Exhibit 10.41
EMPLOYEE SEVERANCE
AGREEMENT
November 4, 2008
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[Omitted]
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Employee
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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
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1. Employment Relationship.
In order to induce Employee to become an employee of the Company,
this Agreement sets forth the severance benefits that Company will
provide to Employee in the event Employee’s employment by the
Company is terminated under the circumstances described herein.
Employee will be employed by the Company as Vice President of
Global Operations. Employee 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, Employee agrees to
execute a Release of Claims in the form attached as Exhibit
A (“Release of Claims”). Employee 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 Employee’s active employment. Employee 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 Employee’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 Chief
Executive Officer or the President of the Company, and
Employee’s execution of the Release of Claims without
revocation within the time period described in Section 2 above
and compliance with Section 8, Employee 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 Employee, in a lump sum, an
amount equal to six (6) months of Employee’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 Employee’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 Employee’s
Employment (adjusted for any increase during that year that was
expected to continue indefinitely but for the Termination of
Employee’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 Employee’s
Employment. Severance pay that is payable under this Agreement
shall be paid to Employee 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 Employee’s
Employment.
(b) As an additional severance
benefit, the Company will provide Employee with up to six
(6) months of continued coverage (100% paid by the Company)
pursuant to COBRA under the Company’s group health plan at
the level of benefits (whether single or family coverage)
previously elected by Employee immediately before the Termination
of Employee’s Employment and to the extent that Employee
elects to continue coverage during such 6-month period. Each month
for which the Company pays COBRA premiums directly reduces the
total number of months of Employee’s COBRA continuation
entitlement.
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 Employee as the result of employment by another employer
after termination.
5. Definitions.
5.1 Termination of
Employee’s Employment. Termination of Employee’s
Employment means that the Company has terminated Employee’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 Employee’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
Employee’s Employment for “Cause” shall mean
termination upon (a) the willful and continued failure by
Employee to perform substantially Employee’s reasonably
assigned duties with the Company (other than any such failure
resulting from Employee’s incapacity due to physical or
mental illness) after a demand for substantial performance is
delivered to Employee by the Chief Executive Officer or the
President of the Company, which specifically identifies the manner
in which the Chief Executive Officer or the President of the
Company believes that Employee has not substantially performed
Employee’s duties or (b) the willful engaging by
Employee in illegal conduct which is materially and demonstrably
injurious to the Company. No act, or failure to act, on
Employee’s part shall be considered “willful”
unless done, or omitted to be done, by Employee without reasonable
belief that Employee’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 Employee in the best interests
of the Company.
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5.3 Disability.
“Disability” means Employee’s absence from
Employee’s full-time duties with the Company for 180
consecutive calendar days as a result of Employee’s
incapacity due to physical or mental illness, as determined by
Employee’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 Employee shall have returned to the full-time performance
of Employee’s duties. This Agreement does not apply if the
Employee 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
Employee and Employee’s legal representatives, executors,
administrators and heirs.
7. Entire Agreement. The
Company and Employee 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, and that there exist no other agreements between
the parties, oral or written, express or implied, relating to any
matters covered by this Agreement; provided, however, this
Agreement does not supersede or replace the Executive Change of
Control Agreement by and between Employee and the Company dated
November 4, 2008.
8. Resignation of Corporate
Offices. Employee will resign Employee’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
Employee serves as such at the request of the Company, effective as
of the date of termination of employment. Employee 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 Employee 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 the
Agreement to the contrary, the Agreement shall be interpreted and
construed consistent with this intent, provided that the Company
shall not be
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required to assume any increased economic burden
in connection therewith. Although the Company intends to administer
the Agreement so that it will comply with the requirements of Code
Section 409A, the Company does not represent or warrant that
the 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
Employee (or any other individual claiming a benefit through
Employee) for any tax, interest, or penalties Employee may owe as a
result of compensation paid under the Agreement, and the Company
and its subsidiaries shall have no obligation to indemnify or
otherwise protect Employee from the obligation to pay any taxes
pursuant to Code Section 409A.