company and its affiliated companies and their beneficiaries.          (c) Disability. If the Executive’s employment is terminated by reason of theExecutive’s Disability during the Employment Period, this Agreement shall terminate without furtherobligations to the Executive, other than for payment of Accrued Obligations and the timely paymentor provision of Other Benefits. Accrued Obligations shall be paid to the Executive in a lump sumin cash within 30 days of the Date of Termination. With respect to the provision of OtherBenefits, the term Other Benefits as utilized in this Section 6(c) shall include, and the Executiveshall be entitled after the Disability Effective Date to receive, disability and other benefits atleast equal to the most favorable of those generally provided by the Company and its affiliatedcompanies to disabled executives and/or their families in accordance with such plans, programs,practices and policies relating to disability, if any, as in effect generally with respect to otherpeer executives and their families at any time during the 120-day period immediately preceding theEffective Date or, if more favorable to the Executive and/or the Executive’s family, as in effectat any time thereafter generally with respect to other peer executives of the Company and itsaffiliated companies and their families.          (d) Cause; Other than for Good Reason. If the Executive’s employment shall beterminated for Cause during the Employment Period, this Agreement shall terminate without furtherobligations to the Executive other than the obligation to pay to the Executive (x) his Annual BaseSalary through the Date of Termination, (y) the amount of any compensation previously deferred bythe Executive, and (z) Other Benefits, in each case to the extent theretofore unpaid. If theExecutive voluntarily terminates employment during the Employment Period, excluding a terminationfor Good Reason, this Agreement shall terminate without further obligations to the Executive, otherthan for Accrued Obligations and the timely payment or provision of Other Benefits. In such case,all Accrued Obligations shall be paid to the Executive in a lump sum in cash within 30 days of theDate of Termination.          (e) Application of Section 409A. Notwithstanding any other provision of thisAgreement, to the extent that (i) one or more of the payments or benefits received or to bereceived by the Executive would constitute deferred compensation subject to the requirements ofSection 409A of the Internal Revenue Code of 1986, as amended (the “Code”), and (ii) theExecutive is a “specified employee” within the meaning of Code Section 409A, then such payment orbenefit (or portion thereof) will be delayed until the earliest date following the Participant’s“separation from service” with the Company within the meaning of Code Section 409A on which theCompany can provide such payment or benefit to the Executive without the Executive’s incurrence ofany additional tax or interest pursuant to Code Section 409A, with all remaining payments orbenefits due thereafter occurring in accordance with the original schedule. In addition, thisAgreement and the payments and benefits to be provided hereunder are intended to comply in allrespects with the applicable provision of Code Section 409A.     7. Non-exclusivity of Rights. Nothing in this Agreement shall prevent or limit theExecutive’s continuing or future participation in any plan, program, policy or practice provided bythe Company or any of its affiliated companies and for which the Executive may qualify, nor,subject to Section 12(f), shall anything herein limit or otherwise affect such rights as the
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Executive may have under any contract or agreement with the Company or any of itsaffiliated companies. Amounts which are vested benefits or which the Executive is otherwiseentitled to receive under any plan, policy, practice or program of or any contract or agreementwith the Company or any of its affiliated companies at or subsequent to the Date of Terminationshall be payable in accordance with such plan, policy, practice or program or contract or agreementexcept as explicitly modified by this Agreement.     8. Full Settlement. The Company’s obligation to make the payments provided for inthis Agreement and otherwise to perform its obligations hereunder shall not be affected by anyset-off, counterclaim, recoupment, defense or other claim, right or action which the Company mayhave against the Executive or others. In no event shall the Executive be obligated to seek otheremployment or take any other action by way of mitigation of the amounts payable to the Executiveunder any of the provisions of this Agreement and such amounts shall not be reduced whether or notthe Executive obtains other employment. The Company agrees to pay as incurred, to the full extentpermitted by law, all legal fees and expenses which the Executive may reasonably incur as a resultof any contest (regardless of the outcome thereof) by the Company, the Executive or others of thevalidity or enforceability of, or liability under, any provision of this Agreement or any guaranteeof performance thereof (including as a result of any contest by the Executive about the amount ofany payment pursuant to this Agreement), plus in each case interest on any delayed payment at theapplicable Federal rate provided for in Section 7872(f)(2)(A) of the Code.     9. Certain Additional Payments by the Company.          (a) Anything in this Agreement to the contrary notwithstanding and except as set forth below,in the event it shall be determined that any payment or distribution by the Company or itsaffiliates to or for the benefit of the Executive (whether paid or payable or distributed ordistributable pursuant to the terms of this Agreement or otherwise, but determined without regardto any additional payments required under this Section 9) (a “Payment”) would be subject tothe excise tax imposed by Section 4999 of the Code or any interest or penalties are incurred by theExecutive with respect to such excise tax (such excise tax, together with any such interest andpenalties, are hereinafter collectively referred to as the “Excise Tax”), then the Executive shallbe entitled to receive an additional payment (a “Gross-Up Payment”) in an amount such thatafter payment by the Executive of all taxes (including any interest or penalties imposed withrespect to such taxes), including, without limitation, any income taxes (and any interest andpenalties imposed with respect thereto) and Excise Tax imposed upon the Gross-Up Payment, theExecutive retains an amount of the Gross-Up Payment equal to the Excise Tax imposed upon thePayments. Notwithstanding the foregoing provisions of this Section 9(a), if it shall be determinedthat the Executive is entitled to a Gross-Up Payment, but that the Payments do not exceed 110% ofthe greatest amount (the “Reduced Amount”) that could be paid to the Executive such thatthe receipt of Payments would not give rise to any Excise Tax, then no Gross-Up Payment shall bemade to the Executive and the Payments, in the aggregate, shall be reduced to the Reduced Amount.          (b) Subject to the provisions of Section 9(c), all determinations required to be made underthis Section 9, including whether and when a Gross-Up Payment is required and the amount of suchGross-Up Payment and the assumptions to be utilized in arriving at such
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determination, shall bemade by Deloitte & Touche LLP or such other certified publicaccounting firm as may be designated by the Executive (the “Accounting Firm”) whichshall provide detailed supporting calculations both to the Company and the Executive within 15business days of the receipt of notice from the Executive that there has been a Payment, or suchearlier time as is requested by the Company. In the event that the Accounting Firm is serving asaccountant or auditor for the individual, entity or group effecting the Change of Control, theExecutive shall appoint another nationally recognized accounting firm to make the determinationsrequired hereunder (which accounting firm shall then be referred to as the Accounting Firmhereunder). All fees and expenses of the Accounting Firm shall be borne solely by the Company.Any Gross-Up Payment, as determined pursuant to this Section 9, shall be paid by the Company to theExecutive within five days of the receipt of the Accounting Firm’s determination. Anydetermination by the Accounting Firm shall be binding upon the Company and the Executive. As aresult of the uncertainty in the application of Section 4999 of the Code at the time of the initialdetermination by the Accounting Firm hereunder, it is possible that Gross-Up Payments which willnot have been made by the Company should have been made (“Underpayment”), consistent withthe calculations required to be made hereunder. In the event that the Company exhausts itsremedies pursuant to Section 9(c) and the Executive thereafter is required to make a payment of anyExcise Tax, the Accounting Firm shall determine the amount of the Underpayment that has occurredand any such Underpayment shall be promptly paid by the Company to or for the benefit of theExecutive.          (c) The Executive shall notify the Company in writing of any claim by the Internal RevenueService that, if successful, would require the payment by the Company of the Gross-Up Payment.Such notification shall be given as soon as practicable but no later than ten business days afterthe Executive is informed in writing of such claim and shall apprise the Company of the nature ofsuch claim and the date on which such claim is requested to be paid. The Executive shall not paysuch claim prior to the expiration of the 30-day period following the date on which it gives suchnotice to the Company (or such shorter period ending on the date that any payment of taxes withrespect to such claim is due). If the Company notifies the Executive in writing prior to theexpiration of such period that it desires to contest such claim, the Executive shall:               (i) give the Company any information reasonably requested by the Company relating to suchclaim,               (ii) take such action in connection with contesting such claim as the Company shall reasonablyrequest in writing from time to time, including, without limitation, accepting legal representationwith 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;
