Exhibit 10.31


 


MOSYS, INC.


CHANGE-IN-CONTROL AGREEMENT


 


THIS CHANGE-IN-CONTROL AGREEMENT
(this “Agreement”), made and entered into as of August 18, 2008, by and
between MoSys, Inc., a Delaware corporation (“MoSys”), and David DeMaria
(the “Officer”).


 


WHEREAS, MoSys
considers it essential to its best interests to foster the continued employment
of key management personnel and recognizes the distraction and disruption that
the possibility of a Change-in-Control (as defined in Section 1(d) below)
may raise to the detriment of MoSys and its stockholders; and


 


WHEREAS, MoSys has
determined to take appropriate steps to reinforce and encourage the continued
attention and dedication of key management personnel to their assigned duties
in the face of a possible Change-in-Control;


 


NOW, THEREFORE, in
consideration of the premises and the mutual covenants contained herein, MoSys
and the Officer hereby agree as follows:


 


1.             DEFINITIONS


 


(a)           “Base Salary” shall mean the
annual salary of the Officer at the time of termination of his employment
within the application of this Agreement.


 


(b)           “Beneficiary” shall mean (i) the
person or persons named by the Officer, by notice to MoSys, to receive any
compensation or benefit payable under this Agreement or (ii) in the event
of his death, if no such person is named and survives the Officer, his estate.


 


(c)           “Board” shall mean the Board of
Directors of MoSys.


 


(d)           “Change-in-Control”
means the occurrence of any of the following:


 


(i) an acquisition after the Effective Date by an
individual, an entity or a group in one or more related transactions (excluding
MoSys or an employee benefit plan of MoSys or a corporation controlled by MoSys’
stockholders) of 45 percent or more of MoSys’ common stock or voting
securities; or


 


(ii) consummation of a complete liquidation or
dissolution of MoSys or a merger, consolidation, reorganization or sale of all
or substantially all of MoSys’ assets (collectively, a “Business Combination”)
other than a Business Combination in which (A) the stockholders of MoSys
receive 50 percent or more of the stock of the corporation resulting from the
Business Combination and (B) at least a majority of the board of directors
of such resulting corporation were incumbent directors of MoSys immediately
prior to the consummation of the Business Combination, and (C) after which
no individual, entity or group (excluding any corporation or other entity
resulting from the Business Combination or any employee benefit plan of such
corporation or of MoSys) who did not own 45 percent or more of the stock of the
resulting 


 

















 


corporation
or other entity immediately before the Business Combination owns 45 percent or
more of the stock of such resulting corporation or other entity.


 


(e)           “Good Reason” means, without the
Officer’s prior written consent or acquiescence:


 


(i)  assignment to the Officer of duties
incompatible with the Officer’s position, failure to maintain the Officer in
this position and its reporting relationship or a substantial diminution in the
nature of the Officer’s authority or responsibilities;


 


(ii)  reduction in the Officer’s then current
Base Salary or in the bonus or incentive compensation opportunities or benefits
coverage available during the term of this Agreement, except pursuant to an
across-the-board reduction similarly affecting all senior executives of MoSys;


 


(iii)  termination of the Officer’s employment,
for any reason other than death, disability, voluntary termination or
Misconduct (as defined below);


 


(iv)  relocation of the Officer’s principal place
of business to a location more than 30 miles from the location of such office
on the date of this Agreement;


 


(v)  MoSys’s failure to pay the Officer any
material amounts otherwise vested and due the Officer hereunder or under any
plan, program or policy of MoSys; or


 


(vi)  failure of a successor to MoSys following a
Change-in-Control to expressly assume or affirm MoSys’s obligations under this
Agreement as specified in Section 6.


