AMENDMENT
EXHIBIT 10.33
AMENDMENT
This Amendment (the “Amendment”) to that certain Employment Agreement dated July 27, 2005 (the
“Employment Agreement”) by and between Xxxx Xxxx (the “Employee”) and Terayon Communication
Systems, Inc., a Delaware corporation (the “Company”), is entered into by and between the Employee
and the Company on May 10, 2007. Capitalized terms used in this Amendment that are not otherwise
defined herein shall have the respective meanings set forth in the Employment Agreement.
Whereas, the Employment Agreement provides for, among other provisions, the payment
of severance to the Employee upon an Involuntary Termination within twelve months after a Change in
Control that includes an amount equal to a multiple of the greater of (i) the Employee’s annual
sales commission payments for the most recent year completed prior to the effective date on which
the Employee’s employment is terminated or (ii) the Employee’s target sales commission payments in
effect for the year in which the Employee’s employment is terminated; and
Whereas, the Company has elected to defer the adoption of the Company’s 2007
Corporate Bonus Program and 2007 Section 16 Officer Plan (collectively, the “Bonus Plans”) at the
request of Motorola, Inc., a Delaware corporation (“Parent”), in connection with that certain
Merger Agreement, dated as of April 21, 2007 (the “Merger Agreement”), by and among the Company,
Parent and Motorola GTG Subsidiary VI Corp., a Delaware corporation and wholly-owned subsidiary of
Parent (“Merger Sub”), and the transactions contemplated thereby, including, among other things,
the merger of Merger Sub with and into Company, with the Company continuing as a surviving
corporation and wholly-owned subsidiary of Parent (the “Merger”); and
Whereas, the Company has determined that deferral of the adoption of the Bonus Plans
may adversely impact the formulation used to calculate severance payable under the Employment
Agreement in the event of an Involuntary Termination, and to preserve the original intent of the
Employment Agreement as described in the first recital to this Amendment, the Company now finds it
in the best interests of the Company to amend such formulation on the terms set forth in this
Amendment; and
Whereas, the Company and the Employee intend that this Amendment be conditioned upon,
and effective immediately prior to, the consummation of the Merger; and
Whereas, the Employee is agreeable to the Amendment and now wishes to manifest his
consent to the Amendment.
NOW, THEREFORE, in consideration of the foregoing and for good and valuable
consideration, the receipt and adequacy of which are hereby acknowledged, the Company and the
Employee agree as follows:
I. Amendments to Employment Agreement. The Employment Agreement is hereby amended in the following
respects:
A. Section 6(c)(ii) of the Employment Agreement is hereby deleted in its entirety and replaced
and superseded by the following:
“(ii) the greater of (A) the Employee’s annual sales commission payments with
respect to calendar year 2006 or (B) the 2007 Target Bonus Amount.”
B. The following newly created defined term is hereby incorporated into the Employment
Agreement as Section 11(a) thereto:
“(a) Definition of ‘2007 Target Bonus Amount.’ For purposes of Section 6(c) hereof,
“2007 Target Bonus Amount” shall mean:
An amount equal to 100 percent of the Employee’s Base Salary that is in effect for
the calendar year 2007.” For the avoidance of doubt, the 2007 Target Bonus Amount
shall mean $325,000.
C. Prior to giving effect to this Amendment, the section of the Employment Agreement
identified as Section 11(a) of the Agreement, and each other section of the Employment Agreement
that is affected by the Amendment (the “Former Section Numbers”), shall be amended to reflect a new
section number, and all other sections of the Employment Agreement making reference to the Former
Section Numbers shall be revised accordingly to give effect to this Amendment.
II. Effectiveness of Amendment. The Company and the Employee hereby acknowledge and agree that the
Amendment is conditioned upon, and shall not become effective until immediately prior to, the
consummation of the Merger. In the event that the Merger Agreement is terminated in accordance
with its terms, the Company and the Employee hereby agree that this Amendment shall terminate
effective as of the date of such termination and without any further action of the parties hereto,
and neither party shall have any liability to the other with respect to the provisions contained
herein.
III. Employee’s Consent. The Employee hereby acknowledges, is agreeable to and hereby consents to
the amendments to the Employment Agreement contemplated by this Amendment.
IV. Scope of Amendment. Except and only to the extent specifically contemplated herein, all of the
terms and conditions of the Employment Agreement are hereby ratified and confirmed and shall remain
in full force and effect. In case of any conflict or inconsistency between the provisions of this
Amendment and the Employment Agreement, this Amendment shall control. This Amendment may be
executed in multiple counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, each of the parties has executed this Amendment, in the case of the
Company by its duly authorized officer, as of the day and year first above written.
| /s/ Xxxx Xxxx | ||||
| Xxxx Xxxx | ||||
| TERAYON COMMUNICATION SYSTEMS, INC. |
||||
| By: | /s/ Xxxxx Xxxxx | |||
| Name: | Xxxxx Xxxxx | |||
| Title: | Chief Executive Officer | |||
