Exhibit 10.2
EXECUTIVE SEVERANCE AND CHANGE OF CONTROL AGREEMENT
April 23, 2001
Xxxxxx Xxxxx Executive
00000 XX Xxxxxxx Xxxxx
Xxxxxxxx, Xxxxxx 00000
RadiSys Corporation
an Oregon corporation
0000 XX Xxxxxx Xxxxx Xxxxxxx
Xxxxxxxxx , Xxxxxx 00000 the Company
1. Employment Relationship. Executive is currently employed by
the Company as Vice President Sales. Executive and the Company acknowledge that
either party may terminate this employment relationship at any time and for any
or no reason, provided that each party complies with the terms of this
Agreement.
2. Release of Claims. In consideration for and as a condition
precedent to receiving the severance benefits outlined in this Agreement,
Executive agrees to execute a Release of Claims in the form attached as Exhibit
A ("Release of Claims"). Executive promises to execute and deliver the Release
of Claims to the Company within the later of (a) 45 days from the date Executive
receives the Release of Claims or (b) the last day of Executive's active
employment.
3. Additional Compensation Upon Certain Termination Events.
3.1 General. In the event of a Termination of Executive's
Employment (as defined in Section 6.1 of this Agreement) other than for Cause
(as defined in Section 6.2 of this Agreement), death, or Disability (as defined
in Section 6.3 of this Agreement), or in the circumstances described in Section
3.2, and contingent upon Executive's execution of the Release of Claims and
compliance with Section 8, as severance pay and in lieu of any other
compensation for periods subsequent to the date of termination, the Company
shall pay Executive, in a single payment after employment has ended and eight
days have passed following execution of the Release of Claims without
revocation, an amount in cash equal to $225,000 (Two Hundred Twenty Five
Thousand Dollars).
3.2. Change of Control. In the event of a Termination of
Executive's Employment (as defined in Section 6.1) other than for Cause (as
defined in Section 6.2), death or Disability (as defined in Section 6.4), within
12 months following a Change of Control (as defined in Section 6.3 of this
Agreement) or within three months preceding a Change of Control, and contingent
upon Executive's execution of the Release of Claims without revocation, and
compliance with Section 8, Executive shall be entitled to the following
benefits:
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(a) As severance pay and in lieu of any other
compensation for periods subsequent to the date of termination, the Company
shall pay Executive, in a single payment after employment has ended and eight
days have passed following execution of the Release of Claims without
revocation, an amount in cash equal to 12 months of Executive's annual base pay
at the rate in effect immediately prior to the date of termination.
(b) Executive is entitled to extend coverage under
any group health plan in which Executive and Executive's dependents are enrolled
at the time of termination of employment under the COBRA continuation laws for
the 18-month statutory period, or so long as Executive remains eligible under
COBRA. The Company will pay Executive a lump sum payment in an amount equivalent
to the reasonably estimated cost Executive may incur to extend for a period of
12 months under the COBRA continuation laws Executive's group health and dental
plan coverage in effect at the time of termination. Executive may use this
payment, as well as any payment made under Section 3.1(a), for such COBRA
continuation coverage or for any other purpose.
(c) All stock options granted to the Executive under
the Company's 1995 Stock Incentive Plan or any other equity plan shall become
immediately exercisable in full in accordance with the applicable provisions of
the relevant option agreement and plan, and such stock options that are not
Incentive Stock Options under the Internal Revenue Code or 1986, as amended,
shall also be amended to permit the Executive to exercise such stock options for
a period of 90 days after the effective date of the Executive's termination.
3.3 Notwithstanding the foregoing, if the total payments and
benefits to be paid to or for the benefit of Executive under this Agreement
would cause any portion of those payments and benefits to be "parachute
payments" as defined in section 280G(b)(2) of the Internal Revenue Code of 1986,
as amended, or any successor provision, the total payments and benefits to be
paid to or for the benefit of Executive under this Agreement shall be reduced to
an amount that would not cause any portion of those payments and benefits to
constitute "parachute payments."
4. Withholding; Subsequent Employment.
4.1 Withholding. All payments provided for in this Agreement
are subject to applicable withholding obligations imposed by federal, state and
local laws and regulations.
4.2 Offset. The amount of any payment provided for in this
Agreement shall not be reduced, offset or subject to recovery by the Company by
reason of any compensation earned by Executive as the result of employment by
another employer after termination.
