Exhibit 10.19
AMENDED AND RESTATED
EXECUTIVE CHANGE OF CONTROL AGREEMENT
February 27, 2007
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Keith Lambert
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1706 NW Potters
Court
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Portland, OR
97229
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Executive |
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RadiSys Corporation,
an Oregon corporation
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5445 NE Dawson Creek
Parkway
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Hillsboro, OR
97124
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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 (or, if required
by applicable law, 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
Change of Control. In the event of a Termination of
Executive’s Employment (as defined in Section 6.1)
(i) other than for Cause (as defined in Section 6.2),
death or Disability (as defined in Section 6.4), or
(ii) as a result of a requirement to accept a position greater
than twenty-five (25) miles from current work location, and
provided any of the events identified in the preceding clauses
(i) and (ii) occurs 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 9, Executive shall be
entitled to severance pay in lieu of any other compensation for
periods subsequent to the date of termination in an amount, payable
in a lump sum, equal to twelve (12) months of Executive’s
annual base pay at the highest annual rate in effect at any time
within the 12-month period preceding the date of termination.
Severance pay that is payable under this Agreement shall be paid to
Executive on the earlier of (i) the date that is six months
and one day following the date of termination or (ii) the date
of Executive’s death.
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
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Section 280G(b)(2) of the Internal Revenue Code of 1986, as
amended (the “Code”), 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
cash severance pay is payable to Executive under this Agreement,
cash severance pay shall not be 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, stock appreciation
right, restricted stock, restricted stock unit, performance share,
performance unit or other similar award agreement that may provide
for accelerated vesting or related benefits).
6. Definitions.
6.1
Termination of Executive’s Employment. Termination of
Executive’s Employment means that (i) the Company has
terminated Executive’s employment with the Company (including
any subsidiary of the Company) other than for Cause (as defined in
Section 6.2), death or Disability (as defined in
Section 6.4), or (ii) Executive, by written notice to the
Company, has terminated his employment as a result of a requirement
by the Company (including any subsidiary of the Company) that he
relocate from his current work location.
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 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:
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(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, or more than one person acting
as a group, 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. Entire Agreement. The
Company and Executive agree that the foregoing terms and conditions
constitute the entire agreement between the parties relating to the
termination of
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Executive’s employment with the Company under the conditions
described in Section 3.1, that this Agreement supersedes and
replaces any prior agreements relating to the matters covered by
this Agreement, specifically the Executive Change of Control
Agreement by and between Executive and the Company dated
March 7, 2005, and that there exist no other agreements
between the parties, oral or written, express or implied, relating
to any matters covered by this Agreement.
9. 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
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