exv10w17



 





Exhibit 10.17



AMENDED AND RESTATED

EXECUTIVE CHANGE OF CONTROL AGREEMENT




February 27, 2007




	 	 	 
	Julia Harper

2 Othello Street
	 	 
	Lake Oswego, OR 97035

	 	Executive
	 
	 	 
	RadiSys Corporation, an Oregon corporation

5445 NE Dawson Creek Parkway
	 	 
	Hillsboro, OR 97124

	 	the Company






     1. Employment Relationship. Executive is currently employed by the Company as Vice
President of Corporate Operations. 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 the later of (a) 21 days (or, if required by applicable
law, 45 days) from the date Executive receives the Release of Claims or (b) the last day of
Executive’s active employment.



     3. Additional Compensation Upon Certain Termination Events.



          3.1 Change of Control. In the event of a Termination of Executive’s Employment (as defined in
Section 6.1) (i) by the Company other than for Cause (as defined in Section 6.2), death or
Disability (as defined in Section 6.4), or (ii) by Executive for Good Reason, and provided any of
the events identified in the preceding clauses (i) and (ii) occurs within 12 months following a
Change of Control (as defined in Section 6.3 of this Agreement) or within three months preceding a
Change of Control, and contingent upon Executive’s execution of the Release of Claims without
revocation and compliance with Section 9, 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 twelve (12)
months of Executive’s annual base pay at the highest annual rate in effect at any time within the
12-month period preceding the date of termination. Severance pay that is payable under this
Agreement shall be paid to Executive on the date that is the earlier of (i) six months and one day
following Executive’s date of termination or (ii) the date of Executives death.




 









 








          (b) As an additional severance benefit, the Company will provide Executive with up to twelve
(12) months of continued coverage pursuant to COBRA under the Company’s group health plan at the
level of benefits (whether single of 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 12-month period.




          (c) All stock options, stock appreciation rights, restricted stock, restricted stock units,
performance shares, performance units and other similar awards granted to Executive under the
Company’s 1995 Stock Incentive Plan, 2001 Nonqualified Stock Option Plan or any other similar
incentive plan shall vest in full; all stock options, stock appreciation rights and other similar
purchase rights shall be immediately exercisable in full in accordance with the applicable
provisions of the relevant award agreement and plan; and any risk of forfeiture included in any
restricted stock, restricted stock unit, performance share, performance unit or other similar award
shall immediately lapse. Stock options that are not incentive stock options under the Internal
Revenue Code of 1986, as amended (the “Code”), and stock appreciation rights shall also be amended
to permit Executive to exercise such stock options and stock appreciation rights for a period of
time equal to the shorter of (i) the period of 90 days after the date of Executive’s termination;
or (ii) the longer of (A) the period ending on the 15th day of the 3rd calendar month
following the date at which the stock option or stock appreciation right would otherwise have
expired due to Executive’s termination based on the terms of the stock option or stock appreciation
right at the original grant date or (B) December 31 of the calendar year in which the stock option
or stock appreciation right would otherwise have expired due to Executive’s termination based on
the terms of the stock option or stock appreciation right at the original grant date. Such vesting
and extension of stock options and stock appreciation rights shall occur notwithstanding any
provision in any plan or award agreement which provides a shorter period of exercise following
termination of employment, and such vesting and lapsing of any risk of forfeiture shall occur
notwithstanding any provision in any plan or award agreement to the contrary. Any restricted stock
unit, performance share, or performance unit that vests, becomes immediately exercisable in full,
or is no longer subject to a risk of forfeiture pursuant to this clause (c) shall be paid or
settled at such time and in such manner so as to be exempt from the requirements of Code Section
409A or, to the extent that it cannot be so paid or settled, shall comply with the requirements of
Code Section 409A.




          3.2 Parachute Payments. Notwithstanding the foregoing, if the total payments and benefits to
be paid to or for the benefit of Executive under this Agreement would cause any portion of those
payments and benefits to be “parachute payments” as defined in Code Section 280G(b)(2), or any
successor provision, the total payments and benefits to be paid to or for the benefit of Executive
under this Agreement shall be reduced to an amount that would not cause any portion of those
payments and benefits to constitute “parachute payments.”