 


(f)            “Misconduct” means the commission
of any act of fraud, embezzlement or dishonesty or other violation of MoSys’s
Code of Business Conduct and Ethics for Employees, Executive Officers and
Directors by the Officer, any unauthorized use or disclosure by the Officer of
confidential information or trade secrets of MoSys or other breach by the
Officer of a material agreement between the Company and the Officer, or any
other intentional misconduct by the Officer adversely affecting the business
affairs of MoSys in a material manner.


 


(g)           “MoSys” when used herein shall be
deemed to refer to MoSys and any entity or entities that succeed to the assets
and properties of MoSys following a Change-in-Control, or any other corporation
or other entity which is a subsidiary or parent of such successor entity or
entities for whom the Officer is employed at any time within two years
following the Change-in-Control.


 


2.             TERM
OF AGREEMENT


 


This Agreement shall be effective immediately upon its
execution by MoSys and the Officer (the “Effective Date”) and shall remain in
effect until the earliest to occur of:  (a) termination
of the Officer’s employment with MoSys following a Change-in-Control (i) by
reason of death or disability, (ii) by the Officer other than for Good
Reason, or (iii) by MoSys for Misconduct, or (b) two years after the
date of a Change-in-Control.


 


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3.             CHANGE
IN CONTROL BENEFITS


 


In the event
of termination of the Officer’s employment by the Officer for Good Reason
within two years following a Change-in-Control, the Officer will be entitled to
the following:


 


(a)           Salary
and Benefits:


 


(i)  his Base Salary through the date of
termination;


 


(ii)  payment in lieu of any unused paid time
off, in accordance with MoSys’ paid time off policy and applicable laws;


 


(iii)  any other compensation or benefits,
including without limitation any benefits under long-term incentive
compensation plans, any benefits under equity grants and awards and employee
benefits under plans that have vested through the date of termination or to
which the Officer may then be entitled in accordance with the applicable terms
of each grant, award or plan; and


 


(iv)  reimbursement of any business expenses
incurred by the Officer through the date of termination but not yet paid to the
Officer.


 


(b)           Stock Option Acceleration. During MoSys’ employment of the
Officer, immediate and
unconditional vesting of one year of the remaining then unvested stock options
and stock awards previously granted to the Officer and, for the one-year period
following termination, the right to exercise any stock options or other awards
held by him.


 


(c)           Release.  MoSys will require, as a condition of
receiving the Change-in-Control payments under subsection (b) above, that
the Officer execute a general release substantially in the form attached as Exhibit A,
which upon execution shall be deemed incorporated herein by reference as a
material part of this Agreement.


 


4.             NO
MITIGATION


 


MoSys agrees that if the Officer’s employment with MoSys terminates,
the Officer will not be obligated to seek other employment or to attempt to
reduce any amount payable to the Officer under this Agreement. Further, no
amount of any payment under this Agreement shall be reduced by any compensation
earned by the Officer as the result of employment by a subsequent employer or
otherwise.


 


5.             NOTICES


 


Any notice or other communication required or permitted under this
Agreement shall be in writing and shall be deemed to have been duly given when
delivered by hand, electronic transmission (with a copy following by hand, mail
or overnight courier), by registered or certified mail, postage prepaid, return
receipt requested or by overnight courier addressed to the other party. All
notices shall be addressed as follows, or to such other address or addresses as
may be substituted by notice in writing:


 


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  To MoSys, Inc.:

  	
   

  	
  To the Officer:

  
	
   

  	
   

  	
   

  
	
  755 N Mathilda Drive

  	
   

  	
   

  
	
  Sunnyvale, CA 94085

  	
   

  	
   

  
	
  Attention: Chairman, Compensation

  	
   

  	
   

  
	
  Committee of the Board of Directors

  	
   

  	
   

  
	
  Fax: (408) 731-1893

  	
   

  	
   

  



 


6.             SUCCESSORS


 


(a)           MoSys’s Successors.  Any successor to MoSys (whether direct or
indirect and whether by purchase, lease, merger, consolidation, liquidation or
otherwise) or to all or substantially all of MoSys’s business and/or assets
shall assume MoSys’s obligations under this Agreement in the same manner and to
the same extent as MoSys would be required to perform such obligations in the
absence of a succession.


