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EXHIBIT 10.16
EXECUTIVE CHANGE OF CONTROL AGREEMENT
February 28, 2006
Christian A. Lepiane
3960 Edens Edge Drive
Lake Oswego, OR 97034
EXECUTIVE
RadiSys Corporation, an Oregon corporation
5445 NE Dawson Creek Parkway
Hillsboro, OR 97124
THE COMPANY
1.
EMPLOYMENT RELATIONSHIP. Executive is currently employed by the
Company
as Vice President of Worldwide 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) 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 with a title of less than Vice President or
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 nine (9)
months of
Executive's annual base pay at the rate in effect immediately prior
to the date
of termination. Executive will also be eligible to receive payment
by the
Company of nine (9) months of COBRA premiums. Severance pay that is
payable
under this Agreement shall be paid to Executive in a lump sum
payment on the
first day of the seventh calendar month following Executive's date
of
termination.
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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 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 other 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),
only benefits
provided for in this Agreement shall be provided.
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:
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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 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,
un
