Ex-10.55



 





Exhibit 10.55




AGREEMENT




     This Agreement, made as of the 19th day of August, 2004 by and between
TOLLGRADE COMMUNICATIONS, INC., a Pennsylvania corporation (the “Corporation”)
and JENNIFER M. REINKE, an individual residing in the Commonwealth of
Pennsylvania and an employee of the Corporation (the “Executive”).



     WITNESSETH:



     WHEREAS, the Board of Directors of the Corporation has determined that it
is in the best interests of the Corporation to enter into this Agreement with
the Executive to provide for compensation of the Executive upon termination of
employment under certain circumstances relating to a change in control of the
Corporation; and



     WHEREAS, the Executive desires to obtain such benefits in the event the
Executive’s employment is terminated under the circumstances provided herein.



     NOW, THEREFORE, in consideration of the covenants and premises contained
herein, and intending to be legally bound hereby, the parties hereto agree as
follows:



     1. Definition of Terms. The following terms when used in this Agreement
shall have the meaning hereafter set forth:




	 	 	“Annual Salary Adjustment Percentage” shall mean the mean average
percentage increase in base salary for all elected officers of the
Corporation during the two full calendar years immediately preceding the
time to which such percentage is being applied; provided however, that if
after a Change-in-Control, as hereinafter defined, there should be a
significant change in the number of elected officers of the Corporation
or in the manner in which they are compensated, then the foregoing
definition shall be changed by substituting for the phrase “elected
officers of the Corporation” the phrase “persons then performing the
functions formerly performed by the elected officers of the Corporation.”
	 
	 	 	“Cause for Termination” shall mean:






	 	(a)	 	the deliberate and intentional failure by the Executive to
devote substantially his entire business time and best efforts to
the performance of his duties (other than any such failure resulting
from the Executive’s incapacity due to physical or mental illness or
disability) after a demand for substantial performance is delivered
to the Executive by the Board of Directors which specifically
identifies the manner in which the Board of Directors believes that
the Executive has not substantially performed his duties,
	 
	 	 	 	or




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	 	(b)	 	wilfully engaging by the Executive in conduct which
constitutes a fraud against the Corporation or a material breach of
this Agreement,
	 
	 	 	 	or
	 
	 	(c)	 	the Executive’s conviction of any crime which constitutes a
felony.






	 	 	For purposes of this definition, no act, or failure to act, on the
Executive’s part shall be considered “deliberate and intentional” or
“willfully” unless done, or omitted to be done, by the Executive not in
good faith and without reasonable belief that his action or omission was
in the best interests of the Corporation.
	 
	 	 	“Change-in-Control” shall mean the determination (which may be made
effective as of a particular date specified by the Board of Directors of
the Corporation) by the Board of Directors of the Corporation, made by a
majority vote that a change in control has occurred, or is about to
occur. Such a change shall not include, however, a restructuring,
reorganization, merger, or other change in capitalization in which the
Persons who own an interest in the Corporation on the date hereof (the
“Current Owners”)(or any individual or entity which receives from a
Current Owner an interest in the Corporation through will or the laws of
descent and distribution) maintain more than a sixty-five percent (65%)
interest in the resultant entity. Regardless of the Board’s vote or
whether or not the Board votes, a Change-in-Control will be deemed to
have occurred as of the first day any one (1) or more of the following
subparagraphs shall have been satisfied:






	 	(a)	 	Any Person (other than the Person in control of the
Corporation as of the date of this Agreement, or other than a
trustee or other fiduciary holding securities under an employee
benefit plan of the Corporation, or a corporation owned directly or
indirectly by the stockholders of the Corporation in substantially
the same proportions as their ownership of stock of the
Corporation), becomes the beneficial owner, directly or indirectly,
of securities of the Corporation representing more than thirty five
percent (35%) of the combined voting power of the Corporation’s then
outstanding securities; or
	 
	 	(b)	 	The stockholders of the Corporation approve:






	 	(i)	 	A plan of complete liquidation of the
Corporation;
	 
	 	(ii)	 	An agreement for the sale or disposition of all
or substantially all of the Corporation’s assets; or
	 
	 	(iii)	 	A merger, consolidation, or reorganization of
the Corporation with or involving any other corporation, other
than a merger, consolidation, or




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	 	 	 	reorganization that would result in the voting securities of
the Corporation outstanding immediately prior thereto
continuing to represent (either by remaining outstanding or
by being converted into voting securities of the surviving
entity) at least sixty-five percent (65%) of the combined
voting power of the voting securities of the Corporation (or
such surviving entity) outstanding immediately after such
merger, consolidation, or reorganization.






