Exhibit 4.4
FIRST AMENDMENT
TO
RADISYS CORPORATION LONG TERM
INCENTIVE PLAN
WHEREAS, RadiSys Corporation (the
“Company”) maintains the RadiSys Corporation Long Term
Incentive Plan (the “LTIP”) for the benefit of its
eligible employees; and
WHEREAS, amendment of the LTIP now
is considered desirable.
NOW, THEREFORE, by virtue and in
exercise of the power reserved to the Company by Section 12 of
the LTIP, and pursuant to the authority delegated to the
undersigned by the Board of Directors of the Company, the LTIP be
and is hereby amended, effective as of the date hereof, in the
following particulars:
1. By deleting the defined terms
“Above Average Award,” “Good Reason,”
“Maximum Award” and “Superior Award” where
they appear in Section 2 of the LTIP and renumbering the
remaining subsections of Section 2 of the LTIP
accordingly.
2. By deleting the word
“completed” where it appears in renumbered
Section 2(w) of the LTIP.
3. By deleting the phrase
“which is generally expressed as a percentage (which may be
more than 100%) of the Superior Award” where it appears in
the definition of “Payout Formula” in renumbered
Section 2(x) of the LTIP.
4. By substituting the following for
the definition of “Target Award” in renumbered
Section 2(jj) of the LTIP:
“(jj) ‘Target
Award’ means the target award payable under the Plan to a
Participant for the Performance Period, as determined by the
Committee in accordance with Section 7.”
5. By substituting the phrase
“or if any portion of an Award is not distributed” for
the phrase “or if an Award is distributed in an amount equal
to less than the Maximum Award” where it appears in
Section 3 of the LTIP.
6. By substituting the following for
Section 4(a)(ii) of the LTIP:
“(ii) discretionary authority
to adopt Target Awards and Payout Formulas under this Plan for a
given Performance Period, which will be adopted on or prior to the
Target Determination Cutoff Date with respect to Awards intended to
qualify as Performance-Based Compensation.”
7. By substituting the following for
the second sentence of Section 5(a) of the LTIP:
“Except as otherwise provided
in Section 10, to be eligible to receive a payment hereunder a
Participant must be actively employed on the last day of the
quarter for which attainment of a Performance Goal is certified by
the Committee in accordance with
Section 9(a).”
8. By deleting Section 5(b) of the LTIP in
its entirety.
9. By substituting the following for
Section 6 of the LTIP:
“6. Performance Goal
Determination. On the Target Determination Date, the Committee, in
its sole discretion, shall establish the Performance Goals for each
Participant for the Performance Period. Such Performance Goals
shall be set forth in writing on or prior to the Target
Determination Cutoff Date with respect to Awards intended to
qualify as Performance-Based Compensation.”
10. By substituting the following
for Section 7 of the LTIP:
“7. Target Award
Determination. On the Target Determination Date, the Committee, in
its sole discretion, shall establish a Target Award for each
Participant and may establish multiples or percentages thereof.
Each Participant’s Target Award shall represent the amount of
cash or the number of Shares that can be earned by the Participant
under the Plan during the Performance Period, based upon the
Performance Goals achieved and the level of achievement for such
period as determined by the Committee in its discretion. Each
Participant’s Target Award shall be set forth in writing on
or prior to the Target Determination Cutoff Date with respect to
Awards intended to qualify as Performance-Based
Compensation.”
11. By substituting the following
for Section 8 of the LTIP:
“8. Payout Formula
Determination. On the Target Determination Date, the Committee, in
its sole discretion, shall establish a Payout Formula for purposes
of determining the Award (if any) payable to each Participant. Each
Payout Formula shall be set forth in writing on or prior to the
Target Determination Cutoff Date with respect to Awards intended to
qualify as Performance-Based Compensation and shall provide for the
payment of all or a portion of a Participant’s Award upon the
Committee’s certification of achievement of a Performance
Goal in accordance with Section 9(a).”
12. By substituting the phrase
“last day of the Fiscal Year coinciding with or next
following the last day of the quarter for which achievement of a
Performance Goal is certified by the Committee in accordance with
Section 9(a)” for the phrase “last day of the
Fiscal year coinciding with or next following the last day of the
Performance Period” where it appears in Section 9(d) of
the LTIP.
13. By substituting the following
for Section 10 of the LTIP:
“10. Termination of
Employment; Change of Control.
(a) General. Except as otherwise
expressly provided in this Section 10, upon a
Participant’s termination of employment prior to the last day
of the quarter for which achievement of a Performance Goal is
certified by the Committee in accordance with Section 9(a), a
Participant shall forfeit the right to receive any Awards under
this Plan with respect to such quarter or with respect to any
future quarters in the Performance Period. Upon a
Participant’s termination of employment for Cause following
the last day of the quarter for which achievement of the
Performance Goal is certified by the Committee in accordance with
Section 9(a) but prior to the date on which the
Participant’s Award with respect to such Performance Goal is
distributed pursuant to Section 9(d) above, such Participant
shall forfeit the right to receive such Award.
