INDEMNIFICATION AGREEMENT
EXHIBIT 10.17
This
Agreement made and entered into this ___ day of , (the
“Agreement”), by and between Eagle Test Systems, Inc., a Delaware corporation (the
“Company,” which term shall include, where appropriate, any Entity (as hereinafter defined)
controlled, directly or indirectly, by the Company) and (the “Indemnitee”):
WHEREAS, it is essential to the Company that it be able to retain and attract as directors and
executive officers the most capable persons available;
WHEREAS, increased corporate litigation has subjected directors and executive officers to
litigation risks and expenses, and the limitations on the availability of directors and officers
liability insurance have made it increasingly difficult for the Company to attract and retain such
persons;
WHEREAS, the Company’s By-laws as amended and in effect from time to time (the
“By-laws”) require it to indemnify its directors and executive officers to the fullest
extent permitted by law and permit it to make other indemnification arrangements and agreements;
WHEREAS, the Company desires to provide Indemnitee with specific contractual assurance of
Indemnitee’s rights to full indemnification against litigation risks and expenses (regardless,
among other things, of any amendment to or revocation of the Company’s Certificate of Incorporation
as amended and in effect from time to time (the “Certificate of Incorporation”) or By-laws
or any change in the ownership of the Company or the composition of its Board of Directors);
WHEREAS, the Company intends that this Agreement provide Indemnitee with greater protection
than that which is provided by the Company’s By-laws; and
WHEREAS, Indemnitee is relying upon the rights afforded under this Agreement in becoming or
continuing as a director or executive officer of the Company.
NOW, THEREFORE, in consideration of the promises and the covenants contained herein, the
Company and Indemnitee do hereby covenant and agree as follows:
1. Definitions.
(a) “Corporate Status” describes the status of a person who is serving or
has served (i) as a director of the Company, (ii) as an executive officer of the
Company, (iii) in any capacity with respect to any employee benefit plan of the
Company, or (iv) as a director, partner, trustee, officer, employee, or agent of any
other Entity at the request of the Company. For purposes of subsection (iv) of this
Section 1(a), if Indemnitee is serving or has served as a director, partner,
trustee,
officer, employee or agent of a Subsidiary, Indemnitee shall be deemed to be serving
at the request of the Company.
(b) “Entity” shall mean any corporation, partnership, limited liability
company, joint venture, trust, foundation, association, organization or other legal
entity.
(c) “Enterprise” shall mean the Company and any other corporation,
partnership, joint venture, trust, employee benefit plan or other enterprise of
which Indemnitee is or was serving at the request of the Company as a director,
officer, employee, agent or fiduciary.
(d) “Expenses” shall mean all fees, costs and expenses incurred by
Indemnitee in connection with any Proceeding (as defined below), including, without
limitation, attorneys’ fees, disbursements and retainers (including, without
limitation, any such fees, disbursements and retainers incurred by Indemnitee
pursuant to Sections 13 and 14(c) of this Agreement), fees and disbursements of
expert witnesses, private investigators and professional advisors (including,
without limitation, accountants and investment bankers), court costs, transcript
costs, fees of experts, travel expenses, duplicating, printing and binding costs,
telephone and fax transmission charges, postage, delivery services, secretarial
services, and other disbursements and expenses.
(e) “Indemnifiable Amounts” shall have the meaning ascribed to that term in
Section 3 below.
(f) “Liabilities” shall mean judgments, damages, liabilities, losses,
penalties, excise taxes, fines and amounts paid in settlement.
(g) “Proceeding” shall mean any threatened, pending or completed claim,
action, suit, arbitration, alternate dispute resolution process, investigation,
administrative hearing, appeal, or any other proceeding, whether civil, criminal,
administrative, arbitrative or investigative, whether formal or informal, including
a proceeding initiated by Indemnitee pursuant to Section 13 of this Agreement to
enforce Indemnitee’s rights hereunder.
(h) “Subsidiary” shall mean any corporation, partnership, limited liability
company, joint venture, trust or other Entity of which the Company owns (either
directly or through or together with another Subsidiary of the Company) either (i) a
general partner, managing member or other similar interest or (ii) (A) 50% or more
of the voting power of the voting capital equity interests of such corporation,
partnership, limited liability company, joint venture or other Entity, or (B) 50% or
more of the outstanding voting capital stock or other voting equity interests of
such corporation, partnership, limited liability company, joint venture or other
Entity.