     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.




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          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. Other Agreements. If cash severance pay is payable to Executive under this
Agreement, cash severance pay shall not be payable to Executive under any other agreement with the
Company in effect at the time of termination (including but not limited to any employment
agreement, but excluding for this purpose any stock option, stock appreciation right, restricted
stock, restricted stock unit, performance share, performance unit or other similar award agreement
that may provide for accelerated vesting or related benefits).



     6. Definitions.



          6.1 Termination of Executive’s Employment. Termination of Executive’s Employment means that
(i) the Company has terminated Executive’s employment with the Company (including any subsidiary of
the Company) other than for Cause (as defined in Section 6.2), death or Disability (as defined in
Section 6.4), or (ii) Executive, by written notice to the Company, has terminated her employment
with the Company (including any subsidiary of the Company) for Good Reason (as defined below). For
purposes of this Agreement, Good Reason means:




          (a) a significant reduction by the Company or the surviving company in Executives 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;




          (b) a significant reduction by the Company or the surviving company in total benefits
available to Executive 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;




          (c) the Company or the surviving company requires Executive to be based more than 25 miles
from where Executives office is located immediately prior to the Change of Control except for
required travel on Company business to an extent substantially consistent with the business travel
obligations which Executive undertook on behalf of the Company immediately prior to the Change of
Control; or




          (d) the assignment of Executive to a different title, job or responsibilities that results in
a material decrease in the level of responsibility of Executive with respect to the surviving
company after the Change of Control when compared to Executives level of responsibility for the
Companys operations immediately prior to the Change of Control, provided that Good Reason shall not
exist if Executive continues to have substantially the same or a greater general level of
responsibility with respect to the former operations of the Company after the Change of Control as
Executive had prior to the Change of Control even if the former such operations are a subsidiary or
division of the surviving company.




          6.2 Cause. Termination of Executive’s Employment for “Cause” shall mean termination upon (a)
the willful and continued failure by Executive to perform substantially



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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.



          6.3 Change of Control. A Change of Control shall mean that one of the following events has
taken place:



          (a) The shareholders of the Company approve one of the following:





     (i) Any merger or statutory plan of exchange involving the Company (“Merger”) in
which the Company is not the continuing or surviving corporation or pursuant to which
Common Stock would be converted into cash, securities or other property, other than a
Merger involving the Company 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




     (ii) 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 the Company.



          (b) A tender or exchange offer, other than one made by the Company, 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 Securities Exchange Act of 1934, as amended
(the “Exchange Act”)), directly or indirectly, of securities representing more than 50 percent of
the voting power of outstanding securities of the Company.



          (c) The Company 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 the Company, except that if such
receipt shall occur during a tender offer or exchange offer described in (b) 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 Agreement by virtue of any transaction which results in
Executive, or a group of persons which includes Executive, acquiring, directly or


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indirectly, securities representing 20 percent or more of the voting power of outstanding
securities of the Company.




          6.4 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, 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.




     7. 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.



     8. Entire Agreement. The Company and Executive agree that the foregoing terms and conditions
constitute the entire agreement between the parties relating to the termination of Executives
employment with the Company under the conditions described in Section 3.1, that this Agreement
supersedes and replaces any prior agreements relating to the matters covered by this Agreement,
specifically the Executive Change of Control Agreement by and between Executive and the Company
dated October 3, 2001, and that there exist no other agreements between the parties, oral or
written, express or implied, relating to any matters covered by this Agreement.



     9. Resignation of Corporate Offices; Reasonable Assistance. 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 further agrees that, if
requested by the Company or the surviving company following a Change of Control, Executive will
continue her employment with the Company or the surviving company for a period of up to six months
following the Change of Control in any capacity requested, consistent with Executive’s area of
expertise, provided that Executive receives the same salary and substantially the same benefits as
in effect prior to the Change of Control. Executive agrees to provide the Company such written
resignation(s) and assistance upon request and that no severance will be paid until after such
resignation(s) or services are provided.



