Form of Indemnification Agreement



  
 EXHIBIT 10.14 
  
 FORM OF INDEMNIFICATION AGREEMENT 
  
 AGREEMENT, effective as of May __, 2002, between NPTest, Inc., a Delaware corporation (the “Company”), and __________ (the “Indemnitee”). 
  
 WHEREAS, it is essential to the Company to retain and attract as directors and officers the most capable persons available; 
  
 WHEREAS, Indemnitee is a director or officer of the Company; 
  
 WHEREAS, both the Company and Indemnitee recognize the increased risk of litigation and other claims being asserted against directors and officers of public
companies in today’s environment; 
  
 WHEREAS, the Bylaws of the Company require the Company to indemnify
and advance expenses to its directors and officers to the full extent permitted by law and the Indemnitee has been serving and continues to serve as a director or officer of the Company in part in reliance on such By-laws; 
  
 WHEREAS, in recognition of Indemnitee’s need for substantial protection against personal liability in order to enhance
Indemnitee’s continued service to the Company in an effective manner the Company wishes to provide in this Agreement for the indemnification of and the advancing of expenses to Indemnitee to the fullest extent (whether partial or complete)
permitted by law and as set forth in this Agreement, and, to the extent insurance is maintained, for the continued coverage of Indemnitee under the Company’s directors’ and officers’ liability insurance policies; 

 
 NOW, THEREFORE, in consideration of the premises and of Indemnitee continuing to serve the Company directly or, at its
request, another enterprise, and intending to be legally bound hereby, the parties hereto agree as follows: 
  

	1.
	Certain Definitions: 
 

  

	 	(a)
	Change in Control:    shall be deemed to have occurred if (i) any “person” (as such term is used in Sections 13(d) and
14(d) of the Securities Exchange Act of 1934, as amended), other than a trustee or other fiduciary holding securities under an employee benefit plan of the Company or a corporation owned directly or indirectly by the stockholders of the Company in
substantially the same proportions as their ownership of stock of the Company, becomes the “beneficial owner” (as defined in Rule 13d-3 under said Act), directly or indirectly, of securities of the Company representing 20% or more of the
total voting power represented by the Company’s then outstanding Voting Securities, or (ii) during any period of two consecutive years, individuals who at the beginning of such period constitute the Board of Directors of the Company and any new
director whose election by the Board of Directors or nomination for election by the Company’s stockholders was approved by a vote of at least two-thirds (2/3) of the directors then still in office who either were directors at the
 
 


 









	 	
beginning of the period or whose election or nomination for election was previously so approved, cease for any reason to constitute a majority thereof, or (iii) the stockholders of the Company
approve a merger or consolidation of the Company with any other corporation, other than a merger or consolidation which would result in the Voting Securities of the Company outstanding immediately prior thereto continuing to represent (either by
remaining outstanding or by being converted into Voting Securities of the surviving entity) at least 80% of the total voting power represented by the Voting Securities of the Company or such surviving entity outstanding immediately after such merger
or consolidation, or the stockholders of the Company approve a plan of complete liquidation of the Company or an agreement for the sale or disposition by the Company of (in one transaction or a series of transactions) all or substantially all the
Company’s assets. 
 

  

	 	(b)
	Claim:    any threatened, pending or completed action, suit or proceeding, or any inquiry or investigation, whether instituted by the
Company or any other party, that Indemnitee in good faith believes might lead to the institution of any such action, suit or proceeding, whether civil, criminal, administrative, investigative or other. 
 

  

	 	(c)
	Expenses:    include attorneys’ fees and all other costs, expenses and obligations paid or incurred in connection with
investigating, defending, being a witness in or participating in (including on appeal), or preparing to defend, be a witness in or participate in, any Claim relating to any Indemnifiable Event. 
 

  

	 	(d)
	Indemnifiable Event:    any event or occurrence related to the fact that Indemnitee is or was a director, officer, employee, agent or
fiduciary of the Company, or is or was serving at the request of the Company as a director, officer, employee, trustee, agent or fiduciary of another corporation, partnership, joint venture, employee benefit plan, trust or other enterprise, or by
reason of anything done or not done by Indemnitee in any such capacity. 
 

  

	 	(e)
	Independent Legal Counsel:    an attorney or firm of attorneys, selected in accordance with the provisions of Section 3, who shall
not have otherwise performed services for the Company or Indemnitee within the last [two] years (other than with respect to matters concerning the rights of Indemnitee under this Agreement, or of other indemnitees under similar indemnity
agreements). 
 