2. Services of Indemnitee. In consideration of the Company’s covenants and
commitments hereunder, Indemnitee agrees to serve or continue to serve as a director or
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executive officer of the Company. However, this Agreement shall not impose any obligation on
Indemnitee or the Company to continue Indemnitee’s service to the Company beyond any period
otherwise required by law or by other agreements or commitments of the parties, if any. Indemnitee
may at any time and for any reason resign from such position (subject to any other contractual
obligation or any obligation imposed by operation of law), upon which event the Company shall have
no obligation under this Agreement to continue Indemnitee in such position. Notwithstanding the
forgoing, this Agreement shall continue in force after Indemnitee has ceased to serve as a director
or executive officer of the Company.
3. Indemnity in Third-Party Proceedings. The Company shall indemnify Indemnitee in
accordance with the provisions of this Section 3 if Indemnitee is, or is threatened to be made, by
reason of Indemnitee’s Corporate Status, a party to or a participant in any Proceeding, other than
a Proceeding by or in the right of the Company to procure a judgment in its favor. Pursuant to
this Section 3, Indemnitee shall be indemnified against all Expenses and Liabilities actually and
reasonably incurred by Indemnitee or on his behalf in connection with such Proceeding or any claim,
issue or matter therein (indemnifiable Expenses and Liabilities collectively referred herein as
“Indemnifiable Amounts”), if Indemnitee acted in good faith and in a manner he reasonably
believed to be in or not opposed to the best interests of the Company and, in the case of a
criminal Proceeding, had not reasonable cause to believe that his conduct was unlawful. Indemnitee
shall not enter into any settlement in connection with a Proceeding without the consent of the
Company, which shall not be unreasonably held or delayed.
4. Indemnity in Proceedings by or in the Right of the Company. The Company shall
indemnify Indemnitee in accordance with the provisions of this Section 4 if Indemnitee is, or is
threatened to be made, by reason of Indemnitee’s Corporate Status, a party to or a participant in
any Proceeding by or in the right of the Company to procure a judgment in its favor. Pursuant to
this Section 4, Indemnitee shall be indemnified against all Expenses actually and reasonably
incurred by him or on his behalf in connection with such Proceeding or any claim, issue or matter
therein, if Indemnitee acted in good faith and in a manner he reasonably believed to be in or not
opposed to the best interests of the Company. No indemnification for Expenses shall be made under
this Section 4 in respect of any claim, issue or matter as to which Indemnitee shall have been
finally adjudged by a court to be liable to the Company, unless and only to the extent that the
Delaware Court of Chancery (the “Delaware Chancery Court”) or any court in which the
Proceeding was brought shall determine upon application that, despite the adjudication of
liability, but in view of all the circumstances of the case, Indemnitee is fairly and reasonably
entitled to indemnification for such Expenses as the Delaware Chancery Court or such other court
shall deem proper.
5. Indemnification for Expenses of a Party Who is Wholly or Partly Successful. If
Indemnitee is not wholly successful in such Proceeding but is successful, on the merits or
otherwise, as to one or more but less than all claims, issues or matters in such Proceeding, the
Company shall indemnify Indemnitee against: (a) all Expenses reasonably incurred by Indemnitee or
on Indemnitee’s behalf in connection with each successfully resolved claim, issue or matter; and
(b) any claim, issue or matter related to any such successfully resolved claim, issue or matter.
For purposes of this Agreement, the termination of any claim, issue or matter in such a Proceeding
by dismissal, with or without prejudice, by reason of settlement, judgment, order or otherwise,
shall be deemed to be a successful result as to such claim, issue or matter.
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6. Procedure for Payment of Indemnifiable Amounts. Indemnitee shall submit to the
Company a written request specifying the Indemnifiable Amounts for which Indemnitee seeks payment
under Sections 3, 4 or 5 of this Agreement and the basis for the claim. The Company shall pay such
Indemnifiable Amounts to Indemnitee promptly upon receipt of its request. At the request of the
Company, Indemnitee shall furnish such documentation and information as are reasonably available to
Indemnitee and necessary to establish that Indemnitee is entitled to indemnification hereunder.
