exv10w61





Exhibit 10.61


Amended Change in Control Agreement


     This agreement is entered into as of this 31st day of March 2008 by and between Photon
Dynamics, Inc., a California Corporation (the “Company”),
and Wendell Blonigan (“Executive”).


Recitals


     Executive is employed by the Company and is a valued officer of the Company. As an inducement
to Executive to remain in the employ of the Company, the Company wishes to provide for certain
rights in favor of Executive to severance payments and other benefits in the event of a Change of
Control (as defined below) of the Company upon the terms herein provided.


     NOW THEREFORE, in consideration of the foregoing and the mutual promises herein contained, the
parties agree as follows:


     1.1 Definition. For purposes of this Agreement, “Change in Control” means
occurrence in a single transaction, or in a series of related transactions of any one or more
of following events:



     (a) any person (within the meaning of Section 13(d) or 14(d) of the
Securities Exchange Act of 1934, as amended) becomes the owner, directly or
indirectly, of securities of the Company representing more than fifty percent (50%)
of the combined voting power of the Company’s then outstanding securities other
than by virtue of a merger, consolidation or similar transaction;



     (b) there is consummated a merger, consolidation or similar
transaction involving (directly or indirectly) the Company and, immediately after
the consummation of such merger, consolidation or similar transaction, the
stockholders of the Company immediately prior thereto do not own, directly or
indirectly, outstanding voting securities representing more than fifty percent (50%)
of the combined outstanding voting power of the surviving entity in such merger,
consolidation or similar transaction or more than fifty percent (50%) of the
combined outstanding voting power of the parent of the surviving entity in such
merger, consolidation or similar transaction; or



     (c) there is consummated a sale, lease, license or other disposition of
all or substantially all of the consolidated assets of the Company and its
subsidiaries, other than a sale, lease, license or other disposition of all or
substantially all of the consolidated assets of the Company and its subsidiaries to
an entity, more than fifty percent (50%) of the combined voting power of the
voting securities of which are owned by stockholders of the Company in
substantially the same proportions as their ownership of the Company
immediately prior to such sale, lease, license or other disposition.


     1.2
Termination After a Change in Control. In the event that within twelve (12)
months following a Change in Control, the Company terminates your employment


 








 




without Cause (as defined below) or you resign for Good Reason (as defined below) (a Change in
Control Termination), (a) the Company will provide you with severance in the amount of one (1)
year of your then-existing base salary and on target bonus, less payroll deductions and all
required withholdings, paid either (at the Company’s discretion) in a lump sum or in regular
payments at equal intervals over a period of time not longer than one (1) year, and (b) all stock
options and RSU’s (“Equity Awards”) held by you shall have their vesting accelerated such that all
Equity Awards are fully vested and exercisable as of the date of the Change in Control Termination
(the “Acceleration”). As a precondition of receiving the Acceleration, you must first sign and
allow to become effective a general release of claims in favor of the Company in a form acceptable
to the Company.


     1.3 Definition of “Cause.” For purposes of this Agreement, “Cause” shall mean the
occurrence of one Or more of the following: (a) your indictment or conviction of any felony or
crime involving moral turpitude or dishonesty; (b) your participation in any fraud against the
Company or its successor; (c) breach of your duties to the Company or its successor, including,
without limitation, persistent unsatisfactory performance of job duties; (d) intentional damage to
any property of the Company or its successor; (e) willful conduct that is demonstrably injurious to
the Company or its successor, monetarily or otherwise;
(f) breach of any agreement within the
Company or its successor, including your Proprietary Information and Inventions Agreement; or (g)
conduct by you that in the good faith and reasonable determination of the Company demonstrates
gross unfitness to serve. Physical or mental disability or death shall not constitute Cause
hereunder.


     1.4 Definition of “Good Reason.” For purposes of this Agreement, your voluntary
termination of employment with the Company will be considered a termination for “Good Reason” if
you resign your employment because one of the following events occurs without your consent: (a) a
reduction of your then-existing annual base salary by more than ten percent (*10%), unless the
then-existing base salaries of other executive officers of the Company are accordingly reduced; (b)
a material reduction in the package of benefits and incentives, taken as a whole, provided to you
(not including raising of employee contributions to the extent of any cost increases imposed by
third parties), except to the extent that such benefits and incentives of other executive officers
of the Company are similarly reduced; (c) assignment to you of any duties Or any limitation of your
responsibilities substantially inconsistent with your position, duties, responsibilities and status
with the Company immediately prior to the date of the Change in Control; or (d) relocation of the
principal place of your employment to a location that is more than fifty (50) miles from your
principal place of employment immediately prior to the date of the Change in Control.


