Termination Agreement

Change in Control

EX-10.38 7 dex1038.htm EMPLOYMENT AGREEMENT BETWEEN TERADYNE AND MICHAEL A. BRADLEY

Exhibit 10.38

 

EMPLOYMENT AGREEMENT

 

In consideration of my at-will employment by Teradyne, Inc., a corporation of the Commonwealth of Massachusetts (herein referred to as “the Company”), and the payments made to me as consequence thereof and specifically the grant of an option in 2004 to purchase common stock of the Company, I agree that I will promptly report to an officer of the Company or to such other individual as may from time to time be designated, all inventions and new ideas which I, alone or with others, have conceived or reduced to practice since the time of entering the employment of the Company in respect to any subject matter relating to the business in which the Company is engaging as of the date of conception or reduction to practice of each such invention or new idea. This obligation ceases with termination of my employment with the Company.

 

I further agree to assign to the Company the entire interest throughout the world in all inventions and new ideas referred to in the proceeding paragraph, whether or not reported by me, and to execute all papers and do anything necessary and reasonable to secure to the Company title therein and Letters Patent pertaining thereto including the giving of testimony in any suit if called so to do during or after my employment but all at the expense of the Company. I also waive all claims to moral rights in any Inventions.

 

All inventions and new ideas that would fall within the scope of this agreement, but for the fact that they were conceived prior to my employment by the Company, may be excluded from this agreement only if I can establish, under applicable inventorship law, a date of conception prior to my entering the employment of the Company.

 

I further agree that I will make a written record of all inventions and new ideas falling within the scope of this agreement in the form of notes, sketches, drawing, or reports relating thereto, which records shall be and remain the property of and available to the Company at all times.

 

I further agree that I will not, during or after the period of my employment with the Company, divulge to any unauthorized persons confidential information concerning the Company’s business, technology, and activities that I learn during the period of my employment, or use any such information except on the Company’s behalf.

 

I further agree that I will observe all rules and regulations laid down by the Government agencies relating to the safeguarding of classified information that may be disclosed or entrusted to me in connection with any contract between the Company and the Government or any contractor with the Government.

 

I further agree that during the period of my employment by the Company, and for a period of one year after my employment ceases for any reason, excluding an involuntary termination by the Company for other than Cause, I will notdirectly or indirectly enter the employment of, or render any professional services, including but not limited to as an independent contractor, consultant, director, partner, owner or otherwise, except such as are rendered at the request of the Company, to any individual, partnership, association or corporation who or which is a competitor of the Company without the prior permission in writing of the Company. For purposes of this Agreement, “Cause” shall mean (a) a good faith finding by the Company of a failure by me to perform my assigned duties for the Company, dishonesty, gross negligence or misconduct, (b) a failure by me to comply with the Company’s published standards of business conduct; and (c) my conviction of, or the entry of a plea of guilty or nolo contendere by me to, any crime involving moral turpitude or any felony. Competitor includes, but is not limited to, any business or enterprise that develops, designs, produces, markets, sells or renders any product or service or intends to do so that is competitive with any product or service developed, produced, marketed, sold or rendered by the Company, including actual or demonstrably anticipated research or development. I further agree that I will notify the Company of any outside employment in which I am engaged during the period of my employment with the Company.

 

I further agree that during the period of my employment with the Company, and for a period of one year after my employment ceases for any reason, I will not (except on the Company’s behalf) solicit (for the purpose of providing a product or service that is competitive with the Company) any customer or prospective customer of the Company that was contacted, solicited or served by me within the five year period immediately preceding the termination of my employment with the Company.

 

I further agree that during the period of my employment with the Company, and for a period of one year after my employment ceases for any reason, I will not recruit, solicit, hire, or engage as an employee or an independent contractor, any employee or former employee, excluding any former employee whose employment with the Company has been terminated for a period of six months or longer.

 

Due to the global market in which the Company operates, the geographic scope of this Agreement shall extend to anywhere the Company or its subsidiaries do business, have done business or have plans to do business.

 

This Agreement supersedes all previous agreements between me and the Company relating to the subject matter hereof, and may not be modified on behalf of the Company in whole or in part except by a statement in writing signed by an authorized officer of the Company.

 

I further agree that if any one or more provisions in this agreement are deemed unenforceable, they will be reformed to the extent necessary to make them enforceable, and the remaining provisions of the agreement will continue in full force and effect.

 

I further agree that this Agreement shall be governed by and construed as a sealed instrument under and in accordance with the laws of the Commonwealth of Massachusetts without regard to conflict of laws provisions. Any action, suit or other legal proceeding that is commenced to resolve any matter arising under or relating to any provision of this Agreement shall be commenced only in a court of the Commonwealth of Massachusetts (or, if appropriate, federal court located within Massachusetts), and I consent to the jurisdiction of such a court.

 

I acknowledge that I have carefully read this Agreement and understand and agree to all the provisions in this Agreement.

 

Signed at:                     Boston                      this         30th         day of         July        , 2004

 

Employee Signature:             /s/ Michael A. Bradley             Teradyne Signature:             /s/ Loren Eaton            

 

Non-CA (MA, NH & IL) Exec. Emp. Agree.

April, 2004





EX-99.6 7 dex996.htm AMENDEND AND RESTATED AGREEMENT REGARDING TERMINATION BENEFITS

Exhibit 99.6

AMENDED AND RESTATED AGREEMENT REGARDING TERMINATION BENEFITS

This “Amended and Restated Agreement Regarding Termination Benefits” (“Agreement”) is entered into as of December 30, 2008 (the “Effective Date”) between Teradyne, Inc., a Massachusetts Corporation with a principal office at 600 Riverpark Drive, North Reading, MA 01864 (the “Company”) and Michael A. Bradley, the Chief Executive Officer (CEO) and President of the Company, with a residential address of [INTENTIONALLY OMITTED] (“Executive”).

WHEREAS, the Company and Executive have agreed on certain Termination Benefits in the event the Executive’s employment with the Company terminates under the conditions described herein.

NOW, THEREFORE, in consideration of the premises and the mutual covenants and agreements contained herein, the Company and the Executive agree as follows:

1. Effective Date and Term: This Agreement shall become effective as of the date set forth in the opening paragraph. Subject to the provisions of Sections 4 and 9 below and unless earlier terminated as permitted herein, this Agreement shall continue in effect for a period of three (3) years from the Effective Date (“Term”) and thereafter, the Term shall automatically be extended for additional one-year periods unless, not later than sixty (60) days prior to the end of the then current Term, the Company shall have given notice to the Executive not to extend the then current Term.

2. Definitions: For purposes of this Agreement, capitalized terms shall be defined as follows:

Model Compensation” shall mean the Executive’s annual “model compensation” as determined by the Company’s Compensation Committee or Board of Directors, which consists of (a) a fixed annual salary and (b) a target annual variable amount.

