UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
FORM 10-Q
QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15 (d)
OF THE SECURITIES EXCHANGE ACT OF 1934
For the quarterly period ended September 30, 2004
Commission File No. 001-12561
BELDEN CDT INC.
Delaware
(State or other jurisdiction of incorporation or organization) |
36-3601505
(I.R.S. Employer Identification No.) |
7701 Forsyth Boulevard, Suite 800
St. Louis, Missouri 63105
(Address of principal executive offices)
(314) 854-8000
Registrants telephone number, including area code
Indicate by check mark whether the registrant (1) has filed all reports required to be filed by Section 13 or 15 (d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days. Yes x No o
Indicate by check mark whether the registrant is an accelerated filer (as defined in Rule 12b-2 of the Exchange Act). Yes x No o
Indicate the number of shares outstanding of each of the issuers classes
of common stock, as of the latest practicable date.
Class
Outstanding at November 10, 2004
Common Stock, $0.01 Par Value
46,885,770
1
PART I FINANCIAL INFORMATION
ITEM 1. FINANCIAL STATEMENTS
BELDEN CDT INC. AND SUBSIDIARIES
The accompanying notes are an integral part of these Consolidated Financial Statements
2
September 30,
December 31,
2004
2003
(in thousands)
(Unaudited)
$
152,448
$
94,955
186,603
83,242
209,883
80,958
1,680
1,770
31,886
9,946
12,543
6,218
31,820
107,302
626,863
384,391
352,658
189,129
306,977
79,480
13,581
5,990
20,281
14,565
$
1,320,360
$
673,555
$
183,438
$
89,179
15,005
65,951
14,606
28,003
213,049
183,133
233,755
136,000
31,139
10,201
66,072
43,112
40,686
20,994
575
5,705
8,687
497
262
483,341
39,022
228,723
237,087
16,952
7,461
(3,116
)
(1,700
)
(7,722
)
726,397
274,410
$
1,320,360
$
673,555
BELDEN CDT INC. AND SUBSIDIARIES
Three Months Ended | Nine Months Ended | |||||||||||||||
September 30,
|
September 30,
|
|||||||||||||||
2004
|
2003
|
2004
|
2003
|
|||||||||||||
(in thousands, except per share data) | ||||||||||||||||
Revenues
|
$ | 281,454 | $ | 155,297 | $ | 635,864 | $ | 462,414 | ||||||||
Cost of sales
|
228,036 | 124,174 | 516,970 | 374,266 | ||||||||||||
|
|
|
|
|
||||||||||||
Gross profit
|
53,418 | 31,123 | 118,894 | 88,148 | ||||||||||||
Selling, general and administrative expenses
|
47,527 | 24,447 | 96,985 | 71,141 | ||||||||||||
Other operating expenses
|
8,871 | | 8,871 | 352 | ||||||||||||
|
|
|
|
|
||||||||||||
Operating earnings/(loss)
|
(2,980 | ) | 6,676 | 13,038 | 16,655 | |||||||||||
Nonoperating income
|
| | (1,732 | ) | | |||||||||||
Minority interest in earnings
|
225 | | 225 | | ||||||||||||
Interest expense
|
3,537 | 3,131 | 9,870 | 9,620 | ||||||||||||
|
|
|
|
|
||||||||||||
Income/(loss) before taxes
|
(6,742 | ) | 3,545 | 4,675 | 7,035 | |||||||||||
Income tax expense/(benefit)
|
(3,669 | ) | (39 | ) | (529 | ) | 1,700 | |||||||||
|
|
|
|
|
||||||||||||
Net income/(loss) from continuing operations
|
(3,073 | ) | 3,584 | 5,204 | 5,335 | |||||||||||
Net loss from discontinued operations, net of
tax benefit of $1,489, $1,547, $5,606 and
$4,249, respectively
|
(2,809 | ) | (2,751 | ) | (10,128 | ) | (7,553 | ) | ||||||||
Net gain/(loss) on disposal of discontinued
operations, net of tax expense/(benefit) of
$(860), $0, $839 and $0, respectively
|
(1,529 | ) | | 1,491 | | |||||||||||
|
|
|
|
|
||||||||||||
Net income/(loss)
|
$ | (7,411 | ) | $ | 833 | $ | (3,433 | ) | $ | (2,218 | ) | |||||
|
|
|
|
|
||||||||||||
Weighted average number of common shares and
equivalents:
|
||||||||||||||||
Basic
|
42,517 | 25,136 | 31,266 | 25,131 | ||||||||||||
Diluted
|
42,517 | 25,439 | 31,643 | 25,348 | ||||||||||||
|
|
|
|
|
||||||||||||
Basic earnings/(loss) per share:
|
||||||||||||||||
Continuing operations
|
$ | (.07 | ) | $ | .14 | $ | .16 | $ | .21 | |||||||
Discontinued operations
|
(.07 | ) | (.11 | ) | (.32 | ) | (.30 | ) | ||||||||
Disposal of discontinued operations
|
(.03 | ) | | .05 | | |||||||||||
Earnings/(loss) per share
|
(.17 | ) | .03 | (.11 | ) | (.09 | ) | |||||||||
|
|
|
|
|
||||||||||||
Diluted earnings/(loss) per share:
|
||||||||||||||||
Continuing operations
|
$ | (.07 | ) | $ | .14 | $ | .16 | $ | .21 | |||||||
Discontinued operations
|
(.07 | ) | (.11 | ) | (.32 | ) | (.30 | ) | ||||||||
Disposal of discontinued operations
|
(.03 | ) | | .05 | | |||||||||||
Earnings/(loss) per share
|
(.17 | ) | .03 | (.11 | ) | (.09 | ) | |||||||||
|
|
|
|
|
||||||||||||
Dividends declared per share
|
$ | .05 | $ | .05 | $ | .15 | $ | .15 | ||||||||
|
|
|
|
|
The accompanying notes are an integral part of these Consolidated Financial Statements
3
BELDEN CDT INC. AND SUBSIDIARIES
Nine Months Ended September 30,
|
2004
|
2003
|
||||||
(in thousands) | ||||||||
Cash flows from operating activities:
|
||||||||
Net income/(loss)
|
$ | (3,433 | ) | $ | (2,218 | ) | ||
Adjustments to reconcile net income/(loss) to net cash provided by
operating activities:
|
||||||||
Depreciation and amortization
|
21,663 | 26,865 | ||||||
Asset impairment charges
|
8,871 | 352 | ||||||
Stock compensation
|
4,264 | 1,253 | ||||||
Gain on disposal of assets
|
(4,363 | ) | | |||||
Other
|
225 | 2,872 | ||||||
Changes in operating assets and liabilities:
(1)
|
||||||||
Receivables
|
(1,430 | ) | 3,564 | |||||
Inventories
|
(5,836 | ) | 36,242 | |||||
Accounts payable and accrued liabilities
|
(2,316 | ) | (23,104 | ) | ||||
Current and deferred income taxes, net
|
(23,110 | ) | (3,485 | ) | ||||
Other assets and liabilities, net
|
3,751 | 16,666 | ||||||
|
|
|
||||||
Net cash provided by/(used for) operating activities
|
(1,714 | ) | 59,007 | |||||
Cash flows from investing activities:
|
||||||||
Capital expenditures
|
(5,289 | ) | (13,994 | ) | ||||
Proceeds from disposal of assets
|
82,638 | 159 | ||||||
|
|
|
||||||
Net cash provided by/(used for) investing activities
|
77,349 | (13,835 | ) | |||||
Cash flows from financing activities:
|
||||||||
Net borrowings/(repayments)
|
(64,211 | ) | | |||||
Proceeds from exercise of stock options
|
| 85 | ||||||
Cash dividends paid
|
(4,931 | ) | (3,801 | ) | ||||
|
|
|
||||||
Net cash used for financing activities
|
(69,142 | ) | (3,716 | ) | ||||
Effect of exchange rate changes on cash and cash equivalents
|
94 | 1,277 | ||||||
|
|
|
||||||
Increase in cash and cash equivalents
|
6,587 | 42,733 | ||||||
Cash received from merger
|
50,906 | | ||||||
Cash and cash equivalents, beginning of period
|
94,955 | 19,409 | ||||||
|
|
|
||||||
Cash and cash equivalents, end of period
|
$ | 152,448 | $ | 62,142 | ||||
|
|
|
||||||
Supplemental cash flow information:
|
||||||||
Income tax refunds received
|
$ | 1,068 | $ | 10,574 | ||||
Income taxes paid
|
(3,030 | ) | (11,926 | ) | ||||
Interest paid, net of amount capitalized
|
(15,147 | ) | (14,645 | ) | ||||
|
|
|
(1) Net of the effects of exchange rate changes and acquired businesses. |
The accompanying notes are an integral part of these Consolidated Financial Statements
4
BELDEN CDT INC. AND SUBSIDIARIES
STATEMENTS OF CHANGES IN STOCKHOLDERS EQUITY
NINE MONTHS ENDED SEPTEMBER 30, 2004 AND 2003
(Unaudited)
Accumulated | ||||||||||||||||||||||||||||
Unearned | Other | |||||||||||||||||||||||||||
Common | Paid-In | Retained | Treasury | Deferred | Comprehensive | |||||||||||||||||||||||
Stock
|
Capital
|
Earnings
|
Stock
|
Compensation
|
Income/(Loss)
|
Total
|
||||||||||||||||||||||
(in thousands) | ||||||||||||||||||||||||||||
Balance at December 31, 2002
|
$ | 262 | $ | 40,917 | $ | 302,900 | $ | (17,011 | ) | $ | (2,014 | ) | $ | (17,859 | ) | $ | 307,195 | |||||||||||
Net loss
|
(2,218 | ) | (2,218 | ) | ||||||||||||||||||||||||
Foreign currency translation adjustments
|
11,564 | 11,564 | ||||||||||||||||||||||||||
Minimum pension liability adjustments
|
(64 | ) | (64 | ) | ||||||||||||||||||||||||
|
|
|||||||||||||||||||||||||||
Comprehensive income
|
9,282 | |||||||||||||||||||||||||||
Issuance of stock:
|
||||||||||||||||||||||||||||
Exercise of stock options
|
(1 | ) | 86 | 85 | ||||||||||||||||||||||||
Stock compensation
|
(560 | ) | 1,896 | (1,234 | ) | 102 | ||||||||||||||||||||||
Employee stock purchase plans
|
(17 | ) | 78 | 61 | ||||||||||||||||||||||||
Retirement savings plan
|
(851 | ) | 3,662 | 2,811 | ||||||||||||||||||||||||
Amortization of unearned deferred
compensation
|
1,151 | 1,151 | ||||||||||||||||||||||||||
Cash dividends ($.05 per share)
|
(3,801 | ) | (3,801 | ) | ||||||||||||||||||||||||
|
|
|
|
|
|
|
|
|||||||||||||||||||||
Balance at September 30, 2003
|
$ | 262 | $ | 39,488 | $ | 296,881 | $ | (11,289 | ) | $ | (2,097 | ) | $ | (6,359 | ) | $ | 316,886 | |||||||||||
|
|
|
|
|
|
|
|
|||||||||||||||||||||
Balance at December 31, 2003
|
$ | 262 | $ | 39,022 | $ | 237,087 | $ | (7,722 | ) | $ | (1,700 | ) | $ | 7,461 | $ | 274,410 | ||||||||||||
Net loss
|
(3,433 | ) | (3,433 | ) | ||||||||||||||||||||||||
Foreign currency translation adjustments
|
9,479 | 9,479 | ||||||||||||||||||||||||||
Minimum pension liability adjustments
|
12 | 12 | ||||||||||||||||||||||||||
|
|
|||||||||||||||||||||||||||
Comprehensive income
|
6,058 | |||||||||||||||||||||||||||
Issuance of stock:
|
||||||||||||||||||||||||||||
Exercise of stock options
|
1 | 1,860 | 121 | 1,982 | ||||||||||||||||||||||||
Stock compensation
|
1,811 | 1,160 | (3,881 | ) | (910 | ) | ||||||||||||||||||||||
Employee stock purchase plans
|
184 | 54 | 238 | |||||||||||||||||||||||||
Retirement savings plans
|
477 | 1,802 | 2,279 | |||||||||||||||||||||||||
Amortization of unearned deferred
compensation
|
2,991 | 2,991 | ||||||||||||||||||||||||||
Cash dividends ($.05 per share)
|
(4,931 | ) | (4,931 | ) | ||||||||||||||||||||||||
Merger between Belden Inc. and
Cable Design Technologies Corporation
|
234 | 439,987 | 4,585 | (526 | ) | 444,280 | ||||||||||||||||||||||
|
|
|
|
|
|
|
|
|||||||||||||||||||||
Balance at September 30, 2004
|
$ | 497 | $ | 483,341 | $ | 228,723 | $ | | $ | (3,116 | ) | $ | 16,952 | $ | 726,397 | |||||||||||||
|
|
|
|
|
|
|
|
The accompanying notes are an integral part of these Consolidated Financial Statements
5
BELDEN CDT INC. AND SUBSIDIARIES
Note 1: Financial Statement Presentation
Basis of Presentation
The accompanying Consolidated Financial Statements include Belden CDT Inc. and all of its subsidiaries (the Company ). The Company, formerly called Cable Design Technologies Corporation ( CDT ), merged with Belden Inc. ( Belden ) and changed its name to Belden CDT Inc. on July 15, 2004. All significant affiliate accounts and transactions are eliminated in consolidation. The financial information presented as of any date other than December 31, 2003 and December 31, 2002 has been prepared from the books and records without audit. The accompanying Consolidated Financial Statements have been prepared in accordance with the instructions to Form 10-Q and do not include all of the information or the Notes to Consolidated Financial Statements required by accounting principles generally accepted in the United States for complete statements. In the opinion of management, all adjustments, consisting only of normal recurring adjustments, necessary for a fair presentation of such financial statements have been included. These Consolidated Financial Statements should be read in conjunction with the Consolidated Financial Statements and Notes thereto contained in the Companys Current Report on Form 8-K filed on May 26, 2004, the Belden Annual Report on Form 10-K for the year ended December 31, 2003 and the CDT Annual Report on Form 10-K for the year ended July 31, 2003.
Foreign Currency Translation
For international operations with functional currencies other than the United States dollar, asset and liability accounts are translated at current exchange rates; income and expenses are translated using average exchange rates. Resulting translation adjustments, as well as gains and losses from certain affiliate transactions, are reported in accumulated other comprehensive income/(loss), a separate component of stockholders equity. Exchange gains and losses on transactions are included in operating earnings/(loss).
Use of Estimates in the Preparation of the Financial Statements
The preparation of financial statements in conformity with accounting principles generally accepted in the United States requires management to make estimates and assumptions that affect the reported amounts of assets and liabilities and disclosure of contingent assets and liabilities at the date of the financial statements and reported amounts of revenues and expenses during the reporting period. Actual results could differ from those estimates.
Reclassifications
Certain reclassifications have been made to the 2003 Consolidated Financial Statements in order to conform to the 2004 presentation.
Note 2: Summary of Significant Accounting Policies
Stock-Based Compensation
The Company has six stock compensation plans-the Belden 2003 Long-Term Incentive Plan, the Belden 1994 Incentive Plan, the CDT 2001 Long-Term Performance Incentive Plan, the CDT 1999 Long-Term Performance Incentive Plan, the CDT Long-Term Performance Incentive Plan and the CDT Supplemental Long-Term Performance Incentive Plan (together, the Incentive Plans ) as well as three employee stock purchase plans-the Belden 2003 Employee Stock Purchase Plan, the Belden 1994 Employee Stock Purchase Plan and the CDT 1998 Employee Stock Purchase Plan (together, the Stock Purchase Plans ).
6
The Belden 1994 Incentive Plan expired by its own terms in October 2003 and no future awards are available under this plan. Although neither plan has been terminated, there are also no future awards available under either the CDT 1999 Long-Term Performance Incentive Plan or the CDT Long-Term Performance Incentive Plan. The Belden 1994 Employee Stock Purchase Plan expired by its own terms in September 2003 and no future purchase rights are available under this plan. Options and stock purchase rights granted under these plans affected pro forma operating results for the quarter ended September 30, 2003.
Under the Incentive Plans, certain employees of the Company are eligible to receive awards in the form of stock options, stock appreciation rights, restricted stock grants and performance shares. The Company accounts for stock options using the intrinsic value method provided in Accounting Principles Board Opinion ( APB ) No. 25, Accounting for Stock Issued to Employees . Accordingly, no compensation cost has been recognized for options granted under the Incentive Plans. The Company accounts for restricted stock grants under APB No. 25 as fixed-plan awards since both the aggregate number of awards issued and the aggregate amount to be paid by the participants for the common stock is known. Compensation related to the grants is measured as the difference between the market price of the Companys common stock at the grant date and the amount to be paid by the participants for the common stock. Compensation costs associated with each restricted stock grant are amortized to expense over the grants vesting period.
Under the Stock Purchase Plans, eligible employees receive the right to purchase a specified amount of the Companys common stock. Under the Belden 2003 Employee Stock Purchase Plan and the CDT 1998 Employee Stock Purchase Plan, participants purchase common stock at the lesser of 85% of the fair market value on the offering date or 85% of the fair market value on the exercise date. Under the Belden 1994 Employee Stock Purchase Plan, participants purchased common stock at the lesser of 85% of the fair market value on the offering date or 100% of the fair market value on the exercise date. The Company accounts for these purchase rights using the intrinsic value method provided by APB No. 25. Accordingly, no compensation cost has been recognized for purchase rights granted under the Stock Purchase Plans.
The Company adopted the disclosure rules under Statement of Financial Accounting Standards ( SFAS ) No. 148 , Accounting for Stock-Based Compensation-Transition and Disclosure , effective December 2002. The effect on operating results of calculating the Companys stock-based employee compensation costs as if the fair value method had been applied to all stock awards is as follows:
7
At July 15, 2004, participants in the Companys Incentive Plans held approximately 0.4 million unvested stock options and 0.4 million shares of unvested restricted stock. Each of the Companys Incentive Plans provides that, in the event of a change of control such as the merger between Belden and CDT, all stock options granted under the Incentive Plans become fully vested and all restrictions on grants of restricted stock issued under the Incentive Plans lapse. Each of the Companys executive officers (other than one officer who retired upon consummation of Merger) waived the lapse of restrictions on his or her restricted stock in connection with the merger between Belden and CDT. The Company recognized $2.8 million of compensation expense during the third quarter of 2004 related to the lapse of restrictions on restricted stock granted under its Incentive Plans. The Company also included $3.2 million of pro forma compensation expense in the calculation of pro forma income/(loss) above that was related to the accelerated vesting of all previously unvested stock options under its Incentive Plans and was determined using the fair value method pursuant to SFAS No. 148.
The fair value of common stock options outstanding under the Incentive Plans and the fair value of stock purchase rights outstanding under the Stock Purchase Plans were estimated at the date of grant using the Black-Scholes option-pricing model.
There were no stock purchase rights granted under the Stock Purchase Plans
during the three- and nine-month periods ended September 30, 2004 and 2003. For
the three- and nine-month periods ended September 30, 2004 and 2003, weighted
average assumptions used to determine the fair values of stock options granted
during each period included the following:
Three Months Ended
Nine Months Ended
September 30,
September 30,
2004
2003
2004
2003
5.85
%
12.29
%
6.31
%
10.71
%
39.46
%
41.71
%
39.53
%
41.80
%
6.00
7.00
6.31
7.00
3.90
%
3.55
%
3.79
%
3.40
%
For the three- and nine-month periods ended September 30, 2004 and 2003, the
weighted average per share fair values of options granted under the Incentive
Plans during each period were as follows:
Three Months Ended
Nine Months Ended
September 30,
September 30,
2004
2003
2004
2003
$
5.42
$
1.07
$
4.74
$
1.57
The Black-Scholes option-pricing model was developed to estimate the fair value of market-traded options. Incentive stock options and stock purchase rights have certain characteristics, including vesting periods and non-transferability, which market-traded options do not possess. Due to the significant effect that changes in assumptions and differences in option and purchase right characteristics might have on the fair values of stock options and stock purchase rights, the models may not accurately reflect the fair values of the stock options and stock purchase rights.
8
At July 15, 2004, participants in the Companys Belden 2003 Employee Stock Purchase Plan held rights to purchase approximately 0.1 million shares of the Companys common stock at $14.92 per share. The Companys Belden 2003 Employee Stock Purchase Plan provides that, in the event of a change of control such as the merger between Belden and CDT, the Companys Board of Directors may cancel any stock purchase right by paying in cash to a participant an amount equal to the excess of the fair market value of the Companys common stock on the date of said cancellation over the offering date price per share times the number of shares covered by the cancelled stock purchase right. The fair market value of the Companys common stock on the consummation date of the merger between Belden and CDT was $20.69 per share. The Company recognized $0.4 million of compensation expense during the third quarter of 2004 related to the cancellation of stock purchase rights granted under its Belden 2003 Employee Stock Purchase Plan.
Shipping and Handling Costs
In accordance with Emerging Issues Task Force Abstract (
EITF
) No. 00-10,
Accounting for Shipping and Handling Fees and Costs
, the Company includes fees
earned on the shipment of product to customers in revenues and includes costs
incurred on the shipment of product to customers as cost of sales. Certain
handling costs, primarily incurred at the Companys distribution centers,
totaling $1.7 million and $1.6 million were included in selling, general and
administrative expenses for the three-month periods ended September 30, 2004
and 2003, respectively. Handling costs totaling $5.2 million and $4.8 million
were included in selling, general and administrative expenses for the
nine-month periods ended September 30, 2004 and 2003, respectively.
Interest Expense
The Company presents interest expense net of capitalized interest costs and
interest income earned on cash equivalents.
Note 3: Business Combination
Belden and CDT entered into an Agreement and Plan of Merger, dated February 4,
2004 (the
Merger Agreement
), pursuant to which Belden merged with and became a
wholly owned subsidiary of CDT (the
Merger)
. On July 15, 2004, after receiving
the appropriate stockholder approvals and pursuant to the Merger Agreement,
Belden and CDT completed the Merger. Pursuant to the Merger Agreement, 25.6
million shares of Belden common stock, par value $.01 per share, were converted
into 25.6 million shares of CDT common stock and CDT changed its name to Belden
CDT Inc.
9
Three Months Ended
Nine Months Ended
September 30,
September 30,
2004
2003
2004
2003
(in thousands)
$
4,143
$
3,286
$
10,904
$
10,063
(8
)
(26
)
(22
)
(140
)
(598
)
(129
)
(1,012
)
(303
)
$
3,537
$
3,131
$
9,870
$
9,620
Belden and CDT each believed the Merger was in the best interests of its respective stockholders because, as a result of the Merger, the long-term value of an investment in the combined company would likely be superior to the long-term value of an investment in either stand-alone company. In deciding to consummate the Merger, Belden and CDT considered various factors, including the following:
| The anticipated cost savings and synergies to be available to Belden CDT resulting from its ability to identify low-cost sources for materials, eliminate duplicative costs of being separate public companies, consolidate manufacturing facilities and access each legacy companys technology; |
| The opportunity to create an electronic cable company with strong earnings before income taxes, depreciation and amortization; |
| The potential to market Belden CDTs products and businesses across a larger customer base; |
| The anticipated increase in market liquidity and capital markets access resulting from a larger equity base; |
| The increased visibility of Belden CDT to analysts and investors; |
| Belden CDTs anticipated better access to lower cost manufacturing facilities; and |
| The attractive degree of financial leverage of Belden CDT. |
The Merger included the following significant related transactions:
| CDT effected a one-for-two reverse split of its common stock immediately prior to Merger consummation on July 15, 2004, |
| Belden cancelled approximately 0.3 million shares of its common stock held in treasury on July 15, 2004. |
| The Company granted retention and integration awards to certain of its executive officers and other key employees totaling $5.3 million. Awards paid in cash and restricted stock will be distributed in three installmentsone-third on the effective date of the Merger and one third each on the first and second anniversaries of the effective date of the Merger. The Company recognized approximately $2.2 million of compensation expense during the third quarter of 2004 related to these awards. The Company will recognize approximately $0.4 million of compensation expense during the fourth quarter of 2004 related to these awards. |
After the Merger consummation on July 15, 2004, the Company had approximately 46.6 million shares of common stock outstanding. On that date, the former CDT stockholders and former Belden stockholders respectively owned approximately 45% and 55% of the Company. The Company anticipates that annual dividends in the aggregate of $0.20 per common share will be paid to all common stockholders. The first quarterly dividend of $0.05 per common share was declared payable on October 4, 2004 to all shareholders of record as of September 17, 2004.
In accordance with the provisions of SFAS No. 141, Business Combinations , the Merger was treated as a reverse acquisition under the purchase method of accounting. Belden was considered the acquiring enterprise for financial reporting purposes because Beldens owners as a group retained or received the larger portion of the voting rights in the Company and Beldens senior management represented a majority of the senior management of the Company.
The preliminary cost to acquire CDT was $450.4 million and consisted of the exchange of common stock discussed above, change of control costs for legacy CDT operations and costs incurred by Belden related directly to the acquisition. The purchase price was established primarily through the negotiation of the share exchange ratio. The share exchange ratio was intended to value both Belden and CDT so that neither company paid a premium over equity market value for the other. The Company established a new accounting basis for the assets and liabilities of CDT based upon the fair values thereof as of the Merger date. The Company recorded preliminary goodwill of $158.0 million during the third quarter of 2004.
10
For financial reporting purposes, the results of operations of CDT are included in the Companys statement of operations from July 16, 2004.
The Company has prepared a preliminary estimate of the fair values assigned to each major asset and liability caption of CDT as of the July 15, 2004 effective date of the Merger. This preliminary estimate reflects a purchase price allocation based on estimates of the fair values of certain assets and liabilities. These values are subject to change until certain third party valuations have been finalized and changes in these values could have a material impact on the purchase price allocation and the resulting amounts of the assets and liabilities disclosed below.
Differences between the amounts reflected above and the amounts disclosed in the Companys Form 8-K/A (Amendment No.2) are due to updated information about certain estimates obtained by management subsequent to the filing of such Form 8-K/A.
Goodwill and other intangible assets reflected above were determined by management to meet the criterion for recognition apart from tangible assets acquired and liabilities assumed and include the following:
11
Goodwill of $51.4 million has preliminarily been assigned to the Electronics segment. The residual goodwill of $95.2 million has preliminarily not been assigned to any specific segment since management believes it benefits the entire company and is therefore included in Finance and Administration ( F&A ) in the segment information.
Trademarks have been determined by management to have indefinite lives and will not be amortized, based on managements expectation that the trademarked products will generate cash flows for the Company for an indefinite period. Management expects to maintain use of trademarks on existing products and introduce new products in the future that will also display the trademarks, thus extending their lives indefinitely.
The amortizable intangible assets reflected in the table above were determined by management to have finite lives. The useful life for the developed technologies intangible asset was based on the remaining lives of the related patents. The useful life for the customer base intangible asset was based on managements forecasts of customer turnover. The useful life for the favorable contracts intangible asset was based on the remaining terms of the contracts. The useful life of the backlog intangible assets was based on managements estimate of the remaining useful life based on when the ordered items would ship.
These amortizable intangible assets will be amortized over their remaining useful lives on a straight-line basis. Annual amortization expense for these intangible assets is expected to be $1.5 million in 2004, $2.8 million in 2005, 2006 and 2007, $2.6 million thereafter. None of the goodwill is deductible for tax purposes.
Belden CDTs consolidated results of operations for the three and nine-month
periods ended September 30, 2004 include the results of operations of the CDT
entities for the eleven-week period ended September 30, 2004. The following
table presents pro forma consolidated results of operations for Belden CDT for
the three-month period ended September 30, 2004 and 2003, and the nine-month
periods ended September 30, 2004 and 2003, as though the merger of CDT had been
completed as of the beginning of each period. This pro forma information is
intended to provide information regarding how Belden CDT might have looked if
the merger had occurred as of the dates indicated. The amounts for the CDT
entities included in this pro forma information for the three and nine months
ended September 30, 2003 and the six and one-half month and two weeks ended
July 15, 2004 are based on the historical results of the CDT entities and,
therefore, may not be indicative of the actual results of the CDT entities when
operated as part of Belden CDT. Moreover, the pro forma information does not
reflect all of the changes that may result from the merger, including, but not
limited to, challenges of transition, integration and restructuring associated
with the transaction; challenges of achieving anticipated synergies; ability to
retain qualified employees and existing business alliances; and customer demand
for CDT products. The pro forma adjustments represent managements best
estimates based on information available at the time the pro forma information
was prepared and may differ from the adjustments that may actually be required.
Accordingly, the pro forma financial information should not be relied upon as
being indicative of the historical results that would have been realized had
the acquisition occurred as of the dates indicated or that may be achieved in
the future.
Three Months Ended September 30,
Nine Months Ended September 30,
2004
2003
2004
2003
(in thousands, except per share date)
$
303,779
$
265,135
$
908,459
$
796,122
(2,905
)
1,194
7,707
6,999
(5,286
)
(2,382
)
(440
)
1,755
(.06
)
.03
.16
.15
(.11
)
(.05
)
(.01
)
.04
12
These pro forma results reflect the pro forma adjustments for interest expense, depreciation, amortization and related income taxes.
Net income/(loss) from continuing operations, net income/(loss) and diluted
earnings/(loss) per share for the three and nine month periods ended September
30, 2004 and 2003 include certain material charges and merger-related items
incurred during the periods, as listed below on an after-tax basis:
Three Months Ended
Nine Months Ended
September 30,
September 30,
2004
2003
2004
2003
(in thousands)
$
1,624
$
1,624
$
2,276
$
2,276
3,161
3,161
12,620
12,620
1,075
1,075
3,318
5,025
(1,126
)
Note 4: Discontinued Operations
The Company currently reports four operations-the Belden Communications Company ( BCC ) Phoenix, Arizona operation; the Raydex/CDT Ltd. ( Raydex ) Skelmersdale, United Kingdom operation; Montrose; and Admiral-as discontinued operations. Each of these operations is reported as a discontinued operation in accordance with SFAS No. 144, Accounting for the Impairment or Disposal of Long-Lived Assets , because (1) the Companys Board of Directors authorized the Company to sell the assets of each operation and (2) each operation constituted a component of the overall entity.
BCC-Phoenix Operation
On March 12, 2004, the Companys Board of Directors decided to sell the assets of the BCC manufacturing facility in Phoenix, Arizona. BCCs Phoenix facility manufactured communications cables for the telecommunications industry. On June 1, 2004, the Company sold certain assets to Superior Essex Communications LLC ( Superior ). Superior purchased certain inventory and equipment, and assumed the Companys supply agreements with major telecommunications customers, for an amount not to exceed $92.1 million. At the time the transaction closed, the Company received $82.1 million in cash ($47.1 million for inventory and $35.0 million for equipment). The remaining payment of up to $10.0 million is contingent upon Superiors retention of the assumed customer agreements.
The Company recognized a gain on the disposal of the inventory in the amount of $4.7 million pretax ($3.0 million after tax) for both the three- and six-month periods ended June 30, 2004. During the third quarter of 2004, the Company and Superior agreed to the closing date inventory adjustment that resulted in the Company establishing a payable of $3.9 million to Superior and retaining certain inventory. The Company recognized a loss of $2.4 million pretax ($1.5 million after tax) related to this inventory adjustment during the third quarter of 2004 and recognized a net gain of $2.3 million pretax ($1.5 million after tax) related to the disposal of the inventory and the subsequent inventory adjustment in the nine months ended September 30, 2004.
13
Raydex-Skelmersdale Operation
On September 10, 2004 the Company announced that it was in discussions with employee representatives regarding its intention to close the Raydex manufacturing facility in Skelmersdale, United Kingdom. The Skelmersdale facility manufactures twisted-pair and coaxial cables for data networking, telecommunications, and broadcast applications. Some of the equipment will be transferred to other European locations of Belden CDT. At September 30, 2004, none of the assets of the Skelmersdale facility had been sold.
Montrose
On September 10, 2004, the Company announced the pending closure and sale of its Montrose cable operation in Auburn, Massachusetts. Montrose, an unincorporated operating division of the Company, manufactures and markets coaxial and twisted-pair cable products principally for the telecommunications industry. Montrose has faced declining demand in recent years. Select equipment will be transferred to other Belden CDT manufacturing locations beginning in December and the Company expects the plant to be closed by early 2005. At September 30, 2004, none of the assets of the Montrose operation had been sold.
Admiral
The Company is currently in discussions with the management of its Admiral operation in Wadsworth, Ohio regarding a management buyout of the operation. Admiral, an unincorporated operating division of the Company, manufactures precision tire castings and is not considered a core business to the Company. At September 30, 2004, none of the assets of the Admiral operation had been sold.
Listed below are the major classes of assets and liabilities belonging to the discontinued operations of the Company at September 30, 2004 that remain as part of the disposal group:
14
Operating results from discontinued operations for the three- and nine-month periods ended September 30, 2004 and 2003 include the following revenues and earnings/(loss) before income tax expense/(benefit) ( EBT ):
Note 5: Share Information
Common Stock
|
Treasury Stock
|
|||||||
(number of shares in thousands) | ||||||||
Balance at December 31, 2002
|
26,204 | (1,091 | ) | |||||
Issuance of treasury stock:
|
||||||||
Exercise of stock options
|
| 5 | ||||||
Stock compensation
|
| 103 | ||||||
Employee stock purchase plan settlement
|
| 4 | ||||||
Retirement savings plan contributions
|
200 | |||||||
|
|
|
||||||
Balance at
September 30, 2003
|
26,204 | (779 | ) | |||||
|
|
|
||||||
Balance at December 31, 2003
|
26,204 | (547 | ) | |||||
Merger between Belden and CDT
|
23,380 | (3,414 | ) | |||||
Issuance of stock:
|
||||||||
Exercise of stock options
|
90 | 31 | ||||||
Stock compensation
|
| 506 | ||||||
Employee stock purchase plan settlement
|
12 | 4 | ||||||
Retirement savings plan contributions
|
| 118 | ||||||
|
|
|
||||||
Balance at September 30, 2004
|
49,686 | (3,302 | ) | |||||
|
|
|
15
Note 6: Earnings/(Loss) Per Share
Basic earnings/(loss) per share are computed by dividing net income/(loss) available to common shareholders by the weighted average number of common shares outstanding. Diluted earnings/(loss) per share are computed by dividing net income/(loss) available to common shareholders by the weighted average number of common shares outstanding plus additional potential dilutive shares assumed to be outstanding. Additional potential shares are calculated for each measurement period based on the treasury stock method, under which repurchases are assumed to be made at the average fair market value price per share of the Companys common stock during the period. The Companys additional potential dilutive shares currently consist of stock options, unvested restricted stock and the convertible notes. Unvested restricted stock carries dividend and voting rights but is not included in the weighted average number of common shares outstanding used to compute basic earnings/(loss) per share.
For the three months ended September 30, 2004, the Company did not include any of its outstanding stock equivalents in its development of the denominator used in the dilutive earnings/(loss) per share computation due to the Companys loss from continuing operations for the quarter. For the nine-month period ended September 30, 2004 and the three- and nine-month periods ended September 30, 2003 the Company did not include 3.3 million, 2.2 million and 2.6 million outstanding stock options, respectively, in its development of the denominators used in the dilutive earnings/(loss) per share computations. The exercise prices of these options were greater than the respective average market price of the Companys common stock during those measurement periods.
16
Note 7: Comprehensive Income/(Loss)
Comprehensive income consists of two components-net income/(loss) and other comprehensive income/(loss). Other comprehensive income/(loss) refers to revenues, expenses, gains and losses that under accounting principles generally accepted in the United States are recorded as an element of stockholders equity but are excluded from net income/(loss). The Companys other comprehensive income/(loss) is comprised of (a) adjustments that result from translation of the Companys foreign entity financial statements from their functional currencies to United States dollars, (b) adjustments that result from translation of intercompany foreign currency transactions that are of a long-term investment nature (that is, settlement is not planned or anticipated in the foreseeable future) between entities that are consolidated in the Companys financial statements, and (c) minimum pension liability adjustments.
The components of comprehensive income for the three- and nine-month periods ended September 30, 2004 and 2003 were as follows:
The components of accumulated other comprehensive income at September 30, 2004 and December 31, 2003 were as follows:
Note 8: Inventories
Inventories are stated at the lower of cost or market. The Company determines the cost of certain raw materials, work-in-process and finished goods inventories in the United States by the last in, first out method. The cost of all other inventories, including inventories outside the United States, is determined by the first in, first out method. Cost components include direct labor, applicable production overhead and amounts paid to suppliers of materials and products as well as freight costs and, when applicable, duty costs to import the materials and products. The Company writes down its inventories for estimated obsolescence or unmarketable inventory equal to the difference between the cost of inventory and the estimated market value based upon assumptions about future demand and market conditions.
17
The major classes of inventories at September 30, 2004 and December 31, 2003 were as follows:
Note 9: Impairment of Long-Lived Assets
During the third quarter of 2004, the Company identified certain equipment in its Netherlands manufacturing facility and certain United States manufacturing facilities that would no longer be utilized due to the Companys decision to cease manufacturing certain products in the Netherlands and the disposal of certain United States equipment due to excess capacity (particularly as a result of the combined capacity after the Merger). In accordance with SFAS No. 144, the Company estimated the fair value of the equipment based upon anticipated net proceeds from its sale and recognized an impairment loss of $8.9 million based on the difference between the carrying value of the equipment and its fair value. This loss was reflected as other operating expense during the third quarter of 2004.
Note 10: Accrued Severance and Other Related Benefits
2002 Plan
As of October 31, 2002, the Company recorded severance and other related benefits costs of $11.3 million related to an announced facility closure in Canada. These costs were recognized as a liability assumed in the purchase of the Canadian operation from CDT in October 2002 and included in the allocation of the cost to acquire the operation in accordance with EITF No. 95-3, Recognition of Liabilities in Connection with a Purchase Business Combination. 197 employees were eligible for severance payments.
On December 31, 2002, the Company recorded severance and other related benefits costs in the amount of $6.7 million related to an announced manufacturing facility closure in Germany as operating expense ($4.5 million in cost of sales and $2.2 million in selling, general and administrative expenses) within the Electronics segment in accordance with EITF No. 94-3, Liability Recognition for Certain Employee Termination Benefits and Other Costs to Exit an Activity (including Certain Costs Incurred in a Restructuring) . 171 employees were eligible for severance payments. During the second quarter of 2003, the Company recorded additional severance and other related benefits costs in the amount of $0.8 million related to the German manufacturing facility closure as operating expense ($0.5 million in cost of sales and $0.3 million in selling, general and administrative expenses). The Company recorded additional severance and other related benefits costs in the amount of $0.1 million each quarter in the fourth quarter of 2003 and the first and second quarters of 2004 related to the manufacturing facility closure in Germany as selling, general and administrative expense.
2003 Plans
In accordance with SFAS No. 146, Accounting for Costs Associated with Exit or Disposal Activities , the Company recorded severance and other related benefits costs in the amount of $2.7 million in the third and fourth quarters of 2003 related to personnel reductions within the Electronics segment in the United States, Canada and the Netherlands and within the Communications segment in the United Kingdom as operating expense ($1.4 million in cost of sales and $1.3 million in selling, general and administrative expenses). 132 employees were notified, prior to December 31, 2003, of the pending terminations as well as the amount of severance and other related benefits they each should expect to receive. During the first quarter of 2004, the Company recorded additional severance and other related benefits costs in the amount of $0.5 million related to personnel reductions within the Electronics segment in Canada and the Netherlands as selling, general and administrative expenses. Three employees were notified, prior to March 31, 2004, of the pending terminations as well as the amount of severance and other related benefits they each should expect to receive.
18
In accordance with SFAS No. 88, Employers Accounting for Settlements & Curtailments of Defined Benefit Pension Plans and for Termination Benefits , the Company recorded severance and other related benefits costs in the amount of $1.4 million in the third and fourth quarters of 2003 related to personnel reductions within the Electronics segment in the United States as operating expense ($0.3 million in cost of sales and $1.1 million in selling, general and administrative expenses). Twenty employees were offered and accepted termination packages prior to December 31, 2003.
2004 Plans
On June 1, 2004, the Company announced its decision to close its BCC manufacturing facility in Phoenix, Arizona. In accordance with SFAS No. 146, Accounting for Costs Associated with Exit or Disposal Activities , the Company recognized severance and other related benefits costs of $4.8 million and $0.8 million associated with the Phoenix facility in net loss from discontinued operations during the second and third quarters of 2004, respectively. The Company anticipates recognizing additional severance and other related benefits costs of $0.2 million during the fourth quarter of 2004 related to the Phoenix facility. 889 employees were notified, prior to June 30, 2004, of the pending termination as well as the amount of severance and other related benefits they each should expect to receive.
In accordance with SFAS No. 146, Accounting for Costs Associated with Exit or Disposal Activities , the Company recorded severance and other related benefits costs in the amount of $10.2 million in the third quarter of 2004 related to personnel reductions within the Electronics segment in the United States, the Netherlands and Germany as operating expense ($9.5 million in cost of sales and $0.7 million in selling, general and administrative expenses). The Company also recorded severance and other related benefits costs in the amount of $0.4 million in the third quarter of 2004 related to the pending closure of its Electronics segment manufacturing facility in Essex Junction, Vermont in cost of sales. 248 employees were notified, prior to September 30, 2004, of the pending terminations as well as the amount of severance and other related benefits they each should expect to receive.
On September 10, 2004, the Company announced its decision to close legacy CDT operations in Skelmersdale, United Kingdom and Auburn, Massachusetts and to reduce personnel at several other legacy CDT locations. As of the acquisition date, the Company accrued severance and other related benefits costs of $16.7 million associated with the closures and the personnel reductions. These costs were recognized as a liability assumed in the purchase and included in the allocation of the cost to acquire CDT in accordance with EITF No. 95-3, Recognition of Liabilities in Connection with a Purchase Business Combination . 504 employees were eligible for severance payments.
The Company anticipates making substantially all severance payments against these accruals within one year of each accrual date.
19
The following table sets forth termination activity that occurred during the three- and nine-month periods ended September 30, 2004:
The Company continues to review its business strategies and evaluate further restructuring actions. This could result in additional severance and other related benefits charges in future periods.
Note 11: Long-Term Debt and Other Borrowing Arrangements
Medium-Term Notes
In 1997, the Company completed a private placement of $75.0 million of unsecured medium-term notes. The notes bear interest at 6.92% and mature in $15.0 million annual increments in August 2005 through August 2009. In 1999, the Company completed a private placement of $64.0, $44.0 and $17.0 million in unsecured debt. The notes bear interest at 7.65%, 7.75%, and 8.06%, respectively, and mature in September 2004, September 2006, and September 2009, respectively. The agreements for these notes contain various customary affirmative and negative covenants and other provisions, including restrictions on the incurrence of debt, maintenance of maximum leverage ratio and minimum net worth. The Company repaid the $64.0 million tranche of the 1999 placement in September 2004.
Credit Agreement
There were no outstanding borrowings at September 30, 2004 under the Companys credit agreement dated October 9, 2003 ( Credit Agreement ). The Credit Agreement provides for a secured, variable-rate and revolving credit facility not to exceed $75.0 million expiring in June 2006. In general, a portion of the Companys assets in the United States, other than real property, secures any borrowing under the Credit Agreement. The amount of any such borrowing is subject to a borrowing base comprised of a portion of the Companys inventories and receivables located in the United States. A fixed charge coverage ratio covenant becomes applicable if the Companys excess borrowing capacity falls below $25.0 million. The Company had $29.2 million in borrowing capacity available at September 30, 2004.
20
The Company does not anticipate a need during the year ending December 31, 2004 for funds available under the Credit Agreement to meet its capital expenditure, dividend and working capital needs.
Convertible Notes
At September 30, 2004, the Company had outstanding $110.0 million of unsecured subordinated debentures. The debentures are convertible into shares of common stock, at a conversion price of $18.069 per share, upon the occurrence of certain events. The conversion price is subject to adjustment in certain circumstances.
Holders may surrender their debentures for conversion upon satisfaction of any of the following conditions: (1) the closing sale price of the Companys common stock is at least 110% of the conversion price for a minimum of 20 days in the 30 trading-day period ending on the trading day prior to surrender; (2) the senior implied rating assigned to the Company by Moodys Investors Service, Inc. is downgraded to B2 or below and the corporate credit rating assigned to the Company by Standard & Poors is downgraded to B or below; (3) the Company has called the debentures for redemption; or (4) upon the occurrence of certain corporate transactions as specified in the indenture. As of September 30, 2004, condition (1) had been met. However, none of the other conditions had occurred. The senior implied rating was Ba2, and the corporate credit rating was BB-.
Interest of 4.0% is payable semiannually in arrears, on January 15 and July 15. The debentures mature on July 15, 2023, if not previously redeemed.
The Company may redeem some or all of the debentures on or after July 21, 2008, at a price equal to 100% of the principal amount of the debentures plus accrued and unpaid interest up to the redemption date. Holders may require the Company to purchase all or part of their debentures on July 15, 2008, July 15, 2013, or July 15, 2018, at a price equal to 100% of the principal amount of the debentures plus accrued and unpaid interest up to the redemption date, in which case the purchase price may be paid in cash, shares of the Companys common stock or a combination of cash and the Companys common stock, at the Companys option.
Short-Term Borrowings
At September 30, 2004, the Company had unsecured, uncommitted arrangements with three banks under which it could borrow up to $13.2 million at prevailing interest rates. There were no outstanding borrowings under these arrangements at September 30, 2004.
Interest Rate Management
The Company manages its debt portfolio by using interest rate swap agreements to achieve an overall desired position of fixed and floating rates. At September 30, 2004, the Company was not party to any interest rate swap agreements. However, during the quarter ended September 30, 2004, the Company was party to interest rate swap agreements relating to its 7.60% medium-term notes that matured on September 1, 2004. These swaps, which matured on September 1, 2004, converted a notional amount of $64.0 million from a fixed rate to a floating rate in conjunction with the Companys ongoing debt management strategy. These arrangements were designated and qualified as fair value hedges of the associated medium-term notes in accordance with SFAS No. 133, Accounting for Derivative Instruments and Hedging Activities . Net interest differentials earned from the interest rate swaps of $0.3 pretax (or $0.01 per diluted share) and $1.3 million pretax (or $0.03 per diluted share) were recorded as reductions to interest expense for the three- and nine-month periods ended September 30, 2004. Net interest differentials earned from the interest rate swaps reduced the Companys average interest rate on debt by 0.51 and 0.79 percentage points for the three- and nine-month periods ended September 30, 2004.
21
Note 12: Income Taxes
Net tax benefit of $0.5 million for the nine months ended September 30, 2004 resulted from income from continuing operations before taxes of $4.7 million. The Company considers earnings from foreign subsidiaries to be indefinitely reinvested and, accordingly, has made no provision for United States federal and state income related to these earnings. Upon distribution of foreign subsidiary earnings, the Company may be subject to United States income taxes (subject to an adjustment for foreign tax credits) and withholding taxes payable to the various foreign countries.
The difference between the effective rate reflected in the provision for income taxes on income from continuing operations before taxes and the amounts determined by applying the applicable statutory United States tax rate for the nine months ended September 30, 2004 are analyzed below:
Note 13: Pension and Other Postretirement Obligations
The Company sponsors defined benefit pension plans for certain employees in the United States, the United Kingdom, the Netherlands, Canada and Germany. Annual contributions to these pension plans equal or exceed the minimum funding requirements of applicable local regulations. The assets of the pension plans are maintained in various trusts and invested primarily in equity and fixed income securities and money market funds.
