Exhibit 4.5
RADISYS CORPORATION LONG TERM
INCENTIVE PLAN
Award Agreement
for
Performance-Based Restricted
Stock Units
This Award Agreement (the
“Agreement”), dated as of DATE , is made
by and between RadiSys Corporation (the “Company”) and
NAME (the “Participant”).
RECITALS
WHEREAS, the Company has established
and maintains the RadiSys Corporation Long-Term Incentive Plan, as
amended (the “Plan”); and
WHEREAS, the Participant is an
employee of the Company or a subsidiary of the Company;
and
WHEREAS, the Company desires to
grant to the Participant performance-based restricted stock units
(an “Award”) under the Plan for the performance period
commencing October 1, 2009 and ending on December 31,
2012 (the “Performance Period”), subject to certain
restrictions and limitations; and
WHEREAS, the Participant desires to
receive such Award from the Company;
NOW, THEREFORE, in consideration of
the promises and mutual agreements contained herein, the adequacy
and sufficiency of which are hereby acknowledged, the Company and
the Participant agree as follows:
1. Grant of Award
.
(a) Target Award . The
Company hereby grants the Participant an Award for the Performance
Period, with a Target Award equal to #### Shares, subject to the
following terms and conditions. During the Performance Period,
performance will be measured as of the last day of each calendar
quarter (each, a “Performance Goal Achievement
Date”), with the first Performance Goal Achievement Date
being the date one year from the commencement date of the
Performance Period. Upon the determination and written
certification by the Committee with respect to a Performance Goal
Achievement Date that the Company has achieved the Performance Goal
set forth in the schedule below for the sum of the four consecutive
calendar quarters immediately preceding such Performance Goal
Achievement Date, the Participant shall be entitled to the number
of Shares as set forth below:
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If Non-GAAP Earnings Per Share
for the Four Consecutive Calendar Quarters Immediately Preceding
Any Applicable Performance Goal Achievement Date Is Equal To or
Greater Than:
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Then the Participant’s
Award Will Equal:
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[x]% of Target
Award
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Notwithstanding the foregoing, if a
portion of the Participant’s Award has been settled in
accordance with the above schedule upon achievement of a
Performance Goal with respect to a Performance Goal Achievement
Date, the previously settled portion of the Participant’s
Award shall be taken into account and shall be offset against any
subsequently settled portion of the Participant’s Award. For
example, if the Participant receives 90% of his or her Target Award
as a result of the attainment of Non-GAAP Earnings Per Share of
[$ ] for the sum of
the previous four consecutive calendar quarters immediately
preceding a Performance Goal Achievement Date, as certified by the
Committee, and Non-GAAP Earnings Per Share of
[$ ] is attained for
the sum of the previous four consecutive calendar quarters
immediately preceding the Performance Goal Achievement Date for a
subsequent quarter, as certified by the Committee, the Participant
shall be entitled to receive 5% of his Target Award (that is, 95%
reduced by the previously settled 90%).
Non-GAAP Earnings Per Share will be
calculated quarterly for each of the four consecutive calendar
quarters immediately preceding any applicable Performance Goal
Achievement Date as follows:
Non-GAAP Earnings will equal:
Earnings (as calculated in accordance with GAAP) plus stock-based
compensation expense, plus amortization of intangible assets, plus
or minus restructuring charges or reversals, plus or minus such
other items determined as non-recurring or adjusted from non-GAAP
earnings as reported by the Company and as approved by the
Committee, plus other adjustments resulting from purchase
accounting as determined by the Committee, plus a fixed 20%
effective tax rate notwithstanding the tax rate otherwise
applicable in accordance with GAAP.
The number of Shares will equal: The
weighted average Shares outstanding (calculated as required by GAAP
with or without Shares issuable upon conversion of any outstanding
convertible notes and interest thereon so as to result in the most
dilutive impact but disregarding shares earned and issued or
issuable under the LTIP during such quarter) with respect to the
applicable quarter plus the number of Shares earned and issued or
issuable with respect to all Awards under the Plan.
The Participant’s Award will
be settled in Shares as soon as practicable following the
determination and written certification by the Committee of the
achievement of the Performance Goal and, in any event, no later
than the date that is two and one-half months following the last
day of the Fiscal Year coinciding with or next following the last
day of the calendar quarter for which achievement of the
Performance Goal is certified by the Committee.
