exv10w1






Exhibit 10.1




CATAPULT COMMUNICATIONS CORPORATION




CHANGE OF CONTROL SEVERANCE AGREEMENT




     This Change of Control Severance Agreement (the “Agreement”) is made and entered into by and
between Richard A. Karp (“Executive”) and Catapult Communications Corporation, a Nevada corporation
(the “Company”), effective as of June 13, 2008.



RECITALS




     1. It is expected that the Company from time to time will consider the possibility of an
acquisition by another company or other change of control. The Compensation Committee of the Board
of Directors of the Company (the “Committee”) recognizes that such consideration can be a
distraction to Executive and can cause Executive to consider alternative employment opportunities.
The Committee has determined that it is in the best interests of the Company and its stockholders
to assure that the Company will have the continued dedication and objectivity of Executive,
notwithstanding the possibility, threat or occurrence of a Change of Control of the Company.



     2. The Committee believes that it is in the best interests of the Company and its stockholders
to provide Executive with an incentive to continue his or her employment and to motivate Executive
to maximize the value of the Company upon a Change of Control for the benefit of its stockholders.



     3. The Committee believes that it is imperative to provide Executive with certain severance
benefits upon Executive’s termination of employment following a Change of Control. These benefits
will provide Executive with enhanced financial security and incentive and encouragement to remain
with the Company notwithstanding the possibility of a Change of Control.



     4. Certain capitalized terms used in the Agreement are defined in Section 6 below.



AGREEMENT




     NOW, THEREFORE, in consideration of the mutual covenants contained herein, the parties hereto
agree as follows:



     1. Term of Agreement. This Agreement will terminate on December 31, 2009.
Notwithstanding the previous sentence, if Executive becomes entitled to benefits pursuant to
Section 3 and/or Section 4 of this Agreement, the Agreement will not terminate until, but will
terminate when, all of the obligations of the parties hereto with respect to this Agreement have
been satisfied.



     2. At-Will Employment. The Company and Executive acknowledge that Executive’s
employment is and will continue to be at-will, as defined under applicable law. If Executive’s
employment terminates for any reason, including (without limitation) any termination that occurs
other than during the period that is on or within twelve (12) months after a Change of Control as
provided herein, Executive will not be entitled to any payments, benefits, damages, awards or



 









 




compensation other than as provided by this Agreement and the payment of accrued but unpaid
wages, as required by law, and any unreimbursed reimbursable expenses.




     3. Change of Control Payment. In the event of a Change of Control, and subject to
Executive’s continued employment with the Company through the effective date of such Change of
Control, Executive will receive a lump sum payment in an amount equal to twelve (12) months of
Executive’s annual base salary as in effect immediately prior to the Change of Control (the “Change
of Control Payment”). The Change of Control Payment will be paid within ten (10) days of the
effective date of such Change of Control. The Change of Control Payment to be paid pursuant to
this Section 3 will be in addition to any other payments Executive may otherwise be entitled to
receive under Section 4.



     4. Severance Benefits.



          (a) Termination without Cause or Resignation for Good Reason in Connection with a Change
of Control. If the Company terminates Executive’s employment with the Company without Cause or
if Executive resigns from such employment for Good Reason, and such termination occurs on or within
twelve (12) months after a Change of Control, and Executive signs and does not revoke a release of
claims with the Company (in a form reasonably acceptable to the Company) that is effective no later
than March 15 of the year following the year in which the termination occurs, then Executive will
receive the following from the Company:




               (i) Accrued Compensation. The Company will pay Executive all accrued but unpaid
vacation, expense reimbursements, wages, and other benefits due to Executive under any
Company-provided plans, policies, and arrangements.



               (ii) Severance Payment. Executive will receive a lump sum payment of severance equal
to 100% of Executive’s annual base salary as in effect immediately prior to Executive’s termination
date or (if greater) at the level in effect immediately prior to the Change of Control.