The Company also sponsors unfunded postretirement (medical and life insurance) benefit plans in the United States and Canada. The medical benefit portion of the United States plan is only for employees who retired prior to 1989 as well as certain other employees who were near retirement and elected to receive certain benefits.
The following tables provide the components of net periodic benefit costs related to the plans for the three- and nine-month periods ended September 30, 2004 and 2003:
22
The following table provides actual and anticipated contributions to the
Companys pension and other postretirement plans:
Other
Postretirement
Pension Obligations
Obligations
(in thousands)
$
6,367
$
524
11,953
1,671
13,203
2,537
In May 2004, the Financial Accounting Standards Board ( FASB ) issued FASB Staff Position ( FAS ) No. 106-2, Accounting and Disclosure Requirements Related to the Medicare Prescription Drug, Improvement and Modernization Act of 2003 (the Act ). FAS No. 106-2 provides guidance on the accounting for and disclosure of the subsidy available under the Act for employers that sponsor postretirement health care plans providing prescription drug benefits. The Company has elected to apply this guidance for the quarter beginning April 1, 2004, retroactive to the date of enactment of the Act. The reduction in the accumulated postretirement benefit obligation attributed to past service as a result of the subsidy available under the Act is $1.6 million.
The following table provides the actual and anticipated effects of the subsidy
on the net periodic postretirement benefit cost:
Effect of Subsidy
on Net Periodic
Postretirement
Benefit Cost
(in thousands)
$
(53
)
(158
)
(211
)
Pursuant to the requirement of SFAS No. 3, Reporting Accounting Changes in Interim Financial Statements , and FAS No. 106-2, the results of operations for the three-month period ended March 31, 2004 will be increased by $52 thousand pretax when presented for comparative purposes.
23
Note 14: Contingent Liabilities
General
Various claims are asserted against the Company in the ordinary course of business including those pertaining to income tax examinations and product liability, customer, vendor and patent matters. Based on facts currently available, management believes that the disposition of the claims that are pending or asserted will not have a materially adverse effect on the financial position of the Company.
Letters of Credit, Guarantees and Bonds
At September 30, 2004, the Company was party to unused standby letters of credit and unused bank guarantees totaling $8.4 million and $4.1 million, respectively. The Company also maintains bonds totaling $3.9 million in connection with workers compensation self-insurance programs in several states, taxation in Canada and the importation of product into the United States and Canada.
Severance and Other Related Benefits
On October 29, 2003, the Company completed the sale of part of its business in Germany to a management-led buyout group. The Company will retain liability for severance and other related benefits estimated at $1.5 million on September 30, 2004 in the event the buyout group terminates transferred employees within three years of the buyout date. The severance and other related benefits amounts are reduced based upon the transferred employees duration of employment with the buyout group. The Company will be relieved of any remaining contingent liability related to the transferred employees on the third anniversary of the buyout date.
Intercompany Guarantees
An intercompany guarantee is a contingent commitment issued by either the Company or one of its subsidiaries to guarantee the performance of either the Company or one of its subsidiaries to a third party in a borrowing arrangement or similar transaction. The terms of these intercompany guarantees are equal to the terms of the related borrowing arrangements or similar transactions and range from 1 year to 12 years. The only intercompany guarantees outstanding at September 30, 2004 are the guarantees executed by Belden Wire & Cable Company and Belden Communications Company related to the $136.0 million indebtedness of Belden Inc. under various medium-term note purchase agreements and the guaranty executed by Belden Inc. related to $3.7 million of potential indebtedness under an overdraft line of credit between Belden Wire & Cable B.V. and its local cash management bank. The maximum potential amount of future payments the Company or its subsidiaries could be required to make under these intercompany guarantees at September 30, 2004 is $139.7 million. In accordance with the scope exceptions provided by FASB Interpretation No. 45, Guarantors Accounting and Disclosure Requirements for Guarantees, Including Indirect Guarantees of Indebtedness of Others , the Company has not measured and recorded the carrying values of these guarantees in its Consolidated Financial Statements. The Company also does not hold collateral to support these guarantees.
Note 15: Business Segment and Geographic Information
The Company conducts its operations through two business segmentsthe Electronics segment and the Networking segment. The Electronics segment designs, manufactures and markets metallic and fiber optic wire and cable products primarily with industrial; video, sound and security; and transportation and defense applications. These products are sold principally through distributors or directly to original equipment manufacturers ( OEMs ). The Networking segment designs, manufactures and markets metallic cable, fiber optic cable, connectivity and certain other non-cable products primarily with networking and communications applications. These products are sold principally through distributors or directly to OEMs and large telecommunications companies.
The Company evaluates segment performance and allocates resources based on operating earnings before interest and income taxes. Operating earnings of the two principal segments include all the ongoing costs of operations. Allocations to or from these business segments are not significant. With the exception of certain unallocated tax assets, substantially all the business assets are utilized by the business segments.
24
Amounts reflected in the column entitled F&A in the tables below represent
corporate headquarters operating, treasury and income tax expenses and the
elimination of intersegment revenues and cost of sales.
Business Segment Information
Total segment operating earnings differ from net income/(loss) reported in the
Consolidated Statements of Operations as follows:
25
(1)
Net of tax benefit of $1,489, $1,547, $5,606 and $4,249, respectively
(2)
Net of tax expense/(benefit) of $(860), $0, $839 and $0, respectively
Geographic
Information
Revenues are attributed to geographic areas based on the location of the
customer.
Three Months Ended September 30,
|
2004
|
2003
|
||||||||||||||
Percent of | Percent of | |||||||||||||||
Revenues
|
Revenues
|
Revenues
|
Revenues
|
|||||||||||||
(in thousands, except % data) | ||||||||||||||||
United States
|
$ | 143,540 | 51.0 | % | $ | 81,334 | 52.4 | % | ||||||||
Canada
|
23,698 | 8.4 | % | 11,301 | 7.3 | % | ||||||||||
United Kingdom
|
36,712 | 13.0 | % | 20,606 | 13.3 | % | ||||||||||
Continental Europe
|
52,245 | 18.6 | % | 23,979 | 15.4 | % | ||||||||||
Rest of World
|
25,259 | 9.0 | % | 18,077 | 11.6 | % | ||||||||||
|
|
|
|
|
||||||||||||
Total
|
$ | 281,454 | 100.0 | % | $ | 155,297 | 100.0 | % | ||||||||
|
|
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26
ITEM 2. MANAGEMENTS DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS
OF OPERATIONS
The following discussion and analysis, as well as the accompanying Consolidated
Financial Statements and related footnotes, will aid in the understanding of
the operating results as well as the financial position, cash flows,
indebtedness and other key financial information of the Company. Certain
reclassifications have been made to prior year amounts to make them comparable
to current year presentation. Preparation of this Quarterly Report on Form 10-Q
requires the Company to make estimates and assumptions that affect the reported
amount of assets and liabilities, disclosure of contingent assets and
liabilities at the date of its financial statements and the reported amounts of
revenue and expenses during the reporting period. The Company bases its
estimates on historical experience and on various other assumptions that are
believed to be reasonable under the circumstances, the results of which form
the basis for making judgments about the carrying values of assets and
liabilities that are not readily derived from other sources. There can be no
assurance that actual amounts will not differ from those estimates. The
following discussion will also contain forward-looking statements. In
connection therewith, please see the cautionary statements contained herein
under the caption Forward-Looking Statements, which identify important
factors that could cause actual results to differ materially from those in the
forward-looking statements.
Overview
The Company designs, manufactures and markets high-speed electronic cables and
connectivity products for the specialty electronics and data networking
markets. The Company focuses on segments of the worldwide wire and cable market
that require highly differentiated, high-performance products and adds value
through design, engineering, manufacturing excellence, product quality, and
customer service. The Company has manufacturing facilities in North America and
Europe and had a manufacturing facility in Australia until June 2003.
The Company believes that revenue growth, operating margins and working capital
management are its key performance indicators.
Business Combination
Belden and CDT entered into a Merger Agreement on February 4, 2004 pursuant to
which Belden merged with and became a wholly owned subsidiary of CDT. On July
15, 2004, after receiving the appropriate stockholder approvals and pursuant to
the Merger Agreement, Belden and CDT completed the Merger. Pursuant to the
Merger Agreement, 25.6 million shares of Belden common stock, par value $.01
per share, were converted into 25.6 million shares of CDT common stock, par
value $.01 per share, and CDT changed its name to Belden CDT Inc.
Belden and CDT each believed the Merger was in the best interests of its
respective stockholders because, as a result of the Merger, the long-term value
of an investment in the combined company would likely be superior to the
long-term value of an investment in either standalone company. In deciding to
consummate the Merger, Belden and CDT considered various factors, some of which
are listed in Note 3,
Business Combination,
to this Quarterly Report on Form
10-Q.
The Merger included the following significant related transactions:
27
As of the Merger consummation date, the Company had approximately 46.6 million
shares of common stock outstanding. On that date, the former CDT stockholders
and former Belden stockholders respectively owned approximately 45% and 55% of
the Company. The Company anticipates that annual dividends in the aggregate of
$0.20 per common share will be paid to all common stockholders. The first
quarterly dividend of $0.05 per common share was declared payable on October 4,
2004 to all shareholders of record as of September 17, 2004.
In accordance with the provisions of SFAS No. 141,
Business Combinations
, the
Merger was treated as a reverse acquisition under the purchase method of
accounting. Belden was considered the acquiring enterprise for financial
reporting purposes because Beldens owners as a group retained or received the
larger portion of the voting rights in the Company and Beldens senior
management represented a majority of the senior management of the Company.
The preliminary cost to acquire CDT was $450.4 million and consisted of the
exchange of common stock discussed above, change of control costs for legacy
CDT operations and costs incurred by Belden related directly to the
acquisition. The purchase price was established primarily through the
negotiation of the share exchange ratio. The share exchange ratio was intended
to value both Belden and CDT fairly so that neither company paid a premium over
equity market value for the other. The Company established a new accounting
basis for the assets and liabilities of CDT based upon the fair values thereof
as of the Merger date. The Company recorded preliminary goodwill of $158.0
million during the third quarter of 2004.
For financial reporting purposes, the results of operations of CDT are included
in the Companys Consolidated Statements of Operations from July 16, 2004.
A preliminary estimate of the fair values assigned to each major asset and
liability caption of CDT as of the July 15, 2004 effective date of the Merger
and unaudited pro forma summary results presenting selected operating
information for the Company as if the Merger and the one-for-two reverse stock
split had been completed as of the beginning of the three- and nine-month
periods ended September 30, 2004 and 2003 are included in Note 3,
Business
Combination
, to this Quarterly Report on Form 10-Q.
Discontinued Operations
The Company currently reports four operationsthe BCC Phoenix, Arizona
operation; the Raydex. Skelmersdale, United Kingdom operation; Montrose; and
Admiralas discontinued operations. Each of these operations is reported as a
discontinued operation in accordance with SFAS No. 144,
Accounting for the
Impairment or Disposal of Long-Lived Assets
, because (1) the Companys Board of
Directors authorized the Company to sell the assets of each operation and (2)
each operation constituted a component of the overall entity.
Discussion regarding each operation, including (1) a listing of the major
classes of assets and liabilities belonging to each operation at September 30,
2004 that remain as part of the disposal group and (2) a listing of revenues
and income/(loss) before income taxes generated by each operation for the
three- and nine-month periods ended September 30, 2004, is included in Note 4,
Discontinued Operations
, to this Quarterly Report on Form 10-Q.
Business Segments
The Company conducts its operations through two business segmentsthe
Electronics segment and the Networking segment. The Electronics segment
designs, manufactures and markets metallic and fiber optic wire and cable
products with primarily industrial; video, sound and security; and
transportation and defense applications. These products are sold principally
through distributors or directly to OEMs. The Networking segment designs,
manufactures and markets metallic cable, fiber optic cable, connectivity and
other non-cable products primarily with networking and communications
applications. These products are sold principally through distributors or
directly to OEMs and large telecommunications companies.
28
The following table sets forth information comparing the Electronics segment
operating results for the three- and nine-month periods ended September 30,
2004 and 2003.
The following table sets forth information comparing the Networking segment
operating results for the three- and nine-month periods ended September 30,
2004 and 2003.
Results of Operations
Revenues generated in the three months ended September 30, 2004 increased 81.2%
to $281.5 million from revenues generated in the three months ended September
30, 2003 of $155.3 million due to the Merger, increased sales volume, increased
selling prices and favorable currency translation on international revenues.
Revenues generated through the addition of the CDT operations during the three
months ended September 30, 2004 totaled $102.5 million and contributed 66.0
percentage points of revenue increase.
The impact of increased product pricing contributed 6.5 percentage points of
revenue increase during the third quarter of 2004. This price improvement
resulted from the impact of sales price increases implemented by the Companys
North America operations across all products lines in January 2004 in response
to increasing copper costs, the impact of additional sales price increases
implemented by the Companys North America and Asia/Pacific operations across
all product lines in March 2004 in response to further copper cost escalation
and increases in Teflon
®
FEP costs and the impact of sales price increases
implemented by the Companys Europe operations across all product lines in May
2004 in response to copper cost escalation and the increasing costs of other
raw materials.
29
Increased unit sales generated during the three months ended September
30, 2004 contributed 5.2 percentage points of revenue increase. The Company
experienced volume increases in its sales of products with networking/
communications and industrial applications. Higher unit sales of products with
networking/communications applications and industrial applications contributed
3.8 and 2.2 percentage points of revenue increase, respectively. These volume
increases were partially offset by 0.8 percentage points due to volume
decreases in sales of products with video/sound/security applications. Factors
contributing to the net increased sales volume are listed below:
Factors partially mitigating the net increased sales volume are listed below:
Favorable foreign currency translation on international revenues contributed
3.5 percentage points of revenue increase.
Revenues generated on sales of product to customers in the United States,
representing 51.0% of the Companys total revenues generated during the three
months ended September 30, 2004, increased by 76.5% compared with revenues
generated during the same period in 2003. Absent the impact of the Merger,
revenues generated for the third quarter of 2004 increased by 14.0% from
revenues generated during the same period in 2003. This increase resulted
primarily from continued improvement in general economic conditions within the
United States, the impact of sales price increases implemented in January 2004
and March 2004, increased project activity requiring products with
video/sound/security applications and industrial applications and increased
distributor-restocking activity for products with industrial applications.
Revenues generated on sales of product to customers in Canada represented 8.4%
of the Companys total revenues for the quarter ended September 30, 2004.
Canadian revenues for the third quarter of 2004 increased by 109.7% compared
with revenues for the third quarter of 2003. Absent the impact of the Merger
and favorable currency translation, revenues generated for the third quarter of
2004 increased by 10.5% compared with revenues generated for the same period in
2003. This increase resulted primarily from the impact of sales price increases
implemented in January 2004 and March 2004.
Revenues generated on sales of product to customers in the United Kingdom,
representing 13.0% of the Companys total revenues generated during the third
quarter of 2004, increased by 78.2% compared with revenues generated during the
same period in 2003. Absent the impact of the Merger and favorable currency
translation, revenues generated for the third quarter of 2004 increased by
23.3% compared with revenues generated for the same period in 2003. This
increase resulted primarily from increased unit purchasing of products with
communications applications by a large telecommunications customer in the
United Kingdom and increased copper pass-through pricing on most products.
30
Revenues generated on sales of product to customers in Continental Europe
represented 18.6% of the Companys total revenues for the quarter ended
September 30, 2004. Continental European revenues generated during the third
quarter of 2004 increased by 117.9% compared with revenues generated during the
same period in 2003. Absent the impact that the Merger and favorable currency
translation had on the revenue comparison, Continental European revenues
generated during the third quarter of 2004 increased by 2.6% compared with
revenues generated during the same period of 2003. The majority of this
increase resulted from the impact of sales price increases implemented in May
2004. Improved sales volume on products with networking/communications
applications was offset by the Companys decision to cease, in the second
quarter of 2003, the production of certain products with industrial
applications.
Revenues generated on sales of product to customers in the rest of the world,
representing 9.0% of the Companys total revenues generated during the three
months ended September 30, 2004, increased by 39.7% from the same period in
2003. Absent the impact that the Merger and favorable currency translation had
on the revenue comparison, revenues generated on sales of product to customers
in the rest of the world decreased by 1.4% compared with revenues generated
during the same period of 2003. The decrease represented lower demand and the
Companys decision to cease, in the second quarter of 2003, production of
certain products with networking/communications applications in the Australia
market partially offset by higher demand in the Asia, Latin America and
Africa/Middle East markets.
Continuing Operations Consolidated Costs, Expenses and Earnings
The following table sets forth information comparing the components of earnings
for the three-month periods ended September 30, 2004 and 2003.
Gross profit increased 71.6% to $53.4 million in the three months ended
September 30, 2004 from $31.1 million in the three months ended September 30,
2003 due primarily to the Merger, the impact of sales price increases
implemented in the first half of the current year, higher sales volume and the
favorable impact of currency translation on gross profit. Also contributing to
the favorable gross profit comparison were the current-quarter impact of
material, labor and overhead cost reduction initiatives, increased unabsorbed
production costs recognized in the third quarter of 2003 resulting from actions
taken by the Company to reduce inventory levels and severance and other
benefits costs of $1.0 million recognized in the third quarter of 2003 related
to personnel reductions within the Electronics segment.
31
These positive factors were partially offset by higher product costs resulting
from increased purchase prices for copper and commodities derived from both
petroleum and natural gas, severance and other benefits costs of $9.4 million
recognized in the current quarter related to personnel reductions in both North
America and Europe, severance and other benefits costs of $0.4 million
recognized in the current quarter related to a planned manufacturing facility
closure in the United States, the impact of production outsourcing in Europe
and the impact of production capacity rationalization in Europe initiated
during the fourth quarter of 2003 that resulted in lower output, higher scrap
and increased maintenance costs in the third quarter of 2004.
Gross profit as a percent of revenues decreased by 1.0 percentage points from
the prior year due to the previously mentioned items.
Operating earnings/(loss) deteriorated 144.6% to an operating loss of $3.0
million for the three months ended September 30, 2004 from operating earnings
of $6.7 million for the three months ended September 30, 2003 due primarily to
an increase in selling, general and administrative expenses to $47.5 million in
the third quarter of 2004 from $24.4 million in the third quarter of 2003. This
increase was due primarily to the Merger, the unfavorable impact of currency
translation on international expenses, severance and other benefits costs of
$0.7 million recognized in the current quarter related to personnel reductions
within the United States and Europe, increased incentive compensation costs and
increased professional services costs. Also contributing to the negative
operating earnings comparison were asset impairment costs totaling $8.9 million
recognized in the third quarter of 2004 related to product line exits in Europe
and the disposal of certain assets in the United States due to excess capacity
(particularly as a result of the combined capacity after the Merger). These
negative factors were partially offset by the current-quarter impact of
selling, general and administrative cost reduction initiatives, severance and
other benefits costs of $1.4 million recognized in the third quarter of 2003
related to personnel reductions within the Electronics segment and bad debt
expense of $0.6 million recognized in the third quarter of 2003 related to the
failure of a distribution customer in Asia. Selling, general and administrative
expenses as a percentage of revenues increased to 16.9% in the third quarter of
2004 from 15.7% in the third quarter of 2003. Operating earnings as a percent
of revenues decreased by 5.4 percentage points from the prior year due to the
previously mentioned items.
Income/(loss) before taxes deteriorated 290.2% to a loss of $6.7 million in the
three months ended September 30, 2004 from income of $3.5 million in the three
months ended September 30, 2003 due to lower operating earnings/(loss) and
higher net interest expense. Net interest expense increased 13.0% to $3.5
million in the third quarter of 2004 from $3.1 million in the third quarter of
2003 due to higher average debt outstanding, albeit at marginally lower
interest rates, partially offset by increased interest income. Average debt
outstanding was $271.9 million and $200.0 million during the third quarters of
2004 and 2003, respectively. The Companys average interest rate was 5.84% in
the third quarter of 2004 and 6.56% in the third quarter of 2003. Interest
income for the third quarter of 2004 and 2003 was $0.6 million and $0.1
million, respectively.
The Companys effective tax rate was 54.4% and 1.1% in the quarters ended
September 30, 2004 and 2003, respectively. Absent the impact of the 2004
resolution of a prior period tax contingency, the effective tax rate was 27.5%
for the quarter ended September 30, 2004. The tax rate increase was due
primarily to the relative benefit of permanent deductions to the nine-month
pretax income for 2004 as compared to the nine-month pretax loss for 2003
offset by a valuation allowance of $1.2 million recorded against foreign net
operating loss carryforwards in 2003.
Net income/(loss) from continuing operations deteriorated 185.7% to a loss of
$3.1 million in the three months ended September 30, 2004 from income of $3.6
million in the three months ended September 30, 2003 due mainly to the
deterioration in income/(loss) before taxes partially offset by the higher
income tax benefit.
32
Electronics Segment
Revenues generated from sales to external customers increased 61.2% to $172.0
million for the quarter ended September 30, 2004 from $106.7 million for the
quarter ended September 30, 2003 due to the Merger, increased selling prices,
increased sales volume and favorable currency translation on international
revenues. Revenues generated through the addition of the CDT operations totaled
$52.5 million and contributed 49.2 percentage points of the revenue increase.
The impact of increased product pricing contributed 7.4 percentage points of
revenue increase during the third quarter of 2004. This price improvement
resulted from the impact of sales price increases implemented by the Companys
North America operations across all products lines in January 2004 in response
to increasing copper costs, the impact of additional sales price increases
implemented by the Companys North America operations across all product lines
in March 2004 in response to further copper cost escalation and increases in
Teflon
®
FEP costs and the impact of sales price increases implemented by the
Companys Europe operations across all product lines in May 2004 in response to
copper cost escalation and the increasing costs of other raw materials.
Increased unit sales generated during the three months ended September 30, 2004
contributed 2.4 percentage points of revenue increase. The segment experienced
volume increases in its sales of products with industrial and
networking/communications applications. Higher unit sales of products with
industrial and networking/communications applications contributed 2.4 and 1.4
percentage points of revenue increase, respectively. Positive factors
contributing to the volume increase are listed under
Continuing Operations
Consolidated Revenues
on Page 32 of this Quarterly Report on Form 10-Q. Each of
the factors listed, with the exception of those specifically addressing the
United Kingdom, Australia or Asia, applies to the Electronics segment. These
volume increases were partially offset by a volume decrease in sales of
products with video/sound/security applications. Lower unit sales of products
with video/sound/security applications offset the gross revenue increase by 1.4
percentage points.
Favorable foreign currency translation on revenues contributed 2.2 percentage
points of revenue increase.
Operating earnings decreased 91.8% to $0.6 million for the quarter ended
September 30, 2004 from $7.4 million for the quarter ended September 30, 2003
due mainly to asset impairment costs totaling $8.9 million recognized in the
third quarter of 2004 related to product line exits in Europe and the
technological obsolescence of the assets in the United States. Also
contributing to the unfavorable operating earnings comparison were higher
product costs resulting from increasing purchase prices for copper and
commodities derived from both petroleum and natural gas, severance and other
benefits costs of $10.2 million recognized in the current quarter related to
personnel reductions within the segment and severance and other benefits costs
of $0.4 million recognized in the current quarter related to a planned
manufacturing facility closure within the segment. Higher sales volumes, an
increase in product sales prices, the current-quarter impact of manufacturing,
selling, general and administrative cost reduction initiatives, increased
unabsorbed production costs recognized in the third quarter of 2003 resulting
from actions taken by the segment to reduce inventory levels, and severance and
other benefits costs of $2.4 million recognized in the third quarter of 2003
related to personnel reductions within the segment partially offset these
negative factors. As a percent of revenues from external customers, operating
earnings decreased to 0.4% in the third quarter of 2004 from 7.0% in the third
quarter of 2003 due to the previously mentioned items.
Networking Segment
Revenues generated on sales to external customers increased 125.1% to $109.5
million for the quarter ended September 30, 2004 from $48.6 million for the
quarter ended September 30, 2003. The revenue increase was due primarily to the
Merger, increased sales volume, increased sales prices, and favorable currency
translation on international revenues. Revenues generated through the addition
of the CDT operations during the third quarter of 2004 totaled $50.0 million
and contributed 102.8 percentage points of the revenue increase.
33
Increased unit sales and increased copper pass-through pricing during the three
months ended September 30, 2004 contributed 11.5 percentage points of revenue
increase. This unit sales increase resulted primarily from increased unit
purchasing of products with networking/communications applications by the
segments largest customer.
The impact of increased product pricing contributed 4.4 percentage points of
revenue increase during the third quarter of 2004. This price improvement
resulted from the impact of sales price increases implemented by the Companys
North America operations across all product lines beginning in January 2004, by
the Companys Asia/Pacific operations across all product lines in March 2004
and by the Companys Europe operations across all product lines in May 2004 in
response to copper cost escalation and increases in other raw material costs.
Favorable foreign currency translation on revenues contributed 6.4 percentage
points of revenue increase.
Operating earnings increased 236.4% to $6.0 million for the quarter ended
September 30, 2004 from $1.8 million for the quarter ended September 30, 2003
due primarily to the Merger, higher sales volumes, increased selling prices and
the current-quarter impact of manufacturing, selling, general and
administrative cost reduction initiatives. The positive impact that these
factors had on the operating earnings comparison was partially offset by the
higher product costs resulting from increased purchase prices for copper and
commodities derived from both petroleum and natural gas. Operating earnings as
a percent of revenues from external customers increased to 5.5% in the quarter
ended September 30, 2004 from 3.7% in the quarter ended September 30, 2003 due
to the previously mentioned items.
Discontinued Operations
Net loss from discontinued operations for the three months ended September 30,
2004 includes $4.4 million of revenues and $0.1 million of income before income
tax expense related to the discontinued operations of the Companys Electronics
segment. Net loss from discontinued operations for the third quarter of 2004
includes $6.1 million of revenues and $4.4 million of loss before income tax
benefits related to the discontinued operations of the Companys Networking
segment.
Net loss from discontinued operations for the three months ended September 30,
2003 includes $52.33 million of revenues and $4.3 million of loss before income
tax benefits related to the discontinued operations of the Companys Networking
segment.
Results of Operations
Revenues generated in the nine months ended September 30, 2004 increased 37.5%
to $635.9 million from revenues generated in the nine months ended September
30, 2003 of $462.4 million due to the Merger, increased sales volume, increased
selling prices, and favorable currency translation on international revenues.
Revenues generated through the addition of the CDT operations during the nine
months ended September 30, 2004 totaled $102.5 million and contributed 22.1
percentage points of revenue increase.
Increased unit sales generated during the nine months ended September 30, 2004
contributed 6.3 percentage points of revenue increase. The Company experienced
volume increases in its sales of products with networking/communications
applications and industrial applications. Higher unit sales of products with
networking/communications applications and industrial applications contributed
4.8 and 2.9 percentage points of revenue increase, respectively. These volume
increases were partially offset by 1.4 percentage points due to a volume
decrease in sales of products with video/sound/security applications. Factors
contributing to the net increased sales volume are listed below:
34
Factors partially mitigating the net increased sales volume are listed below:
The impact of increased product pricing contributed 4.8 percentage points of
revenue increase during the first nine months of 2004. This price improvement
resulted from the impact of sales price increases implemented by the Companys
North America operations across all products lines in January 2004 in response
to increasing copper costs, sales price increases implemented by the Companys
North America and Asia/Pacific operations across all product lines in March
2004 in response to further copper cost escalation and increases in Teflon
®
FEP
costs, and sales price increases implemented by the Companys Europe operations
across all product lines in May 2004 in response to copper cost escalation and
the increasing costs of other raw materials.
Favorable foreign currency translation on international revenues contributed
4.3 percentage points of revenue increase during the nine months ended
September 30, 2004.
Revenues generated on sales of product to customers in the United States,
representing 52.2% of the Companys total revenues generated during the nine
months ended September 30, 2004, increased by 42.8% compared with revenues
generated during the same period in 2003. Absent the impact of the Merger,
revenues generated for the first nine months of 2004 increased by 20.9% from
revenues generated during the same period in 2003. This increase resulted
primarily from improvement in general economic conditions in the United States,
increased project activity requiring products with video/sound/security
applications and industrial applications, increased distributor-restocking
activity for products with industrial applications and the impact of sales
price increases implemented in January 2004 and March 2004.
Revenues generated on sales of product to customers in Canada represented 7.6%
of the Companys total revenues for the nine months ended September 30, 2004.
Canadian revenues for the first nine months of 2004 increased by 26.0% compared
with revenues for the first nine months of 2003. Absent the impact of the
Merger and favorable currency translation, revenues generated for the first
nine months of 2004 decreased by 8.5% compared with revenues generated for the
same period in 2003. This decrease resulted primarily from lower sales volume
due to the Companys decision not to reduce sales prices on certain of its
lower-margin product offerings to meet the prices offered by its competitors
and a decrease in demand for certain products with industrial applications and
networking/communications applications.
35
Revenues generated on sales of product to customers in the United Kingdom,
representing 14.3% of the Companys total revenues generated during the first
nine months of 2004, increased by 53.0% compared with revenues generated during
the same period in 2003. Absent the impact of the Merger and favorable currency
translation, revenues generated for the first nine months of 2004 increased by
23.4% compared with revenues generated for the same period in 2003. This
increase resulted primarily from increased unit purchasing of products with
networking/communications applications by a large telecommunications customer
in the United Kingdom and increased copper pass-through pricing on most
products.
Revenues generated on sales of product to customers in Continental Europe
represented 16.4% of the Companys total revenues for the nine months ended
September 30, 2004. Continental European revenues generated during the first
nine months of 2004 increased by 37.5% compared with revenues generated during
the same period in 2003. Absent the impact that the Merger and favorable
currency translation had on the revenue comparison, Continental European
revenues generated during the first nine months of 2004 decreased by 5.9%
compared with revenues generated during the same period of 2003. The majority
of this decrease resulted from the Companys decision to cease, in the second
quarter of 2003, the production of certain products with industrial
applications. The negative impact of this decision on revenue comparisons was
partially offset by increased project activity requiring products with
video/sound/security applications.
Revenues generated on sales of product to customers in the rest of the world,
representing 9.5% of the Companys total revenues generated during the nine
months ended September 30, 2004, increased by 7.5% from the same period in
2003. Absent the impact that the Merger and favorable currency translation had
on the revenue comparison, revenues generated on sales of products to customers
in the rest of the world during the first nine months of 2004 decreased by 7.1%
compared with revenues generated during the same period of 2003. The decrease
represented lower demand and the impact of the Companys decision to cease, in
the second quarter of 2003, the production of certain products with
networking/communications applications in the Australia market partially offset
by higher demand in the Asia, Latin America and Africa/Middle East markets.
Continuing Operations Consolidated Costs, Expenses and Earnings
The following table sets forth information comparing the components of earnings
for the nine-month periods ended September 30, 2004 and 2003.
36
Gross profit increased 34.9% to $118.9 million in the nine months ended
September 30, 2004 from $88.1 million in the nine months ended September 30,
2003 due primarily to the Merger, higher sales volume, an increase in product
sales prices, and the favorable impact of currency translation on gross profit.
Also contributing to the favorable gross profit comparison were the
current-period impact of material, labor and overhead cost reduction
initiatives, increased unabsorbed production costs recognized during 2003
resulting from actions taken by the Company to reduce inventory levels,
severance and related benefits costs of $2.2 million recognized in the second
quarter of 2003 related to the manufacturing facility closures in Australia and
Germany, and severance and related benefits costs of $1.0 million recognized in
the third quarter of 2003 resulting from personnel reductions within the
Electronics segment. These positive factors were partially offset by higher
product costs resulting from increased purchase prices for copper, Teflon
®
FEP
and commodities derived from both petroleum and natural gas, severance and
other benefits costs of $9.4 million recognized in the third quarter of 2004
related to personnel reductions in both the United States and Europe, severance
and other benefits costs of $0.4 million recognized in the third quarter of
2004 related to a planned manufacturing facility closure in the United States,
the impact of production outsourcing in Europe, increased transportation costs
(especially in Europe) and the impact of production capacity rationalization in
Europe initiated during the fourth quarter of 2003 that resulted in lower
output, higher scrap and increased maintenance costs in the first nine months
of 2004. Gross profit as a percent of revenues decreased 0.4 percentage points
from the prior year due to the previously mentioned items.
Operating earnings decreased 21.7% to $13.0 million for the nine months ended
September 30, 2004 from $16.7 million for the nine months ended September 30,
2003 due primarily to an increase in selling, general and administrative
expenses to $97.0 million in the first nine months of 2004 from $71.1 million
for the first nine months of 2003. This increase was due primarily to the
addition of the CDT operations, the unfavorable impact of currency translation
on international expenses, severance and other benefits costs of $1.4 million
recognized in the current year related to personnel reductions within the
Electronics segment, increased incentive compensation costs and increased
professional services costs. Also contributing to the unfavorable operating
earnings comparison were asset impairment costs totaling $8.9 million
recognized in the third quarter of 2004 related to product line exits in Europe
and the disposal of certain assets in the United States due to excess capacity
(particularly as a result of the combined capacity after the Merger). Partially
offsetting these negative factors were the current-period impact of selling,
general and administrative cost reduction initiatives, asset impairment costs
of $0.4 million recognized during the second quarter of 2003 related to the
manufacturing facility closure in Germany, severance and other related benefits
costs of $0.3 million recognized in the second quarter of 2003 related to the
manufacturing facility closures in Australia and Germany, severance and other
related benefits costs of $1.4 million recognized in the third quarter of 2003
related to personnel reductions within the Electronics segment and bad debt
expense of $0.6 million recognized in the third quarter of 2003 related to the
failure of a distribution customer in Asia. Selling, general and administrative
expenses as a percentage of revenues decreased to 15.3% in the first nine
months of 2004 from 15.4% in the first nine months of 2003. Operating earnings
as a percent of revenues decreased by 1.5 percentage points from the prior year
due to the previously mentioned items.
Income before taxes decreased 33.5% to $4.7 million in the nine months ended
September 30, 2004 from $7.0 million in the nine months ended September 30,
2003 due to nonoperating income of $1.7 million recognized in the second
quarter of 2004 on the Companys sale of certain fully impaired equipment and
technology which was used for the production of deflection coils partially
offset by higher net interest expense. Net interest expense increased 2.6% to
$9.9 million in the first nine months of 2004 from $9.6 million in the first
nine months of 2003 due to higher average debt outstanding, albeit at
marginally lower interest rates, partially offset by increased interest income.
Average debt outstanding was $224.3 million and $200.1 million during the nine
months ended September 30, 2004 and 2003, respectively. The Companys average
interest rate was 6.40% in the first nine months of 2004 and 6.66% in the first
nine months of 2003. Interest income for the nine-month periods ended September
30, 2004 and 2003 was $1.0 million and $0.3 million, respectively.
37
The Companys effective annual tax rate was (11.3)% and 24.2% in the nine
months ended September 30, 2004 and 2003, respectively. Absent the impact of
the 2004 resolution of a prior period tax contingency, the Company effective
tax rate was 27.5% for the nine months ended September 30, 2004. The tax rate
decrease was due primarily to the relative benefit of permanent deductions to
the nine-month pretax income for 2004 as compared to the nine-month pretax loss
for 2003 offset by a valuation allowance of $1.2 million recorded against
foreign net operating loss carryforwards in 2003.
Net income from continuing operations decreased 2.5% to $5.2 million in the
nine months ended September 30, 2004 from $5.3 million in the nine months ended
September 30, 2003 due mainly to higher income before taxes and lower income
tax expense.
Electronics Segment
Revenues generated from sales to external customers increased 28.7% to $408.3
million for the nine months ended September 30, 2004 from $317.4 million for
the nine months ended September 30, 2003 due to the Merger, increased selling
prices, increased sales volume and favorable currency translation on
international revenues. Revenues generated through the addition of the CDT
operations totaled $52.5 million and contributed 16.5 percentage points of the
revenue increase.
The impact of increased product pricing contributed 5.3 percentage points of
revenue increase during the first nine months of 2004. This price improvement
resulted from the impact of sales price increases implemented by the Companys
North America operations across all products lines beginning in January 2004
and by the Companys Europe operations across all product lines in May 2004 in
response to copper cost escalation and increasing costs for other raw
materials.
Increased unit sales generated during the nine months ended September 30, 2004
contributed 3.7 percentage points of revenue increase. The segment experienced
volume increases in its sales of products with industrial applications and
networking/communications applications. Higher unit sales of products with
industrial applications and networking/communications applications contributed
3.5 and 2.7 percentage points of revenue increase, respectively. Positive
factors contributing to the volume increase and negative factors partially
mitigating the volume increase are listed under
Continuing Operations
Consolidated Revenues
on Page 37 of this Quarterly Report on Form 10-Q. Each of
the factors listed, with the exception of those specifically addressing the
United Kingdom, Australia or Asia, applies to the Electronics segment. These
volume increases were partially offset by a volume decrease in sales of
products with video/sound/security applications. Lower unit sales of products
with video/sound/security applications offset the gross revenue increase by 2.5
percentage points. Unit sales of products with video/sound/security
applications were lower due to the Companys decision to cease during the
second quarter of 2003 the production of certain products with
video/sound/security applications in Europe. Unit sales of products with
video/sound/security applications that the Company continues to produce
improved from the first nine months of 2003.
Favorable foreign currency translation on international revenues contributed
3.2 percentage points of revenue increase.
38
Operating earnings decreased 2.5% to $19.7 million for the nine months ended
September 30, 2004 from $20.2 million for the nine months ended September 30,
2003 due mainly to higher product costs resulting from increasing purchase
prices for copper, Teflon
®
FEP and commodities derived from both petroleum and
natural gas, severance and other benefits costs of $10.9 million recognized in
the nine months ended September 30, 2004 related to personnel reductions within
the segment, severance and other benefits costs of $0.4 million recognized in
the third quarter of 2004 related to a planned manufacturing facility closure
in the United States, increased transportation costs (especially in Europe),
and the impact of production capacity rationalization in Europe discussed
above.
These negative factors were partially offset by higher sales volumes, increased
product sales prices and the current-quarter impact of manufacturing, selling,
general and administrative cost reduction initiatives. Also contributing to the
favorable operating earnings comparison were increased unabsorbed production
costs recognized in 2003 resulting from actions taken by the segment to reduce
inventory levels, severance and other related benefit costs of $0.9 million and
additional asset impairment costs of $0.4 million recognized in the second
quarter of 2003 related to the manufacturing facility closure in Germany,
severance and other related benefit costs of $2.4 million recognized in the
third quarter of 2003 related to personnel reductions within the segment, and
$2.1 million in unabsorbed production costs recognized during the first six
months of 2003 at the Companys manufacturing facility in Ft. Mill, South
Carolina. This facility was transferred from this segment to the Networking
segment effective July 1, 2003.
As a percent of revenues from external customers, operating earnings decreased
to 4.8% in the first nine months of 2004 from 6.4% in the first nine months of
2003 due to the previously mentioned items.
Networking Segment
Revenues generated on sales to external customers increased 56.8% to $227.5
million for the nine months ended September 30, 2004 from $145.1 million for
the nine months ended September 30, 2003. The revenue increase was due
primarily to the Merger, increased sales volume, favorable currency translation
on international revenues and increased sales prices. Revenues generated
through the addition of the CDT operations totaled $50.0 million and
contributed 34.5 percentage points of the revenue increase.
Increased unit sales and increased copper pass-through pricing during the nine
months ended September 30, 2004 contributed 11.8 percentage points of revenue
increase. The unit sales increase resulted primarily from increased unit sales
of products with networking/communications applications to the segments
largest customer and by increased unit sales of products with industrial
applications by the Companys Asia/Pacific operations.
Favorable foreign currency translation on revenues contributed 6.8 percentage
points of revenue increase. The impact of increased product pricing, initiated
in response to copper cost escalation in January 2004 by the segments North
American operation and in March 2004 by the segments Asia/Pacific operations,
contributed 3.7 percentage points of revenue increase during the first nine
months of 2004.
Operating earnings increased 104.0% to $11.8 million for the nine months ended
September 30, 2004 from $5.8 million for the nine months ended September 30,
2003 due primarily to the Merger, higher sales volumes, increased product sales
prices, the favorable impact of currency translation on operating earnings of
international operations and the current-period impact of manufacturing,
selling, general and administrative cost reduction initiatives. Also
contributing to the favorable operating earnings comparison were increased
unabsorbed production costs recognized in 2003 resulting from actions taken by
the segment to reduce inventory levels, severance and other related benefits
costs of $1.6 million recognized in the second quarter of 2003 related to the
manufacturing facility closure in Australia and bad debt expense of $0.6
million recognized in the third quarter of 2003 related to the failure of a
distribution customer in Asia.
39
The positive impact that these factors had on the operating earnings comparison
was partially offset by $2.1 million in unabsorbed production costs recognized
during the first six months of 2003 at the Companys manufacturing facility in
Ft. Mill, South Carolina. This facility was transferred from the Electronics
segment to this segment effective July 1, 2003. The positive impact that these
favorable factors had on the operating earnings comparison was also partially
offset by the impact of production outsourcing and higher product costs
resulting from increased purchase prices for copper and commodities derived
from both petroleum and natural gas. Operating earnings as a percent of
revenues from external customers increased to 5.2% in the nine months ended
September 30, 2004 from 4.0% in the nine months ended September 30, 2003 due to
the previously mentioned items.
Discontinued Operations
Net loss from discontinued operations for the nine months ended September 30,
2004 includes $4.4 million of revenues and $0.1 million of income before income
tax expense related to the discontinued operations of the Companys Electronics
segment. Net loss for discontinued operations for the nine months ended
September 30, 2004 includes $99.3 million of revenues and $15.8 million of loss
before income tax benefits related to the discontinued operations of the
Companys Networking segment.
Net loss from discontinued operations for the nine months ended September 30,
2003 includes $155.5 million of revenues and $11.8 million of loss before
income tax benefits related to the discontinued operations of the Companys
Networking segment.
Financial Condition
The Companys sources of cash liquidity included cash and cash equivalents,
cash from operations and amounts available under credit facilities. Generally,
the Companys primary source of cash has been from business operations. Cash
sourced from credit facilities and other borrowing arrangements has
historically been used to fund business acquisitions. The Company believes that
these sources are sufficient to fund the current requirements of working
capital, to make scheduled pension contributions for the Companys retirement
plans, to fund scheduled debt maturity payments, to fund quarterly dividend
payments and to support its short-term and long-term operating strategies.
The Company projects its United States federal net operating loss (
NOL
)
carryforward as of December 31, 2004 will exceed $50.0 million (excluding the
portion attributable to Cooper Industries under a tax sharing agreement). In
addition, foreign NOL carryforwards in Australia, Germany and the Netherlands
suggest the Companys cash tax payments will be minimal for the remainder of
2004 and in 2005. These NOL carryforwards arise from lowered operating earnings
during the economic downturn, costs associated with divestiture or closure of
manufacturing plants in the United States, Germany and Australia, and
transaction and other costs associated with the recently completed merger with
CDT.
Planned capital expenditures for the remainder of 2004 are approximately $5.8
million, of which approximately $3.0 million relates to capacity maintenance
and enhancement. The Company has the ability to revise and reschedule the
anticipated capital expenditure program should the Companys financial position
require it.
Any materially adverse reaction to customer demand, competitive market forces,
uncertainties related to the effect of competitive products and pricing,
customer acceptance of the Companys product mix or economic conditions
worldwide could affect the ability of the Company to continue to fund its needs
from business operations.
40
Net cash used for operating activities in the first nine months of 2004 totaled
$1.7 million and included $9.0 million of net other non-cash operating expense
and a $28.9 million net increase in operating assets and liabilities. Other net
other non-cash operating income consisted of asset impairment charges, stock
compensation charges, a gain on the Companys divestiture of its Netherlands
deflection coil business, a gain on the sale of certain assets at the BCC
Phoenix manufacturing facility and minority interest in the earnings of two
European subsidiaries. The net increase in operating assets and liabilities
resulted primarily from increased receivables; inventories; and net current and
deferred income taxes and decreased accounts payable and accrued liabilities
partially offset by a decrease in other net assets and liabilities.
Net cash provided by operating activities in the first nine months of 2003
totaled $59.0 million and included a $29.9 million net decrease in operating
assets and liabilities. This net decrease in operating assets and liabilities
resulted primarily from decreased inventories, receivables and other net
operating assets and liabilities partially offset by decreased accounts payable
and accrued liabilities and increased income taxes receivable.
Capital Expenditures
Capital expenditures during the nine months ended September 30, 2004 and 2003
represented 0.7% and 2.3%, respectively, of total revenues (including the
revenues of discontinued operations) for the same periods. Investment during
both the first nine months of 2004 and 2003 was utilized principally for
maintaining and enhancing existing production capabilities.
During the nine months ended September 30, 2004, there were no material changes
outside the ordinary course of business to the Companys contractual
obligations presented in Item 7,
Managements Discussion and Analysis of
Financial Condition and Results of Operations
, of the Annual Report on Form
10-K for the period ended December 31, 2003.
With regard to the Companys discontinued operations, net cash used by
operating activities during the nine months ended September 30, 2004 was $82.3
million and net cash provided by operating activities during the nine months
ended September 30, 2003 was $4.8 million.
Working Capital
Current assets less cash and cash equivalents increased $185.0 million, or
63.9%, from $289.4 million at December 31, 2003 to $474.4 million at September
30, 2004. Receivables increased $103.4 million during the nine months ended
September 30, 2004 due primarily to the Merger, increased sales late in the
third quarter of 2004 and the impact of currency translation on receivables
denominated in currencies other than the United States dollar. Inventories
increased by $128.9 million during the first nine months of 2004 due primarily
to the addition of the CDT operations, increased production necessary to
support higher sales levels and the impact of currency translation on
inventories denominated in currencies other than the United States dollar.
Current assets of discontinued operations decreased $75.5 million during the
nine months ended September 30, 2004 due primarily to the sale of certain
inventory and equipment in the amount of $82.1 million to Superior in the
second quarter of 2004 partially offset by for the addition of Raydexs
Skelmersdale, United Kingdom operation, Montrose and Admiral to discontinued
operations in the third quarter of 2004.
41
Current liabilities increased $29.9 million, or 16.3%, from $183.1 million at
December 31, 2003 to $213.0 million at September 30, 2004. Accounts payable and
accrued liabilities increased $94.3 million during the nine months ended
September 30, 2004 due primarily to the addition of the CDT operations,
severance and other benefits charges totaling $10.6 million accrued during 2004
for personnel reductions in both the United States and Europe and a planned
manufacturing facility closure in the United States, increased production late
in the third quarter of 2004, higher costs on copper,
Teflon
®
FEP and
commodities derived from petroleum and natural gas and the impact of currency
translation on accounts payable and accrued liabilities denominated in
currencies other than the United States dollar which were partially offset by
severance payments totaling $15.8 million during the first nine months of 2004.
In regard to the severance charges and payments, please refer to Note 11,
Accrued Severance and Other Related Benefits
, in this Quarterly Report on Form
10-Q.
Current maturities of long-term debt decreased $50.9 million during the nine
months ended September 30, 2004, due to the payment of notes payable totaling
$64.0 million in September 2004 partially offset by the reclassification of
notes payable totaling $15.0 million that mature in August 2005 from long-term
debt. Current liabilities of discontinued operations decreased $13.4 million
due primarily to curtailment of operations at the Companys Phoenix, Arizona
manufacturing facility during the third quarter of 2004 partially offset by the
addition of Raydexs Skelmersdale, United Kingdom operation, Montrose and
Admiral to discontinued operations in the third quarter of 2004.
