Exhibit 10.1
EXECUTIVE OFFICER CHANGE IN CONTROL AGREEMENT
EXECUTIVE OFFICER CHANGE IN CONTROL AGREEMENT entered into this 1
st
day of September 2014
by and between Teradyne, Inc. (including its subsidiaries, “Teradyne”), and the undersigned executive officer of LitePoint Corporation, a wholly-owned subsidiary of Teradyne, Inc. (“
Employee
”).
WITNESSETH:
WHEREAS, Teradyne
and Employee desire to set forth certain terms and conditions relating to the termination of Employee’s employment 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
. If, within twenty-four (24) months following a Change in Control
or in contemplation of a Change in Control, there is a Termination Event, and subject to the conditions set forth herein and the performance by Employee of the undertakings and duties set forth herein, 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(e) 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)
Salary Continuation
. Unless otherwise required under Section 1 (e) below, Teradyne shall pay Employee monthly an
amount equal to 1/12
th
of Employee’s current annual Model Compensation as of the Termination Event for a period of 24 months following the date of the Termination Event (the “Salary
Continuation Period”). In the event a Termination Event constitutes termination for Good Reason on account of a material reduction in Model Compensation, the payment obligation pursuant to this Section 1(d) shall be calculated without
giving effect to any such reductions in Model Compensation. All such continued payments shall be made in accordance with Teradyne’s customary pay practices. Subject to Section 1(e)(i) of this Agreement but notwithstanding any other
provision of this Agreement to the contrary, the continued payments to Employee contemplated by this Section 1(d) and any benefits provided to Employee that are subject to Section 409A of the Code shall commence on the 60
th
day following the Termination Event provided Employee has complied with the requirements of Section 1(g) of this Agreement and the release of claims has become irrevocable under applicable law
no later than on the 60
th
day following his Termination Event.
(e)
Deferred
Compensation/Section 409A.
(i)
Notwithstanding any other provision of this Agreement, if the Employee is a “specified
employee” at the time of the Employee’s “separation 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 the
Employee’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 Employee).
(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)(9)(ii), (iii) or
(iv), shall not be treated as deferred compensation unless applicable law
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requires otherwise. Neither Teradyne 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, Teradyne makes no representations or warranty and shall have no liability to Employee 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.
(iv) If any amount is payable under the provisions of paragraph
(f), below, as a reimbursement of Employee’s expenses, under the provisions of Section 2 and 13, or any other provision of this Agreement that constitutes a reimbursement of expenses under Section 409A then, notwithstanding the other
provisions of this Agreement with respect to the payment of such reimbursement, the following limitations shall apply; (A) the expenses eligible for reimbursement may not affect the expenses eligible for reimbursement in any other taxable year;
(B) such reimbursement must be made on or before the last day of the year following the year in which the expenses are incurred; (C) the right to reimbursement is not subject to liquidation or exchange for another benefit; and (D) in
connection with reimbursements under Section 13 the period during which such expenses can be incurred extends to the end of the period permitted for such claims under the applicable statute of limitations.
(f)
Benefit Continuation
. During the Salary Continuation Period, Teradyne shall arrange or provide for continued health, dental
and vision insurance plan coverage for the Employee at the same levels of coverage in existence prior to the Termination Event subject to Teradyne and Employee each contributing to the applicable insurance premium payments on the same basis and in
the same proportions as in existence at the date of the Termination Event. If the Employee is not eligible for continued health, dental and vision insurance plan coverage for any portion of the twenty-four (24) month period defined herein,
Teradyne shall provide or reimburse Employee for comparable individual insurance and, if such provision or reimbursement constitutes taxable income to the Employee, such additional amount as is necessary to place the Employee in substantially the
same after tax position as he was while an employee of Teradyne 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 the Termination Event.
To the extent that amounts paid by Teradyne to provide the benefits under this paragraph (f) are deemed to be deferred compensation
subject to Section 409A, then such payments shall be made monthly and any payment to preserve the Employee’s after tax position shall be made within 60 days after the end of each calendar year in which the taxable provision or
reimbursement occurs.
(g)
Release
. Notwithstanding any other provision of this Agreement to the contrary, no payment, benefit or
removal of restriction on the transfer of equity provided for under or by
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virtue of the provisions of this Agreement shall be paid or otherwise made available unless Teradyne shall have first received from Employee a valid, binding and irrevocable general release, in
the form of
Attachment A
to this Agreement within twenty-one (21) days of the date of the Termination Event. Employee shall sign such release within twenty-one (21) days of 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. All rights, benefits, payments and other entitlements contemplated to be provided or paid to Employee under
this Agreement shall be forfeited as of the 60
th
day following Employee’s Termination Event if Employee has not provided Teradyne with a valid, irrevocable release of claims as of such 60
th
day.
