Exhibit 10.2
EXHIBIT No. 10.2 FORM OF
INDEMNIFICATION AGREEMENT
INDEMNIFICATION
AGREEMENT
This INDEMNIFICATION AGREEMENT (this
“Agreement” ) is made and entered into this
day of
, 2006 (the “Effective Date” ) by and between
Andrew Corporation, a Delaware corporation (the
“Company” ), and
(the “Indemnitee”).
WHEREAS, the Company believes it is
essential to retain and attract qualified directors and officers
and the Indemnitee is a director and/or officer of the Company, and
both the Company and the Indemnitee recognize the increased risk of
litigation and other claims being asserted against directors and
officers of public companies;
WHEREAS, the Company’s current
Certificate of Incorporation (“ Certificate of
Incorporation ”) and By-laws, as amended (the
“By-laws” ) require the Company to indemnify and
advance expenses to its directors and officers to the fullest
extent permitted by the DGCL (as hereinafter defined);
WHEREAS, in recognition of the
Indemnitee’s need for (i) substantial protection against
personal liability based on the Indemnitee’s reliance on the
Certificate of Incorporation and By-laws, and (ii) specific
contractual assurance that the protection promised by the
Certificate of Incorporation and By-laws will be available to the
Indemnitee, regardless of, among other things, any amendment to the
Certificate of Incorporation and By-laws or any change in the
composition of the Company’s Board of Directors (the
“Board of Directors” or the
“Board” ) or acquisition transaction relating to
the Company, and as an inducement to continue to provide effective
services to the Company as a director and/or officer thereof, the
Company wishes to provide for the indemnification of the Indemnitee
and to advance expenses to the Indemnitee to the fullest extent
permitted by law and as set forth in this Agreement, and, to the
extent insurance is maintained by the Company, to provide for the
continued coverage of the Indemnitee under the Company’s
directors’ and officers’ liability insurance
policies;
WHEREAS, the terms and conditions
set forth herein are consistent with the terms and conditions of
similar agreements adopted by many public company issuers and the
Board has determined that contractual indemnification as set forth
herein is not only reasonable and prudent but also promotes the
best interests of the Company and its stockholders;
WHEREAS, this Agreement is a
supplement to and in furtherance of the indemnification provided in
the Certificate of Incorporation and By-laws and any resolutions
adopted pursuant thereto, and shall not be deemed a substitute
therefor, nor to diminish or abrogate any rights of Indemnitee
thereunder;
WHEREAS, the Company desires and has
requested Indemnitee to serve or continue to serve as a director
and/or officer of the Company free from undue concern for
unwarranted claims for damages arising out of or related to such
services to the Company and Indemnitee is willing to continue to
serve the Company on the condition that he is furnished the
indemnity provided for herein.
NOW, THEREFORE, in consideration of
the premises and the covenants contained herein and of the
Indemnitee continuing to serve the Company directly or, at its
request, with another enterprise, and intending to be legally bound
hereby, the parties hereto agree as follows:
1. Certain
Definitions.
(a) A “Change in
Control” shall be deemed to have occurred if or
upon:
(i) the stockholders of the Company
approve the sale, lease or transfer, in one or a series of related
transactions, of all or substantially all of the Company’s
assets (determined on a consolidated basis) to any person or group
(as such term is used in Section 13(d)(3) of the Securities
Exchange Act of 1934, as amended (“ Exchange Act
”);
(ii) the stockholders of the Company
approve a merger or consolidation of the Company with any other
person, 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 60% of the total voting power represented by the Voting
Securities of the Company or such surviving entity outstanding
immediately after such merger or consolidation;
(iii) the stockholders of the
Company approve the adoption of a plan the consummation of which
would result in the liquidation or dissolution of the
Company;
(iv) the acquisition, directly or
indirectly, by any person or group (as such term is used in
Section 13(d)(3) of the Exchange Act) (other than (a) a
trustee or other fiduciary holding securities under an employee
benefit plan of the Company; or (b) 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) of beneficial ownership (as defined in Rule 13d-3
under the Exchange Act) of more than 20% of the aggregate voting
power of the Voting Securities of the Company; or
(v) during any period of two
consecutive years, individuals who at the beginning of such period
composed the Board of Directors (together with any new directors
whose election by such Board of Directors or whose nomination for
election by the stockholders of the Company was approved by a vote
of 66 2 / 3
% of the directors of
the Company then still in office who were either directors at
the
beginning of such period or whose
election or nomination for election was previously so approved)
cease for any reason to constitute a majority of the Board of
Directors then in office.
(b) “DGCL” shall
mean the General Corporation Law of the State of Delaware, as the
same exists or may hereafter be amended or interpreted;
provided, however , that in the case of any such amendment
or interpretation, only to the extent that such amendment or
interpretation permits the Company to provide broader
indemnification rights than were permitted prior
thereto.