Long-Lived Assets
Long-lived assets increased $404.3 million, or 139.8%, from $289.2 million at
December 31, 2003 to $693.5 million at September 30, 2004.
Property, plant and equipment includes the acquisition cost less accumulated
depreciation of the Companys land and land improvements, buildings and
leasehold improvements and machinery and equipment. Property, plant and
equipment increased $163.5 million during the first nine months of 2004 due
mainly to the Merger partially offset by depreciation and the reclassification
of certain equipment at the Ft. Mill, South Carolina manufacturing facility to
long-lived assets of discontinued operations during the second quarter of 2004.
Goodwill and other intangibles includes goodwill, defined as the unamortized
difference between the aggregate purchase price of acquired businesses taken as
a whole and the fair market value of the identifiable net assets of those
acquired businesses. Goodwill and other intangibles increased by $227.5 million
during the first nine months of 2004 due to the Merger.
Included in other long-lived assets are unamortized prepaid service fees
associated with the Companys borrowing arrangements and long-lived pension
fund prepayments. Other long-lived assets increased $7.6 million during the
first nine months of 2004 due primarily to the Merger and the reclassification
of a long-lived pension fund prepayment associated with the Companys pension
plan in the United States from other long-term liabilities during the second
quarter of 2004.
Long-lived assets of discontinued operations increased $5.7 million during the
first nine months of 2004 due primarily to the reclassification of certain
equipment at the Ft. Mill, South Carolina manufacturing facility from property,
plant and equipment during the second quarter of 2004.and the addition of
Raydexs Skelmersdale, United Kingdom operation, Montrose and Admiral to
discontinued operations during the third quarter of 2004.
42
Capital Structure
The Companys capital structure consists primarily of current maturities of
long-term debt, long-term debt and stockholders equity. The capital structure
increased $498.8 million during the first nine months of 2004 due to a $452.0
million increase in stockholders equity and a $46.8 million increase in debt.
In 1997, the Company completed a private placement of $75.0 million of
unsecured medium-term notes. The notes bear interest at 6.92% and mature in
$15.0 million annual increments in August 2005 through August 2009. In 1999,
the Company completed a private placement of $64.0, $44.0 and $17.0 million in
unsecured debt. The notes bear interest at 7.65%, 7.75%, and 8.06%,
respectively, and mature in September 2004, September 2006, and September 2009,
respectively. The agreements for these notes contain various customary
affirmative and negative covenants and other provisions, including restrictions
on the incurrence of debt, maintenance of maximum leverage ratio and minimum
net worth. The Company was in compliance with these covenants at September 30,
2004. The Company repaid the $64.0 million tranche of the 1999 placement in
September 2004.
At September 30, 2004, the Company had outstanding $110.0 million of unsecured
subordinated debentures. The debentures are convertible into shares of common
stock, at a conversion price of $18.069 per share, upon the occurrence of
certain events. The conversion price is subject to adjustment in certain
circumstances. Holders may surrender their debentures for conversion upon
satisfaction of any of the following conditions: (1) the closing sale price of
the Companys common stock is at least 110% of the conversion price for a
minimum of 20 days in the 30 trading-day period ending on the trading day prior
to surrender; (2) the senior implied rating assigned to the Company by Moodys
Investors Service, Inc. is downgraded to B2 or below and the corporate credit
rating assigned to the Company by Standard & Poors is downgraded to B or
below; (3) the Company has called the debentures for redemption; or (4) upon
the occurrence of certain corporate transactions as specified in the indenture.
As of September 30, 2004, condition (1) had been met, the senior implied rating
was Ba2, and the corporate credit rating was BB-. Interest of 4.0% is payable
semiannually in arrears, on January 15 and July 15. The debentures mature on
July 15, 2023, if not previously redeemed. The Company may redeem some or all
of the debentures on or after July 21, 2008, at a price equal to 100% of the
principal amount of the debentures plus accrued and unpaid interest up to the
redemption date. Holders may require the Company to purchase all or part of
their debentures on July 15, 2008, July 15, 2013, or July 15, 2018, at a price
equal to 100% of the principal amount of the debentures plus accrued and unpaid
interest up to the redemption date, in which case the purchase price may be
paid in cash, shares of the Companys common stock or a combination of cash and
the Companys common stock, at the Companys option.
The Company entered into a credit agreement with a group of six banks on
October 9, 2003 (
Credit Agreement
). The Credit Agreement provides for a
secured, variable-rate and revolving credit facility not to exceed $75.0
million expiring in June 2006. In general, a portion of the Companys assets in
the United States, other than real property, secures any borrowing under the
Credit Agreement. The amount of any such borrowing is subject to a borrowing
base comprised of a portion of the Companys receivables and inventories
located in the United States. A fixed charge coverage ratio covenant becomes
applicable if the Companys excess borrowing availability falls below $25.0
million. There were no outstanding borrowings at September 30, 2004 under the
Credit Agreement. The Company had $29.2 million in borrowing capacity available
at September 30, 2004.
43
At September 30, 2004, the Company had unsecured, uncommitted arrangements with
three banks under which it could borrow up to $13.2 million at prevailing
interest rates. There were no outstanding borrowings under these arrangements
at September 30, 2004.
The Company manages its debt portfolio by using interest rate swap agreements
to achieve an overall desired position of fixed and floating rates. At
September 30, 2004, the Company was not a party to any interest rate swap
agreements. During the quarter ended September 30, 2004, the Company was party
to interest rate swap agreements relating to its 7.60% medium-term notes that
matured on September 1, 2004. These swaps, which matured on September 1, 2004,
converted a notional amount of $64.0 million from a fixed rate to a floating
rate in conjunction with the Companys ongoing debt management strategy. These
arrangements were designated and qualified as fair value hedges of the
associated medium-term notes in accordance with SFAS No. 133,
Accounting for
Derivative Instruments and Hedging Activities
. Net interest differentials
earned from the interest rate swaps of $0.3 pretax (or $0.01 per diluted share)
and $1.3 million pretax (or $0.03 per diluted share) were recorded as
reductions to interest expense for the three- and nine-month periods ended
September 30, 2004. Net interest differentials earned from the interest rate
swaps reduced the Companys average interest rate on long-term debt by 0.51 and
0.79 percentage points for the three- and nine-month periods ended September
30, 2004.
Borrowings have the following scheduled maturities.
Other Commercial Commitments
Stockholders equity increased by $452.0 million, or 164.7%, during the first
nine months of 2004 due primarily to the Merger partially offset by net loss
for the nine months ended September 30, 2004 of $3.4 million and dividends of
$4.9 million.
44
Off-Balance Sheet Arrangements
The Company was not a party to any of the following types of off-balance sheet
arrangements at September 30, 2004:
Critical Accounting Policies
The preparation of financial statements and related disclosures in conformity
with accounting principles generally accepted in the United States requires the
Company to make judgments, assumptions and estimates that affect the amounts
reported in its Consolidated Financial Statements and accompanying notes. The
Company considers the accounting policies described in
Critical Accounting
Policies
within Item 7,
Managements Discussion and Analysis of Financial
Condition and Results of Operations
, of its Annual Report on Form 10-K for the
year ended December 31, 2003 to be its most critical accounting policies. An
accounting policy is deemed to be critical if it requires an accounting
estimate to be made based on assumptions about matters that are highly
uncertain at the time the estimate is made, and if different estimates that
reasonably could have been used, or changes in the accounting estimates that
are reasonably likely to occur periodically, could materially impact the
Consolidated Financial Statements. The Company bases its estimates on
historical experience or various assumptions that are believed to be reasonable
under the circumstances, and the results form the basis for making judgments
about the reported values of assets, liabilities, revenues and expenses. The
Company believes these judgments have been materially accurate in the past and
the basis for these judgments should not change significantly in the future.
The Companys senior management has discussed the development, selection and
disclosure of these estimates with the Audit Committee of the Companys Board
of Directors. Actual results may differ materially from these estimates under
different assumptions or conditions.
45
During the nine months ended September 30, 2004:
Outlook
Based on current orders, management believes that the continuing operations of
Belden CDT will generate revenues in the range of $300.0 to $310.0 million for
the quarter ending December 31, 2004. Management believes that the Companys
operating margin, adjusted to exclude merger-related expenses and charges for
severance, asset impairment and other restructuring actions, will be similar in
the fourth quarter of 2004 with the third quarter of 2004.
Costs for such raw materials
as copper, Teflon
®
FEP and commodities derived
from petroleum and natural gas have increased substantially due to worldwide
demand, temporary supply restrictions and the effect of a weaker United States
dollar in relation to other currencies. Business units of Belden CDT raised
sales prices across most product lines at different times during the year to
offset these increased costs. The Company has expressed an intent to continue
to recapture the cost of raw material increases through its pricing. In regard
primarily to the legacy Belden operations in Europe, Belden CDT was able during
the third quarter (after significant delays) to achieve a portion of its price
increase objectives to offset rising material costs, but because the
competitive environment in that market is characterized by excess capacity and
price competition, the Company is uncertain whether the improved pricing will
be sustained or whether the Company will be forced to lower prices, offer
discounts, or suffer the loss of sales volume in this market.
Management expects that the Companys discontinued operations will generate a
net loss of $1.9 million in the fourth quarter of 2004, net of tax benefit. The
Company expects that the discontinued operations will continue to generate
operating losses in 2005 until they are completely closed and the assets are
disposed. The Company anticipates the liquidation of assets of discontinued
operations will generate cash that will largely offset cash severance payments
that have been recognized.
46
The Company has incurred severance charges having to do with the
discontinuation of certain operations and with other actions intended to reduce
costs. The amount of the charges recognized but not funded as of September 30,
2004 is $20.7 million. Management expects that the portion of the charges that
will be funded in the fourth quarter of 2004 is $4.4 million, which will have a
negative effect on cash flow. Management expects that there may be additional
restructuring charges (severance and asset impairment) in future periods that
will have a negative effect on operating results in the short term and a
negative effect on cash flow.
As of the merger date, the inventory of the legacy CDT operations was adjusted
to fair market value (
FMV
) under the rules of purchase accounting. The effect
of the adjustment was to increase the initial carrying value of the inventory
by $3.7 million. During the third quarter of 2004, sales of the legacy CDT
inventory consumed $2.2 million of this FMV adjustment in cost of goods sold.
The remainder of the initial adjustment, $1.5 million, remained in inventory as
of September 30, 2004, and will become part of cost of goods sold mostly in the
fourth quarter of 2004 with a small amount in future quarters as the rest of
the subject inventory is sold. The effect will be to increase cost of goods
sold and reduce net income in the fourth quarter and future quarters.
In connection with the merger, the Company granted retention and integration
awards to certain employees. These awards consist of cash and restricted stock
and are payable in three installments. The first installment was paid to the
grantees in the third quarter of 2004. The second and third installments will
be paid on the first and second anniversary dates of the merger (July 15, 2005
and 2006) subject to certain conditions with respect to the grantees continued
employment with the Company. The Company plans to accrue the expense for the
second and third installments quarterly, having begun with the third quarter of
2004 and ending with the second quarter of 2006. Management anticipates that
the amount of the expense will be $0.7 million quarterly or $2.8 million
annually. The cash expenditure in July 2005 and 2006 will be approximately $2.2
million in each year.
Because of net-operating-loss carryforwards, the Company anticipates that it
will not make cash payments of United States income taxes during the fourth
quarter of 2004 or during 2005. Cash payments of income taxes will occur for
some local and non-U.S. jurisdictions.
The Company is a party to a sales incentive agreement under which a customer
promised to pay the Company up to $3.0 million in 2004 and $3.0 million in 2005
unless the customer purchased a certain volume of products from the Company in
each of the years. Because the customer has not met and is not expected to meet
the purchase requirements during 2004, the Company expects to recognize other
operating income of $3.0 million during the fourth quarter of 2004 and to
receive cash payment of $3.0 million in the first quarter of 2005.
Management believes depreciation and amortization expense for Belden CDT will
be approximately $9.4 in the fourth quarter of 2004. The Company has estimated
that depreciation and amortization expense in the year 2005 will be
approximately $42.0 million. Capital expenditures for Belden CDT in the fourth
quarter of 2004 should be approximately $5.6 million.
Belden CDT anticipates funding $2.1 million during the fourth quarter of 2004
to its defined benefit pension plans and other postretirement plans. Belden CDT
expects to repay $15.0 million of long-term notes in August 2005 as they become
due. Belden CDT anticipates it will have sufficient funds to satisfy these cash
requirements.
The Company is engaged in an effort to liquidate its excess real estate in the
United States, Canada and Europe. The Company has listed for sale several
buildings with combined net book value of approximately $28.4 million.
Management anticipates that net proceeds from the sale of real estate in the
fourth quarter of 2004 will be approximately $6.8 million if transactions close
as scheduled.
47
Forward-Looking Statements
The statements set forth in this Quarterly Report on Form 10-Q other than
historical facts, including those noted in the Outlook section, are
forward-looking statements made in reliance upon the safe harbor of the Private
Securities Litigation Reform Act of 1995. As such, they are based on current
expectations, estimates, forecasts and projections about the industries in
which Belden CDT operates, general economic conditions, and managements
beliefs and assumptions. These statements are not guarantees of future
performance and involve certain risks, uncertainties and assumptions, which are
difficult to predict. As a result, the actual results of Belden CDT may differ
materially from what is expected or forecasted in such forward-looking
statements. Belden CDT undertakes no obligation to update any forward-looking
statements, whether as a result of new information, future events or otherwise,
and disclaims any obligation to do so.
Actual results for Belden CDT may differ materially from such forward-looking
statements for the following reasons: changing economic conditions in North
America, Europe and Asia (and the impact such conditions may have on sales);
increasing price, product and service competition from local and international
competitors (including new entrants); the creditworthiness of customers; the
continued ability of Belden CDT to introduce, manufacture and deploy
competitive new products and services on a timely, cost-effective basis; the
ability of Belden CDT to successfully integrate its operations and to realize
expected synergies and cost savings; the ability of Belden CDT to retain key
personnel; the ability of Belden CDT to transfer production to new or existing
facilities; developments in technology; the threat of displacement from
competing technologies (including wireless and fiber optic technologies);
demand and acceptance of products by customers and end users; changes in raw
material costs (specifically, costs for copper, Teflon
®
FEP and commodities
derived from petroleum and natural gas) and availability; changes in
transportation costs; changes in foreign currency exchange rates; the pricing
of products (including the ability of Belden CDT to adjust product pricing in a
timely manner in response to raw material and transportation cost volatility);
the success of implementing cost-saving programs and initiatives; reliance on
large customers (particularly, the reliance of the Electronic segment on sales
to certain large distributors); the threat of war and terrorist activities;
general industry and market conditions and growth rates; and other factors
noted in Beldens Annual Report on Form 10-K for the fiscal year ended December
31, 2003, Beldens report on form 8-K filed with the SEC on May 25, 2004, CDTs
Annual Report on Form 10-K for the fiscal year ended July 31, 2003, CDTs
Registration Statement on Form S-4 filed on March 24, 2004 and other Securities
Exchange Act of 1934 filings.
ITEM 3: QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK
Market risks relating to the Companys operations result primarily from
interest rates, foreign exchange rates, certain commodity prices and
concentrations of credit. The Company manages its exposure to these and other
market risks through regular operating and financing activities, and on a
limited basis, through the use of derivative financial instruments. The Company
intends to use such derivative financial instruments as risk management tools
and not for speculative investment purposes. Item 7A,
Quantitative and
Qualitative Disclosures About Market Risks
, of the Companys Annual Report on
Form 10-K for the year ended December 31, 2003 and the Companys Current Report
on Form 8-K filed on May 26, 2004 provide more information as to the types of
practices and instruments used to manage risk. There was no material change in
the Companys exposure to market risks since December 31, 2003.
48
ITEM 4: DISCLOSURE CONTROLS AND PROCEDURES
As of September 30, 2004 (the end of the period covered by this report), the
Company conducted an evaluation, under the supervision and with the
participation of the principal executive officer and principal financial
officer, of the Companys disclosure controls and procedures. Based upon that
evaluation, the principal executive officer and the principal financial officer
concluded that the disclosure controls and procedures were effective as of the
end of the period covered by this report to provide reasonable assurance that
the information required to be disclosed in this report is recorded, processed,
summarized and reported within the time periods specified in the Commissions
rules and forms. As discussed below, there have been changes in the Companys
internal control over financial reporting during the Companys third fiscal
quarter that have materially affected, or are reasonable likely to materially
affect, the Companys internal control over financial reporting.
As background, effective July 15, 2004, Belden and the Company completed a
merger transaction, which resulted in the Company changing its name from CDT to
Belden CDT Inc. and Belden becoming a wholly owned subsidiary of the Company.
Although the Company (formerly CDT) was deemed to be the legal acquirer and,
therefore, the registrant for purposes of Exchange Act reporting going forward,
Belden was considered the acquirer for accounting purposes. CDTs independent
auditor was Deloitte & Touche LLP (
DT
) while Beldens independent auditor was
Ernst & Young LLP (
EY
). At a meeting held on August 31, 2004, the audit
committee of the Companys Board of Directors approved the engagement of EY as
its independent auditor for the fiscal year ending December 31, 2004.
DT had previously issued a letter dated October 27, 2003, to CDTs Audit
Committee, reporting matters that came to DTs attention in connection with its
review of CDTs financial statements for the year ended July 31, 2003. DT noted
a Reportable Condition as defined under the standards established by the
American Institute of Certified Public Accountants, expressing its belief that
CDT needed to (i) expand financial accounting resources at the Corporate level,
(ii) develop and communicate accounting policies and procedures on a
Corporate-wide basis and (iii) enhance oversight of the accounting and
financial reporting process.
Since the time of the merger transaction with Belden, the Company has conformed
Beldens and CDTs internal control over financial reporting resulting in
changes that have improved both Beldens and CDTs previous internal controls
over financial reporting. These changes are: (i) CDTs corporate functions for
accounting, tax, treasury and financial reporting have been merged into and are
conducted or directed by the larger former Belden corporate staff, (ii)
Beldens previous internal control policies have been revised and amended to
develop formal, written internal control policies applicable to all operating
units which have been communicated and applied Company-wide and (iii) an
organizational structure that provides a divisional-management level review of
individual reporting, unit level accounting, reporting processes and financial
results has been implemented Company-wide. As a result of this revised
structure, the Company has reduced the number of its reporting units and has
centralized routine processes in its larger business units. These measures, in
turn, have improved the Companys systems through greater segregation of duties
and controls over financial reporting.
49
The Company believes the above collective changes have improved its internal
control over financial reporting and substantially address the concerns
expressed in DTs letter of October 27, 2003 to CDTs Audit Committee. Section
404 of the Sarbanes-Oxley Act of 2002 requires the Company, commencing with its
2004 Annual Report, to provide managements annual report on its assessment of
the effectiveness of its internal control over financial reporting and, in
connection with such assessment, an attestation report of its registered public
accountant, EY. The Company is in the process of conducting this assessment and
based on the result of procedures performed to date has identified significant
internal control deficiencies relating to the valuation of inventory at certain
former CDT operating locations. The Company has also identified a significant
deficiency in its temporary consolidation procedures relating to legacy CDT
operations implemented for the integration period following the Merger. The
Company has implemented additional internal control activities that are
designed to mitigate these deficiencies and plans to take additional actions in
connection with changes resulting from the merger that the Company believes are
appropriate. However, at this time, due to the ongoing evaluation and testing
of the Companys internal control over financial reporting, there can be no
assurance that the Company will not identify additional significant
deficiencies or a material weakness.
Due to the complexity of the CDT operations, the implementation of Beldens
internal controls over financial reporting throughout such operations is a
lengthy process. Because the merger of Belden and CDT occurred in the latter
half of the year it would be difficult for the Company to complete its
assessment of internal controls over financial reporting at the CDT operations
as of December 31, 2004 as required by Section 404 of the Sarbanes-Oxley Act.
EY has also advised that it may not be able to complete its attestation
procedures with respect to the CDT operations in sufficient time to allow the
timely filing of the Companys 2004 Annual Report. Due to these issues and in
order to permit the timely completion of the Company assessment and EY
attestation under Section 404, the Company will likely elect to exclude the CDT
operations from the scope of the Companys 2004 annual assessment as allowed
under the guidance provided by the SEC in Managements Report on Internal
Control Over Financial Reporting and Certification of Disclosure in Exchange
Act Periodic Reports, Frequently Asked Questions issued October 6, 2004.
50
PART II OTHER INFORMATION
ITEM 1. LEGAL PROCEEDINGS
The Company is a party to various legal proceedings and administrative actions
that are incidental to its operations. These proceedings include personal
injury cases (about 219 of which the Company was aware at October 28, 2004) in
which the Company is one of many defendants, none of which is scheduled to go
to trial in 2004 and twelve of which are scheduled for trial during 2005.
Electricians have filed a majority of these cases, primarily in New Jersey and
Pennsylvania. Plaintiffs in these cases generally seek compensatory, special
and punitive damages. As of October 28, 2004, in 33 of these cases, plaintiffs
generally allege only damages in excess of some dollar amount (i.e., in one
case, not less than $15 thousand and in the other cases, not less than $50
thousand). In 182 of these cases, plaintiffs generally do not allege a specific
damage demand. As to the other 4 cases, the plaintiffs generally allege
monetary damages for a specified amount, the largest amount claimed being $10
million compensatory and $10 million punitive damages (which has been asserted
in two of these cases). In none of these cases do plaintiffs allege claims for
specific dollar amounts as to any defendant. Based on the Companys experience
in such litigation, the amounts pleaded in the complaints are not typically
meaningful as an indicator of the Companys ultimate liability.
Typically in these cases, the claimant alleges injury from alleged exposure to
heat-resistant asbestos fiber, which was usually encapsulated or embedded and
lacquer-coated or covered by another material. Exposure to the fiber would have
occurred, if at all, while stripping (cutting) the wire or cable that had such
fiber. It is alleged by claimants that exposure to the fiber may result in
respiratory illness. Generally, stripping was done to repair or to attach a
connector to the wire or cable. Alleged predecessors of the Company had a small
number of products that contained the fiber, but ceased production of such
products more than fifteen years ago.
Through October 28, 2004, the Company had been dismissed in approximately 57
similar cases without any going to trial or any payment to the claimant. Some
of these cases were dismissed without prejudice primarily because the claimants
could not show any injury, or could not show that injury was caused from
exposure to products of alleged predecessors of the Company. Only one case has
involved a settlement, with the Company paying $1,275.00 and two of its
insurers paying the remainder. The Company has insurance that it believes
should cover a significant portion of any defense, settlement or judgment costs
borne by the Company in these types of cases and, under an agreement with the
Company, two insurance carriers are paying 83% of the defense costs in these
types of cases and defense costs do not erode their policy limits.
The Company vigorously defends these cases. As a separate matter, liability for
any such injury generally should be allocated among all defendants in such
cases in accordance with applicable law. From 1996 through October 28, 2004,
the total amount of litigation costs paid by the Company for all cases of this
nature was approximately $194 thousand. In the opinion of the Companys
management, the proceedings and actions in which the Company is involved should
not, individually or in the aggregate, have a material adverse effect on the
Companys results of operations or financial condition.
51
ITEM 5. OTHER INFORMATION
Our independent auditor, EY, recently notified the Securities and Exchange
Commission (
SEC
), the Public Company Accounting Oversight Board and the Audit
Committee of our Board of Directors that certain non-audit services EY
performed in China for a large number of public companies, including Belden
CDT, were thought to have raised questions regarding EYs independence in its
performance of audit services.
With respect to Belden CDT, from 2001 through June 2004, affiliates of EY
performed tax calculation, preparation and remittance services for subsidiaries
of the Company and a small number (fewer than a dozen) of employees located in
China. The payment of those taxes involved handling of Company related funds,
which is not permitted under SEC auditor independence rules. These payment
services by affiliates of EY have been discontinued. The amount of taxes paid
by EY were less than $65 thousand each year and fees paid to EY in connection
with these services were less than $15 thousand each year. The Company believes
the tax and fee amounts are de minimis.
The Audit Committee and EY have considered the impact that the holding and
paying of these funds may have had on EYs independence with respect to the
Company and have concluded that there has been no impairment of EYs
independence. In making this determination, the Audit Committee considered the
de minimis amount of funds involved, the administrative nature of the actions,
that the EY affiliates involved performed no audit services related to the
Company and that the subsidiaries involved were immaterial to the consolidated
financial statements of the Company.
ITEM 6.EXHIBITS
52
53
54
55
56
57
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
58
CDT effected a one-for-two reverse split of its common stock
immediately prior to Merger consummation on July 15, 2004;
Belden cancelled approximately 0.3 million shares of its common stock
held in treasury on July 15, 2004; and
The Company granted retention and integration awards to certain of its
executive officers and other key employees totaling $5.3 million to be
paid in cash and restricted stock distributed in three installments
over two years.
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Three Months Ended
Nine Months Ended
September 30,
September 30,
2004
2003
2004
2003
(In thousands, except % data)
$
171,972
$
106,663
$
408,338
$
317,353
4,226
6,797
24,906
22,940
607
7,431
19,667
20,162
0.4
%
7.0
%
4.8
%
6.4
%
Three Months Ended
Nine Months Ended
September 30,
September 30,
2004
2003
2004
2003
(In thousands, except % data)
$
109,482
$
48,634
$
227,526
$
145,061
497
646
1,289
5,991
1,781
11,814
5,790
5.5
%
3.7
%
5.2
%
4.0
%
Three Months Ended September 30, 2004 Compared With Three
Months Ended September 30, 2003 Continuing Operations Consolidated Revenues
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Improvement in general economic conditions within North America and Asia;
Increased unit purchasing of products with networking/communications applications by a
large telecommunications customer in the United Kingdom;
Increased project activity requiring products with industrial applications; and
Increased distributor restocking activity in Asia for products with
networking/communications applications and in North America for products with
industrial applications.
The Companys decision to cease, during the second quarter of 2004, the production of
certain products with industrial applications in Europe and the production of certain
networking/communications applications in Australia; and
Reduced project activity, increased competition from other importers, and pricing
pressures in Asia and Australia on certain products with networking/communications
applications.
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Percent
Increase/
(Decrease)
2004 Compared
Three Months Ended September 30,
2004
2003
With 2003
$
53,418
$
31,123
71.6
%
19.0
%
20.0
%
$
(2,980
)
$
6,676
(144.6
)%
(1.1
)%
4.3
%
$
(6,742
)
$
3,545
(290.2
)%
(2.4
)%
2.3
%
$
(3,073
)
$
3,584
(185.7
)%
(1.1
)%
2.3
%
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Improvement in general economic conditions within North America and Asia;
Increased unit purchasing of products with networking/communications applications by a
large telecommunications customer in the United Kingdom;
Increased project activity requiring products with industrial,
networking/communications and video/sound/security applications; and
Increased distributor restocking activity in Asia for products with
networking/communications applications and in North America for products with
industrial applications.
The Companys decision to cease during the second quarter of 2003 the production of
certain products with industrial applications in Europe and production of certain
products with networking/communications applications in Australia; and
Reduced project activity, increased competition from other importers, and pricing
pressures in Australia and Asia on certain products with networking/communications
applications;
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Percent
Increase/
(Decrease)
2004 Compared
Nine Months Ended September 30,
2004
2003
With 2003
$
118,894
$
88,148
34.9
%
18.7
%
19.1
%
$
13,038
$
16,655
(21.7
)%
2.1
%
3.6
%
$
4,675
$
7,035
(33.5
)%
0.7
%
1.5
%
$
5,204
$
5,335
(2.5
)%
0.8
%
1.2
%
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Nine Months Ended September 30,
2004
2003
$
3,699
$
11,889
217
332
1,373
1,773
$
5,289
$
13,994
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September 30, 2004
December 31, 2003
Amount
Percent
Amount
Percent
$
15,005
1.5
%
$
65,951
13.9
%
233,755
24.0
%
136,000
28.5
%
248,760
25.5
%
201,951
42.4
%
726,397
74.5
%
274,410
57.6
%
$
975,157
100.0
%
$
476,361
100.0
%
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Payments Due by Period
1-2
3-4
After
September 30, 2004
Total
Less than 1 year
years
years
4 years
$
248,760
$
15,005
$
76,755
$
157,000
$
Amount of Commitment Expiration Per Period
1-3
4-5
After
September 30, 2004
Total
Less than 1 year
years
years
5 years
$
29,200
$
$
29,200
$
$
8,444
8,444
4,095
4,095
3,949
3,949
$
45,688
$
16,488
$
29,200
$
$
(1)
The Company entered into a credit agreement with a group of six banks on
October 9, 2003 (Credit Agreement). The Credit Agreement provides for a
secured, variable-rate and revolving credit facility not to exceed $75.0
million expiring in June 2006. The amount of any borrowing under the
Credit Agreement is subject to a borrowing base comprised of a portion of
the Companys receivables and inventories located in the United States.
The Companys borrowing capacity under the Credit Agreement as of
September 30, 2004 was $29.2 million.
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Guarantee contracts or indemnification agreements that contingently
require the Company to make payments to the guaranteed or indemnified
party based on changes in an underlying asset, liability or equity
security of the guaranteed or indemnified party;
Guarantee contracts that contingently require the Company to make
payments to the guaranteed party based on another entitys failure to
perform under an obligating agreement;
Indirect guarantees under agreements that contingently require the
Company to transfer funds to the guaranteed party upon the occurrence
of specified events under conditions whereby the funds become legally
available to creditors of the guaranteed party and those creditors may
enforce the guaranteed partys claims against the Company under the
agreement;
Retained or contingent interests in assets transferred to an
unconsolidated entity or similar arrangements that serve as credit,
liquidity or market risk support to that entity for such assets;
Derivative instruments that are indexed to the Companys common or
preferred stock and classified as stockholders equity under
accounting principles generally accepted in the United States; or
Material variable interests held by the Company in unconsolidated
entities that provide financing, liquidity, market risk or credit risk
support to the Company, or engage in leasing, hedging or research and
development services with the Company.
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The Company did not change any of its existing critical accounting
policies but has adopted a new critical accounting policy regarding
purchase accounting for the Merger:
Fair value of assets acquired and liabilities assumed in
the Merger
The Merger was accounted for using the purchase method of accounting. The
purchase method requires management to make significant estimates. First,
management must estimate the cost of the acquired entity based on the fair
value of the consideration paid or the fair value of the net assets acquired,
whichever is more clearly evident. This cost must then be allocated to the
assets acquired and liabilities assumed based on their estimated fair values
at the Merger consummation date. In addition, management must identify and
estimate the fair values of intangible assets that should be recognized as
assets apart from goodwill. Management utilized third party appraisals to
assist in estimating the fair value of tangible property, plant and equipment
and intangible assets acquired;
No existing accounting policies became critical accounting policies
due to an increase in the materiality of associated transactions or
changes in the circumstances to which associated judgments and
estimates relate; and
There were no significant changes in the manner in which critical
accounting policies were applied or in which related judgments and
estimates were developed.
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Amendment No. 1 to the Agreement and Plan of Merger, dated
as of May 25, 2004, by and among Cable Design Technologies
Corporation, BC Merger Corp. and Belden Inc. (Incorporated
by reference to Exhibit 2.2 to Cable Design Technologies
Corporations Registration Statement on Form S-4/A (File
no. 333-113875))
Amendment to Rights Agreement dated as of December 11,
1996, by and between Belden CDT Inc. and Equiserve Trust
Company, N.A., successor to The First National Bank of
Boston, as rights agent
Retention Award Letter Agreement dated June 28, 2004
between Belden Inc. (assumed by Belden CDT Inc.) and C.
Baker Cunningham
Retention Award Letter Agreement dated June 28, 2004
between Belden Inc. (assumed by Belden CDT Inc.) and
Richard K. Reece
Retention Award Letter Agreement dated June 28, 2004
between Belden Inc. (assumed by Belden CDT Inc.) and Kevin
L. Bloomfield
Retention Award Letter Agreement dated June 28, 2004
between Belden Inc. (assumed by Belden CDT Inc.) and D.
Larrie Rose
Retention Award Letter Agreement dated June 28, 2004
between Belden Inc. (assumed by Belden CDT Inc.) and Robert
W. Matz
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Retention Award Letter Agreement dated June 28, 2004
between Belden Inc. (assumed by Belden CDT Inc.) and
Stephen H. Johnson
Retention Award Letter Agreement dated June 28, 2004
between Belden Inc. (assumed by Belden CDT Inc.) and Cathy
O. Staples
Retention Award Letter Agreement dated July 8, 2004 between
Cable Design Technologies Corporation (now Belden CDT Inc.)
and Robert Canny
Retention Award Letter Agreement dated July 8, 2004 between
Cable Design Technologies Corporation (now Belden CDT Inc.)
and David R. Harden
Retention Award Letter Agreement dated July 8, 2004 between
Cable Design Technologies Corporation (now Belden CDT Inc.)
and Peter Sheehan
Retention Agreement dated as of May 14, 2004 among Fred C.
Kuznik, Cable Design Technologies Corporation (now Belden
CDT Inc.) and Cable Design Technologies Inc. (Incorporated
by reference to Exhibit 10.3 to Cable Design Technologies
Corporations Registration Statement on Form S-4/A (File
no. 333-113875))
Form of Retention Agreement among George Graeber, Cable
Design Technologies Corporation (now Belden CDT Inc.) and
Cable Design Technologies Inc. (Incorporated by reference
to Exhibit 10.4 to Cable Design Technologies Corporations
Registration Statement on Form S-4/A (File no. 333-113875))
First Amendment to Change of Control Employment Agreement
dated as of June 28, 2004 between Belden Inc. (assumed by
Belden CDT Inc.) and C. Baker Cunningham
First Amendment to Change of Control Employment Agreement
dated as of June 28, 2004 between Belden Inc. (assumed by
Belden CDT Inc.) and Richard K. Reece
First Amendment to Change of Control Employment Agreement
dated as of June 28, 2004 between Belden Inc. (assumed by
Belden CDT Inc.) and Kevin L. Bloomfield
First Amendment to Change of Control Employment Agreement
dated as of June 28, 2004 between Belden Inc. (assumed by
Belden CDT Inc.) and D. Larrie Rose
First Amendment to Change of Control Employment Agreement
dated as of June 28, 2004 between Belden Inc. (assumed by
Belden CDT Inc.) and Robert W. Matz
First Amendment to Change of Control Employment Agreement
dated as of June 28, 2004 between Belden Inc. (assumed by
Belden CDT Inc.) and Stephen H. Johnson
First Amendment to Change of Control Employment Agreement
dated as of June 28, 2004 between Belden Inc. (assumed by
Belden CDT Inc.) and Cathy O. Staples
Form of Restricted Stock Grant under the 2001 Cable Design
Technologies Corporation Long-Term Incentive Plan to each
of Bryan C. Cressey, Lance C. Balk, Glenn Kalnasy, and
Michael F.O. Harris in the amount of 2,000 shares each.
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First Amendment to Indemnification Agreement dated as of
July 14, 2004 between Belden Inc. (assumed by Belden CDT
Inc.) and C. Baker Cunningham
First Amendment to Indemnification Agreement dated as of
July 14, 2004 between Belden Inc. (assumed by Belden CDT
Inc.) and Richard K. Reece
First Amendment to Indemnification Agreement dated as of
July 14, 2004 between Belden Inc. (assumed by Belden CDT
Inc.) and Kevin L. Bloomfield
First Amendment to Indemnification Agreement dated as of
July 14, 2004 between Belden Inc. (assumed by Belden CDT
Inc.) and D. Larrie Rose
First Amendment to Indemnification Agreement dated as of
July 14, 2004 between Belden Inc. (assumed by Belden CDT
Inc.) and Robert W. Matz
First Amendment to Indemnification Agreement dated as of
July 14, 2004 between Belden Inc. (assumed by Belden CDT
Inc.) and Stephen H. Johnson
First Amendment to Indemnification Agreement dated as of
July 14, 2004 between Belden Inc. (assumed by Belden CDT
Inc.) and Cathy O. Staples
First Amendment to Indemnification Agreement dated as of
July 14, 2004 between Belden Inc. (assumed by Belden CDT
Inc.) and Christopher I. Byrnes
First Amendment to Indemnification Agreement dated as of
July 14, 2004 between Belden Inc. (assumed by Belden CDT
Inc.) and John M. Monter
First Amendment to Indemnification Agreement dated as of
July 14, 2004 between Belden Inc. (assumed by Belden CDT
Inc.) and Lorne D. Bain
First Amendment to Indemnification Agreement dated as of
July 14, 2004 between Belden Inc. (assumed by Belden CDT
Inc.) and Bernard G. Rethore
Indemnification Agreement dated as of September 1, 2004
between Belden CDT Inc. and C. Baker Cunningham
Indemnification Agreement dated as of September 1, 2004
between Belden CDT Inc. and Richard K. Reece
Indemnification Agreement dated as of September 1, 2004
between Belden CDT Inc. and Kevin L. Bloomfield
Indemnification Agreement dated as of September 1, 2004
between Belden CDT Inc. and D. Larrie Rose
Indemnification Agreement dated as of September 1, 2004
between Belden CDT Inc. and Robert W. Matz
Indemnification Agreement dated as of September 1, 2004
between Belden CDT Inc. and Stephen H. Johnson
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Indemnification Agreement dated as of September 1, 2004
between Belden CDT Inc. and Cathy O. Staples
Indemnification Agreement dated as of September 1, 2004
between Belden CDT Inc. and Robert Canny
Indemnification Agreement dated as of September 1, 2004
between Belden CDT Inc. and Peter Sheehan
Indemnification Agreement dated as of September 1, 2004
between Belden CDT Inc. and Christopher I. Byrnes
Indemnification Agreement dated as of September 1, 2004
between Belden CDT Inc. and John M. Monter
Indemnification Agreement dated as of September 1, 2004
between Belden CDT Inc. and Lorne D. Bain
Indemnification Agreement dated as of September 1, 2004
between Belden CDT Inc. and Bernard G. Rethore
Indemnification Agreement dated as of September 1, 2004
between Belden CDT Inc. and Bryan C. Cressey
Indemnification Agreement dated as of September 1, 2004
between Belden CDT Inc. and Ferdinand C. Kuznik
Indemnification Agreement dated as of September 1, 2004
between Belden CDT Inc. and Lance C. Balk
Indemnification Agreement dated as of September 1, 2004
between Belden CDT Inc. and Michael F.O. Harris
Indemnification Agreement dated as of September 1, 2004
between Belden CDT Inc. and Glenn Kalnasy
Third Amendment to Belden Wire & Cable Company Supplemental
Excess Defined Benefit Plan
Third Amendment to Belden Wire & Cable Company Supplemental
Excess Defined Contribution Plan
Trust Agreement dated as of January 1, 2001 establishing
the Trust by and between Belden Wire & Cable Company (for
the Supplemental Excess Defined Benefit Plan) and CG Trust
Company (now Prudential Bank & Trust, F.S.B.)
First Amendment to the Trust Agreement establishing the
Trust by and between Belden Wire & Cable Company (for the
Supplemental Excess Defined Benefit Plan) and CG Trust
Company (now Prudential Bank & Trust, F.S.B.) dated as of
July 14, 2004
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Trust Agreement dated as of January 1, 2001 establishing
the Trust by and between Belden Wire & Cable Company (for
the Supplemental Excess Defined Contribution Plan) and CG
Trust Company (now Prudential Bank & Trust, F.S.B.)
First Amendment to the Trust Agreement establishing the
Trust by and between Belden Wire & Cable Company (for the
Supplemental Excess Defined Contribution Plan) and CG Trust
Company (now Prudential Bank & Trust, F.S.B.) dated as of
July 14, 2004
Fourth Amendment to the Belden Wire & Cable Company
Retirement Savings Plan (Incorporated by reference to
Exhibit 10.8 to Belden CDT Inc.s Registration Statement on
Form S-8 filed in connection with the Belden Wire & Cable
Company Retirement Savings Plan, the Belden Inc. 2003
Long-Term Incentive Plan and the Belden Inc. Long-Term
Incentive Plan (File no. 333-117906))
Amendment to Belden Inc. Long-Term Incentive Plan
(Incorporated by reference to Exhibit 10.11 to Belden CDT
Inc.s Registration Statement on Form S-8 filed in
connection with the Belden Wire & Cable Company Retirement
Savings Plan, the Belden Inc. 2003 Long-Term Incentive Plan
and the Belden Inc. Long-Term Incentive Plan (File no.
333-117906))
Amendment to Belden Inc. 2003 Long-Term Incentive Plan
(Incorporated by reference to Exhibit 10.3 to Belden CDT
Inc.s Registration Statement on Form S-8 filed in
connection with the Belden Wire & Cable Company Retirement
Savings Plan, the Belden Inc. 2003 Long-Term Incentive Plan
and the Belden Inc. Long-Term Incentive Plan (File no.
333-117906))
Amendment to Belden Inc. 2003 Employee Stock Purchase Plan
Amendment to Belden U.K. Employee Share Ownership Plan
Amendments to Amended and Restated 1988 Employee Stock
Purchase and Option Plan (Intercole Holding Corporation),
Long Term Performance Incentive Plan (1993), Supplemental
Long-Term Performance Incentive Plan (1995), Non-Employee
Director Plan (1995), Management Stock Award Plan (1998),
1998 Employee Stock Purchase Plan, 1999 Long-Term
Performance Incentive Plan and 2001 Long-Term Performance
Incentive Plan
First Amendment to Credit and Security Agreement dated as
of May 10, 2004, among Belden Inc., Belden Technologies,
Inc., Belden Communications Company, and Belden Wire &
Cable Company, as Borrowers, the Lenders listed therein,
and Wachovia Bank, National Association, as Agent
Consent Under and Second Amendment to Credit and Security
Agreement dated as of May 26, 2004, among Belden Inc.,
Belden Technologies, Inc., Belden Communications Company,
and Belden Wire & Cable Company, as Borrowers, the Lenders
listed therein, and Wachovia Bank, National Association, as
Agent
Certificate of the Chief Executive Officer pursuant to §
302 of the Sarbanes-Oxley Act of 2002.
Certificate of the Chief Financial Officer pursuant to §
302 of the Sarbanes-Oxley Act of 2002.
Table of Contents
Certificate of the Chief Executive Officer pursuant to 18
U.S.C. § 1350, as adopted pursuant to § 906 of the
Sarbanes-Oxley Act of 2002.
Certificate of the Chief Financial Officer pursuant to 18
U.S.C. § 1350, as adopted pursuant to § 906 of the
Sarbanes-Oxley Act of 2002.
*
Filed herewith
Table of Contents
BELDEN CDT INC.
By:
/s/ C. Baker Cunningham
C. Baker Cunningham
President and Chief Executive Officer
By:
/s/ Richard K. Reece
Richard K. Reece
Vice President, Finance
and Chief Financial Officer
EXHIBIT 4.1
AMENDMENT TO RIGHTS AGREEMENT
Reference is made to the Rights Agreement, dated as of December 11, 1996 (the "Rights Agreement"), between Cable Design Technologies Corporation (now Belden CDT Inc.) (the "Company") and Equiserve Trust Company, N.A., successor to The First National Bank of Boston, as rights agent. Reference is also made to the Agreement and Plan of Merger by and among Cable Design Technologies Corporation, BC Merger Corp. and Belden Inc. dated as of February 4, 2004, as amended (the "Merger Agreement"). Pursuant to the Merger Agreement, the Company effected a one-for-two reverse stock split of the common stock, par value $0.01 per share, of the Company ("Old Common Stock"), whereupon each two shares of Old Common Stock existing immediately prior to the effective time of the reverse stock split (the "Reverse Split Effective Time") were automatically reclassified into one share of common stock, par value $0.01 per share, of the Company (the "New Common Stock").
The Rights Agreement is amended to expressly provide and clarify that each two Rights (as defined in the Rights Agreement) existing immediately prior to the Reverse Split Effective Time are automatically reclassified into one Right such that, for each two rights attached to two separate shares of Old Common Stock, such Rights are reclassified into one Right attached to the share of New Common Stock.
EXHIBIT 10.1
PERSONAL & CONFIDENTIAL
June 28, 2004
Mr. C. Baker Cunningham
6424 Cecil Avenue
St. Louis, MO 63105
Dear Baker:
As you know, on February 4, 2004, Belden Inc. (the "Company"), BC Merger Corp. (the "Subsidiary") and Cable Design Technologies Corporation ("CDT") entered into an Agreement and Plan of Merger, as amended, (the "Merger Agreement") pursuant to which, among other things, the Subsidiary will be merged with and into the Company (the "Merger"). The Company believes that it is crucial that we take steps to retain key employees like you whose role is essential to our ongoing business efforts and to the successful completion of the Merger. This Agreement is intended to provide you with an incentive to continue your employment through the date on which the Merger is completed (the "Closing Date") and an additional transition period of two years thereafter (the "Retention Period"). Accordingly, as a means of assuring itself of the continued availability of your services during this critical time, the Company desires to enter into this Agreement with you.
1. RETENTION AND INTEGRATION AWARD. If the Merger is completed pursuant to the Merger Agreement, then, subject to the terms of this Agreement, you shall receive a retention payment (a "Retention and Integration Award") equal to 140% of your base annual salary as in effect on February 4, 2004 (subject to all applicable withholding taxes). 50% of the value of the Retention and Integration Award will be in the form of a cash award (the "Cash Award") and the remaining 50% will be in the form of shares of CDT restricted common stock (the "Restricted Stock Award") (which value shall be based on the closing price of CDT, common stock on the Closing Date, as adjusted by the proposed reverse stock split of the common stock of CDT, if appropriate).
(a) Cash Award. Subject to Section 2 and provided that you are employed by the Company or one of its affiliates on each applicable payment date set forth below, the Company shall pay you the Cash Award at the following times: (i) one-third (1/3) of the Cash Award on the Closing Date, (ii) one-third (1/3) of the Cash Award on the first anniversary of the Closing Date and (iii) the remaining one-third (1/3) of the Cash Award on the second anniversary of the Closing Date.
(b) Restricted Stock Award. Subject to Section 2 and provided that you are employed by the Company or one of its affiliates on each applicable vesting date set forth below, your Restricted Stock Award shall vest at the following times:
June 28, 2004
(i) one-third (1/3) of the Restricted Stock Award on the Closing Date,
(ii) one-third (1/3) of the Restricted Stock Award on the first
anniversary of the Closing Date and (iii) the remaining one-third (1/3)
of the Restricted Stock Award on the second anniversary of the Closing
Date.
Except as limited by this Agreement, you will have all rights associated with the restricted stock, whether vested or unvested, unless and until such shares are forfeited in accordance with the terms of this Agreement, including the right to vote, or to direct the voting of, such shares and to receive any dividends on such shares; provided that prior to vesting of the restricted stock (i) no certificates for such restricted stock will be issued to you and (ii) no such restricted stock will be transferable by you.
2. CIRCUMSTANCES WHEN RETENTION AND INTEGRATION AWARD WILL NOT BE PAID OR VEST. Notwithstanding anything in this Agreement to the contrary if (i) you terminate your employment with the Company and its affiliates for any reason prior to the end of the Retention Period (including death or for "good reason" under your change of control agreement), (ii) the Company and its affiliates terminate your employment for any reason prior to the end of the Retention Period or (iii) the Merger does not occur, then the Company shall not be obligated to pay to you any unpaid Cash Award and any unvested portion of the Restricted Stock Award shall be forfeited and cancelled. In the event that a portion of the Restricted Stock is forfeited, you grant to each officer of the Company (acting solely) the power of attorney to take such actions on your behalf to cause such portion of the Restricted Stock Award to be cancelled.