(h)
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) 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. In the event that Teradyne determines that Cause may exist pursuant to clauses (i), (iii) and (v) above, Teradyne shall give Employee written notice of the facts constituting such Cause and Employee shall
have 30 days following receipt of such notice to remedy such Cause.
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
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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.
“
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 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 annual 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 successor to Teradyne involved
in the Change in Control that assumes or is otherwise bound by this Agreement as provided in Section 7(a). 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.
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(i)
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.
2.
Reduction of Payments
(a) Notwithstanding any other provision of this Agreement, in the event that the Company undergoes a Change in Ownership or Control (as defined
below), the Company shall not be obligated to provide to the Executive a portion of any “Contingent Compensation Payments” (as defined below) that the Executive would otherwise be entitled to receive to the extent necessary to eliminate
any “excess parachute payments” (as defined in Section 280G(b)(1) of the Internal Revenue Code of 1986, as amended (the “Code”)) for the Executive. For purposes of this Section 2, the Contingent Compensation Payments so
eliminated shall be referred to as the “Eliminated Payments” and the aggregate amount (determined in accordance with Treasury Regulation Section 1.280G-1, Q/A-30 or any successor provision) of the Contingent Compensation Payments so
eliminated shall be referred to as the “Eliminated Amount.”
(b) For purposes of this Section 2, the following terms shall have
the following respective meanings:
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(i)
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“Change in Ownership or Control” shall mean a change in the ownership or effective control of the Company or in the ownership of a substantial portion of the assets of the Company determined in accordance with
Section 280G(b)(2) of the Code.
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(ii)
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“Contingent Compensation Payment” shall mean any payment (or benefit) in the nature of compensation that is made or made available (under this Agreement or otherwise) to a “disqualified individual”
(as defined in Section 280G(c) of the Code) and that is contingent (within the meaning of Section 280G (b)(2)(A)(i) of the Code) on a Change in Ownership or Control of the Company.
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(c) If and to the extent that any Contingent Compensation Payments are required to be treated as
Eliminated Payments pursuant to this Section 2, then the Payments shall be reduced or eliminated, as determined by the Company, in the following order (i) any cash payments, (ii) any taxable benefits, (iii) any nontaxable benefits and (iv) any
vesting of equity awards, in each case in reverse order beginning with the payments or benefits that are to be paid the farthest in time from the date that triggers the applicability of the excise tax, to the extent necessary to maximize the
Eliminated Payments.
3. (a)
Non-Solicitation
. From the Termination Event through the end of the Salary Continuation Period,
Employee shall not directly or indirectly:
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(i)
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Either alone or in association with others, recruit, solicit, hire or engage as an independent contractor, any person who was employed by Teradyne at any time during the period of Employee’s employment with
Teradyne, except for an individual whose employment with Teradyne has been terminated for a period of six months or longer; and
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(ii)
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Either alone or in association with others, solicit, divert or take away, or attempt to divert or to take away, the business or patronage of any client or customer or entity that was a prospective client or customer of
Teradyne during the Employee’s employment.
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(b) If any restriction set forth in this Section 3 is
found by any court of competent jurisdiction to be unenforceable because it extends for too long a period of time or over too great a range of activities or in too broad a geographic area, it shall be interpreted to extend only over the maximum
period of time, range of activities or geographic area as to which it may be enforceable.
(c) Employee acknowledges that
the restrictions contained in this Section 3 are necessary for the protection of the business and goodwill of Teradyne and are considered by Employee to be reasonable for such purpose. Employee agrees that any breach of this Section 3 will
cause Teradyne irreparable harm and therefore, in the event of any such breach, in addition to such other remedies that may be available, Teradyne shall have the right to seek equitable and/or injunctive relief.
(d) The geographic scope of this Section 3 shall extend to anywhere Teradyne or any of its subsidiaries is doing business,
has done business or has plans to do business.
(e) Employee agrees that during the Salary Continuation Period, he/she will
make reasonable good faith efforts to give verbal notice to Teradyne of each new business activity he/she plans to undertake, at least (5) business days prior to beginning any such activity.
(f) If Employee violates the provisions of this Section 3, Teradyne shall be entitled to suspend and recoup any salary
continuation payment made per Section 1 (d) above and Employee shall continue to be bound by the restrictions set forth in this Section 3 for an additional period of time equal to the duration of the violation, such additional period
not to exceed 24 months.
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3A.
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 State of California and
this Agreement shall be deemed to be performable in California.
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
. (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.
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(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; provided, however, that Employee’s existing Cash Award and Equity Award agreements, as
modified hereby, shall remain in effect. 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 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:
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If to Teradyne, to:
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Teradyne, Inc.
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600 Riverpark Drive
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MS NR600-2-2 (Legal Department)
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North Reading, MA 01864
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Attention: General Counsel
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If to Employee, at Employee’s address in his employment file on record with the Human Resources
Department.
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.
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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 Effective 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).
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.
