EXHIBIT 10.39
FORM OF INDEMNIFICATION AGREEMENT
AGREEMENT,
effective as of ___, between Belden CDT Inc., a Delaware
corporation (the “Company”), and ___ (the
“Indemnitee”).
WHEREAS,
it is essential to the Company to retain and attract as directors
and officers the most capable persons available;
WHEREAS,
Indemnitee is a director or officer of the Company;
WHEREAS,
both the Company and Indemnitee recognize the increased risk of
litigation and other claims being asserted against directors and
officers of public companies in today’s environment;
WHEREAS,
the Amended and Restated Bylaws of the Company require the Company
to indemnify and advance expenses to its directors and officers to
the full extent permitted by law and the Indemnitee has been
serving and continues to serve as a director or officer of the
Company in part in reliance on such Bylaws;
WHEREAS,
the Amended and Restated Bylaws of the Company and the Delaware
General Corporation Law each provide that the indemnification
provided herein shall not be exclusive;
WHEREAS,
in recognition of Indemnitee’s need for substantial
protection against personal liability in order to enhance
Indemnitee’s continued service to the Company in an effective
manner, the Company wishes to provide in this Agreement for the
indemnification of and the advancing of expenses to Indemnitee to
the fullest extent (whether partial or complete) permitted by law
and as set forth in this Agreement, and, to the extent insurance is
maintained, for the continued coverage of Indemnitee under the
Company’s directors’ and officers’ liability
insurance policies;
NOW,
THEREFORE, in consideration of the premises and of Indemnitee
continuing to serve the Company directly or, at its request,
another enterprise, and intending to be legally bound hereby, the
parties hereto agree as follows:
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(a) |
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Change in Control : shall be deemed to have occurred if
(i) any “person” (as such term is used in Sections
13(d) and 14(d) of the Securities Exchange Act of 1934, as
amended), other than a trustee or other fiduciary holding
securities under an employee benefit plan of the Company or a
corporation owned directly or indirectly by the stockholders of the
Company in substantially the same proportions as their ownership of
stock of the Company, is or becomes the “beneficial
owner” (as defined in Rule |
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13d-3 under said Act), directly or indirectly, of securities of
the Company representing 20% or more of the total voting power
represented by the Company’s then outstanding Voting
Securities, or (ii) during any period of two consecutive
years, individuals who at the beginning of such period constitute
the Board of Directors of the Company and any new director whose
election by the Board of Directors or nomination for election by
the Company’s stockholders was approved by a vote of at least
two-thirds (2/3) of the directors then still in office who either
were directors at the beginning of the period or whose election or
nomination for election was previously so approved, cease for any
reason to constitute a majority thereof, or (iii) the
stockholders of the Company approve a merger or consolidation of
the Company with any other corporation, other than a merger or
consolidation which would result in the Voting Securities of the
Company outstanding immediately prior thereto continuing to
represent (either by remaining outstanding or by being converted
into Voting Securities of the surviving entity) at least 80% of the
total voting power represented by the Voting Securities of the
Company or such surviving entity outstanding immediately after such
merger or consolidation, or the stockholders of the Company approve
a plan of complete liquidation of the Company or an agreement for
the sale or disposition by the Company of (in one transaction or a
series of transactions) all or substantially all the
Company’s assets. |
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(b) |
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Claim : any threatened, pending or completed action,
suit or proceeding, or any inquiry or investigation, whether
instituted by the Company or any other party, that Indemnitee in
good faith believes might lead to the institution of any such
action, suit or proceeding, whether civil, criminal,
administrative, investigative or other. |
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(c) |
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Expenses : include attorneys’ fees and all other
costs, expenses and obligations paid or incurred in connection with
investigating, defending, being a witness in or participating in
(including on appeal), or preparing to defend, be a witness in or
participate in, any Claim relating to any Indemnifiable Event. |
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(d) |
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Indemnifiable Event : any event or occurrence related to
the fact that Indemnitee is or was a director, officer, employee,
agent or fiduciary of the Company, or Belden Inc., or is or was
serving at the request of the Company or Belden Inc. as a director,
officer, employee, trustee, agent or fiduciary of another
corporation, partnership, joint venture, employee benefit plan,
trust or other enterprise, or by reason of anything done or not
done by Indemnitee in any such capacity. |
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(e) |
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Independent Legal Counsel : an attorney or firm of
attorneys, selected in accordance with the provisions of
Section 3, who shall not have otherwise performed services for
the Company or Indemnitee within the last five years (other than
with respect to matters concerning the rights of |
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Indemnitee under this Agreement, or of other indemnitees under
similar indemnity agreements). |
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(f) |
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Potential Change in Control : shall be deemed to have
occurred if (i) the Company enters into an agreement, the
consummation of which would result in the occurrence of a Change in
Control; (ii) any person (including the Company) publicly
announces an intention to take or to consider taking actions which
if consummated would constitute a Change in Control; (iii) any
person, other than a trustee or other fiduciary holding securities
under an employee benefit plan of the Company or a corporation
owned, directly or indirectly, by the stockholders of the Company
in substantially the same proportions as their ownership of stock
of the Company, who is or becomes the beneficial owner, directly or
indirectly, of securities of the Company representing 9.5% or more
of the combined voting power of the Company’s then
outstanding Voting Securities, increases his beneficial ownership
of such securities by five percentage points (5%) or more over the
percentage so owned by such person; or (iv) the Board adopts a
resolution to the effect that, for purposes of this Agreement, a
Potential Change in Control has occurred. |
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(g) |
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Reviewing Party : any appropriate person or body
consisting of a member or members of the Company’s Board of
Directors or any other person or body appointed by the Board who is
not a party to the particular Claim for which Indemnitee is seeking
indemnification, or Independent Legal Counsel. |
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(h) |
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Voting Securities : any securities of the Company which
vote generally in the election of directors. |
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Basic Indemnification Arrangement . |
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(a) |
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In the event Indemnitee was, is or becomes a party to or
witness or other participant in, or is threatened to be made a
party to or witness or other participant in, a Claim by reason of
(or arising in part out of) an Indemnifiable Event, the Company
shall indemnify Indemnitee to the fullest extent permitted by law
as soon as practicable but in any event no later than thirty days
after written demand is presented to the Company, against any and
all Expenses, judgments, fines, penalties and amounts paid in
settlement (including all interest, assessments and other charges
paid or payable in connection with or in respect of such Expenses,
judgments, fines, penalties or amounts paid in settlement) arising
from or relating to such Claim. If so requested by Indemnitee, the
Company shall advance (within two business days of such request)
any and all Expenses to Indemnitee (an “Expense
Advance”). |
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(b) |
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Notwithstanding the foregoing, (i) the obligations of the
Company under Section 2(a) shall be subject to the condition that
the Reviewing Party |
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shall not have determined (in a written opinion, in any case in
which the Independent Legal Counsel referred to in Section 3
hereof is involved) that Indemnitee would not be permitted to be
indemnified under applicable law, and (ii) the obligation of the
Company to make an Expense Advance pursuant to Section 2(a) shall
be subject to the condition that, if, when and to the extent that
the Reviewing Party determine |
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