Exhibit 10.14
EXECUTIVE CHANGE OF CONTROL AGREEMENT
March 7, 2005
Xxxxx Xxxxxxx
0000 XX Xxxxxxx Xxxxx
Xxxxxxxx, XX 00000 EXECUTIVE
RadiSys Corporation, an Oregon corporation
0000 XX Xxxxxx Xxxxx Xxxxxxx
Xxxxxxxxx, XX 00000 THE COMPANY
1. EMPLOYMENT RELATIONSHIP. Executive is currently employed by the
Company as Vice President of Manufacturing Operations. 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. ADDITIONAL COMPENSATION UPON CERTAIN TERMINATION EVENTS.
3.1. 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), or a
requirement to accept a position greater than twenty-five (25) miles from
current work location 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 severance pay in lieu of any other compensation for periods subsequent to the
date of termination equal to twelve (12) months of Executive's annual base pay
at the rate in effect immediately prior to the date of termination.
3.2 PARACHUTE PAYMENTS. 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 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).
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 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 writing signed by Executive and the Company.
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
By: /s/ Xxxxx Xxxxx /s/ Xxxxx Xxxxxxx
____________________________________ _______________________________
Xxxxx Xxxxx, President and CEO Xxxxx Xxxxxxx
EXHIBIT A
RELEASE OF CLAIMS
1. PARTIES.
The parties to Release of Claims (hereinafter "Release") are Xxxxx Xxxxxxx
and RadiSys Corporation, an Oregon corporation, as hereinafter defined.
1.1 EXECUTIVE.
For the purposes of this Release, "Executive" means Xxxxx Xxxxxxx
and his 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 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 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 Older Workers
Benefit Protection 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 RadiSys Corporation.
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. RadiSys Corporation should
report to Executive any actions or statements that are attributed to Executive
that the Company believes are disparaging. RadiSys Corporation may take actions
consistent with breach of this Release should it determine that Executive has
disparaged or made false or adverse statements about Company. RadiSys
Corporation agrees to follow the applicable policy(ies) regarding release of
employment reference information.
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, RadiSys Corporation
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 RadiSys Corporation
of such request by the most expeditious means in order to enable RadiSys
Corporation 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 paragraphs 3 and 6, supersede and replace all prior agreements, written or
oral, prior negotiations and proposed agreements, written or oral. Executive and
RadiSys Corporation 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 RadiSys Corporation
acknowledge that they have not executed this Release in reliance upon any such
promise, representation, or warranty not contained in this Release.
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, RadiSys Corporation 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 RadiSys Corporation would otherwise have no obligation to
provide.
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 RadiSys Corporation as described in paragraph 4
will be forwarded by mail in a timely manner as provided herein.
__________________________________ Dated: __________ _____, ______
Xxxxx Xxxxxxx
STATE OF OREGON )
) ss.
County of _______________ )
Personally appeared the above named Xxxxx Xxxxxxx and acknowledged the
foregoing instrument to be his or her voluntary act and deed.
Before me:
____________________________________
NOTARY PUBLIC - OREGON
My commission expires: ______
RADISYS CORPORATION
By: __________________________ Dated:______________________________
Its:__________________________
On Behalf of RadiSys Corporation and
"Company"