     10. 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.



     11. Amendment. No provision of this Agreement may be modified unless such modification is
agreed to in writing signed by Executive and the Company.



     12. 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.



     13. Code Section 409A. The parties intend that this Agreement and the severance pay and other
benefits provided hereunder comply with Code Section 409A to the extent



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applicable thereto. Notwithstanding any provision of this Agreement to the contrary, this Agreement
shall be interpreted and construed consistent with this intent, and the Company reserves the right
to amend or modify this Agreement without the consent of Executive to the extent deemed necessary
or appropriate to effectuate this intent or otherwise to comply with Code Section 409A, provided
that the Company shall use reasonable efforts to provide written notice to Executive within ten
(10) days of the date an amendment pursuant to this Section 13 is adopted by the Company, which
notice shall include a copy of the amendment and shall provide a general description of the terms
of the amendment and of the basis for the determination that such amendment is necessary or
appropriate to comply with Code Section 409A.



     14. Costs and Attorneys’ Fees. In the event of any administrative or civil action brought by
Executive to enforce the provisions of this Agreement, the Company shall pay Executive’s reasonable
attorneys’ fees through trial and/or on appeal.



RADISYS CORPORATION




	 	 	 	 	 	 	 	 	 
	By:
	 	/s/ Scott Grout	 	 	 	/s/ Julia Harper	 	 
	 

	 	 

Scott Grout, President and CEO
	 	 
	 	 

Julia Harper
	 	 






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EXHIBIT A




RELEASE OF CLAIMS




1. Parties.




     The parties to Release of Claims (hereinafter “Release”) are Julia Harper and RadiSys
Corporation, an Oregon corporation, as hereinafter defined.



     1.1 Executive and Releasing Parties.



          For the purposes of this Release, “Executive” means Julia Harper, and “Releasing Parties”
means Executive and her attorneys, heirs, legatees, personal representatives, executors,
administrators, assigns, and spouse.




     1.2 The Company and the Released Parties.



     For the purposes of this Release the “Company” means RadiSys Corporation, an Oregon
corporation, and “Released Parties” means the Company and its predecessors and successors,
affiliates, and all of each such entity’s officers, directors, employees, insurers, agents,
attorneys or assigns, in their individual and representative capacities.



2. Background And Purpose.




     Executive was employed by the Company. Executive’s employment is ending effective
                    under the conditions described in Section 3.1 of the Amended and Restated Executive
Change of Control Agreement (“Agreement”) by and between Executive and the Company dated February
27, 2007.



     The purpose of this Release is to settle, and the parties hereby settle, fully and finally,
any and all claims the Releasing Parties may have against the Released Parties, whether asserted or
not, known or unknown, including, but not limited to, claims arising out of or related to
Executive’s employment, any claim for reemployment, or any other claims whether asserted or not,
known or unknown, past or future, that relate to Executive’s employment, reemployment, or
application for reemployment.



3. Release.




          In consideration for the payments and benefits set forth in Section 3.1 of the Agreement and
other promises by the Company all of which constitute good and sufficient consideration, Executive,
for and on behalf of the Releasing Parties, waives, acquits and forever discharges the Released
Parties from any obligations the Released Parties have and all claims the Releasing Parties may
have as of the Effective Date (as defined in Section 4 below) of this Release, including but not
limited to obligations and/or claims arising from the Agreement or any other document or oral
agreement relating to employment compensation, benefits, severance or post-employment issues.
Executive, for and on behalf of the Releasing Parties, hereby releases the Released Parties from
any and all claims, demands, actions, or causes of action,



