EXHIBIT 10.9.1


 


 


SECOND AMENDED AND RESTATED
SEVERANCE AGREEMENT


 


This Second Amended and Restated Severance Agreement (the “Agreement”) is entered into
this          day of December, 2008
(the “Effective Date”), between
Verigy Ltd., a Singapore corporation (the “Company”), and [NAME] (“Executive”),
who currently serves as [title] of the Company.


 


RECITALS


 


WHEREAS, the Company and Executive entered into a severance agreement, dated on
or about December 20, 2006 (the “Original
Severance Agreement”), which was replaced in its entirety by an
Amended and Restated Severance Agreement dated on or about March 7, 2008
(the “First Restated  Severance
Agreement”).


 


WHEREAS, in light of the regulations and guidance provided under, and to bring
the severance terms into documentary compliance with Section 409A of the
Internal Revenue Code (the “Code”)
and the final regulations and other official guidance thereunder, the parties
hereby amend and replace in its entirety the First Restated Severance Agreement
with this Second Restated Agreement, and hereby agree to the terms set forth
below.


 


NOW THEREFORE, in consideration
of the following:


 


A.            As
is the case with most, if not all, publicly traded businesses, it is expected
that the Company from time to time may consider or may be presented with the
need to consider the possibility of an acquisition by another company or other
change in control of the ownership of the Company.  The Board of Directors of the Company (the “Board”) recognizes that such
considerations can be a distraction to Executive and can cause Executive to
consider alternative employment opportunities or to be influenced by the impact
of a possible change in control of the ownership of the Company on Executive’s
personal circumstances in evaluating such possibilities.  The Board has determined that it is in the
best interests of the Company and its shareholders to ensure 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.


 


B.            The
Board believes that it is in the best interests of the Company and its
shareholders to provide Executive with an incentive to continue his/her
employment and to motivate Executive to maximize the value of the Company for
the benefit of its shareholders.


 


C.            The
Board believes that it is important to provide Executive with certain benefits
upon Executive’s termination of employment in certain instances that provide
Executive with enhanced financial security and incentive and encouragement to
Executive to remain with the Company.


 


D.            At
the same time, the Board expects the Company to receive certain benefits in
exchange for providing Executive with this measure of financial security and
incentive under the Agreement.  Therefore,
the Board believes that Executive should provide various specific commitments,
which are intended to assure the Company that Executive will not direct


 

















 


Executive’s skills,
experience and knowledge to the detriment of the Company for a period not to
exceed the period during which payments are being made to Executive under this
Agreement.


 


E.             Certain
capitalized terms used in this Agreement are defined in Article VIII.


 


The Company and Executive hereby agree as follows:


 


ARTICLE I



EMPLOYMENT BY THE COMPANY


 


1.1          This Agreement shall be in effect
commencing on the Effective Date and ending on the later of (i) the date
when Executive ceases to be employed by the Company for any reason or (ii) the
date when all obligations of the parties under this Agreement have been met.


 


1.2          The Company and Executive each
agree and acknowledge that Executive is employed by the Company as an “at-will”
employee and that either Executive or the Company has the right at any time to
terminate Executive’s employment with the Company, with or without cause or
advance notice, for any reason or for no reason.  This
Agreement does not constitute a contract of employment or impose on Executive
any obligation to remain as an employee or impose on the Company any obligation
(i) to retain Executive as an employee, (ii) to change the status of
Executive as an at-will employee or (iii) to change the Company’s policies
regarding termination of employment.  In
this Agreement, the Company and Executive wish to set forth the compensation
and benefits that Executive shall be entitled to receive in the event that
Executive’s employment with the Company terminates under the circumstances
described in Article II or III.


 


1.3          The duties and obligations of the
Company to Executive under this Agreement shall be in consideration for
Executive’s past services to the Company, Executive’s continued employment with
the Company, Executive’s compliance with the obligations described in Section 5.4,
and Executive’s execution of the general waiver and release described in Section 5.5.  The Company and Executive agree that
Executive’s compliance with the obligations described in Section 5.4 and
Executive’s execution of the general waiver and release described in Section 5.5
are preconditions to Executive’s entitlement to the receipt of benefits under
this Agreement and that these benefits shall not be earned unless all such
conditions have been satisfied through the scheduled date of payment.  The Company hereby declares that it has
relied upon Executive’s commitments under this Agreement to comply with the
requirements of Article V and would not have been induced to enter into
this Agreement or to execute this Agreement in the absence of such commitments.


 


ARTICLE II



TERMINATION BEFORE CHANGE IN CONTROL


 


2.1                               Termination without Cause. 
In the event (i) Executive’s employment with the Company and its
subsidiaries is involuntarily terminated at any time by the Company without
Cause or (ii) Executive voluntarily terminates his/her employment within
three months of the occurrence of an event constituting Good Reason and on
account of an event constituting Good


 


2

















 


Reason and, in
each case, Article III does not apply, then such termination of employment
will be a Termination Event and the Company shall pay Executive the
compensation and benefits described in this Article II, subject to
Executive complying with his/her obligations described in Sections 5.4 and 5.5
of this Agreement.


 


2.2                               Disability. 
In the event Executive’s employment with the Company and its
subsidiaries terminates as a result of his/her Disability, then Executive shall
be entitled to the pro rated final period bonus described in Section 2.5,
the stock award acceleration described in Section 2.6 and the
Company-reimbursed health insurance coverage described in Section 2.7 (but
none of the other compensation and benefits described in this Article II).


 


2.3                               Death. 
In the event Executive’s employment with the Company and its
subsidiaries terminates as a result of his/her death, then Executive’s
survivors shall be entitled to the pro rated final period bonus described in Section 2.5
and the stock award acceleration described in Section 2.6 (but none of the
other compensation and benefits described in this Article II).


 


2.4                               Lump Sum Payment
upon Termination before Change in Control.  If a Termination Event
described in Section 2.1 occurs, Executive shall receive a single lump sum
amount equal to the sum of Executive’s Base Salary and Target Bonus, less any
applicable withholding of federal, state, local or foreign taxes within five
business days after the later of: (i) the date of the Termination Event or
(ii) the effective date of the general waiver and release of claims
entered unto between Executive and the Company, subject to the terms provided
in Section 5.5 below; provided, however, that the timing of such payments
shall be subject to any delay period required under Section 5.6 of this
Agreement.


 


2.5                               Bonus for Final
Period.  If a Termination Event described in Section 2.1 occurs,
Executive shall receive a pro rated bonus for the performance period in which
the Termination Event occurs (in addition to the amount described in Section 2.4).  The amount of the bonus shall be equal to the
Target Bonus for the period in which the Termination Event occurred multiplied
by a fraction in which (i) the numerator is the number of days from and
including the first day of the performance period until and including the date
of the Termination Event and (ii) the denominator is the number of days in
the performance period.  Subject to any
delay period required under Section 5.6 of this Agreement.  Such bonus shall be paid at the time
prescribed in Section 2.4. 
Executive’s rights to the payment provided in this Section 2.5
shall not be subject to Section 5.4.