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provided, however, that the Company shall bear and pay directly all costs andexpenses (including additional interest and penalties) incurred in connection with such contest andshallindemnify and hold the Executive harmless, on an after-tax basis, for any Excise Tax or income tax(including interest and penalties with respect thereto) imposed as a result of such representationand payment of costs and expenses. Without limitation on the foregoing provisions of this Section9(c), the Company shall control all proceedings taken in connection with such contest and, at itssole option, may pursue or forgo any and all administrative appeals, proceedings, hearings andconferences with the taxing authority in respect of such claim and may, at its sole option, eitherdirect the Executive to pay the tax claimed and sue for a refund or contest the claim in anypermissible manner, and the Executive agrees to prosecute such contest to a determination beforeany administrative tribunal, in a court of initial jurisdiction and in one or more appellatecourts, as the Company shall determine; provided, however, that if the Companydirects the Executive to pay such claim and sue for a refund, the Company shall advance the amountof such payment to the Executive, on an interest-free basis and shall indemnify and hold theExecutive harmless, on an after-tax basis, from any Excise Tax or income tax (including interest orpenalties with respect thereto) imposed with respect to such advance or with respect to any imputedincome with respect to such advance; and further provided that any extension of the statute oflimitations relating to payment of taxes for the taxable year of the Executive with respect towhich 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 whicha Gross-Up Payment would be payable hereunder and the Executive shall be entitled to settle orcontest, as the case may be, any other issue raised by the Internal Revenue Service or any othertaxing authority.          (d) If, after the receipt by the Executive of an amount advanced by the Company pursuant toSection 9(c), the Executive becomes entitled to receive any refund with respect to such claim, theExecutive shall (subject to the Company’s complying with the requirements of Section 9(c)) promptlypay to the Company the amount of such refund (together with any interest paid or credited thereonafter taxes applicable thereto). If, after the receipt by the Executive of an amount advanced bythe Company pursuant to Section 9(c), a determination is made that the Executive shall not beentitled to any refund with respect to such claim and the Company does not notify the Executive inwriting of its intent to contest such denial of refund prior to the expiration of 30 days aftersuch determination, then such advance shall be forgiven and shall not be required to be repaid andthe amount of such advance shall offset, to the extent thereof, the amount of Gross-Up Paymentrequired to be paid.     10. Confidential Information. The Executive shall hold in a fiduciary capacity forthe benefit of the Company all secret or confidential information, knowledge or data relating tothe Company or any of its affiliated companies, and their respective businesses, which shall havebeen obtained by the Executive during the Executive’s employment by the Company or any of itsaffiliated companies and which shall not be or become public knowledge (other than by acts by theExecutive or representatives of the Executive in violation of this Agreement). After terminationof the Executive’s employment with the Company, the Executive shall not, without the prior writtenconsent of the Company or as may otherwise be required by law or legal process, communicate ordivulge any such information, knowledge or data to anyone other than the Company and thosedesignated by it. In no event shall an asserted violation of the provisions
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of this Section 10constitute a basis for deferring or withholding any amounts otherwise payable to the Executiveunder this Agreement.     11. Successors. (a) This Agreement is personal to the Executive and without theprior written consent of the Company shall not be assignable by the Executive otherwise than bywill or the laws of descent and distribution. This Agreement shall inure to the benefit of and beenforceable by the Executive’s legal representatives.          (b) This Agreement shall inure to the benefit of and be binding upon the Company and itssuccessors and assigns.          (c) The Company will require any successor (whether direct or indirect, by purchase, merger,consolidation or otherwise) to all or substantially all of the business and/or assets of theCompany to assume expressly and agree to perform this Agreement in the same manner and to the sameextent that the Company would be required to perform it if no such succession had taken place. Asused in this Agreement, “Company” shall mean the Company as hereinbefore defined and any successorto its business and/or assets as aforesaid which assumes and agrees to perform this Agreement byoperation of law, or otherwise.     12. Miscellaneous. (a) This Agreement shall be governed by and construed inaccordance with the laws of the State of California, without reference to principles of conflict oflaws. The captions of this Agreement are not part of the provisions hereof and shall have no forceor effect. This Agreement may not be amended or modified otherwise than by a written agreementexecuted by the parties hereto or their respective successors and legal representatives.          (b) All notices and other communications hereunder shall be in writing and shall be given byhand delivery to the other party or by registered or certified mail, return receipt requested,postage prepaid, addressed as follows:If to the Executive:If to the Company:Mindspeed Technologies, Inc.