Unless and until the Committee
determines and certifies in writing that a Performance Goal has
been achieved, the Participant will have no right to the settlement
of the Award or the issuance of any Shares pursuant to this
Agreement or the Plan. Subject to adjustment in accordance with
Section 13 of the Plan, the Participant will have no right to
receive an amount in settlement of the Award greater than the
amount determined in accordance with the preceding schedule. Except
as otherwise provided in Section 2, to be eligible to receive
a payment hereunder with respect to the Performance Goals achieved
on any Performance Goal Achievement Date, the Participant must be
actively employed by the Company or one of its subsidiaries on such
Performance Goal Achievement Date. Except as otherwise expressly
provided in Section 2, upon the Participant’s
termination of employment with the Company and all of its
subsidiaries prior to a Performance Goal Achievement Date, the
Participant’s right to be issued any Shares in settlement of
the Award with respect to such quarter or any future quarters in
the Performance Period shall be forfeited by the
Participant.
(b) Additional
Documents/Capitalized Terms . The Participant agrees to execute
such additional documents and complete and execute such forms as
the Company may require for purposes of this Agreement. Any
capitalized terms not defined herein shall have the same meaning as
set forth in the Plan. Ã!
(c) Issuance of Shares . If
the Committee determines and certifies in writing that the
Performance Goal has been achieved, the Participant shall be issued
the number of Shares determined in accordance with
Section 1(a), subject to the Committee’s power to
eliminate or reduce such Award, without payment therefore, as full
consideration for the Award as soon as practicable following the
determination and written certification of the achievement of the
Performance Goal and, in any event, no later than the date that is
two and one-half months following the last day of the Fiscal Year
coinciding with or next following the Performance Goal Achievement
Date. The Company shall, in its sole discretion, as soon as
practicable after the Performance Goal Achievement Date, and, in
any event, no later than the date that is two and one-half months
following the last day of the Fiscal Year coinciding with or next
following the Performance Goal Achievement Date, either
(i) cause to be delivered to the Participant a certificate
evidencing such Shares (less any Shares withheld under
Section 4 below) or (ii) cause its third-party
recordkeeper to credit an account established and maintained in the
Participant’s name with such Shares (less any Shares withheld
under Section 4 below) as evidence of the issuance of Shares
pursuant to this Section 1. The Award shall be rounded to the
next lowest whole number of Shares in the event that the Award
would otherwise include fractional Shares. Notwithstanding the
foregoing, the Company may, in its sole discretion, settle the
Participant’s Award in the form of a cash payment.
2. Termination of Employment;
Change in Control .
(a) Termination for Cause .
Upon the Participant’s termination of employment with the
Company and its subsidiaries for Cause following a Performance Goal
Achievement Date but prior to the date on which the
Participant’s Award with respect to such Performance Goal is
distributed pursuant to Section 1(c), the Participant shall
forfeit the right to receive such Award or any subsequent Award
under this Agreement or the Plan.
(b) Termination upon Death or
Disability . If the Participant’s employment with the
Company and its subsidiaries is terminated as a result of the
Participant’s death or Disability prior to the last day of a
quarter and the last day of such quarter is a Performance Goal
Achievement Date, the Participant shall be entitled to receive a
pro-rata Award equal to the Award the Participant would have
received had the Participant remained employed until such
Performance Goal Achievement Date, 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
Participant’s termination of employment to (y) the
number of full days elapsed from the beginning of the Performance
Period to and including such Performance Goal Achievement Date.
Such Award shall be payable as soon as practicable following the
Performance Goal Achievement Date and, in any event, no later than
the date that is two and one-half months following the last day of
the Fiscal Year coinciding with or next following the Performance
Goal Achievement Date.
(c) Termination without Cause
. If the Participant’s employment with the Company and its
subsidiaries is terminated by the Company or a subsidiary without
Cause prior to the last day of a quarter and the last day of such
quarter is a Performance Goal Achievement Date, the Participant
shall be entitled to receive a pro-rata Award equal to the Award
the Participant would have received had the Participant remained
employed until such Performance Goal Achievement Date, 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 Participant’s termination of employment to (y) the
number of full days elapsed from the beginning of the Performance
Period to and including such Performance Goal Achievement Date.
Such Award shall be payable as soon as practicable following the
Performance Goal Achievement Date and, in any event, no
later than the date that is two and one-half
months following the last day of the Fiscal Year coinciding with or
next following the Performance Goal Achievement Date.
(d) Change of Control . In
the event of a Potential Change of Control, the Committee shall
determine Non-GAAP Earnings Per Share for the sum of the four
consecutive calendar quarters immediately preceding the most recent
Performance Goal Achievement Date, and if such amount equals or
exceeds 50% of the Performance Goal corresponding to the threshold
award level above, then, in the event of a Change of Control, the
Participant shall be entitled to rec