               (iii) Equity Awards. All outstanding equity awards will vest in full as to 100% of
the unvested portion of the award. Executive will have six (6) months following the date of his or
her termination in which to exercise any outstanding stock options or other similar rights to
acquire Company common stock; provided, however, that such post-termination exercise period will
not extend beyond the original maximum term of the stock option or other similar right to acquire
Company common stock and an equity award will not extend beyond a Change of Control in the event it
is not assumed or substituted for as contemplated by the stock plan under which it was granted.



               (iv) Continued Employee Benefits. If Executive elects continuation coverage pursuant
to the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (“COBRA”) for Executive
and Executive’s eligible dependents, within the time period prescribed pursuant to COBRA, the
Company will reimburse Executive for the COBRA premiums for such coverage (at the coverage levels
in effect immediately prior to Executive’s termination) until the earlier of (A) a period of
eighteen (18) months from the last date of employment of the Executive with the Company, or (B) the
date upon which Executive and/or Executive’s eligible dependents becomes covered under similar
plans. COBRA reimbursements will be made by the Company to Executive consistent with the Company’s
normal expense reimbursement policy.



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          (b) Timing of Severance Payments. Unless otherwise required by Section 4(g), the
Company will pay any severance payments in a lump sum as soon as practicable following Executive’s
termination date; provided, however, that no severance or other benefits will be paid or provided
until the release of claims discussed in Section 4(a) becomes effective, and any severance amounts
or benefits otherwise payable between Executive’s termination date and the date such release
becomes effective will be paid on the effective date of such release. If Executive should die
before all of the severance amounts have been paid, such unpaid amounts will be paid in a lump-sum
payment promptly following such event to Executive’s designated beneficiary, if living, or
otherwise to the personal representative of Executive’s estate.




          (c) Voluntary Resignation; Termination for Cause. If Executive’s employment with the
Company terminates (i) voluntarily by Executive (other than for Good Reason during the period that
is on or within twelve (12) months after a Change of Control) or (ii) for Cause by the Company,
then Executive will not be entitled to receive severance or other benefits except for those (if
any) as may then be established under the Company’s then existing severance and benefits plans and
practices or pursuant to other written agreements with the Company.




          (d) Disability; Death. If the Company terminates Executive’s employment as a result
of Executive’s Disability, or Executive’s employment terminates due to his or her death, then
Executive will not be entitled to receive severance or other benefits except for those (if any) as
may then be established under the Company’s then existing written severance and benefits plans and
practices or pursuant to other written agreements with the Company.




          (e) Termination not in Connection with a Change of Control. In the event Executive’s
employment is terminated for any reason other than as provided in Section 4(a), then Executive will
be entitled to receive severance and any other benefits only as may then be established under the
Company’s existing written severance and benefits plans and practices or pursuant to other written
agreements with the Company.




          (f) Exclusive Remedy. In the event of a Change of Control as set forth in Section 3
of this Agreement, or a termination of Executive’s employment as set forth in Section 4(a) of this
Agreement, the provisions of Section 3 and Section 4, as applicable, are intended to be and are
exclusive and in lieu of any other rights or remedies to which Executive or the Company may
otherwise be entitled, whether at law, tort or contract, in equity, or under this Agreement (other
than the payment of accrued but unpaid wages, as required by law, and any unreimbursed reimbursable
expenses). Executive will be entitled to no benefits, compensation or other payments or rights
upon a Change of Control or a termination of employment following a Change of Control other than
those benefits expressly set forth in Section 3 or Section 4 of this Agreement.




          (g) Section 409A.