5. Other Agreements. If that severance benefits are payable to
Executive under any other agreement with the Company in effect at the time of
termination (including but not limited to any employment agreement, but
excluding for this purpose any stock option agreement that may provide for
accelerated vesting or related benefits upon the occurrence of a change in
control), the benefits provided in this Agreement shall not be payable to
Executive. Executive may, however, elect to receive all of the benefits provided
for in this Agreement in lieu of all of
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the benefits provided in all such other agreements. Any such election shall be
made with respect to the agreements as a whole, and Executive cannot select some
benefits from one agreement and other benefits from this Agreement.
6. Definitions.
6.1 Termination of Executive's Employment. Termination of
Executive's Employment means that the Company has terminated Executive's
employment with the Company (including any subsidiary of the Company).
Termination of Executive's Employment shall also include termination by
Executive by written notice to the Company also for "Good Reason" based on:
(a) a significant reduction by the Company or the
surviving company in Executive's base pay as in effect
immediately prior to the Change of Control, other than a
salary reduction that is part of a general salary reduction
affecting employees generally:
(b) a significant reduction by the Company or the
surviving company in total benefits available to Executive
under cash incentive, stock incentive and other employee
benefit plans after the Change of Control compared to the
total package of such benefits as in effect prior to the
Change of Control;
(c) The Company or the surviving company requires
Executive to be based more than 50 miles from where
Executive's office is located immediately prior to the Change
of Control except for required travel on company business to
an extent substantially consistent with the business travel
obligations which Executive undertook on behalf of the Company
prior to the Change of Control; or
(d) The assignment of Executive to a different title,
job or responsibilities that results in a material decrease in
the level of responsibility of Executive with respect to the
surviving company after the Change of Control when compared to
Executive's level of responsibility for the Company's
operations prior to the Change of Control; provided, that Good
Reason shall not exist if Executive continues to have
substantially the same or a greater general level of
responsibility with respect to the former operations of the
Company after the Change of Control as Executive had prior to
the Change of Control even if the former such operations are a
subsidiary or division of the surviving company.
6.2 Cause. Termination of Executive's Employment for "Cause"
shall mean termination upon (a) the willful and continued failure by Executive
to perform substantially
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Executive's reasonably assigned duties with the Company (other than any such
failure resulting from Executive's incapacity due to physical or mental illness)
after a demand for substantial performance is delivered to Executive by the
Board of Directors, the Chief Executive Officer or the President of the Company
which specifically identifies the manner in which the Board of Directors or the
Company believes that Executive has not substantially performed Executive's
duties or (b) the willful engaging by Executive in illegal conduct which is
materially and demonstrably injurious to the Company. No act, or failure to act,
on Executive's part shall be considered "willful" unless done, or omitted to be
done, by Executive without reasonable belief that Executive's action 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 shall be conclusively presumed to be done, or omitted
to be done, by Executive in the best interests of the Company.
6.3 Change of Control. A Change of Control shall mean
that one of the following events has taken place:
(a) The shareholders of the Company approve one
of the following:
(i) Any merger or statutory plan of exchange
involving the Company ("Merger") in which the Company is not
the continuing or surviving corporation or pursuant to which
Common Stock would be converted into cash, securities or other
property, other than a Merger involving the Company in which
the holders of Common Stock immediately prior to the Merger
continue to represent more than 50 percent of the voting
securities of the surviving corporation after the Merger; or
(ii) Any sale, lease, exchange, or other
transfer (in one transaction or a series of related
transactions) of all or substantially all of the assets of the
Company.
(b) A tender or exchange offer, other than one
made by the Company, is made for Common Stock (or securities
convertible into Common Stock) and such offer results in a
portion of those securities being purchased and the offeror
after the consummation of the offer is the beneficial owner
(as determined pursuant to Section 13(d) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act")),
directly or indirectly, of securities representing more than
50 percent of the voting power of outstanding securities of
the Company.
(c) The Company receives a report on Schedule
13D of the Exchange Act reporting the beneficial ownership by
any person of securities representing more than 50 percent of
the voting power of outstanding securities of the Company,
except that if such
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receipt shall occur during a tender offer or exchange offer
described in (b) above, a Change of Control shall not take
place until the conclusion of such offer.
Notwithstanding anything in the foregoing to the contrary, no Change of Control
shall be deemed to have occurred for purposes of this Agreement by virtue of any
transaction which results in Executive, or a group of persons which includes
Executive, acquiring, directly or indirectly, securities representing 20 percent
or more of the voting power of outstanding securities of the Company.
6.4 Disability. "Disability" means Executive's absence from
Executive's full-time duties with the Company for 180 consecutive days as a
result of Executive's incapacity due to physical or mental illness, unless
within 30 days after notice of termination by the Company following such absence
Executive shall have returned to the full-time performance of Executive's
duties. This Agreement does not apply if the Executive is terminated due to
Disability.