 


2.6                               Stock Award
Acceleration upon Termination before Change in Control.


 


(a)           The vested portion of Executive’s stock options and stock
appreciation rights (the “Stock Options”)
that are outstanding as of the date of an event described in Section 2.1,
2.2 or 2.3 shall be determined as follows upon the occurrence of such
event:


 


(i)            A period equal to 12 months shall
be added to the actual length of Executive’s service; and


 


(ii)           If the vested portion of the Stock Options otherwise would be
determined in increments larger than one month, then the vesting of the Stock
Options shall be


 


3

















 


prorated on the basis of the full months
of service completed by Executive since the vesting commencement date of the
Stock Options.(1)


 


(b)           The Stock Options shall remain exercisable until the earlier of (i) the
fifteen month anniversary of the date of the Termination Event or (ii) the
expiration of each option in accordance with its original terms provided, in
either case, that Executive complies with his/her obligations under Article V
of this Agreement. The term “Stock Options”
shall not include any rights of Executive under the Company’s 2006 Employee
Shares Purchase Plan or similar plans.


 


(c)           The vested portion of Executive’s restricted stock awards (“Restricted Stock”) that are outstanding as of the date of an
event described in Section 2.1, 2.2 or 2.3 shall be determined as
follows upon the occurrence of such event:


 


(i)            A period equal to 12 months shall
be added to the actual length of Executive’s service; and


 


(ii)           If the vested portion of the Restricted Stock otherwise would be
determined in increments larger than one month, then the vesting of the
Restricted Stock shall be prorated on the basis of the full months of service
completed by Executive since the vesting commencement date of the Restricted
Stock.


 


All shares of
Restricted Stock that have not yet been delivered to Executive or his/her
designee (whether because subject to joint escrow instructions or otherwise)
shall be promptly delivered to Executive or his/her designee upon the
occurrence of an event described in Section 2.1, 2.2 or 2.3.


 


(d)           The vested portion of Executive’s stock unit awards (the “Stock Units”) that are outstanding as of the date of an
event described in Section 2.1, 2.2 or 2.3 shall be determined as
follows upon the occurrence of such event:


 


(i)            A period equal to 12 months shall
be added to the actual length of Executive’s service; and


 


(ii)           If the vested portion of the Stock Units otherwise would be
determined in increments larger than one month, then the vesting of the Stock
Units shall be prorated on the basis of the full months of service completed by
Executive since the vesting commencement date of the Stock Units.


 


All Stock Units
that have not yet been settled shall be promptly settled, in the form specified
in the relevant Stock Unit agreements and relevant stock plans under which the
Stock Units were granted, upon the occurrence of an event described in Section 2.1,
2.2 or 2.3, but in no event later


 






(1) For
example, assume that Executive’s Stock Options ordinarily vest in four equal
annual installments and that Executive is subject to an event described in Section 2.1,
2.2 or 2.3 after completing 18 months of service from the vesting
commencement date.  Executive would be
vested in 18/48ths of the Stock Options for the actual period of service plus
12/48ths of the Stock Options for the added vesting provided herein, for a
total of 30/48ths vested.


 


4

















 


than sixty (60) days after
which such vesting occurs. 
Notwithstanding the foregoing, such settlement shall be subject to any delay
period required under Section 5.6 of this Agreement.


 


2.7                               Health & Welfare
Benefits Coverage.


 


(a)           Following
the occurrence of a Termination Event described in Section 2.1, to the
extent permitted by the Consolidated Omnibus Budget Reconciliation Act of 1985,
as amended and codified in Section 4980B of the Code and the regulations
thereunder (“COBRA”) and by the Company’s group
health insurance policies, Executive and/or Executive’s covered dependents will
be eligible to continue their health insurance benefits at their own
expense.  However, if Executive and/or
Executive’s covered dependents timely elect COBRA continuation for Executive
and/or Executive’s covered dependents, the Company shall reimburse Executive
and/or Executive’s covered dependents’ COBRA continuation premiums for group
health coverage for 12 months, provided that the Company’s obligation to make
such reimbursements shall cease immediately to the extent that Executive and/or
Executive’s covered dependents are no longer entitled by law to receive COBRA
continuation coverage.  Executive agrees
to notify a duly authorized officer of the Company in writing immediately upon
Executive’s and/or a covered dependent’s beginning to receive health benefits
from another source, or as otherwise required by COBRA.  This Section 2.7(a) provides
only for the Company’s reimbursement of COBRA continuation premiums for the
periods specified above, and does not affect the rights of Executive and/or
Executive’s covered dependents under any applicable law with respect to health
insurance continuation coverage. Such reimbursements shall be made as soon as
administratively feasible following the Company’s receipt of appropriate
documentation.


 


ARTICLE III



TERMINATION AFTER CHANGE IN CONTROL


 


3.1          Involuntary Termination upon or
Following Change of Control.  In the event Executive’s employment
with the Company and its subsidiaries is involuntarily terminated at any time
by the Company without Cause either (i) at the time of or within 24 months
following the occurrence of a Change of Control, (ii) within three months
prior to a Change of Control, whether or not such termination is at the request
of an Acquiror, or (iii) at any time more than three months prior to a
Change of Control that constitutes a “change in control” within the meaning of Section 409A
if such termination is at the request of an Acquiror, then such termination of
employment will be a Termination Event and the Company shall pay Executive the
compensation and benefits described in this Article III in the manner and
at the time described in Section 3.3, subject to Executive complying with
his/her obligations described in Sections 5.4 and 5.5 of this Agreement.  If the Company reasonably believes that a
Change of Control will not occur within three months following the termination
of Executive, but in fact a Change of Control does occur within three months
following such termination, Executive will be provided with the compensation
and benefits described in this Article III in the manner and at the time
described in Section 3.3.  An “Acquiror” is either a person or a member of a group of
related persons representing such group that in either case obtains effective
control of the Company in the transaction or a group of related transactions
constituting the Change of Control.


 


5

















 


For the
elimination of doubt, in the event Executive’s employment with the Company and
its subsidiaries is involuntarily terminated by the Company without Cause and
the circumstances described in this Section 3.1 are not applicable, then Article II
will apply to such event.


 


3.2                               Voluntary Termination For Good
Reason Upon or Following Change of Control.


 


(a)           In the event Executive voluntarily terminates his/her employment
within three months of the occurrence of an event constituting Good Reason and
on account of an event constituting Good Reason, which event occurs either (i) at
the time of or within 24 months following the occurrence of a Change of
Control, (ii) within three months prior to a Change of Control, whether or
not such termination is at the request of an Acquiror, or (iii) at any
time more than three months prior to a Change of Control that constitutes a “change
in control” within the meaning of Section 409A if such triggering event or
Executive’s termination is at the request of an Acquiror, then such termination
of employment will be a Termination Event and the Company shall pay Executive
the compensation and benefits described in this Article III in the manner
and at the time described in Section 3.3, subject to Executive complying
with his/her obligations described in Sections 5.4 and 5.5 of this
Agreement.  If the Company reasonably
believes that a Change of Control will not occur within three months following
the voluntary termination for Good Reason by Executive, but a Change of Control
does in fact occur within three months following such termination, Executive
will be provided with the compensation and benefits described in this Article III
in the manner and at the time described in Section 3.3.


 


(b)           In the event Executive voluntarily terminates his/her employment
for any reason other than on account of an event constituting Good Reason under
the circumstances described in Section 3.2(a), then such termination of
employment will not be a
Termination Event, Executive will not
be entitled to receive any payments or benefits under the provisions of this
Agreement, and the Company will cease paying compensation or providing benefits
to Executive as of Executive’s termination date.