               (i) Notwithstanding anything to the contrary in this Agreement, if Executive is a “specified
employee” within the meaning of Section 409A of the Internal Revenue Code of 1986, as amended (the
“Code”) and the final regulations and any guidance promulgated thereunder (“Section 409A”) at the
time of Executive’s termination (other than due to death), then the severance payable to Executive,
if any, pursuant to this Agreement, when considered together with any other severance payments or
separation benefits that are considered deferred compensation under Section 409A (together, the
“Deferred Compensation Separation Benefits”) that are payable within the first six (6) months
following Executive’s termination of employment, will become



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payable on the first payroll date that occurs on or after the date six (6) months and one (1)
day following the date of Executive’s termination of employment. All subsequent Deferred
Compensation Separation Benefits, if any, will be payable in accordance with the payment schedule
applicable to each payment or benefit. Notwithstanding anything herein to the contrary, if
Executive dies following his or her termination but prior to the six (6) month anniversary of his
or her termination, then any payments delayed in accordance with this paragraph will be payable in
a lump sum as soon as administratively practicable after the date of Executive’s death and all
other Deferred Compensation Separation Benefits will be payable in accordance with the payment
schedule applicable to each payment or benefit. Each payment and benefit payable under this
Agreement is intended to constitute separate payments for purposes of Section 1.409A-2(b)(2) of the
Treasury Regulations.




               (ii) Any amount paid under this Agreement that satisfies the requirements of the “short-term
deferral” rule set forth in Section 1.409A-1(b)(4) of the Treasury Regulations shall not constitute
Deferred Compensation Separation Benefits for purposes of clause (i) above.



               (iii) Any amount paid under this Agreement that qualifies as a payment made as a result of an
involuntary separation from service pursuant to Section 1.409A-1(b)(9)(iii) of the Treasury
Regulations that do not exceed the Section 409A Limit shall not constitute Deferred Compensation
Separation Benefits for purposes of clause (i) above.



               (iv) The foregoing provisions are intended to comply with the requirements of Section 409A so
that none of the severance payments and benefits to be provided hereunder will be subject to the
additional tax imposed under Section 409A, and any ambiguities herein will be interpreted to so
comply. The Company and Executive agree to work together in good faith to consider amendments to
this Agreement and to take such reasonable actions which are necessary, appropriate or desirable to
avoid imposition of any additional tax or income recognition prior to actual payment to Executive
under Section 409A.



     5. Limitation on Payments. In the event that the severance and other benefits
provided for in this Agreement or otherwise payable to Executive (i) constitute “parachute
payments” within the meaning of Section 280G of the Code, and (ii) but for this Section 5, would be
subject to the excise tax imposed by Section 4999 of the Code, then Executive’s Change of Control
Payment and severance benefits under Section 3 and Section 4(a)(i) respectively will be either:



          (a) delivered in full, or




          (b) delivered as to such lesser extent which would result in no
portion of such benefits being subject to excise tax under Section 4999 of the
Code,



whichever of the foregoing amounts, taking into account the applicable federal, state and local
income taxes and the excise tax imposed by Section 4999, results in the receipt by Executive on an
after-tax basis, of the greatest amount of benefits, notwithstanding that all or some portion of
such benefits may be taxable under Section 4999 of the Code. If a reduction in severance and other
benefits constituting “parachute payments” is necessary so that benefits are delivered to a lesser
extent, reduction will occur in the following order: reduction of cash payments; cancellation of
accelerated vesting of equity awards; reduction of employee benefits. In the event that
acceleration of vesting of equity award compensation is to be reduced, such acceleration of vesting
will be cancelled in the reverse order of the date of grant of Executive’s equity awards.




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     Unless the Company and Executive otherwise agree in writing, any determination required under
this Section 5 will be made in writing by the Company’s independent public accountants immediately
prior to a Change of Control or such other person or entity to which the parties mutually agree
(the “Accountants”), whose determination will be conclusive and binding upon Executive and the
Company for all purposes. For purposes of making the calculations required by this Section 5, the
Accountants may make reasonable assumptions and approximations concerning applicable taxes and may
rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999
of the Code. The Company and Executive will furnish to the Accountants such information and
documents as the Accountants may reasonably request in order to make a determination under this
Section. The Company will bear all costs the Accountants may incur in connection with any
calculations contemplated by this Section 5.