7. Indemnification For Expenses of a Witness. Notwithstanding any other provision of
this Agreement, to the extent that Indemnitee is, by reason of his Corporate Status, a witness in
any Proceeding to which Indemnitee is not a party, he shall be indemnified against all Expenses
actually and reasonably incurred by him or on his behalf in connection therewith.
8. Effect of Certain Resolutions. Neither the settlement or termination of any
Proceeding nor the failure of the Company to award indemnification or to determine that
indemnification is payable shall create a presumption that Indemnitee is not entitled to
indemnification hereunder. In addition, the termination of any proceeding by judgment, order,
settlement, conviction, or upon a plea of nolo contendere or its equivalent shall
not create a presumption that Indemnitee did not act in good faith and in a manner which Indemnitee
reasonably believed to be in or not opposed to the best interests of the Company or, with respect
to any criminal Proceeding, had reasonable cause to believe that Indemnitee’s action was unlawful.
9. Exclusions. Notwithstanding any provision in this Agreement to the contrary, the
Company shall not be obligated under this Agreement to make any indemnity in connection with any
claim made against Indemnitee:
(a) for which payment has actually been made to or on behalf of Indemnitee under any
insurance policy or other indemnity provision, except with respect to any excess
beyond the amount paid under any insurance policy or other indemnity provisions;
(b) for an accounting of profits made from the purchase and sale (or sale and
purchase) by Indemnitee of securities of the Company within the meaning of Section
16(b) of the Securities Exchange Act of 1934, as amended, or similar provisions of
state statutory law or common law; or
(c) for which payment is prohibited by applicable law.
10. Agreement to Advance Expenses; Undertaking. The Company shall advance all
Expenses incurred by or on behalf of Indemnitee in connection with any Proceeding, including a
Proceeding by or in the right of the Company, in which Indemnitee is involved by reason of such
Indemnitee’s Corporate Status within thirty (30) calendar days after the receipt by the Company of
a written statement from Indemnitee requesting such advance or advances from time to time, whether
prior to or after final disposition of such Proceeding. Advances shall be unsecured and interest
free. Advances shall be made without regard to Indemnitee’s ability to repay the expenses and
without regard to Indemnitee’s ultimate entitlement to indemnification under the
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other provisions of this Agreement. To the extent required by Delaware law, Indemnitee hereby
undertakes to repay any and all of the amount of indemnifiable Expenses paid to Indemnitee if it is
finally determined by a court of competent jurisdiction that Indemnitee is not entitled under this
Agreement to indemnification with respect to such Expenses. This undertaking is an unlimited
general obligation of Indemnitee.
11. Procedure for Advance Payment of Expenses. Indemnitee shall submit to the Company
a written request specifying the Expenses for which Indemnitee seeks an advancement under Section
10 of this Agreement, together with documentation evidencing that Indemnitee has incurred such
Expenses (which shall include invoices received by Indemnitee in connection with such Expenses but,
in the case of invoices in connection with legal services, any reference to legal work performed or
to expenditures made that would cause Indemnitee to waive any privilege accorded by applicable law
shall not be included with the invoice). Advances under Section 10 shall be made no later than
thirty (30) calendar days after the Company’s receipt of such request. If a claim for advancement
of Expenses hereunder by Indemnitee is not paid in full by the Company within thirty (30) calendar
days after receipt by the Company of documentation of Expenses and the required undertaking,
Indemnitee may at any time thereafter bring suit against the Company to recover the unpaid amount
of the claim and if successful in whole or in part, Indemnitee shall also be entitled to be paid
the expenses of prosecuting such claim. The burden of proving that Indemnitee is not entitled to
an advancement of expenses shall be on the Company.
12. Presumptions and Effect of Certain Proceedings.
(a) In making a determination required to be made under Delaware law with respect to
entitlement to indemnification hereunder, the person, persons or entity making such
determination shall presume that Indemnitee is entitled to indemnification under
this Agreement if Indemnitee has submitted a request for indemnification in
accordance with Section 6 of this Agreement, and the Company shall have the burden
of proof to overcome that presumption in connection with the making of any
determination contrary to that presumption. Neither the failure of the Company or
of any person, persons or entity to have made a determination prior to the
commencement of any action pursuant to this Agreement that indemnification is proper
in the circumstances because Indemnitee has met the applicable standard of conduct,
nor an actual determination by the Company or by any person, persons or entity that
Indemnitee has not met such applicable standard of conduct, shall be a defense to
the action or create a presumption that Indemnitee has not met the applicable
standard of conduct.