	 	 	However, in no event shall a Change in Control be deemed to have
occurred, with respect to the Executive, if the Executive is part of a
purchasing group which consummates the Change-in-Control transaction.
The Executive shall be deemed “part of the purchasing group” for purposes
of the preceding sentence if the Executive is an equity participant or
has agreed to become an equity participant in the purchasing company or
group (except for (i) passive ownership of less than five percent (5%) of
the voting securities of the purchasing company; or (ii) ownership of
equity participation in the purchasing company or group which is
otherwise deemed not to be significant, as determined prior to the
Change-in-Control by a majority of the non-employee continuing Directors
of the Board of Directors of the Corporation).
	 
	 	 	“Date of Termination” shall mean:






	 	(a)	 	if the Executive’s employment is terminated for Disability,
the date that a Notice of Termination is given to the Executive;
	 
	 	(b)	 	if the Executive terminates due to his death or Retirement,
the date of death or Retirement, respectively;
	 
	 	(c)	 	if the Executive decides to terminate employment upon Good
Reason for Termination, the date following such decision specified
by the Corporation after it has been notified of the Executive’s
decision to terminate employment; or
	 
	 	(d)	 	if the Executive’s employment is terminated for any other
reason, the date on which such termination becomes effective
pursuant to a Notice of Termination.






	 	 	“Disability” shall mean such incapacity due to physical or mental
illness or injury as causes the Executive to be unable to perform his
duties with the Corporation during 180 consecutive days.
	 
	 	 	“Good Reason for Termination” shall mean the occurrence of:






	 	(a)	 	without the Executive’s express written consent, the
assignment to the Executive of any duties materially and
substantially inconsistent with his positions, duties,
responsibilities and status with the Corporation immediately prior
to a Change-in-Control, or a material change in his reporting
responsibilities, titles or offices as in




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	 	 	 	effect immediately prior to a Change-in-Control, or any removal of
the Executive from or any failure to re-elect the Executive to any
of such positions, except in connection with the termination of the
Executive’s employment due to Cause for Termination, Disability or
Retirement (as hereinafter defined) or as a result of the
Executive’s death;
	 
	 	(b)	 	(i) a reduction by the Corporation prior to a
Change-in-Control in the Executive’s base salary unless such
reduction is the result of the Board of Directors of the Corporation
determining that the Executive has not adequately discharged his
duties;
	 
	 	 	 	 (ii) a reduction by the Corporation after a Change-in-Control in
the Executive’s base salary as in effect immediately prior to any
Change-in-Control or a failure by the Corporation after a
Change-in-Control to increase the Executive’s base salary by the
Annual Salary Adjustment Percentage;






	 	(c)	 	a failure by the Corporation to continue to provide incentive
compensation comparable to that provided by the Corporation
immediately prior to any Change-in-Control;
	 
	 	(d)	 	a failure by the Corporation after a Change-in-Control to
continue in effect any benefit or compensation plan, stock option
plan, pension plan, life insurance plan, health and accident plan or
disability plan in which the Executive is participating immediately
prior thereto (provided, however, that there shall not be deemed to
be any such failure if the Corporation substitutes for the
discontinued plan, a plan providing the Executive with substantially
similar benefits) or the taking of any action by the Corporation
which would adversely affect the Executive’s participation in or
materially reduce the Executive’s benefits under any of such plans
or deprive the Executive of any material fringe benefit enjoyed by
the Executive immediately prior to a Change-in-Control (provided,
however, that any act or failure to act by the Corporation that is
on a plan-wide basis, i.e., it similarly affects all employees of
the Corporation or all employees eligible to participate in any such
plan, as the case may be, shall not constitute Good Reason for
Termination);
	 
	 	(e)	 	the failure of the Corporation to obtain the assumption of
this Agreement by any successor as contemplated in Section 11(c)
hereof;
	 
	 	(f)	 	any purported termination of the employment of the Executive
by the Corporation which is not (i) due to the Executive’s
Disability, Retirement (as hereinafter defined) or Cause for
Termination, or (ii) effected as a Notice of Termination, as defined
herein; or
	 
	 	(g)	 	the Corporation’s requiring the Executive to be based
anywhere other than the Corporation’s executive offices at which the
Executive has his principal office




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	 	 	 	immediately prior to a Change-in-Control or executive offices
located within 50 miles of the location of the Corporation’s
executive offices immediately prior to a Change-in-Control, except
for required travel on the Corporation’s business to an extent
substantially consistent with the Executive’s present business
travel obligations.