 


3.3                               Lump Sum Payment
upon Termination after Change in Control.


 


(a)           If a Termination Event described in this Article III occurs,
Executive shall receive an amount equal to two times the sum of Executive’s
Base Salary and Target Bonus, less any applicable withholding of federal,
state, local or foreign taxes; provided, however, that the Company may deduct
from amounts payable to Executive pursuant to this Article III any amounts
paid to Executive pursuant to Article II.


 


(b)           The salary and bonus amounts payable pursuant to this Article III
shall be paid in a single lump sum.  Such
payments, (i) up to the amounts that would have payable under Article II
had the Termination Event occurred under Article II, will be paid at the
time(s) and in the form provided under Section 2.4, and (ii) any
remaining salary and bonus amounts shall be paid in a lump sum (x) on the
3-month anniversary of the Termination Event, or (y) if the triggering
event is Section 3.1(iii) or Section 3.2(a)(iii), on the Change
of Control, in each case subject to the terms provided in Section 5.5
below, and provided further that the timing of such payments shall be subject
to any delay period required under Section 5.6 of this Agreement.


 


6

















 


3.4                               Bonus for Final
Period.  If a Termination Event described in this Article III occurs,
Executive shall receive a pro rated bonus for the performance period in which
the Termination Event occurs (in addition to the amount described in Section 3.3).  The amount of the bonus shall be equal to
Target Bonus for the period in which the Termination Event occurred multiplied
by a fraction in which (i) the numerator is the number of days from and
including the first day of the performance period until and including the date
of the Termination Event and (ii) the denominator is the number of days in
the performance period.  Such bonus shall
be paid at the time prescribed in Section 2.4.


 


3.5                               Stock Award
Acceleration upon Termination after Change in Control.


 


(a)           Executive’s Stock Options that are outstanding as of the date of a
Termination Event described in this Article III shall become fully vested
upon the occurrence of such Termination Event and exercisable so long as
Executive complies with the restrictions and limitations set forth in Article V.  The Stock Options shall remain exercisable
until the earlier of (i) the second anniversary of the date of the
Termination Event or (ii) the expiration of each option in accordance with
its original terms provided, in either case, that Executive complies with
his/her obligations under Article V of this Agreement. The term “Stock Options” shall not include any rights of Executive
under the Company’s 2006 Employee Shares Purchase Plan or similar plans.


 


(b)           Executive’s Restricted Stock awards that are outstanding as of the
date of a Termination Event described in this Article III shall become
fully vested and free from any contractual rights of the Company to repurchase
or otherwise reacquire the Restricted Stock as a result of Executive’s
termination of employment.  All shares of
Restricted Stock that have not yet been delivered to Executive or his/her
designee (whether because subject to joint escrow instructions or otherwise)
shall be promptly delivered to Executive or his/her designee upon the
occurrence of a Termination Event described in this Article III.


 


(c)           Executive’s Stock Units that are outstanding as of the date of a
Termination Event described in this Article III shall become fully vested
as a result of Executive’s termination of employment.  All Stock Units that have not yet been settled
shall be promptly settled, in the form specified in the relevant Stock Unit
agreements and relevant stock plans under which the Stock Units were granted,
upon the occurrence of a Termination Event described in this Article III, but in no
event later than sixty (60) days
after which such vesting occurs.  Notwithstanding
the foregoing, such settlement
shall be subject to any delay period required under Section 5.6 of this
Agreement.


 


3.6                               Health &
Welfare Benefits Coverage.


 


(a)           Following
the occurrence of a Termination Event described in this Article III, to
the extent permitted by COBRA and by the Company’s group health insurance
policies, Executive and/or Executive’s covered dependents will be eligible to
continue their health insurance benefits at their own expense.  However, if Executive and/or Executive’s
covered dependents timely elects COBRA continuation for Executive and/or
Executive’s covered dependents, the Company shall reimburse Executive’s and/or
Executive’s covered dependents’ COBRA continuation premiums for group health
coverage for 24 months, provided


 


7

















 


that the Company’s
obligation to make such reimbursements shall cease immediately to the extent
that Executive and/or Executive’s covered dependents are no longer entitled to
receive COBRA continuation coverage. 
Executive agrees to notify a duly authorized officer of the Company, in
writing, immediately upon Executive’s and/or a covered dependent’s beginning to
receive health benefits from another source, or as otherwise required by
COBRA.  This Section 3.6(a) provides
only for the Company’s reimbursement of COBRA continuation premiums for the
periods specified above.  This Section 3.6(a) does
not affect the rights of Executive or Executive’s covered dependents under any
applicable law with respect to health insurance continuation coverage.  Such reimbursement shall be made as soon as
administratively feasible following the Company’s receipt of appropriate
documentation.


 


ARTICLE IV



TERMINATION FOR CAUSE


 


4.1                               General Effect of
Termination for Cause.  In the event Executive’s employment with the
Company and its subsidiaries is involuntarily terminated by the Company with
Cause at any time, whether before or after a Change of Control, then such
termination of employment will not
be a Termination Event, Executive will not be
entitled to receive any payments or benefits under the provisions of this
Agreement, and the Company will cease paying compensation or providing benefits
to Executive as of Executive’s termination date.


 


4.2                               Procedure for “Cause”
Finding.


 


(a)           Prior
to a Change in Control, Executive may only be terminated for Cause if a
majority of the Board then in office determines that grounds for Cause
exist.  In the event of such determination,
the Company will give Executive notice of the finding of Cause with reasonable
specificity, and will provide Executive with a reasonable opportunity to meet
with the Board to refute the finding.


 


(1)           If Executive elects to appear before the Board to
dispute the finding, the Board will meet with the Executive.  Following such meeting, the Board shall
reconsider its initial finding and the decision of a majority of the Board then
in office will be required to confirm the determination that grounds for Cause
exist.


 


(2)           If Executive declines to appear before the Board to
dispute the finding, then the initial action by the Board shall constitute the
determination to terminate Executive for Cause.


 


(b)           Subsequent to a Change in Control, the procedural
requirements of Section 4.2(a) shall apply, except that the findings
of the Board must be approved by not less than 2/3rds of the directors then in
office.


 


8














 


ARTICLE V



LIMITATIONS AND CONDITIONS ON BENEFITS


 


5.1                               Right to Benefits.  If a Termination Event does not occur,
Executive shall not be entitled to receive any benefits described in this
Agreement, except as otherwise specifically set forth herein.  If a Termination Event occurs, Executive
shall be entitled to receive the benefits described in this Agreement only if
Executive complies with the restrictions and limitations set forth in this Article V.


 


5.2                               No Mitigation.  Except as otherwise specifically provided
herein, Executive shall not be required to mitigate damages or the amount of
any payment provided under this Agreement by seeking other employment or
otherwise, nor shall the amount of any payment provided for under this
Agreement be reduced by any compensation earned by Executive as a result of
employment by another employer or by retirement benefits after the date of the
Termination Event, or otherwise.


 


5.3                               Withholding Taxes.  The Company shall withhold appropriate
federal, state, local or foreign income, employment and other applicable taxes
from any payments hereunder.


