Exhibit 10.09




	





     Exhibit
10.09



EXECUTIVE
CHANGE IN CONTROL
SEVERANCE BENEFITS AGREEMENT



     THIS
EXECUTIVE CHANGE IN CONTROL SEVERANCE BENEFITS AGREEMENT (the
“AGREEMENT”) was entered into on February 13, 2001, between
Richard M. Beyer (“Executive”) and ELANTEC SEMICONDUCTOR, INC.,
a Delaware corporation (the “COMPANY”). It is hereby amended
and clarified November 12, 2001 effective as of February 13, 2001. This
Agreement is intended to provide Executive with the compensation and benefits
described herein upon the occurrence of specific events. 



     Certain
capitalized terms used in this Agreement are defined in Article VI. 



     The
Company and Executive hereby agree as follows: 



ARTICLE 1
EMPLOYMENT BY THE
COMPANY



     1.1
Executive is currently employed as an executive of the Company. 



     1.2
This Agreement shall remain in full force and effect so long as Executive is
employed by Company; provided, however, that the rights and obligations of the
parties hereto contained in Articles II through VII shall survive Two and One
Half (2-1/2) years following a Covered Termination (as hereinafter defined). 



     1.3
The Company and Executive wish to set forth the compensation and benefits which
Executive shall be entitled to receive in the event that there is a Change in
Control or Executive’s employment with the Company terminates following a
Change in Control under the circumstances described in Article II of this
Agreement. 



     1.4
The duties and obligations of the Company to Executive under this Agreement
shall be in consideration for Executive’s past services to the Company,
Executive’s continued employment with the Company and in the event a
Covered Termination occurs within twelve months following a Change in Control,
Executive’s execution of the general waiver and release described in
Section 3.2. 



     1.5 This
Agreement shall supersede any other agreement to the extent it is inconsistent with this
Agreement with respect to Executive’s benefits in the event of a Change in Control.  



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ARTICLE II
SEVERANCE
BENEFITS



     2.1
Entitlement To Severance Benefits. If Executive’s employment
terminates due to an Involuntary Termination or a Voluntary Termination for Good
Reason within twelve (12) months following a Change in Control, the termination
of employment will be a Covered Termination and the Company shall pay Executive
the compensation and benefits described in this Article II. If Executive’s
employment terminates within twelve months following a Change in Control, but
not due to an Involuntary Termination or a Voluntary Termination for Good
Reason, then the termination of employment will not be a Covered
Termination and Executive will not be entitled to receive any payments or
benefits under this Article II. Regardless of whether Executive actually
terminates employment, if Executive is employed by the Company, or any affiliate
on the date of the one year anniversary of a Change in Control, Executive shall
receive the benefits set forth in this Agreement as if he had incurred a Covered
Termination as of the day before the one year anniversary of a Change in
Control. Except as specifically provided in this Agreement, the timing of the
payment or provision of benefits under this Agreement shall be determined as if
the Executive had incurred a Covered Termination on the day before the one year
anniversary of the Change in Control. 



     Payment
of any benefits described in this Article II shall be subject to the
restrictions and limitations set forth in Article III. 



     2.2
Lump Sum Severance Payment. The Company shall pay to the Executive his
base pay through the Date of Covered Termination at the rate in effect at the
time Notice of Termination is given, subject to any applicable withholding of
federal, state or local taxes, plus (i) that portion of Executive’s
targeted cash bonus prorated through the Date of Covered Termination, and (ii)
all other amounts to which Executive is entitled under any compensation plan or
practice of the Company at the time such payments are due. Within thirty (30)
days following a Covered Termination (or the day before the one year anniversary
of a Change in Control if Executive is still employed by the Company, or any
affiliate, on the one year anniversary of a Change in Control), Executive shall
receive a lump sum payment equal to one hundred percent (100%) of the sum of
Annual Base Pay and Annual Bonus at target, subject to any applicable
withholding of federal, state or local taxes. 



     2.3
Stock Options and Restricted Stock. In accordance with Section 4.3, stock
options and restricted stock granted by the Company and held by the Executive
shall become fully vested and exercisable and the period of time for exercise of
stock options following termination of employment shall be extended if Executive
is employed by the Company, or an affiliate, on the one year anniversary of a
Change in Control (regardless of whether a Covered Termination occurs).
Furthermore, if a Covered Termination occurs within a twelve month period
following a Change in Control, the options and restricted stock shall become
fully vested and exercisable and the period of time for exercise of stock
options following a termination shall be extended. 



     2.4
Welfare Benefits. Following a Covered Termination within the first twelve
months following a Change in Control, or upon Executive’s termination of
employment for any reason after the one year anniversary of a Change in Control,
Executive and his covered dependents will be eligible to continue their Welfare
Benefit coverage under any Welfare Benefit plan or program maintained by the
Company on the same terms and conditions (including cost to Executive) as in
effect immediately prior to the termination, for the one year following the
termination. 