(b) The termination of any Proceeding or of any claim, issue or matter therein, by
judgment, order, settlement or conviction, or upon a plea of nolo contendere or its
equivalent, shall not (except as otherwise expressly provided in this Agreement) of
itself adversely affect the right of Indemnitee to indemnification or create a
presumption that Indemnitee did not act in good faith and in a manner which he
reasonably believed to be in or not opposed to the best interests of the
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Company or, with respect to any criminal Proceeding, that Indemnitee had reasonable
cause to believe that his conduct was unlawful.
(c) For purposes of any determination of good faith, Indemnitee shall be deemed to
have acted in good faith if Indemnitee’s action is based on the records or books of
account of the Enterprise, including financial statements, or on information
supplied to Indemnitee by the officers of the Enterprise in the course of their
duties, or on the advice of legal counsel for the Enterprise or the Board of
Directors or counsel selected by any committee of the Board of Directors or on
information or records given or reports made to the Enterprise by an independent
certified public accountant or by an appraiser, investment banker or other expert
selected with reasonable care by the Company or the Board of Directors or any
committee of the Board of Directors. The provisions of this Section 12(c) shall not
be deemed to be exclusive or to limit in any way the other circumstances in which
the Indemnitee may be deemed to have met the applicable standard of conduct set
forth in this Agreement.
(d) The knowledge and/or actions, or failure to act, of any director, officer, agent
or employee of the Enterprise shall not be imputed to Indemnitee for purposes of
determining the right to indemnification under this Agreement.
13. Remedies of Indemnitee.
(a) Right to Petition Court. In the event that Indemnitee makes a request
for payment of Indemnifiable Amounts under Sections 3, 4 and 5 above or a request
for an advancement of Expenses under Sections 10 and 11 above and the Company fails
to make such payment or advancement in a timely manner pursuant to the terms of this
Agreement, Indemnitee may petition the Delaware Chancery Court to enforce the
Company’s obligations under this Agreement.
(b) Burden of Proof. In any judicial proceeding brought under Section 13(a)
above, the Company shall have the burden of proving that Indemnitee is not entitled
to payment of Indemnifiable Amounts hereunder.
(c) Expenses. The Company agrees to reimburse Indemnitee in full for any
Expenses incurred by Indemnitee in connection with investigating, preparing for,
litigating, defending or settling any action brought by Indemnitee under Section
13(a) above, or in connection with any claim or counterclaim brought by the Company
in connection therewith, if Indemnitee is successful in whole or in part in
connection with any such action.
(d) Failure to Act Not a Defense. The failure of the Company (including its
Board of Directors or any committee thereof, independent legal counsel, or
stockholders) to make a determination concerning the permissibility of the payment
of Indemnifiable Amounts or the advancement of indemnifiable Expenses under this
Agreement shall not be a defense in any action brought under
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Section 13(a) above, and shall not create a presumption that such payment or
advancement is not permissible.
14. Defense of the Underlying Proceeding.
(a) Notice by Indemnitee. Indemnitee agrees to notify the Company promptly
upon being served with any summons, citation, subpoena, complaint, indictment,
information, or other document relating to any Proceeding which may result in the
payment of Indemnifiable Amounts or the advancement of Expenses hereunder; provided,
however, that the failure to give any such notice shall not disqualify Indemnitee
from the right, or otherwise affect in any manner any right of Indemnitee, to
receive payments of Indemnifiable Amounts or advancements of Expenses unless the
Company’s ability to defend in such Proceeding is materially and adversely
prejudiced thereby.
(b) Defense by Company. Subject to the provisions of the last sentence of
this Section 14(b) and of Section 14(c) below, the Company shall have the right to
defend Indemnitee in any Proceeding which may give rise to the payment of
Indemnifiable Amounts hereunder; provided, however that the Company shall notify
Indemnitee of any such decision to defend within thirty (30) calendar days of
receipt of notice of any such Proceeding under Section 14(a) above. The Company
shall not, without the prior written consent of Indemnitee, consent to the entry of
any judgment against Indemnitee or enter into any settlement or compromise which (i)
includes an admission of fault of Indemnitee or (ii) does not include, as an
unconditional term thereof, the full release of Indemnitee from all liability in
respect of such Proceeding, which release shall be in form and substance reasonably
satisfactory to Indemnitee. This Section 14(b) shall not apply to a Proceeding
brought by Indemnitee under Section 13(a) above or pursuant to Section 22 below.