3. TREATMENT OF EXISTING EQUITY AWARDS. In consideration of the Company entering into this Agreement, you agree that notwithstanding anything in the Belden Inc. Long-Term Incentive Plan, the Belden Inc. 2003 Long-Term Incentive Plan, any other Company plan, the change of control agreement dated July 31, 2001 as amended, (the "Change of Control Agreement"), or any agreement entered into thereunder (collectively, the "Compensation Plans"), neither the Merger nor any of the other transactions contemplated by the Merger Agreement shall constitute a "change of control" for purposes of any restricted stock awards ("Other Restricted Stock Awards") held by you under the Compensation Plans and no such restricted stock shall vest as a result thereof. For clarity, the Other Restricted Stock Awards will continue to vest in accordance with the terms of the Compensation Plans and your restricted award agreements. Notwithstanding the preceding sentences, if your employment is terminated following the Merger by the Company and its affiliates without Cause or by you for Good Reason (as such terms are defined in your Change of Control Agreement), immediately prior to the effective time of such termination (i) any unvested shares of restricted stock issued to you (other than any unvested portion of the Restricted Stock Award) shall vest and the restrictions thereunder shall terminate or lapse so that such shares of stock shall be freely transferable, subject to applicable securities laws and (ii) each then unvested stock option granted to you and then outstanding shall become exercisable and all stock options then held by you may be exercised by you (subject to the terms of such options, other than vesting) for twelve months following the date of such termination of employment. You agree to take such actions as the Company may request in order to effectuate the foregoing.
June 28, 2004
4. PAYMENT TAXABLE/NOT BENEFIT BEARING. The Company shall be entitled to withhold from any payment made pursuant to this Agreement all taxes and other amounts required to be withheld under applicable law and, subject to Section 8, you shall pay to the Company or its designee, upon its demand such amount as may be required for the purpose of satisfying the Company's obligation to withhold federal, state, local or foreign income, employment or other taxes incurred by reason of the vesting of the Restricted Stock or your filing of a Section 83(b) election (which election shall be in your sole discretion). Amounts payable under this Agreement and the value of any Restricted Stock Award shall not be treated as compensation for purposes of computing or determining any benefit under any pension, savings, severance, bonus/incentive, insurance, or other employee compensation or benefit plan of the Company or any of its subsidiaries.
5. NO RIGHT TO CONTINUED EMPLOYMENT/NO LIMIT ON COMPANY DISCRETION. Nothing in this Agreement is intended to limit the Company's discretion to take any action with regard to the Merger that the Company may consider appropriate, including, without limitation, postponing the Closing Date or terminating the Merger Agreement. This Agreement does not entitle you to be retained in the employ of the Company for any minimum or prescribed period of time and does not otherwise modify the status of your employment.
6. GOVERNING LAW. This Agreement shall be interpreted and enforced in accordance with the laws of the State of Delaware, disregarding its choice of law rules.
7. ACKNOWLEDGEMENT; SUCCESSORS; REFERENCES. You acknowledge that you understand the terms of this Agreement. This Agreement may be modified only by written agreement duly executed by you and Company. References herein to employment by the "Company" include your employment by a subsidiary of the Company.
8. TAX WITHHOLDING. You may elect to satisfy any FICA or tax withholding obligations under federal, state or local law arising from the vesting of any Restricted Stock Award by having the Company retain the number of shares of common stock whose Fair Market Value equals the FICA and tax amount required to be withheld (or at your option a lesser number). Any amount so elected to be withheld shall be applied to the FICA and tax obligations generated by the vesting of the Restricted Stock Award. To make a tax withholding/FICA election, you must provide a written election request to the Director, Tax & Assistant Treasurer at least 10 days prior to the vesting of a Restricted Stock Award (i.e., at least 10 days prior to the Closing Date with respect to the award that will vest on such date). "Fair Market Value" shall mean the closing price of CDT common stock on the date of vesting of any Restricted Stock Award.
9. SUCCESSORS. In addition to any obligations imposed by law upon any successor to the Company, the Company will require any successor (whether direct or indirect, by purchase, merger, consolidation or otherwise) to all or substantially all of the business and/or assets of the Company to expressly assume and agree to perform this Agreement in the same manner and to the same extent that the Company would be required to perform it if no such succession had taken place. This Agreement shall not be terminated by the voluntary or involuntary dissolution of the Company.
June 28, 2004
10. DUE AUTHORIZATION. The execution, delivery and performance by the Company of this Agreement have been duly authorized by all requisite corporate action. This Agreement has been duly and validly executed and delivered by the Company and constitutes the valid and legally binding obligations of the Company enforceable against the Company in accordance with its terms. This Agreement may be executed in separate counterparts, each of which is deemed to be an original and all of which taken together constitute one and the same agreement.
11. GUARANTEE. At the time of the Merger, the Company shall cause CDT to execute this Agreement and upon such execution (i) CDT shall automatically and without any further action on behalf of any party unconditionally assume all of the obligations of Belden Inc. under this Agreement as the primary obligor and (ii) references herein to the "Company" shall be deemed references to CDT.
I hope that the terms of this Agreement and the incentive just described will induce you to remain in the employ of the Company and to continue your valuable contributions to our Company's success. Please indicate your acceptance of this Agreement by signing the enclosed copy of this letter and returning it to me within five (5) business days.
Sincerely,
/s/ Kevin L. Bloomfield --------------------------------------------- Kevin L. Bloomfield Vice President, Secretary and General Counsel |
I have read, understand and agree to the foregoing.
/s/ C. Baker Cunningham --------------------------------------------- C. Baker Cunningham |
Following completion of the Merger:
Assumption pursuant to Section 11
CABLE DESIGN TECHNOLOGIES CORPORATION
/s/ Kevin Bloomfield --------------------------------------------- |
EXHIBIT 10.2
PERSONAL & CONFIDENTIAL
June 28, 2004
Mr. Richard K. Reece
21 Ballas Court
Town & Country, MO 63131
Dear Ricky:
As you know, on February 4, 2004, Belden Inc. (the "Company"), BC Merger Corp. (the "Subsidiary") and Cable Design Technologies Corporation ("CDT") entered into an Agreement and Plan of Merger, as amended, (the "Merger Agreement") pursuant to which, among other things, the Subsidiary will be merged with and into the Company (the "Merger"). The Company believes that it is crucial that we take steps to retain key employees like you whose role is essential to our ongoing business efforts and to the successful completion of the Merger. This Agreement is intended to provide you with an incentive to continue your employment through the date on which the Merger is completed (the "Closing Date") and an additional transition period of two years thereafter (the "Retention Period"). Accordingly, as a means of assuring itself of the continued availability of your services during this critical time, the Company desires to enter into this Agreement with you.
1. RETENTION AND INTEGRATION AWARD. If the Merger is completed pursuant to the Merger Agreement, then, subject to the terms of this Agreement, you shall receive a retention payment (a "Retention and Integration Award") equal to 110% of your base annual salary as in effect on February 4, 2004 (subject to all applicable withholding taxes). 50% of the value of the Retention and Integration Award will be in the form of a cash award (the "Cash Award") and the remaining 50% will be in the form of shares of CDT restricted common stock (the "Restricted Stock Award") (which value shall be based on the closing price of CDT, common stock on the Closing Date, as adjusted by the proposed reverse stock split of the common stock of CDT, if appropriate).
(a) Cash Award. Subject to Section 2 and provided that you are employed by the Company or one of its affiliates on each applicable payment date set forth below, the Company shall pay you the Cash Award at the following times: (i) one-third (1/3) of the Cash Award on the Closing Date, (ii) one-third (1/3) of the Cash Award on the first anniversary of the Closing Date and (iii) the remaining one-third (1/3) of the Cash Award on the second anniversary of the Closing Date.
(b) Restricted Stock Award. Subject to Section 2 and provided that you are employed by the Company or one of its affiliates on each applicable vesting date set forth below, your Restricted Stock Award shall vest at the following times:
June 28, 2004
(i) one-third (1/3) of the Restricted Stock Award on the Closing Date,
(ii) one-third (1/3) of the Restricted Stock Award on the first
anniversary of the Closing Date and (iii) the remaining one-third (1/3)
of the Restricted Stock Award on the second anniversary of the Closing
Date.
Except as limited by this Agreement, you will have all rights associated with the restricted stock, whether vested or unvested, unless and until such shares are forfeited in accordance with the terms of this Agreement, including the right to vote, or to direct the voting of, such shares and to receive any dividends on such shares; provided that prior to vesting of the restricted stock (i) no certificates for such restricted stock will be issued to you and (ii) no such restricted stock will be transferable by you.
2. CIRCUMSTANCES WHEN RETENTION AND INTEGRATION AWARD WILL NOT BE PAID OR VEST. Notwithstanding anything in this Agreement to the contrary if (i) you terminate your employment with the Company and its affiliates for any reason prior to the end of the Retention Period (including death or for "good reason" under your change of control agreement), (ii) the Company and its affiliates terminate your employment for any reason prior to the end of the Retention Period or (iii) the Merger does not occur, then the Company shall not be obligated to pay to you any unpaid Cash Award and any unvested portion of the Restricted Stock Award shall be forfeited and cancelled. In the event that a portion of the Restricted Stock is forfeited, you grant to each officer of the Company (acting solely) the power of attorney to take such actions on your behalf to cause such portion of the Restricted Stock Award to be cancelled.
3. TREATMENT OF EXISTING EQUITY AWARDS. In consideration of the Company entering into this Agreement, you agree that notwithstanding anything in the Belden Inc. Long-Term Incentive Plan, the Belden Inc. 2003 Long-Term Incentive Plan, any other Company plan, the change of control agreement dated July 31, 2001 as amended, (the "Change of Control Agreement"), or any agreement entered into thereunder (collectively, the "Compensation Plans"), neither the Merger nor any of the other transactions contemplated by the Merger Agreement shall constitute a "change of control" for purposes of any restricted stock awards ("Other Restricted Stock Awards") held by you under the Compensation Plans and no such restricted stock shall vest as a result thereof. For clarity, the Other Restricted Stock Awards will continue to vest in accordance with the terms of the Compensation Plans and your restricted award agreements. Notwithstanding the preceding sentences, if your employment is terminated following the Merger by the Company and its affiliates without Cause or by you for Good Reason (as such terms are defined in your Change of Control Agreement), immediately prior to the effective time of such termination (i) any unvested shares of restricted stock issued to you (other than any unvested portion of the Restricted Stock Award) shall vest and the restrictions thereunder shall terminate or lapse so that such shares of stock shall be freely transferable, subject to applicable securities laws and (ii) each then unvested stock option granted to you and then outstanding shall become exercisable and all stock options then held by you may be exercised by you (subject to the terms of such options, other than vesting) for twelve months following the date of such termination of employment. You agree to take such actions as the Company may request in order to effectuate the foregoing.
June 28, 2004
4. PAYMENT TAXABLE/NOT BENEFIT BEARING. The Company shall be entitled to withhold from any payment made pursuant to this Agreement all taxes and other amounts required to be withheld under applicable law and, subject to Section 8, you shall pay to the Company or its designee, upon its demand such amount as may be required for the purpose of satisfying the Company's obligation to withhold federal, state, local or foreign income, employment or other taxes incurred by reason of the vesting of the Restricted Stock or your filing of a Section 83(b) election (which election shall be in your sole discretion). Amounts payable under this Agreement and the value of any Restricted Stock Award shall not be treated as compensation for purposes of computing or determining any benefit under any pension, savings, severance, bonus/incentive, insurance, or other employee compensation or benefit plan of the Company or any of its subsidiaries.
5. NO RIGHT TO CONTINUED EMPLOYMENT/NO LIMIT ON COMPANY DISCRETION. Nothing in this Agreement is intended to limit the Company's discretion to take any action with regard to the Merger that the Company may consider appropriate, including, without limitation, postponing the Closing Date or terminating the Merger Agreement. This Agreement does not entitle you to be retained in the employ of the Company for any minimum or prescribed period of time and does not otherwise modify the status of your employment.
6. GOVERNING LAW. This Agreement shall be interpreted and enforced in accordance with the laws of the State of Delaware, disregarding its choice of law rules.
7. ACKNOWLEDGEMENT; SUCCESSORS; REFERENCES. You acknowledge that you understand the terms of this Agreement. This Agreement may be modified only by written agreement duly executed by you and Company. References herein to employment by the "Company" include your employment by a subsidiary of the Company.
8. TAX WITHHOLDING. You may elect to satisfy any FICA or tax withholding obligations under federal, state or local law arising from the vesting of any Restricted Stock Award by having the Company retain the number of shares of common stock whose Fair Market Value equals the FICA and tax amount required to be withheld (or at your option a lesser number). Any amount so elected to be withheld shall be applied to the FICA and tax obligations generated by the vesting of the Restricted Stock Award. To make a tax withholding/FICA election, you must provide a written election request to the Director, Tax & Assistant Treasurer at least 10 days prior to the vesting of a Restricted Stock Award (i.e., at least 10 days prior to the Closing Date with respect to the award that will vest on such date). "Fair Market Value" shall mean the closing price of CDT common stock on the date of vesting of any Restricted Stock Award.
9. SUCCESSORS. In addition to any obligations imposed by law upon any successor to the Company, the Company will require any successor (whether direct or indirect, by purchase, merger, consolidation or otherwise) to all or substantially all of the business and/or assets of the Company to expressly assume and agree to perform this Agreement in the same manner and to the same extent that the Company would be required to perform it if no such succession had taken place. This Agreement shall not be terminated by the voluntary or involuntary dissolution of the Company.
June 28, 2004
10. DUE AUTHORIZATION. The execution, delivery and performance by the Company of this Agreement have been duly authorized by all requisite corporate action. This Agreement has been duly and validly executed and delivered by the Company and constitutes the valid and legally binding obligations of the Company enforceable against the Company in accordance with its terms. This Agreement may be executed in separate counterparts, each of which is deemed to be an original and all of which taken together constitute one and the same agreement.
11. GUARANTEE. At the time of the Merger, the Company shall cause CDT to execute this Agreement and upon such execution (i) CDT shall automatically and without any further action on behalf of any party unconditionally assume all of the obligations of Belden Inc. under this Agreement as the primary obligor and (ii) references herein to the "Company" shall be deemed references to CDT.
I hope that the terms of this Agreement and the incentive just described will induce you to remain in the employ of the Company and to continue your valuable contributions to our Company's success. Please indicate your acceptance of this Agreement by signing the enclosed copy of this letter and returning it to me within five (5) business days.
Sincerely,
/s/ C. Baker Cunningham ---------------------------------------- C. Baker Cunningham CEO, President and Chairman of the Board |
I have read, understand and agree to the foregoing.
/s/ Richard K. Reece ---------------------------------------- Richard K. Reece |
Following completion of the Merger:
Assumption pursuant to Section 11
CABLE DESIGN TECHNOLOGIES CORPORATION
/s/ C. Baker Cunningham |
EXHIBIT 10.3
PERSONAL & CONFIDENTIAL
June 28, 2004
Mr. Kevin L. Bloomfield
7 Thorndell
St. Louis, MO 63117
Dear Kevin:
As you know, on February 4, 2004, Belden Inc. (the "Company"), BC Merger Corp. (the "Subsidiary") and Cable Design Technologies Corporation ("CDT") entered into an Agreement and Plan of Merger, as amended, (the "Merger Agreement") pursuant to which, among other things, the Subsidiary will be merged with and into the Company (the "Merger"). The Company believes that it is crucial that we take steps to retain key employees like you whose role is essential to our ongoing business efforts and to the successful completion of the Merger. This Agreement is intended to provide you with an incentive to continue your employment through the date on which the Merger is completed (the "Closing Date") and an additional transition period of two years thereafter (the "Retention Period"). Accordingly, as a means of assuring itself of the continued availability of your services during this critical time, the Company desires to enter into this Agreement with you.
1. RETENTION AND INTEGRATION AWARD. If the Merger is completed pursuant to the Merger Agreement, then, subject to the terms of this Agreement, you shall receive a retention payment (a "Retention and Integration Award") equal to 110% of your base annual salary as in effect on February 4, 2004 (subject to all applicable withholding taxes). 50% of the value of the Retention and Integration Award will be in the form of a cash award (the "Cash Award") and the remaining 50% will be in the form of shares of CDT restricted common stock (the "Restricted Stock Award") (which value shall be based on the closing price of CDT, common stock on the Closing Date, as adjusted by the proposed reverse stock split of the common stock of CDT, if appropriate).
(a) Cash Award. Subject to Section 2 and provided that you are employed by the Company or one of its affiliates on each applicable payment date set forth below, the Company shall pay you the Cash Award at the following times: (i) one-third (1/3) of the Cash Award on the Closing Date, (ii) one-third (1/3) of the Cash Award on the first anniversary of the Closing Date and (iii) the remaining one-third (1/3) of the Cash Award on the second anniversary of the Closing Date.
(b) Restricted Stock Award. Subject to Section 2 and provided that you are employed by the Company or one of its affiliates on each applicable vesting date set forth below, your Restricted Stock Award shall vest at the following times:
June 28, 2004
(i) one-third (1/3) of the Restricted Stock Award on the Closing Date,
(ii) one-third (1/3) of the Restricted Stock Award on the first
anniversary of the Closing Date and (iii) the remaining one-third (1/3)
of the Restricted Stock Award on the second anniversary of the Closing
Date.
Except as limited by this Agreement, you will have all rights associated with the restricted stock, whether vested or unvested, unless and until such shares are forfeited in accordance with the terms of this Agreement, including the right to vote, or to direct the voting of, such shares and to receive any dividends on such shares; provided that prior to vesting of the restricted stock (i) no certificates for such restricted stock will be issued to you and (ii) no such restricted stock will be transferable by you.
2. CIRCUMSTANCES WHEN RETENTION AND INTEGRATION AWARD WILL NOT BE PAID OR VEST. Notwithstanding anything in this Agreement to the contrary if (i) you terminate your employment with the Company and its affiliates for any reason prior to the end of the Retention Period (including death or for "good reason" under your change of control agreement), (ii) the Company and its affiliates terminate your employment for any reason prior to the end of the Retention Period or (iii) the Merger does not occur, then the Company shall not be obligated to pay to you any unpaid Cash Award and any unvested portion of the Restricted Stock Award shall be forfeited and cancelled. In the event that a portion of the Restricted Stock is forfeited, you grant to each officer of the Company (acting solely) the power of attorney to take such actions on your behalf to cause such portion of the Restricted Stock Award to be cancelled.
3. TREATMENT OF EXISTING EQUITY AWARDS. In consideration of the Company entering into this Agreement, you agree that notwithstanding anything in the Belden Inc. Long-Term Incentive Plan, the Belden Inc. 2003 Long-Term Incentive Plan, any other Company plan, the change of control agreement dated July 31, 2001 as amended, (the "Change of Control Agreement"), or any agreement entered into thereunder (collectively, the "Compensation Plans"), neither the Merger nor any of the other transactions contemplated by the Merger Agreement shall constitute a "change of control" for purposes of any restricted stock awards ("Other Restricted Stock Awards") held by you under the Compensation Plans and no such restricted stock shall vest as a result thereof. For clarity, the Other Restricted Stock Awards will continue to vest in accordance with the terms of the Compensation Plans and your restricted award agreements. Notwithstanding the preceding sentences, if your employment is terminated following the Merger by the Company and its affiliates without Cause or by you for Good Reason (as such terms are defined in your Change of Control Agreement), immediately prior to the effective time of such termination (i) any unvested shares of restricted stock issued to you (other than any unvested portion of the Restricted Stock Award) shall vest and the restrictions thereunder shall terminate or lapse so that such shares of stock shall be freely transferable, subject to applicable securities laws and (ii) each then unvested stock option granted to you and then outstanding shall become exercisable and all stock options then held by you may be exercised by you (subject to the terms of such options, other than vesting) for twelve months following the date of such termination of employment. You agree to take such actions as the Company may request in order to effectuate the foregoing.
June 28, 2004
4. PAYMENT TAXABLE/NOT BENEFIT BEARING. The Company shall be entitled to withhold from any payment made pursuant to this Agreement all taxes and other amounts required to be withheld under applicable law and, subject to Section 8, you shall pay to the Company or its designee, upon its demand such amount as may be required for the purpose of satisfying the Company's obligation to withhold federal, state, local or foreign income, employment or other taxes incurred by reason of the vesting of the Restricted Stock or your filing of a Section 83(b) election (which election shall be in your sole discretion). Amounts payable under this Agreement and the value of any Restricted Stock Award shall not be treated as compensation for purposes of computing or determining any benefit under any pension, savings, severance, bonus/incentive, insurance, or other employee compensation or benefit plan of the Company or any of its subsidiaries.
5. NO RIGHT TO CONTINUED EMPLOYMENT/NO LIMIT ON COMPANY DISCRETION. Nothing in this Agreement is intended to limit the Company's discretion to take any action with regard to the Merger that the Company may consider appropriate, including, without limitation, postponing the Closing Date or terminating the Merger Agreement. This Agreement does not entitle you to be retained in the employ of the Company for any minimum or prescribed period of time and does not otherwise modify the status of your employment.
6. GOVERNING LAW. This Agreement shall be interpreted and enforced in accordance with the laws of the State of Delaware, disregarding its choice of law rules.
7. ACKNOWLEDGEMENT; SUCCESSORS; REFERENCES. You acknowledge that you understand the terms of this Agreement. This Agreement may be modified only by written agreement duly executed by you and Company. References herein to employment by the "Company" include your employment by a subsidiary of the Company.
8. TAX WITHHOLDING. You may elect to satisfy any FICA or tax withholding obligations under federal, state or local law arising from the vesting of any Restricted Stock Award by having the Company retain the number of shares of common stock whose Fair Market Value equals the FICA and tax amount required to be withheld (or at your option a lesser number). Any amount so elected to be withheld shall be applied to the FICA and tax obligations generated by the vesting of the Restricted Stock Award. To make a tax withholding/FICA election, you must provide a written election request to the Director, Tax & Assistant Treasurer at least 10 days prior to the vesting of a Restricted Stock Award (i.e., at least 10 days prior to the Closing Date with respect to the award that will vest on such date). "Fair Market Value" shall mean the closing price of CDT common stock on the date of vesting of any Restricted Stock Award.
9. SUCCESSORS. In addition to any obligations imposed by law upon any successor to the Company, the Company will require any successor (whether direct or indirect, by purchase, merger, consolidation or otherwise) to all or substantially all of the business and/or assets of the Company to expressly assume and agree to perform this Agreement in the same manner and to the same extent that the Company would be required to perform it if no such succession had taken place. This Agreement shall not be terminated by the voluntary or involuntary dissolution of the Company.
June 28, 2004
10. DUE AUTHORIZATION. The execution, delivery and performance by the Company of this Agreement have been duly authorized by all requisite corporate action. This Agreement has been duly and validly executed and delivered by the Company and constitutes the valid and legally binding obligations of the Company enforceable against the Company in accordance with its terms. This Agreement may be executed in separate counterparts, each of which is deemed to be an original and all of which taken together constitute one and the same agreement.
11. GUARANTEE. At the time of the Merger, the Company shall cause CDT to execute this Agreement and upon such execution (i) CDT shall automatically and without any further action on behalf of any party unconditionally assume all of the obligations of Belden Inc. under this Agreement as the primary obligor and (ii) references herein to the "Company" shall be deemed references to CDT.
I hope that the terms of this Agreement and the incentive just described will induce you to remain in the employ of the Company and to continue your valuable contributions to our Company's success. Please indicate your acceptance of this Agreement by signing the enclosed copy of this letter and returning it to me within five (5) business days.
Sincerely,
/s/ C. Baker Cunningham ---------------------------------------- C. Baker Cunningham CEO, President and Chairman of the Board |
I have read, understand and agree to the foregoing.
/s/ Kevin L. Bloomfield ---------------------------------------- Kevin L. Bloomfield |
Following completion of the Merger:
Assumption pursuant to Section 11
CABLE DESIGN TECHNOLOGIES CORPORATION
/s/ C. Baker Cunningham ---------------------------------------- |
EXHIBIT 10.4
PERSONAL & CONFIDENTIAL
June 28, 2004
Mr. D. Larrie Rose
Am Willer 4
40667 Meerbusch
Germany
Dear Larrie:
As you know, on February 4, 2004, Belden Inc. (the "Company"), BC Merger Corp. (the "Subsidiary") and Cable Design Technologies Corporation ("CDT") entered into an Agreement and Plan of Merger, as amended, (the "Merger Agreement") pursuant to which, among other things, the Subsidiary will be merged with and into the Company (the "Merger"). The Company believes that it is crucial that we take steps to retain key employees like you whose role is essential to our ongoing business efforts and to the successful completion of the Merger. This Agreement is intended to provide you with an incentive to continue your employment through the date on which the Merger is completed (the "Closing Date") and an additional transition period of two years thereafter (the "Retention Period"). Accordingly, as a means of assuring itself of the continued availability of your services during this critical time, the Company desires to enter into this Agreement with you.
1. RETENTION AND INTEGRATION AWARD. If the Merger is completed pursuant to the Merger Agreement, then, subject to the terms of this Agreement, you shall receive a retention payment (a "Retention and Integration Award") equal to 110% of your base annual salary as in effect on February 4, 2004 (subject to all applicable withholding taxes). 50% of the value of the Retention and Integration Award will be in the form of a cash award (the "Cash Award") and the remaining 50% will be in the form of shares of CDT restricted common stock (the "Restricted Stock Award") (which value shall be based on the closing price of CDT, common stock on the Closing Date, as adjusted by the proposed reverse stock split of the common stock of CDT, if appropriate).
(a) Cash Award. Subject to Section 2 and provided that you are employed by the Company or one of its affiliates on each applicable payment date set forth below, the Company shall pay you the Cash Award at the following times: (i) one-third (1/3) of the Cash Award on the Closing Date, (ii) one-third (1/3) of the Cash Award on the first anniversary of the Closing Date and (iii) the remaining one-third (1/3) of the Cash Award on the second anniversary of the Closing Date.
(b) Restricted Stock Award. Subject to Section 2 and provided that you are employed by the Company or one of its affiliates on each applicable vesting
June 28, 2004
date set forth below, your Restricted Stock Award shall vest at the following times: (i) one-third (1/3) of the Restricted Stock Award on the Closing Date, (ii) one-third (1/3) of the Restricted Stock Award on the first anniversary of the Closing Date and (iii) the remaining one-third (1/3) of the Restricted Stock Award on the second anniversary of the Closing Date.
Except as limited by this Agreement, you will have all rights associated with the restricted stock, whether vested or unvested, unless and until such shares are forfeited in accordance with the terms of this Agreement, including the right to vote, or to direct the voting of, such shares and to receive any dividends on such shares; provided that prior to vesting of the restricted stock (i) no certificates for such restricted stock will be issued to you and (ii) no such restricted stock will be transferable by you.
2. CIRCUMSTANCES WHEN RETENTION AND INTEGRATION AWARD WILL NOT BE PAID OR VEST. Notwithstanding anything in this Agreement to the contrary if (i) you terminate your employment with the Company and its affiliates for any reason prior to the end of the Retention Period (including death or for "good reason" under your change of control agreement), (ii) the Company and its affiliates terminate your employment for any reason prior to the end of the Retention Period or (iii) the Merger does not occur, then the Company shall not be obligated to pay to you any unpaid Cash Award and any unvested portion of the Restricted Stock Award shall be forfeited and cancelled. In the event that a portion of the Restricted Stock is forfeited, you grant to each officer of the Company (acting solely) the power of attorney to take such actions on your behalf to cause such portion of the Restricted Stock Award to be cancelled.
3. TREATMENT OF EXISTING EQUITY AWARDS. In consideration of the Company entering into this Agreement, you agree that notwithstanding anything in the Belden Inc. Long-Term Incentive Plan, the Belden Inc. 2003 Long-Term Incentive Plan, any other Company plan, the change of control agreement dated April 15, 2002 as amended, (the "Change of Control Agreement"), or any agreement entered into thereunder (collectively, the "Compensation Plans"), neither the Merger nor any of the other transactions contemplated by the Merger Agreement shall constitute a "change of control" for purposes of any restricted stock awards ("Other Restricted Stock Awards") held by you under the Compensation Plans and no such restricted stock shall vest as a result thereof. For clarity, the Other Restricted Stock Awards will continue to vest in accordance with the terms of the Compensation Plans and your restricted award agreements. Notwithstanding the preceding sentences, if your employment is terminated following the Merger by the Company and its affiliates without Cause or by you for Good Reason (as such terms are defined in your Change of Control Agreement), immediately prior to the effective time of such termination (i) any unvested shares of restricted stock issued to you (other than any unvested portion of the Restricted Stock Award) shall vest and the restrictions thereunder shall terminate or lapse so that such shares of stock shall be freely transferable, subject to applicable securities laws and (ii) each then unvested stock option granted to you and then outstanding shall become exercisable and all stock options then held by you may be exercised by you (subject to the terms of such options, other than vesting) for twelve months following the date of such termination of employment. You agree to take such actions as the Company may request in order to effectuate the foregoing.
June 28, 2004
4. PAYMENT TAXABLE/NOT BENEFIT BEARING. The Company shall be entitled to withhold from any payment made pursuant to this Agreement all taxes and other amounts required to be withheld under applicable law and, subject to Section 8, you shall pay to the Company or its designee, upon its demand such amount as may be required for the purpose of satisfying the Company's obligation to withhold federal, state, local or foreign income, employment or other taxes incurred by reason of the vesting of the Restricted Stock or your filing of a Section 83(b) election (which election shall be in your sole discretion). Amounts payable under this Agreement and the value of any Restricted Stock Award shall not be treated as compensation for purposes of computing or determining any benefit under any pension, savings, severance, bonus/incentive, insurance, or other employee compensation or benefit plan of the Company or any of its subsidiaries.
5. NO RIGHT TO CONTINUED EMPLOYMENT/NO LIMIT ON COMPANY DISCRETION. Nothing in this Agreement is intended to limit the Company's discretion to take any action with regard to the Merger that the Company may consider appropriate, including, without limitation, postponing the Closing Date or terminating the Merger Agreement. This Agreement does not entitle you to be retained in the employ of the Company for any minimum or prescribed period of time and does not otherwise modify the status of your employment.
6. GOVERNING LAW. This Agreement shall be interpreted and enforced in accordance with the laws of the State of Delaware, disregarding its choice of law rules.
7. ACKNOWLEDGEMENT; SUCCESSORS; REFERENCES. You acknowledge that you understand the terms of this Agreement. This Agreement may be modified only by written agreement duly executed by you and Company. References herein to employment by the "Company" include your employment by a subsidiary of the Company.
8. TAX WITHHOLDING. You may elect to satisfy any FICA or tax withholding obligations under federal, state or local law arising from the vesting of any Restricted Stock Award by having the Company retain the number of shares of common stock whose Fair Market Value equals the FICA and tax amount required to be withheld (or at your option a lesser number). Any amount so elected to be withheld shall be applied to the FICA and tax obligations generated by the vesting of the Restricted Stock Award. To make a tax withholding/FICA election, you must provide a written election request to the Director, Tax & Assistant Treasurer at least 10 days prior to the vesting of a Restricted Stock Award (i.e., at least 10 days prior to the Closing Date with respect to the award that will vest on such date). "Fair Market Value" shall mean the closing price of CDT common stock on the date of vesting of any Restricted Stock Award.
9. SUCCESSORS. In addition to any obligations imposed by law upon any successor to the Company, the Company will require any successor (whether direct or indirect, by purchase, merger, consolidation or otherwise) to all or substantially all of the business and/or assets of the Company to expressly assume and agree to perform this Agreement in the same manner and to the same extent that the Company would be required to perform it if no such succession had taken place. This Agreement shall not be terminated by the voluntary or involuntary dissolution of the Company.
June 28, 2004
10. DUE AUTHORIZATION. The execution, delivery and performance by the Company of this Agreement have been duly authorized by all requisite corporate action. This Agreement has been duly and validly executed and delivered by the Company and constitutes the valid and legally binding obligations of the Company enforceable against the Company in accordance with its terms. This Agreement may be executed in separate counterparts, each of which is deemed to be an original and all of which taken together constitute one and the same agreement.
11. GUARANTEE. At the time of the Merger, the Company shall cause CDT to execute this Agreement and upon such execution (i) CDT shall automatically and without any further action on behalf of any party unconditionally assume all of the obligations of Belden Inc. under this Agreement as the primary obligor and (ii) references herein to the "Company" shall be deemed references to CDT.
I hope that the terms of this Agreement and the incentive just described will induce you to remain in the employ of the Company and to continue your valuable contributions to our Company's success. Please indicate your acceptance of this Agreement by signing the enclosed copy of this letter and returning it to me within five (5) business days.
Sincerely,
/s/ C. Baker Cunningham ---------------------------------------- C. Baker Cunningham CEO, President and Chairman of the Board |
I have read, understand and agree to the foregoing.
/s/ D. Larrie Rose ---------------------------------------- D. Larrie Rose |
Following completion of the Merger:
Assumption pursuant to Section 11
CABLE DESIGN TECHNOLOGIES CORPORATION
/s/ C. Baker Cunningham ---------------------------------------- |
EXHIBIT 10.5
PERSONAL & CONFIDENTIAL
June 28, 2004
Mr. Robert W. Matz
5963 Lynwood Court
Whitehouse, OH 43571
Dear Bob:
As you know, on February 4, 2004, Belden Inc. (the "Company"), BC Merger Corp. (the "Subsidiary") and Cable Design Technologies Corporation ("CDT") entered into an Agreement and Plan of Merger, as amended, (the "Merger Agreement") pursuant to which, among other things, the Subsidiary will be merged with and into the Company (the "Merger"). The Company believes that it is crucial that we take steps to retain key employees like you whose role is essential to our ongoing business efforts and to the successful completion of the Merger. This Agreement is intended to provide you with an incentive to continue your employment through the date on which the Merger is completed (the "Closing Date") and an additional transition period of two years thereafter (the "Retention Period"). Accordingly, as a means of assuring itself of the continued availability of your services during this critical time, the Company desires to enter into this Agreement with you.
1. RETENTION AND INTEGRATION AWARD. If the Merger is completed pursuant to the Merger Agreement, then, subject to the terms of this Agreement, you shall receive a retention payment (a "Retention and Integration Award") equal to 110% of your base annual salary as in effect on February 4, 2004 (subject to all applicable withholding taxes). 50% of the value of the Retention and Integration Award will be in the form of a cash award (the "Cash Award") and the remaining 50% will be in the form of shares of CDT restricted common stock (the "Restricted Stock Award") (which value shall be based on the closing price of CDT, common stock on the Closing Date, as adjusted by the proposed reverse stock split of the common stock of CDT, if appropriate).
(a) Cash Award. Subject to Section 2 and provided that you are employed by the Company or one of its affiliates on each applicable payment date set forth below, the Company shall pay you the Cash Award at the following times: (i) one-third (1/3) of the Cash Award on the Closing Date, (ii) one-third (1/3) of the Cash Award on the first anniversary of the Closing Date and (iii) the remaining one-third (1/3) of the Cash Award on the second anniversary of the Closing Date.
(b) Restricted Stock Award. Subject to Section 2 and provided that you are employed by the Company or one of its affiliates on each applicable vesting date set forth below, your Restricted Stock Award shall vest at the following times:
June 28, 2004
(i) one-third (1/3) of the Restricted Stock Award on the Closing Date,
(ii) one-third (1/3) of the Restricted Stock Award on the first
anniversary of the Closing Date and (iii) the remaining one-third (1/3)
of the Restricted Stock Award on the second anniversary of the Closing
Date.
Except as limited by this Agreement, you will have all rights associated with the restricted stock, whether vested or unvested, unless and until such shares are forfeited in accordance with the terms of this Agreement, including the right to vote, or to direct the voting of, such shares and to receive any dividends on such shares; provided that prior to vesting of the restricted stock (i) no certificates for such restricted stock will be issued to you and (ii) no such restricted stock will be transferable by you.
2. CIRCUMSTANCES WHEN RETENTION AND INTEGRATION AWARD WILL NOT BE PAID OR VEST. Notwithstanding anything in this Agreement to the contrary if (i) you terminate your employment with the Company and its affiliates for any reason prior to the end of the Retention Period (including death or for "good reason" under your change of control agreement), (ii) the Company and its affiliates terminate your employment for any reason prior to the end of the Retention Period or (iii) the Merger does not occur, then the Company shall not be obligated to pay to you any unpaid Cash Award and any unvested portion of the Restricted Stock Award shall be forfeited and cancelled. In the event that a portion of the Restricted Stock is forfeited, you grant to each officer of the Company (acting solely) the power of attorney to take such actions on your behalf to cause such portion of the Restricted Stock Award to be cancelled.
3. TREATMENT OF EXISTING EQUITY AWARDS. In consideration of the Company entering into this Agreement, you agree that notwithstanding anything in the Belden Inc. Long-Term Incentive Plan, the Belden Inc. 2003 Long-Term Incentive Plan, any other Company plan, the change of control agreement dated May 13, 2002 as amended, (the "Change of Control Agreement"), or any agreement entered into thereunder (collectively, the "Compensation Plans"), neither the Merger nor any of the other transactions contemplated by the Merger Agreement shall constitute a "change of control" for purposes of any restricted stock awards ("Other Restricted Stock Awards") held by you under the Compensation Plans and no such restricted stock shall vest as a result thereof. For clarity, the Other Restricted Stock Awards will continue to vest in accordance with the terms of the Compensation Plans and your restricted award agreements. Notwithstanding the preceding sentences, if your employment is terminated following the Merger by the Company and its affiliates without Cause or by you for Good Reason (as such terms are defined in your Change of Control Agreement), immediately prior to the effective time of such termination (i) any unvested shares of restricted stock issued to you (other than any unvested portion of the Restricted Stock Award) shall vest and the restrictions thereunder shall terminate or lapse so that such shares of stock shall be freely transferable, subject to applicable securities laws and (ii) each then unvested stock option granted to you and then outstanding shall become exercisable and all stock options then held by you may be exercised by you (subject to the terms of such options, other than vesting) for twelve months following the date of such termination of employment. You agree to take such actions as the Company may request in order to effectuate the foregoing.
June 28, 2004
4. PAYMENT TAXABLE/NOT BENEFIT BEARING. The Company shall be entitled to withhold from any payment made pursuant to this Agreement all taxes and other amounts required to be withheld under applicable law and, subject to Section 8, you shall pay to the Company or its designee, upon its demand such amount as may be required for the purpose of satisfying the Company's obligation to withhold federal, state, local or foreign income, employment or other taxes incurred by reason of the vesting of the Restricted Stock or your filing of a Section 83(b) election (which election shall be in your sole discretion). Amounts payable under this Agreement and the value of any Restricted Stock Award shall not be treated as compensation for purposes of computing or determining any benefit under any pension, savings, severance, bonus/incentive, insurance, or other employee compensation or benefit plan of the Company or any of its subsidiaries.
5. NO RIGHT TO CONTINUED EMPLOYMENT/NO LIMIT ON COMPANY DISCRETION. Nothing in this Agreement is intended to limit the Company's discretion to take any action with regard to the Merger that the Company may consider appropriate, including, without limitation, postponing the Closing Date or terminating the Merger Agreement. This Agreement does not entitle you to be retained in the employ of the Company for any minimum or prescribed period of time and does not otherwise modify the status of your employment.
6. GOVERNING LAW. This Agreement shall be interpreted and enforced in accordance with the laws of the State of Delaware, disregarding its choice of law rules.
7. ACKNOWLEDGEMENT; SUCCESSORS; REFERENCES. You acknowledge that you understand the terms of this Agreement. This Agreement may be modified only by written agreement duly executed by you and Company. References herein to employment by the "Company" include your employment by a subsidiary of the Company.
8. TAX WITHHOLDING. You may elect to satisfy any FICA or tax withholding obligations under federal, state or local law arising from the vesting of any Restricted Stock Award by having the Company retain the number of shares of common stock whose Fair Market Value equals the FICA and tax amount required to be withheld (or at your option a lesser number). Any amount so elected to be withheld shall be applied to the FICA and tax obligations generated by the vesting of the Restricted Stock Award. To make a tax withholding/FICA election, you must provide a written election request to the Director, Tax & Assistant Treasurer at least 10 days prior to the vesting of a Restricted Stock Award (i.e., at least 10 days prior to the Closing Date with respect to the award that will vest on such date). "Fair Market Value" shall mean the closing price of CDT common stock on the date of vesting of any Restricted Stock Award.
9. SUCCESSORS. In addition to any obligations imposed by law upon any successor to the Company, the Company will require any successor (whether direct or indirect, by purchase, merger, consolidation or otherwise) to all or substantially all of the business and/or assets of the Company to expressly assume and agree to perform this Agreement in the same manner and to the same extent that the Company would be required to perform it if no such succession had taken place. This Agreement shall not be terminated by the voluntary or involuntary dissolution of the Company.
June 28, 2004
10. DUE AUTHORIZATION. The execution, delivery and performance by the Company of this Agreement have been duly authorized by all requisite corporate action. This Agreement has been duly and validly executed and delivered by the Company and constitutes the valid and legally binding obligations of the Company enforceable against the Company in accordance with its terms. This Agreement may be executed in separate counterparts, each of which is deemed to be an original and all of which taken together constitute one and the same agreement.
11. GUARANTEE. At the time of the Merger, the Company shall cause CDT to execute this Agreement and upon such execution (i) CDT shall automatically and without any further action on behalf of any party unconditionally assume all of the obligations of Belden Inc. under this Agreement as the primary obligor and (ii) references herein to the "Company" shall be deemed references to CDT.
I hope that the terms of this Agreement and the incentive just described will induce you to remain in the employ of the Company and to continue your valuable contributions to our Company's success. Please indicate your acceptance of this Agreement by signing the enclosed copy of this letter and returning it to me within five (5) business days.
Sincerely,
/s/ C. Baker Cunningham ---------------------------------------- C. Baker Cunningham CEO, President and Chairman of the Board |
I have read, understand and agree to the foregoing.
/s/ Robert W. Matz ---------------------------------------- Robert W. Matz |
Following completion of the Merger:
Assumption pursuant to Section 11
CABLE DESIGN TECHNOLOGIES CORPORATION
/s/ C. Baker Cunningham ---------------------------------------- |
EXHIBIT 10.6
PERSONAL & CONFIDENTIAL
June 28, 2004
Mr. Stephen H. Johnson
5 Benton Place
St. Louis, MO 63104
Dear Stephen:
As you know, on February 4, 2004, Belden Inc. (the "Company"), BC Merger Corp. (the "Subsidiary") and Cable Design Technologies Corporation ("CDT") entered into an Agreement and Plan of Merger, as amended, (the "Merger Agreement") pursuant to which, among other things, the Subsidiary will be merged with and into the Company (the "Merger"). The Company believes that it is crucial that we take steps to retain key employees like you whose role is essential to our ongoing business efforts and to the successful completion of the Merger. This Agreement is intended to provide you with an incentive to continue your employment through the date on which the Merger is completed (the "Closing Date") and an additional transition period of two years thereafter (the "Retention Period"). Accordingly, as a means of assuring itself of the continued availability of your services during this critical time, the Company desires to enter into this Agreement with you.
1. RETENTION AND INTEGRATION AWARD. If the Merger is completed pursuant to the Merger Agreement, then, subject to the terms of this Agreement, you shall receive a retention payment (a "Retention and Integration Award") equal to 110% of your base annual salary as in effect on February 4, 2004 (subject to all applicable withholding taxes). 50% of the value of the Retention and Integration Award will be in the form of a cash award (the "Cash Award") and the remaining 50% will be in the form of shares of CDT restricted common stock (the "Restricted Stock Award") (which value shall be based on the closing price of CDT, common stock on the Closing Date, as adjusted by the proposed reverse stock split of the common stock of CDT, if appropriate).
(a) Cash Award. Subject to Section 2 and provided that you are employed by the Company or one of its affiliates on each applicable payment date set forth below, the Company shall pay you the Cash Award at the following times: (i) one-third (1/3) of the Cash Award on the Closing Date, (ii) one-third (1/3) of the Cash Award on the first anniversary of the Closing Date and (iii) the remaining one-third (1/3) of the Cash Award on the second anniversary of the Closing Date.
(b) Restricted Stock Award. Subject to Section 2 and provided that you are employed by the Company or one of its affiliates on each applicable vesting date set forth below, your Restricted Stock Award shall vest at the following times:
June 28, 2004
(i) one-third (1/3) of the Restricted Stock Award on the Closing Date,
(ii) one-third (1/3) of the Restricted Stock Award on the first
anniversary of the Closing Date and (iii) the remaining one-third (1/3)
of the Restricted Stock Award on the second anniversary of the Closing
Date.
Except as limited by this Agreement, you will have all rights associated with the restricted stock, whether vested or unvested, unless and until such shares are forfeited in accordance with the terms of this Agreement, including the right to vote, or to direct the voting of, such shares and to receive any dividends on such shares; provided that prior to vesting of the restricted stock (i) no certificates for such restricted stock will be issued to you and (ii) no such restricted stock will be transferable by you.
2. CIRCUMSTANCES WHEN RETENTION AND INTEGRATION AWARD WILL NOT BE PAID OR VEST. Notwithstanding anything in this Agreement to the contrary if (i) you terminate your employment with the Company and its affiliates for any reason prior to the end of the Retention Period (including death or for "good reason" under your change of control agreement), (ii) the Company and its affiliates terminate your employment for any reason prior to the end of the Retention Period or (iii) the Merger does not occur, then the Company shall not be obligated to pay to you any unpaid Cash Award and any unvested portion of the Restricted Stock Award shall be forfeited and cancelled. In the event that a portion of the Restricted Stock is forfeited, you grant to each officer of the Company (acting solely) the power of attorney to take such actions on your behalf to cause such portion of the Restricted Stock Award to be cancelled.
3. TREATMENT OF EXISTING EQUITY AWARDS. In consideration of the Company entering into this Agreement, you agree that notwithstanding anything in the Belden Inc. Long-Term Incentive Plan, the Belden Inc. 2003 Long-Term Incentive Plan, any other Company plan, the change of control agreement dated February 17, 2003 as amended, (the "Change of Control Agreement"), or any agreement entered into thereunder (collectively, the "Compensation Plans"), neither the Merger nor any of the other transactions contemplated by the Merger Agreement shall constitute a "change of control" for purposes of any restricted stock awards ("Other Restricted Stock Awards") held by you under the Compensation Plans and no such restricted stock shall vest as a result thereof. For clarity, the Other Restricted Stock Awards will continue to vest in accordance with the terms of the Compensation Plans and your restricted award agreements. Notwithstanding the preceding sentences, if your employment is terminated following the Merger by the Company and its affiliates without Cause or by you for Good Reason (as such terms are defined in your Change of Control Agreement), immediately prior to the effective time of such termination (i) any unvested shares of restricted stock issued to you (other than any unvested portion of the Restricted Stock Award) shall vest and the restrictions thereunder shall terminate or lapse so that such shares of stock shall be freely transferable, subject to applicable securities laws and (ii) each then unvested stock option granted to you and then outstanding shall become exercisable and all stock options then held by you may be exercised by you (subject to the terms of such options, other than vesting) for twelve months following the date of such termination of employment. You agree to take such actions as the Company may request in order to effectuate the foregoing.