	 	 	“Notice of Termination” shall mean a written statement which sets forth
the specific reason for termination and, if such is claimed to be a Cause
for Termination or Good Reason for Termination, in reasonable detail the
facts and circumstances which indicate that such is Cause for Termination
or Good Reason for Termination.
	 
	 	 	“Options” shall mean any stock options issued pursuant to any present or
future stock option plan of the Corporation.
	 
	 	 	“Person” shall have the meaning ascribed to such term in Section 3(a)(9)
of the Securities Exchange Act of 1934, as in effect on the date hereof
and used in Sections 13(d) and 14(d) thereof, including a “group” as
defined in Section 13(d) thereof.
	 
	 	 	“Retirement” shall mean the termination of the Executive’s employment
after age 65 or in accordance with any mandatory retirement arrangement
with respect to an earlier age agreed to by the Executive.
	 
	 	 	“Stock Appreciation Right” shall mean any stock appreciation rights
issued pursuant to any stock option plan of the Corporation or any future
stock appreciation rights plan.





     2. Terms of Employment. The Executive acknowledges that this Agreement
does not constitute an employment contract and that the Executive’s employment
relationship with the Corporation is at-will and not for any particular period.
Rather, this Agreement is only intended to set forth certain liquidated
damages to be paid in the event of termination of the Executive upon the terms
and conditions specified herein.



     3. Term of Agreement. The initial term of this Agreement shall be for a
period of four (4) years. Upon expiration of the initial term, the Company
shall, in its sole discretion, determine whether this Agreement shall be
renewed upon such terms it deems advisable.



     4. Payments Following Termination of Employment Upon a Change-in-Control.




	 	(a)	 	If the Executive’s employment with the Corporation shall be
terminated:






	 	(i)	 	due to the Executive’s death,
	 
	 	(ii)	 	by the Executive other than the Executive’s
having terminated for Good Reason for Termination following a
Change-in-Control, or




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	 	(iii)	 	by the Corporation due to Cause for Termination
or for Disability or Retirement,






	 	 	 	then the Corporation shall have no obligations to the Executive
other than to pay the Executive any unpaid portion of base salary
due until the Date of Termination and any other sums due in
accordance with the then various policies, practices and benefit
plans of the Corporation.
	 
	 	(b)	 	If the Executive’s employment with the Corporation shall have
terminated during the period commencing six months prior to the date
of a Change-in-Control and ending on the third anniversary of a
Change-in-Control other than in the circumstances described in
subsection (a) above, then the Corporation shall pay on or before
the fifth day following the Date of Termination (or if the Date of
Termination preceded the date of the Change-in-Control, on or before
the fifth day following the date of the Change-in-Control), to the
Executive the following sums:






	 	(i)	 	in cash any unpaid portion of the Executive’s
full base salary for the period from the last period for which
the Executive was paid to the Date of Termination, or the date
of the Change-in-Control, as the case may be; and
	 
	 	(ii)	 	an amount in cash as liquidated damages for lost
future renumeration equal to the product obtained by
multiplying






	 	(A)	 	the lesser of






	 	(1)	 	two, or
	 
	 	(2)	 	a number equal to the
number of calendar months remaining from the Date
of Termination to the date on which the Executive
is 65 years of age (or, if earlier, the age agreed
to by the Executive pursuant to any prior
arrangement) divided by twelve, or
	 
	 	(3)	 	a number equal to the
greater of (i) one (1.0) or (ii) thirty six (36)
less the number of completed months commencing
after the date of the Change-in-Control during
which the Executive was employed by the
Corporation and did not have Good Reason for
Termination times (iii) one-twelfth (1/12)
	 
	 	 	 	times






	 	(B)	 	the sum of




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	 	(1)	 	the greater of






	 	(i)	 	the
Executive’s annual base salary for the year
in effect on the Date of Termination
(provided that in the case of Termination
for Good Reason by the Executive the date
immediately preceding the date of the
earliest event which gave rise to the
Termination for Good Reason by the Executive
shall be used instead of the Date of
Termination)






	 	 	 	or






	 	(ii)	 	the
Executive’s annual base salary for the year
in effect on the date of the
Change-in-Control;






	 	 	 	plus






	 	(2)	 	the greater of






	 	(i)	 	the average
annual cash award received by the Executive
as incentive compensation or bonus for one
calendar year immediately preceding the Date
of Termination (provided that in the case of
Termination for Good Reason by the Executive
the date immediately preceding the date of
the event which gave rise to the Termination
for Good Reason by the Executive shall be
used instead of the Date of Termination)






	 	 	 	or






	 	(ii)	 	the average
annual cash award received by the Executive
as incentive compensation or bonus for one
calendar year immediately preceding the date
of the Change-in-Control.