(b) Death or Disability. Subject to
the express provisions of the Participant’s Award, if a
Participant’s employment is terminated as a result of the
Participant’s death or Disability prior to the last day of a
quarter and achievement of a Performance Goal as of the last day of
such quarter is certified by the Committee in accordance with
Section 9(a), such Participant shall be entitled to receive a
pro-rata Award with respect to such Performance Goal, as determined
in accordance with Section 9(a) and payable in accordance with
Section 9(d).
(c) Termination without Cause.
Subject to the express provisions of the Participant’s Award,
if a Participant’s employment is terminated by the Company
without Cause prior to the last day of a quarter and achievement of
a Performance Goal as of the last day of such quarter is certified
by the Committee in accordance with Section 9(a), such
Participant shall be entitled to receive a pro-rata Award with
respect to such Performance Goal, as determined in accordance with
Section 9(a) and payable in accordance with
Section 9(d).
(d) If the Participant has in effect
an employment, retention, change of control, severance or similar
agreement with the Company or any affiliate thereof that provides
for the effect of a Change of Control on all or any portion of the
Participant’s Awards, then such agreement shall control with
respect to such Awards in the event of a Change of Control. In all
other cases, unless the Committee shall otherwise expressly provide
in the agreement relating to an Award under the Plan, in the event
of a Potential Change of Control, the Committee shall determine
whether a Performance Goal has been achieved as of the last day of
the prior quarter, and if such achievement equals or exceeds 50% of
the Performance Goal corresponding to the threshold award level,
then, in the event of a Change of Control, the Participant shall be
entitled to receive a portion of his Award as follows: if a
Participant has received all or any portion of his Award for a
Performance Period prior to a Change of Control, no further Awards
shall be payable to such Participant under this Plan following such
Change of Control, and if a Participant has not received any
portion of his Award for a Performance Period prior to a Change of
Control, the Company shall distribute, within sixty days following
such Change of Control, a pro-rata Award to such Participant based
on his Target Award, provided the Participant is actively employed
by the Company immediately prior to such Change of Control, and no
further Awards shall be payable to such Participant under this
Plan. Unless the Committee shall otherwise expressly provide in the
agreement relating to an Award under the Plan, such pro-rata Award
shall equal the Target Award multiplied by the ratio of:
(x) the number of full days elapsed from the beginning of the
Performance Period to and including the date of the Change of
Control to (y) the number of full days in the Performance
Period. In the event of a Potential Change of Control and if the
achievement determined by the Committee above is less than 50% of
the Performance Goal corresponding to the threshold award level,
then, in the event of a Change of Control, the Committee may in its
discretion provide for payment of a portion of such Award in such
amounts as the Committee may determine in its sole discretion,
provided any Participant receiving such Award is actively employed
by the Company immediately prior to such Change of Control. For
purposes of this Section 10(d), a “Potential Change of
Control” shall exist during any period in which the following
items exist: (i) the Company enters into an agreement, the
consummation of which would result in the occurrence of a Change of
Control; (ii) any person (including the
Company) publicly announces an
intention to take or to consider taking actions which if
consummated would constitute a Change of Control; or (iii) the
Board adopts a resolution to the effect that, for purposes of the
Plan, a potential change of control exists.”
14. By substituting the following
for the first sentence of Section 11 of the LTIP:
“The Plan shall be effective
as of the Effective Date, with the last Performance Period under
the Plan to begin January 1, 2011.”
15. By substituting the phrase
“Section 9 or 10” for the phrase “Section
9” where it appears in Section 14 of the
LTIP.
16. By adding the attached Addendum
A at the end of the LTIP as a part thereof.
IN WITNESS WHEREOF, the Company has
caused this amendment to be executed by its duly authorized officer
this 30 th
day of September, 2009.
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RadiSys Corporation
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By:
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Its:
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Chief Financial Officer
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Addendum A
Addendum for Canadian
Participants
Notwithstanding Section 9(c) of
the Plan or any other provision of the Plan to the contrary, the
Company shall distribute all Awards to Participants who are
resident in Canada in Shares
RadiSys
Corporation
Long-Term Incentive
Plan
1. Purposes of the
Plan . This RadiSys Corporation Long-Term Incentive Plan
(the “Plan”) sets forth the plan for payment of
long-term incentive compensation to those executive officers and
key employees of the Company designated by the Compensation and
Development Committee of the Board for participation and is
intended to increase stockholder value and the success of the
Company by motivating Plan Participants to excel beyond what is
customary in their performance and to achieve substantially
challenging business objectives that deliver significant
shareholder value. The Plan’s goals are to be achieved by
providing such Plan Participants with incentive awards based on the
achievement of goals relating to the performance of the Company or
one of its business units or upon the achievement of objectively
determinable performance goals. The Plan is intended to permit the
payment of awards that may qualify as performance-based
compensation under Section 162(m).
2. Definitions
.
(a) “ Annual Revenue
” means the Company’s or a business unit’s net
sales for the Fiscal Year, as reported in the Company’s
financial statements.