Cause” shall mean conduct involving one or more of the following: (i) the substantial and continuing failure of the Executive, after notice thereof, to render services to Company in accordance with the terms or requirements of his employment, as established by the Company Board of Directors from time to time and communicated to the Executive; (ii) the Executive’s disloyalty, gross negligence, willful misconduct, dishonesty, fraud or breach of fiduciary duty to the Company [each in connection with the Executive’s employment by the Company]; (iii) the Executive’s deliberate disregard of the rules or policies of, or breach of an agreement with, Company which results in direct or indirect material loss, damage or injury to the Company; (iv) the intentional, unauthorized disclosure by the Executive of any trade secret or confidential information of the Company; (v) the commission by the Executive of an act which constitutes unfair

 

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competition with the Company or (vi) the conviction of, or the entry of a plea of guilty or nolo contendere by the Executive, to any crime involving moral turpitude or any felony. [In the event that the Company determines that Cause may exist pursuant to clauses (i), (iii) and (v) above, the Company shall give the Executive written notice of the facts constituting such Cause and the Executive shall have thirty (30) days following receipt of such notice to remedy such Cause.]

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, re-capitalization, merger or plan of share exchange following which the capital stock of the Company immediately prior to such transaction constitutes 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 the Company’s assets; (iii) the adoption by the Board of Directors of Company of any plan or proposal for the liquidation or dissolution of the Company; (iv) a change in the majority of the Board of Directors of the Company through one or more contested elections occurring within a three year period; 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 the Company’s outstanding voting securities other than (A) as a result of a consolidation, reorganization, recapitalization, merger or plan of share exchange following which the capital stock of the Company outstanding immediately prior to such transaction constitutes at least a majority of the combined voting power of the then-outstanding securities of the combined corporation or person immediately after such transaction, (B) by any trustee or other fiduciary holding securities under an employee benefit plan of the Company, or (C) by a person temporarily acquiring beneficial ownership in its capacity as an underwriter (as defined pursuant to Section 2(a)(11) of the Securities Act of 1933, as amended) in connection with a public offering of the Company’s securities.

Code” shall mean the Internal Revenue Code of 1986, as amended.

Company” shall mean “Teradyne, Inc. and shall include its successors and assigns, and any corporation or other entity which is the surviving or continuing entity following a merger, consolidation, or sale of all or substantially all of the Company’s assets or stock.

Competitor” includes, but is not limited to, any business or enterprise that develops, designs, produces, markets, sells, or renders any product or service developed, produced, marketed, sold or rendered by the Company, including actual or demonstrably anticipated research or development.

Date of Termination” shall mean the last day of Executive’s employment with the Company.

 

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Disability” shall mean an illness, injury or other incapacitating condition as a result of which the Executive is absent from full time performance of his duties with the Company or is unable to perform his duties and responsibilities for a period of sixty (60) consecutive days during the Term or a period or periods aggregating to more than ninety (90) days in any consecutive six (6) month period but shall not include death.

Equity Awards” shall mean the equity ownership, participation or appreciation opportunities provided by the Company to Employee pursuant to incentive plans that the Company maintains, including but not limited to its 2006 Equity and Cash Compensation Incentive Plan, the Teradyne, Inc. 1991 Employee Stock Option Plan and the Teradyne, Inc. 1997 Employee Stock Option Plan, and any stock options, restricted stock units, restricted stock, stock appreciation rights, phantom stock and other stock-based awards granted thereunder.

Restricted Activities” shall include the following:

 

 

a)

Recruiting, soliciting, hiring or engaging, as an employee or independent contractor, any employees or former employees (excluding any former employee whose employment with the Company or its subsidiaries has been terminated for a period of six months or longer) of the Company or its subsidiaries;

 

 

b)

Soliciting, enticing, or encouraging employees of the Company or its subsidiaries to leave employment with the Company or its subsidiaries;

 

 

c)

Soliciting (for the purpose of providing a product or service that is competitive with the Company) any customer or prospective customer of the Company or its subsidiaries;

 

 

d)

Soliciting, enticing, advising, encouraging, or inducing (i) customers of the Company or its subsidiaries to discontinue or alter their business relationship or (ii) customers or prospective customers to refrain from entering into a business relationship with the Company or its subsidiaries;

 

 

e)

Entering the employment, rendering any professional services or taking a position as an officer, director, partner, owner, consultant, independent contractor, advisory board or committee member, principal, agent, employee or 10% or more shareholder with or to any individual, partnership, association or corporation which is a Competitor of the Company or its subsidiaries; but this clause (e) shall not preclude the Executive from rendering services to an entity that competes with an entity that has acquired Teradyne, Inc. (an “Acquirer”) so long as (i) the Executive’s services do not involve products or services that are competitive to those that were produced, marketed, sold or rendered by Teradyne, Inc. or any of its subsidiaries (including actual or demonstratively anticipated research or development) before the

 

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acquisition (“Teradyne Product/Services”) and (ii) the Executive is not retained as an Officer of the Acquirer following the consummation of the acquisition to render services involving the Acquirer’s products and services which are not Teradyne Products/Services.

 

 

f)

Establishing, funding, purchasing or managing a business which is competitive with the business of the Company or its subsidiaries.

3. Employment & Agreement Consideration: In consideration of (a) the Executive’s “at-will” employment with the Company and the compensation payments made to the Executive as CEO and President and (b) the Company’s willingness to enter into an agreement regarding termination benefits, specifically this Agreement, the Executive covenants and agrees that during the Term of this Agreement and for two (2) years after the Executive’s Date of Termination resulting from the Executive’s resignation, retirement or a termination by the Company for Cause, the Executive will not directly or indirectly engage in any of the Restricted Activities.

4. Termination Benefits and Covenants:

4.1 For the Executive: In consideration of, and as condition to, the performance by the Executive of the covenants, undertakings and other agreements set forth in Section 4.3 below, and for so long as the Executive performs such obligations, the Company shall provide the Termination Benefits described in subsections (a)-(f) below to the Executive if his employment with the Company is terminated by the Company for any reason other than for death, Disability, or Cause, provided that such termination by the Company does not trigger or entitle the Executive to any payments or benefits under the Amended and Restated Executive Officer Amended and Restated Change in Control Agreement dated contemporaneously herewith (the “Change in Control Agreement”). If the Executive’s employment with the Company is terminated within twenty-four (24) months following a Change in Control or within three (3) months prior to an actual Change in Control, then the terms and conditions of the Change in Control Agreement shall govern such employment termination and the Executive shall not be entitled to the payments and benefits described below.

(a) Continued Payments: Unless otherwise required under Section 4.1(b) below, the Company shall pay monthly to the Executive an amount equal to  1/12th of his current annual Model Compensation as of the Date of Termination for a period of twenty-four (24) months from the Date of Termination (the “Severance Period”). Except as otherwise expressly provided herein, under no circumstances shall the Executive receive more than a total of twenty-four (24) months of payments under this Agreement. All such continued payments shall be in accord with the Company’s customary pay practices.