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whether known or unknown, arising from or related in any way to any employment of or past failure
or refusal to employ Executive by the Company, or any other past claim that relates in any way to
Executive’s employment, compensation, benefits, reemployment, or application for employment, with
the exception of any claim Executive may have against the Company for enforcement of the Agreement.
This Release includes any and all claims, direct or indirect, which might otherwise be made under
any applicable local, state or federal authority, including but not limited to any claim arising
under state statutes dealing with employment, discrimination in employment, Title VII of the Civil
Rights Act of 1964, the Civil Rights Act of 1991, the Americans With Disabilities Act, the Family
and Medical Leave Act of 1993, the Equal Pay Act of 1963, Executive Order 11246, the Rehabilitation
Act of 1973, the Uniformed Services Employment and Reemployment Rights Act of 1994, the Age
Discrimination in Employment Act (“ADEA”), the Older Workers Benefit Protection Act, the Fair Labor
Standards Act, the Oregon Fair Employment Practices Act, OR ST Section 659.030 et seq., Oregon wage
and hour laws, OR ST Section 652.010 et seq., the Oregon Family Leave Act, OR ST Section 659A.150
et seq., state wage and hour statutes, all as amended, any regulations under such authorities, and
any applicable contract (express or implied), tort, or common law theories. Further, Executive, for
and on behalf of the Releasing Parties, waives and releases the Released Parties from any claims
that this Release was procured by fraud or signed under duress or coercion so as to make the
Release not binding. Executive is not relying upon any representations by the Company’s legal
counsel in deciding to enter into this Release. Executive understands and agrees that by signing
this Release Executive, for and on behalf of the Releasing Parties, is giving up the right to
pursue any legal claims that Executive or the Releasing Parties may have against the Released
Parties. Provided, nothing in this provision of this Release shall be construed to prohibit
Executive from challenging the validity of the ADEA release in this Section of the Release or from
filing a charge or complaint with the Equal Employment Opportunity Commission or any state agency
or from participating in any investigation or proceeding conducted by the Equal Employment
Opportunity Commission or state agency. However, the Released Parties will assert all such claims
have been released in a final binding settlement.



     3.1 IMPORTANT INFORMATION REGARDING ADEA RELEASE. Executive understands and agrees
that:




	 	(a)	 	this Release is worded in an understandable way;
	 
	 	(b)	 	claims under the ADEA that may arise after the date of this Release are not waived;
	 
	 	(c)	 	the rights and claims waived in this Release are in exchange for additional consideration
over and above any consideration to which Executive was already undisputedly entitled;
	 
	 	(d)	 	Executive has been advised to consult with an attorney prior to executing this Release
and has had sufficient time and opportunity to do so;
	 
	 	(e)	 	Executive has been given a period of time of 21 days (or, if required by applicable law,
45 days) (the “Statutory Period”), if desired, to consider this Release and understands that
Executive may revoke her waiver and release of any ADEA




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	 	 	 	claims covered by this Release within seven (7) days from the date Executive executes
this Release. Notice of revocation must be in writing and received by RadiSys
Corporation, 5445 NE Dawson Creek Drive, Hillsboro, Oregon 97124 Attention: Vice
President, Human Resources within seven (7) days after Executive signs this Release;
	 
	 	(f)	 	any changes made to this Release, whether material or immaterial, will not restart the
running of the Statutory Period.





     3.2 Reservations Of Rights.



          This Release shall not affect any rights which Executive may have under any medical insurance,
disability plan, workers’ compensation, unemployment compensation, indemnifications, applicable
company stock incentive plan(s), or the 401(k) plan maintained by the Company.




     3.3 No Admission Of Liability.



          It is understood and agreed that the acts done and evidenced hereby and the release granted
hereunder is not an admission of liability on the part of Executive or the Company or the Released
Parties, by whom liability has been and is expressly denied.




4. Effective Date.




     The “Effective Date” of this Release shall be the eighth day after it is signed by
Executive.



5. No Disparagement.




     Executive agrees that henceforth Executive will not disparage or make false or adverse
statements about the Company or the Released Parties. The Company should report to Executive any
actions or statements that are attributed to Executive that the Company believes are disparaging.
The Company may take actions consistent with breach of this Release should it determine that
Executive has disparaged or made false or adverse statements about the Company or the Released
Parties.



