exv10w9



 






Exhibit 10.9




Change in Control Agreement




This agreement is entered into as of this 14th day of December 2005 by and between
Photon Dynamics, Inc., a California Corporation (the “Company”), and Jeffrey A. Hawthorne
(“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, Iease, 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 held by you shall have their vesting
accelerated such that all



 









 







options 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 0r 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 with 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 0r 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. lf 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 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. lf 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 Options (i.e., earliest granted Option 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, lf 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. lf 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, promise, representation, 0r statement,
written or otherwise, between you and the Company with regard to this subject matter. lt is entered
into without reliance 0n 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/ MAUREEN L. LAMB
	 

	 	 





Accepted and agreed:




	 	 	 
	/s/ JEFFREY A. HAWTHORNE

	 	12/13/2005
	 

	 	 
	 

	 	Date