 


(b)           Officer’s Successors.  Without the written consent of MoSys, the
Officer can not assign or transfer this Agreement or any right or obligation
under this Agreement to any other person or entity.  Notwithstanding the foregoing, the terms of
this Agreement and all rights of the Officer under this Agreement shall inure
to the benefit of, and be enforceable by, the Officer’s personal or legal
representatives, executors, administrators, successors, heirs, distributes,
devisees and legatees.


 


7.             GENERAL
PROVISIONS


 


(a)           Amendments.  No provision of this Agreement may be
amended, modified or waived unless such amendment, modification or waiver shall
be agreed to in writing and signed by the Officer and by a member of the
Compensation Committee of the Board.


 


(b)           Severability.  If any provision of this Agreement shall be
determined to be invalid or unenforceable by a court of competent jurisdiction,
the remaining provisions of this Agreement shall be unaffected thereby and
shall remain in full force and effect to the fullest extent permitted by
law.  If any provision of this Agreement
is held by a court of competent jurisdiction to be invalid, void or
unenforceable, the remaining provisions shall nevertheless continue in full
force without being impaired or invalidated in any way.


 


(c)           Governing Law.  This Agreement shall be construed,
interpreted and governed in accordance with the laws of the state of California
without regard to its conflicts of laws rules.


 


(d)           Inconsistencies.  The terms of this Agreement supersede any
inconsistent prior promises, policies, representations, understandings, arrangements
or agreements between the parties, whether by employment contract or otherwise.


 


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(e)           Survival.  Notwithstanding the termination of the term
of this Agreement, the duties and obligations of MoSys, if any, following the
termination of the Officer’s employment following a Change-in-Control shall
survive indefinitely.


 


(f)            Withholding.  MoSys may deduct and withhold from any
payments hereunder the amount that MoSys, in its reasonable judgment, is
required to deduct and withhold for any federal, state or local income or
employment taxes.


 


(g)           No Other Compensation; Employee at Will.  Except as provided in Section 3 above,
no amount or benefit shall be payable to the Officer under this Agreement in
respect of termination of the Officer’s employment within two years following a
Change-in-Control.  This Agreement shall
not be construed as creating an express or implied contract of employment and,
except as otherwise agreed in writing between the Officer and MoSys, the
Officer is and shall remain an “employee at will” and shall not have any right
to be retained in the employ of MoSys.


 


(h)           Counterparts.  This Agreement may be executed in
counterparts.


 


IN WITNESS WHEREOF, the parties have executed this Agreement as of the
day and year first above written.


 


 


	
   

  	
  MOSYS INC.

  
	
   

  	
   

  
	
   

  	
  By: 

  	
  /s/ James Sullivan

  
	
   

  	
   

  	
  James Sullivan

  
	
   

  	
   

  
	
   

  	
  Title: CFO

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  David DeMaria

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  /s/ David DeMaria

  
	
   

  	
  (Signature)

  



 


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EXHIBIT A


RELEASE AGREEMENT


 


In consideration of the benefits I will
receive under MoSys Inc.’s Change-in-Control Agreement, I hereby release,
acquit and forever discharge MoSys Inc. (the “Company”), its parents,
subsidiaries, predecessors, successors and affiliates, and each of their
respective officers, directors, agents, servants, employees, attorneys
shareholders, and assigns (the “Released Parties”), of and from any and all
claims, liabilities, demands, causes of action, costs, expenses, attorneys’
fees, damages, indemnities and obligations of every kind and nature, in law,
equity, or otherwise, known and unknown, suspected and unsuspected, disclosed
and undisclosed, arising out of or in any way related to agreements, events,
acts or conduct at any time prior to and including the date I sign this Release
Agreement. This release of claims includes, but is not limited to:


 