     With
respect to any Welfare Benefits provided through an insurance policy, the
Company’s obligation to provide such Welfare Benefits following a
termination shall be limited by the terms of such a policy; provided that (i)
the Company shall make reasonable efforts to amend such policy to provide the
continued coverage described in this Section 2.4, and (ii) if a policy providing
health benefits is not amended to provide the continued benefits described in
this Section 2.4, the Company shall pay for the cost of comparable replacement
coverage (or Medigap insurance if Executive qualifies for Medicare) until the
end of the one year period following the termination. 



     The
Company shall reimburse Executive for any income tax liability due as a result
of the provision of Welfare Benefits under this Article II (and as a result of
any payments due under this paragraph) in order to put Executive in the same
after-tax position as if no taxable Welfare Benefits had been provided. 



     This
Section 2.4 is not intended to affect, nor does it affect, the rights of
Executive, or Executive’s covered dependents, under any applicable law with
respect to health insurance continuation coverage. 



     2.5
Mitigation. Except as otherwise specifically provided herein, Executive
shall not be required to mitigate damages or the amount of any payment provided
under this Agreement by seeking other employment or otherwise, nor shall the
amount of any payment provided for under this Agreement be reduced by any
compensation earned by Executive as a result of employment by another employer
or by retirement benefits after the date of the Covered Termination, or
otherwise. 



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ARTICLE III
LIMITATIONS
AND CONDITIONS ON BENEFITS



     3.1
Withholding of Taxes. The Company shall withhold appropriate federal,
state or local income and employment taxes from any payments hereunder. 



     3.2
Employee Agreement and Release Prior to receipt of Benefits. Upon the
occurrence of a Covered Termination within twelve months following a Change in
Control, and prior to the receipt of any benefits under this Agreement on
account of the occurrence of a Covered Termination, Executive shall, as of the
date of a Covered Termination, execute an employee agreement and release in the
form attached hereto as Exhibit A. Such employee agreement and release shall
specifically relate to all of Executive’s rights and claims in existence at
the time of such execution and shall confirm Executive’s obligations under
the Company’s standard form of proprietary information agreement. It is
understood such employee release and agreement shall comply with applicable law.
In the event Executive does not execute such release and agreement within the
period required by applicable law, or if Executive revokes such employee
agreement and release within the period permitted by applicable law, no benefits
shall be payable under this Agreement and this Agreement shall be null and void. 



ARTICLE IV
OTHER RIGHTS
AND BENEFITS



     4.1
Nonexclusivity. Nothing in the Agreement shall prevent or limit
Executive’s continuing or future participation in any benefit, bonus,
incentive or other plans, programs, policies or practices provided by the
Company and for which Executive may otherwise qualify, nor shall anything herein
limit or otherwise affect such rights as Executive may have under any stock
option or other agreements with the Company. Except as otherwise expressly
provided herein, amounts which are vested benefits or which Executive is
otherwise entitled to receive under any plan, policy, practice or program of the
Company at or subsequent to the date of a Covered Termination shall be payable
in accordance with such plan, policy, practice or program. 



     4.2
Parachute Payments. In the event that any amount or benefit received or
to be received by Executive pursuant to this Agreement (other than payment
pursuant to this Section 4.2) would constitute an “excess parachute
payment” subject to excise tax under Section 4999 of the Code, the Company
shall pay to Executive the amount of any such excise tax; provided, however,
that no payment shall be made under this Section 4.2 to the extent that it would
reduce Executive’s after-tax income. 



     4.3
Stock Options and Restricted Stock. Company shall take all actions
necessary to amend all stock option agreements evidencing outstanding stock
options and restricted stock grant agreements granted by the Company to
Executive: (i) upon a Change in Control to provide for full accelerated vesting
and exercisability of the Executive’s restricted stock and outstanding
options to purchase Elantec Common Stock (or securities of the surviving entity
that are issuable upon exercise of stock options following the Change in
Control), (ii) to permit Executive to exercise any vested options following his
termination of service to the Company as an employee or consultant for up to
three (3) months (or such longer period as may currently apply) and (iii) to
permit Executive to exercise the options for at least the twelve (12) months
following a Covered Termination or termination after the one year anniversary of
a Change in Control. Notwithstanding the foregoing, the Company shall amend a
stock option or restricted stock in a manner that will not adversely affect
Executive’s financial position and that does not subject Executive to
liability under Section 16(b) of the Securities Exchange Act of 1934, as
amended. 



     4.4
Indemnity Agreement. The Indemnity Agreement signed by the Executive upon employment with
the Company will remain in full force and effect for 5 years following the Date of
Covered Termination. 