(b) Deferred Compensation/Section 409A.

(i) Notwithstanding any other provision of this Agreement, if the Executive is a “specified employee” at the time of Executive’s “separation

 

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from service,” as defined in Section 409A of the Code, all payments, benefits, or removal of restrictions on the transfer of equity under this Agreement with respect to Executive’s separation from service that constitute compensation deferred under a nonqualified deferred compensation plan as defined in Section 409A of the Code to which such specified employee would otherwise be entitled during the first six months following the date of separation from service shall be made on the first day of the seventh month after the date of separation from service (or, if earlier, the date of death of the Executive).

(ii) For purposes of this Agreement, each amount to be paid or benefit to be provided shall be construed as a separate identified payment for purposes of Section 409A, and any payments that are due within the “short term deferral period” as defined in Section 409A or payments that are made under separation pay plans as described in Treasury Regulation Section 1.409A-1(b)(ii), (iii) or (iv), shall not be treated as deferred compensation unless applicable law requires otherwise. Neither the Company nor the Employee shall have the right to accelerate or defer the delivery of any payments or benefits under this Agreement except to the extent specifically permitted or required by Section 409A.

(iii) This Agreement is intended to comply with the provisions of Section 409A and the Agreement shall, to the extent practicable, be construed in accordance therewith. Terms defined in the Agreement shall have the meanings given such terms under Section 409A if and to the extent required to comply with Section 409A. In any event, the Company makes no representations or warranty and shall have no liability to Executive or any other person if any provisions of or payments under this Agreement are determined to constitute deferred compensation subject to Code Section 409A but not to satisfy the conditions of that section.

(c) Benefits: During the Severance Period, the Company shall arrange or provide for continued health, dental and vision insurance plan coverage for the Executive at the same levels of coverage in existence prior to the Date of Termination subject to the Company and Executive each contributing to the applicable insurance premium payments on the same basis and in the same proportions as in existence at the Date of Termination. If the Executive is not eligible for continued health, dental and vision insurance plan coverage for any portion of the Severance Period, the Company shall provide or reimburse the Executive for comparable individual insurance and, if such provision or reimbursement constitutes taxable income to the Executive, such additional amount as is necessary to place the Executive in substantially the same after tax position as he was while an employee of the Company with respect to such insurance plan coverages. All other benefits, including but not limited to flex/vacation time accrual, short and long term disability insurance, life insurance, contributions (including company matches) into savings plan and savings plan plus, profit sharing payments and participation in the employee stock purchase plan shall cease as of the Date of Termination.

 

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To the extent that amounts paid by the Company to provide benefits under this paragraph (c), are deemed to be deferred compensation subject to Section 409A, then such payments shall be made monthly and to the extent any such benefits are reimbursements of expenses incurred by the Executive then the expenses eligible for reimbursement in one taxable year may not effect the expenses eligible for reimbursement in another taxable year; such reimbursement must be made on or before the last day of the year following the year in which the expenses are incurred; and the right to reimbursement is not subject to liquidation or exchange for another benefit.

(d) Equity Awards: All unvested Equity Awards held by the Executive as of the date of the Executive’s termination by the Company shall continue to vest during the Severance Period as if the Executive’s employment had not been terminated. Except as modified in this Section 1(d), the terms of the applicable equity Plan(s) and Equity Award Agreements (including any successor plans and agreements) under which the Equity Awards were granted to the Executive shall continue to govern all of the Executive’s Equity Awards.

(e) Taxes and Withholdings: All payments made by the Company to the Executive under this Agreement shall be net of any applicable taxes (whether local, state, federal, provincial or otherwise) or other required or voluntary withholdings or deductions.

(f) Notwithstanding anything to the contrary herein, in the event the Executive dies after (i) his employment with the Company has been terminated for any reason other than Death, Disability and Cause and (ii) his right to the Termination Benefits stated in Section 4.1 has attached, the Company agrees that the Executive’s estate, conservator or designated beneficiary(ies), as the case may be, shall be entitled to the remainder of the Executive’s Termination Benefits described in Section 4.1.

4.2 Notwithstanding the preceding Section 4.1 and in consideration of, and as condition to, the Executive providing to the Company the covenants and agreements set forth in Section 4.3 below, the Company agrees that if the Executive’s employment with the Company is terminated by the Company for Disability, the Company shall, unless otherwise required under Section 4.1(b) above:

(a) provide the monthly payments described in Section 4.1(a) above, as reduced pursuant to 4.2(b) below, to the Executive for each month during the two (2) year period following his termination during which the Executive does not receive or is no longer eligible to receive any Company disability insurance benefits under the applicable insurance policy or program(s), other than as a result of Executive’s intentional malfeasance or death; and

 

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(b) under this Section 4.2, reduce each monthly payment described in Section 4.1(a) above to the Executive by any compensation received by the Executive from other employment, consulting or the rendition of services outside the Restricted Activities.

The Executive agrees to use his best efforts to obtain and maintain any benefits from any disability policy or program under which he is an insured party or participant.

4.3 Executive’s Covenants: In consideration of, and as a condition to, the Company providing to the Executive the Termination Benefits set forth in Sections 4.1 and 4.2, the Executive covenants and agrees:

(a) that during the Term of this Agreement and for two (2) years after the Executive’s Date of Termination resulting from a termination by the Company for any reason other than for Death or Disability and so long as such termination does not trigger or entitle the Executive to any payments or benefits under the Change in Control Agreement, the Executive will not directly or indirectly engage in any of the Restricted Activities.

(b) to sign a valid, binding, irrevocable general release of any claims he has or may have against the Company, including its subsidiaries, in connection with or relating to his employment by and/or termination from employment with the Company in the form attached hereto as Attachment A, within twenty-one (21) days of his Date of Termination resulting from a termination by the Company, provided further that the Company shall be permitted to defer any payments and any benefits provided for in this Agreement whether pursuant to Sections 4.1(b) and 4.3(b) or otherwise until the tenth day after the later of the receipt of such release and the time at which the release has become valid, binding and irrevocable; provided that if the last day on which the Company would be permitted to commence payments and benefits under this Agreement in accordance with this provision falls in the taxable year following the taxable year in which the Date of Termination occurs, then all benefits and payments shall be made beginning in that taxable year. Notwithstanding the foregoing, the Company agrees and hereby acknowledges that the Release contained in Attachment A is not intended to and does not (i) apply to any claims the Executive may bring to enforce the terms of this Agreement, the Change in Control Agreement, or any outstanding Equity Award Agreement and applicable equity Plan; (ii) release the Company of any obligation it may have pursuant to a written agreement, the Company’s articles or organization or bylaws or as mandated by statute to indemnify the Executive as an officer or director of the Company; and (iii) release the Company of any obligation to provide and/or pay benefits to the Executive or the Executive’s estate, conservator or designated beneficiary (ies) under and in accordance with the terms of any applicable Company benefit plan and/or program.