  

	 	(f)
	Potential Change in Control:    shall be deemed to have occurred if (i) the Company enters into an agreement, the consummation of
which would result in the occurrence of a Change in Control; (ii) any person (including the Company) publicly announces an intention to take or to consider taking actions which if consummated would constitute a Change in Control; (iii) any person,
other than a trustee or other fiduciary holding securities under an employee benefit plan of the Company or a corporation owned, directly or indirectly, by the stockholders of the Company in substantially the same proportions as their ownership of
stock of the Company, who is or becomes the beneficial owner, directly or indirectly, of
 
 


 
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securities of the Company representing [9.5%] or more of the combined voting power of the Company’s then outstanding Voting Securities, increases his beneficial ownership of such securities
by five percentage points (5%) or more over the percentage so owned by such person; or (iv) the Board adopts a resolution to the effect that, for purposes of this Agreement, a Potential Change in Control has occurred. 



  

	 	(g)
	Reviewing Party:    any appropriate person or body consisting of a member or members of the Company’s Board of Directors or any
other person or body appointed by the Board who is not a party to the particular Claim for which Indemnitee is seeking indemnification, or Independent Legal Counsel. 
 

  

	 	(h)
	Voting Securities:    any securities of the Company which vote generally in the election of directors. 



  

	2.
	Basic Indemnification Arrangement. 
 

  

	 	(a)
	In the event Indemnitee was, is or becomes a party to or witness or other participant in, or is threatened to be made a party to or witness or other participant
in, a Claim by reason of (or arising in part out of) an Indemnifiable Event, the Company shall indemnify Indemnitee to the fullest extent permitted by law as soon as practicable but in any event no later than thirty days after written demand is
presented to the Company, against any and all Expenses, judgments, fines, penalties and amounts paid in settlement (including all interest, assessments and other charges paid or payable in connection with or in respect of such Expenses, judgments,
fines, penalties or amounts paid in settlement) of such Claim. If so requested by Indemnitee, the Company shall advance (within two business days of such request) any and all Expenses to Indemnitee (an “Expense Advance”). Notwithstanding
anything in this Agreement to the contrary, Indemnitee shall not be entitled to indemnification on an advance pursuant to this Agreement in connection with any (i) Claim initiated by Indemnitee, unless the Board of Directors has authorized or
consented to the initiation of such Claim, (ii) liability under Section 16(b) of the Exchange act or under federal or state securities laws for “insider trading,” (iii) breach of the duty of loyalty to the Corporation, (iv) conduct finally
adjudged as constituting acts or omissions not in good faith or that involve active or deliberate dishonesty or willful fraud or illegality, (v) conduct finally adjudged as producing an unlawful personal benefit, (vi) liability under Section 174 of
the Delaware General Corporation Law (the “DGCL”) regarding unlawful dividends and stock purchases or (vii) advance that is prohibited by the Sarbanes-Oxley Act of 2002. 
 

  

	 	(b)
	Notwithstanding the foregoing, (i) the obligations of the Company under Section 2(a) shall be subject to the condition that the Reviewing Party shall not have
determined (in a written opinion, in any case in which the Independent Legal Counsel referred to in Section 3 hereof is involved) that Indemnitee would not be permitted to be indemnified under applicable law, and (ii) the obligation of the Company
to make an Expense Advance pursuant to Section 2(a) shall be subject
 
 


 
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to the condition that, if, when and to the extent that the Reviewing Party determines that Indemnitee would not be permitted to be so indemnified under applicable law, the Company shall be
entitled to be reimbursed by Indemnitee (who hereby agrees to reimburse the Company) for all such amounts theretofore paid; provided, however, that if Indemnitee has commenced or thereafter commences legal proceedings in a court of competent
jurisdiction to secure a determination that Indemnitee should be indemnified under applicable law, any determination made by the Reviewing Party that Indemnitee would not be permitted to be indemnified under applicable law shall not be binding and
Indemnitee shall not be required to reimburse the Company for any Expense Advance until a final judicial determination is made with respect thereto (as to which all rights of appeal therefrom have been exhausted or lapsed). If there has not been a
Change in Control, the Reviewing Party shall be selected by the Board of Directors, and if there has been such a Change in Control (other than a Change in Control which has been approved by a majority of the Company’s Board of Directors who
were directors immediately prior to such Change in Control), the Reviewing Party shall be the Independent Legal Counsel referred to in Section 3 hereof. If there has been no determination by the Reviewing Party or if the Reviewing Party determines
that Indemnitee substantively would not be permitted to be indemnified in whole or in part under applicable law, Indemnitee shall have the right to commence litigation in any court in any state having subject matter jurisdiction thereof and in which
venue is proper seeking an initial determination by the court or challenging any such determination by the Reviewing Party or any aspect thereof, including the legal or factual bases therefor, and the Company hereby consents to service of process
and to appear in any such proceeding. Any determination by the Reviewing Party otherwise shall be conclusive and binding on the Company and Indemnitee. 
 