(c) “Expense”
shall mean any expense, liability, or loss, including
attorneys’ fees, judgments, fines, ERISA excise taxes and
penalties, amounts paid or to be paid in settlement, any interest,
assessments, or other charges imposed thereon, any federal, state,
local, or foreign taxes imposed as a result of the actual or deemed
receipt of any payments under this Agreement, and all other costs
and obligations, paid or incurred in connection with investigating,
defending, being a witness in, participating in (including in the
case of an appeal resulting from any Proceeding, the premium,
security for, and other costs relating to any cost bond,
supersedeas bond, or other appeal bond or its equivalent), or
preparing for any of the foregoing in, any Proceeding relating to
any Indemnifiable Event.
(d) “Indemnifiable
Event” shall mean any event or occurrence that takes
place either prior to or after the execution of this Agreement,
related to the fact that the Indemnitee is or was a director or
officer of the Company, or while a director or officer is or was
serving at the request of the Company as a director, officer,
employee, or agent of another corporation or of a partnership,
joint venture, trust or other enterprise, including service with
respect to employee benefit plans, or by reason of anything done or
not done by the Indemnitee in any such capacity, whether or not the
basis of the Proceeding is alleged action in an official
capacity.
(e) “person”
shall mean any individual, corporation, general partnership,
limited partnership, limited liability partnership, joint venture,
association, joint-stock company, trust, limited liability company,
unincorporated organization or government or any agency or
political subdivision thereof.
(f) “Proceeding”
shall mean any threatened, pending or completed action, suit,
investigation or proceeding, and any appeal thereof, whether civil,
criminal, administrative or investigative and/or or any alternative
dispute resolution mechanism (including an action by or in the
right of the Company), and/or any inquiry or investigation, whether
conducted by the Company or any other party, that the Indemnitee in
good faith believes might lead to the institution of any such
action, suit, or proceeding, whether civil, criminal,
administrative, investigative, or other.
(g) “Reviewing
Party” shall mean, prior to any Change in Control, any
appropriate person or body consisting of a member or members of the
Board or any other person or body appointed by the Board who is not
a party to the particular Proceeding with respect to which
Indemnitee is seeking indemnification. After a Change in Control
(other than a Change in Control approved by a majority of the
directors on the Board who
were directors immediately prior to such Change
in Control), the special independent counsel referred to in
Section 6 below shall become the Reviewing Party.
(h) “Voting
Securities” shall mean any securities of the Company
which vote generally in the election of directors.
2.
Indemnification.
(a) General Agreement. 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 Proceeding by reason of (or arising in
part out of) an Indemnifiable Event, the Company shall indemnify
Indemnitee from and against any and all Expenses to the fullest
extent permitted by law, as the same exists or may hereafter be
amended or interpreted (but in the case of any such amendment or
interpretation, only to the extent that such amendment or
interpretation permits the Company to provide broader
indemnification rights than were permitted prior
thereto).
(b) Certain Exceptions.
Notwithstanding anything in this Agreement to the contrary,
Indemnitee shall not be entitled to indemnification pursuant to
this Agreement:
(1) in connection with any
Proceeding initiated by Indemnitee against the Company or any
director or officer of the Company unless (i) the Company has
joined in or the Board has consented to the initiation of such
Proceeding; or (ii) the Proceeding is one to enforce
indemnification rights under Section 5; or
(2) 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 Exchange Act or similar provisions of
applicable state law; or
(3) on account of any suit in which
final judgment, not subject to appeal, is rendered against the
Indemnitee for reimbursement to the Company of any bonus or other
incentive-based or equity-based compensation or of any profits
realized by Indemnitee from the sale of securities of the Company
in each case as and to the extent required pursuant to
Section 304 of the Sarbanes-Oxley Act of 2002; or
(4) on account of conduct by
Indemnitee that is established by a final judgment, not subject to
appeal, as knowingly fraudulent or deliberately dishonest or that
constituted willful misconduct; or
(5) on account of conduct by
Indemnitee that is established by a final judgment, not subject to
appeal, as constituting a breach of Indemnitee’s duty of
loyalty to the Company or resulting in any personal profit or
advantage to which Indemnitee was not legally entitled;
or
(6) for which payment is prohibited
by applicable law.
(c) Mandatory
Indemnification. Notwithstanding any other provision of this
Agreement, to the extent that Indemnitee has been successful on the
merits or otherwise in defense of any Proceeding relating in whole
or in part to an Indemnifiable Event or in
defense of any issue or matter therein,
Indemnitee shall be indemnified against all Expenses incurred in
connection therewith.
(d) Partial Indemnification.
If Indemnitee is entitled under any provision of this Agreement to
indemnification by the Company for some or a portion of Expenses,
but not, however, for the total amount thereof, the Company shall
nevertheless indemnify Indemnitee for the portion thereof to which
Indemnitee is entitled.
3. Advancement of
Expenses. The Company
shall advance any and all Expenses to Indemnitee in connection with
any Proceeding (an “Expense Advance” ), and such
advancement shall be made as soon as practicable and in any event
within 10 business days after the receipt by the Company of a
statement or statements from Indemnitee requesting such advances
from time to time; provided, however , that if required by
applicable law such Expenses shall be advanced only upon delivery
to the Company of an undertaking by or on behalf of the Indemnitee
to repay such amount if it is ultimately determined by a court of
competent jurisdiction in a final judgment, not subject to appeal,
that the Indemnitee i
