EXHIBIT 10.30
EXECUTIVE OFFICER CHANGE IN CONTROL AGREEMENT
EXECUTIVE OFFICER CHANGE IN CONTROL AGREEMENT entered into this 31st
day of January, 2003, by and between Teradyne, Inc., a Massachusetts corporation
("Teradyne"), and the undersigned executive officer of Teradyne ("Employee").
WITNESSETH:
WHEREAS, Teradyne and Employee desire to set forth certain terms and
conditions relating to benefits to be afforded to Employee upon the occurrence
of a Change in Control (as hereinafter defined) of Teradyne;
NOW THEREFORE, in consideration of the premises and of the mutual
covenants and agreements hereinafter set forth, the parties hereto hereby agree
as follows:
1. Option Acceleration. (a) during the Term (as hereinafter defined),
if within twenty-four (24) months following a Change in Control there is a
Termination Event (as hereinafter defined), all of Employee's unvested Options
granted prior to, on, or after the date hereof (but only (I) such Options as
have been granted to Employee by Teradyne as of the date of the Change in
Control or (II) such Options as have been assumed by an acquiring company at the
time of a Change in Control or such new options that have been substituted by an
acquiring company for Options existing at the time of a Change in Control, each
pursuant to the terms of any Teradyne option plan) shall automatically become
fully vested as of the date of such Termination Event. The parties hereto
acknowledge that the terms of this Agreement are intended to modify the terms of
Employee's existing Option agreements and to be a supplement to future Option
agreements.
(b) For purposes of this Agreement, the following terms shall
have the following meanings:
"Cause" shall mean conduct involving one or more of the
following: (i) the substantial and continuing failure of Employee, after notice
thereof, to render services to Teradyne in accordance with the terms or
requirements of his or her employment; (ii) Employee's disloyalty, gross
negligence, willful misconduct, dishonesty, fraud or breach of fiduciary duty to
Teradyne; (iii) Employee's deliberate disregard of the rules or policies of, or
breach of an agreement with, Teradyne which results in direct or indirect loss,
damage or injury to Teradyne; (iv) the unauthorized disclosure by Employee of
any trade secret or confidential information of Teradyne; or (v) the commission
by Employee of an act which constitutes unfair competition with Teradyne.
A "Change in Control" shall be deemed to have occurred upon
the occurrence of any of the following events: (i) any consolidation, cash
tender offer, reorganization,
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recapitalization, merger or plan of share exchange following which the
shareholders of Teradyne immediately prior to such transaction own less than a
majority of the combined voting power of the then-outstanding securities of the
combined corporation or person immediately after such transaction; (ii) any
sale, lease, exchange or other transfer of all or substantially all of
Teradyne's assets; (iii) the adoption by the Board of Directors of Teradyne of
any plan or proposal for the liquidation or dissolution of Teradyne; (iv) a
change in the majority of the Board of Directors of Teradyne through one or more
contested elections; or (v) any person (as that term is used in Section 13(d)(3)
or Section 14(d)(2) of the Exchange Act of 1934, as amended) becomes beneficial
owner of 30% or more of the combined voting power of Teradyne's outstanding
voting securities.
"Good Reason" shall mean any one or more of the following: (i)
any material reduction of Employee's responsibilities (other than for Cause or
as a result of death or disability); (ii) any material reduction in Employee's
model compensation as in effect on the date of the consummation of the Change in
Control, or as the same may be increased from time to time, or any failure by
Teradyne to pay to Employee any bonus accrued, but not yet paid, upon written
notice by Employee to Teradyne, within 45 days; (iii) a material reduction in
the value of Employee's benefit package from the value of Employee's benefit
package on the date of the consummation of the Change in Control; or (iv) any
permanent assignment of Employee to a job location situated more than 50 miles
away from his current job location.
"Option" shall mean an option to purchase shares of Teradyne
Common Stock.
"Termination Event" shall mean (i) any termination of Employee
by Teradyne without Cause or (ii) any voluntary termination by Employee for Good
Reason.
2. (a) Parachute Payment Gross-Up. If any Payments (as hereinafter
defined) to Employee are subject to the Excise Tax (as hereinafter defined),
Teradyne shall pay to Employee a Gross-Up Payment (as hereinafter defined). The
Gross-Up Payment with respect to any Payment shall be paid no later than 15 days
prior to the date that the Excise Tax is due with respect to such Payment.
(b) Definitions. For purposes of this Section 2, the following
terms shall have the following meanings:
(i) "Code" shall mean the Internal Revenue Code of 1986, as
amended.
(ii) "Excise Tax" shall mean the tax imposed by Section 4999
of the Code. The amount of the Excise Tax (if any)
imposed on any non-cash benefits or any deferred
payment or benefit shall be reasonably determined by
Teradyne, after consultation with its legal and tax
advisors.
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(iii) "Gross-Up Payment" shall mean, with respect to
Payments to the Employee, the amount necessary so that
the amount retained by Employee, after reduction for
(1) any Excise Tax on the Gross-Up Payment and (2) any
federal, state, or local income and employment taxes
imposed on the Gross-Up Payment, is an amount equal to
the Excise Tax on the Payments to Employee, other than
the Gross-Up Payment. The amount of the Gross-Up
Payment shall be reasonably determined by Teradyne
after consultation with its legal and tax advisors.