7. Successors; Binding Agreement. This Agreement shall be binding
on and inure to the benefit of the Company and its successors and assigns. This
Agreement shall inure to the benefit of and be enforceable by Executive and
Executive's legal representatives, executors, administrators and heirs.
8. Resignation of Corporate Offices; Reasonable Assistance.
Executive will resign Executive's office, if any, as a director, officer or
trustee of the Company, its subsidiaries or affiliates and of any other
corporation or trust of which Executive serves as such at the request of the
Company, effective as of the date of termination of employment. Executive
further agrees that, if requested by the Company or the surviving company
following a Change of Control, Executive will continue his employment with the
Company or the surviving company for a period of up to six months following the
Change of Control in any capacity requested, consistent with Executive's area of
expertise, provided that the Executive receives the same salary and
substantially the same benefits as in effect prior to the Change of Control.
Executive agrees to provide the Company such written resignation(s) and
assistance upon request and that no severance will be paid until after such
resignation(s) or services are provided.
9. Governing Law. This Agreement shall be construed in
accordance with and governed by the laws of the State of Oregon
10. Amendment. No provision of this Agreement may be modified
unless such modification is agreed to in a writing signed by Executive and the
Company.
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11. Severability. If any of the provisions or terms of this
Agreement shall for any reason be held invalid or unenforceable, such invalidity
or unenforceability shall not affect any other terms of this Agreement, and this
Agreement shall be construed as if such unenforceable term had never been
contained in this Agreement.
RADISYS CORPORATION EXECUTIVE
By: /s/ Xxxxxxxx X. Xxxxx /s/ Xxxxxx Xxxxx
----------------------------------------- ---------------------------
Xxxxxxxx X. Xxxxx Xxxxxx Xxxxx
Chief Executive Officer and President
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EXHIBIT A
RELEASE OF CLAIMS
1. Parties.
The parties to Release of Claims (hereinafter "Release") are
_____________ and RadiSys Corporation, an Oregon corporation, as hereinafter
defined.
1.1 Executive.
For the purposes of this Release, "Executive" means
_____________________ and his or her attorneys, heirs, executors,
administrators, assigns, and spouse.
1.2 The Company.
For purposes of this Release the "Company" means RadiSys
Corporation, an Oregon corporation, its predecessors and successors, corporate
affiliates, and all of each corporation's officers, directors, employees,
insurers, agents, or assigns, in their individual and representative capacities.
2. Background And Purpose.
Executive was employed by Company. Executive's employment is
ending effective __________ under the conditions described in Section 3.1 of the
Executive Severance Agreement ("Agreement").
The purpose of this Release is to settle, and the parties
hereby settle, fully and finally, any and all claims Executive may have against
Company, whether asserted or not, known or unknown, including, but not limited
to, claims arising out of or related to Executive's employment, any claim for
reemployment, or any other claims whether asserted or not, known or unknown,
past or future, that relate to Executive's employment, reemployment, or
application for reemployment.
3. Release.
Executive waives, acquits and forever discharges Company from
any obligations Company has and all claims Executive may have including but not
limited to obligations and/or claims arising from the Agreement or any other
document or oral agreement relating to employment compensation, benefits,
severance or post-employment issues. Executive hereby releases Company from any
and all claims, demands, actions, or causes of action, whether known or unknown,
arising from or related in any way to any employment of or past or future
failure or refusal to employ Executive by Company, or any other past or future
claim (except as reserved by this Release or where expressly prohibited by law)
that relates in any way to Executive's employment, compensation, benefits,
reemployment, or application for employment,
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with the exception of any claim Executive may have against Company for
enforcement of this Release. This release includes any and all claims, direct or
indirect, which might otherwise be made under any applicable local, state or
federal authority, including but not limited to any claim arising under state
statutes dealing with employment, discrimination in employment, Title VII of the
Civil Rights Act of 1964, the Civil Rights Act of 1991, the Americans With
Disabilities Act, the Family and Medical Leave Act of 1993, the Equal Pay Act of
1963, Executive Order 11246, the Rehabilitation Act of 1973, the Uniformed
Services Employment and Reemployment Rights Act of 1994, the Age Discrimination
in Employment Act, the Fair Labor Standards Act, state wage and hour statutes,
all as amended, any regulations under such authorities, and any applicable
contract, tort, or common law theories.
3.1 Reservations Of Rights.
This Release shall not affect any rights which Executive may
have under any medical insurance, disability plan, workers' compensation,
unemployment compensation, indemnifications, applicable company stock incentive
plan(s), or the 401(k) plan maintained by the Company.
