Exhibit 10.42
AMENDED AND
RESTATED
EXECUTIVE SEVERANCE
AGREEMENT
December 29, 2008
|
|
|
|
Anthony
Ambrose
|
|
|
|
Portland,
Oregon
|
|
Executive
|
|
|
|
RadiSys
Corporation, an Oregon corporation
|
|
|
|
5445 NE Dawson
Creek Parkway
|
|
|
|
Hillsboro, OR
97124
|
|
the
Company
|
1. Employment Relationship.
In order to induce Executive to become an employee of the Company,
this Agreement sets forth the severance benefits that Company will
provide to Executive in the event Executive’s employment by
the Company is terminated under the circumstances described herein.
Executive will be employed by the Company as Vice President and
General Manager of the Communication Networking Business Unit.
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 21
days (or, if required by applicable law, 45 days) from the last day
of Executive’s active employment. Executive shall forfeit the
severance benefits outlined in this Agreement in the event that he
fails to execute and deliver the Release of Claims to the Company
in accordance with the timing and other provisions of the preceding
sentence or revokes such Release of Claims prior to the
“Effective Date” (as such term is defined in the
Release of Claims) of the Release of Claims.
3. Additional Compensation Upon
Involuntary Termination.
3.1 Involuntary Termination .
In the event of a Termination of Executive’s Employment (as
defined in Section 5.1) other than for Cause (as defined in
Section 5.2), death or Disability (as defined in
Section 5.3), and contingent upon the approval of the
Compensation Committee of the Company’s Board of Directors
and Executive’s execution of the Release of Claims without
revocation within the time period described in Section 2 above
and compliance with Section 8, Executive shall be entitled to
the following benefits:
(a) As severance pay and in lieu of
any other compensation for periods subsequent to the date of
termination, the Company shall pay Executive, in a lump sum, an
amount equal to six (6) months of Executive’s annual
base pay at the rate in effect immediately prior to the date of
termination; provided, such lump sum amount shall not exceed two
times the lesser of (i) the sum of Executive’s
annualized compensation based upon the annual rate of pay for
services provided to the Company as an employee for the calendar
year preceding the calendar year of the Termination of
Executive’s Employment (adjusted for any increase during that
year that was expected to continue indefinitely but for the
Termination of Executive’s
Employment), or (ii) the
maximum amount that may be taken into account under a qualified
plan pursuant to Section 401(a)(17) of the Internal Revenue
Code of 1986, as amended (the “Code”), or any successor
provision, for the year of the Termination of Executive’s
Employment. Severance pay that is payable under this Agreement
shall be paid to Executive within 30 days following the
“Effective Date” (as such term is defined in the
Release of Claims) of the Release of Claims and in any event no
later than the end of the second calendar year following the
calendar year of the Termination of Executive’s
Employment.
(b) As an additional severance
benefit, the Company will provide Executive with up to six
(6) months of continued coverage pursuant to COBRA under the
Company’s group health plan at the level of benefits (whether
single or family coverage) previously elected by Executive
immediately before the Termination of Executive’s Employment
and to the extent that Executive elects to continue coverage during
such 6-month period.
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. Definitions.
5.1 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) other than for Cause (as defined in Section 5.2),
death or Disability (as defined in Section 5.3). A Termination
of Executive’s Employment is intended to mean a termination
of employment which constitutes a “separation from
service” under Code Section 409A.
5.2 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.
2
5.3 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, as determined by Executive’s
attending physician and in accordance with the Company’s
Medical Leave of Absence Policy, 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.
6. 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.
7. Entire Agreement. The
Company and Executive agree that the foregoing terms and conditions
constitute the entire agreement between the parties relating to the
matters covered by this Agreement, that this Agreement supersedes
and replaces any prior agreements relating to the matters covered
by this Agreement, specifically the Executive Severance Agreement
by and between Executive and the Company dated February 27,
2007, and that there exist no other agreements between the parties,
oral or written, express or implied, relating to any matters
covered by this Agreement.
8. Resignation of Corporate
Offices. 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
agrees to provide the Company such written resignation(s) upon
request and that no severance pay or other benefits will be paid
until after such resignation(s) are provided.
9. Governing Law. This
Agreement shall be construed in accordance with and governed by the
laws of the State of Oregon, without regard to its conflicts of
laws provisions.
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.
12. Code Section 409A.
This Agreement and the severance pay and other benefits provided
hereunder are intended to qualify for an exemption from Code
Section 409A, provided, however, that if this Agreement and
the severance pay and other benefits provided hereunder are not so
exempt, they are intended to comply with Code Section 409A to
the extent applicable thereto. Notwithstanding any provision of
this Agreement to the contrary, this Agreement shall be interpreted
and construed consistent with this intent, provided that the
Company shall not be required to assume any increased economic
burden in connection therewith. Although the Company intends to
administer this Agreement so that it will comply with the
requirements of
3
Code Section 409A, the Company does not
represent or warrant that this Agreement will comply with Code
Section 409A or any other provision of federal, state, local,
or non-United States law. Neither the Company, its subsidiaries,
nor their respective directors, officers, employees or advisers
shall be liable to Executive (or any other individual claiming a
benefit through Executive) for any tax, interest, or penalties
Executive may owe as a result of compensation paid under this
Agreement, and the Company and its subsidiaries shall have no
obligation to indemnify or otherwise protect Executive from the
obligation to pay any taxes pursuant to Code
Section 409A.