     5. Outplacement Services. If the Executive’s employment with the
Corporation should terminate under circumstances as to entitle the Executive to
receive payment hereunder, the Corporation shall reimburse the Executive for
any reasonable fees or other costs incurred by the Executive during the two (2)
years following the Date of Termination in retaining executive placement
agencies, up to a maximum dollar amount not to exceed fifteen percent (15%) of
the Executive’s base salary at the time of such termination. Such
reimbursement shall be made within



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five (5) days following the Executive’s presentment of bills or other
evidence of the costs incurred with executive placement agencies.



     6. Tax Implications. If any payment due to the Executive pursuant to this
Agreement result in a tax being imposed on the Executive pursuant to Section
4999 of the Internal Revenue Code of 1954, as amended, or any successor
provision (“Section 4999”), then the Corporation shall, at the Executive’s
option, either (i) reduce the total payments payable to the Executive to the
maximum amount payable without incurring the Section 4999 tax, or (ii) pay to
the Executive the total amount payable, with the understanding that Section
4999 tax will be due on that total amount.



     7. Benefits. If the Executive’s employment with the Corporation should
terminate under circumstances as to entitle the Executive to receive payment
hereunder, the Executive shall also be deemed, for purposes of medical
insurance, pension and other benefits of the Corporation, to have remained in
the continuous employment of the Corporation for the two (2) year period
following the Date of Termination and shall be entitled to all of the medical
insurance, pension or other benefits provided by the Corporation as if the
Executive had so remained in the employment of the Corporation. If, for any
reason, whether by law or provisions of the Corporation“s employee medical
insurance, pension or other benefit plans, or otherwise any benefits which the
Executive would be entitled to under this Section 6 cannot be paid pursuant to
such employee benefit plans, then the Corporation contractually agrees to pay
the Executive the difference between the benefits which the Executive would
have received in accordance with this Section if the relevant employee medical
insurance, pension or other benefit plan could have paid such benefit and the
amount of benefits, if any, actually paid by such employee medical insurance,
pension or other benefit plan. The Corporation shall not be required to fund
its obligation to pay the foregoing difference.



     8. Other Employment. In the event of termination under the circumstances
contemplated in Section 4(b) hereunder, the Executive shall have no duty to
seek any other employment after termination of his employment with the
Corporation and the Corporation hereby waives and agrees not to raise or use
any defense based upon the position that the Executive had a duty to mitigate
or reduce the amounts due him hereunder by seeking other employment whether
suitable or unsuitable and should the Executive obtain other employment, then
the only effect of such on the obligations of the Corporation shall be that the
Corporation shall be entitled to credit against any payments that would
otherwise be made pursuant to Section 7 hereof, any comparable payments to
which the executive is entitled under the employee benefit plans maintained by
the Executive’s other employer or employers in connection with services to such
employer or employers after termination of this employment with the
Corporation.



     9. Stock Appreciation Rights and Options. If the Executive’s employment
should terminate under circumstances as to entitle the Executive to receive
payment hereunder, then with respect to any standing Stock Appreciation Rights
and/or Options which did not immediately become exercisable upon the occurrence
of a Change-in-Control, such Stock Appreciation Right or Option shall be
automatically vested and remain outstanding in accordance with its terms and be
exercisable thereafter until the stated expiration date of such Stock
Appreciation Right or Option.



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     10. Noncompetition. The Executive covenants and agrees that if the
Executive receives payment under Section 4(b)(ii) of this Agreement, then
during the Restricted Period, the Executive shall not in the United States of
America, directly or indirectly, whether as principal or as agent, officer,
director, employee, consultant, shareholder or otherwise alone or in
association with any other person, corporation or other entity, engage or
participate in, be connected with, lend credit or money to, furnish
consultation or advice or permit the Executive’s name to used in connection
with, any Competing Business. For purposes of this Agreement, the term
“Restricted Period” shall mean a number of years following the termination of
Executive’s employment with the Corporation equal to the number calculated
pursuant to Section 4(b)(ii)(A) of this Agreement, plus any amount of time
during such period during which the Executive is in violation of this
provision. For purposes of this Agreement, the term “Competing Business” shall
mean any person, corporation or other entity engaged in the business of selling
or attempting to sell any product or service which competes with (a) products
or services sold by the Corporation within the two (2) years prior to
termination of the Executive’s employment or (b) new products of the
Corporation with respect to which the Corporation had allocated engineering
resources at the date of the Executive’s termination to develop such new
products.