     6. Definition of Terms. The following terms referred to in this Agreement will have
the following meanings:



          (a) Cause. “Cause” will mean:




               (i) Executive’s continued intentional and demonstrable failure to perform his or her duties
customarily associated with Executive’s position as an employee of the Company or its respective
successors or assigns, as applicable (other than any such failure resulting from Executive’s mental
or physical Disability) after Executive has received a written demand of performance from the
Company with specifically sets forth the factual basis for the Company’s belief that Executive has
not devoted sufficient time and effort to the performance of his or her duties and has failed to
cure such non-performance within thirty (30) days after receiving such notice (it being understood
that if Executive is in good-faith performing his or her duties, but is not achieving results the
Company deems satisfactory for Executive’s position, it will not be considered to be grounds for
termination of Executive for “Cause”);



               (ii) Executive’s conviction of, or plea of nolo contendere to, a felony that the Board of
Directors of the Company (the “Board”) reasonably believes has had or will have a material
detrimental effect on the Company’s reputation or business; or



               (iii) Executive’s commission of an act of fraud, embezzlement, misappropriation, willful
misconduct, or breach of fiduciary duty against, and causing material harm to, the Company or its
respective successors or assigns, as applicable.



          Executive will receive notice and an opportunity to be heard before the Board with Executive’s
own attorney before any termination for Cause is deemed effective. Notwithstanding anything to the
contrary, the Board may immediately place Executive on administrative leave (with full pay and
benefits to the extent legally permissible) but will allow reasonable access to Company
information, employees and business should Executive wish to avail himself and prepare for his or
her opportunity to be heard before the Board prior to the Board’s termination for Cause. If
Executive avails himself of his or her opportunity to be heard before the Board, and then fails to
make himself or herself available to the Board within thirty (30) days of such request to be heard,
the Board may thereafter cancel the administrative leave and terminate Executive for Cause.
Likewise, if the Board fails to make itself available to Executive and his or her counsel within
thirty (30) days of Executive’s request to be heard, Executive will be entitled to terminate his or
her employment with the Company and such termination will be treated as a resignation by Executive
for Good Reason.




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          (b) Change of Control. “Change of Control” will mean the occurrence of any of the
following events:




               (i) Change in Ownership of the Company. A change in the ownership of the Company
which occurs on the date that any one person, or more than one person acting as a group (“Person”),
acquires ownership of the stock of the Company that, together with the stock held by such Person,
constitutes more than 50% of the total voting power of the stock of the Company, except that any
change in the ownership of the stock of the Company as a result of a private financing of the
Company that is approved by the Board will not be considered a Change of Control; or



               (ii) Change in Effective Control of the Company. A change in the effective control of
the Company which occurs on the date that a majority of members of the Board is replaced during any
twelve (12) month period by directors whose appointment or election is not endorsed by a majority
of the members of the Board prior to the date of the appointment or election. For purposes of this
clause (ii), if any Person is considered to be in effective control of the Company, the acquisition
of additional control of the Company by the same Person will not be considered a Change of Control;
or



               (iii) Change in Ownership of a Substantial Portion of the Company’s Assets. A change
in the ownership of a substantial portion of the Company’s assets which occurs on the date that any
Person acquires (or has acquired during the twelve (12) month period ending on the date of the most
recent acquisition by such person or persons) assets from the Company that have a total gross fair
market value equal to or more than 50% of the total gross fair market value of all of the assets of
the Company immediately prior to such acquisition or acquisitions. For purposes of this subsection
(iii), gross fair market value means the value of the assets of the Company, or the value of the
assets being disposed of, determined without regard to any liabilities associated with such assets.



          For these purposes, persons will be considered to be acting as a group if they are owners of a
corporation that enters into a merger, consolidation, purchase or acquisition of stock, or similar
business transaction with the Company.




          Notwithstanding the foregoing provisions of this definition, a transaction will not be deemed
a Change of Control unless the transaction qualifies as a change in control event within the
meaning of Section 409A.