June 28, 2004
4. PAYMENT TAXABLE/NOT BENEFIT BEARING. The Company shall be entitled to withhold from any payment made pursuant to this Agreement all taxes and other amounts required to be withheld under applicable law and, subject to Section 8, you shall pay to the Company or its designee, upon its demand such amount as may be required for the purpose of satisfying the Company's obligation to withhold federal, state, local or foreign income, employment or other taxes incurred by reason of the vesting of the Restricted Stock or your filing of a Section 83(b) election (which election shall be in your sole discretion). Amounts payable under this Agreement and the value of any Restricted Stock Award shall not be treated as compensation for purposes of computing or determining any benefit under any pension, savings, severance, bonus/incentive, insurance, or other employee compensation or benefit plan of the Company or any of its subsidiaries.
5. NO RIGHT TO CONTINUED EMPLOYMENT/NO LIMIT ON COMPANY DISCRETION. Nothing in this Agreement is intended to limit the Company's discretion to take any action with regard to the Merger that the Company may consider appropriate, including, without limitation, postponing the Closing Date or terminating the Merger Agreement. This Agreement does not entitle you to be retained in the employ of the Company for any minimum or prescribed period of time and does not otherwise modify the status of your employment.
6. GOVERNING LAW. This Agreement shall be interpreted and enforced in accordance with the laws of the State of Delaware, disregarding its choice of law rules.
7. ACKNOWLEDGEMENT; SUCCESSORS; REFERENCES. You acknowledge that you understand the terms of this Agreement. This Agreement may be modified only by written agreement duly executed by you and Company. References herein to employment by the "Company" include your employment by a subsidiary of the Company.
8. TAX WITHHOLDING. You may elect to satisfy any FICA or tax withholding obligations under federal, state or local law arising from the vesting of any Restricted Stock Award by having the Company retain the number of shares of common stock whose Fair Market Value equals the FICA and tax amount required to be withheld (or at your option a lesser number). Any amount so elected to be withheld shall be applied to the FICA and tax obligations generated by the vesting of the Restricted Stock Award. To make a tax withholding/FICA election, you must provide a written election request to the Director, Tax & Assistant Treasurer at least 10 days prior to the vesting of a Restricted Stock Award (i.e., at least 10 days prior to the Closing Date with respect to the award that will vest on such date). "Fair Market Value" shall mean the closing price of CDT common stock on the date of vesting of any Restricted Stock Award.
9. SUCCESSORS. In addition to any obligations imposed by law upon any successor to the Company, the Company will require any successor (whether direct or indirect, by purchase, merger, consolidation or otherwise) to all or substantially all of the business and/or assets of the Company to expressly assume and agree to perform this Agreement in the same manner and to the same extent that the Company would be required to perform it if no such succession had taken place. This Agreement shall not be terminated by the voluntary or involuntary dissolution of the Company.
June 28, 2004
10. DUE AUTHORIZATION. The execution, delivery and performance by the Company of this Agreement have been duly authorized by all requisite corporate action. This Agreement has been duly and validly executed and delivered by the Company and constitutes the valid and legally binding obligations of the Company enforceable against the Company in accordance with its terms. This Agreement may be executed in separate counterparts, each of which is deemed to be an original and all of which taken together constitute one and the same agreement.
11. GUARANTEE. At the time of the Merger, the Company shall cause CDT to execute this Agreement and upon such execution (i) CDT shall automatically and without any further action on behalf of any party unconditionally assume all of the obligations of Belden Inc. under this Agreement as the primary obligor and (ii) references herein to the "Company" shall be deemed references to CDT.
I hope that the terms of this Agreement and the incentive just described will induce you to remain in the employ of the Company and to continue your valuable contributions to our Company's success. Please indicate your acceptance of this Agreement by signing the enclosed copy of this letter and returning it to me within five (5) business days.
Sincerely,
/s/ C. Baker Cunningham ---------------------------------------- C. Baker Cunningham CEO, President and Chairman of the Board |
I have read, understand and agree to the foregoing.
/s/ Stephen H. Johnson ---------------------------------------- Stephen H. Johnson |
Following completion of the Merger:
Assumption pursuant to Section 11
CABLE DESIGN TECHNOLOGIES CORPORATION
/s/ C. Baker Cunningham ---------------------------------------- |
EXHIBIT 10.7
PERSONAL & CONFIDENTIAL
June 28, 2004
Ms. Cathy O. Staples
456 Oakley
St. Louis, MO 63105
Dear Cathy:
As you know, on February 4, 2004, Belden Inc. (the "Company"), BC Merger Corp. (the "Subsidiary") and Cable Design Technologies Corporation ("CDT") entered into an Agreement and Plan of Merger, as amended, (the "Merger Agreement") pursuant to which, among other things, the Subsidiary will be merged with and into the Company (the "Merger"). The Company believes that it is crucial that we take steps to retain key employees like you whose role is essential to our ongoing business efforts and to the successful completion of the Merger. This Agreement is intended to provide you with an incentive to continue your employment through the date on which the Merger is completed (the "Closing Date") and an additional transition period of two years thereafter (the "Retention Period"). Accordingly, as a means of assuring itself of the continued availability of your services during this critical time, the Company desires to enter into this Agreement with you.
1. RETENTION AND INTEGRATION AWARD. If the Merger is completed pursuant to the Merger Agreement, then, subject to the terms of this Agreement, you shall receive a retention payment (a "Retention and Integration Award") equal to 110% of your base annual salary as in effect on February 4, 2004 (subject to all applicable withholding taxes). 50% of the value of the Retention and Integration Award will be in the form of a cash award (the "Cash Award") and the remaining 50% will be in the form of shares of CDT restricted common stock (the "Restricted Stock Award") (which value shall be based on the closing price of CDT, common stock on the Closing Date, as adjusted by the proposed reverse stock split of the common stock of CDT, if appropriate).
(a) Cash Award. Subject to Section 2 and provided that you are employed by the Company or one of its affiliates on each applicable payment date set forth below, the Company shall pay you the Cash Award at the following times: (i) one-third (1/3) of the Cash Award on the Closing Date, (ii) one-third (1/3) of the Cash Award on the first anniversary of the Closing Date and (iii) the remaining one-third (1/3) of the Cash Award on the second anniversary of the Closing Date.
(b) Restricted Stock Award. Subject to Section 2 and provided that you are employed by the Company or one of its affiliates on each applicable vesting date set forth below, your Restricted Stock Award shall vest at the following times:
June 28, 2004
(i) one-third (1/3) of the Restricted Stock Award on the Closing Date,
(ii) one-third (1/3) of the Restricted Stock Award on the first
anniversary of the Closing Date and (iii) the remaining one-third (1/3)
of the Restricted Stock Award on the second anniversary of the Closing
Date.
Except as limited by this Agreement, you will have all rights associated with the restricted stock, whether vested or unvested, unless and until such shares are forfeited in accordance with the terms of this Agreement, including the right to vote, or to direct the voting of, such shares and to receive any dividends on such shares; provided that prior to vesting of the restricted stock (i) no certificates for such restricted stock will be issued to you and (ii) no such restricted stock will be transferable by you.
2. CIRCUMSTANCES WHEN RETENTION AND INTEGRATION AWARD WILL NOT BE PAID OR VEST. Notwithstanding anything in this Agreement to the contrary if (i) you terminate your employment with the Company and its affiliates for any reason prior to the end of the Retention Period (including death or for "good reason" under your change of control agreement), (ii) the Company and its affiliates terminate your employment for any reason prior to the end of the Retention Period or (iii) the Merger does not occur, then the Company shall not be obligated to pay to you any unpaid Cash Award and any unvested portion of the Restricted Stock Award shall be forfeited and cancelled. In the event that a portion of the Restricted Stock is forfeited, you grant to each officer of the Company (acting solely) the power of attorney to take such actions on your behalf to cause such portion of the Restricted Stock Award to be cancelled.
3. TREATMENT OF EXISTING EQUITY AWARDS. In consideration of the Company entering into this Agreement, you agree that notwithstanding anything in the Belden Inc. Long-Term Incentive Plan, the Belden Inc. 2003 Long-Term Incentive Plan, any other Company plan, the change of control agreement dated July 31, 2001 as amended, (the "Change of Control Agreement"), or any agreement entered into thereunder (collectively, the "Compensation Plans"), neither the Merger nor any of the other transactions contemplated by the Merger Agreement shall constitute a "change of control" for purposes of any restricted stock awards ("Other Restricted Stock Awards") held by you under the Compensation Plans and no such restricted stock shall vest as a result thereof. For clarity, the Other Restricted Stock Awards will continue to vest in accordance with the terms of the Compensation Plans and your restricted award agreements. Notwithstanding the preceding sentences, if your employment is terminated following the Merger by the Company and its affiliates without Cause or by you for Good Reason (as such terms are defined in your Change of Control Agreement), immediately prior to the effective time of such termination (i) any unvested shares of restricted stock issued to you (other than any unvested portion of the Restricted Stock Award) shall vest and the restrictions thereunder shall terminate or lapse so that such shares of stock shall be freely transferable, subject to applicable securities laws and (ii) each then unvested stock option granted to you and then outstanding shall become exercisable and all stock options then held by you may be exercised by you (subject to the terms of such options, other than vesting) for twelve months following the date of such termination of employment. You agree to take such actions as the Company may request in order to effectuate the foregoing.
June 28, 2004
4. PAYMENT TAXABLE/NOT BENEFIT BEARING. The Company shall be entitled to withhold from any payment made pursuant to this Agreement all taxes and other amounts required to be withheld under applicable law and, subject to Section 8, you shall pay to the Company or its designee, upon its demand such amount as may be required for the purpose of satisfying the Company's obligation to withhold federal, state, local or foreign income, employment or other taxes incurred by reason of the vesting of the Restricted Stock or your filing of a Section 83(b) election (which election shall be in your sole discretion). Amounts payable under this Agreement and the value of any Restricted Stock Award shall not be treated as compensation for purposes of computing or determining any benefit under any pension, savings, severance, bonus/incentive, insurance, or other employee compensation or benefit plan of the Company or any of its subsidiaries.
5. NO RIGHT TO CONTINUED EMPLOYMENT/NO LIMIT ON COMPANY DISCRETION. Nothing in this Agreement is intended to limit the Company's discretion to take any action with regard to the Merger that the Company may consider appropriate, including, without limitation, postponing the Closing Date or terminating the Merger Agreement. This Agreement does not entitle you to be retained in the employ of the Company for any minimum or prescribed period of time and does not otherwise modify the status of your employment.
6. GOVERNING LAW. This Agreement shall be interpreted and enforced in accordance with the laws of the State of Delaware, disregarding its choice of law rules.
7. ACKNOWLEDGEMENT; SUCCESSORS; REFERENCES. You acknowledge that you understand the terms of this Agreement. This Agreement may be modified only by written agreement duly executed by you and Company. References herein to employment by the "Company" include your employment by a subsidiary of the Company.
8. TAX WITHHOLDING. You may elect to satisfy any FICA or tax withholding obligations under federal, state or local law arising from the vesting of any Restricted Stock Award by having the Company retain the number of shares of common stock whose Fair Market Value equals the FICA and tax amount required to be withheld (or at your option a lesser number). Any amount so elected to be withheld shall be applied to the FICA and tax obligations generated by the vesting of the Restricted Stock Award. To make a tax withholding/FICA election, you must provide a written election request to the Director, Tax & Assistant Treasurer at least 10 days prior to the vesting of a Restricted Stock Award (i.e., at least 10 days prior to the Closing Date with respect to the award that will vest on such date). "Fair Market Value" shall mean the closing price of CDT common stock on the date of vesting of any Restricted Stock Award.
9. SUCCESSORS. In addition to any obligations imposed by law upon any successor to the Company, the Company will require any successor (whether direct or indirect, by purchase, merger, consolidation or otherwise) to all or substantially all of the business and/or assets of the Company to expressly assume and agree to perform this Agreement in the same manner and to the same extent that the Company would be required to perform it if no such succession had taken place. This Agreement shall not be terminated by the voluntary or involuntary dissolution of the Company.
June 28, 2004
10. DUE AUTHORIZATION. The execution, delivery and performance by the Company of this Agreement have been duly authorized by all requisite corporate action. This Agreement has been duly and validly executed and delivered by the Company and constitutes the valid and legally binding obligations of the Company enforceable against the Company in accordance with its terms. This Agreement may be executed in separate counterparts, each of which is deemed to be an original and all of which taken together constitute one and the same agreement.
11. GUARANTEE. At the time of the Merger, the Company shall cause CDT to execute this Agreement and upon such execution (i) CDT shall automatically and without any further action on behalf of any party unconditionally assume all of the obligations of Belden Inc. under this Agreement as the primary obligor and (ii) references herein to the "Company" shall be deemed references to CDT.
I hope that the terms of this Agreement and the incentive just described will induce you to remain in the employ of the Company and to continue your valuable contributions to our Company's success. Please indicate your acceptance of this Agreement by signing the enclosed copy of this letter and returning it to me within five (5) business days.
Sincerely,
/s/ C. Baker Cunningham C. Baker Cunningham CEO, President and Chairman of the Board |
I have read, understand and agree to the foregoing.
/s/ Cathy O. Staples -------------------- Cathy O. Staples |
Following completion of the Merger:
Assumption pursuant to Section 11
CABLE DESIGN TECHNOLOGIES CORPORATION
/s/ C. Baker Cunningham ------------------------ |
(CABLE DESIGN TECHNOLOGIES CORPORATION LOGO) EXHIBIT 10.8
(STAMP)
JULY 8, 2004
Robert Canny
C/o Thermax/CDT
900 Northup Rd.
Suite E
Wallingford, CT 0642
Dear Peter:
As you know, on February 4, 2004, Cable Design Technologies Corporation
(the "Company"), BC Merger Corp. (the "Subsidiary") and Belden Inc. ("Belden")
entered into an Agreement and Plan of Merger (the "Merger Agreement") pursuant
to which, among other things, the Subsidiary will be merged with and into Belden
(the "Merger"). The Company believes that it is crucial that we take steps to
retain key employees like you whose role is essential to our ongoing business
efforts and to the successful completion of the Merger. This Agreement is
intended to provide you with an incentive to continue your employment through
the date on which the Merger is completed (the "Closing Date") and an additional
transition period of two years thereafter (the "Retention Period"). Accordingly,
as a means of assuring itself of the continued availability of your services
during this critical time, the Company desires to enter into this Agreement with
you.
1. RETENTION AND INTEGRATION AWARD. If the Merger is completed pursuant to the Merger Agreement, then, subject to the terms of this Agreement, you shall receive a retention payment (a "Retention and Integration Award") equal to 110% of your base annual salary as in effect on the date of the Merger Agreement (subject to all applicable withholding taxes). 50% of the value of the Retention and Integration Award will be in the form of cash award (the "Cash Award") and the remaining 50% will be in the form of shares of CDT restricted common stock (the "Restricted Stock Award") (which value shall be based on the closing price of common stock of the Company on the Closing Date, as adjusted by the proposed reverse stock split of the common stock of the Company, if appropriate).
(a) Cash Award. Subject to Section 2 and provided that you are employed by the Company or one of its affiliate on each applicable payment date set forth below, the Company shall pay you the Cash Award at the following times: (i) one-third (1/3) of the Cash Award on the Closing Date, (ii) one-third (1/3) of the Cash Award on the first anniversary of the Closing Date and (iii) the remaining one-third (1/3) of the Cash Award on the second anniversary of the Closing Date.
(b) Restricted Stock Award. Subject to Section 2 and provided that you are employed by the Company or one of its affiliates on each applicable vesting date set forth below, your Restricted Stock Award shall vest at the following times: (i) one-third (1/3) of the Restricted Stock Award on the Closing Date, (ii) one-third (1/3) of the Restricted Stock Award on the first anniversary of the Closing Date and (iii) the remaining one-third (1/3) of the Restricted Stock Award on the second anniversary of the Closing Date.
Except as limited by this Agreement, you will have all rights associated with the restricted stock, whether vested or unvested, unless and until such shares are forfeited in accordance with the terms of this Agreement, including the right to vote, or to direct the voting of, such shares and to receive any dividends on such shares; provided that prior to vesting of the restricted stock (i) no certificates for such restricted stock will be issued to you and (ii) no such restricted stock will be transferable by you.
1901 N. Roselle Road o Schaumburg, IL 60915
(847) 230-1900 o (847) 230-1908
(CABLE DESIGN TECHNOLOGIES CORPORATION LOGO)
July 8, 2004
2. CIRCUMSTANCES WHEN RETENTION AND INTEGRATION AWARD WILL NOT BE PAID OR VEST. Notwithstanding anything in this Agreement to the contrary if (i) you terminate your employment with the Company and its affiliates for any reason prior to the end of the Retention Period (including death or for "good reason" under your change of control agreement), (ii) the Company and its affiliates terminate your employment for any reason prior to the end of the Retention Period or (iii) the Merger does not occur, then the Company shall not be obligated to pay to you any unpaid Cash Award and any unvested portion of the Restricted Stock Award shall be forfeited and cancelled. In the event that a portion of the Restricted Stock is forfeited, you grant to each officer of the Company (acting solely) the power of attorney to take such actions on your behalf to cause such portion of the Restricted Stock Award to be cancelled.
3. TREATMENT OF EXISTING EQUITY AWARDS. In consideration of the Company entering into this Agreement, you agree that notwithstanding anything in the Company's 1993 Long Term Performance Incentive Plan, the Company's 1995 Supplemental Long-Term Performance Incentive Plan, the Company's 1999 Long-Term Performance Incentive Plan, any other Company plan, the change of control letter agreement dated October 6, 2003 (the "Change of Control Agreement"), or any agreement entered into thereunder (collectively, the "Compensation Plans"), neither the Merger nor any of the other transactions contemplated by the Merger Agreement shall constitute a "change of control" for purposes of any restricted stock awards held by you under the Compensation Plans and no such restricted stock shall vest as a result thereof. For clarity, the Other Restricted Stock Awards will continue to vest in accordance with the terms of the Compensation Plans and your restricted award agreements. Nothing herein shall affect the vesting of stock option awards upon the effectiveness of the Merger. Notwithstanding the preceding sentence, if your employment is terminated following the Merger by the Company and its affiliates without good cause or by you for good reason (as such terms are defined in your Change of Control Agreement), immediately prior to the effective time of such termination (i) any unvested shares of restricted stock issued to you (other than any unvested portion of the Restricted Stock Award) shall vest and the restrictions thereunder shall terminate or lapse so that such shares of stock shall be freely transferable, subject to applicable securities laws and (ii) each then unvested stock option granted to you and then outstanding shall become exercisable and all stock options then held by you may be exercised by you (subject to the terms of such options, other than vesting) for twelve months following the date of such termination of employment. You agree to take such actions as the Company may request in order to effectuate the foregoing.
4. PAYMENT TAXABLE/NOT BENEFIT BEARING. The Company shall be entitled to
withhold from any payment made pursuant to this Agreement all taxes and other
amounts required to be withheld under applicable law and, subject to Section 8,
you shall pay to the Company or its designee, upon its demand such amount as
may be required for the purpose of satisfying the Company's obligation to
withhold federal, state, local or foreign income, employment or other taxes
incurred by reason of the vesting of the Restricted Stock or your filing of a
Section 83(b) election (which election shall be in your sole discretion).
Amounts payable under this Agreement and the value of any Restricted Stock
Award shall not be treated as compensation for purposes of computing or
determining any benefit under any pension, savings, severance, bonus/incentive,
insurance, or other employee compensation or benefit plan of the Company or any
of its subsidiaries.
5. NO RIGHT TO CONTINUED EMPLOYMENT/NO LIMIT ON COMPANY DISCRETION. Nothing in this Agreement is intended to limit the Company's discretion to take any action with regard to the Merger that the Company may consider appropriate, including, without limitation, postponing the Closing Date or terminating the Merger Agreement. This Agreement does not entitle you to be retained in the employ of the Company for any minimum or prescribed period of time and does not otherwise modify the status of your employment.
6. GOVERNING LAW. This Agreement shall be interpreted and enforced in accordance with the laws of the State of Delaware, disregarding its choice of law rules.
(CABLE DESIGN TECHNOLOGIES CORPORATION LOGO)
July 8, 2004
7. ACKNOWLEDGEMENT; SUCCESSORS; REFERENCES. You acknowledge that you understand the terms of this Agreement. This Agreement may be modified only by written agreement duly executed by you and Company. References herein to employment by the "Company" include your employment by a subsidiary of the Company.
8. TAX WITHHOLDING; DEFERRALS. You may elect to satisfy any FICA or tax withholding obligations under federal, state or local law arising from the vesting of any Restricted Stock Award by having the Company retain the number of shares of common stock whose Fair Market Value equals the FICA and tax amount required to be withheld (or at your option a lesser number). Any amount so elected to be withheld shall be applied to the FICA and tax obligations generated by the vesting of the Restricted Stock Award. To make a tax withholding/FICA election, you must provide a written election request to the Director, Tax & Assistant Treasurer at least 10 days prior to the vesting of a Restricted Stock Award (or, in the case of shares vesting on the Closing Date, prior to the issuance of certificates). "Fair Market Value" shall mean the closing price of CDT common stock on the date of vesting of any Restricted Stock Award.
9. SUCCESSORS. In addition to any obligations imposed by law upon any successor to the Company, the Company will require any successor (whether direct or indirect, by purchase, merger, consolidation or otherwise) to all or substantially all of the business and/or assets of the Company to expressly assume and agree to perform this Agreement in the same manner and to the same extent that the Company would be required to perform it if no such succession had taken place. This Agreement shall not be terminated by the voluntary or involuntary dissolution of the Company.
10. DUE AUTHORIZATION. The execution, delivery and performance by the Company of this Agreement have been duly authorized by all requisite corporate action. This Agreement has been duly and validly executed and delivered by the Company and constitutes the valid and legally binding obligations of the Company enforceable against the Company in accordance with its terms. This Agreement may be executed in separate counterparts, each of which is deemed to be an original and all of which taken together constitute one and the same agreement.
I hope that the terms of this Agreement and the incentive just described will induce you to remain in the employ of the Company and to continue your valuable contributions to our Company's success. Please indicate your acceptance of this Agreement by signing the enclosed copy of this letter and returning it to me within five(5) business days.
Sincerely,
CABLE DESIGN TECHNOLOGIES CORPORATION
By: /s/ CHARLES B. FROMM --------------------------------------- Charles B. Fromm Vice President, General Counsel |
I have read, understand and agree to the foregoing.
/s/ ROBERT CANNY --------------------------------------- Robert Canny -- Signature |
EXHIBIT 10.9
(CABLE DESIGN TECHNOLOGIES CORPORATION LOGO)
July 8, 2004
Dave Harden
C/o West Penn Wire
2833 W. Chestnut Street
Washington, PA 15301
Dear Dave:
As you know, on February 4, 2004, Cable Design Technologies Corporation
(the "Company"), BC Merger Corp. (the "Subsidiary") and Belden Inc. ("Belden")
entered into an Agreement and Plan of Merger (the "Merger Agreement") pursuant
to which, among other things, the Subsidiary will be merged with and into Belden
(the "Merger"). The Company believes that it is crucial that we take steps to
retain key employees like you whose role is essential to our ongoing business
efforts and to the successful completion of the Merger. This Agreement is
intended to provide you with an incentive to continue your employment through
the date on which the Merger is completed (the "Closing Date") and an additional
transition period of two years thereafter (the "Retention Period"). Accordingly,
as a means of assuring itself of the continued availability of your services
during this critical time, the Company desires to enter into this Agreement with
you.
1. RETENTION AND INTEGRATION AWARD. If the Merger is completed pursuant to the Merger Agreement, then, subject to the terms of this Agreement, you shall receive a retention payment (a "Retention and Integration Award") equal to 110% of your base annual salary as in effect on the date of the Merger Agreement (subject to all applicable withholding taxes). 50% of the value of the Retention and Integration Award will be in the form of a cash award (the "Cash Award") and the remaining 50% will be in the form of shares of CDT restricted common stock (the "Restricted Stock Award") (which value shall be based on the closing price of common stock of the Company on the Closing Date, as adjusted by the proposed reverse stock split of the common stock of the Company, if appropriate).
(a) Cash Award. Subject to Section 2 and provided that you are
employed by the Company or one of its affiliates on each applicable payment
date set forth below, the Company shall pay you the Cash Award at the
following times: (i) one-third (1/3) of the Cash Award on the Closing Date,
(ii) one-third (1/3) of the Cash Award on the first anniversary of the
Closing Date and (iii) the remaining one-third (1/3) of the Cash Award on
the second anniversary of the Closing Date.
(b) Restricted Stock Award. Subject to Section 2 and provided that you are employed by the Company or one of its affiliates on each applicable vesting date set forth below, your Restricted Stock Award shall vest at the following times: (i) one-third (1/3) of the Restricted Stock Award on the Closing Date, (ii) one-third (1/3) of the Restricted Stock Award on the first anniversary of the Closing Date and (iii) the remaining one-third (1/3) of the Restricted Stock Award on the second anniversary of the Closing Date.
Except as limited by this Agreement, you will have all rights associated with the restricted stock, whether vested or unvested, unless and until such shares are forfeited in accordance with the terms of this Agreement, including the right to vote, or to direct the voting of, such shares and to receive any dividends on such shares; provided that prior to vesting of the restricted stock (i) no certificates for such restricted stock will be issued to you and (ii) no such restricted stock will be transferable by you.
2. CIRCUMSTANCES WHEN RETENTION AND INTEGRATION AWARD WILL NOT BE PAID OR VEST. Notwithstanding anything in this Agreement to the contrary if (i) you terminate your employment with the Company and its affiliates for any reason prior to the end of the Retention Period (including death or for "good reason" under
1901 N. Roselle Road o Schaumburg, IL 60195
(847) 230-1900 o Fax: (847) 230-1908
(CABLE DESIGN TECHNOLOGIES CORPORATION LOGO)
July 8, 2004
your change of control agreement), (ii) the Company and its affiliates terminate your employment for any reason prior to the end of the Retention Period or (iii) the Merger does not occur, then the Company shall not be obligated to pay to you any unpaid Cash Award and any unvested portion of the Restricted Stock Award shall be forfeited and cancelled. In the event that a portion of the Restricted Stock is forfeited, you grant to each officer of the Company (acting solely) the power of attorney to take such actions on your behalf to cause such portion of the Restricted Stock Award to be cancelled.
3. TREATMENT OF EXISTING EQUITY AWARDS. In consideration of the Company entering into this Agreement, you agree that notwithstanding anything in the Company's 1993 Long Term Performance Incentive Plan, the Company's 1995 Supplemental Long-Term Performance Incentive Plan, the Company's 1999 Long-Term Performance Incentive Plan, any other Company plan, the change of control letter agreement dated October 6, 2003 (the "Change of Control Agreement"), or any agreement entered into thereunder (collectively, the "Compensation Plans"), neither the Merger nor any of the other transactions contemplated by the Merger Agreement shall constitute a "change of control" for purposes of any restricted stock awards held by you under the Compensation Plans and no such restricted stock shall vest as a result thereof. For clarity, the Other Restricted Stock Awards will continue to vest in accordance with the terms of the Compensation Plans and your restricted award agreements. Nothing herein shall affect the vesting of stock option awards upon the effectiveness of the Merger. Notwithstanding the preceding sentence, if your employment is terminated following the Merger by the Company and its affiliates without good cause or by you for good reason (as such terms are defined in your Change of Control Agreement), immediately prior to the effective time of such termination (i) any unvested shares of restricted stock issued to you (other than any unvested portion of the Restricted Stock Award) shall vest and the restrictions thereunder shall terminate or lapse so that such shares of stock shall be freely transferable, subject to applicable securities laws and (ii) each then unvested stock option granted to you and then outstanding shall become exercisable and all stock options than held by you may be exercised by you (subject to the terms of such options, other than vesting) for twelve months following the date of such termination of employment. You agree to take such actions as the Company may request in order to effectuate the foregoing.
4. PAYMENT TAXABLE/NOT BENEFIT BEARING. The Company shall be entitled to
withhold from any payment made pursuant to this Agreement all taxes and other
amounts required to be withheld under applicable law and, subject to Section 8,
you shall pay to the Company or its designee, upon its demand such amount as
may be required for the purpose of satisfying the Company's obligation to
withhold federal, state, local or foreign income, employment or other taxes
incurred by reason of the vesting of the Restricted Stock or your filing of a
Section 83(b) election (which election shall be in your sole discretion).
Amounts payable under this Agreement and the value of any Restricted Stock
Award shall not be treated as compensation for purposes of computing or
determining any benefit under any pension, savings, severance, bonus/incentive,
insurance, or other employee compensation or benefit plan of the Company or any
of its subsidiaries.
5. NO RIGHT TO CONTINUED EMPLOYMENT/NO LIMIT ON COMPANY DISCRETION. Nothing in this Agreement is intended to limit the Company's discretion to take any action with regard to the Merger that the Company may consider appropriate, including, without limitation, postponing the Closing Date of terminating the Merger Agreement. This Agreement does not entitle you to be retained in the employ of the Company for any minimum or prescribed period of time and does not otherwise modify the status of your employment.
6. GOVERNING LAW. This Agreement shall be interpreted and enforced in accordance with the laws of the State of Delaware, disregarding its choice of law rules.
7. ACKNOWLEDGEMENT; SUCCESSORS; REFERENCES. You acknowledge that you understand the terms of this Agreement. This Agreement may be modified only by written agreement duly executed by you and Company. References herein to employment by the "Company" include your employment by a subsidiary of the Company.
(CABLE DESIGN TECHNOLOGIES CORPORATION LOGO)
July 8, 2004
8. TAX WITHHOLDING; DEFERRALS. You may elect to satisfy any FICA or tax withholding obligations under federal, state or local law arising from the vesting of any Restricted Stock Award by having the Company retain the number of shares of common stock whose Fair Market Value equals the FICA and tax amount required to be withheld (or at your option a lesser number). Any amount so elected to be withheld shall be applied to the FICA and tax obligations generated by the vesting of the Restricted Stock Award. To make a tax withholding/FICA election, you must provide a written election request to the Director, Tax & Assistant Treasurer at least 10 days prior to the vesting of a Restricted Stock Award (or, in the case of shares vesting on the Closing Date, prior to the issuance of certificates). "Fair Market Value" shall mean the closing price of CDT common stock on the date of vesting of any Restricted Stock Award.
9. SUCCESSORS. In addition to any obligations imposed by law upon any successor to the Company, the Company will require any successor (whether direct or indirect, by purchase, merger, consolidation or otherwise) to all or substantially all of the business and/or assets of the Company to expressly assume and agree to perform this Agreement in the same manner and to the same extent that the Company would be required to perform it if no such succession had taken place. This Agreement shall not be terminated by the voluntary or involuntary dissolution of the Company.
10. DUE AUTHORIZATION. The execution, delivery and performance by the Company of this Agreement have been duly authorized by all requisite corporate action. This Agreement has been duly and validly executed and delivered by the Company and constitutes the valid and legally binding obligations of the Company enforceable against the Company in accordance with its terms. This Agreement may be executed in separate counterparts, each of which is deemed to be an original and all of which taken together constitute one and the same agreement.
I hope that the terms of this Agreement and the incentive just described will induce you to remain in the employ of the Company and to continue your valuable contributions to our Company's success. Please indicate your acceptance of this Agreement by signing the enclosed copy of this letter and returning it to me within five (5) business days.
Sincerely,
CABLE DESIGN TECHNOLOGIES CORPORATION
By: /s/ CHARLES B. FROMM ----------------------------------- Charles B. Fromm Vice President, General Counsel |
I have read, understand and agree to the foregoing.
/s/ DAVE HARDEN -------------------------------------- Dave Harden - Signature |
(CABLE DESIGN TECHNOLOGIES CORPORATION LOGO)
EXHIBIT 10.10
July 8, 2004
Peter Sheehan
C/o CDT
28 Sword Street
Auburn, MA 01501
Dear Peter:
As you know, on February 4, 2004, Cable Design Technologies Corporation
(the "Company"), BC Merger Corp. (the "Subsidiary") and Belden Inc. ("Belden")
entered into an Agreement and Plan of Merger (the "Merger Agreement") pursuant
to which, among other things, the Subsidiary will be merged with and into Belden
(the "Merger"). The Company believes that it is crucial that we take steps to
retain key employees like you whose role is essential to our ongoing business
efforts and to the successful completion of the Merger. This Agreement is
intended to provide you with an incentive to continue your employment through
the date on which the Merger is completed (the "Closing Date") and an additional
transition period of two years thereafter (the "Retention Period").
Accordingly, as a means of assuring itself of the continued availability of your
services during this critical time, the Company desires to enter into this
Agreement with you.
1. RETENTION AND INTEGRATION AWARD. If the Merger is completed pursuant to the Merger Agreement, then, subject to the terms of this Agreement, you shall receive a retention payment (a "Retention and Integration Award") equal to 110% of your base annual salary as in effect on the date of the Merger Agreement (subject to all applicable withholding taxes). 50% of the value of the Retention and Integration Award will be in the form of a cash award (the "Cash Award") and the remaining 50% will be in the form of shares of CDT restricted common stock (the "Restricted Stock Award") (which value shall be based on the closing price of common stock of the Company on the Closing Date, as adjusted by the proposed reverse stock split of the common stock of the Company, if appropriate).
(a) Cash Award. Subject to Section 2 and provided that you are employed by the Company or one of its affiliates on each applicable payment date set forth below, the Company shall pay you the Cash Award at the following times: (i) one-third (1/3) of the Cash Award on the Closing Date, (ii) one-third (1/3) of the Cash Award on the first anniversary of the Closing Date and (iii) the remaining one-third (1/3) of the Cash Award on the second anniversary of the Closing Date.
(b) Restricted Stock Award. Subject to Section 2 and provided that you are employed by the Company or one of its affiliates on each applicable vesting date set forth below, your Restricted Stock Award shall vest at the following times: (i) one-third (1/3) of the Restricted Stock Award on the Closing Date, (ii) one-third (1/3) of the Restricted Stock Award on the first anniversary of the Closing Date and (iii) the remaining one-third (1/3) of the Restricted Stock Award on the second anniversary of the Closing Date.
Except as limited by this Agreement, you will have all rights associated with the restricted stock, whether vested or unvested, unless and until such shares are forfeited in accordance with the terms of this Agreement, including the right to vote, or to direct the voting of, such shares and to receive any dividends on such shares; provided that prior to vesting of the restricted stock (i) no certificates for such restricted stock will be issued to you and (ii) no such restricted stock will be transferable by you.
2. CIRCUMSTANCES WHEN RETENTION AND INTEGRATION AWARD WILL NOT BE PAID OR VEST. Notwithstanding anything in this Agreement to the contrary if (i) you terminate your employment with the Company and its affiliates for any reason prior to the end of the Retention Period (including death or for "good reason" under your change of control agreement), (ii) the Company and its affiliates terminate your employment for any reason prior to the end of the Retention Period or (iii) the Merger does not occur, then the Company shall not be obligated
1901 N. Roselle Road o Schaumburg, IL 60195
(847) 230-1900 o Fax: (847) 230-1908
(CABLE DESIGN TECHNOLOGIES CORPORATION LOGO)
July 8, 2004
to pay to you any unpaid Cash Award and any unvested portion of the Restricted Stock Award shall be forfeited and cancelled. In the event that a portion of the Restricted Stock is forfeited, you grant to each officer of the Company (acting solely) the power of attorney to take such actions on your behalf to cause such portion of the Restricted Stock Award to be cancelled
3. TREATMENT OF EXISTING EQUITY AWARDS. In consideration of the Company entering into this Agreement, you agree that notwithstanding anything in the Company's 1993 Long Term Performance Incentive Plan, the Company's 1995 Supplemental Long-Term Performance Incentive Plan, the Company's 1999 Long-Term Performance Incentive Plan, any other Company plan, the change of control letter agreement dated October 6, 2003 (the "Change of Control Agreement"), or any agreement entered into thereunder (collectively, the "Compensation Plans"), neither the Merger nor any of the other transactions contemplated by the Merger Agreement shall constitute a "change of control" for purposes of any restricted stock awards held by you under the Compensation Plans and no such restricted stock shall vest as a result thereof. For clarity, the Other Restricted Stock Awards will continue to vest in accordance with terms of the Compensation Plans and your restricted award agreements. Nothing herein shall affect the vesting of stock option awards upon the effectiveness of the Merger. Notwithstanding the preceding sentence, if your employment is terminated following the Merger by the Company and its affiliates without good cause or by you for good reason (as such terms are defined in your Change of Control Agreement), immediately prior to the effective time of such termination (i) any unvested shares of restricted stock issued to you (other than any unvested portion of the Restricted Stock Award) shall vest and the restrictions thereunder shall terminate or lapse so that such shares of stock shall be freely transferable, subject to applicable securities laws and (ii) each then unvested stock option granted to you and then outstanding shall become exercisable and all stock options then held by you may be exercised by you (subject to the terms of such options, other than vesting) for twelve months following the date of such termination of employment. You agree to take such actions as the Company may request in order to effectuate the foregoing.
4. PAYMENT TAXABLE/NOT BENEFIT BEARING. The Company shall be entitled to
withhold from any payment made pursuant to this Agreement all taxes and other
amounts required to be withheld under applicable law and, subject to Section 8,
you shall pay to the Company or its designee, upon its demand such amount as
may be required for the purpose of satisfying the Company's obligation to
withhold federal, state, local or foreign income, employment or other taxes
incurred by reason of the vesting of the Restricted Stock or your filing of a
Section 83(b) election (which election shall be in your sole discretion).
Amounts payable under this Agreement and the value of any Restricted Stock
Award shall not be treated as compensation for purposes of computing or
determining any benefit under any pension, savings, severance, bonus/
incentive, insurance, or other employee compensation or benefit plan of the
Company or any of its subsidiaries.
5. NO RIGHT TO CONTINUED EMPLOYMENT/NO LIMIT ON COMPANY DISCRETION. Nothing in this Agreement is intended to limit the Company's discretion to take any action with regard to the Merger that the Company may consider appropriate, including, without limitation, postponing the Closing Date or terminating the Merger Agreement. This Agreement does not entitle you to be retained in the employ of the Company for any minimum or prescribed period of time and does not otherwise modify the status of your employment.
6. GOVERNING LAW. This Agreement shall be interpreted and enforced in accordance with the laws of the State of Delaware, disregarding its choice of law rules.
7. ACKNOWLEDGEMENT; SUCCESSORS; REFERENCES. You acknowledge that you understand the terms of this Agreement. This Agreement may be modified only by written agreement duly executed by you and Company. References herein to employment by the "Company" include your employment by a subsidiary of the Company.
8. TAX WITHHOLDING; DEFERRALS. You may elect to satisfy any FICA or tax withholding obligations under federal, state or local law arising from the vesting of any Restricted Stock Award by having the Company retain the number of shares of common stock whose Fair Market Value equals the FICA and tax amount required to
(CABLE DESIGN TECHNOLOGIES CORPORATION LOGO)
July 8, 2004
be withheld (or at your option a lesser number). Any amount so elected to be withheld shall be applied to the FICA and tax obligations generated by the vesting of the Restricted Stock Award. To make a tax withholding/FICA election, you must provide a written election request to the Director, Tax & Assistant Treasurer at least 10 days prior to the vesting of a Restricted Stock Award (or, in the case of shares vesting on the Closing Date, prior to the issuance of certificates). "Fair Market Value" shall mean the closing price of CDT common stock on the date of vesting of any Restricted Stock Award.
9. SUCCESSORS. In addition to any obligations imposed by law upon any successor to the Company, the Company will require any successor (whether direct or indirect, by purchase, merger, consolidation or otherwise) to all or substantially all of the business and/or assets of the Company to expressly assume and agree to perform this Agreement in the same manner and to the same extent that the Company would be required to perform it if no such succession had taken place. This Agreement shall not be terminated by the voluntary or involuntary dissolution of the Company.
10. DUE AUTHORIZATION. The execution, delivery and performance by the Company of this Agreement have been duly authorized by all requisite corporate action. This Agreement has been duly and validly executed and delivered by the Company and constitutes the valid and legally binding obligations of the Company enforceable against the Company in accordance with its terms. This Agreement may be executed in separate counterparts, each of which is deemed to be an original and all of which taken together constitute one and the same agreement.
I hope that the terms of this Agreement and the incentive just described will induce you to remain in the employ of the Company and to continue your valuable contributions to our Company's success. Please indicate your acceptance of this Agreement by signing the enclosed copy of this letter and returning it to me within five (5) business days.
Sincerely,
CABLE DESIGN TECHNOLOGIES CORPORATION
By: /s/ CHARLES B. FROMM ------------------------------- Charles B. Fromm Vice President, General Counsel |
I have read, understand and agree to the foregoing.
/s/ PETER SHEEHAN ----------------------------------- Peter Sheehan -- Signature |
EXHIBIT 10.13
FIRST AMENDMENT TO
CHANGE OF CONTROL EMPLOYMENT AGREEMENT
This First Amendment to the Change of Control Employment Agreement dated as of June 28, 2004 (the "Change of Control Employment Agreement") between Belden Inc. (the "Company") and C. Baker Cunningham is entered into as of June 28, 2004.
1. This Amendment shall become effective on the Effective Time (as defined in an Agreement and Plan of Merger, as amended, (the "Merger Agreement"), dated February 4, 2004 by and among the Company, BC Merger Corp. and Cable Design Technologies Corporation ("CDT")); provided, however, that if the Effective Time does not occur, this Amendment shall be null and void ab initio. This Amendment shall also be null and void ab initio in the event the Company fails to satisfy its obligations under that certain Retention and Integration Award letter agreement entered into between the Executive and the Company on June 28, 2004
2. Section 1.5 of the Change of Control Employment Agreement is hereby amended by adding the following at the end of such section to read as follows:
Without limiting the generality of the foregoing, the consummation of the transactions contemplated by Merger Agreement shall constitute a Change of Control under this Agreement (the "Belden-CDT Merger").
3. Clause (v) of Section 1.10 of the Change of Control Employment Agreement is hereby deleted in its entirety and replaced with the following:
(v) any voluntary termination of employment by the Executive where the
Notice of Termination is delivered within 30 days of the first
anniversary of a Change of Control; provided, however, that this clause
(v) may not be invoked for any Change of Control of the Company that
results solely from the Belden-CDT Merger.
4. The Change of Control Employment Agreement is hereby amended by adding the following new Section 26 to read as follows:
26. ASSUMPTION. At the Effective Time, (i) CDT shall automatically and without any further action on behalf of any party unconditionally assume all of the obligations of Belden Inc. under this Agreement as the primary obligor and (ii) references herein to the "Company" shall be deemed references to CDT.
5. It is understood that Mr. Cressey's appointment as Chairman of the Board of Directors of Belden CDT Inc. in connection with the consummation of the Belden-CDT Merger will not constitute Good Reason under this Agreement.
5. Capitalized terms used herein, unless otherwise defined herein, have the meaning ascribed to such terms in the Change of Control Employment Agreement and, except as expressly provided herein all provision of the Change of Control Employment Agreement shall remain in full force and effect.
IN WITNESS WHEREOF, the parties have executed this Amendment as of the date and year first above written.
BELDEN INC.
By: /s/ Kevin L. Bloomfield ----------------------- Kevin L. Bloomfield Executive: /s/ C. Baker Cunningham ----------------------- C. Baker Cunningham |
Acknowledged and agreed with respect to Section 26
CABLE DESIGN TECHNOLOGIES CORPORATION
/s/ Kevin L. Bloomfield ----------------------- |
EXHIBIT 10.14
FIRST AMENDMENT TO
CHANGE OF CONTROL EMPLOYMENT AGREEMENT
This First Amendment to the Change of Control Employment Agreement dated as of June 28, 2004 (the "Change of Control Employment Agreement") between Belden Inc. (the "Company") and Richard K. Reece is entered into as of June 28, 2004.
1. This Amendment shall become effective on the Effective Time (as defined in an Agreement and Plan of Merger, as amended, (the "Merger Agreement"), dated February 4, 2004 by and among the Company, BC Merger Corp. and Cable Design Technologies Corporation ("CDT")); provided, however, that if the Effective Time does not occur, this Amendment shall be null and void ab initio. This Amendment shall also be null and void ab initio in the event the Company fails to satisfy its obligations under that certain Retention and Integration Award letter agreement entered into between the Executive and the Company on June 28, 2004
2. Section 1.5 of the Change of Control Employment Agreement is hereby amended by adding the following at the end of such section to read as follows:
Without limiting the generality of the foregoing, the consummation of the transactions contemplated by Merger Agreement shall constitute a Change of Control under this Agreement (the "Belden-CDT Merger").
3. Clause (v) of Section 1.10 of the Change of Control Employment Agreement is hereby deleted in its entirety and replaced with the following:
(v) any voluntary termination of employment by the Executive where the
Notice of Termination is delivered within 30 days of the first
anniversary of a Change of Control; provided, however, that this clause
(v) may not be invoked for any Change of Control of the Company that
results solely from the Belden-CDT Merger.
4. The Change of Control Employment Agreement is hereby amended by adding the following new Section 26 to read as follows:
26. ASSUMPTION. At the Effective Time, (i) CDT shall automatically and without any further action on behalf of any party unconditionally assume all of the obligations of Belden Inc. under this Agreement as the primary obligor and (ii) references herein to the "Company" shall be deemed references to CDT.
5. Capitalized terms used herein, unless otherwise defined herein, have the meaning ascribed to such terms in the Change of Control Employment Agreement and, except as expressly provided herein all provision of the Change of Control Employment Agreement shall remain in full force and effect.
IN WITNESS WHEREOF, the parties have executed this Amendment as of the date and year first above written.
BELDEN INC.
By: /s/ C. Baker Cunningham --------------------------- C. Baker Cunningham Executive: /s/ Richard K. Reece -------------------- Richard K. Reece |
Acknowledged and agreed with respect to Section 26
CABLE DESIGN TECHNOLOGIES CORPORATION
/s/ C. Baker Cunningham ----------------------- |
EXHIBIT 10.15
FIRST AMENDMENT TO
CHANGE OF CONTROL EMPLOYMENT AGREEMENT
This First Amendment to the Change of Control Employment Agreement dated as of June 28, 2004 (the "Change of Control Employment Agreement") between Belden Inc. (the "Company") and Kevin L. Bloomfield is entered into as of June 28, 2004.
1. This Amendment shall become effective on the Effective Time (as defined in an Agreement and Plan of Merger, as amended, (the "Merger Agreement"), dated February 4, 2004 by and among the Company, BC Merger Corp. and Cable Design Technologies Corporation ("CDT")); provided, however, that if the Effective Time does not occur, this Amendment shall be null and void ab initio. This Amendment shall also be null and void ab initio in the event the Company fails to satisfy its obligations under that certain Retention and Integration Award letter agreement entered into between the Executive and the Company on June 28, 2004
2. Section 1.5 of the Change of Control Employment Agreement is hereby amended by adding the following at the end of such section to read as follows:
Without limiting the generality of the foregoing, the consummation of the transactions contemplated by Merger Agreement shall constitute a Change of Control under this Agreement (the "Belden-CDT Merger").
3. Clause (v) of Section 1.10 of the Change of Control Employment Agreement is hereby deleted in its entirety and replaced with the following:
(v) any voluntary termination of employment by the Executive where the
Notice of Termination is delivered within 30 days of the first
anniversary of a Change of Control; provided, however, that this clause
(v) may not be invoked for any Change of Control of the Company that
results solely from the Belden-CDT Merger.
4. The Change of Control Employment Agreement is hereby amended by adding the following new Section 26 to read as follows:
26. ASSUMPTION. At the Effective Time, (i) CDT shall automatically and without any further action on behalf of any party unconditionally assume all of the obligations of Belden Inc. under this Agreement as the primary obligor and (ii) references herein to the "Company" shall be deemed references to CDT.
