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Employment Severance Agreement

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EMPLOYEE SEVERANCE AGREEMENT | Document Parties: RadiSys Corporation You are currently viewing:
This Termination Severance Agreement involves

RadiSys Corporation

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Title: EMPLOYEE SEVERANCE AGREEMENT
Governing Law: Oregon     Date: 3/6/2009
Industry: Computer Networks     Sector: Technology

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Exhibit 10.41

EMPLOYEE SEVERANCE AGREEMENT

November 4, 2008

 

[Omitted]

  

Employee

RadiSys Corporation, an Oregon corporation

  

5445 NE Dawson Creek Parkway

  

Hillsboro, OR 97124

  

the Company

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.

 

 
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