 

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(c) to continue to comply with any post-termination obligations he may have to the Company arising from this Agreement or any other agreement the Executive has with the Company, its subsidiaries, affiliates or divisions, including but not limited to the following:

 

 

 

All Outstanding Equity Award Agreements

 

 

 

Employment Agreement dated July 30, 2004

 

 

 

Change in Control Agreement

(d) to cooperate with and provide all reasonable assistance to the Company, with respect to any civil, criminal or administrative investigations, actions and/or proceedings involving the Company and relating in any way to Executive’s positions, duties and responsibilities while at the Company or to any matters which the Executive handled, participated in or had knowledge of while employed by the Company.,

(e) not to make any false or disparaging or derogatory statements or remarks to any person or entity about the Company’s (including its subsidiaries’) business affairs, financial condition, or about any Company or subsidiary directors, officers, employees, stockholders and agents.

4.4 Within sixty (60) days of the Executive’s termination of employment, for any reason, or his resignation or retirement, the Executive shall (a) return to the Company all Company property in his possession or control, including all electronic documents; and (b) submit all documentation for any reimbursements owed to the Executive for business expenses incurred prior to the Date of Termination.

4.5 No Termination Benefits: Except as expressly stated otherwise in Section 4.2, the Executive shall not be eligible for or receive any of the Termination Benefits described in Section 4.1 above upon the occurrence of any one of the following: (a) the Executive’s resignation of or retirement from employment with the Company, or (b) the termination of Executive’s employment with the Company resulting from Death or Disability, or (c) the termination of Executive’s employment by the Company for Cause; or (d) the Executive’s failure to perform or breach of any of the covenants, undertakings or other agreements set forth in Section 4.3; or (e) the Executive’s entitlement to receive payments or benefits under the Change in Control Agreement.

5. Termination Notice: Any termination of the Executive’s employment by the Company (other than by reason of Death) shall (a) be in writing; (b) indicate the basis for termination (such as with or without Cause, Disability, etc…) and with respect to a termination for Cause indicate the basis for termination in reasonable detail and (c) be delivered to the Executive in accordance with Section 17 below.

6. Resignation or Retirement Notice: Any resignation or retirement by Executive shall be (a) in writing, (b) explain the resignation or retirement and (c) be delivered to the Company at least ninety (90) days in advance of the resignation or retirement date and otherwise in accordance with Section 17 below.

 

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7. Resignation as a Director: Upon termination of Executive’s employment by the Company for any reason or the resignation of or retirement from employment by the Executive, the Executive shall provide the Chairman of the Board with his written resignation from the Company’s Board and all subsidiary Boards, and the Board may choose to accept or reject the Executive’s resignation as a Company Board member.

8. No Third Party Beneficiaries: Except as otherwise provided in Section 4.1(f) above and in the Change in Control Agreement, nothing in this Agreement shall confer upon any person or entity not a party to this Agreement, or the legal representative, executor, administrator or heir of such person or entity, any rights or remedies of any nature or kind whatsoever under or by reason of this Agreement.

9. No Obligation of Employment. Nothing in this Agreement shall be construed as an express or implied contract of employment between the Executive and the Company (or its subsidiaries, affiliate or divisions) or as a commitment on the part of the Company to retain Executive in any capacity for any period of time. Executive understands that the employment relationship between the Executive and the Company will be “at will” and the Executive understands that the Company may terminate Executive with or without “Cause” at any time (including prior to a Change in Control) or for any or no reason. Following any Change in Control, the Company may also terminate Executive with or without “Cause” at any time subject to the terms of this Agreement and the Executive’s rights and the Company’s obligations specified in the Change in Control Agreement.

10. Specific Performance: Executive acknowledges that (a) the services to be rendered under this Agreement and the obligations of the Executive assumed herein are of a special, unique and extraordinary character, (b) it would be difficult or impossible to replace such services and obligations, (c) the Company, its subsidiaries and affiliates will be irreparably harmed, and (d) the award of monetary damages will not adequately protect the Company, its subsidiaries and affiliates in the event of a breach hereof by the Executive. As a result, the Executive agrees and consents that if he violates any of the provisions of this Agreement, the Company shall, without any bond or other security, being required and without the necessity of proving monetary damages, be entitled to temporary and/or permanent injunctive relief to be issued by a court of competent jurisdiction restraining the Executive from committing or continuing any violation of this Agreement or any other appropriate decree of specific performance. Such remedies shall not be exclusive and shall be in addition to any other remedy the Company may have whether at law or in equity.

11. Dispute Resolution: Except for the equitable relief provisions set forth in Section 10, the Executive and the Company agree that any dispute, controversy or claim arising between the parties relating to this Agreement, otherwise relating in any way to Executive’s employment with and/or termination from the Company, or relating to

 

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Executive’s relationship as a director or in any other capacity for the Company (whether such dispute arises under any federal, state or local statute or regulation, or at common law), shall be resolved by final and binding arbitration before a single arbitrator. The arbitrator shall be selected in accordance with the Employment Dispute Resolution Rules of the American Arbitration Association (“AAA”) pertaining at the time the dispute arises. The parties agree that such arbitration shall take place at the offices of the AAA in Boston, Massachusetts. In such arbitration proceedings, the arbitrator shall have the discretion, to be exercised in accordance with applicable law, to allocate among the parties the arbitrator’s fees, tribunal and other administrative and litigation costs and, to the prevailing party, reasonable attorneys’ fees. The award of the arbitrator may be confirmed before and entered as a judgment of any court having jurisdiction of the parties.

12. 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.

13. 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.

14. 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 14. 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.

15. Assignment. Executive may not assign any of his rights or delegate any of his duties or obligations under this Agreement. The rights and obligations of the Company under this Agreement shall inure to the benefit of, and shall be binding upon, the successors and assigns of the Company.

16. 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 Executive and the Company relating to the subject matter hereof including the Agreement Regarding Termination Benefits entered into between Teradyne, Inc. and the Executive dated September 3, 2004; provided, however, that the following Executive Agreements, as may be modified herein, shall remain in effect in accordance with their terms.

 

 

a)

All Outstanding Equity Award Agreements

 

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b)

Employment Agreement dated July 30, 2004

 

 

c)

Change in Control Agreement

 

 

d)

Any written indemnification Agreements signed by the Company.

 

 

e)

The Release, Attachment A hereto, once executed between the Company and the Executive

17. Notices. All notices hereunder shall be in writing and shall be delivered (a) in person, (b) mailed by U.S. certified or registered mail, return receipt requested, postage prepaid, (c) sent via facsimile with a confirmed facsimile transmission receipt, or (d) sent via overnight delivery with a confirmed receipt of delivery; in each instance addressed, if to the Executive or the Company, as the case may be at the address noted below or to such other address as either party may furnish to the other in writing in accordance herewith, except that notice of a change of address shall be effective only upon actual receipt.

To the Company:

Teradyne, Inc.