5. Capitalized terms used herein, unless otherwise defined herein, have the meaning ascribed to such terms in the Change of Control Employment Agreement and, except as expressly provided herein all provision of the Change of Control Employment Agreement shall remain in full force and effect.
IN WITNESS WHEREOF, the parties have executed this Amendment as of the date and year first above written.
BELDEN INC.
By: /s/ C. Baker Cunningham --------------------------- C. Baker Cunningham Executive: /s/ Kevin L. Bloomfield ----------------------- Kevin L. Bloomfield |
Acknowledged and agreed with respect to Section 26
CABLE DESIGN TECHNOLOGIES CORPORATION
/s/ C. Baker Cunningham ----------------------- |
EXHIBIT 10.16
FIRST AMENDMENT TO
CHANGE OF CONTROL EMPLOYMENT AGREEMENT
This First Amendment to the Change of Control Employment Agreement dated as of June 28, 2004 (the "Change of Control Employment Agreement") between Belden Inc. (the "Company") and D. Larrie Rose is entered into as of June 28, 2004.
1. This Amendment shall become effective on the Effective Time (as defined in an Agreement and Plan of Merger, as amended, (the "Merger Agreement"), dated February 4, 2004 by and among the Company, BC Merger Corp. and Cable Design Technologies Corporation ("CDT")); provided, however, that if the Effective Time does not occur, this Amendment shall be null and void ab initio. This Amendment shall also be null and void ab initio in the event the Company fails to satisfy its obligations under that certain Retention and Integration Award letter agreement entered into between the Executive and the Company on June 28, 2004
2. Section 1.5 of the Change of Control Employment Agreement is hereby amended by adding the following at the end of such section to read as follows:
Without limiting the generality of the foregoing, the consummation of the transactions contemplated by Merger Agreement shall constitute a Change of Control under this Agreement (the "Belden-CDT Merger").
3. Clause (v) of Section 1.10 of the Change of Control Employment Agreement is hereby deleted in its entirety and replaced with the following:
(v) any voluntary termination of employment by the Executive where the
Notice of Termination is delivered within 30 days of the first
anniversary of a Change of Control; provided, however, that this clause
(v) may not be invoked for any Change of Control of the Company that
results solely from the Belden-CDT Merger.
4. The Change of Control Employment Agreement is hereby amended by adding the following new Section 26 to read as follows:
26. ASSUMPTION. At the Effective Time, (i) CDT shall automatically and without any further action on behalf of any party unconditionally assume all of the obligations of Belden Inc. under this Agreement as the primary obligor and (ii) references herein to the "Company" shall be deemed references to CDT.
5. Capitalized terms used herein, unless otherwise defined herein, have the meaning ascribed to such terms in the Change of Control Employment Agreement and, except as expressly provided herein all provision of the Change of Control Employment Agreement shall remain in full force and effect.
IN WITNESS WHEREOF, the parties have executed this Amendment as of the date and year first above written.
BELDEN INC.
By: /s/ C. Baker Cunningham --------------------------- C. Baker Cunningham Executive: /s/ D. Larrie Rose -------------------- D. Larrie Rose |
Acknowledged and agreed with respect to Section 26
CABLE DESIGN TECHNOLOGIES CORPORATION
/s/ C. Baker Cunningham ----------------------- |
EXHIBIT 10.17
FIRST AMENDMENT TO
CHANGE OF CONTROL EMPLOYMENT AGREEMENT
This First Amendment to the Change of Control Employment Agreement dated as of June 28, 2004 (the "Change of Control Employment Agreement") between Belden Inc. (the "Company") and Robert W. Matz is entered into as of June 28, 2004.
1. This Amendment shall become effective on the Effective Time (as defined in an Agreement and Plan of Merger, as amended, (the "Merger Agreement"), dated February 4, 2004 by and among the Company, BC Merger Corp. and Cable Design Technologies Corporation ("CDT")); provided, however, that if the Effective Time does not occur, this Amendment shall be null and void ab initio. This Amendment shall also be null and void ab initio in the event the Company fails to satisfy its obligations under that certain Retention and Integration Award letter agreement entered into between the Executive and the Company on June 28, 2004
2. Section 1.5 of the Change of Control Employment Agreement is hereby amended by adding the following at the end of such section to read as follows:
Without limiting the generality of the foregoing, the consummation of the transactions contemplated by Merger Agreement shall constitute a Change of Control under this Agreement (the "Belden-CDT Merger").
3. Clause (v) of Section 1.10 of the Change of Control Employment Agreement is hereby deleted in its entirety and replaced with the following:
(v) any voluntary termination of employment by the Executive where the Notice of Termination is delivered within 30 days of the first anniversary of a Change of Control; provided, however, that this clause (v) may not be invoked for any Change of Control of the Company that results solely from the Belden-CDT Merger.
4. The Change of Control Employment Agreement is hereby amended by adding the following new Section 26 to read as follows:
26. ASSUMPTION. At the Effective Time, (i) CDT shall automatically and without any further action on behalf of any party unconditionally assume all of the obligations of Belden Inc. under this Agreement as the primary obligor and (ii) references herein to the "Company" shall be deemed references to CDT.
5. Capitalized terms used herein, unless otherwise defined herein, have the meaning ascribed to such terms in the Change of Control Employment Agreement and, except as expressly provided herein all provision of the Change of Control Employment Agreement shall remain in full force and effect.
IN WITNESS WHEREOF, the parties have executed this Amendment as of the date and year first above written.
BELDEN INC.
By: /s/ C. Baker Cunningham ------------------------- C. Baker Cunningham Executive: /s/ Robert W. Matz ------------------------- Robert W. Matz |
Acknowledged and agreed with respect to Section 26
CABLE DESIGN TECHNOLOGIES CORPORATION
/s/ C. Baker Cunningham ----------------------- |
EXHIBIT 10.18
FIRST AMENDMENT TO
CHANGE OF CONTROL EMPLOYMENT AGREEMENT
This First Amendment to the Change of Control Employment Agreement dated as of June 28, 2004 (the "Change of Control Employment Agreement") between Belden Inc. (the "Company") and Stephen H. Johnson is entered into as of June 28, 2004.
1. This Amendment shall become effective on the Effective Time (as defined in an Agreement and Plan of Merger, as amended, (the "Merger Agreement"), dated February 4, 2004 by and among the Company, BC Merger Corp. and Cable Design Technologies Corporation ("CDT")); provided, however, that if the Effective Time does not occur, this Amendment shall be null and void ab initio. This Amendment shall also be null and void ab initio in the event the Company fails to satisfy its obligations under that certain Retention and Integration Award letter agreement entered into between the Executive and the Company on June 28, 2004
2. Section 1.5 of the Change of Control Employment Agreement is hereby amended by adding the following at the end of such section to read as follows:
Without limiting the generality of the foregoing, the consummation of the transactions contemplated by Merger Agreement shall constitute a Change of Control under this Agreement (the "Belden-CDT Merger").
3. Clause (v) of Section 1.10 of the Change of Control Employment Agreement is hereby deleted in its entirety and replaced with the following:
(v) any voluntary termination of employment by the Executive where the Notice of Termination is delivered within 30 days of the first anniversary of a Change of Control; provided, however, that this clause (v) may not be invoked for any Change of Control of the Company that results solely from the Belden-CDT Merger.
4. The Change of Control Employment Agreement is hereby amended by adding the following new Section 26 to read as follows:
26. ASSUMPTION. At the Effective Time, (i) CDT shall automatically and without any further action on behalf of any party unconditionally assume all of the obligations of Belden Inc. under this Agreement as the primary obligor and (ii) references herein to the "Company" shall be deemed references to CDT.
5. Capitalized terms used herein, unless otherwise defined herein, have the meaning ascribed to such terms in the Change of Control Employment Agreement and, except as expressly provided herein all provision of the Change of Control Employment Agreement shall remain in full force and effect.
IN WITNESS WHEREOF, the parties have executed this Amendment as of the date and year first above written.
BELDEN INC.
By: /s/ C. Baker Cunningham ----------------------------------- C. Baker Cunningham Executive: /s/ Stephen H. Johnson ---------------------------- Stephen H. Johnson |
Acknowledged and agreed with respect to Section 26
CABLE DESIGN TECHNOLOGIES CORPORATION
/s/ C. Baker Cunningham ----------------------- |
EXHIBIT 10.19
FIRST AMENDMENT TO
CHANGE OF CONTROL EMPLOYMENT AGREEMENT
This First Amendment to the Change of Control Employment Agreement dated as of June 28, 2004 (the "Change of Control Employment Agreement") between Belden Inc. (the "Company") and Cathy O. Staples is entered into as of June 28, 2004.
1. This Amendment shall become effective on the Effective Time (as defined in an Agreement and Plan of Merger, as amended, (the "Merger Agreement"), dated February 4, 2004 by and among the Company, BC Merger Corp. and Cable Design Technologies Corporation ("CDT")); provided, however, that if the Effective Time does not occur, this Amendment shall be null and void ab initio. This Amendment shall also be null and void ab initio in the event the Company fails to satisfy its obligations under that certain Retention and Integration Award letter agreement entered into between the Executive and the Company on June 28, 2004
2. Section 1.5 of the Change of Control Employment Agreement is hereby amended by adding the following at the end of such section to read as follows:
Without limiting the generality of the foregoing, the consummation of the transactions contemplated by Merger Agreement shall constitute a Change of Control under this Agreement (the "Belden-CDT Merger").
3. Clause (v) of Section 1.10 of the Change of Control Employment Agreement is hereby deleted in its entirety and replaced with the following:
(v) any voluntary termination of employment by the Executive where the
Notice of Termination is delivered within 30 days of the first
anniversary of a Change of Control; provided, however, that this clause
(v) may not be invoked for any Change of Control of the Company that
results solely from the Belden-CDT Merger.
4. The Change of Control Employment Agreement is hereby amended by adding the following new Section 26 to read as follows:
26. ASSUMPTION. At the Effective Time, (i) CDT shall automatically and without any further action on behalf of any party unconditionally assume all of the obligations of Belden Inc. under this Agreement as the primary obligor and (ii) references herein to the "Company" shall be deemed references to CDT.
5. Capitalized terms used herein, unless otherwise defined herein, have the meaning ascribed to such terms in the Change of Control Employment Agreement and, except as expressly provided herein all provision of the Change of Control Employment Agreement shall remain in full force and effect.
IN WITNESS WHEREOF, the parties have executed this Amendment as of the date and year first above written.
BELDEN INC.
By: /s/ C. Baker Cunningham ------------------------ C. Baker Cunningham Executive: /s/ Cathy O. Staples ---------------------- Cathy O. Staples |
Acknowledged and agreed with respect to Section 26
CABLE DESIGN TECHNOLOGIES CORPORATION
/s/ C. Baker Cunningham ---------------------- |
.
.
.
(BELDEN CDT LOGO)
EXHIBIT 10.20
NON-EMPLOYEE DIRECTOR RESTRICTED STOCK AWARD AGREEMENT
GRANTED TO: NUMBER OF SHARES OF GRANT DATE BELDEN INC. COMMON SOCIAL SECURITY NUMBER [NAME] ------------- -------------------- ---------------------- JULY 16, 2004 2,000 |
This Agreement is made between Belden CDT Inc., a Delaware corporation, having its principal office in St. Louis, Missouri (the "Company"), and the undersigned, a non-employee director of the Company.
The parties have agreed as follows:
1. Pursuant to the 2001 Cable Design Technologies Corporation Long-Term Performance Incentive Plan (the "Plan"), the Company grants to the director a restricted stock award in the number of shares of the Company's common stock, par value $.01 per share, noted above (the "Restricted Shares"), on the grant date, after giving effect to the one for two reverse stock split pursuant to the merger between the Company and Belden Inc. (the "Merger"), subject to the following conditions and the terms and conditions of the Plan:
(a) Transfer Restrictions. The Restricted Shares shall not be sold, exchanged, transferred, pledged, or otherwise disposed of before the director's departure from the Board of Directors of the Company ("Transfer Restrictions"). The grant is subject to forfeiture in the event the director is removed from the Board for cause.
(b) Disability/Death. In the event of disability or death of the director during continued service with the Company, the Transfer Restrictions shall lapse and be of no further force or effect and the shares shall be deemed fully vested.
(c) Transferability. Prior to the lapsing of the Transfer Restrictions, no Restricted Shares shall be transferable by the director except pursuant to a qualified domestic relations order (as defined by the Internal Revenue Code).
(d) Sale of Assets/Merger. In the event of a proposed sale of all or substantially all of the assets of the Company or the merger of the Company (other than the Merger) pursuant to Section 14 of the Plan, the restrictions applicable to all shares of Restricted Shares shall lapse and such shares shall be deemed fully vested.
The Compensation Committee (the "Committee") has the discretion to determine whether to issue share certificates for any Restricted Shares (or to make a book-entry transfer for uncertified shares) awarded to the director while they are subject to any Transfer Restrictions. Thereafter, the director will be entitled to receive share certificates (or in the Company's discretion such book-entry shall be made) for such shares.
THE RESTRICTED SHARES GRANTED UNDER THIS AGREEMENT ARE SUBJECT TO THE
COMPANY'S REGISTERING THE SHARES UNDER APPLICABLE SECURITIES LAWS.
2. Subject to the Transfer Restrictions, the director shall have all of the rights of a shareholder of the Company with respect to such Restricted Shares, including the right to vote such Restricted Shares and to receive all dividends or other distributions paid with respect to such Restricted Shares.
3. To the extent the issuance of Restricted Shares or the lapse of Transfer Restrictions results in the receipt of compensation to the director, the Company is authorized to withhold from any cash compensation then or thereafter payable to the director any tax required to be withheld by reason of the receipt of compensation resulting from the award, the issuance of shares or the lapse of the Transfer Restrictions.
4. The director agrees to take any action, and consents to taking such action by the Company, with respect to the Restricted Shares awarded by this Agreement to achieve compliance with applicable laws or regulations. Any determination by the Company's legal counsel with respect to such need for any action to achieve compliance shall be final and binding.
5. The Committee shall have authority, subject to the express provisions of the Plan, to construe this Agreement and the Plan, to establish, amend and rescind rules and regulations relating to the Plan, and to make all other determinations in the judgment of the Committee necessary or desirable for the administration of the Plan. The Committee may correct any defect or supply any omission or reconcile any inconsistency in the Plan or in this Agreement in the manner and to the extent it shall deem expedient to carry out the purpose of the Plan. All action by the Committee under the provisions of this paragraph shall be final and binding for all purposes.
7. This Agreement shall be construed and enforced in accordance with the laws of Delaware, other than any choice of law provisions calling for the application of the laws of another jurisdiction.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement in duplicate as of the Grant Date first above written.
Belden CDT Inc.
EXHIBIT 10.21
FIRST AMENDMENT TO
INDEMNIFICATION AGREEMENT
WHEREAS, Belden Inc. (the "Company") and C. Baker Cunningham (the "Indemnitee") entered into an Indemnification Agreement effective as of August 3, 1993 (the "Agreement"); and
WHEREAS, the Company and the Indemnitee deem it desirable to make certain amendments to the Agreement effective immediately before the Effective Time, as defined in the Agreement and Plan of Merger by and among Cable Design Technologies Corporation, BC Merger Corp. and Belden Inc. dated as of February 4, 2004, as amended;
NOW, THEREFORE, the Agreement is amended effective immediately before the Effective Time as follows (provided, however, that if the Effective Time does not occur, this First Amendment to Indemnification Agreement shall be null and void ab initio):
1. Section 1(a) of the Agreement (definition of Change in Control) is amended by adding the following sentence to the end thereof: "The consummation of the transactions contemplated by the Agreement and Plan of Merger by and among Cable Design Technologies Corporation, BC Merger Corp. and Belden Inc. dated as of February 4, 2004, as amended (the 'Merger Agreement'), shall not constitute a 'Change in Control' under this Agreement."
2. The following new section is added at the end of the Agreement: "Immediately following the Effective Time (as defined in the Merger Agreement), (i) Cable Design Technologies Corporation ('CDT', whose name may be changed to Belden CDT Inc.) shall automatically and without any further action on behalf of any party unconditionally assume and guarantee all of the obligations of Belden Inc. under this Agreement and (ii) all references in this Agreement to the 'Company' shall be deemed references to 'CDT', except that in Section 1(e) of this Agreement (definition of Indemnifiable Event) the references to the 'Company' shall be deemed references to 'CDT or Belden Inc.'."
3. Capitalized terms used herein, unless otherwise defined herein, have the meaning ascribed to such terms in the Agreement. Except as expressly provided herein all provisions of the Agreement shall remain in full force and effect.
Executed and effective as of this 14th day of July, 2004.
BELDEN INC.
By:/s/Kevin L. Bloomfield -------------------------------- Name: Kevin L. Bloomfield Title: Vice President, Secretary and General Counsel Date: July 14, 2004 |
INDEMNITEE
By:/s/C. Baker Cunningham -------------------------------- Name: C. Baker Cunningham Title: Chairman of the Board, President and Chief Executive Officer Date: July 14, 2004 |
EXHIBIT 10.22
FIRST AMENDMENT TO
INDEMNIFICATION AGREEMENT
WHEREAS, Belden Inc. (the "Company") and Richard K. Reece (the "Indemnitee") entered into an Indemnification Agreement effective as of August 3, 1993 (the "Agreement"); and
WHEREAS, the Company and the Indemnitee deem it desirable to make certain amendments to the Agreement effective immediately before the Effective Time, as defined in the Agreement and Plan of Merger by and among Cable Design Technologies Corporation, BC Merger Corp. and Belden Inc. dated as of February 4, 2004, as amended;
NOW, THEREFORE, the Agreement is amended effective immediately before the Effective Time as follows (provided, however, that if the Effective Time does not occur, this First Amendment to Indemnification Agreement shall be null and void ab initio):
1. Section 1(a) of the Agreement (definition of Change in Control) is amended by adding the following sentence to the end thereof: "The consummation of the transactions contemplated by the Agreement and Plan of Merger by and among Cable Design Technologies Corporation, BC Merger Corp. and Belden Inc. dated as of February 4, 2004, as amended (the 'Merger Agreement'), shall not constitute a 'Change in Control' under this Agreement."
2. The following new section is added at the end of the Agreement: "Immediately following the Effective Time (as defined in the Merger Agreement), (i) Cable Design Technologies Corporation ('CDT', whose name may be changed to Belden CDT Inc.) shall automatically and without any further action on behalf of any party unconditionally assume and guarantee all of the obligations of Belden Inc. under this Agreement and (ii) all references in this Agreement to the 'Company' shall be deemed references to 'CDT', except that in Section 1(e) of this Agreement (definition of Indemnifiable Event) the references to the 'Company' shall be deemed references to 'CDT or Belden Inc.'."
3. Capitalized terms used herein, unless otherwise defined herein, have the meaning ascribed to such terms in the Agreement. Except as expressly provided herein all provisions of the Agreement shall remain in full force and effect.
Executed and effective as of this 14th day of July, 2004.
BELDEN INC.
By:/s/ C. Baker Cunningham ------------------------------------- Name: C. Baker Cunningham Title: Chairman, President & CEO Date: July 14, 2004 |
INDEMNITEE
By:/s/ Richard K. Reece ------------------------------------- Name: Richard K. Reece Title: Vice President, Finance and Chief Financial Officer Date: July 14, 2004 |
EXHIBIT 10.23
FIRST AMENDMENT TO
INDEMNIFICATION AGREEMENT
WHEREAS, Belden Inc. (the "Company") and Kevin L. Bloomfield (the "Indemnitee") entered into an Indemnification Agreement effective as of August 3, 1993 (the "Agreement"); and
WHEREAS, the Company and the Indemnitee deem it desirable to make certain amendments to the Agreement effective immediately before the Effective Time, as defined in the Agreement and Plan of Merger by and among Cable Design Technologies Corporation, BC Merger Corp. and Belden Inc. dated as of February 4, 2004, as amended;
NOW, THEREFORE, the Agreement is amended effective immediately before the Effective Time as follows (provided, however, that if the Effective Time does not occur, this First Amendment to Indemnification Agreement shall be null and void ab initio):
1. Section 1(a) of the Agreement (definition of Change in Control) is amended by adding the following sentence to the end thereof: "The consummation of the transactions contemplated by the Agreement and Plan of Merger by and among Cable Design Technologies Corporation, BC Merger Corp. and Belden Inc. dated as of February 4, 2004, as amended (the 'Merger Agreement'), shall not constitute a 'Change in Control' under this Agreement."
2. The following new section is added at the end of the Agreement: "Immediately following the Effective Time (as defined in the Merger Agreement), (i) Cable Design Technologies Corporation ('CDT', whose name may be changed to Belden CDT Inc.) shall automatically and without any further action on behalf of any party unconditionally assume and guarantee all of the obligations of Belden Inc. under this Agreement and (ii) all references in this Agreement to the 'Company' shall be deemed references to 'CDT', except that in Section 1(e) of this Agreement (definition of Indemnifiable Event) the references to the 'Company' shall be deemed references to 'CDT or Belden Inc.'."
3. Capitalized terms used herein, unless otherwise defined herein, have the meaning ascribed to such terms in the Agreement. Except as expressly provided herein all provisions of the Agreement shall remain in full force and effect.
Executed and effective as of this 14th day of July, 2004.
BELDEN INC.
By:/s/ C. Baker Cunningham ------------------------------------------ Name: C. Baker Cunningham Title: Chairman, President & CEO Date: July 14, 2004 |
INDEMNITEE
By:/s/ Kevin L. Bloomfield ------------------------------------------ Name: Kevin L. Bloomfield Title: Vice President, Secretary and General Counsel Date: July 14, 2004 |
EXHIBIT 10.24
FIRST AMENDMENT TO
INDEMNIFICATION AGREEMENT
WHEREAS, Belden Inc. (the "Company") and D. Larrie Rose (the "Indemnitee") entered into an Indemnification Agreement effective as of April 15, 2002 (the "Agreement"); and
WHEREAS, the Company and the Indemnitee deem it desirable to make certain amendments to the Agreement effective immediately before the Effective Time, as defined in the Agreement and Plan of Merger by and among Cable Design Technologies Corporation, BC Merger Corp. and Belden Inc. dated as of February 4, 2004, as amended;
NOW, THEREFORE, the Agreement is amended effective immediately before the Effective Time as follows (provided, however, that if the Effective Time does not occur, this First Amendment to Indemnification Agreement shall be null and void ab initio):
1. Section 1(a) of the Agreement (definition of Change in Control) is amended by adding the following sentence to the end thereof: "The consummation of the transactions contemplated by the Agreement and Plan of Merger by and among Cable Design Technologies Corporation, BC Merger Corp. and Belden Inc. dated as of February 4, 2004, as amended (the 'Merger Agreement'), shall not constitute a 'Change in Control' under this Agreement."
2. The following new section is added at the end of the Agreement: "Immediately following the Effective Time (as defined in the Merger Agreement), (i) Cable Design Technologies Corporation ('CDT', whose name may be changed to Belden CDT Inc.) shall automatically and without any further action on behalf of any party unconditionally assume and guarantee all of the obligations of Belden Inc. under this Agreement and (ii) all references in this Agreement to the 'Company' shall be deemed references to 'CDT', except that in Section 1(e) of this Agreement (definition of Indemnifiable Event) the references to the 'Company' shall be deemed references to 'CDT or Belden Inc.'."
3. Capitalized terms used herein, unless otherwise defined herein, have the meaning ascribed to such terms in the Agreement. Except as expressly provided herein all provisions of the Agreement shall remain in full force and effect.
Executed and effective as of this 14th day of July, 2004.
BELDEN INC.
By:/s/ C. Baker Cunningham --------------------------------------- Name: C. Baker Cunningham Title: Chairman, President & CEO Date: July 14, 2004 |
INDEMNITEE
By:/s/ D. Larrie Rose --------------------------------------- Name: D. Larrie Rose Title: Vice President, Operations and President of Belden Holdings, Inc. Date: July 14, 2004 |
EXHIBIT 10.25
FIRST AMENDMENT TO
INDEMNIFICATION AGREEMENT
WHEREAS, Belden Inc. (the "Company") and Robert W. Matz (the "Indemnitee") entered into an Indemnification Agreement effective as of May 13, 2002 (the "Agreement"); and
WHEREAS, the Company and the Indemnitee deem it desirable to make certain amendments to the Agreement effective immediately before the Effective Time, as defined in the Agreement and Plan of Merger by and among Cable Design Technologies Corporation, BC Merger Corp. and Belden Inc. dated as of February 4, 2004, as amended;
NOW, THEREFORE, the Agreement is amended effective immediately before the Effective Time as follows (provided, however, that if the Effective Time does not occur, this First Amendment to Indemnification Agreement shall be null and void ab initio):
1. Section 1(a) of the Agreement (definition of Change in Control) is amended by adding the following sentence to the end thereof: "The consummation of the transactions contemplated by the Agreement and Plan of Merger by and among Cable Design Technologies Corporation, BC Merger Corp. and Belden Inc. dated as of February 4, 2004, as amended (the 'Merger Agreement'), shall not constitute a 'Change in Control' under this Agreement."
2. The following new section is added at the end of the Agreement: "Immediately following the Effective Time (as defined in the Merger Agreement), (i) Cable Design Technologies Corporation ('CDT', whose name may be changed to Belden CDT Inc.) shall automatically and without any further action on behalf of any party unconditionally assume and guarantee all of the obligations of Belden Inc. under this Agreement and (ii) all references in this Agreement to the 'Company' shall be deemed references to 'CDT', except that in Section 1(e) of this Agreement (definition of Indemnifiable Event) the references to the 'Company' shall be deemed references to 'CDT or Belden Inc.'."
3. Capitalized terms used herein, unless otherwise defined herein, have the meaning ascribed to such terms in the Agreement. Except as expressly provided herein all provisions of the Agreement shall remain in full force and effect.
Executed and effective as of this 14th day of July, 2004.
BELDEN INC.
By: /s/ C. Baker Cunningham ----------------------------------------- Name: C. Baker Cunningham Title: Chairman, President & CEO Date: July 14, 2004 |
INDEMNITEE
By: /s/ Robert W. Matz ----------------------------------------- Name: Robert W. Matz Title: Vice President of Operations and President of Belden Communications Division Date: July 14, 2004 |
EXHIBIT 10.26
FIRST AMENDMENT TO
INDEMNIFICATION AGREEMENT
WHEREAS, Belden Inc. (the "Company") and Stephen H. Johnson (the "Indemnitee") entered into an Indemnification Agreement effective as of July 3, 2000 (the "Agreement"); and
WHEREAS, the Company and the Indemnitee deem it desirable to make certain amendments to the Agreement effective immediately before the Effective Time, as defined in the Agreement and Plan of Merger by and among Cable Design Technologies Corporation, BC Merger Corp. and Belden Inc. dated as of February 4, 2004, as amended;
NOW, THEREFORE, the Agreement is amended effective immediately before the Effective Time as follows (provided, however, that if the Effective Time does not occur, this First Amendment to Indemnification Agreement shall be null and void ab initio):
1. Section 1(a) of the Agreement (definition of Change in Control) is amended by adding the following sentence to the end thereof: "The consummation of the transactions contemplated by the Agreement and Plan of Merger by and among Cable Design Technologies Corporation, BC Merger Corp. and Belden Inc. dated as of February 4, 2004, as amended (the 'Merger Agreement'), shall not constitute a 'Change in Control' under this Agreement."
2. The following new section is added at the end of the Agreement: "Immediately following the Effective Time (as defined in the Merger Agreement), (i) Cable Design Technologies Corporation ('CDT', whose name may be changed to Belden CDT Inc.) shall automatically and without any further action on behalf of any party unconditionally assume and guarantee all of the obligations of Belden Inc. under this Agreement and (ii) all references in this Agreement to the 'Company' shall be deemed references to 'CDT', except that in Section 1(e) of this Agreement (definition of Indemnifiable Event) the references to the 'Company' shall be deemed references to 'CDT or Belden Inc.'."
3. Capitalized terms used herein, unless otherwise defined herein, have the meaning ascribed to such terms in the Agreement. Except as expressly provided herein all provisions of the Agreement shall remain in full force and effect.
Executed and effective as of this 14th day of July, 2004.
BELDEN INC.
By: /s/ C. Baker Cunningham ---------------------------------------- Name: C. Baker Cunningham Title: Chairman, President & CEO Date: July 14, 2004 |
INDEMNITEE
By: /s/ Stephen H. Johnson ---------------------------------------- Name: Stephen H. Johnson Date: July 14, 2004 |
EXHIBIT 10.27
FIRST AMENDMENT TO
INDEMNIFICATION AGREEMENT
WHEREAS, Belden Inc. (the "Company") and Cathy O. Staples (the "Indemnitee") entered into an Indemnification Agreement effective as of August 16, 1997 (the "Agreement"); and
WHEREAS, the Company and the Indemnitee deem it desirable to make certain amendments to the Agreement effective immediately before the Effective Time, as defined in the Agreement and Plan of Merger by and among Cable Design Technologies Corporation, BC Merger Corp. and Belden Inc. dated as of February 4, 2004, as amended;
NOW, THEREFORE, the Agreement is amended effective immediately before the Effective Time as follows (provided, however, that if the Effective Time does not occur, this First Amendment to Indemnification Agreement shall be null and void ab initio):
1. Section 1(a) of the Agreement (definition of Change in Control) is amended by adding the following sentence to the end thereof: "The consummation of the transactions contemplated by the Agreement and Plan of Merger by and among Cable Design Technologies Corporation, BC Merger Corp. and Belden Inc. dated as of February 4, 2004, as amended (the 'Merger Agreement'), shall not constitute a 'Change in Control' under this Agreement."
2. The following new section is added at the end of the Agreement: "Immediately following the Effective Time (as defined in the Merger Agreement), (i) Cable Design Technologies Corporation ('CDT', whose name may be changed to Belden CDT Inc.) shall automatically and without any further action on behalf of any party unconditionally assume and guarantee all of the obligations of Belden Inc. under this Agreement and (ii) all references in this Agreement to the 'Company' shall be deemed references to 'CDT', except that in Section 1(e) of this Agreement (definition of Indemnifiable Event) the references to the 'Company' shall be deemed references to 'CDT or Belden Inc.'."
3. Capitalized terms used herein, unless otherwise defined herein, have the meaning ascribed to such terms in the Agreement. Except as expressly provided herein all provisions of the Agreement shall remain in full force and effect.
Executed and effective as of this 14th day of July, 2004.
BELDEN INC.
By: /s/ C. Baker Cunningham ---------------------------------------- Name: C. Baker Cunningham Title: Chairman, President & CEO Date: July 14, 2004 |
INDEMNITEE
By: /s/ Cathy O. Staples ---------------------------------------- Name: Cathy O. Staples Title: Vice President Human Resources Date: July 14, 2004 |
EXHIBIT 10.28
FIRST AMENDMENT TO
INDEMNIFICATION AGREEMENT
WHEREAS, Belden Inc. (the "Company") and Christopher I. Byrnes (the "Indemnitee") entered into an Indemnification Agreement effective as of November 14, 1995 (the "Agreement"); and
WHEREAS, the Company and the Indemnitee deem it desirable to make certain amendments to the Agreement effective immediately before the Effective Time, as defined in the Agreement and Plan of Merger by and among Cable Design Technologies Corporation, BC Merger Corp. and Belden Inc. dated as of February 4, 2004, as amended;
NOW, THEREFORE, the Agreement is amended effective immediately before the Effective Time as follows (provided, however, that if the Effective Time does not occur, this First Amendment to Indemnification Agreement shall be null and void ab initio):
1. Section 1(a) of the Agreement (definition of Change in Control) is amended by adding the following sentence to the end thereof: "The consummation of the transactions contemplated by the Agreement and Plan of Merger by and among Cable Design Technologies Corporation, BC Merger Corp. and Belden Inc. dated as of February 4, 2004, as amended (the 'Merger Agreement'), shall not constitute a 'Change in Control' under this Agreement."
2. The following new section is added at the end of the Agreement: "Immediately following the Effective Time (as defined in the Merger Agreement), (i) Cable Design Technologies Corporation ('CDT', whose name may be changed to Belden CDT Inc.) shall automatically and without any further action on behalf of any party unconditionally assume and guarantee all of the obligations of Belden Inc. under this Agreement and (ii) all references in this Agreement to the 'Company' shall be deemed references to 'CDT', except that in Section 1(e) of this Agreement (definition of Indemnifiable Event) the references to the 'Company' shall be deemed references to 'CDT or Belden Inc.'."
3. Capitalized terms used herein, unless otherwise defined herein, have the meaning ascribed to such terms in the Agreement. Except as expressly provided herein all provisions of the Agreement shall remain in full force and effect.
Executed and effective as of this 14th day of July, 2004.
BELDEN INC.
By: /s/ C. Baker Cunningham ----------------------------------- Name: C. Baker Cunningham Title: Chairman, President & CEO Date: July 14, 2004 |
INDEMNITEE
By: /s/ Christopher I. Byrnes ----------------------------------- Name: Christopher I. Byrnes Title: Director Date: July 14, 2004 |
EXHIBIT 10.29
FIRST AMENDMENT TO
INDEMNIFICATION AGREEMENT
WHEREAS, Belden Inc. (the "Company") and John M. Monter (the "Indemnitee") entered into an Indemnification Agreement effective as of May 4, 2000 (the "Agreement"); and
WHEREAS, the Company and the Indemnitee deem it desirable to make certain amendments to the Agreement effective immediately before the Effective Time, as defined in the Agreement and Plan of Merger by and among Cable Design Technologies Corporation, BC Merger Corp. and Belden Inc. dated as of February 4, 2004, as amended;
NOW, THEREFORE, the Agreement is amended effective immediately before the Effective Time as follows (provided, however, that if the Effective Time does not occur, this First Amendment to Indemnification Agreement shall be null and void ab initio):
1. Section 1(a) of the Agreement (definition of Change in Control) is amended by adding the following sentence to the end thereof: "The consummation of the transactions contemplated by the Agreement and Plan of Merger by and among Cable Design Technologies Corporation, BC Merger Corp. and Belden Inc. dated as of February 4, 2004, as amended (the 'Merger Agreement'), shall not constitute a 'Change in Control' under this Agreement."
2. The following new section is added at the end of the Agreement: "Immediately following the Effective Time (as defined in the Merger Agreement), (i) Cable Design Technologies Corporation ('CDT', whose name may be changed to Belden CDT Inc.) shall automatically and without any further action on behalf of any party unconditionally assume and guarantee all of the obligations of Belden Inc. under this Agreement and (ii) all references in this Agreement to the 'Company' shall be deemed references to 'CDT', except that in Section 1(e) of this Agreement (definition of Indemnifiable Event) the references to the 'Company' shall be deemed references to 'CDT or Belden Inc.'."
3. Capitalized terms used herein, unless otherwise defined herein, have the meaning ascribed to such terms in the Agreement. Except as expressly provided herein all provisions of the Agreement shall remain in full force and effect.
Executed and effective as of this 14th day of July, 2004.
BELDEN INC.
By: /s/ C. Baker Cunningham ----------------------------------------- Name: C. Baker Cunningham Title: Chairman, President & CEO Date: July 14, 2004 |
INDEMNITEE
By: /s/ John M. Monter ----------------------------------------- Name: John M. Monter Title: Director Date: July 14, 2004 |
EXHIBIT 10.30
FIRST AMENDMENT TO
INDEMNIFICATION AGREEMENT
WHEREAS, Belden Inc. (the "Company") and Lorne D. Bain (the "Indemnitee") entered into an Indemnification Agreement effective as of August 3, 1993 (the "Agreement"); and
WHEREAS, the Company and the Indemnitee deem it desirable to make certain amendments to the Agreement effective immediately before the Effective Time, as defined in the Agreement and Plan of Merger by and among Cable Design Technologies Corporation, BC Merger Corp. and Belden Inc. dated as of February 4, 2004, as amended;
NOW, THEREFORE, the Agreement is amended effective immediately before the Effective Time as follows (provided, however, that if the Effective Time does not occur, this First Amendment to Indemnification Agreement shall be null and void ab initio):
1. Section 1(a) of the Agreement (definition of Change in Control) is amended by adding the following sentence to the end thereof: "The consummation of the transactions contemplated by the Agreement and Plan of Merger by and among Cable Design Technologies Corporation, BC Merger Corp. and Belden Inc. dated as of February 4, 2004, as amended (the 'Merger Agreement'), shall not constitute a 'Change in Control' under this Agreement."
2. The following new section is added at the end of the Agreement: "Immediately following the Effective Time (as defined in the Merger Agreement), (i) Cable Design Technologies Corporation ('CDT', whose name may be changed to Belden CDT Inc.) shall automatically and without any further action on behalf of any party unconditionally assume and guarantee all of the obligations of Belden Inc. under this Agreement and (ii) all references in this Agreement to the 'Company' shall be deemed references to 'CDT', except that in Section 1(e) of this Agreement (definition of Indemnifiable Event) the references to the 'Company' shall be deemed references to 'CDT or Belden Inc.'."
3. Capitalized terms used herein, unless otherwise defined herein, have the meaning ascribed to such terms in the Agreement. Except as expressly provided herein all provisions of the Agreement shall remain in full force and effect.
Executed and effective as of this 14th day of July, 2004.
BELDEN INC.
By: /s/ C. Baker Cunningham ---------------------------------------- Name: C. Baker Cunningham Title: Chairman, President & CEO Date: July 14, 2004 |
INDEMNITEE
By: /s/ Lorne D. Bain ---------------------------------------- Name: Lorne D. Bain Title: Director Date: July 14, 2004 |
EXHIBIT 10.31
FIRST AMENDMENT TO
INDEMNIFICATION AGREEMENT
WHEREAS, Belden Inc. (the "Company") and Bernard G. Rethore (the "Indemnitee") entered into an Indemnification Agreement effective as of February 27, 1997 (the "Agreement"); and
WHEREAS, the Company and the Indemnitee deem it desirable to make certain amendments to the Agreement effective immediately before the Effective Time, as defined in the Agreement and Plan of Merger by and among Cable Design Technologies Corporation, BC Merger Corp. and Belden Inc. dated as of February 4, 2004, as amended;
NOW, THEREFORE, the Agreement is amended effective immediately before the Effective Time as follows (provided, however, that if the Effective Time does not occur, this First Amendment to Indemnification Agreement shall be null and void ab initio):
1. Section 1(a) of the Agreement (definition of Change in Control) is amended by adding the following sentence to the end thereof: "The consummation of the transactions contemplated by the Agreement and Plan of Merger by and among Cable Design Technologies Corporation, BC Merger Corp. and Belden Inc. dated as of February 4, 2004, as amended (the 'Merger Agreement'), shall not constitute a 'Change in Control' under this Agreement."
2. The following new section is added at the end of the Agreement: "Immediately following the Effective Time (as defined in the Merger Agreement), (i) Cable Design Technologies Corporation ('CDT', whose name may be changed to Belden CDT Inc.) shall automatically and without any further action on behalf of any party unconditionally assume and guarantee all of the obligations of Belden Inc. under this Agreement and (ii) all references in this Agreement to the 'Company' shall be deemed references to 'CDT', except that in Section 1(e) of this Agreement (definition of Indemnifiable Event) the references to the 'Company' shall be deemed references to 'CDT or Belden Inc.'."
3. Capitalized terms used herein, unless otherwise defined herein, have the meaning ascribed to such terms in the Agreement. Except as expressly provided herein all provisions of the Agreement shall remain in full force and effect.
Executed and effective as of this 14th day of July, 2004.
BELDEN INC.
By: /s/ C. Baker Cunningham ----------------------------------------- Name: C. Baker Cunningham Title: Chairman, President & CEO Date: July 14, 2004 |
INDEMNITEE
By: /s/ Bernard G. Rethore ----------------------------------------- Name: Bernard G. Rethore Title: Director Date: July 14, 2004 |
EXHIBIT 10.32
INDEMNIFICATION AGREEMENT
AGREEMENT, effective as of September 1, 2004, between Belden CDT Inc., a Delaware corporation (the "Company"), and C. Baker Cunningham (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:
1. Certain Definitions:
(a) Change in Control: shall be deemed to have occurred if (i) any "person" (as such term is used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as amended), other than a trustee or other fiduciary holding securities under an employee benefit plan of the Company or a corporation owned directly or indirectly by the stockholders of the Company in substantially the same proportions as their ownership of stock of the Company, is or becomes the "beneficial owner" (as defined in Rule
13d-3 under said Act), directly or indirectly, of securities of the Company representing 20% or more of the total voting power represented by the Company's then outstanding Voting Securities, or (ii) during any period of two consecutive years, individuals who at the beginning of such period constitute the Board of Directors of the Company and any new director whose election by the Board of Directors or nomination for election by the Company's stockholders was approved by a vote of at least two-thirds (2/3) of the directors then still in office who either were directors at the beginning of the period or whose election or nomination for election was previously so approved, cease for any reason to constitute a majority thereof, or (iii) the stockholders of the Company approve a merger or consolidation of the Company with any other corporation, other than a merger or consolidation which would result in the Voting Securities of the Company outstanding immediately prior thereto continuing to represent (either by remaining outstanding or by being converted into Voting Securities of the surviving entity) at least 80% of the total voting power represented by the Voting Securities of the Company or such surviving entity outstanding immediately after such merger or consolidation, or the stockholders of the Company approve a plan of complete liquidation of the Company or an agreement for the sale or disposition by the Company of (in one transaction or a series of transactions) all or substantially all the Company's assets.
(b) Claim: any threatened, pending or completed action, suit or proceeding, or any inquiry or investigation, whether instituted by the Company or any other party, that Indemnitee in good faith believes might lead to the institution of any such action, suit or proceeding, whether civil, criminal, administrative, investigative or other.
(c) Expenses: include attorneys' fees and all other costs, expenses and obligations paid or incurred in connection with investigating, defending, being a witness in or participating in (including on appeal), or preparing to defend, be a witness in or participate in, any Claim relating to any Indemnifiable Event.
(d) Indemnifiable Event: any event or occurrence related to the fact that Indemnitee is or was a director, officer, employee, agent or fiduciary of the Company, or 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.
(e) Independent Legal Counsel: an attorney or firm of attorneys, selected in accordance with the provisions of Section 3, who shall not have otherwise performed services for the Company or Indemnitee within the last five years (other than with respect to matters concerning the rights of
Indemnitee under this Agreement, or of other indemnitees under similar indemnity agreements).
(f) Potential Change in Control: shall be deemed to have occurred
if (i) the Company enters into an agreement, the consummation
of which would result in the occurrence of a Change in
Control; (ii) any person (including the Company) publicly
announces an intention to take or to consider taking actions
which if consummated would constitute a Change in Control;
(iii) any person, other than a trustee or other fiduciary
holding securities under an employee benefit plan of the
Company or a corporation owned, directly or indirectly, by the
stockholders of the Company in substantially the same
proportions as their ownership of stock of the Company, who is
or becomes the beneficial owner, directly or indirectly, of
securities of the Company representing 9.5% or more of the
combined voting power of the Company's then outstanding Voting
Securities, increases his beneficial ownership of such
securities by five percentage points (5%) or more over the
percentage so owned by such person; or (iv) the Board adopts a
resolution to the effect that, for purposes of this Agreement,
a Potential Change in Control has occurred.
(g) Reviewing Party: any appropriate person or body consisting of a member or members of the Company's Board of Directors or any other person or body appointed by the Board who is not a party to the particular Claim for which Indemnitee is seeking indemnification, or Independent Legal Counsel.
(h) Voting Securities: any securities of the Company which vote generally in the election of directors.
2. Basic Indemnification Arrangement.
(a) In the event Indemnitee was, is or becomes a party to or witness or other participant in, or is threatened to be made a party to or witness or other participant in, a Claim by reason of (or arising in part out of) an Indemnifiable Event, the Company shall indemnify Indemnitee to the fullest extent permitted by law as soon as practicable but in any event no later than thirty days after written demand is presented to the Company, against any and all Expenses, judgments, fines, penalties and amounts paid in settlement (including all interest, assessments and other charges paid or payable in connection with or in respect of such Expenses, judgments, fines, penalties or amounts paid in settlement) 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").
(b) Notwithstanding the foregoing, (i) the obligations of the Company under Section 2(a) shall be subject to the condition that the Reviewing Party
shall not have determined (in a written opinion, in any case in which the Independent Legal Counsel referred to in Section 3 hereof is involved) that Indemnitee would not be permitted to be indemnified under applicable law, and (ii) the obligation of the Company to make an Expense Advance pursuant to Section 2(a) shall be subject to the condition that, if, when and to the extent that the Reviewing Party determines that Indemnitee would not be permitted to be so indemnified under applicable law, the Company shall be entitled to be reimbursed by Indemnitee (who hereby agrees to reimburse the Company) for all such amounts theretofore paid; provided, however, that if Indemnitee has commenced or thereafter commences legal proceedings in a court of competent jurisdiction to secure a determination that Indemnitee should be indemnified under applicable law, any determination made by the Reviewing Party that Indemnitee would not be permitted to be indemnified under applicable law shall not be binding and Indemnitee shall not be required to reimburse the Company for any Expense Advance until a final judicial determination is made with respect thereto (as to which all rights of appeal therefrom have been exhausted or lapsed). If there has not been a Change in Control, the Reviewing Party shall be selected by the Board of Directors, and if there has been such a Change in Control (other than a Change in Control which has been approved by a majority of the Company's Board of Directors who were directors immediately prior to such Change in Control), the Reviewing Party shall be the Independent Legal Counsel referred to in Section 3 hereof. If there has been no determination by the Reviewing Party or if the Reviewing Party determines that Indemnitee substantively would not be permitted to be indemnified in whole or in part under applicable law, Indemnitee shall have the right to commence litigation in any court in the State of Delaware having subject matter jurisdiction thereof and in which venue is proper seeking an initial determination by the court or challenging any such determination by the Reviewing Party or any aspect thereof, including the legal or factual bases therefor, and the Company hereby consents to service of process and to appear in any such proceeding. Any determination by the Reviewing Party otherwise shall be conclusive and binding on the Company and Indemnitee.
3. Change in Control. The Company agrees that if there is a Change in Control of the Company (other than a Change in Control which has been approved by a majority of the Company's Board of Directors who were directors immediately prior to such Change in Control) then with respect to all matters thereafter arising concerning the rights of Indemnitee to indemnity payments and Expense Advances under this Agreement or any other agreement or Company Bylaw now or hereafter in effect relating to Claims for Indemnifiable Events, the Company shall seek legal advice only from Independent Legal Counsel selected by Indemnitee and approved by the Company (which approval shall not be unreasonably withheld). Such counsel, among other things, shall render its written opinion to the Company and Indemnitee as to whether and to what extent the Indemnitee would be permitted to be indemnified under applicable law. The
Company agrees to pay the reasonable fees of the Independent Legal Counsel referred to above and to indemnify fully such counsel against any and all expenses (including attorneys' fees), claims, liabilities and damages arising out of or relating to this Agreement or its engagement pursuant hereto.
