EX-10.4



 





Exhibit 10.4




EXTENSION AND AMENDMENT OF AGREEMENT




      This Extension and Amendment is dated as of March 10, 2005 between Tollgrade Communications,
Inc., having an address at 493 Nixon Road, Cheswick, PA 15024 (the “Corporation”) and Roger A.
Smith, an individual residing in the Commonwealth of Pennsylvania and an employee of the
Corporation (the “Executive”).



      WHEREAS, the Corporation and the Executive entered into an Agreement made as of January 19,
2001, which provides for compensation to the Executive upon termination of employment under certain
circumstances related to a change in control of the Corporation (the “Agreement”);



      WHEREAS, the initial term of the Agreement is stated to continue for a period of four (4)
years, and the Agreement provides further that upon expiration, the Corporation shall, in its sole
discretion, determine whether the Agreement shall be renewed upon such terms as the Corporation
deems advisable;



      WHEREAS, notwithstanding the expiration of the initial term of the Agreement, the Board of
Directors of the Corporation have determined that it is in the best interests of the Corporation to
renew the Agreement, extending its term for an additional period of four (4) years, provided that
the Agreement is amended as set forth herein to include a covenant against competition;



      WHEREAS, the Executive desires to extend the Agreement, as amended hereby, in order to obtain
the benefits described in the Agreement in the event the Executive’s employment is terminated under
the circumstances described in the Agreement.



      NOW THEREFORE, in consideration of the premises contained herein and for other good and
valuable consideration, the parties agree as follows:



      1. Extension of Agreement. The term of the Agreement is hereby deemed to have continued in effect
through and including the date hereof, and is hereby further extended through February 28, 2009.
Upon expiration of the term, as so extended, the Corporation shall, in its sole discretion,
determine whether the Agreement shall be renewed upon such terms as it deems advisable.



      2. Amendment of Agreement. A new Section 11 is hereby added to the Agreement to read in its
entirety as set forth on Exhibit A attached hereto.



      3. No Other Modifications. Except as modified by this Extension and Amendment, the provisions of
the Agreement shall remain in full force and effect.



      4. Miscellaneous. This Extension and Amendment will be governed in all respects by the laws of
the Commonwealth of Pennsylvania without reference to any choice of law provisions. This Extension
and Amendment may be executed in any number of counterparts and by the different parties hereto on
separate counterparts, each of which, when so executed, shall be deemed an original, but all such
counterparts shall constitute but one and the same instrument.



      IN WITNESS WHEREOF, the parties have hereunto set their hands the date first above written.



	 	 	 	 	 
	TOLLGRADE COMMUNICATIONS, INC.
	 	EXECUTIVE
	 
	 	 	 	 
	By:

	 	/s/Jennifer M. Reinke
	 	/s/Roger A. Smith
	

	 	 
	 	 
	Name:

	 	Jennifer M. Reinke
	 	Roger A. Smith
	

	 	 	 	 
	Title:

	 	Assistant Secretary	 	 
	

	 	 	 	 






 








 





Exhibit A




      11. 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.