     The Company agrees that henceforth the Company’s officers and directors will not disparage or
make false or adverse statements about Executive. Executive should report to the Company any
actions or statements that are attributed to the Company’s officers and directors that Executive
believes are disparaging. Executive may take actions consistent with breach of this Release should
it determine that the Company’s officers and directors have disparaged or made false or adverse
statements about Executive.



6. Confidentiality, Proprietary, Trade Secret And Related Information




     Executive acknowledges the duty and agrees not to make unauthorized use or disclosure of any
confidential, proprietary or trade secret information learned as an employee about the Company, its
products, customers and suppliers, and covenants not to breach that duty.



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Moreover, Executive acknowledges that, subject to the enforcement limitations of applicable law,
the Company reserves the right to enforce the terms of Executive’s Employee Agreement with the
Company and any section(s) therein. Should Executive, Executive’s attorney or agents be requested
in any judicial, administrative, or other proceeding to disclose confidential, proprietary or trade
secret information Executive learned as an employee of the Company, Executive shall promptly notify
the Company of such request by the most expeditious means in order to enable the Company to take
any reasonable and appropriate action to limit such disclosure.




7. Scope Of Release.




     The provisions of this Release shall be deemed to obligate, extend to, and inure to the
benefit of the parties; the Company’s parents, subsidiaries, affiliates, successors, predecessors,
assigns, directors, officers, and employees; and each party’s insurers, transferees, grantees,
legatees, agents, personal representatives and heirs, including those who may assume any and all of
the above-described capacities subsequent to the execution and Effective Date of this Release.



8. Entire Release.




     This Release and the Agreement signed by Executive contain the entire agreement and
understanding between the parties and, except as reserved in Sections 3 and 6 of this Release,
supersede and replace all prior agreements, written or oral, prior negotiations and proposed
agreements, written or oral. Executive and the Company acknowledge that no other party, nor agent
nor attorney of any other party, has made any promise, representation, or warranty, express or
implied, not contained in this Release concerning the subject matter of this Release to induce this
Release, and Executive and the Company acknowledge that they have not executed this Release in
reliance upon any such promise, representation, or warranty not contained in this Release.



9. Severability.




     Every provision of this Release is intended to be severable. In the event any term or
provision of this Release is declared to be illegal or invalid for any reason whatsoever by a court
of competent jurisdiction or by final and unappealed order of an administrative agency of competent
jurisdiction, such illegality or invalidity should not affect the balance of the terms and
provisions of this Release, which terms and provisions shall remain binding and enforceable.



10. References.




          The Company agrees to follow the applicable policy(ies) regarding release of employment
reference information.




11. Parties May Enforce Release.




     Nothing in this Release shall operate to release or discharge any parties to this Release or
their successors, assigns, legatees, heirs, or personal representatives from any rights, claims, or
causes of action arising out of, relating to, or connected with a breach of any obligation of any
party contained in this Release.



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12. Governing Law.




     This Release shall be construed in accordance with and governed by the laws of the State of
Oregon, without regard to its conflicts of laws provisions.



	 	 	 	 	 	 	 	 	 
	 

	 	 	 	Dated:	 	 	 	 
	 

Julia Harper

	 	 
	 	 	 	 

	 	 






	 	 	 	 	 
	STATE OF OREGON

	 	) 	 	 
	 

	 	)ss.
	 	 
	County of                    

	 	) 	 	 






     Personally appeared the above named Julia Harper and acknowledged the foregoing
instrument to be her voluntary act and deed.



	 	 	 	 	 	 	 	 	 	 	 
	 

	 	Before me:	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	NOTARY PUBLIC — OREGON	 	 
	 	 	 	 	 	 	My commission expires:                                        	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	RADISYS CORPORATION	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	By:

	 	 	 	 	 	Dated:	 	 	 	 
	 

	 	 

	 	 
	 	 	 	 

	 	 
	Its:
	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	 	 	 	 	 
	 

	 	On Behalf of RadiSys
Corporation and
“Company”	 	 	 	 	 	 	 	 







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