          (c) Disability. “Disability” will mean that Executive has been unable to perform his
or her Company duties as the result of his or her incapacity due to physical or mental illness, and
such inability, at least twenty-six (26) weeks after its commencement or 180 days in any
consecutive twelve (12) month period, is determined to be total and permanent by a physician
selected by the Company or its insurers and acceptable to Executive or Executive’s legal
representative (such agreement as to acceptability not to be unreasonably withheld). Termination
resulting from Disability may only be effected after at least thirty (30) days’ written notice by
the Company of its intention to terminate Executive’s employment. In the event that Executive
resumes the performance of substantially all of his or her duties hereunder before the termination
of his or her employment becomes effective, the notice of intent to terminate will automatically be
deemed to have been revoked.




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          (d) Good Reason. “Good Reason” will mean Executive’s termination of employment within
ninety (90) days following the expiration of any cure period (discussed below) following the
occurrence of one or more of the following, without Executive’s consent:




               (i) The assignment to Executive of any duties, or the reduction of Executive’s duties, either
of which results in a material diminution of Executive’s authority, duties, or responsibilities
with the Company in effect immediately prior to such assignment, or the removal of Executive from
such position and responsibilities; provided, however, that a reduction in duties, position or
responsibilities solely by virtue of the Company being acquired and made part of a larger entity,
whether as a subsidiary, business unit or otherwise (as, for example, when the Chief Executive
Officer of the Company remains the Chief Executive Officer of the Company following a Change of
Control where the Company becomes a wholly owned subsidiary of the acquiror, but is not made the
Chief Executive Officer of the acquiring corporation) will not constitute “Good Reason;”



               (ii) A material reduction in Executive’s base salary as in effect immediately prior to such
reduction, unless the Company (or Executive’s employer or the parent corporation in a group of
controlled corporations following a Change of Control) also similarly reduces the base salary of
all other employees of the Company (or Executive’s employer or the parent corporation in a group of
controlled corporations following a Change of Control) with positions, duties and responsibilities
comparable to Executive’s;



               (iii) A material change in the geographic location at which Executive must perform services
(in other words, the relocation of Executive to a facility that is more than thirty-five (35) miles
from Executive’s current location);



               (iv) Any purported termination of the Executive’s employment for “Cause” without first
satisfying the procedural protections, as applicable, required by the definition of “Cause” set
forth in that definition; or



               (v) The failure of the Company to obtain the assumption of the Agreement by a successor and/or
acquirer.



          The notification and placement of Executive on administrative leave pending a potential
determination by the Board that Executive may be terminated for Cause will not constitute Good
Reason.




          Executive will not resign for Good Reason without first providing the Company with written
notice within sixty (60) days of the event that Executive believes constitutes “Good Reason”
specifically identifying the acts or omissions constituting the grounds for Good Reason and a
reasonable cure period of not less than thirty (30) days following the date of such notice.




          (e) Section 409A Limit. “Section 409A Limit” will mean the lesser of two (2) times:
(i) Executive’s annualized compensation based upon the annual rate of pay paid to Executive during
the Executive’s taxable year preceding the Executive’s taxable year of Executive’s termination of
employment as determined under, and with such adjustments as are set forth in, Treasury Regulation
1.409A-1(b)(9)(iii)(A)(1) and any Internal Revenue Service guidance issued with respect thereto; or
(ii) the maximum amount that may be taken into account under a qualified




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plan pursuant to Section 401(a)(17) of the Code for the year in which Executive’s employment
is terminated.




     7. Successors.



          (a) The Company’s Successors. Any successor to the Company (whether direct or
indirect and whether by purchase, merger, consolidation, liquidation or otherwise) to all or
substantially all of the Company’s business and/or assets will assume the obligations under this
Agreement and agree expressly to perform the obligations under this Agreement in the same manner
and to the same extent as the Company would be required to perform such obligations in the absence
of a succession. For all purposes under this Agreement, the term “Company” will include any
successor to the Company’s business and/or assets which executes and delivers the assumption
agreement described in this Section 7(a) or which becomes bound by the terms of this Agreement by
operation of law.




