EX-10.2



 







Exhibit 10.2









July 3, 2007




Joseph Ferrara

[Address]




Dear Joe:




     Tollgrade Communications, Inc. (“Tollgrade”) considers the stability of its executive
management team to be essential to Tollgrade’s best interests. In order to induce you to accept
and to remain in Tollgrade’s employment, this severance agreement (the “Agreement”) describes the
severance compensation which Tollgrade agrees will be provided to you in the event your employment
with Tollgrade is terminated under the circumstances described below. This Agreement will remain
in effect for a period of three (3) years from the date your employment with Tollgrade commences
(the “Term”).


1. At-will Employment. Notwithstanding any provisions of this Agreement, any offer
letter, confidentiality agreement, or other document that you sign in connection with your
employment, your employment at Tollgrade is and continues to be “at-will” employment and may be
terminated at any time with or without cause or notice.



2. Scope of Agreement. This Agreement is not intended to supersede the terms of any offer
letter, confidentiality agreement, or other document which you sign in connection with your
employment with Tollgrade, except insofar as such document deals with severance pay (e.g., in the
event the terms of any offer letter conflict with the terms of this Agreement the terms of this
Agreement shall control).



3. Severance Payment if Termination Occurs Without Cause. Except as provided in Section 4
of this Agreement, if your employment is terminated by Tollgrade without Cause (as defined in
Section 5 hereof) during the Term, then Tollgrade shall, subject to your execution and delivery
(and non-revocation of) a release of claims in form and substance acceptable to Tollgrade, continue
your Base Salary for a period of twelve (12) months, less applicable withholding and payable in
accordance with Tollgrade’s normal payroll practices. For purposes of this Agreement, the term
“Base Salary” means the highest annual base salary you received while employed by Tollgrade,
excluding bonuses, commissions and other similar amounts. Notwithstanding the foregoing, if you
become employed during such twelve month period, then from and after such time, Tollgrade shall
only be obligated to continue your Base Salary to the extent that (and only in such amount as) it
exceeds the gross salary that you are paid from such new employment.



4. Termination in Connection with a Change in Control. Contemporaneously with this
Agreement, you and Tollgrade are entering into an agreement which provides for certain payments in
the event of termination of your employment under certain defined circumstances related to a change
in control (the “Change in Control Agreement”). This Agreement provides you with certain assurances
in circumstances that the Change in Control Agreement does not cover, and in no way supersedes or
nullifies the Change in Control Agreement. Nevertheless, it is possible that a termination of your
employment may fall within the scope of both agreements. In such event, you will be entitled to
receive the higher of the amount payable to you under Section 3 hereof and any amount payable to
you under Section 4 of the Change in Control Agreement, but not the aggregate of such amounts.





 









 





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5. Payment if Termination Occurs Other than by Tollgrade Without Cause. If your
employment is terminated other than by Tollgrade without Cause, Tollgrade shall have no obligations
to you under this Agreement.



6. Definition of “Cause.” For purposes of this Agreement, termination of your employment
shall be for “Cause” if it is for any of the following:




     (a) After receipt of written notice and a reasonable opportunity to cure, refusal to carry
out any of your material lawful duties in your position with Tollgrade or any directions or
instructions of Tollgrade’s Board or senior management reasonably consistent with those duties;



     (b) A documented pattern, which documentation shall include reasonable written notice and
cure periods, of your failure to perform to Tollgrade’s satisfaction any of your lawful duties in
your position with Tollgrade or any directions or instructions of the Board or senior management
reasonably consistent with those duties;



     (c) Violation of a local, state or federal law involving the commission of a crime, other
than minor traffic violations, or any other criminal act involving moral turpitude;



     (d) Gross negligence, willful misconduct or breach of your duty to Tollgrade involving
self-dealing or personal profit;



     (e) Abuse of alcohol or controlled substances; deception, fraud, misrepresentation or
dishonesty;



     (f) After receipt of written notice thereof and a reasonable opportunity to cure, any
incident materially compromising your reputation or ability to represent Tollgrade with investors,
customers or the public;



     (g) After receipt of written notice thereof and a reasonable opportunity to cure, violation
of the work rules, policies and procedures set forth in any current or future employee handbook of
Tollgrade or otherwise implemented by Tollgrade; or



     (h) Any other material violation by you of any provision of this Agreement not described in
(a) or (b) above, subject to the same notice and opportunity to correct provisions as are set forth
in (b) above.