 


5.4                               Obligations
of Executive.


 


(a)           For two years
following a Termination Event, Executive agrees not to personally solicit any
of the employees either of the Company or of any entity in which the Company
directly or indirectly possesses the ability to determine the voting of 50% or
more of the voting securities of such entity (including two-party joint
ventures in which each party possesses 50% of the total voting power of the entity)
to become employed elsewhere or provide the names of such employees to any
other company that Executive has reason to believe will solicit such employees.


 


(b)           Following the
occurrence of a Termination Event, Executive agrees to continue to satisfy his/her
obligations under the terms of the Company’s standard form of Agreement
Regarding Confidential Information and Proprietary Development previously
executed by Executive (or any comparable agreement subsequently executed by
Executive in substitution or supplement thereto).


 


(c)           Executive
acknowledges and agrees that the Company’s remedies at law for a breach or
threatened breach of any of the provisions of Section 5.4(a) or (b) would
be inadequate and, in recognition of this fact, Executive agrees that, in the
event of such a breach or threatened breach, in addition to any remedies at
law, the Company, without posting any bond, shall be entitled to cease making
any payments or providing any benefit otherwise required by this Agreement and,
with respect to a breach or threatened breach of Section 5.4(a) or (b) only,
obtain equitable relief in the form of specific performance, temporary
restraining order, temporary or permanent injunction, or any other equitable
remedy that may then be available.


 


9

















 


5.5                               Employee Release Prior to Receipt of Benefits.  Upon the occurrence of a Termination Event,
and prior to the receipt of any benefits under this Agreement on account of the
occurrence of the Termination Event, Executive shall execute and not revoke an
employee release substantially in the form attached hereto as Exhibit A and such employee release must be
irrevocably effective within sixty (60) days following the
occurrence of the Termination Event (the “Release Deadline”).  Such employee release shall specifically
relate to all of Executive’s rights and claims in existence at the time of such
execution relating to Executive’s employment with the Company, but shall not
include (i) Executive’s rights under this Agreement, (ii) Executive’s
rights under any employee benefit plan sponsored by the Company, (iii) Executive’s
rights to indemnification or advancement of expenses under applicable law, the
Company’s bylaws or other governing instruments or any agreement addressing
such subject matter between Executive and the Company or (iv) any claims
that cannot be released as a matter of law. 
It is understood that Executive has 21 days (or such longer period as
may be required by applicable law) to consider whether to execute such employee
release and Executive may revoke such employee release within seven days after
execution of such employee release.  In
the event Executive does not execute such employee release within the 21-day
period (or such longer period as may be required by applicable law), or if
Executive revokes such employee release within the seven-day period, or the
employee release is not irrevocably effective by the Release Deadline, no
benefits shall be payable under this Agreement and this Agreement shall be null
and void.  Nothing in this Agreement
shall limit the scope or time of applicability of such employee release once it
is executed and not timely revoked.  
Notwithstanding anything to the contrary in this Agreement, in the event the Termination Event
occurs at a time
during the calendar year where the Release Deadline is in the calendar year
following the calendar year in which the Executive’s termination occurs, any
severance pay and/or severance benefits that would constitute deferred
compensation subject to Section 409A of the Code (as described in Section 5.6)
will be paid on the first payroll date following the Release Deadline, or such
later time as required by the payment schedule applicable to each payment or
benefit, or Section 5.6.


 


5.6                               Compliance with Section 409A. 
In the event that (i) one or more payments of compensation or
benefits (and any other severance payments or benefits which may be considered
deferred compensation under Section 409A) received or to be received by
Executive pursuant to this Agreement (“Agreement Payment”)
would constitute deferred compensation subject to Section 409A of the Code
and the regulations or other authority promulgated thereunder, as amended from
time to time (“Section 409A”), and (ii) Executive
is deemed at the time of such termination of employment to be a “specified
employee” under Section 409A(a)(2)(B)(i), then such Agreement Payment
shall not be made or commence until the earlier of (i) the expiration of
the six-month period measured from the date of Executive’s “separation from
service” (as such term is at the time defined in Treasury Regulations under Section 409A)
with the Company (the “delay period”) or (ii) such earlier time permitted
under Section 409A of the Code; provided, however, that such deferral
shall only be effected to the extent required to avoid adverse tax treatment to
Executive under Section 409A, including (without limitation) the
additional 20% tax for which Executive would otherwise be liable under Section 409A(a)(1)(B) 
or any state law equivalent of Section 409A in the absence of such
deferral.  During any period in which an
Agreement Payment to Executive is deferred pursuant to the foregoing, Executive
shall be entitled to interest on the deferred Agreement Payment at a per annum
rate equal to the highest rate of interest applicable to six-month non-callable
certificates of deposit with daily compounding offered by Citibank N.A., Wells
Fargo Bank, 


 


10

















 


N.A. or Bank of America on the date of such separation
from service.  Upon the expiration of the
applicable delay period, any Agreement Payment that would have otherwise been
made during that period (whether in a single sum or in installments) in the
absence of this Section 5.6 shall be paid to Executive or Executive’s
beneficiary in one lump sum, including all accrued interest, and all remaining
Agreement Payments, if any, will be payable in accordance with the payment
schedule applicable to each payment or benefit.


 


Each payment and benefit payable under the Agreement
is intended to constitute a separate payment for purposes of Section 1.409A-2(b)(2) of
the Treasury Regulations. 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.


 


5.7                               Golden Parachute Payments.


 


(a)           In the event that any
payment received or to be received by Executive pursuant to this Agreement or
otherwise (“Payment”) would be subject to the
excise tax imposed by Section 4999 of the Code, or any comparable federal,
state, local or foreign excise tax (such excise tax, together with any interest
and penalties, is hereinafter collectively referred to as the “Excise Tax”), then Executive shall be entitled to receive an
additional payment from the Company (“Gross-Up Payment”)
in such an amount that after the payment of all taxes (including, without
limitation, any interest and penalties on such taxes and the Excise Tax) on the
Payment and on the Gross-Up Payment, Executive shall retain an amount equal to (a) the
Payment minus (b) all applicable taxes on the Payment other than the
Excise Tax.  The intent of the parties is that the Company
shall be solely responsible for, and shall pay, any Excise Tax on the Payment
and Gross-Up Payment and any income, employment and other taxes
(including, without limitation, penalties and interest) imposed on the Gross-Up
Payment (as well as any loss of tax deduction caused by the Payment or the
Gross-Up Payment).  Notwithstanding the
foregoing, in the event that Excise Taxes could be avoided by a reduction in
payments to Executive pursuant to this Agreement, the Company may reduce such
payments to bring the total payments to that amount that falls immediately
below the threshold triggering the Excise Tax, up to a total reduction not to
exceed $25,000.  Any reduction in payments and/or benefits
required by this Section 5.7 shall occur in the following order: (1) reduction
of cash payments; (2) cancellation of accelerated vesting of equity awards
other than stock options; (3) cancellation of accelerated vesting of stock
options; and (4) reduction of other benefits paid to the Executive.  In the event that acceleration of vesting of
equity award compensation is to be reduced, such acceleration of vesting shall
be cancelled in the reverse order of the date of grant for the Executive’s
equity awards.  If two or more equity
awards are granted on the same date, each award will be reduced on a pro-rata
basis.  Executive in no event will have
any discretion regarding the ordering of any reduction in payments or benefits.  Any Gross-Up Payment under this Agreement
shall be made with thirty (30) days following the date in which the related
taxes are remitted to the taxing authorities by Executive.