3.2 No Admission Of Liability.
It is understood and agreed that the acts done and evidenced
hereby and the release granted hereunder is not an admission of liability on the
part of Executive or Company, by whom liability has been and is expressly
denied.
4. Consideration To Executive.
After receipt of this Release signed by Executive, and the
expiration of the seven-day revocation period provided by the Older Workers
Benefit Protection Act without Executive's revocation, Company shall pay the
Executive the severance benefits as provided in Section 3 of the Agreement.
5. No Disparagement.
Executive agrees that henceforth Executive will not disparage
or make false or adverse statements about Company. The Company should report to
Executive any actions or statements that are attributed to Executive that the
Company believes are disparaging. The Company may take actions consistent with
breach of this Release should it determine that Executive has disparaged or made
false or adverse statements about Company. The Company agrees to follow the
applicable policy(ies) regarding release of employment reference information.
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6. Confidentiality, Proprietary, Trade Secret And Related Information
Executive acknowledges the duty and agrees not to make
unauthorized use or disclosure of any confidential, proprietary or trade secret
information learned as an employee about Company, its products, customers and
suppliers, and covenants not to breach that duty. Moreover, Executive
acknowledges that, subject to the enforcement limitations of applicable law, the
Company reserves the right to enforce the terms of Executive's Employee
Agreement with Company and any paragraph(s) therein. Should Executive,
Executive's attorney or agents be requested in any judicial, administrative, or
other proceeding to disclose confidential, proprietary or trade secret
information Executive learned as an employee of Company, Executive shall
promptly notify the Company of such request by the most expeditious means in
order to enable the Company to take any reasonable and appropriate action to
limit such disclosure.
7. Scope Of Release.
The provisions of this Release shall be deemed to obligate,
extend to, and inure to the benefit of the parties; Company's parents,
subsidiaries, affiliates, successors, predecessors, assigns, directors,
officers, and employees; and each parties insurers, transferees, grantees,
legatees, agents and heirs, including those who may assume any and all of the
above-described capacities subsequent to the execution and effective date of
this Release.
8. Opportunity For Advice Of Counsel.
Executive acknowledges that Executive has been encouraged to
seek advice of counsel with respect to this Release and has had the opportunity
to do so.
9. Entire Release.
This Release and the Agreement signed by Executive contain the
entire agreement and understanding between the parties and, except as reserved
in paragraph 3, supersede and replace all prior agreements, written or oral,
prior negotiations and proposed agreements, written or oral. Executive and
Company acknowledge that no other party, nor agent nor attorney of any other
party, has made any promise, representation, or warranty, express or implied,
not contained in this Release concerning the subject matter of this Release to
induce this Release, and Executive and Company acknowledge that they have not
executed this Release in reliance upon any such promise, representation, or
warranty not contained in this Release.
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10. Severability.
Every provision of this Release is intended to be severable.
In the event any term or provision of this Release is declared to be illegal or
invalid for any reason whatsoever by a court of competent jurisdiction or by
final and unappealed order of an administrative agency of competent
jurisdiction, such illegality or invalidity should not affect the balance of the
terms and provisions of this Release, which terms and provisions shall remain
binding and enforceable.
11. Parties May Enforce Release.
Nothing in this Release shall operate to release or discharge
any parties to this Release or their successors, assigns, legatees, heirs, or
personal representatives from any rights, claims, or causes of action arising
out of, relating to, or connected with a breach of any obligation of any party
contained in this Release .
12. Costs And Attorney's Fees.
In the event of any administrative or civil action to enforce
the provisions of this Release, the Company shall pay Executive's reasonable
attorneys' fees through trial and/or on appeal.
13, Acknowledgment.
Executive acknowledges that the Release provides severance pay
and benefits which the Company would otherwise have no obligation to provide.
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14. Revocation.
As provided by the Older Workers Benefit Protection Act,
Executive is entitled to have forty-five (45) days to consider this Release. For
a period of seven (7) days from execution of this Release, Executive may revoke
this Release. Upon receipt of Executive's signed Release and the end of the
revocation period, payment by Company as described in paragraph 4 above will be
forwarded by mail in a timely manner as provided herein.
____________________________________ Dated: __________ _____, ______
[Name of Executive]
STATE OF OREGON )
) ss.
County of _______________)
Personally appeared the above named and acknowledged the foregoing
instrument to be his or her voluntary act and deed.
Before me:
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Notary Public for
------------------
My commission expires:
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COMPANY
By:____________________________________ Dated:________________
Its:___________________________________
On Behalf of "Company"
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