          (b) Executive’s Successors. The terms of this Agreement and all rights of Executive
hereunder will inure to the benefit of, and be enforceable by, Executive’s personal or legal
representatives, executors, administrators, successors, heirs, distributees, devisees and legatees.




     8. Arbitration. 



          (a) The Company and Executive each agree that any and all disputes arising out of the terms of
this Agreement, Executive’s employment by the Company, Executive’s service as an officer or
director of the Company, or Executive’s compensation and benefits, their interpretation and any of
the matters herein released, will be subject to binding arbitration under the arbitration rules
set forth in California Code of Civil Procedure Sections 1280 through 1294.2, including Section
1281.8 (the “Act”), and pursuant to California law. Disputes that the Company and Executive agree
to arbitrate, and thereby agree to waive any right to a trial by jury, include any statutory claims
under local, state, or federal law, including, but not limited to, claims under Title VII of the
Civil Rights Act of 1964, the Americans with Disabilities Act of 1990, the Age Discrimination in
Employment Act of 1967, the Older Workers Benefit Protection Act, the Sarbanes-Oxley Act, the
Worker Adjustment and Retraining Notification Act, the California Fair Employment and Housing Act,
the Family and Medical Leave Act, the California Family Rights Act, the California Labor Code,
claims of harassment, discrimination, and wrongful termination, and any statutory or common law
claims. The Company and Executive further understand that this agreement to arbitrate also applies
to any disputes that the Company may have with Executive.




          (b) Procedure. The Company and Executive agree that any arbitration will be
administered by Judicial Arbitration & Mediation Services, Inc. (“JAMS”), pursuant to its
Employment Arbitration Rules & Procedures (the “JAMS Rules”). The Arbitrator will have the power
to decide any motions brought by any party to the arbitration, including motions for summary
judgment and/or adjudication, motions to dismiss and demurrers, and motions for class
certification, prior to any arbitration hearing. The Arbitrator will have the power to award any
remedies available under applicable law, and the Arbitrator will award attorneys’ fees and costs to
the prevailing party, except as prohibited by law. The Company will pay for any administrative or
hearing fees charged by the Arbitrator or JAMS except that Executive will pay any filing fees
associated with any arbitration that Executive initiates, but only so much of the filing fees as
Executive would have instead paid had he or she filed a complaint in a court of law. The
Arbitrator will administer and conduct any arbitration in accordance with California law, including
the California Code of Civil




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Procedure, and the Arbitrator will apply substantive and procedural California law to any
dispute or claim, without reference to rules of conflict of law. To the extent that the JAMS Rules
conflict with California law, California law will take precedence. The decision of the Arbitrator
will be in writing. Any arbitration under this Agreement will be conducted in Santa Clara County,
California.




          (c) Remedy. Except as provided by the Act and this Agreement, arbitration will be the
sole, exclusive, and final remedy for any dispute between Executive and the Company. Accordingly,
except as provided for by the Act and this Agreement, neither Executive nor the Company will be
permitted to pursue court action regarding claims that are subject to arbitration.




          (d) Administrative Relief. Executive understand that this Agreement does not prohibit
him or her from pursuing any administrative claim with a local, state, or federal administrative
body or government agency that is authorized to enforce or administer laws related to employment,
including, but not limited to, the Department of Fair Employment and Housing, the Equal Employment
Opportunity Commission, the National Labor Relations Board, or the Workers’ Compensation Board.
This Agreement does, however, preclude Executive from pursuing court action regarding any such
claim, except as permitted by law.




          (e) Voluntary Nature of Agreement. Each of the Company and Executive acknowledges and
agrees that such party is executing this Agreement voluntarily and without any duress or undue
influence by anyone. Executive further acknowledges and agrees that he or she has carefully read
this Agreement and has asked any questions needed for him or her to understand the terms,
consequences, and binding effect of this Agreement and fully understand it, including that
Executive is waiving his or her right to a jury trial. Finally, Executive agrees that he or she
has been provided an opportunity to seek the advice of an attorney of his or her choice before
signing this Agreement.