 


11

















 


(b)           Unless
the Company and Executive otherwise agree in writing, all determinations
required to be made under this Section 5.7 and the assumptions to be
utilized in arriving at such determinations shall be made in writing in good
faith by an independent tax professional designated by the Company and
reasonably acceptable to Executive (the “Independent Tax
Professional”).  For
purposes of making the calculations required by this Section 5.7, the
Independent Tax Professional 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 shall furnish to the Independent Tax
Professional such information and documents as the Independent Tax Professional
may reasonably request in order to make a determination under this Section 5.7.  The Company shall bear all costs that the
Independent Tax Professional may reasonably incur in connection with any
calculations contemplated by this Section 5.7.


 


ARTICLE VI



OTHER RIGHTS AND BENEFITS NOT AFFECTED


 


Nothing in the
Agreement shall prevent or limit Executive’s continuing or future participation
in any benefit, bonus, incentive or other plans, programs, policies or
practices provided by the Company and for which Executive may otherwise
qualify, nor shall anything herein limit such greater rights as Executive may
have under any agreements with the Company applicable to his/her Stock Options,
Restricted Stock, Stock Units or other equity awards; provided, however,
that any benefits provided hereunder shall be in lieu of any other severance
benefits to which Executive may otherwise be entitled, including (without
limitation) under any employment contract or severance plan,
program or arrangement.  Except as otherwise expressly provided
herein, amounts that are vested benefits or that Executive is otherwise
entitled to receive under any plan, policy, practice or program of the Company
at or subsequent to the date of a Termination Event shall be payable in
accordance with such plan, policy, practice or program.


 


ARTICLE VII



NON-ALIENATION OF BENEFITS


 


No benefit hereunder shall be subject to
anticipation, alienation, sale, transfer, assignment, pledge, encumbrance or
charge, and any attempt to do so shall be void.


 


ARTICLE VIII


 


DEFINITIONS


 


For purposes of the Agreement, the following terms
shall have the meanings set forth below:


 


8.1                               “Base
Salary” means
Executive’s annual salary (excluding bonus, any other incentive or other
payments and stock option exercises) from the Company at the time of the 


 


12

















 


occurrence of the Change of Control (if applicable) or the Termination
Event, whichever is greater.


 


8.2                               “Cause”
means (i) an
unauthorized use or disclosure by Executive of the Company’s confidential
information or trade secrets, which use or disclosure causes material harm to
the Company, (ii) a material breach by Executive of a material agreement
between Executive and the Company, (iii) a material failure by Executive
to comply with the Company’s written policies or rules resulting in
material harm to the Company, (iv) Executive’s conviction of, or plea of “guilty”
or “no contest” to, a felony under the laws of the United States or any State
thereof or the equivalent under the applicable laws outside of the United
States, (v) Executive’s gross negligence or willful misconduct resulting
in material harm to the Company, (vi) a continuing failure by Executive to
perform assigned duties after receiving written notification of such failure or
(vii) a failure by Executive to cooperate in good faith with a
governmental or internal investigation of the Company or its directors,
officers or employees, if the Company has requested Executive’s cooperation.


 


8.3                               “Change of
Control” means:


 


(a)           The consummation of a merger or
consolidation of the Company with or into another entity or any other corporate
reorganization, if persons who were not shareholders of the Company immediately
prior to such merger, consolidation or other reorganization own immediately
after such merger, consolidation or other reorganization 50% or more of the
voting power of the outstanding securities of each of (i) the continuing
or surviving entity and (ii) any direct or indirect parent corporation of
such continuing or surviving entity;


 


(b)           The sale, transfer or other disposition
of all or substantially all of the Company’s assets;


 


(c)           A change in the composition of the Board,
as a result of which fewer than 50% of the incumbent directors are directors
who either:


 


(i)            Had
been directors of the Company on the date 24 months prior to the date of such
change in the composition of the Board (the “Original
Directors”); or


 


(ii)           Were
appointed to the Board, or nominated for election to the Board, with the
affirmative votes of at least a majority of the aggregate of (A) the
Original Directors who were in office at the time of their appointment or
nomination and (B) the directors whose appointment or nomination was
previously approved in a manner consistent with this Paragraph (ii); or


 


(d)           Any transaction as a result of which any
person is the “beneficial owner” (as defined in Rule 13d-3 under the
Securities Exchange Act of 1934, as amended (the “Exchange
Act”)), directly or indirectly, of securities of the Company
representing at least 30% of the total voting power represented by the Company’s
then outstanding voting securities.  For
purposes of this Subsection (d), the term “person” shall have the same
meaning as when used in Sections 13(d) and 14(d) of the
Exchange Act but shall exclude (i) a trustee or other fiduciary holding
securities under an employee benefit plan of the Company or of a Parent or
Subsidiary 


 


13

















 


and (ii) a corporation owned directly or indirectly by the
shareholders of the Company in substantially the same proportions as their
ownership of Shares.


 


A transaction shall not constitute a Change in Control if its sole
purpose is to change the jurisdiction of the Company’s incorporation or to
create a holding company that will be owned in substantially the same
proportions by the persons who held the Company’s securities immediately before
such transaction.


 


8.4                               “Company”
means Verigy Ltd., a Singapore corporation, and any successor thereto and its
subsidiaries; provided, however, that with respect to determining whether a
Change in Control has occurred, the term “Company” shall mean Verigy Ltd.
exclusively.


 


8.5                               “Disability” means that Executive is unable to perform the
duties of his/her office with the Company or any subsidiary, and is unable to
perform substantially equivalent duties, by reason of any medically
determinable physical or mental impairment, and such
condition has lasted or can be expected to last for a continuous period of not
less than 12 months.


 


8.6                               “Good
Reason” means: (i) a reduction of Executive’s rate of
compensation as in effect on the Effective Date of this Agreement or, if a
Change of Control has occurred, as in effect immediately prior to the
occurrence of a Change of Control, other than reductions in Base Salary that
apply broadly to employees of the Company or reductions due to varying metrics
and achievement of performance goals for different periods under variable-pay
programs; (ii) either (A) failure to provide a package of benefits
that, taken as a whole, provides substantially similar benefits to those in
which Executive is entitled to participate as of the Effective Date (except
that employee contributions may be raised to the extent of any cost increases
related to such benefits where such increases in employee contributions are
broadly applicable to employees of the Company) or (B) any action by the
Company that would significantly and adversely affect Executive’s participation
or reduce Executive’s benefits under any of the Company’s benefit plans, other
than changes that apply broadly to employees of the Company; (iii) a
change in Executive’s duties, responsibilities, authority, job title or
reporting relationships resulting in a significant diminution of position,
excluding for this purpose an isolated, insubstantial and inadvertent action
not taken in bad faith that is remedied by the Company promptly after notice
thereof is given by Executive; (iv) a request that Executive relocate to a
worksite that is more than 25 miles from his/her prior worksite, unless
Executive accepts such relocation opportunity; (v) a failure or refusal of
a successor to the Company to assume the Company’s obligations under this
Agreement, as provided in Section 9.9 or (vi) a material breach by
the Company or any successor to the Company of any of the material provisions
of this Agreement.  [Last
Sentence  Version A:  For purposes of clause (iii) of the
immediately preceding sentence, Executive’s duties, responsibilities, authority,
job title or reporting relationships shall not be considered to be
significantly diminished (and therefore shall not constitute “Good Reason”) so
long as Executive continues to perform substantially the same functional role
for the Company as Executive performed immediately prior to the occurrence of
the Change of Control, even if the Company becomes a subsidiary or division of
another entity.] [Last Sentence  Version B:  For purposes of clause (iii) of the
immediately preceding sentence, Executive’s duties, responsibilities,
authority, job title or reporting relationships shall be considered to be
significantly diminished (and therefore shall constitute “Good Reason”) if
Executive no longer to performs substantially the same functional role for the
Company as Executive performed 