ARTICLE V
NON-ALIENATION
OF BENEFITS



     No
benefit hereunder shall be subject to anticipation, alienation, sale, transfer,
assignment, pledge, encumbrance or charge, and any attempt to so subject a
benefit hereunder shall be void. 



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ARTICLE VI
DEFINITIONS



     For
purposes of the Agreement, the following terms shall have the meanings set forth
below: 



     6.1
“Agreement” means this Executive Change in Control Severance Benefits Agreement. 



     6.2
“Annual Base Pay” means Executive’s annual base pay at the
rate in effect during the last regularly scheduled payroll period immediately
preceding (i) the Change in Control or (ii) the Covered Termination, whichever
is greater. 



     6.3
“Annual Bonus” means the Executive’s projected or
estimated annual cash incentive bonus at target for the fiscal year of the
Company in which termination of employment occurs. 



     6.4
“Change in Control” means the consummation of any of the following transactions: 










	 	     (a)
the stockholders of the Company approve 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 the stockholders of the Company approve a plan of
liquidation or dissolution of the Company or an agreement for the sale, lease, exchange
or other transfer or disposition by the Company of all or substantially all (more than
fifty percent (50%)) of the Company’s assets; 






	 	     (b)
any person (as such term is used in Sections 13(d) of the Securities Exchange Act of
1934, as amended (the “Exchange Act”)), is or becomes the beneficial owner
(within the meaning of Rule 13d-3 under the Exchange Act) directly or indirectly of 25%
or more of the Company’s outstanding Common Stock; or 






	 	     (c)
a change in the composition of the Board of Directors of the Company within a three (3)
year period, 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;






	 	     (B)
are elected, or nominated for election, to the Board of Directors of the Company with the
affirmative votes 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 Directors of the Company with the
affirmative votes of at least a majority of the directors of the Company who are
Incumbent Directors described in (A) or (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. 



     6.5
“Company” means Elantec Semiconductor, Inc., a Delaware corporation, and any successor
thereto. 



     6.6
“Covered Termination” means an Involuntary Termination or a
Voluntary Termination for Good Reason within twelve (12) months following a
Change in Control. No other event shall be a Covered Termination for purposes of
this Agreement. 



     6.7
“Date of Covered Termination” means the First Date following the last date of the
executive’s employment with the Company.  



     6.8
“Date of Notice of Termination” means the date the executive is
given notice, either verbal or written, that his employment with the Company has
been or will be terminated. 



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     6.9
“Involuntary Termination” means Executive’s dismissal or
discharge by the Company (or, if applicable, by the successor entity) for
reasons other than fraud, misappropriation or embezzlement on the part of
Executive which resulted in material loss, damage or injury to the Company.
Notwithstanding the foregoing, Executive shall not be deemed to have been
terminated for one of these reasons, unless and until there shall have been
delivered to Executive a copy of a resolution, duly adopted by the affirmative
vote of not less than three-quarters of the entire membership of the
Company’s Board of Directors at a meeting of the Board called and held for
the purpose (after reasonable notice to Executive and an opportunity for the
Executive, together with Executive’s counsel, to be heard before the Board
of Directors), finding that in the good faith opinion of the Board of Directors,
Executive was guilty of conduct set forth in the immediately preceding sentence
and specifying the particulars thereof in detail. 



     The
termination of an Executive’s employment would not be deemed to be an
“Involuntary Termination” if such termination occurs as a result of
the death or disability of Executive. 



     6.10
“Voluntary Termination for Good Reason” means that the
Executive voluntarily terminates his employment after any of the following are
undertaken without Executive’s express written consent: 










	 	     (a)
the assignment to Executive of any duties or responsibilities which result in any
diminution or adverse change of Executive’s position, status or circumstances of
employment as in effect immediately prior to a Change in Control of the Company; any
removal of Executive from or any failure to reelect Executive to any of such positions,
except in connection with the termination of his employment for death, disability,
retirement, fraud, misappropriation, embezzlement or any other voluntary termination of
employment by Executive other than Voluntary Termination for Good Reason (notwithstanding
the above, Voluntary Termination for Good Reason shall not occur if Executive terminates
employment and all that occurs is that Executive does not hold the title of president and
chief executive officer of the surviving parent company after a Change in Control); 






	 	     (b)
a reduction by the Company in Executive's Annual Base Pay or targeted annual cash
incentive bonus in effect at the time;






	 	     (c)
any failure by the Company to continue in effect any benefit plan or arrangement,
including incentive plans or plans to receive securities of the Company, in which
Executive is participating at the time of a Change in Control of the Company (hereinafter
referred to as “Benefit Plans”), or the taking of any action by the Company
which would adversely affect Executive’s participation in or reduce Executive’s
benefits under any Benefit Plans or deprive Executive of any fringe benefit enjoyed by
Executive at the time of a Change in Control of the Company, provided, however, that
Executive may not terminate for Good Reason following a Change in Control of the Company
if the Company offers a range of benefit plans and programs which, taken as a whole, are
comparable to the Benefit Plans as determined in good faith by Executive; 






	 	     (d)
a relocation of Executive, or the Company's principal executive offices if Executive's
principal office is at such offices, to a location more than fifteen (15) miles from the
location at which Executive performed Executive’s duties prior to a Change in
Control of the Company, except for required travel by Executive on the Company’s
business to an extent substantially consistent with Executive’s business travel
obligations at the time of a Change in Control of the Company; 






	 	     (e)
any breach by the Company of any provision of this agreement; or






	 	     (f)
any failure by the Company to obtain the assumption of this agreement by any successor or
assign of the Company.






