EXHIBIT 10.1
EXECUTIVE CHANGE OF CONTROL AGREEMENT
October 15, 2002
Xxxxx X. Xxxxx EXECUTIVE
0000 Xxxxxxxxxxxx
Xxxxxx, XX 00000
RadiSys Corporation THE COMPANY
an Oregon corporation
0000 XX Xxxxxx Xxxxx Xxxxxxx
Xxxxxxxxx, Xxxxxx 00000
In order to induce Executive to become an employee of the Company, this
Executive Change of Control Agreement (this "Agreement") sets forth the
severance benefits that Company will provide to Executive in the event
Executive's employment by Company is terminated under the circumstances
described in this Agreement.
1. EMPLOYMENT RELATIONSHIP. Executive will be employed by the Company as
President and Chief Executive Officer. 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) 21 days from the date Executive receives the
Release of Claims or (b) the last day of Executive's active employment.
3. COMPENSATION UPON TERMINATION FOLLOWING A CHANGE OF CONTROL;
NONCOMPETITION. 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, compliance with Section 8, and, with
respect to the Remaining Payments (as defined below), continued compliance with
the provisions of Section 3.1(a), Executive shall be entitled to the following
benefits:
3.1 As severance pay and in lieu of any other compensation for
periods subsequent to the date of termination, the Company shall pay Executive a
total 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 (the "Base
Severance"), payable as follows: (a) 25% of the Base Severance (the "First
Payment") will be paid in a single payment after employment has ended and eight
days have passed following execution of the Release of Claims without
revocation, and (b) the remaining 75% of the Base Severance (the "Remaining
Payments") will be paid in periodic payments on regular paydays over twelve
months beginning on the first regular payday following payment of the First
Payment. Payment of the Remaining Payments is subject to the following
restrictions:
(a) During the period of the Remaining Payments, Executive agrees
that Executive will not individually, and will not serve as or become a
director, officer, partner, limited partner, employee, agent, representative,
material stockholder (greater than ten percent (10%) of a company's outstanding
shares), creditor, or consultant of or to, or serve in any other capacity with
any business worldwide which shall in any manner:
(i) Engage or prepare to engage in any business which
competes directly with the Company; or
(ii) Solicit, hire or otherwise assist in any effort that
attempts to employ or otherwise utilize the services of any employee of the
Company.
For purposes of subclause (i), any company named as a competitor in the
"Competition" section of the Company's most recent Annual Report on Form 10-K
will be deemed to be engaged in a business which competes directly with the
Company; provided however, if a company so named as a competitor had revenues in
its last fiscal year in excess of five times the Company's revenues in its last
fiscal year, and only a division or business unit representing less than half of
such competitor's revenues is engaged in a business which competes directly with
the Company, only such division or business unit shall be deemed to be a
competitor for purposes of subclause (i).
(b) Executive acknowledges and agrees that the time, scope,
worldwide geographic area, and other provisions of this Section 3.1 and its
subparts are reasonable under the circumstances. Executive further agrees that
if, at any time, despite the express agreement of the parties hereto, a court of
competent jurisdiction holds that any portion of this Section 3.1 and its
subparts are unenforceable for any reason, the maximum restrictions of time,
scope, or geographic area reasonable under the circumstances, as determined by
such court, will be substituted for any such restrictions held unenforceable.
3.2 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, for such COBRA
continuation coverage or for any other purpose.
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3.3 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 (the "Acceleration"), and such stock options that are
not Incentive Stock Options under the Internal Revenue Code or 1986, as amended
("IRC"), 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.
3.4 Notwithstanding any other provision in this Agreement, in the
event that Executive would receive a greater after-tax benefit from the Capped
Benefit (as defined below) than from the payments (including the monetary value
of any non-cash benefits and the Acceleration) otherwise payable pursuant to
this Agreement (the "Specified Benefits"), the Capped Benefit shall be paid to
Executive and the Specified Benefits shall not be paid. The "Capped Benefit"
equals the Specified Benefits, reduced by the minimum amount necessary to
prevent any portion of the Specified Benefits from being a "parachute payment"
as defined in IRC Section 280G(b)(2) or any successor provision. In determining
the "Capped Benefit," unless Executive directs otherwise in writing, the first
reductions in the Specified Benefits shall be to the Acceleration. In the event
that the Acceleration is to be reduced, such Acceleration shall be cancelled in
the reverse order of the date of grant of Executive's stock options unless
Executive elects in writing a different order for cancellation. For purposes of
determining whether Executive would receive a greater after-tax benefit from the
Capped Benefit than from the Specified Benefits there shall be taken into
account any excise tax that would be imposed under IRC Section 4999 and all
federal, state and local taxes required to be paid by Executive in respect of
the receipt of such payments, assuming that such payments would be taxed at the
highest marginal rate applicable to individuals in the year in which the
benefits are to be paid or such lower rate as Executive advises the Company in
writing is applicable to Executive. The independent public accounting firm
serving as the Company's auditing firm immediately prior to the effective date
of the Change of Control (the "Accountants") shall make in writing in good faith
all calculations and determinations under this section, including the
assumptions to be used in arriving at such calculations and determinations and
the manner and amount of any reduction in the Specified Benefits. For purposes
of making the calculations and determinations under this section, the
Accountants may make reasonable assumptions and approximations concerning the
application of IRC Section 280G and IRC Section 4999. Executive shall furnish to
the Accountants and the Company such information and documents as the
Accountants or the Company may reasonably request to make the calculations and
determinations under this section The Company shall bear all costs the
Accountants may reasonably incur in connection with any calculations
contemplated by this section.
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. Except as provided in Section 3.1 and its subparts, the
amount of any payment provided for in this Agreement shall not be reduced,
offset or subject to recovery
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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 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 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.
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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 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 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
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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 as a representative of the Company 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.
RADISYS CORPORATION
By: /s/ C. Xxxxx Xxxxxx /s/ Xxxxx X. Xxxxx
-------------------------------- --------------------------------
C. Xxxxx Xxxxxx Xxxxx X. Xxxxx
Chairman of the Board
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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 of the
Executive Change of Control 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, with the exception of any claim
Executive may have against Company for enforcement of this
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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 twenty-one (21) 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:
_________________________________________
Notary Public for _______________________
My commission expires: __________________
COMPANY
By:_________________________________ Dated: _______________________
Its:________________________________
On Behalf of "Company"
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