     11. Miscellaneous.




	 	(a)	 	This Agreement shall be construed under the laws of the
Commonwealth of Pennsylvania.
	 
	 	(b)	 	This Agreement constitutes the entire understanding of the
parties hereto with respect to the subject matter hereof and may
only be amended or modified by written agreement signed by the
parties hereto. This Agreement specifically supercedes the agreement
entered into between the Corporation and the Executive dated as of
August 5, 1996 with respect to the subject matter hereof, and by the
execution of this Agreement, the previous agreement is hereby
terminated and of no further force and effect.
	 
	 	(c)	 	The Corporation will require any successor (whether direct or
indirect, by purchase, merger, consolidation or otherwise) to all or
substantially all of the business and/or assets of the Corporation,
by agreement in form and substance satisfactory to the Executive, to
expressly assume and agree to perform this Agreement in the same
manner required of the Corporation and to perform it as if no such
succession had taken place. As used in this Agreement,
“Corporation” shall mean the Corporation as hereinbefore defined and
any successor to its business and/or assets as aforesaid which
executes and delivers the agreement provided for in this subsection
(c) or which otherwise becomes bound by all of the terms and
provisions of this Agreement by operation of law.
	 
	 	(d)	 	This Agreement shall inure to the benefit of and be
enforceable by the Executive and




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	 	 	 	the Corporation and their respective legal representatives,
executors, administrators, successors, heirs, distributees,
devisees and legatees. If the Executive should die while any
amounts would still be payable to him hereunder if he had continued
to live, all such amounts, unless otherwise provided herein, shall
be paid in accordance with the terms of this Agreement to his
devisee, legatee or other designee or, if there be no such
designee, to his estate.
	 
	 	(e)	 	Any notice or other communication provided for in this
Agreement shall be in writing and, unless otherwise expressly stated
herein, shall be deemed to have been duly given if mailed by United
States registered mail, return receipt requested, postage prepaid,
addressed in the case of the Executive to his office at the
Corporation with a copy to his residence and in the case of the
Corporation to its principal executive offices, attention to the
Chief Executive Officer.
	 
	 	(f)	 	No provision of this Agreement may be modified, waived or
discharged unless such waiver, modification or discharge is agreed
to in writing signed by the Executive and approved by resolution of
the Board of Directors of the Corporation. No waiver by either
party hereto at any time of any breach by the other party hereto of,
or 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. No agreements or representations, oral or
otherwise, express or implied, with respect to the subject matter
hereof have been made by either party which are not set forth
expressly in this Agreement.
	 
	 	(g)	 	The invalidity or unenforceability of any provisions of this
Agreement shall not affect the validity or unenforceability of any
other provision of this Agreement, which shall remain in full force
and effect. If any provision hereof shall be deemed invalid or
unenforceable, either in whole or in part, this Agreement shall be
deemed amended to delete or modify, as necessary, the offending
provision and to alter the bounds thereof in order to render it
valid and enforceable.
	 
	 	(h)	 	This Agreement may be executed in one or more counterparts,
each of which shall be deemed to be an original but all of which
taken together will constitute one and the same instrument.
	 
	 	(i)	 	If litigation should be brought to enforce, interpret or
challenge any provision contained herein, the prevailing party shall
be entitled to its reasonable attorney’s fees and disbursements and
other costs incurred in such litigation and, if a money judgment be
rendered in favor of the Executive, to interest on any such money
judgment obtained calculated at the prime rate of interest in effect
from time to time at Mellon Bank, N.A., from the date that the
payment should have been made or damages incurred under this
Agreement.




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     IN WITNESS WHEREOF, this Agreement has been executed on the date first
above written.



	 	 	 	 	 
	 	 	TOLLGRADE COMMUNICATIONS, INC.
	 
	 	 	 	 
	

	 	By:
	 	/s/Sara M. Antol
	

	 	 	 	

	

	 	Title:
	 	General Counsel and Secretary
	 
	 	 	 	 
	

	 	 	 	/s/ Jennifer M. Reinke
	 	 	

	

	 	 	 	Jennifer M. Reinke








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