	


     6.11
“Welfare Benefits” means benefits providing for coverage or
payment in the event of Executive’s (or Executive’s covered
dependent’s) death, disability, illness or injury that were provided to
Executive or his covered dependent immediately before a Change in Control,
whether taxable or non-taxable and whether funded through insurance or
otherwise. 



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ARTICLE VII
GENERAL
PROVISIONS



     7.1
Employment Status. This Agreement does not constitute a contract of
employment or impose on Executive any obligation to remain as an employee, or
impose on the Company any obligation (i) to retain Executive as an employee,
(ii) to change the status of Executive as an at-will employee, or (iii) to
change the Company’s policies regarding termination of employment. 



     7.2
Notices. Any notices provided hereunder must be in writing and such
notices or any other written communication shall be deemed effective upon the
earlier of personal delivery (including personal delivery by telex or facsimile)
or the third day after mailing by first class mail, to the Company at its
primary office location and to Executive at his address as listed in the
Company’s payroll records. Any payments made by the Company to Executive
under the terms of this Agreement shall be delivered to Executive either in
person or at his address as listed in the Company’s payroll records. 



     7.3
Severability. Whenever possible, each provision of this Agreement will be
interpreted in such manner as to be effective and valid under applicable law,
but if any provision of this Agreement is held to be invalid, illegal or
unenforceable in any respect under any applicable law or rule in any
jurisdiction, such invalidity, illegality or unenforceability will not affect
any other provision or any other jurisdiction, but this Agreement will be
reformed, construed and enforced in such jurisdiction as if such invalid,
illegal or unenforceable provisions had never been contained herein. 



     7.4
Waiver. If either party should waive any breach of any provisions of the
Agreement, he or it shall not thereby be deemed to have waived any preceding or
succeeding breach of the same or any other provision of this Agreement. 



     7.5
Complete Agreement. This Agreement, including Exhibit A and other written
agreements referred to in this Agreement, constitutes the entire agreement
between Executive and the Company and it is the complete, final, and exclusive
embodiment of their agreement with regard to this subject matter. It is entered
into without reliance on any promise or representation other than those
expressly contained herein. 



     7.6
Amendment or Termination of Agreement. This Agreement may be changed or
terminated only upon the mutual written consent of the Company and Executive.
The written consent of the Company to a change or termination of this Agreement
must be signed by an executive officer of the Company after such change or
termination has been approved by the Compensation Committee of the
Company’s Board of Directors. 



     7.7
Counterparts. This Agreement may be executed in separate counterparts,
any one of which need not contain signatures of more than one party, but all of
which taken together will constitute one and the same Agreement. 



     7.8
Headings. The headings of the Articles and sections hereof are inserted
for convenience only and shall not be deemed to constitute a part hereof nor to
affect the meaning thereof. 



     7.9
Successors and Assigns. This Agreement is intended to bind and inure to
the benefit of and be enforceable by Executive and the Company, and their
respective successors, assigns, heirs, executors and administrators, except that
Executive may not assign any of his duties hereunder and he may not assign any
of his rights hereunder without the written consent of the Company, which
consent shall not be withheld unreasonably. 



     7.10
Attorney Fees. If Executive brings any action to enforce his rights hereunder, Executive
shall be entitled to recover his reasonable attorneys' fees and costs incurred in
connection with such action, regardless of the outcome of such action. 



     7.11
Choice of Law. All questions concerning the construction, validity and interpretation of
this Agreement will be governed by the law of the State of California. 



     7.12
Non-Publication. The parties mutually agree not to disclose publicly the
terms of this Agreement except to the extent that disclosure is mandated by
applicable law. 



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     7.13 Construction
of Plan. In the event of a conflict between the text of the Agreement and any summary,
description or other information regarding the Agreement, the text of the Agreement shall
control.  



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



ELANTEC
SEMICONDUCTOR, INC.
a Delaware
Corporation









	
By: /s/ James V. Diller
——————————————

Name: James V. Diller
Title: Chairman of the Board		
By: /s/ Richard M. Beyer
——————————————

Name: Richard M. Beyer
Title: President and Chief Executive Officer






	


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