(c) Indemnitee’s Right to Counsel. Notwithstanding the provisions of
Section 14(b) above, if in a Proceeding to which Indemnitee is a party by reason of
Indemnitee’s Corporate Status, (i) Indemnitee reasonably concludes that he or she
may have separate defenses or counterclaims to assert with respect to any issue
which may not be consistent with the position of other defendants in such
Proceeding, (ii) a conflict of interest or potential conflict of interest exists
between Indemnitee and the Company, or (iii) if the Company fails to assume the
defense of such proceeding in a timely manner, Indemnitee shall be entitled to be
represented by a separate legal counsel of Indemnitee’s choice at the expense of the
Company. In addition, if the Company fails to comply with any of its obligations
under this Agreement or in the event that the Company or any other person takes any
action to declare this Agreement void or unenforceable, or institutes any action,
suit or proceeding to deny or to recover from Indemnitee the benefits intended to be
provided to Indemnitee hereunder, Indemnitee shall have the right to retain a
counsel of Indemnitee’s choice, at the expense of the Company, to represent
Indemnitee in connection with any such matter.
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15. Representations and Warranties of the Company. The Company hereby represents and
warrants to Indemnitee as follows:
(a) Authority. The Company has all necessary power and authority to enter
into, and be bound by the terms of, this Agreement, and the execution, delivery and
performance of the undertakings contemplated by this Agreement have been duly
authorized by the Company.
(b) Enforceability. This Agreement, when executed and delivered by the
Company in accordance with the provisions hereof, shall be a legal, valid and
binding obligation of the Company, enforceable against the Company in accordance
with its terms, except as such enforceability may be limited by applicable
bankruptcy, insolvency, moratorium, reorganization or similar laws affecting the
enforcement of creditors’ rights generally.
16. Insurance. The Company shall, from time to time, make the good faith
determination whether or not it is practicable for the Company to obtain and maintain a policy or
policies of insurance with a reputable insurance company providing the Indemnitee with coverage for
losses from wrongful acts. For so long as Indemnitee shall remain a director or executive officer
of the Company and with respect to any such prior service, in all policies of director and officer
liability insurance, Indemnitee shall be named as an insured in such a manner as to provide
Indemnitee the same rights and benefits as are accorded to the most favorably insured of the
Company’s officers and directors. Notwithstanding the foregoing, the Company shall have no
obligation to obtain or maintain such insurance if the Company determines in good faith that such
insurance is not reasonably available, if the premium costs for such insurance are disproportionate
to the amount of coverage provided, or if the coverage provided by such insurance is limited by
exclusions so as to provide an insufficient benefit. The Company shall promptly notify Indemnitee
of any good faith determination not to provide such coverage.
17. Contract Rights Not Exclusive. The rights to payment of Indemnifiable Amounts and
advancement of indemnifiable Expenses provided by this Agreement shall be in addition to, but not
exclusive of, any other rights which Indemnitee may have at any time under applicable law, the
Company’s Certificate of Incorporation or By-laws, or any other agreement, vote of stockholders or
directors (or a committee of directors), or otherwise, both as to action in Indemnitee’s official
capacity and as to action in any other capacity as a result of Indemnitee’s serving as a director
or executive officer of the Company.
18. Successors. This Agreement shall be (a) binding upon all successors and assigns
of the Company (including any transferee of all or a substantial portion of the business, stock
and/or assets of the Company and any direct or indirect successor by merger or consolidation or
otherwise by operation of law) and (b) binding on and shall inure to the benefit of the heirs,
personal representatives, executors and administrators of Indemnitee. This Agreement shall
continue for the benefit of Indemnitee and such heirs, personal representatives, executors and
administrators after Indemnitee has ceased to have Corporate Status.
19. Subrogation. In the event of any payment of Indemnifiable Amounts under this
Agreement, the Company shall be subrogated to the extent of such payment to all of the rights of
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contribution or recovery of Indemnitee against other persons, and Indemnitee shall take, at
the request of the Company, all reasonable action necessary to secure such rights, including the
execution of such documents as are necessary to enable the Company to bring suit to enforce such
rights.