(1) For purposes of determining the amount of the
Gross-Up Payment, Employee shall be deemed to
pay federal income taxes at the highest
marginal rate of federal, state and local
income tax in the calendar year in which the
Gross-Up Payment is made (determined by
reference to Employee's residence for such
calendar year), net of the maximum reduction
in federal income taxes which could be
obtained from deduction of such state and
local taxes.
(2) In the event that the Excise Tax with respect
to the Payments is determined to exceed the
amount taken into account hereunder, Teradyne
shall make an additional Gross-Up Payment in
respect of such excess. For purposes of
calculating such Gross-Up Payment, any
interest or penalties imposed in connection
with such excess Excise Tax shall be treated
as an Excise Tax.
(3) In the event that the Excise Tax with respect
to the Payments is subsequently determined to
be less than the amount taken into account
for purposes of calculating the Gross-Up
Payment, Employee shall promptly repay to
Teradyne the after-tax portion of the
Gross-Up Payment that exceeds the Gross-Up
Payment that otherwise would have been
payable in connection with the actual Excise
Tax imposed on the Payments.
(iv) "Payment" shall mean, with respect to the Employee,
any payment in the nature of compensation to (or for
the benefit of) such individual, if such payment is
contingent on a change (i) in the ownership or
effective control of Teradyne or (ii) in the ownership
of a substantial portion of the assets of Teradyne (in
each case, as reasonably determined by Teradyne in
accordance with Section 280G(b)(2) of the Code and the
regulations promulgated thereunder). Notwithstanding
the foregoing, any amount payable to (or for the
benefit of) the Employee shall be a Payment if an
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Excise Tax is imposed on the Employee with respect to
such payment or benefit, and such payment or benefit
is contingent on a change (i) in the ownership or
effective control of Teradyne or (ii) in the ownership
of a substantial portion of the assets of Teradyne
(in each case, determined in accordance with Section
280G(b)(2) of the Code and the regulations promulgated
thereunder).
3. No Obligation of Employment. Employee understands that the
employment relationship between Employee and Teradyne will be "at will" and
Employee understands that, prior to any Change in Control, Teradyne may
terminate Employee with or without "Cause" at any time. Following any Change in
Control, Teradyne may also terminate Employee with or without "cause" at any
time subject to Employee's rights and Teradyne's obligations specified in this
Agreement.
4. Governing Law. This Agreement shall be governed by and construed in
accordance with the internal laws of the Commonwealth of Massachusetts and this
Agreement shall be deemed to be performable in Massachusetts.
5. Severability. In case any one or more of the provisions contained in
this Agreement for any reason shall be held to be invalid, illegal or
unenforceable in any respect, such invalidity, illegality or unenforceability
shall not affect any other provision of this Agreement and this Agreement shall
be construed to the maximum extent permitted by law.
6. Waivers and Modifications. This Agreement may be modified, and the
rights, remedies and obligations contained in any provision hereof may be
waived, only in accordance with this Section 6. No waiver by either party of any
breach by the other or any provision hereof shall be deemed to be a waiver of
any later or other breach thereof or as a waiver of any other provision of this
Agreement. This Agreement may not be waived, changed, discharged or terminated
orally or by any course of dealing between the parties, but only by an
instrument in writing signed by the party against whom any waiver, change,
discharge or termination is sought.
7. Assignment. Employee may not assign any of his rights or delegate
any of his duties or obligations under this Agreement. The rights and
obligations of Teradyne under this Agreement shall inure to the benefit of, and
shall be binding upon, the successors and assigns of Teradyne. For purposes of
this Agreement, "Teradyne" shall be deemed to include all successors and assigns
of Teradyne.
8. Entire Agreement. This Agreement constitutes the entire
understanding of the parties relating to the subject matter hereof and
supersedes and cancels all agreements, written or oral, made prior to the date
hereof between Employee and Teradyne relating to the subject matter hereof;
provided, however, that Employee's existing option agreements, as modified
hereby, shall remain in effect.
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9. Notices. All notices hereunder shall be in writing and shall be
delivered in person or mailed by certified or registered mail, return receipt
requested, addressed as follows:
If to Teradyne, to: Teradyne, Inc.
321 Harrison Avenue
Boston, MA 02118
Attention: General Counsel
If to Employee, at Employee's address set forth on the signature page
hereto.
10. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed to be an original, but all of which
together shall constitute one and the same instrument.
11. Section Headings. The descriptive section headings herein have been
inserted for convenience only and shall not be deemed to define, limit, or
otherwise affect the construction of any provision hereof.
12. Term. The term of this Agreement (the "Term") shall commence upon
the date hereof and terminate upon the earlier of (i) twenty-four (24) months
following any Change in Control of Teradyne, (ii) the date prior to any Change
in Control of Teradyne that employee for any reason ceases to be an employee of
Teradyne and (iii) the date following any Change in Control of Teradyne that
Employee is terminated for Cause or voluntary terminates his employment (other
than for Good Reason).
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
day and year first above written.
TERADYNE, INC.
By: /s/ George W. Chamillard
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Name: George W. Chamillard
Title: Chairman, Chief Executive
Officer and President of
Teradyne, Inc.
EMPLOYEE
By: /s/
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Name: Eileen Casal
Address: 41 Commonwealth Avenue
Boston, Mass. 02116