  

	3.
	Change in Control.    The Company agrees that if there is a Change in Control of the Company (other than a Change in Control which
has been approved by a majority of the Company’s Board of Directors who were directors immediately prior to such Change in Control) then with respect to all matters thereafter arising concerning the rights of Indemnitee to indemnity payments
and Expense Advances under this Agreement or any other agreement or Company By-law now or hereafter in effect relating to Claims for Indemnifiable Events, the Company shall seek legal advice only from Independent Legal Counsel selected by Indemnitee
and approved by the Company (which approval shall not be unreasonably withheld). Such counsel, among other things, shall render its written opinion to the Company and Indemnitee as to whether and to what extent the Indemnitee would be permitted to
be indemnified under applicable law. The Company agrees to pay the reasonable fees of the Independent Legal Counsel referred to above and to indemnify fully such counsel against any and all expenses (including attorneys’ fees), claims,
liabilities and damages arising out of or relating to this Agreement or its engagement pursuant hereto. 
 

  

	4.
	Establishment of Trust.    In the event of a Potential Change in Control, the Company shall, upon written request by Indemnitee,
create a trust for the benefit of Indemnitee and from time to time upon written request of Indemnitee shall fund such trust in an amount
 
 


 
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sufficient to satisfy any and all Expenses reasonably anticipated at the time of each such request to be incurred in connection with investigating, preparing for and defending any Claim relating
to an Indemnifiable Event, and any and all judgments, fines, penalties and settlement amounts of any and all Claims relating to an Indemnifiable Event from time to time actually paid or claimed, reasonably anticipated or proposed to be paid,
provided that in no event shall more than $25,000 be required to be deposited in any trust created hereunder in excess of amounts deposited in respect of reasonably anticipated Expenses. The amount or amounts to be deposited in the trust pursuant to
the foregoing funding obligation shall be determined by the Reviewing Party, in any case in which the Independent Legal Counsel referred to above is involved. The terms of the trust shall provide that upon a Change in Control (i) the trust shall not
be revoked or the principal thereof invaded, without the written consent of the Indemnitee, (ii) the trustee shall advance, within two business days of a request by the Indemnitee, any and all Expenses to the Indemnitee (and the Indemnitee hereby
agrees to reimburse the trust under the circumstances under which the Indemnitee would be required to reimburse the Company under Section 2(b) of this Agreement), (iii) the trust shall continue to be funded by the Company in accordance with the
funding obligation set forth above, (iv) the trustee shall promptly pay to Indemnitee all amounts for which Indemnitee shall be entitled to indemnification pursuant to this Agreement or otherwise, and (v) all unexpended funds in such trust shall
revert to the Company upon a final determination by the Reviewing Party or a court of competent jurisdiction, as the case may be, that Indemnitee has been fully indemnified under the terms of this Agreement. The trustee shall be chosen by
Indemnitee. Nothing in this Section 4 shall relieve the Company of any of its obligations under this Agreement. 
 

  

	5.
	Indemnification for Additional Expenses.    The Company shall indemnify Indemnitee against any and all expenses (including
attorneys’ fees) and, if requested by Indemnitee, shall (within two business days of such request) advance such expenses to Indemnitee, which are incurred by Indemnitee in connection with any action brought by Indemnitee for (i) indemnification
or advance payment of Expenses by the Company under this Agreement or any other agreement or Company By-law now or hereafter in effect relating to Claims for Indemnifiable Events and/or (ii) recovery under any directors’ and officers’
liability insurance policies maintained by the Company, regardless of whether Indemnitee ultimately is determined to be entitled to such indemnification, advance expense payment or insurance recovery, as the case may be. 



  

	6.
	Partial Indemnity, Etc.    If Indemnitee is entitled under any provision of this Agreement to indemnification by the Company for some
or a portion of the Expenses, judgments, fines, penalties and amounts paid in settlement of a Claim but not, however, for all of the total amount thereof, the Company shall nevertheless indemnify Indemnitee for the portion thereof to which
Indemnitee is entitled. Moreover, notwithstanding any other provision of this Agreement, to the extent that Indemnitee has been successful on the merits or otherwise in defense of any or all Claims relating in whole or in part to an Indemnifiable
Event or in defense of any issue or matter therein, including dismissal without prejudice, Indemnitee shall be indemnified against all Expenses incurred in connection therewith. 
 