(b) “ Above Average
Award ” means the above average target award payable
under the Plan to a Participant for the Performance Period,
expressed in cash or as a number of Shares, as determined by the
Committee in accordance with Section 7.
(c) “ Award ”
means, with respect to each Participant, the award determined
pursuant to Section 9(a) below for a Performance Period. Each
Award is determined by a Payout Formula for a Performance Period,
subject to the Committee’s authority under Section 9(a)
to eliminate or reduce the Award otherwise payable.
(d) “ Base Salary
” means, as to any Performance Period, the
Participant’s annualized salary rate on the last day of the
Performance Period. Such Base Salary shall be before both
(a) deductions for taxes or benefits, and (b) deferrals
of compensation pursuant to Company-sponsored plans.
(e) “ Board ”
means the Board of Directors of RadiSys Corporation.
(f) “ Cash Position
” means the Company’s level of cash and cash
equivalents.
(g) “ Cause ”
means (a) the willful and continued failure by a Participant
to perform substantially the Participant’s reasonably
assigned duties with the Company (other than any such failure
resulting from the Participant’s incapacity due to physical
or mental illness, as determined by the Participant’s
attending physician) after a demand for substantial performance is
delivered to such Participant by the Board, the Chief Executive
Officer or the President of the Company which specifically
identifies the manner in which the Board or the Company believes
that the Participant has not substantially performed the
Participant’s duties or (b) the willful engaging by a
Participant in illegal conduct which is materially and demonstrably
injurious to the Company. No act, or failure to act, on a
Participant’s part shall be considered “willful”
unless done, or omitted to be done, by the Participant without
reasonable belief that the Participant’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 shall be conclusively presumed
to be done, or omitted to be done, by a Participant in the best
interests of the Company.
(h) “ Change of Control
” means that one of the following events has taken
place:
(i) the stockholders of RadiSys
Corporation approve one of the following: (1) any merger or
statutory plan of exchange involving RadiSys Corporation
(“Merger”) in which RadiSys Corporation is not
the
A-1
continuing or surviving corporation
or pursuant to which Common Stock would be converted into cash,
securities or other property, other than a Merger involving RadiSys
Corporation 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
(2) 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 RadiSys Corporation;
(ii) a tender or exchange offer,
other than one made by RadiSys Corporation, 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 Exchange Act),
directly or indirectly, of securities representing more than 50
percent of the voting power of outstanding securities of RadiSys
Corporation; or
(iii) RadiSys Corporation 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 RadiSys Corporation, except that if
such receipt shall occur during a tender offer or exchange offer
described in (ii) 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 Plan by virtue of any
transaction which results in a Participant, or a group of persons
which includes a Participant, acquiring, directly or indirectly,
securities representing 20 percent or more of the voting power of
outstanding securities of RadiSys Corporation.
(i) “ Code ”
means the Internal Revenue Code of 1986, as amended.
(j) “ Committee ”
means the Compensation and Development Committee of the Board, or a
sub-committee of the Compensation and Development Committee, which
shall, with respect to payments hereunder intended to qualify as
Performance-Based Compensation, consist solely of two or more
members of the Board who are not employees of the Company and who
otherwise qualify as “outside directors” within the
meaning of Section 162(m).
(k) “Common
Stock” means the common stock of RadiSys
Corporation.
(l) “ Company ”
means RadiSys Corporation or any of its subsidiaries (as such term
is defined in Code Section 424(f)).
(m) “ Cumulative Design
Wins ” means the aggregate revenues attributable to
design wins obtained by the Company during any Performance Period
determined in accordance with the Company’s procedures for
design win criteria.
(n) “ Disability
” means the Participant’s absence from his full-time
duties with the Company for 180 consecutive calendar days as a
result of the Participant’s incapacity due to physical or
mental illness, as determined by his attending physician, unless
within 30 calendar days after notice of termination by the Company
following such absence the Participant shall have returned to the
full-time performance of his duties with the Company.
(o) “ Earnings Per
Share ” means, as to any Fiscal Year, the financial
measure equal to Net Income divided by the total number of Shares
outstanding for such Fiscal Year.
(p) “ Effective Date
” means the date on which the Plan is approved by the
stockholders of RadiSys Corporation at the 2008 annual meeting of
the stockholders of RadiSys Corporation, or as soon as practicable
thereafter, but in any event no later than January 1,
2009.
A-2
(q) “ Exchange Act
” means the Securities Exchange Act of 1934, as
amended.
(r) “ Fiscal Year
” means a fiscal year of RadiSys Corporation.
(s) “ Good Reason
” means: (i) a significant reduction by the Company or
the surviving company in a Participant’s base pay from the
highest annual rate in effect at any time within the 12-month
period preceding the Change of Control, other than a salary
reduction that is part of a general salary reduction affecting
employees generally; (ii) a significant reduction by the
Company or the surviving company in total benefits available to a
Participant 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 immediately prior to
the Change of Control; (iii) the Company or the surviving
company requi