600 Riverpark Drive

North Reading, MA 01864

Attention: General Counsel

To the Executive:

[INTENTIONALLY OMITTED]

With a copy to the Executive’s Counsel:

Robert L. Birnbaum, Esq.

Foley Hoag, LLP

Seaport World Trade Center West

155 Seaport Boulevard

Boston, Mass. 02210-2600

18. 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.

19. 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.

 

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IN WITNESS WHEREOF, this Agreement has been executed as a sealed instrument by the Company, by a duly authorized director, and by the Executive.

 

TERADYNE, INC.

 

 

EXECUTIVE

/s/ Roy A. Vallee

 

 

/s/ Michael A. Bradley

Name:

 

Roy A. Vallee

 

 

Michael A. Bradley

Title:

 

Chair, Compensation Committee

 

 

President & Chief Executive Officer

 

13


ATTACHMENT A

Release

In consideration of the payment and receipt of the Termination Benefits described in the “Amended and Restated Agreement Regarding Termination Benefits” dated December     , 2008 between me and Teradyne, Inc. of 600 Riverpark Drive, North Reading, MA 01864 (the “Company”), all of which I acknowledge I would not otherwise be entitled to receive and except as otherwise expressly excluded under Section 4.3(b) of said Agreement, I hereby fully, forever, irrevocably and unconditionally release, remise and discharge the Company, its successors and assigns and their respective officers, directors, stockholders, corporate affiliates, subsidiaries, parent companies, agents and employees (each in their individual and corporate capacities) (hereinafter, the “Released Parties”) from any and all claims, charges, complaints, demands, actions, causes of action, suits, rights, debts, sums of money, costs, accounts, reckonings, covenants, contracts, agreements, promises, doings, omissions, damages, executions, obligations, liabilities, and expenses (including attorneys’ fees and costs), of every kind and nature which I ever had or now have against the Released Parties arising out of my employment with and/or termination or separation from the Company or relating to my relationship as a Director, Officer or in any other capacity for the Company, including, but not limited to, all employment discrimination claims under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §2000e et seq., the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq., the Americans With Disabilities Act of 1990, 42 U.S.C., §12101 et seq., the Family and Medical Leave Act, 29 U.S.C. § 2601 et seq., and the Massachusetts Fair Employment Practices Act., M.G.L. c.151B, §1 et seq., all as amended; all claims arising out of the Fair Credit Reporting Act, 15 U.S.C. §1681 et seq., the Employee Retirement Income Security Act of 1974 (“ERISA”), 29 U.S.C. §1001 et seq., the Massachusetts Civil Rights Act, M.G.L. c.12 §§11H and 11I, the Massachusetts Equal Rights Act, M.G.L. c.93, §102 and M.G.L. c.214, §1C, the Massachusetts Labor and Industries Act, M.G.L. c.149, §1 et seq., the Massachusetts Privacy Act, M.G.L. c. 214, §1B, and the Massachusetts Maternity Leave Act , M.G.L. c. 149, §105(d), all as amended; all common law claims including, but not limited to, actions in tort, defamation and breach of contract; all claims to any non-vested ownership interest in the Company, contractual or otherwise, including but not limited to claims to stock or stock options; and any claim or damage arising out of my employment with, termination or separation from the Company (including a claim for retaliation) under any common law theory or any federal, state or local statute or ordinance not expressly referenced above; provided, however, that notwithstanding the foregoing, the Company agrees and hereby acknowledges that this Release Agreement is not intended to and does not (i) apply to any claims I may bring to enforce the terms of this Agreement, the Amended and Restated Executive Officer Change in Control Agreement, or any outstanding Equity Award Agreement and equity Plan; (ii) release the Company of any obligation it may have pursuant to a written agreement, the Company’s articles of organization or bylaws, or as mandated by statute to indemnify me as an officer or director of the Company; and (iii) release the Company of any obligation to provide and/or pay benefits to me or my estate, conservator or designated beneficiary(ies) under and in accordance with the terms of any applicable Company benefit plan and/or program; provided further, that nothing in this Release Agreement prevents me from filing, cooperating with, or participating in any proceeding before the EEOC or a state Fair Employment Practices Agency (except that I acknowledge that I may not be able to recover any monetary benefits in connection with any such claim, charge or proceeding).

Waiver of Rights and Claims Under the Age Discrimination in Employment Act of 1967:

Since I am 40 years of age or older, I have been informed that I have or may have specific rights and/or claims under the Age Discrimination in Employment Act of 1967 (ADEA) and I agree that:

(a) in consideration for the severance payments and benefits described in Section 4.1 of the Amended and Restated Agreement Regarding Termination Benefits, which I am not otherwise entitled to receive, I specifically and voluntarily waive such rights and/or claims under the ADEA I might have against the Released Parties to the extent such rights and/or claims arose prior to the date this Release Agreement was executed;

 

14


(b) I understand that rights or claims under the ADEA which may arise after the date this Release Agreement is executed are not waived by me;

(c) I was advised that I have at least 21 days within which to consider the terms of this Release Agreement and to consult with or seek advice from an attorney of my choice or any other person of your choosing prior to executing this Release Agreement;

(d) I have carefully read and fully understand all of the provisions of this Release Agreement, and I knowingly and voluntarily agree to all of the terms set forth in this Release Agreement; and

(e) in entering into this Release Agreement I am not relying on any representation, promise or inducement made by the Company or its attorneys with the exception of those promises described in this document.

Period for Review and Consideration of Agreement:

I acknowledge that I was informed and understand that I have twenty-one (21) days to review this Release Agreement and consider its terms before signing it.

The 21-day review period will not be affected or extended by any revisions, whether material or immaterial, that might be made to this Agreement.

Accord and Satisfaction: The amounts set forth in the Amended and Restated Agreement Regarding Termination Benefits shall be complete and unconditional payment, settlement, accord and/or satisfaction with respect to all obligations and liabilities of the Released Parties to me, including, without limitation, all claims for back wages, salary, vacation pay, draws, incentive pay, bonuses, cash awards, Equity Awards, commissions, severance pay, reimbursement of expenses, any and all other forms of compensation or benefits, attorney’s fees, or other costs or sums.

Revocation Period: I may revoke this Release Agreement at any time during the seven-day period immediately following my execution hereof. As a result, this Release Agreement shall not become effective or enforceable and the Company shall have no obligation to make any payments or provide any benefits described herein until the seven-day revocation period has expired.

 

 

 

 

 

Michael A. Bradley

 

 

Date

 

 

 

 

Witness

 

 

Date

 

15


IF YOU DO NOT WISH TO USE THE 21-DAY PERIOD,

PLEASE CAREFULLY REVIEW AND SIGN THIS DOCUMENT

I, Michael A. Bradley, acknowledge that I was informed and understand that I have 21 days within which to consider the attached Release Agreement, have been advised of my right to consult with an attorney regarding such Agreement and have considered carefully every provision of the Agreement, and that after having engaged in those actions, I prefer to and have requested that I enter into the Agreement prior to the expiration of the 21 day period.