7. Notices. For the purposes of this Agreement, notices and all other communications
provided for in the Agreement shall be in writing and shall be deemed to have been duly given when
delivered personally, sent by courier or mailed by United States certified or registered mail,
return receipt requested, postage prepaid. All notices to Tollgrade shall be directed to the
attention of the Chief Executive Officer of Tollgrade with a copy to the General Counsel of
Tollgrade. All notices to you may be delivered to your last-known address as maintained by
Tollgrade and you are responsible for maintaining the accuracy of that address.



8. Successors; Binding Agreement.




     (a) This Agreement shall inure to the benefit of, and be binding upon, any corporate or other
successor or assignee of Tollgrade which shall acquire, directly or indirectly, by merger,
consolidation



 









 





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or purchase, or otherwise, all or substantially all of the business or assets of Tollgrade.
Tollgrade shall require any such successor to expressly to assume and agree to perform this
Agreement in the same manner and to the same extent as Tollgrade would be required to perform if no
such succession had taken place.




     (b) This Agreement shall inure to the benefit of and be enforceable by your personal or legal
representatives, executors, administrators, successors, heirs, distributees, devisees and legatees.
If you should die after termination of employment where any amount would still be payable to you
hereunder if you had continued to live, all such amounts, unless otherwise provided herein, shall
be paid in accordance with the terms of this Agreement to your estate.


9. Miscellaneous. No provision of this Agreement may be modified, waived, or discharged
unless such modification, waiver, or discharge is agreed to in a writing signed by you and an
authorized officer of Tollgrade that expressly references this letter agreement. No waiver by
either party hereto at any time of any breach by the other party hereto of, or of compliance with,
any condition or provision of this Agreement to be performed by such other party shall be deemed a
waiver of similar or dissimilar provisions or conditions at the same, or at any prior or subsequent
time. The validity, interpretation, construction, and performance of this Agreement shall be
governed by laws of the Commonwealth of Pennsylvania without giving effect to the principles of
conflict of laws thereof.



10. Entire Agreement. This Agreement represents the entire agreement and understanding
between the parties as to the subject matter hereof and supersedes all prior contemporaneous
agreements, whether written or oral.



11. Severability; Validity. If any provision of this Agreement shall be held invalid,
illegal or unenforceable in any jurisdiction, for any reason, then, to the full extent permitted by
law: (a) all other provisions hereof shall remain in full force and effect in such jurisdiction and
shall be liberally construed in order to carry out the intent of the parties hereto as nearly as
may be possible, (b) such invalidity, illegality or unenforceability shall not affect the validity,
legality or enforceability of any other provision hereof, and (c) any court or arbitrator having
jurisdiction thereover shall have the power to reform such provision to the extent necessary for
such provision to be enforceable under applicable law.



12. Governing Law and Jurisdiction. This Agreement shall be governed by and construed in
accordance with the laws of the Commonwealth of Pennsylvania, without regard to conflicts of laws
principles. You hereby irrevocably submit to the personal jurisdiction of the United States
District Court for the Western District of Pennsylvania or the Court of Common Pleas of Allegheny
County, Pennsylvania in any action or proceeding arising out of or relating to this Agreement, and
that all claims in respect of any such action or proceeding may be heard and determined in either
such court.



13. Employment Taxes. All payments made pursuant to this Agreement shall be subject to
withholding of applicable income and employment taxes.



14. Precedence. This Agreement is not intended to establish and does not establish a
practice or policy for the treatment of any other employees with respect to severance or any other
matter.



15. Counterparts. This Agreement may be executed in counterparts, each of which shall be
deemed an original, but all of which together will constitute one and the same instrument.




 









 





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If you would like to enter into this Agreement, kindly sign and return to Tollgrade the enclosed
copy of this letter, which will then constitute our agreement on this subject.




Very truly yours,




TOLLGRADE COMMUNICATIONS, INC.




By: /s/Joseph O’Brien          

Name: Joseph O’Brien

Title: VP Human Resources




AGREED:




     /s/Joseph A. Ferrara          

Joseph Ferrara