4. Establishment of Trust. In the event of a Potential Change in Control,
the Company shall, upon written request by Indemnitee, create a trust
for the benefit of Indemnitee and from time to time upon written
request of Indemnitee shall fund such trust in an amount sufficient to
satisfy any and all Expenses reasonably anticipated at the time of each
such request to be incurred in connection with investigating, preparing
for and defending any Claim relating to an Indemnifiable Event, and any
and all judgments, fines, penalties and settlement amounts of any and
all Claims relating to an Indemnifiable Event from time to time
actually paid or claimed, reasonably anticipated or proposed to be
paid. The amount or amounts to be deposited in the trust pursuant to
the foregoing funding obligation shall be determined by the Reviewing
Party, in any case in which the Independent Legal Counsel referred to
above is involved. The terms of the trust shall provide that (i) the
trust shall not be revoked or the principal thereof invaded, without
the written consent of the Indemnitee, (ii) the trustee shall advance,
within two business days of a request by the Indemnitee, any and all
Expenses to the Indemnitee (and the Indemnitee hereby agrees to
reimburse the trust under the circumstances under which the Indemnitee
would be required to reimburse the Company under Section 2(b) of this
Agreement), (iii) the trust shall continue to be funded by the Company
in accordance with the funding obligation set forth above, (iv) the
trustee shall promptly pay to Indemnitee all amounts for which
Indemnitee shall be entitled to indemnification pursuant to this
Agreement or otherwise, and (v) all unexpended funds in such trust
shall revert to the Company upon a final determination by the Reviewing
Party or a court of competent jurisdiction, as the case may be, that
Indemnitee has been fully indemnified under the terms of this
Agreement. The trustee shall be chosen by Indemnitee. Nothing in this
Section 4 shall relieve the Company of any of its obligations under
this Agreement.
5. Indemnification for Additional Expenses. The Company shall indemnify
Indemnitee against any and all expenses (including attorneys' fees)
and, if requested by Indemnitee, shall (within two business days of
such request) advance such expenses to Indemnitee, which are incurred
by Indemnitee in connection with any action brought by Indemnitee for
(i) indemnification or advance payment of Expenses by the Company under
this Agreement or any other agreement or Company Bylaw now or hereafter
in effect relating to Claims for Indemnifiable Events and/or (ii)
recovery under any directors' and officers' liability insurance
policies maintained by the Company, regardless of whether Indemnitee
ultimately is determined to be entitled to such indemnification,
advance expense payment or insurance recovery, as the case may be.
6. Partial Indemnity, Etc. If Indemnitee is entitled under any provision of this Agreement to indemnification by the Company for some or a portion of the
Expenses, judgments, fines, penalties and amounts paid in settlement arising from or relating to a Claim but not, however, for all of the total amount thereof, the Company shall nevertheless indemnify Indemnitee for the portion thereof to which Indemnitee is entitled. Moreover, notwithstanding any other provision of this Agreement, to the extent that Indemnitee has been successful on the merits or otherwise in defense of any or all Claims relating in whole or in part to an Indemnifiable Event or in defense of any issue or matter therein, including dismissal without prejudice, Indemnitee shall be indemnified against all Expenses incurred in connection therewith.
7. Burden of Proof. In connection with any determination by the Reviewing Party or otherwise as to whether Indemnitee is entitled to be indemnified hereunder the burden of proof shall be on the Company to establish that Indemnitee is not so entitled.
8. No Presumptions. For purposes of this Agreement, the termination of any claim, action, suit or proceeding, by judgment, order, settlement (whether with or without court approval) or conviction, or upon a plea of nolo contendere, or its equivalent, shall not create a presumption that Indemnitee did not meet any particular standard of conduct or have any particular belief or that a court has determined that indemnification is not permitted by applicable law. In addition, neither the failure of the Reviewing Party to have made a determination as to whether Indemnitee has met any particular standard of conduct or had any particular belief, nor an actual determination by the Reviewing Party that Indemnitee has not met such standard of conduct or did not have such belief, prior to the commencement of legal proceedings by Indemnitee to secure a judicial determination that Indemnitee should be indemnified under applicable law shall be a defense to Indemnitee's claim or create a presumption that Indemnitee has not met any particular standard of conduct or did not have any particular belief.
9. Nonexclusivity, Etc. The rights of the Indemnitee hereunder shall be in addition to any other rights Indemnitee may have under the Company's Amended and Restated Bylaws or the Delaware General Corporation Law or otherwise. To the extent that a change in the Delaware General Corporation Law (whether by statute or judicial decision) permits greater indemnification by agreement than would be afforded currently under the Company's Amended and Restated Bylaws and this Agreement, it is the intent of the parties hereto that Indemnitee shall enjoy by this Agreement the greater benefits so afforded by such change.
10. Liability Insurance. To the extent the Company maintains an insurance policy or policies providing directors' and officers' liability insurance, Indemnitee shall be covered by such policy or policies, in accordance with its or their terms, to the maximum extent of the coverage available for any Company director or officer.
11. Period of Limitations. No legal action shall be brought and no cause of action shall be asserted by or in the right of the Company against Indemnitee, Indemnitee's spouse, heirs, executors or personal or legal representatives after the
expiration of two years from the date of accrual of such cause of action, and any claim or cause of action of the Company shall be extinguished and deemed released unless asserted by the timely filing of a legal action within such two-year period; provided, however, that if any shorter period of limitations is otherwise applicable to any such cause of action such shorter period shall govern.
12. Amendments, Etc. No supplement, modification or amendment of this Agreement shall be binding unless executed in writing by both of the parties hereto. No waiver of any of the provisions of this Agreement shall be deemed or shall constitute a waiver of any other provisions hereof (whether or not similar) nor shall such waiver constitute a continuing waiver.
13. Subrogation. In the event of payment under this Agreement, the Company shall be subrogated to the extent of such payment to all of the rights of recovery of Indemnitee, who shall execute all papers required and shall do everything that may be necessary to secure such rights, including the execution of such documents necessary to enable the Company effectively to bring suit to enforce such rights.
14. No Duplication of Payments. The Company shall not be liable under this Agreement to make any payment in connection with any Claim made against Indemnitee to the extent Indemnitee has otherwise actually received payment (under any insurance policy, Bylaw or otherwise) of the amounts otherwise indemnifiable hereunder.
15. Binding Effect, Etc. This Agreement shall be binding upon and inure to the benefit of and be enforceable by the parties hereto and their respective successors, assigns, including any direct or indirect successor by purchase, merger, consolidation or otherwise to all or substantially all of the business and/or assets of the Company, spouses, heirs, executors and personal and legal representatives. This Agreement shall continue in effect regardless of whether Indemnitee continues to serve as an officer or director of the Company or of any other enterprise at the Company's request.
16. Severability. The provisions of this Agreement shall be severable in the event that any of the provisions hereof (including any provision within a single section, paragraph or sentence) are held by a court of competent jurisdiction to be invalid, void or otherwise unenforceable in any respect, and the validity and enforceability of any such provision in every other respect and of the remaining provisions hereof shall not be in any way impaired and shall remain enforceable to the fullest extent permitted by law.
17. Governing Law. This Agreement shall be governed by and construed and enforced in accordance with the laws of the State of Delaware applicable to contracts made and to be performed in such state without giving effect to the principles of conflicts of laws.
18. Amendment and Restatement. This Agreement shall amend and restate in its entirety that certain Indemnification Agreement dated as of August 3, 1993, as amended, between the Indemnitee and Belden Inc. (which has been assumed by the Company).
IN WITNESS WHEREOF, the parties hereto have executed this Agreement this 1st day September 2004.
By /s/ Kevin L. Bloomfield ------------------------------------------------- Name: Kevin L. Bloomfield Title: Vice President, Secretary and General Counsel /s/ C. Baker Cunningham ------------------------------------------------- C. Baker Cunningham (Indemnitee) |
EXHIBIT 10.33
INDEMNIFICATION AGREEMENT
AGREEMENT, effective as of September 1, 2004, between Belden CDT Inc., a Delaware corporation (the "Company"), and Richard K. Reece (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:
1. Certain Definitions:
(a) Change in Control: shall be deemed to have occurred if (i) any "person" (as such term is used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as amended), other than a trustee or other fiduciary holding securities under an employee benefit plan of the Company or a corporation owned directly or indirectly by the stockholders of the Company in substantially the same proportions as their ownership of stock of the Company, is or becomes the "beneficial owner" (as defined in Rule 13d-3 under said Act), directly or indirectly, of securities of the Company
representing 20% or more of the total voting power represented by the Company's then outstanding Voting Securities, or (ii) during any period of two consecutive years, individuals who at the beginning of such period constitute the Board of Directors of the Company and any new director whose election by the Board of Directors or nomination for election by the Company's stockholders was approved by a vote of at least two-thirds (2/3) of the directors then still in office who either were directors at the beginning of the period or whose election or nomination for election was previously so approved, cease for any reason to constitute a majority thereof, or (iii) the stockholders of the Company approve a merger or consolidation of the Company with any other corporation, other than a merger or consolidation which would result in the Voting Securities of the Company outstanding immediately prior thereto continuing to represent (either by remaining outstanding or by being converted into Voting Securities of the surviving entity) at least 80% of the total voting power represented by the Voting Securities of the Company or such surviving entity outstanding immediately after such merger or consolidation, or the stockholders of the Company approve a plan of complete liquidation of the Company or an agreement for the sale or disposition by the Company of (in one transaction or a series of transactions) all or substantially all the Company's assets.
(b) Claim: any threatened, pending or completed action, suit or proceeding, or any inquiry or investigation, whether instituted by the Company or any other party, that Indemnitee in good faith believes might lead to the institution of any such action, suit or proceeding, whether civil, criminal, administrative, investigative or other.
(c) Expenses: include attorneys' fees and all other costs, expenses and obligations paid or incurred in connection with investigating, defending, being a witness in or participating in (including on appeal), or preparing to defend, be a witness in or participate in, any Claim relating to any Indemnifiable Event.
(d) Indemnifiable Event: any event or occurrence related to the fact that Indemnitee is or was a director, officer, employee, agent or fiduciary of the Company, or 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.
(e) Independent Legal Counsel: an attorney or firm of attorneys, selected in accordance with the provisions of Section 3, who shall not have otherwise performed services for the Company or Indemnitee within the last five years (other than with respect to matters concerning the rights of
Indemnitee under this Agreement, or of other indemnitees under similar indemnity agreements).
(f) Potential Change in Control: shall be deemed to have occurred
if (i) the Company enters into an agreement, the consummation
of which would result in the occurrence of a Change in
Control; (ii) any person (including the Company) publicly
announces an intention to take or to consider taking actions
which if consummated would constitute a Change in Control;
(iii) any person, other than a trustee or other fiduciary
holding securities under an employee benefit plan of the
Company or a corporation owned, directly or indirectly, by the
stockholders of the Company in substantially the same
proportions as their ownership of stock of the Company, who is
or becomes the beneficial owner, directly or indirectly, of
securities of the Company representing 9.5% or more of the
combined voting power of the Company's then outstanding Voting
Securities, increases his beneficial ownership of such
securities by five percentage points (5%) or more over the
percentage so owned by such person; or (iv) the Board adopts a
resolution to the effect that, for purposes of this Agreement,
a Potential Change in Control has occurred.
(g) Reviewing Party: any appropriate person or body consisting of a member or members of the Company's Board of Directors or any other person or body appointed by the Board who is not a party to the particular Claim for which Indemnitee is seeking indemnification, or Independent Legal Counsel.
(h) Voting Securities: any securities of the Company which vote generally in the election of directors.
2. Basic Indemnification Arrangement.
(a) In the event Indemnitee was, is or becomes a party to or witness or other participant in, or is threatened to be made a party to or witness or other participant in, a Claim by reason of (or arising in part out of) an Indemnifiable Event, the Company shall indemnify Indemnitee to the fullest extent permitted by law as soon as practicable but in any event no later than thirty days after written demand is presented to the Company, against any and all Expenses, judgments, fines, penalties and amounts paid in settlement (including all interest, assessments and other charges paid or payable in connection with or in respect of such Expenses, judgments, fines, penalties or amounts paid in settlement) 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").
(b) Notwithstanding the foregoing, (i) the obligations of the Company under Section 2(a) shall be subject to the condition that the Reviewing Party
shall not have determined (in a written opinion, in any case in which the Independent Legal Counsel referred to in Section 3 hereof is involved) that Indemnitee would not be permitted to be indemnified under applicable law, and (ii) the obligation of the Company to make an Expense Advance pursuant to Section 2(a) shall be subject to the condition that, if, when and to the extent that the Reviewing Party determines that Indemnitee would not be permitted to be so indemnified under applicable law, the Company shall be entitled to be reimbursed by Indemnitee (who hereby agrees to reimburse the Company) for all such amounts theretofore paid; provided, however, that if Indemnitee has commenced or thereafter commences legal proceedings in a court of competent jurisdiction to secure a determination that Indemnitee should be indemnified under applicable law, any determination made by the Reviewing Party that Indemnitee would not be permitted to be indemnified under applicable law shall not be binding and Indemnitee shall not be required to reimburse the Company for any Expense Advance until a final judicial determination is made with respect thereto (as to which all rights of appeal therefrom have been exhausted or lapsed). If there has not been a Change in Control, the Reviewing Party shall be selected by the Board of Directors, and if there has been such a Change in Control (other than a Change in Control which has been approved by a majority of the Company's Board of Directors who were directors immediately prior to such Change in Control), the Reviewing Party shall be the Independent Legal Counsel referred to in Section 3 hereof. If there has been no determination by the Reviewing Party or if the Reviewing Party determines that Indemnitee substantively would not be permitted to be indemnified in whole or in part under applicable law, Indemnitee shall have the right to commence litigation in any court in the State of Delaware having subject matter jurisdiction thereof and in which venue is proper seeking an initial determination by the court or challenging any such determination by the Reviewing Party or any aspect thereof, including the legal or factual bases therefor, and the Company hereby consents to service of process and to appear in any such proceeding. Any determination by the Reviewing Party otherwise shall be conclusive and binding on the Company and Indemnitee.
3. Change in Control. The Company agrees that if there is a Change in Control of the Company (other than a Change in Control which has been approved by a majority of the Company's Board of Directors who were directors immediately prior to such Change in Control) then with respect to all matters thereafter arising concerning the rights of Indemnitee to indemnity payments and Expense Advances under this Agreement or any other agreement or Company Bylaw now or hereafter in effect relating to Claims for Indemnifiable Events, the Company shall seek legal advice only from Independent Legal Counsel selected by Indemnitee and approved by the Company (which approval shall not be unreasonably withheld). Such counsel, among other things, shall render its written opinion to the Company and Indemnitee as to whether and to what extent the Indemnitee would be permitted to be indemnified under applicable law. The
Company agrees to pay the reasonable fees of the Independent Legal Counsel referred to above and to indemnify fully such counsel against any and all expenses (including attorneys' fees), claims, liabilities and damages arising out of or relating to this Agreement or its engagement pursuant hereto.
4. Establishment of Trust. In the event of a Potential Change in Control,
the Company shall, upon written request by Indemnitee, create a trust
for the benefit of Indemnitee and from time to time upon written
request of Indemnitee shall fund such trust in an amount sufficient to
satisfy any and all Expenses reasonably anticipated at the time of each
such request to be incurred in connection with investigating, preparing
for and defending any Claim relating to an Indemnifiable Event, and any
and all judgments, fines, penalties and settlement amounts of any and
all Claims relating to an Indemnifiable Event from time to time
actually paid or claimed, reasonably anticipated or proposed to be
paid. The amount or amounts to be deposited in the trust pursuant to
the foregoing funding obligation shall be determined by the Reviewing
Party, in any case in which the Independent Legal Counsel referred to
above is involved. The terms of the trust shall provide that (i) the
trust shall not be revoked or the principal thereof invaded, without
the written consent of the Indemnitee, (ii) the trustee shall advance,
within two business days of a request by the Indemnitee, any and all
Expenses to the Indemnitee (and the Indemnitee hereby agrees to
reimburse the trust under the circumstances under which the Indemnitee
would be required to reimburse the Company under Section 2(b) of this
Agreement), (iii) the trust shall continue to be funded by the Company
in accordance with the funding obligation set forth above, (iv) the
trustee shall promptly pay to Indemnitee all amounts for which
Indemnitee shall be entitled to indemnification pursuant to this
Agreement or otherwise, and (v) all unexpended funds in such trust
shall revert to the Company upon a final determination by the Reviewing
Party or a court of competent jurisdiction, as the case may be, that
Indemnitee has been fully indemnified under the terms of this
Agreement. The trustee shall be chosen by Indemnitee. Nothing in this
Section 4 shall relieve the Company of any of its obligations under
this Agreement.
5. Indemnification for Additional Expenses. The Company shall indemnify
Indemnitee against any and all expenses (including attorneys' fees)
and, if requested by Indemnitee, shall (within two business days of
such request) advance such expenses to Indemnitee, which are incurred
by Indemnitee in connection with any action brought by Indemnitee for
(i) indemnification or advance payment of Expenses by the Company under
this Agreement or any other agreement or Company Bylaw now or hereafter
in effect relating to Claims for Indemnifiable Events and/or (ii)
recovery under any directors' and officers' liability insurance
policies maintained by the Company, regardless of whether Indemnitee
ultimately is determined to be entitled to such indemnification,
advance expense payment or insurance recovery, as the case may be.
6. Partial Indemnity, Etc. If Indemnitee is entitled under any provision of this Agreement to indemnification by the Company for some or a portion of the
Expenses, judgments, fines, penalties and amounts paid in settlement arising from or relating to a Claim but not, however, for all of the total amount thereof, the Company shall nevertheless indemnify Indemnitee for the portion thereof to which Indemnitee is entitled. Moreover, notwithstanding any other provision of this Agreement, to the extent that Indemnitee has been successful on the merits or otherwise in defense of any or all Claims relating in whole or in part to an Indemnifiable Event or in defense of any issue or matter therein, including dismissal without prejudice, Indemnitee shall be indemnified against all Expenses incurred in connection therewith.
7. Burden of Proof. In connection with any determination by the Reviewing Party or otherwise as to whether Indemnitee is entitled to be indemnified hereunder the burden of proof shall be on the Company to establish that Indemnitee is not so entitled.
8. No Presumptions. For purposes of this Agreement, the termination of any claim, action, suit or proceeding, by judgment, order, settlement (whether with or without court approval) or conviction, or upon a plea of nolo contendere, or its equivalent, shall not create a presumption that Indemnitee did not meet any particular standard of conduct or have any particular belief or that a court has determined that indemnification is not permitted by applicable law. In addition, neither the failure of the Reviewing Party to have made a determination as to whether Indemnitee has met any particular standard of conduct or had any particular belief, nor an actual determination by the Reviewing Party that Indemnitee has not met such standard of conduct or did not have such belief, prior to the commencement of legal proceedings by Indemnitee to secure a judicial determination that Indemnitee should be indemnified under applicable law shall be a defense to Indemnitee's claim or create a presumption that Indemnitee has not met any particular standard of conduct or did not have any particular belief.
9. Nonexclusivity, Etc. The rights of the Indemnitee hereunder shall be in addition to any other rights Indemnitee may have under the Company's Amended and Restated Bylaws or the Delaware General Corporation Law or otherwise. To the extent that a change in the Delaware General Corporation Law (whether by statute or judicial decision) permits greater indemnification by agreement than would be afforded currently under the Company's Amended and Restated Bylaws and this Agreement, it is the intent of the parties hereto that Indemnitee shall enjoy by this Agreement the greater benefits so afforded by such change.
10. Liability Insurance. To the extent the Company maintains an insurance policy or policies providing directors' and officers' liability insurance, Indemnitee shall be covered by such policy or policies, in accordance with its or their terms, to the maximum extent of the coverage available for any Company director or officer.
11. Period of Limitations. No legal action shall be brought and no cause of action shall be asserted by or in the right of the Company against Indemnitee, Indemnitee's spouse, heirs, executors or personal or legal representatives after the
expiration of two years from the date of accrual of such cause of action, and any claim or cause of action of the Company shall be extinguished and deemed released unless asserted by the timely filing of a legal action within such two-year period; provided, however, that if any shorter period of limitations is otherwise applicable to any such cause of action such shorter period shall govern.
12. Amendments, Etc. No supplement, modification or amendment of this Agreement shall be binding unless executed in writing by both of the parties hereto. No waiver of any of the provisions of this Agreement shall be deemed or shall constitute a waiver of any other provisions hereof (whether or not similar) nor shall such waiver constitute a continuing waiver.
13. Subrogation. In the event of payment under this Agreement, the Company shall be subrogated to the extent of such payment to all of the rights of recovery of Indemnitee, who shall execute all papers required and shall do everything that may be necessary to secure such rights, including the execution of such documents necessary to enable the Company effectively to bring suit to enforce such rights.
14. No Duplication of Payments. The Company shall not be liable under this Agreement to make any payment in connection with any Claim made against Indemnitee to the extent Indemnitee has otherwise actually received payment (under any insurance policy, Bylaw or otherwise) of the amounts otherwise indemnifiable hereunder.
15. Binding Effect, Etc. This Agreement shall be binding upon and inure to the benefit of and be enforceable by the parties hereto and their respective successors, assigns, including any direct or indirect successor by purchase, merger, consolidation or otherwise to all or substantially all of the business and/or assets of the Company, spouses, heirs, executors and personal and legal representatives. This Agreement shall continue in effect regardless of whether Indemnitee continues to serve as an officer or director of the Company or of any other enterprise at the Company's request.
16. Severability. The provisions of this Agreement shall be severable in the event that any of the provisions hereof (including any provision within a single section, paragraph or sentence) are held by a court of competent jurisdiction to be invalid, void or otherwise unenforceable in any respect, and the validity and enforceability of any such provision in every other respect and of the remaining provisions hereof shall not be in any way impaired and shall remain enforceable to the fullest extent permitted by law.
17. Governing Law. This Agreement shall be governed by and construed and enforced in accordance with the laws of the State of Delaware applicable to contracts made and to be performed in such state without giving effect to the principles of conflicts of laws.
18. Amendment and Restatement. This Agreement shall amend and restate in its entirety that certain Indemnification Agreement dated as of August 3, 1993, as amended, between the Indemnitee and Belden Inc. (which has been assumed by the Company).
IN WITNESS WHEREOF, the parties hereto have executed this Agreement this 1st day September 2004.
By: /s/ C. Baker Cunningham ------------------------- Name: C. Baker Cunningham Title: Chief Executive Officer and President /s/ Richard K. Reece ------------------------- Richard K. Reece (Indemnitee) |
EXHIBIT 10.34
INDEMNIFICATION AGREEMENT
AGREEMENT, effective as of September 1, 2004, between Belden CDT Inc., a Delaware corporation (the "Company"), and Kevin L. Bloomfield (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:
1. Certain Definitions:
(a) Change in Control: shall be deemed to have occurred if (i) any "person" (as such term is used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as amended), other than a trustee or other fiduciary holding securities under an employee benefit plan of the Company or a corporation owned directly or indirectly by the stockholders of the Company in substantially the same proportions as their ownership of stock of the Company, is or becomes the "beneficial owner" (as defined in Rule
13d-3 under said Act), directly or indirectly, of securities of the Company representing 20% or more of the total voting power represented by the Company's then outstanding Voting Securities, or (ii) during any period of two consecutive years, individuals who at the beginning of such period constitute the Board of Directors of the Company and any new director whose election by the Board of Directors or nomination for election by the Company's stockholders was approved by a vote of at least two-thirds (2/3) of the directors then still in office who either were directors at the beginning of the period or whose election or nomination for election was previously so approved, cease for any reason to constitute a majority thereof, or (iii) the stockholders of the Company approve a merger or consolidation of the Company with any other corporation, other than a merger or consolidation which would result in the Voting Securities of the Company outstanding immediately prior thereto continuing to represent (either by remaining outstanding or by being converted into Voting Securities of the surviving entity) at least 80% of the total voting power represented by the Voting Securities of the Company or such surviving entity outstanding immediately after such merger or consolidation, or the stockholders of the Company approve a plan of complete liquidation of the Company or an agreement for the sale or disposition by the Company of (in one transaction or a series of transactions) all or substantially all the Company's assets.
(b) Claim: any threatened, pending or completed action, suit or proceeding, or any inquiry or investigation, whether instituted by the Company or any other party, that Indemnitee in good faith believes might lead to the institution of any such action, suit or proceeding, whether civil, criminal, administrative, investigative or other.
(c) Expenses: include attorneys' fees and all other costs, expenses and obligations paid or incurred in connection with investigating, defending, being a witness in or participating in (including on appeal), or preparing to defend, be a witness in or participate in, any Claim relating to any Indemnifiable Event.
(d) Indemnifiable Event: any event or occurrence related to the fact that Indemnitee is or was a director, officer, employee, agent or fiduciary of the Company, or 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.
(e) Independent Legal Counsel: an attorney or firm of attorneys, selected in accordance with the provisions of Section 3, who shall not have otherwise performed services for the Company or Indemnitee within the last five years (other than with respect to matters concerning the rights of
Indemnitee under this Agreement, or of other indemnitees under similar indemnity agreements).
(f) Potential Change in Control: shall be deemed to have occurred
if (i) the Company enters into an agreement, the consummation
of which would result in the occurrence of a Change in
Control; (ii) any person (including the Company) publicly
announces an intention to take or to consider taking actions
which if consummated would constitute a Change in Control;
(iii) any person, other than a trustee or other fiduciary
holding securities under an employee benefit plan of the
Company or a corporation owned, directly or indirectly, by the
stockholders of the Company in substantially the same
proportions as their ownership of stock of the Company, who is
or becomes the beneficial owner, directly or indirectly, of
securities of the Company representing 9.5% or more of the
combined voting power of the Company's then outstanding Voting
Securities, increases his beneficial ownership of such
securities by five percentage points (5%) or more over the
percentage so owned by such person; or (iv) the Board adopts a
resolution to the effect that, for purposes of this Agreement,
a Potential Change in Control has occurred.
(g) Reviewing Party: any appropriate person or body consisting of a member or members of the Company's Board of Directors or any other person or body appointed by the Board who is not a party to the particular Claim for which Indemnitee is seeking indemnification, or Independent Legal Counsel.
(h) Voting Securities: any securities of the Company which vote generally in the election of directors.
2. Basic Indemnification Arrangement.
(a) In the event Indemnitee was, is or becomes a party to or witness or other participant in, or is threatened to be made a party to or witness or other participant in, a Claim by reason of (or arising in part out of) an Indemnifiable Event, the Company shall indemnify Indemnitee to the fullest extent permitted by law as soon as practicable but in any event no later than thirty days after written demand is presented to the Company, against any and all Expenses, judgments, fines, penalties and amounts paid in settlement (including all interest, assessments and other charges paid or payable in connection with or in respect of such Expenses, judgments, fines, penalties or amounts paid in settlement) 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").
(b) Notwithstanding the foregoing, (i) the obligations of the Company under Section 2(a) shall be subject to the condition that the Reviewing Party
shall not have determined (in a written opinion, in any case in which the Independent Legal Counsel referred to in Section 3 hereof is involved) that Indemnitee would not be permitted to be indemnified under applicable law, and (ii) the obligation of the Company to make an Expense Advance pursuant to Section 2(a) shall be subject to the condition that, if, when and to the extent that the Reviewing Party determines that Indemnitee would not be permitted to be so indemnified under applicable law, the Company shall be entitled to be reimbursed by Indemnitee (who hereby agrees to reimburse the Company) for all such amounts theretofore paid; provided, however, that if Indemnitee has commenced or thereafter commences legal proceedings in a court of competent jurisdiction to secure a determination that Indemnitee should be indemnified under applicable law, any determination made by the Reviewing Party that Indemnitee would not be permitted to be indemnified under applicable law shall not be binding and Indemnitee shall not be required to reimburse the Company for any Expense Advance until a final judicial determination is made with respect thereto (as to which all rights of appeal therefrom have been exhausted or lapsed). If there has not been a Change in Control, the Reviewing Party shall be selected by the Board of Directors, and if there has been such a Change in Control (other than a Change in Control which has been approved by a majority of the Company's Board of Directors who were directors immediately prior to such Change in Control), the Reviewing Party shall be the Independent Legal Counsel referred to in Section 3 hereof. If there has been no determination by the Reviewing Party or if the Reviewing Party determines that Indemnitee substantively would not be permitted to be indemnified in whole or in part under applicable law, Indemnitee shall have the right to commence litigation in any court in the State of Delaware having subject matter jurisdiction thereof and in which venue is proper seeking an initial determination by the court or challenging any such determination by the Reviewing Party or any aspect thereof, including the legal or factual bases therefor, and the Company hereby consents to service of process and to appear in any such proceeding. Any determination by the Reviewing Party otherwise shall be conclusive and binding on the Company and Indemnitee.
3. Change in Control. The Company agrees that if there is a Change in Control of the Company (other than a Change in Control which has been approved by a majority of the Company's Board of Directors who were directors immediately prior to such Change in Control) then with respect to all matters thereafter arising concerning the rights of Indemnitee to indemnity payments and Expense Advances under this Agreement or any other agreement or Company Bylaw now or hereafter in effect relating to Claims for Indemnifiable Events, the Company shall seek legal advice only from Independent Legal Counsel selected by Indemnitee and approved by the Company (which approval shall not be unreasonably withheld). Such counsel, among other things, shall render its written opinion to the Company and Indemnitee as to whether and to what extent the Indemnitee would be permitted to be indemnified under applicable law. The
Company agrees to pay the reasonable fees of the Independent Legal Counsel referred to above and to indemnify fully such counsel against any and all expenses (including attorneys' fees), claims, liabilities and damages arising out of or relating to this Agreement or its engagement pursuant hereto.
4. Establishment of Trust. In the event of a Potential Change in Control,
the Company shall, upon written request by Indemnitee, create a trust
for the benefit of Indemnitee and from time to time upon written
request of Indemnitee shall fund such trust in an amount sufficient to
satisfy any and all Expenses reasonably anticipated at the time of each
such request to be incurred in connection with investigating, preparing
for and defending any Claim relating to an Indemnifiable Event, and any
and all judgments, fines, penalties and settlement amounts of any and
all Claims relating to an Indemnifiable Event from time to time
actually paid or claimed, reasonably anticipated or proposed to be
paid. The amount or amounts to be deposited in the trust pursuant to
the foregoing funding obligation shall be determined by the Reviewing
Party, in any case in which the Independent Legal Counsel referred to
above is involved. The terms of the trust shall provide that (i) the
trust shall not be revoked or the principal thereof invaded, without
the written consent of the Indemnitee, (ii) the trustee shall advance,
within two business days of a request by the Indemnitee, any and all
Expenses to the Indemnitee (and the Indemnitee hereby agrees to
reimburse the trust under the circumstances under which the Indemnitee
would be required to reimburse the Company under Section 2(b) of this
Agreement), (iii) the trust shall continue to be funded by the Company
in accordance with the funding obligation set forth above, (iv) the
trustee shall promptly pay to Indemnitee all amounts for which
Indemnitee shall be entitled to indemnification pursuant to this
Agreement or otherwise, and (v) all unexpended funds in such trust
shall revert to the Company upon a final determination by the Reviewing
Party or a court of competent jurisdiction, as the case may be, that
Indemnitee has been fully indemnified under the terms of this
Agreement. The trustee shall be chosen by Indemnitee. Nothing in this
Section 4 shall relieve the Company of any of its obligations under
this Agreement.
5. Indemnification for Additional Expenses. The Company shall indemnify
Indemnitee against any and all expenses (including attorneys' fees)
and, if requested by Indemnitee, shall (within two business days of
such request) advance such expenses to Indemnitee, which are incurred
by Indemnitee in connection with any action brought by Indemnitee for
(i) indemnification or advance payment of Expenses by the Company under
this Agreement or any other agreement or Company Bylaw now or hereafter
in effect relating to Claims for Indemnifiable Events and/or (ii)
recovery under any directors' and officers' liability insurance
policies maintained by the Company, regardless of whether Indemnitee
ultimately is determined to be entitled to such indemnification,
advance expense payment or insurance recovery, as the case may be.
6. Partial Indemnity, Etc. If Indemnitee is entitled under any provision of this Agreement to indemnification by the Company for some or a portion of the
Expenses, judgments, fines, penalties and amounts paid in settlement arising from or relating to a Claim but not, however, for all of the total amount thereof, the Company shall nevertheless indemnify Indemnitee for the portion thereof to which Indemnitee is entitled. Moreover, notwithstanding any other provision of this Agreement, to the extent that Indemnitee has been successful on the merits or otherwise in defense of any or all Claims relating in whole or in part to an Indemnifiable Event or in defense of any issue or matter therein, including dismissal without prejudice, Indemnitee shall be indemnified against all Expenses incurred in connection therewith.
7. Burden of Proof. In connection with any determination by the Reviewing Party or otherwise as to whether Indemnitee is entitled to be indemnified hereunder the burden of proof shall be on the Company to establish that Indemnitee is not so entitled.
8. No Presumptions. For purposes of this Agreement, the termination of any claim, action, suit or proceeding, by judgment, order, settlement (whether with or without court approval) or conviction, or upon a plea of nolo contendere, or its equivalent, shall not create a presumption that Indemnitee did not meet any particular standard of conduct or have any particular belief or that a court has determined that indemnification is not permitted by applicable law. In addition, neither the failure of the Reviewing Party to have made a determination as to whether Indemnitee has met any particular standard of conduct or had any particular belief, nor an actual determination by the Reviewing Party that Indemnitee has not met such standard of conduct or did not have such belief, prior to the commencement of legal proceedings by Indemnitee to secure a judicial determination that Indemnitee should be indemnified under applicable law shall be a defense to Indemnitee's claim or create a presumption that Indemnitee has not met any particular standard of conduct or did not have any particular belief.
9. Nonexclusivity, Etc. The rights of the Indemnitee hereunder shall be in addition to any other rights Indemnitee may have under the Company's Amended and Restated Bylaws or the Delaware General Corporation Law or otherwise. To the extent that a change in the Delaware General Corporation Law (whether by statute or judicial decision) permits greater indemnification by agreement than would be afforded currently under the Company's Amended and Restated Bylaws and this Agreement, it is the intent of the parties hereto that Indemnitee shall enjoy by this Agreement the greater benefits so afforded by such change.
10. Liability Insurance. To the extent the Company maintains an insurance policy or policies providing directors' and officers' liability insurance, Indemnitee shall be covered by such policy or policies, in accordance with its or their terms, to the maximum extent of the coverage available for any Company director or officer.
11. Period of Limitations. No legal action shall be brought and no cause of action shall be asserted by or in the right of the Company against Indemnitee, Indemnitee's spouse, heirs, executors or personal or legal representatives after the
expiration of two years from the date of accrual of such cause of action, and any claim or cause of action of the Company shall be extinguished and deemed released unless asserted by the timely filing of a legal action within such two-year period; provided, however, that if any shorter period of limitations is otherwise applicable to any such cause of action such shorter period shall govern.
12. Amendments, Etc. No supplement, modification or amendment of this Agreement shall be binding unless executed in writing by both of the parties hereto. No waiver of any of the provisions of this Agreement shall be deemed or shall constitute a waiver of any other provisions hereof (whether or not similar) nor shall such waiver constitute a continuing waiver.
13. Subrogation. In the event of payment under this Agreement, the Company shall be subrogated to the extent of such payment to all of the rights of recovery of Indemnitee, who shall execute all papers required and shall do everything that may be necessary to secure such rights, including the execution of such documents necessary to enable the Company effectively to bring suit to enforce such rights.
14. No Duplication of Payments. The Company shall not be liable under this Agreement to make any payment in connection with any Claim made against Indemnitee to the extent Indemnitee has otherwise actually received payment (under any insurance policy, Bylaw or otherwise) of the amounts otherwise indemnifiable hereunder.
15. Binding Effect, Etc. This Agreement shall be binding upon and inure to the benefit of and be enforceable by the parties hereto and their respective successors, assigns, including any direct or indirect successor by purchase, merger, consolidation or otherwise to all or substantially all of the business and/or assets of the Company, spouses, heirs, executors and personal and legal representatives. This Agreement shall continue in effect regardless of whether Indemnitee continues to serve as an officer or director of the Company or of any other enterprise at the Company's request.
16. Severability. The provisions of this Agreement shall be severable in the event that any of the provisions hereof (including any provision within a single section, paragraph or sentence) are held by a court of competent jurisdiction to be invalid, void or otherwise unenforceable in any respect, and the validity and enforceability of any such provision in every other respect and of the remaining provisions hereof shall not be in any way impaired and shall remain enforceable to the fullest extent permitted by law.
17. Governing Law. This Agreement shall be governed by and construed and enforced in accordance with the laws of the State of Delaware applicable to contracts made and to be performed in such state without giving effect to the principles of conflicts of laws.
18. Amendment and Restatement. This Agreement shall amend and restate in its entirety that certain Indemnification Agreement dated as of August 3, 1993, as amended, between the Indemnitee and Belden Inc. (which has been assumed by the Company).
IN WITNESS WHEREOF, the parties hereto have executed this Agreement this 1st day September 2004.
By /s/ C. Baker Cunningham ---------------------------------- Name: C. Baker Cunningham Title: Chief Executive Officer and President /s/ Kevin L. Bloomfield ----------------------- Kevin L. Bloomfield (Indemnitee) |
EXHIBIT 10.35
INDEMNIFICATION AGREEMENT
AGREEMENT, effective as of September 1, 2004, between Belden CDT Inc., a Delaware corporation (the "Company"), and D. Larrie Rose (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:
1. Certain Definitions:
(a) Change in Control: shall be deemed to have occurred if (i) any "person" (as such term is used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as amended), other than a trustee or other fiduciary holding securities under an employee benefit plan of the Company or a corporation owned directly or indirectly by the stockholders of the Company in substantially the same proportions as their ownership of stock of the Company, is or becomes the "beneficial owner" (as defined in Rule 13d-3 under said Act), directly or indirectly, of securities of the Company
representing 20% or more of the total voting power represented by the Company's then outstanding Voting Securities, or (ii) during any period of two consecutive years, individuals who at the beginning of such period constitute the Board of Directors of the Company and any new director whose election by the Board of Directors or nomination for election by the Company's stockholders was approved by a vote of at least two-thirds (2/3) of the directors then still in office who either were directors at the beginning of the period or whose election or nomination for election was previously so approved, cease for any reason to constitute a majority thereof, or (iii) the stockholders of the Company approve a merger or consolidation of the Company with any other corporation, other than a merger or consolidation which would result in the Voting Securities of the Company outstanding immediately prior thereto continuing to represent (either by remaining outstanding or by being converted into Voting Securities of the surviving entity) at least 80% of the total voting power represented by the Voting Securities of the Company or such surviving entity outstanding immediately after such merger or consolidation, or the stockholders of the Company approve a plan of complete liquidation of the Company or an agreement for the sale or disposition by the Company of (in one transaction or a series of transactions) all or substantially all the Company's assets.
(b) Claim: any threatened, pending or completed action, suit or proceeding, or any inquiry or investigation, whether instituted by the Company or any other party, that Indemnitee in good faith believes might lead to the institution of any such action, suit or proceeding, whether civil, criminal, administrative, investigative or other.
(c) Expenses: include attorneys' fees and all other costs, expenses and obligations paid or incurred in connection with investigating, defending, being a witness in or participating in (including on appeal), or preparing to defend, be a witness in or participate in, any Claim relating to any Indemnifiable Event.
(d) Indemnifiable Event: any event or occurrence related to the fact that Indemnitee is or was a director, officer, employee, agent or fiduciary of the Company, or 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.
(e) Independent Legal Counsel: an attorney or firm of attorneys, selected in accordance with the provisions of Section 3, who shall not have otherwise performed services for the Company or Indemnitee within the last five years (other than with respect to matters concerning the rights of
Indemnitee under this Agreement, or of other indemnitees under similar indemnity agreements).
(f) Potential Change in Control: shall be deemed to have occurred
if (i) the Company enters into an agreement, the consummation
of which would result in the occurrence of a Change in
Control; (ii) any person (including the Company) publicly
announces an intention to take or to consider taking actions
which if consummated would constitute a Change in Control;
(iii) any person, other than a trustee or other fiduciary
holding securities under an employee benefit plan of the
Company or a corporation owned, directly or indirectly, by the
stockholders of the Company in substantially the same
proportions as their ownership of stock of the Company, who is
or becomes the beneficial owner, directly or indirectly, of
securities of the Company representing 9.5% or more of the
combined voting power of the Company's then outstanding Voting
Securities, increases his beneficial ownership of such
securities by five percentage points (5%) or more over the
percentage so owned by such person; or (iv) the Board adopts a
resolution to the effect that, for purposes of this Agreement,
a Potential Change in Control has occurred.
(g) Reviewing Party: any appropriate person or body consisting of a member or members of the Company's Board of Directors or any other person or body appointed by the Board who is not a party to the particular Claim for which Indemnitee is seeking indemnification, or Independent Legal Counsel.
(h) Voting Securities: any securities of the Company which vote generally in the election of directors.
2. Basic Indemnification Arrangement.
(a) In the event Indemnitee was, is or becomes a party to or witness or other participant in, or is threatened to be made a party to or witness or other participant in, a Claim by reason of (or arising in part out of) an Indemnifiable Event, the Company shall indemnify Indemnitee to the fullest extent permitted by law as soon as practicable but in any event no later than thirty days after written demand is presented to the Company, against any and all Expenses, judgments, fines, penalties and amounts paid in settlement (including all interest, assessments and other charges paid or payable in connection with or in respect of such Expenses, judgments, fines, penalties or amounts paid in settlement) 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").
(b) Notwithstanding the foregoing, (i) the obligations of the Company under Section 2(a) shall be subject to the condition that the Reviewing Party
shall not have determined (in a written opinion, in any case in which the Independent Legal Counsel referred to in Section 3 hereof is involved) that Indemnitee would not be permitted to be indemnified under applicable law, and (ii) the obligation of the Company to make an Expense Advance pursuant to Section 2(a) shall be subject to the condition that, if, when and to the extent that the Reviewing Party determines that Indemnitee would not be permitted to be so indemnified under applicable law, the Company shall be entitled to be reimbursed by Indemnitee (who hereby agrees to reimburse the Company) for all such amounts theretofore paid; provided, however, that if Indemnitee has commenced or thereafter commences legal proceedings in a court of competent jurisdiction to secure a determination that Indemnitee should be indemnified under applicable law, any determination made by the Reviewing Party that Indemnitee would not be permitted to be indemnified under applicable law shall not be binding and Indemnitee shall not be required to reimburse the Company for any Expense Advance until a final judicial determination is made with respect thereto (as to which all rights of appeal therefrom have been exhausted or lapsed). If there has not been a Change in Control, the Reviewing Party shall be selected by the Board of Directors, and if there has been such a Change in Control (other than a Change in Control which has been approved by a majority of the Company's Board of Directors who were directors immediately prior to such Change in Control), the Reviewing Party shall be the Independent Legal Counsel referred to in Section 3 hereof. If there has been no determination by the Reviewing Party or if the Reviewing Party determines that Indemnitee substantively would not be permitted to be indemnified in whole or in part under applicable law, Indemnitee shall have the right to commence litigation in any court in the State of Delaware having subject matter jurisdiction thereof and in which venue is proper seeking an initial determination by the court or challenging any such determination by the Reviewing Party or any aspect thereof, including the legal or factual bases therefor, and the Company hereby consents to service of process and to appear in any such proceeding. Any determination by the Reviewing Party otherwise shall be conclusive and binding on the Company and Indemnitee.
3. Change in Control. The Company agrees that if there is a Change in Control of the Company (other than a Change in Control which has been approved by a majority of the Company's Board of Directors who were directors immediately prior to such Change in Control) then with respect to all matters thereafter arising concerning the rights of Indemnitee to indemnity payments and Expense Advances under this Agreement or any other agreement or Company Bylaw now or hereafter in effect relating to Claims for Indemnifiable Events, the Company shall seek legal advice only from Independent Legal Counsel selected by Indemnitee and approved by the Company (which approval shall not be unreasonably withheld). Such counsel, among other things, shall render its written opinion to the Company and Indemnitee as to whether and to what extent the Indemnitee would be permitted to be indemnified under applicable law. The
Company agrees to pay the reasonable fees of the Independent Legal Counsel referred to above and to indemnify fully such counsel against any and all expenses (including attorneys' fees), claims, liabilities and damages arising out of or relating to this Agreement or its engagement pursuant hereto.
4. Establishment of Trust. In the event of a Potential Change in Control,
the Company shall, upon written request by Indemnitee, create a trust
for the benefit of Indemnitee and from time to time upon written
request of Indemnitee shall fund such trust in an amount sufficient to
satisfy any and all Expenses reasonably anticipated at the time of each
such request to be incurred in connection with investigating, preparing
for and defending any Claim relating to an Indemnifiable Event, and any
and all judgments, fines, penalties and settlement amounts of any and
all Claims relating to an Indemnifiable Event from time to time
actually paid or claimed, reasonably anticipated or proposed to be
paid. The amount or amounts to be deposited in the trust pursuant to
the foregoing funding obligation shall be determined by the Reviewing
Party, in any case in which the Independent Legal Counsel referred to
above is involved. The terms of the trust shall provide that (i) the
trust shall not be revoked or the principal thereof invaded, without
the written consent of the Indemnitee, (ii) the trustee shall advance,
within two business days of a request by the Indemnitee, any and all
Expenses to the Indemnitee (and the Indemnitee hereby agrees to
reimburse the trust under the circumstances under which the Indemnitee
would be required to reimburse the Company under Section 2(b) of this
Agreement), (iii) the trust shall continue to be funded by the Company
in accordance with the funding obligation set forth above, (iv) the
trustee shall promptly pay to Indemnitee all amounts for which
Indemnitee shall be entitled to indemnification pursuant to this
Agreement or otherwise, and (v) all unexpended funds in such trust
shall revert to the Company upon a final determination by the Reviewing
Party or a court of competent jurisdiction, as the case may be, that
Indemnitee has been fully indemnified under the terms of this
Agreement. The trustee shall be chosen by Indemnitee. Nothing in this
Section 4 shall relieve the Company of any of its obligations under
this Agreement.
5. Indemnification for Additional Expenses. The Company shall indemnify
Indemnitee against any and all expenses (including attorneys' fees)
and, if requested by Indemnitee, shall (within two business days of
such request) advance such expenses to Indemnitee, which are incurred
by Indemnitee in connection with any action brought by Indemnitee for
(i) indemnification or advance payment of Expenses by the Company under
this Agreement or any other agreement or Company Bylaw now or hereafter
in effect relating to Claims for Indemnifiable Events and/or (ii)
recovery under any directors' and officers' liability insurance
policies maintained by the Company, regardless of whether Indemnitee
ultimately is determined to be entitled to such indemnification,
advance expense payment or insurance recovery, as the case may be.
6. Partial Indemnity, Etc. If Indemnitee is entitled under any provision of this Agreement to indemnification by the Company for some or a portion of the
Expenses, judgments, fines, penalties and amounts paid in settlement arising from or relating to a Claim but not, however, for all of the total amount thereof, the Company shall nevertheless indemnify Indemnitee for the portion thereof to which Indemnitee is entitled. Moreover, notwithstanding any other provision of this Agreement, to the extent that Indemnitee has been successful on the merits or otherwise in defense of any or all Claims relating in whole or in part to an Indemnifiable Event or in defense of any issue or matter therein, including dismissal without prejudice, Indemnitee shall be indemnified against all Expenses incurred in connection therewith.
7. Burden of Proof. In connection with any determination by the Reviewing Party or otherwise as to whether Indemnitee is entitled to be indemnified hereunder the burden of proof shall be on the Company to establish that Indemnitee is not so entitled.