 

Dated:                     

 

 

 

 

 

Michael A. Bradley

Dated:                     

 

 

 

 

 

Witness

 

16




Exhibit 10.25

EXECUTIVE OFFICER CHANGE IN CONTROL AGREEMENT

EXECUTIVE OFFICER CHANGE IN CONTROL AGREEMENT entered into this 1st day of March, 2007, 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. Entitlements Upon a Termination Event. During the Term, if within twenty-four (24) months following a Change in Control or in contemplation of a Change in Control there is a Termination Event, Employee shall be entitled to the rights, payments and other benefits set forth below:

(a) Treatment of Awards. Equity Awards that are not subject to Performance Criteria shall be governed by Section 1(b) below, and Cash Awards and Equity Awards that are subject to Performance Criteria shall be governed by Section 1(c) below. The parties hereto acknowledge that, except as otherwise provided herein, the terms of this Agreement are intended to modify the terms of Employee’s existing Cash Award and Equity Award agreements and to be a supplement to Cash Award and Equity Award agreements granted on or subsequent to the date hereof.

(b) Acceleration of Equity Awards. All of Employee’s unvested or unexercisable Equity Awards or Equity Awards subject to restrictions on transfer imposed by Teradyne or repurchase rights in favor of Teradyne, as applicable, granted prior to, on, or after the date hereof (but only (I) such Equity Awards as have been granted to Employee by Teradyne as of the date of the Change in Control or (II) such Equity Awards as have been assumed by an acquiring company at the time of a Change in Control or such new cash and equity awards that have been substituted by an acquiring company for Equity Awards existing at the time of a Change in Control, each pursuant to the terms of any Teradyne incentive plan) shall automatically become fully vested, exercisable or free of restrictions on transfer imposed by Teradyne or repurchase rights in favor of Teradyne, as applicable, as of the date of such Termination Event, and all Equity Awards granted on or after the date hereof shall, to the extent applicable, remain exercisable for the remainder of the generally applicable term of such Equity Award.

(c) Satisfaction of Performance Criteria. All of Employee’s Cash Awards and Equity Awards that are subject to Performance Criteria shall be settled and paid in the following


manner: Employee shall be deemed to have satisfied the necessary percentage of the Performance Criteria to which such Cash Awards and Equity Awards are subject as of the date of the Termination Event, that will provide employee with the target level of such Cash Awards and Equity Awards; and Employee shall be entitled to receive that portion of each Cash Award and Equity Award payable, at the target level. For purposes of the Cash Awards, the payment shall be multiplied by a fraction, the numerator of which shall be the number of calendar months that have passed during the period in which the Performance Criteria are to be measured (treating the month in which the Termination Event occurs as a full calendar month) and the denominator of which shall be the total number of calendar months in such period. For purposes of this Agreement, “target level” is that percentage of the Performance Criteria established at the beginning of each calendar year in order for the Employee to achieve Model Compensation. Unless otherwise required under Section 1(d) below, such Cash Awards and Equity Awards shall be paid to Employee or the restrictions on transfer removed not later than 10 days following the Termination Event.

(d) Deferred Compensation. Notwithstanding any other provision of this Agreement, if the Employee is a “key employee” as defined in Section 416(i) of the Code without regard to paragraph 5 thereof, all payments, benefits, or removal of restrictions on the transfer of equity under this Agreement with respect to separation from service that constitute compensation deferred under a nonqualified deferred compensation plan as defined in Section 409A of the Code to which such key employee would otherwise be entitled during the first six months following the date of separation from service shall be made on the first day of the seventh month after the date of separation from service (or, if earlier, the date of death of the Employee).

(e) Release. Notwithstanding any other provision of this Agreement to the contrary, no payment or benefit otherwise provided for under or by virtue of the foregoing provisions of this Agreement shall be paid or otherwise made available unless and until Teradyne shall have first received from Employee a valid, binding and irrevocable general release, in the form of Attachment A to this Agreement; provided that Teradyne shall be permitted to defer any payment and any benefit provided for in this Agreement, whether pursuant to Section 1(e), 1(d) or otherwise, until the tenth day after the later of its receipt of such release and the time at which the release has become valid, binding and irrevocable. Employee shall promptly sign such release upon a Termination Event subsequent to a Change in Control. Teradyne agrees to provide Employee an estimate relating to payments to be made under this Agreement upon Employee’s written request.

(f) Certain Definitions. For purposes of this Agreement, the following terms shall have the following meanings:

Cash Awards” shall mean any cash-based bonus, cash incentive or other cash awards provided by Teradyne to Employee pursuant to incentive plans that Teradyne maintains, including but not limited to its 2006 Equity and Cash Compensation Incentive Plan.

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 as established by the Teradyne Board of Directors from time to time and communicated to the Employee; (ii) Employee’s disloyalty, gross negligence, willful misconduct, dishonesty, fraud or breach of fiduciary duty to Teradyne, each in connection with Employee’s employment by Teradyne; (iii)

 

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Employee’s deliberate disregard of the rules or policies of, or breach of an agreement with, Teradyne which results in direct or indirect material loss, damage or injury to Teradyne; (iv) the intentional unauthorized disclosure by Employee of any trade secret or confidential information of Teradyne; (v) the commission by Employee of an act which constitutes unfair competition with Teradyne; or (vi) the conviction of, or the entry of a plea of guilty or nolo contendere by the Employee, to any crime involving moral turpitude or any felony.

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, recapitalization, merger or plan of share exchange following which the capital stock of Teradyne outstanding immediately prior to such transaction constitutes 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 occurring within a three-year period; or (v) any person (as that term is used in Section 13(d)(3) or Section 14(d)(2) of the Securities Exchange Act of 1934, as amended) becomes beneficial owner of 30% or more of the combined voting power of Teradyne’s outstanding voting securities, other than (A) as a result of a consolidation, reorganization, recapitalization, merger or plan of share exchange following which the capital stock of Teradyne outstanding immediately prior to such transaction constitutes at least a majority of combined voting power of the then-outstanding securities of the combined corporation or person immediately after such transaction, (B) by any trustee or other fiduciary holding securities under an employee benefit plan of Teradyne, or (C) by a person temporarily acquiring beneficial ownership in its capacity as an underwriter (as defined pursuant to Section 2(a)(11) of the Securities Act of 1933, as amended) in connection with a public offering of Teradyne securities.

Disability” shall mean an illness, injury or other incapacitating condition as a result of which the Employee is absent from full time performance of his duties with Teradyne or is unable to perform his duties and responsibilities for a period of sixty (60) consecutive days during the Term of the Agreement or a period or periods aggregating to more than ninety (90) days in any consecutive six (6) month period but shall not include death.