 
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	7.
	Burden of Proof.    In connection with any determination by the Reviewing Party or otherwise as to whether Indemnitee is entitled to
be indemnified hereunder the burden of proof shall be on the Company to establish that Indemnitee is not so entitled. 
 

  

	8.
	No Presumptions.    For purposes of this Agreement, the termination of any claim, action, suit or proceeding, by judgment, order,
settlement (whether with or without court approval) or conviction, or upon a plea of nolo contendere, or its equivalent, shall not create a presumption that Indemnitee did not meet any particular standard of conduct or have any particular belief or
that a court has determined that indemnification is not permitted by applicable law. In addition, neither the failure of the Reviewing Party to have made a determination as to whether Indemnitee has met any particular standard of conduct or had any
particular belief, nor an actual determination by the Reviewing Party that Indemnitee has not met such standard of conduct or did not have such belief, prior to the commencement of legal proceedings by Indemnitee to secure a judicial determination
that Indemnitee should be indemnified under applicable law shall be a defense to Indemnitee’s claim or create a presumption that Indemnitee has not met any particular standard of conduct or did not have any particular belief. 



  

	9.
	Nonexclusivity, Etc.    The rights of the Indemnitee hereunder shall be in addition to any other rights Indemnitee may have under the
Company’s By-laws or the DGCL or otherwise. To the extent that a change in the DGCL (whether by statute or judicial decision) permits greater indemnification by agreement than would be afforded currently under the Company’s By-laws and
this Agreement, it is the intent of the parties hereto that Indemnitee shall enjoy by this Agreement the greater benefits so afforded by such change. 
 

  

	10.
	Liability Insurance.    To the extent the Company maintains an insurance policy or policies providing directors’ and
officers’ liability insurance, Indemnitee shall be covered by such policy or policies, in accordance with its or their terms, to the maximum extent of the coverage available for any Company director or officer. 
 


 

	11.
	Period of Limitations.    No legal action shall be brought and no cause of action shall be asserted by or in the right of the Company
against Indemnitee, Indemnitee’s spouse, heirs, executors or personal or legal representatives after the expiration of two years from the date of accrual of such cause of action, and any claim or cause of action of the Company shall be
extinguished and deemed released unless asserted by the timely filing of a legal action within such two-year period; provided, however, that if any shorter period of limitations is otherwise applicable to any such cause of action such shorter period
shall govern. 
 

  

	12.
	Amendments, Etc.    No supplement, modification or amendment of this Agreement shall be binding unless executed in writing by both of
the parties hereto. No waiver of any of the provisions of this Agreement shall be deemed or shall constitute a waiver of any other provisions hereof (whether or not similar) nor shall such waiver constitute a continuing waiver. 




 
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	13.
	Subrogation.    In the event of payment under this Agreement, the Company shall be subrogated to the extent of such payment to all of
the rights of recovery of Indemnitee, who shall execute all papers required and shall do everything that may be necessary to secure such rights, including the execution of such documents necessary to enable the Company effectively to bring suit to
enforce such rights. 
 

  

	14.
	No Duplication of Payments.    The Company shall not be liable under this Agreement to make any payment in connection with any Claim
made against Indemnitee to the extent Indemnitee has otherwise actually received payment (under any insurance policy, By-law or otherwise) of the amounts otherwise indemnifiable hereunder. 
 

  

	15.
	Binding Effect, Etc.    This Agreement shall be binding upon and inure to the benefit of and be enforceable by the parties hereto and
their respective successors, assigns, including any direct or indirect successor by purchase, merger, consolidation or otherwise to all or substantially all of the business and/or assets of the Company, spouses, heirs, executors and personal and
legal representatives. This Agreement shall continue in effect regardless of whether Indemnitee continues to serve as an officer or director of the Company or of any other enterprise at the Company’s request. 
 


 

	16.
	Severability.    The provisions of this Agreement shall be severable in the event that any of the provisions hereof (including any
provision within a single section, paragraph or sentence) are held by a court of competent jurisdiction to be invalid, void or otherwise unenforceable in any respect, and the validity and enforceability of any such provision in every other respect
and of the remaining provisions hereof shall not be in any way impaired and shall remain enforceable to the fullest extent permitted by law. 
 

  

	17.
	Governing Law.    This Agreement shall be governed by and construed and enforced in accordance with the laws of the State of Delaware
applicable to contracts made and to be performed in such state without giving effect to the principles of conflicts of laws. 
 


 
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 IN WITNESS WHEREOF, the parties hereto have executed this Agreement this
___ day of ___, 200_. 
  
 
	 
	 NPTEST, INC.
 
	 
	 By:
  
 	 	 

	  	 	 Name:
 Title:
 
	 
	 

	 [Indemnitee]
 

 

 
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