 


14

















 


immediately prior to the occurrence of the Change of Control of an entity
whose equity securities are publicly traded; provided, however, that prior to
terminating his/her employment for Good Reason under clause (iii) of the
immediately preceding sentence solely as a result of the entity for which
Executive is providing services not being an entity whose securities are
publicly traded, Executive shall notify the successor entity of his/her
intention to so terminate his/her employment and shall provide the successor
entity with a reasonable period of time, not to exceed 90 days, to negotiate
terms of employment which meet Executive’s requirements.  If, at the end of the notice and negotiation
period, the parties are unable to arrive at mutually satisfactory terms and
conditions of employment, then Executive may exercise his/her right to
termination for good reason as a result of no longer serving in a comparable
role with a company whose securities are publicly traded.]


 


8.7                               “Target Bonus” means an amount equal to an average of the annualized bonus compensation
paid to Employee with respect to the two fiscal years of the Company most
recently preceding the date of the Termination Event; provided, however, that
if the Executive’s target bonus in the year in which the Termination Event
occurs, expressed as a percent of Executive’s Base Salary, is higher than the
percentage target bonus levels in the years used for purposes of the average,
then an equitable adjustment will be made to the prior year amounts so as to
treat Executive as if s/he were at the higher target bonus percentage for the
years used to determine the average.


 


8.8                               “Termination
Event” means an involuntary termination of employment described
in Section 2.1 or 3.1(a) or a voluntary termination of
employment described in Section 3.2(a). 
No other event shall be a Termination Event for purposes of this
Agreement.


 


ARTICLE IX



GENERAL PROVISIONS


 


9.1          Interpretation.  The parties acknowledge that
Executive may serve as an officer and/director of the Company as well as an
officer and/or director of one or more of the Company’s subsidiaries.  It is the parties’ intention that, when
determining whether a Termination Event or Change of Control has occurred, the
parties will look at the facts and circumstances affecting the highest level
entity in the Company’s corporate family in which Executive plays a role.  For example, an executive officer of the
Company who also served on the Board or as an officer of one or more of the
Company’s subsidiaries will not be deemed to have experienced a change in
Executive’s duties, responsibilities, authority, job title or reporting
relationships resulting in a significant diminution of position solely as a
result of the change at the subsidiary level, i.e., changes implemented solely
at the subsidiary level but not at the higher level would not constitute Good
Cause unless the overall effect of the subsidiary-level changes resulted in a
significant diminution of overall position with the Company and its
subsidiaries taken as a whole.


 


9.2          Subsidiaries Bound.  To the extent that Executive is
employed by a subsidiary of Verigy Ltd. and not by Verigy Ltd. itself, (i) Executive’s
Base Salary and Target Bonus shall be the amounts as so defined as payable by
Executive’s direct employer; and (ii) to the extent that Verigy Ltd.
itself is not the direct employer or otherwise paying the benefits due to
Executive 


 


15

















 


under this Agreement, Verigy Ltd. shall cause the subsidiary directly
employing Executive to make provide the benefits due to Executive under this
Agreement.


 


9.3          Notices.  Any notices provided hereunder
must be in writing, and such notices or any other written communication shall
be deemed effective upon the earlier of personal delivery (including personal
delivery by facsimile) or the third day after mailing by first-class mail, to
the Company at its primary U.S. office location and to Executive at Executive’s
address as listed in the Company’s payroll records.  Any payments made by the Company to Executive
under the terms of this Agreement shall be delivered to Executive either in
person or at such address as listed in the Company’s payroll records.


 


9.4          Severability.  It is the intent of the parties to
this Agreement that, whenever possible, each provision of this Agreement shall
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 shall not affect
any other provision or any other jurisdiction, but this Agreement shall be
reformed, construed and enforced in such jurisdiction as if such invalid,
illegal or unenforceable provisions had never been contained herein.


 


9.5          Waiver.  If either party should waive any
breach of any provisions of this Agreement, that party shall not thereby be
deemed to have waived any preceding or succeeding breach of the same or any
other provision of this Agreement.


 


9.6          Complete
Agreement.  This Agreement, including Exhibit A,
constitutes the entire agreement between Executive and the Company and is the
complete, final and exclusive embodiment of their agreement with regard to this
subject matter; provided that (subject to any delay period required under Section 5.6)
nothing herein shall limit such greater rights as Executive may have under any
agreements with the Company applicable to his/her Stock Options, Restricted
Stock, Stock Units or other equity awards. 
This Agreement shall be deemed to be an amendment of any agreements
between Executive and the Company applicable to his/her Stock Options,
Restricted Stock, Stock Units or other equity awards to the extent that this
Agreement provides greater rights.  This
Agreement is entered into without reliance on any promise or representation
other than those expressly contained herein. 
Without limiting the foregoing, this Agreement supersedes and replaces all prior
agreements and understandings, whether written or oral, on the matters set
forth herein that may exist between Executive and the Company or its
predecessor, Agilent Technologies, Inc. or any of their respective
subsidiaries, including the Original Severance
Agreement and the First Restated Severance Agreement. With respect to Stock Options, Restricted Stock, Stock Units or other equity awards granted on or
after the date hereof, the acceleration of vesting provided herein will apply
to such awards except to the extent otherwise explicitly provided (which must
include reference to this Agreement) in the applicable equity award agreement.


 


9.7          Counterparts.  This Agreement may be executed in
separate counterparts, any one of which need not contain signatures of more
than one party, but all of which taken together will constitute one and the
same Agreement.


 


16














 


9.8          Headings.  The headings of the
Articles and Sections hereof are inserted for convenience only and shall
neither be deemed to constitute a part hereof nor to affect the meaning
thereof.


 


9.9          Successors
and Assigns.  This Agreement is intended to bind and inure
to the benefit of and be enforceable by Executive and the Company, and their
respective successors, assigns, heirs, executors and administrators, except
that Executive may not delegate any of Executive’s duties hereunder and may not
assign any of Executive’s rights hereunder without the written consent of the
Company, which consent shall not be withheld unreasonably.  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
shall assume the Company’s 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” shall include
any successor to the Company’s business and/or assets, whether or not such
successor executes and delivers an assumption agreement referred to in the
preceding sentence or becomes bound by the terms of this Agreement by operation
of law or otherwise.


 


9.10        Amendment
or Termination of this Agreement.  This Agreement may be changed or
terminated only upon the mutual written consent of the Company and Executive.