Equity Awards” shall mean the equity ownership, participation or appreciation opportunities provided by Teradyne to Employee pursuant to incentive plans that Teradyne maintains, including but not limited to its 2006 Equity and Cash Compensation Incentive Plan, the Teradyne, Inc. 1991 Employee Stock Option Plan and the Teradyne, Inc. 1997 Employee Stock Option Plan, and any stock options, restricted stock units, restricted stock, stock appreciation rights, phantom stock and other stock-based awards granted thereunder.

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) as they shall exist on the date of the consummation of the Change in Control; (ii) any material reduction in Employee’s Model Compensation as in effect on the date of the

 

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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) a requirement that Employee be based at an office that is greater than 50 miles from the location of Employee’s office immediately prior to the Change in Control except for required travel on Teradyne’s business to an extent substantially consistent with the business travel obligations which Employee undertook on behalf of Teradyne prior to the date of the consummation of the Change in Control. In the event of a Termination Event in contemplation of a Change in Control, the applicable baseline measurement date shall be six months prior to such Termination Event and not the date of the consummation of the Change in Control.

Model Compensation” shall mean Employee’s annual “Model Compensation” as determined by Teradyne’s Compensation Committee or Board of Directors, which consists of (i) a fixed monthly salary and (ii) a target annual variable amount.

Performance Criteria” shall have the meaning ascribed to that term in the Teradyne, Inc. 2006 Equity and Cash Compensation Incentive Plan.

Termination Event” shall mean (i) any termination of Employee by Teradyne without Cause or (ii) any voluntary termination by Employee for Good Reason; provided, that it shall not be a Termination Event merely because Employee ceases to be employed by Teradyne and becomes employed by a new employer involved in the Change in Control provided that such new employer shall be bound by this Agreement as if it were Teradyne hereunder with respect to Employee. It is expressly understood that no Termination Event shall be deemed to have occurred merely because, upon the occurrence of a Change in Control, Employee ceases to be employed by Teradyne and does not become employed by a successor to Teradyne after the Change in Control if the successor makes an offer to employ Employee on terms and conditions which, if imposed by Teradyne, would not give Employee a basis on which to terminate employment for Good Reason.

(g) Termination in Contemplation of a Change in Control. For purposes of this Agreement, including without limitation, this Section 1, a Termination Event occurring “in contemplation of a Change in Control” means a Termination Event occurring within 3 months prior to an actual Change in Control at the request or direction of a person who enters or has entered into an agreement the consummation of which would cause a Change in Control or who conditions the entry into such an agreement on the Employee’s termination whether or not such person actually enters into such an agreement. A termination by the Employee for Good Reason shall constitute a Termination Event in contemplation of a Change in Control if the actions constituting Good Reason were taken at the request or direction of a person who has entered into an agreement the consummation of which would cause a Change in Control.

 

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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.

 

 

(iii)

Gross-Up Payment” shall mean, with respect to Payments to 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.

 

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(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 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) Employee shall be a Payment if an Excise Tax is imposed on Employee with respect to such payment or benefit.

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, including in contemplation of a Change in Control. 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.

 

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7. Assignment. (a) Teradyne shall require any successor (whether direct or indirect, by purchase, merger, consolidation or otherwise) to all or substantially all of the business or assets of Teradyne expressly to assume and agree to perform under the terms of this Agreement in the same manner and to the same extent that Teradyne and its affiliates would be required to perform it if no such succession had taken place (provided that such a requirement to perform which arises by operation of law shall be deemed to satisfy the requirements for such an express assumption and agreement), and in such event Teradyne (as constituted prior to such succession) shall have no further obligation under or with respect to this Agreement. Failure of Teradyne to obtain such assumption and agreement with respect to Employee prior to the effectiveness of any such succession shall be a breach of the terms of this Agreement with respect to Employee and shall entitle Employee to compensation from Teradyne (as constituted prior to such succession) in the same amount and on the same terms as Employee would be entitled to hereunder were Employee’s employment terminated for Good Reason following a Change in Control, except that for purposes of implementing the foregoing, the date on which any such succession becomes effective shall be deemed the date of the Termination Event. As used in this Agreement, “Teradyne” shall mean Teradyne as hereinbefore defined and any successor to its business or assets as aforesaid which assumes and agrees (or is otherwise required) to perform this Agreement. Nothing in this Section 7(a) shall be deemed to cause any event or condition which would otherwise constitute a Change in Control not to constitute a Change in Control.

(b) Notwithstanding Section 7(a), Teradyne shall remain liable to Employee upon a Termination Event after a Change in Control if Employee is not offered continuing employment by a successor to Teradyne or is offered continuing employment by a successor to Teradyne only on a basis which would constitute Good Reason for termination of employment hereunder.

(c) This Agreement, and Employee’s and Teradyne’s rights and obligations hereunder, may not be assigned by Employee or, except as provided in Section 7(a), Teradyne, respectively; any purported assignment by Employee or Teradyne in violation hereof shall be null and void.

(d) The terms of this Agreement shall inure to the benefit of and be enforceable by the personal or legal representatives, executors, administrators, permitted successors, heirs, distributees, devisees and legatees of Employee. If Employee shall die while an amount would still be payable to Employee hereunder if they had continued to live, all such amounts, unless otherwise provided herein, shall be paid in accordance with the terms of this Agreement to Employee’s devisee, legatee or other designee or, if there is no such designee, Employee’s estate.

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 including but not limited to the Executive Officer Change in Control Agreement entered into on October 19, 2001 between Teradyne and Employee; provided, however, that Employee’s existing Cash Award and Equity Award agreements, as modified hereby, shall remain in effect and provided further that the Agreement Regarding Termination Benefits entered into on September 3, 2004 between Teradyne and Employee shall not be modified by this Agreement but shall remain in full force and effect in accordance with its own terms. This Agreement shall not limit any right of Employee to receive any payments or benefits under an employee benefit or Employee compensation plan of Teradyne, initially adopted as of or after the date hereof, which are expressly contingent thereunder upon the occurrence of a Change in

 

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Control (including, but not limited to, the acceleration of any rights or benefits thereunder); provided that in no event shall Employee be entitled to any payment or benefit under this Agreement which duplicates a payment or benefit received or receivable by Employee under any severance or similar plan or policy of Teradyne, and in any such case Employee shall only be entitled to receive the greater of the two payments.

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.

 

700 Riverpark Drive

 

MS NR700-2-3 (Legal Department)

 

North Reading, MA 01864

 

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 (other than a Termination Event in contemplation of a Change in Control), 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).

13. Expenses. All reasonable legal fees and expenses incurred in a legal proceeding by Employee in seeking to obtain or enforce any right or benefit provided by this Agreement against a successor to Teradyne shall be the responsibility of and paid for by the successor to Teradyne (but not Teradyne as constituted prior to such succession). Such payments are to be made within twenty (20) days after Employee’s request for payment accompanied with such evidence of fees and expenses incurred as Teradyne’s successor reasonably may require; provided that if Employee institutes a proceeding and the judge or other decision-maker presiding over the proceeding affirmatively finds that Employee has failed to prevail substantially, Employee shall pay Employee’s own costs and expenses (and, if applicable, return any amounts theretofore paid on Employee's behalf under this Section 13).