     9. Notice.



          (a) General. Notices and all other communications contemplated by this Agreement will
be in writing and will be deemed to have been duly given when personally delivered or when mailed
by U.S. registered or certified mail, return receipt requested and postage prepaid. In the case of
Executive, mailed notices will be addressed to him or her at the home address which he or she most
recently communicated to the Company in writing. In the case of the Company, mailed notices will
be addressed to its corporate headquarters, and all notices will be directed to the attention of
its President.




          (b) Notice of Termination. Any termination by the Company for Cause or by Executive
for Good Reason will be communicated by a notice of termination to the other party hereto given in
accordance with Section 9(a) of this Agreement. Such notice will indicate the specific termination
provision in this Agreement relied upon, will set forth in reasonable detail the facts and
circumstances claimed to provide a basis for termination under the provision so indicated, and will
specify the termination date (which will be not more than thirty (30) days after the giving of such
notice). The failure by Executive to include in the notice any fact or circumstance which
contributes to a showing of Good Reason will not waive any right of Executive hereunder or preclude
Executive from asserting such fact or circumstance in enforcing his or her rights hereunder.




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     10. Miscellaneous Provisions.



          (a) No Duty to Mitigate. Executive will not be required to mitigate the amount of any
payment contemplated by this Agreement, nor will any such payment be reduced by any earnings that
Executive may receive from any other source.




          (b) Other Requirements. Executive’s receipt of any payments or benefits under Section
3 and/or Section 4 will be subject to Executive continuing to comply with the terms of any
confidential information agreement executed by Executive in favor of the Company and the provisions
of this Agreement.




          (c) Waiver. No provision of this Agreement will be modified, waived or discharged
unless the modification, waiver or discharge is agreed to in writing and signed by Executive and by
an authorized officer of the Company (other than Executive). No waiver by either party of any
breach of, or of compliance with, any condition or provision of this Agreement by the other party
will be considered a waiver of any other condition or provision or of the same condition or
provision at another time.




          (d) Headings. All captions and section headings used in this Agreement are for
convenient reference only and do not form a part of this Agreement.




          (e) Entire Agreement. This Agreement constitutes the entire agreement of the parties
hereto and supersedes in their entirety all prior representations, understandings, undertakings or
agreements (whether oral or written and whether expressed or implied) of the parties with respect
to the subject matter hereof. No waiver, alteration, or modification of any of the provisions of
this Agreement will be binding unless in writing and signed by duly authorized representatives of
the parties hereto and which specifically mention this Agreement.




          (f) Choice of Law. The validity, interpretation, construction and performance of this
Agreement will be governed by the laws of the State of California (with the exception of its
conflict of laws provisions). Any claims or legal actions by one party against the other arising
out of the relationship between the parties contemplated herein (whether or not arising under this
Agreement) will be commenced or maintained in any state or federal court located in the
jurisdiction where Executive resides, and Executive and the Company hereby submit to the
jurisdiction and venue of any such court.




          (g) Severability. The invalidity or unenforceability of any provision or provisions
of this Agreement will not affect the validity or enforceability of any other provision hereof,
which will remain in full force and effect.




          (h) Withholding. All payments made pursuant to this Agreement will be subject to
withholding of applicable income, employment and other taxes.




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




[Signature Page to Follow]




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     IN WITNESS WHEREOF, each of the parties has executed this Agreement, in the case of the
Company by its duly authorized officer, as of the day and year set forth below.



	 	 	 	 	 	 	 	 	 
	COMPANY	 	 	 	CATAPULT COMMUNICATIONS CORPORATION	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	By:
	 	/s/ Christopher A. Stephenson	 	 
	 

	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	Title:
	 	Vice President, Chief Financial Officer and
Secretary	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	Date:
	 	June 13, 2008	 	 
	 
	 	 	 	 	 	 	 	 
	EXECUTIVE

	 	 	 	 	 	/s/ Richard A. Karp	 	 
	 

	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	Title:
	 	Chief Executive Officer & Chairman of the Board	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	Date:
	 	June 13, 2008	 	 







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