     1.5 Limitation on Payments. If any payment or benefit you would receive pursuant to a
Change in Control from the Company or otherwise (“Payment”) would (i) constitute a “parachute
payment” within the meaning of Section 280G of the Code, and (ii) but for this sentence, be subject
to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then such Payment shall
be equal to the Reduced Amount, The “Reduced Amount” shall be either (x) the largest portion of the
Payment that would result


2








 




in no portion of the Payment being subject to the Excise Tax or (y) the largest portion, up to and
including the total, of the Payment, whichever amount, after taking into account all applicable
federal, state and local employment taxes, income taxes, and the Excise Tax (all computed at the
highest applicable marginal rate), results in your receipt, on an
after-tax basis, of the greater
amount of the Payment notwithstanding that all or some portion of the Payment may be subject to the
Excise Tax. If a reduction in payments or benefits constituting “parachute payments” is necessary
so that the Payment equals the Reduced Amount, reduction shall occur in the following order unless
you elect in writing a different order (provided, however, that such election shall be subject to
Board approval if made on or after the effective date of the event that triggers the Payment):
reduction of cash payments; cancellation of Acceleration; reduction of employee benefits. In the
event that Acceleration is to be reduced, it shall be cancelled in the reverse order of the date of
grant of your Equity Awards (i.e., earliest granted Equity Awards cancelled last) unless you elect
in writing a different order for cancellation.


     The accounting firm engaged by the Company for general audit purposes as of the day prior to
the effective date of the Change in Control shall perform the foregoing calculations, If the
accounting firm so engaged by the Company is serving as accountant or auditor for the individual,
entity or group effecting the Change in Control, the Company shall appoint a nationally recognized
accounting firm to make the determinations required hereunder. The Company shall bear all expenses
with respect to the determinations by such accounting firm required to be made hereunder.


     The accounting firm engaged to make the determinations hereunder shall provide its
calculations, together with detailed supporting documentation, to you and the Company within
fifteen (15) calendar days after the date on which your right to a Payment is triggered (if
requested at that time by you or the Company) or such other time as requested by you or the
Company. If the accounting firm determines that no Excise Tax is payable with respect to a Payment,
either before or after the application of the Reduced Amount, it shall furnish you and the Company
with an opinion reasonably acceptable to you that no Excise Tax will be imposed with respect to
such Payment. Any good faith determinations of the accounting firm made hereunder shall be final,
binding and conclusive upon you and the Company.


     2. General Provisions.


     2.1 Severability. Whenever possible, each provision of this Agreement will be
interpreted in such manner as to be effective and valid under applicable law, but if any
provision of this Agreement is held to be invalid, illegal or unenforceable in any respect
under any applicable law or rule in any jurisdiction, such invalidity, illegality or
unenforceability will not affect any other provision or any other jurisdiction, but such
invalid, illegal or unenforceable provision will be reformed, construed and enforced in
such jurisdiction so as to render it valid, legal, and enforceable consistent with the intent
of the parties insofar as Possible.


     2.2 Entire Agreement. This Agreement, constitutes the entire and exclusive
agreement between you and the Company, and it supersedes any prior agreement,


3








 




promise, representation, or statement, written or otherwise, between you and the Company with
regard to this subject matter. It is entered into without reliance On any promise, representation,
statement or agreement other than those expressly contained or incorporated herein, and it cannot
be modified or amended except in a writing signed by you and a duly authorized officer of the
Company.


     2.3
Successors and Assigns. This Agreement is intended to bind and inure to
the benefit of and be enforceable by you, the company and your and its respective
successors, assigns, heirs, executors and administrators, except that you may not assign
any of your duties hereunder and you may not assign any of your rights hereunder
without the written consent of the Company, which shall not be withheld unreasonably.


     2.4 Governing Law. All questions concerning the construction, validity and
interpretation of this Agreement will be governed by the law of the State of California as
applied to contracts made and to be performed entirely within California.


     IN WITNESS WHEREOF, the parties hereto have duly executed this agreement as of the date first
above written.


	 	 	 	 	 	 	 
	Photon Dynamics, Inc.	 	 	 	 
	 	 	 	 	 	 	 
	By:
	 	/s/ Carl C. Straub Jr.
 

Carl C. Straub Jr.

General Counsel and Secretary	 	 	 	 
	 	 	 	 	 	 	 




	 	 	 	 	 
	Accepted and agreed:
	 	 	 	 
	 
	/s/ Wendell Blonigan	 	March 31, 2008	 	 
	Wendell Blonigan
	 	Date	 	 




4