 


9.11        Attorney
Fees.  If
either party hereto brings any action to enforce such party’s rights hereunder,
the prevailing party in any such action shall be entitled to recover such party’s
reasonable attorneys’ fees and costs incurred in connection with such action.


 


9.12        Arbitration.  In order to ensure
rapid and economical resolution of any dispute that may arise under this
Agreement, Executive and the Company agree that any and all disputes or
controversies arising from or regarding the interpretation, performance,
enforcement or termination of this Agreement which cannot be resolved by good
faith negotiation between the parties shall first be submitted for non-binding
mediation.  If complete agreement cannot
be reached within 60 days after the date of submission to mediation, any
remaining issues will be submitted to the Judicial Arbitration &
Mediation Services, Inc. (“JAMS”) to be resolved by final and binding
arbitration under the its
Employment Arbitration Rules & Procedures (the “JAMS Rules”) and
California Law. Accordingly, the parties hereby agree to waive their
right to have any dispute between them under this Agreement resolved in a court
of law by a judge or jury.


 


9.13        Choice
of Law.  All
questions concerning the construction, validity and interpretation of this Agreement
will be governed by the laws of the State of California.


 


9.14        Construction of Agreement.  In the event of a conflict between
the text of the Agreement and any summary, description or other information
regarding the Agreement, the text of the Agreement shall control.


 


17

















 


IN WITNESS WHEREOF,
the parties have executed this Agreement on the day and year written above.


 


 


	
  Verigy Ltd.,

  	
   

  	
  EXECUTIVE

  
	
  a Singapore
  corporation

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  (Signature of
  Authorized Signatory)

  	
   

  	
  [NAME]

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  (Print
  Name & Title of Signatory)

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Exhibit A: General
  Release and Agreement

  	
   

  	
   

  



 

















 


Exhibit A


 


GENERAL RELEASE AND AGREEMENT


 


This General Release and
Agreement (the “Agreement”)
is entered into this          day of
                        ,
200   (the “Effective Date”),
between Verigy Ltd., a Singapore corporation (the “Company”), and [NAME] (“Executive”).  The Agreement is part of an agreement between
Executive and Verigy Ltd. (“Verigy”) to
terminate Executive’s employment with Verigy on the terms set forth in the
Second Amended & Restated Severance Agreement dated December     ,
2008, between Verigy and Executive (the “Severance Agreement”).


 


Verigy and Executive hereby agree as follows:


 


1.                                       Executive
agrees to attend a Functional Exit Interview on
                         ,
20    , at which time all company property and identification
will be turned in and the appropriate personnel documents will be
executed.  Thereafter, Executive agrees
to do such other acts as may be reasonably requested by Verigy in order to
effectuate the terms of this Agreement. 
Executive agrees to remove all personal effects from his/her current
office within seven days of signing this Agreement and in any event not later
than
                       ,
20    .


 


2.                                       Executive
agrees not to make any public statement or statements to the press concerning
Verigy, its business objectives, its management practices, or other sensitive
information without first receiving Verigy’s written approval.  Executive further agrees to take no action
that would cause Verigy or its employees or agents any embarrassment or
humiliation or otherwise cause or contribute to Verigy’s or any such person’s
being held in disrepute by the general public or Verigy’s employees, clients,
or customers.  Verigy agrees to take no
action that would cause Executive any embarrassment or humiliation or otherwise
cause or contribute to Executive’s being held in disrepute by the general
public or by Verigy’s employees, clients or customers.


 


3.                                       Executive,
on behalf of Executive and his/her heirs, estate, executors, administrators,
successors and assigns, does fully release, discharge, and agree to hold
harmless Verigy, its officers, agents, employees, attorneys, subsidiaries,
affiliated companies, predecessors, successors and assigns (collectively, the “Releasees”) from all actions, causes
of action, claims, judgments, obligations, damages, liabilities, costs, or
expense of whatsoever kind and character that he may have, including but not limited to:


 


a.                                       any
claims relating to employment discrimination on account of race, sex, age,
national origin, creed, disability, or other basis, whether or not arising
under the Federal Civil Rights Acts, the Age Discrimination in Employment Act (“ADEA”), California Fair Employment
and Housing Act, the Rehabilitation Act of 1973, the Americans With
Disabilities Act, any amendments to the foregoing laws, or any other federal,
state, county, municipal, foreign or other law, statute, regulation or order
relating to employment discrimination;


 

















 


b.                                      any
claims relating to pay or leave of absence arising under the Fair Labor
Standards Act, the Family Medical Leave Act, and any similar laws enacted in
California or any other jurisdiction, except as prohibited by law;


 


c.                                       any
claims for reemployment, salary, wages, bonuses, vacation pay, stock options,
acquired rights, appreciation from stock options, stock appreciation rights,
benefits or other compensation of any kind;


 


d.                                      any
claims relating to, arising out of, or connected with Executive’s employment
with Verigy, its predecessor Agilent Technologies, Inc. (“Agilent”), or their respective
subsidiaries, whether or not the same be based upon any alleged violation of
public policy; compliance (or lack thereof) with any internal policy,
procedure, practice or guideline; or any oral, written, express, and/or implied
employment contract or agreement, or the breach of any terms thereof, including
but not limited to, any implied covenant of good faith and fair dealing; or any
federal, state, county, municipal or foreign law, statute, regulation or order,
whether or not relating to labor or employment; and


 


e.                                       any
claims relating to, arising out of, or connected with any other matter or event
occurring prior to the execution of this Agreement, whether or not brought
before any judicial, administrative, or other tribunal.


 


The foregoing
notwithstanding, Executive does not release any actions, causes of action,
claims, judgments, obligations, damages, liabilities, costs or expense of
whatsoever kind and character that he may have with respect to (i) Executive’s
rights under this Agreement or the Severance Agreement, (ii) Executive’s
rights under any employee benefit plan sponsored by Agilent or Verigy or (iii) Executive’s
rights to indemnification or advancement of expenses under applicable law, the
bylaws of Agilent or Verigy, or other governing instruments or any agreement
addressing such subject matter between Executive and Agilent or Verigy.  Moreover, this release does not release claims that
cannot be released as a matter of law, including, but not limited to:  (1) Executive’s right to file a
charge with or participate in a charge by the Equal Employment Opportunity
Commission, or any other local, state, or federal administrative body or government agency that
is authorized to enforce or administer laws related to employment, against the
Company (with the understanding that any such filing or participation does not
give Executive the right to recover any monetary damages against the Company;
Executive’s release of claims herein bars Executive from recovering such
monetary relief from the Company); (2) claims under Division 3, Article 2 of the
California Labor Code (which includes California Labor Code section 2802
regarding indemnity for necessary expenditures or losses by employee); and (3) claims
prohibited from release as set forth in California Labor Code section 206.5
(specifically “any claim or right on account of wages due, or to become due, or
made as an advance on wages to be earned, unless payment of such wages has been
made”).


 


4.                                       Executive
represents and warrants that Executive has not assigned any such claim or
authorized any other person or entity to assert such claim on Executive’s
behalf.  Further, Executive agrees that
under this Agreement Executive waives any claim for damages 


 


2

















 


incurred at any
time in the future because of alleged continuing effects of past wrongful
conduct involving any such claims and any right to sue for injunctive relief
against the alleged continuing effects of past wrongful conduct involving such
claims.