 

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14. Payments. Any payments hereunder shall be made out of the general assets of Teradyne. The Employee shall have the status of general unsecured creditor of Teradyne, and this Agreement constitutes a mere promise by Teradyne to make payments under this Agreement in the future as and to the extent provided herein. Unless otherwise determined by Teradyne in an applicable plan or arrangement, no amounts payable hereunder upon a Termination Event shall be deemed salary or compensation for the purpose of computing benefits under any employee benefit plan or other arrangement of Teradyne for the benefit of its employees. Teradyne shall be entitled to withhold from any payments or deemed payments any amount of tax withholding required by law.

[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]

 

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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/    ROY A. VALLEE

Name:

 

Roy A. Vallee

Title:

 

Chair of Compensation Committee

 

EMPLOYEE

 

/s/    MICHAEL A. BRADLEY

Name:

 

Michael A. Bradley

Address:

 

 

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ATTACHMENT A

Release

In consideration of the payments and benefits described in the Executive Officer Change in Control Agreement dated [                         , 2007] between me and Teradyne, Inc. (the “Company”), all of which I acknowledge I would not otherwise be entitled to receive, I hereby fully, forever, irrevocably and unconditionally release, remise and discharge the Company, its successors and assigns and their respective officers, directors, stockholders, corporate affiliates, subsidiaries, parent companies, agents and employees (each in their individual and corporate capacities) (hereinafter, the “Released Parties”) from any and all claims, charges, complaints, demands, actions, causes of action, suits, rights, debts, sums of money, costs, accounts, reckonings, covenants, contracts, agreements, promises, doings, omissions, damages, executions, obligations, liabilities, and expenses (including attorneys’ fees and costs), of every kind and nature which I ever had or now have against the Released Parties arising out of my employment with and/or termination or separation from the Company or relating to my relationship as an officer or in any other capacity for the Company, including, but not limited to, all employment discrimination claims under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §2000e et seq., the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq., the Americans With Disabilities Act of 1990, 42 U.S.C., §12101 et seq., the Family and Medical Leave Act, 29 U.S.C. § 2601 et seq., and the Massachusetts Fair Employment Practices Act., M.G.L. c.151B, §1 et seq., all as amended; all claims arising out of the Fair Credit Reporting Act, 15 U.S.C. §1681 et seq., the Employee Retirement Income Security Act of 1974 (“ERISA”), 29 U.S.C. §1001 et seq., the Massachusetts Civil Rights Act, M.G.L. c.12 §§11H and 11I, the Massachusetts Equal Rights Act, M.G.L. c.93, §102 and M.G.L. c.214, §1C, the Massachusetts Labor and Industries Act, M.G.L. c.149, §1 et seq., the Massachusetts Privacy Act, M.G.L. c. 214, §1B, and the Massachusetts Maternity Leave Act, M.G.L. c. 149, §105(d), all as amended; all common law claims including, but not limited to, actions in tort, defamation and breach of contract; all claims to any non-vested ownership interest in the Company, contractual or otherwise, including but not limited to claims to stock or stock options; and any claim or damage arising out of my employment with, termination or separation from the Company (including a claim for retaliation) under any common law theory or any federal, state or local statute or ordinance not expressly referenced above; provided, however, that notwithstanding the foregoing, the Company agrees and hereby acknowledges that this Release Agreement is not intended to and does not (i) apply to any claims Executive may bring to enforce the terms of the Executive Officer Change in Control Agreement, (ii) release the Company of any obligation it may have pursuant to a written agreement, the Company’s articles of organization or bylaws, or as mandated by statute to indemnify me as an officer of the Company; and (iii) release the Company of any obligation to provide and/or pay benefits to me or my estate, conservator or designated beneficiary(ies) under and in accordance with the terms of any applicable Company benefit plan and/or program; provided further, that nothing in this Release Agreement prevents me from filing, cooperating with, or participating in any proceeding before the EEOC or a state Fair Employment Practices Agency (except that I acknowledge that I may not be able to recover any monetary benefits in connection with any such claim, charge or proceeding).

Waiver of Rights and Claims Under the Age Discrimination in Employment Act of 1967: Since I am 40 years of age or older, I have been informed that I have or may have specific rights and/or claims under the Age Discrimination in Employment Act of 1967 (ADEA) and I agree that:

in consideration for the payments and benefits described in the Executive Officer Change in Control Agreement, which I am not otherwise entitled to receive, I specifically and voluntarily waive such rights and/or claims under the ADEA I might have against the Released Parties to the extent such rights and/or claims arose prior to the date this Release Agreement was executed;


I understand that rights or claims under the ADEA which may arise after the date this Release Agreement is executed are not waived by me;

I was advised that I have at least 21 days within which to consider the terms of this Release Agreement and to consult with or seek advice from an attorney of my choice or any other person of your choosing prior to executing this Release Agreement;

I have carefully read and fully understand all of the provisions of this Release Agreement, and I knowingly and voluntarily agree to all of the terms set forth in this Release Agreement; and

in entering into this Release Agreement I am not relying on any representation, promise or inducement made by the Company or its attorneys with the exception of those promises described in this document.

Period for Review and Consideration of Agreement:

I acknowledge that I was informed and understand that I have twenty-one (21) days to review this Release Agreement and consider its terms before signing it.

The 21-day review period will not be affected or extended by any revisions, whether material or immaterial, that might be made to this Agreement.

Accord and Satisfaction: The amounts set forth in the Executive Officer Change in Control Agreement shall be complete and unconditional payment, settlement, accord and/or satisfaction with respect to all obligations and liabilities of the Released Parties to me, including, without limitation, all claims for back wages, salary, vacation pay, draws, incentive pay, bonuses, cash awards, equity awards, commissions, severance pay, reimbursement of expenses, any and all other forms of compensation or benefits, attorney’s fees, or other costs or sums.

Revocation Period: I may revoke this Release Agreement at any time during the seven-day period immediately following my execution hereof. As a result, this Release Agreement shall not become effective or enforceable and the Company shall have no obligation to make any payments or provide any benefits described herein until the seven-day revocation period has expired.

 

 

 

 

Name:

 

Date

 

 

 

 

 

Witness

 

Date

 

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IF YOU DO NOT WISH TO USE THE 21-

DAY PERIOD,

PLEASE CAREFULLY REVIEW AND SIGN

THIS DOCUMENT

I,                                         , acknowledge that I was informed and understand that I have 21 days within which to consider the attached Release Agreement, have been advised of my right to consult with an attorney regarding such Agreement and have considered carefully every provision of the Agreement, and that after having engaged in those actions, I prefer to and have requested that I enter into the Agreement prior to the expiration of the 21 day period.

 

Dated:

 

 

 

 

 

 

Name:

Dated:

 

 

 

 

 

 

Witness

 

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