	
  ·

  	
  any and all claims and demands directly or indirectly arising out of
  or in any way connected with my employment with the Company or the
  termination of that employment, including, but not limited to, claims,
  demands or agreements related to salary, bonuses, commissions, vacation pay,
  personal time off, fringe benefits, expense reimbursements, sabbatical
  benefits, severance benefits, stock, stock options, any other ownership or
  equity interest in the Company, or any other form of compensation or benefit;

  
	
   

  	
   

  
	
  ·

  	
  claims pursuant to any federal, state or local law, statute, common
  law or cause of action including, but not limited to, Title VII of the
  federal Civil Rights Act of 1964, as amended, or any other statute, agreement
  or source of law, the federal Age Discrimination in Employment Act of 1967,
  as amended (“ADEA”), the federal Americans with Disabilities Act of 1990, the
  Family and Medical Leave Act, the Employee Retirement Income Security Act,
  the Equal Pay Act, the Worker Adjustment and Retraining Notification Act, the
  California Fair Employment and Housing Act, as amended, and the California
  Labor Code;

  
	
   

  	
   

  
	
  ·

  	
  all tort law claims, including claims for fraud, misrepresentation,
  defamation, libel, emotional distress and breach of the implied covenant of
  good faith and fair dealing; and

  
	
   

  	
   

  
	
  ·

  	
  all claims arising under contract law, or the law of wrongful
  discharge, discrimination or harassment.

  



 


I represent that I have no lawsuits, claims
or actions pending in my name, or on behalf of any other person or entity,
against any of the Released Parties. I agree that in the event I bring a claim
covered by this release in which I seek damages against the Company or in the
event I seek to recover against the Company in any claims brought by a
governmental agency on my behalf, this Agreement shall serve as a complete
defense to such claims.


 


ADEA Waiver and Release:  I acknowledge that I am knowingly and
voluntarily waiving and releasing any rights I may have under ADEA. I also
acknowledge that the consideration given for the waiver and release herein is
in addition to anything of value to which I was already entitled. I further
acknowledge that I have been advised by this writing, as required by the ADEA,
that: (a) my waiver and release do not apply to any rights or claims that
may arise after 


 


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the execution date of this Agreement; (b) I have been advised
hereby that I have the right to consult with an attorney prior to executing
this Agreement; (c) I have 21 days from the date I receive this Agreement
to consider this Agreement (although I voluntarily may choose to execute this
Agreement earlier); (d) I have seven days following the execution of this
Agreement to revoke the Agreement; and (e) this Agreement shall not be
effective until the later of (i) the date upon which the revocation period
has expired, which shall be the eighth day after I execute this Agreement, or (ii) the
date I return this Agreement, fully executed, to the Company.


 


I acknowledge that for this Release Agreement
to be effective, I must sign and return it to the Company within 21 days after
the date I receive it and I must not revoke it at any time during the
above-referenced seven-day revocation period.


 


I acknowledge that I have read and understand
Section 1542 of the California Civil Code which reads as follows: “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.” I
hereby expressly waive and relinquish all rights and benefits under that
section and any law of any jurisdiction of similar effect with respect to my
release of any unknown or unsuspected claims I may have against any of the
Released Parties.


 


I understand that this Release Agreement,
together with the Change-in-Control Agreement, constitutes the complete, final
and exclusive embodiment of the entire agreement between the Company and me
with regard to the subject matter hereof. I am not relying on any promise or
representation by the Company that is not expressly stated in this Release
Agreement.


 


 


	
   

  	
  David DeMaria

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  
	
   

  	
  Its:

  	
   

  
	
   

  	
   

  
	
   

  	
  Date:

  	
   

  
				



 


 


ACCEPTED AND AGREED:


 


 


	
  MOSYS
  INC.

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  By:

  	
   

  	
   

  
	
   

  	
   

  
	
  Its:

  	
   

  
	
   

  	
   

  
	
  Date:

  	
   

  	
   

  
				



 


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