 


5.                                       Executive agrees not to act in any manner
that might damage the business of the Company. 
Executive further agrees that he/she will not knowingly encourage,
counsel, or assist any attorneys or their clients in the presentation or
prosecution of any disputes, differences, grievances, claims, charges, or
complaints by any third party against any of the Releasees, unless under a subpoena
or other court order to do so or as related directly to the ADEA waiver in this
Agreement.  Executive agrees both to
immediately notify the Company upon receipt of any such subpoena or court
order, and to furnish, within three (3) business days of its receipt, a
copy of such subpoena or other court order. 
If approached by anyone for counsel or assistance in the presentation or
prosecution of any disputes, differences, grievances, claims, charges, or
complaints against any of the Releasees, Executive shall state no more than
that he/she cannot provide counsel or assistance.


 


6.                                       In
entering into this Agreement, the parties have intended that this Agreement be
a full and final settlement of all matters, whether or not presently disputed,
that could have arisen between them.


 


7.                                       Executive
understands and expressly agrees that this Agreement extends to all claims of
every nature and kind whatsoever, known or unknown, suspected or unsuspected,
past or present, and all rights under Section 1542 of the California Civil
Code and/or any similar statute or law or any other jurisdiction are hereby
expressly waived. 
Such Section reads as follows:


 


“Section 1542. 
A general release does not extend to claims which the creditor does not
know or suspect to exist in his or her favor at the time of executing the
release, which if known by him or her must have materially affected his or her
settlement with the debtor.”


 


8.                                       It is
expressly agreed that the claims released pursuant to this Agreement include
all claims against individual employees of Verigy, whether or not such
employees were acting within the course and scope of their employment.


 


9.                                       Executive
understands and agrees that, as a condition of this Agreement, Executive shall
not be entitled to any employment (including employment as an independent
contractor or otherwise) with Verigy, its subsidiaries or related companies, or
any successor, and Executive hereby waives any right, or alleged right, of
employment or re-employment with Verigy. 
Executive further agrees not to apply for employment with Verigy in the
future and not to institute or join any action, lawsuit or proceeding against
Verigy, its subsidiaries, related companies or successors for any failure to
employ Executive.  In the event Executive
should secure such employment, it is agreed that such employment is voidable
without cause in the sole discretion of Verigy. 
After terminating Executive’s employment, should Executive become
employed by another company that Verigy merges with or acquires after the date
of this Agreement, Executive may continue such 


 


3

















 


employment only if
Verigy makes offers of employment to all employees of the acquired or merged
company.


 


10.                                 Executive
agrees that the terms, amount and fact of settlement shall be confidential
until Verigy needs to make any required disclosure of any agreements between
Verigy and Executive.  Therefore, except
as may be necessary to enforce the rights contained herein in an appropriate
legal proceeding or as may be necessary to receive professional services from
an attorney, accountant, or other professional adviser in order for such
adviser to render professional services, Executive agrees not to disclose any
information concerning these arrangements to anyone, including, but not limited
to, past, present and future employees of Verigy, until such time of the public
filings.


 


11.                                 The
terms of this Agreement are intended by the parties as a final expression of
their agreement with respect to such terms as are included in this Agreement
and may not be contradicted by evidence of any prior or contemporaneous
agreement.  The parties further intend
that this Agreement constitutes the complete and exclusive statement of its terms
and that no extrinsic evidence whatsoever may be introduced in any judicial or
other proceeding, if any, involving this Agreement.  No modification of this Agreement shall be
effective unless in writing and signed by both parties hereto.


 


12.                                 It is
further expressly agreed and understood that Executive has not relied upon any
advice from Verigy and/or its attorneys whatsoever as to the taxability,
whether pursuant to federal, state, local or foreign income tax statutes or
regulations or otherwise, of the payments made hereunder and that Executive
will be solely liable for all tax obligations, if any, arising from payment of
the sums specified herein and shall hold Verigy harmless from any tax
obligations arising from said payment.


 


13.                                 In order to ensure rapid and economical resolution of any
dispute that may arise under this Agreement, Executive and the Company agree
that any and all disputes or controversies arising from or regarding the
interpretation, performance, enforcement or termination of this Agreement which
cannot be resolved by good faith negotiation between the parties shall first be
submitted for non-binding mediation.  If
complete agreement cannot be reached within 60 days after the date of
submission to mediation, any remaining issues will be submitted to the American
Arbitration Association to be resolved by final and binding arbitration under
the its National Rules for
the Resolution of Employment Disputes and California Law.  BY ENTERING INTO THIS AGREEMENT, EXECUTIVE
ACKNOWLEDGES THAT EXECUTIVE IS WAIVING EXECUTIVE’S RIGHT TO JURY TRIAL OF ANY
DISPUTE COVERED BY THIS AGREEMENT.


 


14.                                 The
following notice is provided in accordance with the provisions of Federal Law:


 


You have up to [21 days] [45 days] [NOTE USE “45” IF
TERMINATION IS IN CONNECTION WITH A “REDUCTION IN FORCE” FOR ADEA PURPOSES.]
from the date this General Release and Agreement is given to you in which to
accept its terms, although you may accept it any time within that [21-day
period] [45-day period] [NOTE USE “45-day period” IF TERMINATION IS IN
CONNECTION WITH A 


 


4

















 


“REDUCTION IN FORCE” FOR ADEA PURPOSES.].  You are advised to consult with an attorney
regarding this Agreement.  You have the
right to revoke your acceptance of this Agreement at any time within seven days
from the date you sign it, and this Agreement will not become effective and
enforceable until this seven-day revocation period has expired.  To revoke your acceptance, you must send a
written notice of revocation to Verigy Ltd., Attention: Vice President and
General Counsel, by 5:00 p.m. on or before the seventh day after you sign
this Agreement.


 


EXECUTIVE FURTHER
STATES THAT EXECUTIVE HAS HAD THE OPPORTUNITY TO CONSULT WITH THE ATTORNEY OF
EXECUTIVE’S CHOICE, THAT EXECUTIVE HAS CAREFULLY READ THIS AGREEMENT, THAT
EXECUTIVE HAS HAD AMPLE TIME TO REFLECT UPON AND CONSIDER ITS CONSEQUENCES,
THAT EXECUTIVE FULLY UNDERSTANDS ITS FINAL AND BINDING EFFECT, THAT THE ONLY
PROMISES MADE TO EXECUTIVE TO SIGN THIS AGREEMENT ARE THOSE STATED ABOVE OR IN
THE SEVERANCE AGREEMENT, AND THAT EXECUTIVE IS SIGNING THIS AGREEMENT
VOLUNTARILY.


 


[SIGNATURE PAGE
FOLLOWS]


 


5

















 


IN WITNESS WHEREOF, this Agreement has been executed in duplicate
originals on the dates indicated below, and shall become effective as indicated
above.


 


 


	
  Verigy Ltd.,

  	
   

  	
  EXECUTIVE

  
	
  a Singapore
  corporation

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  (Signature of
  Authorized Signatory)

  	
   

  	
  [NAME]

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Date:

  	
   

  
	
  (Print
  Name & Title of Signatory)

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Date:

  	
   

  	
   

  	
   

  
					



 


6