IN WITNESS WHEREOF,
the parties have executed this Agreement as of the day and year first above written.
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EMPLOYEE
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TERADYNE, INC.
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/s/ Bradford Robbins
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By:
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/s/ Charles J. Gray
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Name: Brad Robbins
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Name:
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Charles J. Gray
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Title:
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Vice President and General Counsel
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Exhibit 10.1
ATTACHMENT A
Release
In consideration of the payments and benefits described in the Executive Officer Change in Control Agreement dated September 1, 2014 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 California Family Rights Act – Cal. Gov’t
Code § 12945.2 et seq., as amended; California Fair Employment and Housing Act – Cal. Gov’t Code § 12900 et seq., as amended; California Unruh Civil Rights Act – Cal. Civ. Code § 51 et seq., as amended; California
Sexual Orientation Bias Law – Cal. Lab. Code § 1101 et seq., as amended; Statutory Provisions Regarding the Confidentiality of AIDS Information – Cal. Health & Safety Code § 120775 et seq., as amended; California
Confidentiality of Medical Information – Cal. Civ. Code § 56 et seq., as amended; California Smokers’ Rights Law – Cal. Lab. Code § 96, as amended; California Parental Leave Law – Cal. Lab. Code § 230.7 et seq., as
amended; California Apprenticeship Program Bias Law – Cal. Lab. Code § 3070 et seq., as amended; California Wage Payment Act, as amended, and Cal. Lab. Code, as amended; California Equal Pay Law – Cal. Lab. Code § 1197.5 et seq.,
as amended; California Whistleblower Protection Law – Cal. Lab. Code § 1102.5(a) to (c), as amended; California Military Personnel Bias Law – Cal. Mil. & Vet. Code § 394 et seq., as amended; Statutory Provision Regarding
California Family and Medical Leave – Cal. Lab. Code § 233, as amended; California Parental Leave for School Visits Law – Cal. Lab. Code § 230.7 et seq., as amended; Statutory Provisions Regarding California Electronic Monitoring
of Employees – Cal. Lab. Code § 435 et seq., as amended; The California Occupational Safety and Health Act Law –Cal. Lab. Code § 6300 et seq., as amended, and any applicable regulations thereunder; California Consumer Reports:
Discrimination Law – Cal. Civ. Code § 1786.10 et seq., as amended; California Political Activities of Employees Act – Cal. Lab. Code § 1101 et seq., as amended; California Domestic Violence Victim Employment Leave Act – Cal.
Lab. Code § 230.1, as amended; California Voting Leave Law – Cal. Elec. Code § 14350 et seq., as amended; California Court Leave Law – Cal. Lab. Code § 230, as amended; Los Angeles AIDS-Based Discrimination Ordinance, Los
Angeles Municipal Ordinance §45.80 et seq., 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).
This Agreement does not extend to those rights which as a matter of law cannot be waived. Nor does this Agreement
affect any right I may have to receive workers’ compensation benefits, unemployment benefits pursuant to the California Unemployment Insurance Code or State Disability insurance benefits.
Waiver of California Civil Code section 1542.
To effect a full and complete general release as described above, I expressly waive and relinquish all
rights and benefits of section 1542 of the Civil Code of the State of California, and I do so understanding and acknowledging the significance and consequence of specifically waiving section 1542. Section 1542 of the Civil Code of the State of
California states as follows:
A general release does not extend to claims which the creditor does not know or suspect to exist in his or
her favor at the time of executing the release, which if known by him or her must have materially affected his or her settlement with the debtor.
Thus,
notwithstanding the provisions of section 1542, and to implement a full and complete release and discharge of the Released Parties, I expressly acknowledge this Agreement is intended to include in its effect, without limitation, all claims I do not
know or suspect to exist in my favor at the time of signing this Agreement, and that this Agreement contemplates the extinguishment of any such claim. I warrant that I have read this Agreement, including this waiver of California Civil Code section
1542, and that I have consulted counsel about this Agreement and specifically about the waiver of section 1542, and that I understand this Agreement and the section 1542 waiver, and so I freely and knowingly enter into this Agreement. I acknowledge
that I may later discover facts different from or in addition to those I now know or believe to be true regarding the matters released or described in this Agreement, and even so I agree that the releases and agreements contained in this Agreement
shall remain effective in all respects notwithstanding any later discovery of any different or additional facts. I assume any and all risk of any mistake in connection with the true facts involved in the matters, disputes, or controversies released
or described in this Agreement or with regard to any facts now unknown to me relating thereto.
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:
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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.
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Name: Brad Robbins
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Witness
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IF YOU DO NOT WISH TO USE THE 21-DAY PERIOD,
PLEASE CAREFULLY REVIEW AND SIGN THIS DOCUMENT
I, Brad Robbins, 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.
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Dated:
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Name: Brad Robbins
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Dated:
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Witness
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