20. Change in Law. To the extent that a change in Delaware law (whether by statute or
judicial decision) shall permit broader indemnification or advancement of expenses than is
provided under the terms of the By-laws and this Agreement, Indemnitee shall be entitled to such
broader indemnification and advancements, and this Agreement shall be deemed to be amended to such
extent.
21. Severability. Whenever possible, each provision of this Agreement shall be
interpreted in such a manner as to be effective and valid under applicable law, but if any
provision of this Agreement, or any clause thereof, shall be determined by a court of competent
jurisdiction to be illegal, invalid or unenforceable, in whole or in part, such provision or clause
shall be limited or modified in its application to the minimum extent necessary to make such
provision or clause valid, legal and enforceable, and the remaining provisions and clauses of this
Agreement shall remain fully enforceable and binding on the parties.
22. Indemnitee as Plaintiff. Except as provided in Section 13(c) of this Agreement
and in the next sentence, Indemnitee shall not be entitled to payment of Indemnifiable Amounts or
advancement of indemnifiable Expenses with respect to any Proceeding brought by Indemnitee against
the Company, any Entity which it controls, any director or officer thereof, or any third party,
unless the Board of Directors of the Company has consented to the initiation of such Proceeding.
This Section 22 shall not apply to counterclaims or affirmative defenses asserted by Indemnitee in
an action brought against Indemnitee.
23. Modifications and Waiver. Except as provided in Section 20 above with respect to
changes in Delaware law which broaden the right of Indemnitee to be indemnified by the Company, no
supplement, modification or amendment of this Agreement shall be binding unless executed in writing
by each 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 of this Agreement (whether or not
similar), nor shall such waiver constitute a continuing waiver.
24. General Notices. All notices, requests, demands and other communications
hereunder shall be in writing and shall be deemed to have been duly given (a) when delivered by
hand, (b) when transmitted by facsimile and receipt is acknowledged, or (c) if mailed by certified
or registered mail with postage prepaid, on the third business day after the date on which it is so
mailed:
| (i) | If to Indemnitee, to: | |||||
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| (ii) | If to the Company, to: | |||||
| Eagle Test Systems, Inc. | ||||||
| 0000 Xxxxxxxxx Xxxxx | ||||||
| Xxxxxxx Xxxxx, Xxxxxxxx 00000 | ||||||
| Facsimile: (000) 000-0000 |
or to such other address as may have been furnished in the same manner by any party to the others.
25. Governing Law; Consent to Jurisdiction; Service of Process. This Agreement shall
be governed by and construed in accordance with the laws of the State of Delaware without regard to
its rules of conflict of laws. Each of the Company and the Indemnitee hereby irrevocably and
unconditionally consents to submit to the exclusive jurisdiction of the Delaware Chancery Court and
the courts of the United States of America located in the State of Delaware (the “Delaware
Courts”) for any litigation arising out of or relating to this Agreement and the transactions
contemplated hereby (and agrees not to commence any litigation relating thereto except in such
courts), waives any objection to the laying of venue of any such litigation in the Delaware Courts
and agrees not to plead or claim in any Delaware Court that such litigation brought therein has
been brought in an inconvenient forum. Each of the parties hereto agrees, (a) to the extent such
party is not otherwise subject to service of process in the State of Delaware, to appoint and
maintain an agent in the State of Delaware as such party’s agent for acceptance of legal process,
and (b) that service of process may also be made on such party by prepaid certified mail with a
proof of mailing receipt validated by the United States Postal Service constituting evidence of
valid service. Service made pursuant to (a) or (b) above shall have the same legal force and
effect as if served upon such party personally within the State of Delaware. For purposes of
implementing the parties’ agreement to appoint and maintain an agent for service of process in the
State of Delaware, each such party does hereby appoint The Corporation Trust Company, 0000 Xxxxxx
Xxxxxx, Xxxxxxxxxx, Xxx Xxxxxx Xxxxxx, Xxxxxxxx 00000, as such agent and each such party hereby
agrees to complete all actions necessary for such appointment.
[signature page follows]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year
first above written.
| EAGLE TEST SYSTEMS, INC. |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
| INDEMNITEE | ||||