8. No Presumptions. For purposes of this Agreement, the termination of any claim, action, suit or proceeding, by judgment, order, settlement (whether with or without court approval) or conviction, or upon a plea of nolo contendere, or its equivalent, shall not create a presumption that Indemnitee did not meet any particular standard of conduct or have any particular belief or that a court has determined that indemnification is not permitted by applicable law. In addition, neither the failure of the Reviewing Party to have made a determination as to whether Indemnitee has met any particular standard of conduct or had any particular belief, nor an actual determination by the Reviewing Party that Indemnitee has not met such standard of conduct or did not have such belief, prior to the commencement of legal proceedings by Indemnitee to secure a judicial determination that Indemnitee should be indemnified under applicable law shall be a defense to Indemnitee's claim or create a presumption that Indemnitee has not met any particular standard of conduct or did not have any particular belief.
9. Nonexclusivity, Etc. The rights of the Indemnitee hereunder shall be in addition to any other rights Indemnitee may have under the Company's Amended and Restated Bylaws or the Delaware General Corporation Law or otherwise. To the extent that a change in the Delaware General Corporation Law (whether by statute or judicial decision) permits greater indemnification by agreement than would be afforded currently under the Company's Amended and Restated Bylaws and this Agreement, it is the intent of the parties hereto that Indemnitee shall enjoy by this Agreement the greater benefits so afforded by such change.
10. Liability Insurance. To the extent the Company maintains an insurance policy or policies providing directors' and officers' liability insurance, Indemnitee shall be covered by such policy or policies, in accordance with its or their terms, to the maximum extent of the coverage available for any Company director or officer.
11. Period of Limitations. No legal action shall be brought and no cause of action shall be asserted by or in the right of the Company against Indemnitee, Indemnitee's spouse, heirs, executors or personal or legal representatives after the
expiration of two years from the date of accrual of such cause of action, and any claim or cause of action of the Company shall be extinguished and deemed released unless asserted by the timely filing of a legal action within such two-year period; provided, however, that if any shorter period of limitations is otherwise applicable to any such cause of action such shorter period shall govern.
12. Amendments, Etc. No supplement, modification or amendment of this Agreement shall be binding unless executed in writing by both of the parties hereto. No waiver of any of the provisions of this Agreement shall be deemed or shall constitute a waiver of any other provisions hereof (whether or not similar) nor shall such waiver constitute a continuing waiver.
13. Subrogation. In the event of payment under this Agreement, the Company shall be subrogated to the extent of such payment to all of the rights of recovery of Indemnitee, who shall execute all papers required and shall do everything that may be necessary to secure such rights, including the execution of such documents necessary to enable the Company effectively to bring suit to enforce such rights.
14. No Duplication of Payments. The Company shall not be liable under this Agreement to make any payment in connection with any Claim made against Indemnitee to the extent Indemnitee has otherwise actually received payment (under any insurance policy, Bylaw or otherwise) of the amounts otherwise indemnifiable hereunder.
15. Binding Effect, Etc. This Agreement shall be binding upon and inure to the benefit of and be enforceable by the parties hereto and their respective successors, assigns, including any direct or indirect successor by purchase, merger, consolidation or otherwise to all or substantially all of the business and/or assets of the Company, spouses, heirs, executors and personal and legal representatives. This Agreement shall continue in effect regardless of whether Indemnitee continues to serve as an officer or director of the Company or of any other enterprise at the Company's request.
16. Severability. The provisions of this Agreement shall be severable in the event that any of the provisions hereof (including any provision within a single section, paragraph or sentence) are held by a court of competent jurisdiction to be invalid, void or otherwise unenforceable in any respect, and the validity and enforceability of any such provision in every other respect and of the remaining provisions hereof shall not be in any way impaired and shall remain enforceable to the fullest extent permitted by law.
17. Governing Law. This Agreement shall be governed by and construed and enforced in accordance with the laws of the State of Delaware applicable to contracts made and to be performed in such state without giving effect to the principles of conflicts of laws.
18. Amendment and Restatement. This Agreement shall amend and restate in its entirety that certain Indemnification Agreement dated as of April 15, 2002, as amended, between the Indemnitee and Belden Inc. (which has been assumed by the Company).
IN WITNESS WHEREOF, the parties hereto have executed this Agreement this 1st day September 2004.
By /s/ C. Baker Cunningham ----------------------------------- Name: C. Baker Cunningham Title: Chief Executive Officer and President /s/ D. Larrie Rose -------------------- D. Larrie Rose (Indemnitee) |
EXHIBIT 10.36
INDEMNIFICATION AGREEMENT
AGREEMENT, effective as of September 1, 2004, between Belden CDT Inc., a Delaware corporation (the "Company"), and Robert W. Matz (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:
1. Certain Definitions:
(a) Change in Control: shall be deemed to have occurred if
(i) any "person" (as such term is used in Sections 13(d) and
14(d) of the Securities Exchange Act of 1934, as amended),
other than a trustee or other fiduciary holding securities
under an employee benefit plan of the Company or a corporation
owned directly or indirectly by the stockholders of the
Company in substantially the same proportions as their
ownership of stock of the Company, is or becomes the
"beneficial owner" (as defined in Rule 13d-3 under said Act),
directly or indirectly, of securities of the Company
representing 20% or more of the total voting power represented by the Company's then outstanding Voting Securities, or (ii) during any period of two consecutive years, individuals who at the beginning of such period constitute the Board of Directors of the Company and any new director whose election by the Board of Directors or nomination for election by the Company's stockholders was approved by a vote of at least two-thirds (2/3) of the directors then still in office who either were directors at the beginning of the period or whose election or nomination for election was previously so approved, cease for any reason to constitute a majority thereof, or (iii) the stockholders of the Company approve a merger or consolidation of the Company with any other corporation, other than a merger or consolidation which would result in the Voting Securities of the Company outstanding immediately prior thereto continuing to represent (either by remaining outstanding or by being converted into Voting Securities of the surviving entity) at least 80% of the total voting power represented by the Voting Securities of the Company or such surviving entity outstanding immediately after such merger or consolidation, or the stockholders of the Company approve a plan of complete liquidation of the Company or an agreement for the sale or disposition by the Company of (in one transaction or a series of transactions) all or substantially all the Company's assets.
(b) Claim: any threatened, pending or completed action, suit or proceeding, or any inquiry or investigation, whether instituted by the Company or any other party, that Indemnitee in good faith believes might lead to the institution of any such action, suit or proceeding, whether civil, criminal, administrative, investigative or other.
(c) Expenses: include attorneys' fees and all other costs, expenses and obligations paid or incurred in connection with investigating, defending, being a witness in or participating in (including on appeal), or preparing to defend, be a witness in or participate in, any Claim relating to any Indemnifiable Event.
(d) Indemnifiable Event: any event or occurrence related to the fact that Indemnitee is or was a director, officer, employee, agent or fiduciary of the Company, or 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.
(e) Independent Legal Counsel: an attorney or firm of attorneys, selected in accordance with the provisions of Section 3, who shall not have otherwise performed services for the Company or Indemnitee within the last five years (other than with respect to matters concerning the rights of
Indemnitee under this Agreement, or of other indemnitees under similar indemnity agreements).
(f) Potential Change in Control: shall be deemed to have occurred
if (i) the Company enters into an agreement, the consummation
of which would result in the occurrence of a Change in
Control; (ii) any person (including the Company) publicly
announces an intention to take or to consider taking actions
which if consummated would constitute a Change in Control;
(iii) any person, other than a trustee or other fiduciary
holding securities under an employee benefit plan of the
Company or a corporation owned, directly or indirectly, by the
stockholders of the Company in substantially the same
proportions as their ownership of stock of the Company, who is
or becomes the beneficial owner, directly or indirectly, of
securities of the Company representing 9.5% or more of the
combined voting power of the Company's then outstanding Voting
Securities, increases his beneficial ownership of such
securities by five percentage points (5%) or more over the
percentage so owned by such person; or (iv) the Board adopts a
resolution to the effect that, for purposes of this Agreement,
a Potential Change in Control has occurred.
(g) Reviewing Party: any appropriate person or body consisting of a member or members of the Company's Board of Directors or any other person or body appointed by the Board who is not a party to the particular Claim for which Indemnitee is seeking indemnification, or Independent Legal Counsel.
(h) Voting Securities: any securities of the Company which vote generally in the election of directors.
2. Basic Indemnification Arrangement.
(a) In the event Indemnitee was, is or becomes a party to or witness or other participant in, or is threatened to be made a party to or witness or other participant in, a Claim by reason of (or arising in part out of) an Indemnifiable Event, the Company shall indemnify Indemnitee to the fullest extent permitted by law as soon as practicable but in any event no later than thirty days after written demand is presented to the Company, against any and all Expenses, judgments, fines, penalties and amounts paid in settlement (including all interest, assessments and other charges paid or payable in connection with or in respect of such Expenses, judgments, fines, penalties or amounts paid in settlement) 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").
(b) Notwithstanding the foregoing, (i) the obligations of the Company under Section 2(a) shall be subject to the condition that the Reviewing Party
shall not have determined (in a written opinion, in any case in which the Independent Legal Counsel referred to in Section 3 hereof is involved) that Indemnitee would not be permitted to be indemnified under applicable law, and (ii) the obligation of the Company to make an Expense Advance pursuant to Section 2(a) shall be subject to the condition that, if, when and to the extent that the Reviewing Party determines that Indemnitee would not be permitted to be so indemnified under applicable law, the Company shall be entitled to be reimbursed by Indemnitee (who hereby agrees to reimburse the Company) for all such amounts theretofore paid; provided, however, that if Indemnitee has commenced or thereafter commences legal proceedings in a court of competent jurisdiction to secure a determination that Indemnitee should be indemnified under applicable law, any determination made by the Reviewing Party that Indemnitee would not be permitted to be indemnified under applicable law shall not be binding and Indemnitee shall not be required to reimburse the Company for any Expense Advance until a final judicial determination is made with respect thereto (as to which all rights of appeal therefrom have been exhausted or lapsed). If there has not been a Change in Control, the Reviewing Party shall be selected by the Board of Directors, and if there has been such a Change in Control (other than a Change in Control which has been approved by a majority of the Company's Board of Directors who were directors immediately prior to such Change in Control), the Reviewing Party shall be the Independent Legal Counsel referred to in Section 3 hereof. If there has been no determination by the Reviewing Party or if the Reviewing Party determines that Indemnitee substantively would not be permitted to be indemnified in whole or in part under applicable law, Indemnitee shall have the right to commence litigation in any court in the State of Delaware having subject matter jurisdiction thereof and in which venue is proper seeking an initial determination by the court or challenging any such determination by the Reviewing Party or any aspect thereof, including the legal or factual bases therefor, and the Company hereby consents to service of process and to appear in any such proceeding. Any determination by the Reviewing Party otherwise shall be conclusive and binding on the Company and Indemnitee.
3. Change in Control. The Company agrees that if there is a Change in Control of the Company (other than a Change in Control which has been approved by a majority of the Company's Board of Directors who were directors immediately prior to such Change in Control) then with respect to all matters thereafter arising concerning the rights of Indemnitee to indemnity payments and Expense Advances under this Agreement or any other agreement or Company Bylaw now or hereafter in effect relating to Claims for Indemnifiable Events, the Company shall seek legal advice only from Independent Legal Counsel selected by Indemnitee and approved by the Company (which approval shall not be unreasonably withheld). Such counsel, among other things, shall render its written opinion to the Company and Indemnitee as to whether and to what extent the Indemnitee would be permitted to be indemnified under applicable law. The
Company agrees to pay the reasonable fees of the Independent Legal Counsel referred to above and to indemnify fully such counsel against any and all expenses (including attorneys' fees), claims, liabilities and damages arising out of or relating to this Agreement or its engagement pursuant hereto.
4. Establishment of Trust. In the event of a Potential Change in Control,
the Company shall, upon written request by Indemnitee, create a trust
for the benefit of Indemnitee and from time to time upon written
request of Indemnitee shall fund such trust in an amount sufficient to
satisfy any and all Expenses reasonably anticipated at the time of each
such request to be incurred in connection with investigating, preparing
for and defending any Claim relating to an Indemnifiable Event, and any
and all judgments, fines, penalties and settlement amounts of any and
all Claims relating to an Indemnifiable Event from time to time
actually paid or claimed, reasonably anticipated or proposed to be
paid. The amount or amounts to be deposited in the trust pursuant to
the foregoing funding obligation shall be determined by the Reviewing
Party, in any case in which the Independent Legal Counsel referred to
above is involved. The terms of the trust shall provide that (i) the
trust shall not be revoked or the principal thereof invaded, without
the written consent of the Indemnitee, (ii) the trustee shall advance,
within two business days of a request by the Indemnitee, any and all
Expenses to the Indemnitee (and the Indemnitee hereby agrees to
reimburse the trust under the circumstances under which the Indemnitee
would be required to reimburse the Company under Section 2(b) of this
Agreement), (iii) the trust shall continue to be funded by the Company
in accordance with the funding obligation set forth above, (iv) the
trustee shall promptly pay to Indemnitee all amounts for which
Indemnitee shall be entitled to indemnification pursuant to this
Agreement or otherwise, and (v) all unexpended funds in such trust
shall revert to the Company upon a final determination by the Reviewing
Party or a court of competent jurisdiction, as the case may be, that
Indemnitee has been fully indemnified under the terms of this
Agreement. The trustee shall be chosen by Indemnitee. Nothing in this
Section 4 shall relieve the Company of any of its obligations under
this Agreement.
5. Indemnification for Additional Expenses. The Company shall indemnify
Indemnitee against any and all expenses (including attorneys' fees)
and, if requested by Indemnitee, shall (within two business days of
such request) advance such expenses to Indemnitee, which are incurred
by Indemnitee in connection with any action brought by Indemnitee for
(i) indemnification or advance payment of Expenses by the Company under
this Agreement or any other agreement or Company Bylaw now or hereafter
in effect relating to Claims for Indemnifiable Events and/or (ii)
recovery under any directors' and officers' liability insurance
policies maintained by the Company, regardless of whether Indemnitee
ultimately is determined to be entitled to such indemnification,
advance expense payment or insurance recovery, as the case may be.
6. Partial Indemnity, Etc. If Indemnitee is entitled under any provision of this Agreement to indemnification by the Company for some or a portion of the
Expenses, judgments, fines, penalties and amounts paid in settlement arising from or relating to a Claim but not, however, for all of the total amount thereof, the Company shall nevertheless indemnify Indemnitee for the portion thereof to which Indemnitee is entitled. Moreover, notwithstanding any other provision of this Agreement, to the extent that Indemnitee has been successful on the merits or otherwise in defense of any or all Claims relating in whole or in part to an Indemnifiable Event or in defense of any issue or matter therein, including dismissal without prejudice, Indemnitee shall be indemnified against all Expenses incurred in connection therewith.
7. Burden of Proof. In connection with any determination by the Reviewing Party or otherwise as to whether Indemnitee is entitled to be indemnified hereunder the burden of proof shall be on the Company to establish that Indemnitee is not so entitled.
8. No Presumptions. For purposes of this Agreement, the termination of any claim, action, suit or proceeding, by judgment, order, settlement (whether with or without court approval) or conviction, or upon a plea of nolo contendere, or its equivalent, shall not create a presumption that Indemnitee did not meet any particular standard of conduct or have any particular belief or that a court has determined that indemnification is not permitted by applicable law. In addition, neither the failure of the Reviewing Party to have made a determination as to whether Indemnitee has met any particular standard of conduct or had any particular belief, nor an actual determination by the Reviewing Party that Indemnitee has not met such standard of conduct or did not have such belief, prior to the commencement of legal proceedings by Indemnitee to secure a judicial determination that Indemnitee should be indemnified under applicable law shall be a defense to Indemnitee's claim or create a presumption that Indemnitee has not met any particular standard of conduct or did not have any particular belief.
9. Nonexclusivity, Etc. The rights of the Indemnitee hereunder shall be in addition to any other rights Indemnitee may have under the Company's Amended and Restated Bylaws or the Delaware General Corporation Law or otherwise. To the extent that a change in the Delaware General Corporation Law (whether by statute or judicial decision) permits greater indemnification by agreement than would be afforded currently under the Company's Amended and Restated Bylaws and this Agreement, it is the intent of the parties hereto that Indemnitee shall enjoy by this Agreement the greater benefits so afforded by such change.
10. Liability Insurance. To the extent the Company maintains an insurance policy or policies providing directors' and officers' liability insurance, Indemnitee shall be covered by such policy or policies, in accordance with its or their terms, to the maximum extent of the coverage available for any Company director or officer.
11. Period of Limitations. No legal action shall be brought and no cause of action shall be asserted by or in the right of the Company against Indemnitee, Indemnitee's spouse, heirs, executors or personal or legal representatives after the
expiration of two years from the date of accrual of such cause of action, and any claim or cause of action of the Company shall be extinguished and deemed released unless asserted by the timely filing of a legal action within such two-year period; provided, however, that if any shorter period of limitations is otherwise applicable to any such cause of action such shorter period shall govern.
12. Amendments, Etc. No supplement, modification or amendment of this Agreement shall be binding unless executed in writing by both of the parties hereto. No waiver of any of the provisions of this Agreement shall be deemed or shall constitute a waiver of any other provisions hereof (whether or not similar) nor shall such waiver constitute a continuing waiver.
13. Subrogation. In the event of payment under this Agreement, the Company shall be subrogated to the extent of such payment to all of the rights of recovery of Indemnitee, who shall execute all papers required and shall do everything that may be necessary to secure such rights, including the execution of such documents necessary to enable the Company effectively to bring suit to enforce such rights.
14. No Duplication of Payments. The Company shall not be liable under this Agreement to make any payment in connection with any Claim made against Indemnitee to the extent Indemnitee has otherwise actually received payment (under any insurance policy, Bylaw or otherwise) of the amounts otherwise indemnifiable hereunder.
15. Binding Effect, Etc. This Agreement shall be binding upon and inure to the benefit of and be enforceable by the parties hereto and their respective successors, assigns, including any direct or indirect successor by purchase, merger, consolidation or otherwise to all or substantially all of the business and/or assets of the Company, spouses, heirs, executors and personal and legal representatives. This Agreement shall continue in effect regardless of whether Indemnitee continues to serve as an officer or director of the Company or of any other enterprise at the Company's request.
16. Severability. The provisions of this Agreement shall be severable in the event that any of the provisions hereof (including any provision within a single section, paragraph or sentence) are held by a court of competent jurisdiction to be invalid, void or otherwise unenforceable in any respect, and the validity and enforceability of any such provision in every other respect and of the remaining provisions hereof shall not be in any way impaired and shall remain enforceable to the fullest extent permitted by law.
17. Governing Law. This Agreement shall be governed by and construed and enforced in accordance with the laws of the State of Delaware applicable to contracts made and to be performed in such state without giving effect to the principles of conflicts of laws.
18. Amendment and Restatement. This Agreement shall amend and restate in its entirety that certain Indemnification Agreement dated as of May 13, 2002, as amended, between the Indemnitee and Belden Inc. (which has been assumed by the Company).
IN WITNESS WHEREOF, the parties hereto have executed this Agreement this 1st day September 2004.
By /s/ C. Baker Cunningham --------------------------------- Name: C. Baker Cunningham Title: Chief Executive Officer and President /s/ Robert W. Matz ------------------------ Robert W. Matz (Indemnitee) |
EXHIBIT 10.37
INDEMNIFICATION AGREEMENT
AGREEMENT, effective as of September 1, 2004, between Belden CDT Inc., a Delaware corporation (the "Company"), and Stephen H. Johnson (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:
1. Certain Definitions:
(a) Change in Control: shall be deemed to have occurred if
(i) any "person" (as such term is used in Sections 13(d) and
14(d) of the Securities Exchange Act of 1934, as amended),
other than a trustee or other fiduciary holding securities
under an employee benefit plan of the Company or a corporation
owned directly or indirectly by the stockholders of the
Company in substantially the same proportions as their
ownership of stock of the Company, is or becomes the
"beneficial owner" (as defined in Rule
13d-3 under said Act), directly or indirectly, of securities of the Company representing 20% or more of the total voting power represented by the Company's then outstanding Voting Securities, or (ii) during any period of two consecutive years, individuals who at the beginning of such period constitute the Board of Directors of the Company and any new director whose election by the Board of Directors or nomination for election by the Company's stockholders was approved by a vote of at least two-thirds (2/3) of the directors then still in office who either were directors at the beginning of the period or whose election or nomination for election was previously so approved, cease for any reason to constitute a majority thereof, or (iii) the stockholders of the Company approve a merger or consolidation of the Company with any other corporation, other than a merger or consolidation which would result in the Voting Securities of the Company outstanding immediately prior thereto continuing to represent (either by remaining outstanding or by being converted into Voting Securities of the surviving entity) at least 80% of the total voting power represented by the Voting Securities of the Company or such surviving entity outstanding immediately after such merger or consolidation, or the stockholders of the Company approve a plan of complete liquidation of the Company or an agreement for the sale or disposition by the Company of (in one transaction or a series of transactions) all or substantially all the Company's assets.
(b) Claim: any threatened, pending or completed action, suit or proceeding, or any inquiry or investigation, whether instituted by the Company or any other party, that Indemnitee in good faith believes might lead to the institution of any such action, suit or proceeding, whether civil, criminal, administrative, investigative or other.
(c) Expenses: include attorneys' fees and all other costs, expenses and obligations paid or incurred in connection with investigating, defending, being a witness in or participating in (including on appeal), or preparing to defend, be a witness in or participate in, any Claim relating to any Indemnifiable Event.
(d) Indemnifiable Event: any event or occurrence related to the fact that Indemnitee is or was a director, officer, employee, agent or fiduciary of the Company, or 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.
(e) Independent Legal Counsel: an attorney or firm of attorneys, selected in accordance with the provisions of Section 3, who shall not have otherwise performed services for the Company or Indemnitee within the last five years (other than with respect to matters concerning the rights of
Indemnitee under this Agreement, or of other indemnitees under similar indemnity agreements).
(f) Potential Change in Control: shall be deemed to have occurred
if (i) the Company enters into an agreement, the consummation
of which would result in the occurrence of a Change in
Control; (ii) any person (including the Company) publicly
announces an intention to take or to consider taking actions
which if consummated would constitute a Change in Control;
(iii) any person, other than a trustee or other fiduciary
holding securities under an employee benefit plan of the
Company or a corporation owned, directly or indirectly, by the
stockholders of the Company in substantially the same
proportions as their ownership of stock of the Company, who is
or becomes the beneficial owner, directly or indirectly, of
securities of the Company representing 9.5% or more of the
combined voting power of the Company's then outstanding Voting
Securities, increases his beneficial ownership of such
securities by five percentage points (5%) or more over the
percentage so owned by such person; or (iv) the Board adopts a
resolution to the effect that, for purposes of this Agreement,
a Potential Change in Control has occurred.
(g) Reviewing Party: any appropriate person or body consisting of a member or members of the Company's Board of Directors or any other person or body appointed by the Board who is not a party to the particular Claim for which Indemnitee is seeking indemnification, or Independent Legal Counsel.
(h) Voting Securities: any securities of the Company which vote generally in the election of directors.
2. Basic Indemnification Arrangement.
(a) In the event Indemnitee was, is or becomes a party to or witness or other participant in, or is threatened to be made a party to or witness or other participant in, a Claim by reason of (or arising in part out of) an Indemnifiable Event, the Company shall indemnify Indemnitee to the fullest extent permitted by law as soon as practicable but in any event no later than thirty days after written demand is presented to the Company, against any and all Expenses, judgments, fines, penalties and amounts paid in settlement (including all interest, assessments and other charges paid or payable in connection with or in respect of such Expenses, judgments, fines, penalties or amounts paid in settlement) 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").
(b) Notwithstanding the foregoing, (i) the obligations of the Company under Section 2(a) shall be subject to the condition that the Reviewing Party
shall not have determined (in a written opinion, in any case in which the Independent Legal Counsel referred to in Section 3 hereof is involved) that Indemnitee would not be permitted to be indemnified under applicable law, and (ii) the obligation of the Company to make an Expense Advance pursuant to Section 2(a) shall be subject to the condition that, if, when and to the extent that the Reviewing Party determines that Indemnitee would not be permitted to be so indemnified under applicable law, the Company shall be entitled to be reimbursed by Indemnitee (who hereby agrees to reimburse the Company) for all such amounts theretofore paid; provided, however, that if Indemnitee has commenced or thereafter commences legal proceedings in a court of competent jurisdiction to secure a determination that Indemnitee should be indemnified under applicable law, any determination made by the Reviewing Party that Indemnitee would not be permitted to be indemnified under applicable law shall not be binding and Indemnitee shall not be required to reimburse the Company for any Expense Advance until a final judicial determination is made with respect thereto (as to which all rights of appeal therefrom have been exhausted or lapsed). If there has not been a Change in Control, the Reviewing Party shall be selected by the Board of Directors, and if there has been such a Change in Control (other than a Change in Control which has been approved by a majority of the Company's Board of Directors who were directors immediately prior to such Change in Control), the Reviewing Party shall be the Independent Legal Counsel referred to in Section 3 hereof. If there has been no determination by the Reviewing Party or if the Reviewing Party determines that Indemnitee substantively would not be permitted to be indemnified in whole or in part under applicable law, Indemnitee shall have the right to commence litigation in any court in the State of Delaware having subject matter jurisdiction thereof and in which venue is proper seeking an initial determination by the court or challenging any such determination by the Reviewing Party or any aspect thereof, including the legal or factual bases therefor, and the Company hereby consents to service of process and to appear in any such proceeding. Any determination by the Reviewing Party otherwise shall be conclusive and binding on the Company and Indemnitee.
3. Change in Control. The Company agrees that if there is a Change in Control of the Company (other than a Change in Control which has been approved by a majority of the Company's Board of Directors who were directors immediately prior to such Change in Control) then with respect to all matters thereafter arising concerning the rights of Indemnitee to indemnity payments and Expense Advances under this Agreement or any other agreement or Company Bylaw now or hereafter in effect relating to Claims for Indemnifiable Events, the Company shall seek legal advice only from Independent Legal Counsel selected by Indemnitee and approved by the Company (which approval shall not be unreasonably withheld). Such counsel, among other things, shall render its written opinion to the Company and Indemnitee as to whether and to what extent the Indemnitee would be permitted to be indemnified under applicable law. The
Company agrees to pay the reasonable fees of the Independent Legal Counsel referred to above and to indemnify fully such counsel against any and all expenses (including attorneys' fees), claims, liabilities and damages arising out of or relating to this Agreement or its engagement pursuant hereto.
4. Establishment of Trust. In the event of a Potential Change in Control,
the Company shall, upon written request by Indemnitee, create a trust
for the benefit of Indemnitee and from time to time upon written
request of Indemnitee shall fund such trust in an amount sufficient to
satisfy any and all Expenses reasonably anticipated at the time of each
such request to be incurred in connection with investigating, preparing
for and defending any Claim relating to an Indemnifiable Event, and any
and all judgments, fines, penalties and settlement amounts of any and
all Claims relating to an Indemnifiable Event from time to time
actually paid or claimed, reasonably anticipated or proposed to be
paid. The amount or amounts to be deposited in the trust pursuant to
the foregoing funding obligation shall be determined by the Reviewing
Party, in any case in which the Independent Legal Counsel referred to
above is involved. The terms of the trust shall provide that (i) the
trust shall not be revoked or the principal thereof invaded, without
the written consent of the Indemnitee, (ii) the trustee shall advance,
within two business days of a request by the Indemnitee, any and all
Expenses to the Indemnitee (and the Indemnitee hereby agrees to
reimburse the trust under the circumstances under which the Indemnitee
would be required to reimburse the Company under Section 2(b) of this
Agreement), (iii) the trust shall continue to be funded by the Company
in accordance with the funding obligation set forth above, (iv) the
trustee shall promptly pay to Indemnitee all amounts for which
Indemnitee shall be entitled to indemnification pursuant to this
Agreement or otherwise, and (v) all unexpended funds in such trust
shall revert to the Company upon a final determination by the Reviewing
Party or a court of competent jurisdiction, as the case may be, that
Indemnitee has been fully indemnified under the terms of this
Agreement. The trustee shall be chosen by Indemnitee. Nothing in this
Section 4 shall relieve the Company of any of its obligations under
this Agreement.
5. Indemnification for Additional Expenses. The Company shall indemnify
Indemnitee against any and all expenses (including attorneys' fees)
and, if requested by Indemnitee, shall (within two business days of
such request) advance such expenses to Indemnitee, which are incurred
by Indemnitee in connection with any action brought by Indemnitee for
(i) indemnification or advance payment of Expenses by the Company under
this Agreement or any other agreement or Company Bylaw now or hereafter
in effect relating to Claims for Indemnifiable Events and/or (ii)
recovery under any directors' and officers' liability insurance
policies maintained by the Company, regardless of whether Indemnitee
ultimately is determined to be entitled to such indemnification,
advance expense payment or insurance recovery, as the case may be.
6. Partial Indemnity, Etc. If Indemnitee is entitled under any provision of this Agreement to indemnification by the Company for some or a portion of the
Expenses, judgments, fines, penalties and amounts paid in settlement arising from or relating to a Claim but not, however, for all of the total amount thereof, the Company shall nevertheless indemnify Indemnitee for the portion thereof to which Indemnitee is entitled. Moreover, notwithstanding any other provision of this Agreement, to the extent that Indemnitee has been successful on the merits or otherwise in defense of any or all Claims relating in whole or in part to an Indemnifiable Event or in defense of any issue or matter therein, including dismissal without prejudice, Indemnitee shall be indemnified against all Expenses incurred in connection therewith.
7. Burden of Proof. In connection with any determination by the Reviewing Party or otherwise as to whether Indemnitee is entitled to be indemnified hereunder the burden of proof shall be on the Company to establish that Indemnitee is not so entitled.
8. No Presumptions. For purposes of this Agreement, the termination of any claim, action, suit or proceeding, by judgment, order, settlement (whether with or without court approval) or conviction, or upon a plea of nolo contendere, or its equivalent, shall not create a presumption that Indemnitee did not meet any particular standard of conduct or have any particular belief or that a court has determined that indemnification is not permitted by applicable law. In addition, neither the failure of the Reviewing Party to have made a determination as to whether Indemnitee has met any particular standard of conduct or had any particular belief, nor an actual determination by the Reviewing Party that Indemnitee has not met such standard of conduct or did not have such belief, prior to the commencement of legal proceedings by Indemnitee to secure a judicial determination that Indemnitee should be indemnified under applicable law shall be a defense to Indemnitee's claim or create a presumption that Indemnitee has not met any particular standard of conduct or did not have any particular belief.
9. Nonexclusivity, Etc. The rights of the Indemnitee hereunder shall be in addition to any other rights Indemnitee may have under the Company's Amended and Restated Bylaws or the Delaware General Corporation Law or otherwise. To the extent that a change in the Delaware General Corporation Law (whether by statute or judicial decision) permits greater indemnification by agreement than would be afforded currently under the Company's Amended and Restated Bylaws and this Agreement, it is the intent of the parties hereto that Indemnitee shall enjoy by this Agreement the greater benefits so afforded by such change.
10. Liability Insurance. To the extent the Company maintains an insurance policy or policies providing directors' and officers' liability insurance, Indemnitee shall be covered by such policy or policies, in accordance with its or their terms, to the maximum extent of the coverage available for any Company director or officer.
11. Period of Limitations. No legal action shall be brought and no cause of action shall be asserted by or in the right of the Company against Indemnitee, Indemnitee's spouse, heirs, executors or personal or legal representatives after the
expiration of two years from the date of accrual of such cause of action, and any claim or cause of action of the Company shall be extinguished and deemed released unless asserted by the timely filing of a legal action within such two-year period; provided, however, that if any shorter period of limitations is otherwise applicable to any such cause of action such shorter period shall govern.
12. Amendments, Etc. No supplement, modification or amendment of this Agreement shall be binding unless executed in writing by both of the parties hereto. No waiver of any of the provisions of this Agreement shall be deemed or shall constitute a waiver of any other provisions hereof (whether or not similar) nor shall such waiver constitute a continuing waiver.
13. Subrogation. In the event of payment under this Agreement, the Company shall be subrogated to the extent of such payment to all of the rights of recovery of Indemnitee, who shall execute all papers required and shall do everything that may be necessary to secure such rights, including the execution of such documents necessary to enable the Company effectively to bring suit to enforce such rights.
14. No Duplication of Payments. The Company shall not be liable under this Agreement to make any payment in connection with any Claim made against Indemnitee to the extent Indemnitee has otherwise actually received payment (under any insurance policy, Bylaw or otherwise) of the amounts otherwise indemnifiable hereunder.
15. Binding Effect, Etc. This Agreement shall be binding upon and inure to the benefit of and be enforceable by the parties hereto and their respective successors, assigns, including any direct or indirect successor by purchase, merger, consolidation or otherwise to all or substantially all of the business and/or assets of the Company, spouses, heirs, executors and personal and legal representatives. This Agreement shall continue in effect regardless of whether Indemnitee continues to serve as an officer or director of the Company or of any other enterprise at the Company's request.
16. Severability. The provisions of this Agreement shall be severable in the event that any of the provisions hereof (including any provision within a single section, paragraph or sentence) are held by a court of competent jurisdiction to be invalid, void or otherwise unenforceable in any respect, and the validity and enforceability of any such provision in every other respect and of the remaining provisions hereof shall not be in any way impaired and shall remain enforceable to the fullest extent permitted by law.
17. Governing Law. This Agreement shall be governed by and construed and enforced in accordance with the laws of the State of Delaware applicable to contracts made and to be performed in such state without giving effect to the principles of conflicts of laws.
18. Amendment and Restatement. This Agreement shall amend and restate in its entirety that certain Indemnification Agreement dated as of July 3, 2000, as amended, between the Indemnitee and Belden Inc. (which has been assumed by the Company).
IN WITNESS WHEREOF, the parties hereto have executed this Agreement this 1st day September 2004.
By /s/ C. Baker Cunningham ---------------------------------- Name: C. Baker Cunningham Title: Chief Executive Officer and President /s/Stephen H. Johnson ----------------------------------- Stephen H. Johnson (Indemnitee) |
EXHIBIT 10.38
INDEMNIFICATION AGREEMENT
AGREEMENT, effective as of September 1, 2004, between Belden CDT Inc., a Delaware corporation (the "Company"), and Cathy O. Staples (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:
1. Certain Definitions:
(a) Change in Control: shall be deemed to have occurred if
(i) any "person" (as such term is used in Sections 13(d) and
14(d) of the Securities Exchange Act of 1934, as amended),
other than a trustee or other fiduciary holding securities
under an employee benefit plan of the Company or a corporation
owned directly or indirectly by the stockholders of the
Company in substantially the same proportions as their
ownership of stock of the Company, is or becomes the
"beneficial owner" (as defined in Rule 13d-3 under said Act),
directly or indirectly, of securities of the Company
representing 20% or more of the total voting power represented by the Company's then outstanding Voting Securities, or (ii) during any period of two consecutive years, individuals who at the beginning of such period constitute the Board of Directors of the Company and any new director whose election by the Board of Directors or nomination for election by the Company's stockholders was approved by a vote of at least two-thirds (2/3) of the directors then still in office who either were directors at the beginning of the period or whose election or nomination for election was previously so approved, cease for any reason to constitute a majority thereof, or (iii) the stockholders of the Company approve a merger or consolidation of the Company with any other corporation, other than a merger or consolidation which would result in the Voting Securities of the Company outstanding immediately prior thereto continuing to represent (either by remaining outstanding or by being converted into Voting Securities of the surviving entity) at least 80% of the total voting power represented by the Voting Securities of the Company or such surviving entity outstanding immediately after such merger or consolidation, or the stockholders of the Company approve a plan of complete liquidation of the Company or an agreement for the sale or disposition by the Company of (in one transaction or a series of transactions) all or substantially all the Company's assets.
(b) Claim: any threatened, pending or completed action, suit or proceeding, or any inquiry or investigation, whether instituted by the Company or any other party, that Indemnitee in good faith believes might lead to the institution of any such action, suit or proceeding, whether civil, criminal, administrative, investigative or other.
(c) Expenses: include attorneys' fees and all other costs, expenses and obligations paid or incurred in connection with investigating, defending, being a witness in or participating in (including on appeal), or preparing to defend, be a witness in or participate in, any Claim relating to any Indemnifiable Event.
(d) Indemnifiable Event: any event or occurrence related to the fact that Indemnitee is or was a director, officer, employee, agent or fiduciary of the Company, or 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.
(e) Independent Legal Counsel: an attorney or firm of attorneys, selected in accordance with the provisions of Section 3, who shall not have otherwise performed services for the Company or Indemnitee within the last five years (other than with respect to matters concerning the rights of
Indemnitee under this Agreement, or of other indemnitees under similar indemnity agreements).
(f) Potential Change in Control: shall be deemed to have occurred
if (i) the Company enters into an agreement, the consummation
of which would result in the occurrence of a Change in
Control; (ii) any person (including the Company) publicly
announces an intention to take or to consider taking actions
which if consummated would constitute a Change in Control;
(iii) any person, other than a trustee or other fiduciary
holding securities under an employee benefit plan of the
Company or a corporation owned, directly or indirectly, by the
stockholders of the Company in substantially the same
proportions as their ownership of stock of the Company, who is
or becomes the beneficial owner, directly or indirectly, of
securities of the Company representing 9.5% or more of the
combined voting power of the Company's then outstanding Voting
Securities, increases his beneficial ownership of such
securities by five percentage points (5%) or more over the
percentage so owned by such person; or (iv) the Board adopts a
resolution to the effect that, for purposes of this Agreement,
a Potential Change in Control has occurred.
(g) Reviewing Party: any appropriate person or body consisting of a member or members of the Company's Board of Directors or any other person or body appointed by the Board who is not a party to the particular Claim for which Indemnitee is seeking indemnification, or Independent Legal Counsel.
(h) Voting Securities: any securities of the Company which vote generally in the election of directors.
2. Basic Indemnification Arrangement.
(a) In the event Indemnitee was, is or becomes a party to or witness or other participant in, or is threatened to be made a party to or witness or other participant in, a Claim by reason of (or arising in part out of) an Indemnifiable Event, the Company shall indemnify Indemnitee to the fullest extent permitted by law as soon as practicable but in any event no later than thirty days after written demand is presented to the Company, against any and all Expenses, judgments, fines, penalties and amounts paid in settlement (including all interest, assessments and other charges paid or payable in connection with or in respect of such Expenses, judgments, fines, penalties or amounts paid in settlement) 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").
(b) Notwithstanding the foregoing, (i) the obligations of the Company under Section 2(a) shall be subject to the condition that the Reviewing Party
shall not have determined (in a written opinion, in any case in which the Independent Legal Counsel referred to in Section 3 hereof is involved) that Indemnitee would not be permitted to be indemnified under applicable law, and (ii) the obligation of the Company to make an Expense Advance pursuant to Section 2(a) shall be subject to the condition that, if, when and to the extent that the Reviewing Party determines that Indemnitee would not be permitted to be so indemnified under applicable law, the Company shall be entitled to be reimbursed by Indemnitee (who hereby agrees to reimburse the Company) for all such amounts theretofore paid; provided, however, that if Indemnitee has commenced or thereafter commences legal proceedings in a court of competent jurisdiction to secure a determination that Indemnitee should be indemnified under applicable law, any determination made by the Reviewing Party that Indemnitee would not be permitted to be indemnified under applicable law shall not be binding and Indemnitee shall not be required to reimburse the Company for any Expense Advance until a final judicial determination is made with respect thereto (as to which all rights of appeal therefrom have been exhausted or lapsed). If there has not been a Change in Control, the Reviewing Party shall be selected by the Board of Directors, and if there has been such a Change in Control (other than a Change in Control which has been approved by a majority of the Company's Board of Directors who were directors immediately prior to such Change in Control), the Reviewing Party shall be the Independent Legal Counsel referred to in Section 3 hereof. If there has been no determination by the Reviewing Party or if the Reviewing Party determines that Indemnitee substantively would not be permitted to be indemnified in whole or in part under applicable law, Indemnitee shall have the right to commence litigation in any court in the State of Delaware having subject matter jurisdiction thereof and in which venue is proper seeking an initial determination by the court or challenging any such determination by the Reviewing Party or any aspect thereof, including the legal or factual bases therefor, and the Company hereby consents to service of process and to appear in any such proceeding. Any determination by the Reviewing Party otherwise shall be conclusive and binding on the Company and Indemnitee.
3. Change in Control. The Company agrees that if there is a Change in Control of the Company (other than a Change in Control which has been approved by a majority of the Company's Board of Directors who were directors immediately prior to such Change in Control) then with respect to all matters thereafter arising concerning the rights of Indemnitee to indemnity payments and Expense Advances under this Agreement or any other agreement or Company Bylaw now or hereafter in effect relating to Claims for Indemnifiable Events, the Company shall seek legal advice only from Independent Legal Counsel selected by Indemnitee and approved by the Company (which approval shall not be unreasonably withheld). Such counsel, among other things, shall render its written opinion to the Company and Indemnitee as to whether and to what extent the Indemnitee would be permitted to be indemnified under applicable law. The
Company agrees to pay the reasonable fees of the Independent Legal Counsel referred to above and to indemnify fully such counsel against any and all expenses (including attorneys' fees), claims, liabilities and damages arising out of or relating to this Agreement or its engagement pursuant hereto.
4. Establishment of Trust. In the event of a Potential Change in Control,
the Company shall, upon written request by Indemnitee, create a trust
for the benefit of Indemnitee and from time to time upon written
request of Indemnitee shall fund such trust in an amount sufficient to
satisfy any and all Expenses reasonably anticipated at the time of each
such request to be incurred in connection with investigating, preparing
for and defending any Claim relating to an Indemnifiable Event, and any
and all judgments, fines, penalties and settlement amounts of any and
all Claims relating to an Indemnifiable Event from time to time
actually paid or claimed, reasonably anticipated or proposed to be
paid. The amount or amounts to be deposited in the trust pursuant to
the foregoing funding obligation shall be determined by the Reviewing
Party, in any case in which the Independent Legal Counsel referred to
above is involved. The terms of the trust shall provide that (i) the
trust shall not be revoked or the principal thereof invaded, without
the written consent of the Indemnitee, (ii) the trustee shall advance,
within two business days of a request by the Indemnitee, any and all
Expenses to the Indemnitee (and the Indemnitee hereby agrees to
reimburse the trust under the circumstances under which the Indemnitee
would be required to reimburse the Company under Section 2(b) of this
Agreement), (iii) the trust shall continue to be funded by the Company
in accordance with the funding obligation set forth above, (iv) the
trustee shall promptly pay to Indemnitee all amounts for which
Indemnitee shall be entitled to indemnification pursuant to this
Agreement or otherwise, and (v) all unexpended funds in such trust
shall revert to the Company upon a final determination by the Reviewing
Party or a court of competent jurisdiction, as the case may be, that
Indemnitee has been fully indemnified under the terms of this
Agreement. The trustee shall be chosen by Indemnitee. Nothing in this
Section 4 shall relieve the Company of any of its obligations under
this Agreement.
5. Indemnification for Additional Expenses. The Company shall indemnify
Indemnitee against any and all expenses (including attorneys' fees)
and, if requested by Indemnitee, shall (within two business days of
such request) advance such expenses to Indemnitee, which are incurred
by Indemnitee in connection with any action brought by Indemnitee for
(i) indemnification or advance payment of Expenses by the Company under
this Agreement or any other agreement or Company Bylaw now or hereafter
in effect relating to Claims for Indemnifiable Events and/or (ii)
recovery under any directors' and officers' liability insurance
policies maintained by the Company, regardless of whether Indemnitee
ultimately is determined to be entitled to such indemnification,
advance expense payment or insurance recovery, as the case may be.
6. Partial Indemnity, Etc. If Indemnitee is entitled under any provision of this Agreement to indemnification by the Company for some or a portion of the
Expenses, judgments, fines, penalties and amounts paid in settlement arising from or relating to a Claim but not, however, for all of the total amount thereof, the Company shall nevertheless indemnify Indemnitee for the portion thereof to which Indemnitee is entitled. Moreover, notwithstanding any other provision of this Agreement, to the extent that Indemnitee has been successful on the merits or otherwise in defense of any or all Claims relating in whole or in part to an Indemnifiable Event or in defense of any issue or matter therein, including dismissal without prejudice, Indemnitee shall be indemnified against all Expenses incurred in connection therewith.
7. Burden of Proof. In connection with any determination by the Reviewing Party or otherwise as to whether Indemnitee is entitled to be indemnified hereunder the burden of proof shall be on the Company to establish that Indemnitee is not so entitled.
8. No Presumptions. For purposes of this Agreement, the termination of any claim, action, suit or proceeding, by judgment, order, settlement (whether with or without court approval) or conviction, or upon a plea of nolo contendere, or its equivalent, shall not create a presumption that Indemnitee did not meet any particular standard of conduct or have any particular belief or that a court has determined that indemnification is not permitted by applicable law. In addition, neither the failure of the Reviewing Party to have made a determination as to whether Indemnitee has met any particular standard of conduct or had any particular belief, nor an actual determination by the Reviewing Party that Indemnitee has not met such standard of conduct or did not have such belief, prior to the commencement of legal proceedings by Indemnitee to secure a judicial determination that Indemnitee should be indemnified under applicable law shall be a defense to Indemnitee's claim or create a presumption that Indemnitee has not met any particular standard of conduct or did not have any particular belief.
9. Nonexclusivity, Etc. The rights of the Indemnitee hereunder shall be in addition to any other rights Indemnitee may have under the Company's Amended and Restated Bylaws or the Delaware General Corporation Law or otherwise. To the extent that a change in the Delaware General Corporation Law (whether by statute or judicial decision) permits greater indemnification by agreement than would be afforded currently under the Company's Amended and Restated Bylaws and this Agreement, it is the intent of the parties hereto that Indemnitee shall enjoy by this Agreement the greater benefits so afforded by such change.
10. Liability Insurance. To the extent the Company maintains an insurance policy or policies providing directors' and officers' liability insurance, Indemnitee shall be covered by such policy or policies, in accordance with its or their terms, to the maximum extent of the coverage available for any Company director or officer.
11. Period of Limitations. No legal action shall be brought and no cause of action shall be asserted by or in the right of the Company against Indemnitee, Indemnitee's spouse, heirs, executors or personal or legal representatives after the
expiration of two years from the date of accrual of such cause of action, and any claim or cause of action of the Company shall be extinguished and deemed released unless asserted by the timely filing of a legal action within such two-year period; provided, however, that if any shorter period of limitations is otherwise applicable to any such cause of action such shorter period shall govern.
12. Amendments, Etc. No supplement, modification or amendment of this Agreement shall be binding unless executed in writing by both of the parties hereto. No waiver of any of the provisions of this Agreement shall be deemed or shall constitute a waiver of any other provisions hereof (whether or not similar) nor shall such waiver constitute a continuing waiver.
13. Subrogation. In the event of payment under this Agreement, the Company shall be subrogated to the extent of such payment to all of the rights of recovery of Indemnitee, who shall execute all papers required and shall do everything that may be necessary to secure such rights, including the execution of such documents necessary to enable the Company effectively to bring suit to enforce such rights.
14. No Duplication of Payments. The Company shall not be liable under this Agreement to make any payment in connection with any Claim made against Indemnitee to the extent Indemnitee has otherwise actually received payment (under any insurance policy, Bylaw or otherwise) of the amounts otherwise indemnifiable hereunder.
15. Binding Effect, Etc. This Agreement shall be binding upon and inure to the benefit of and be enforceable by the parties hereto and their respective successors, assigns, including any direct or indirect successor by purchase, merger, consolidation or otherwise to all or substantially all of the business and/or assets of the Company, spouses, heirs, executors and personal and legal representatives. This Agreement shall continue in effect regardless of whether Indemnitee continues to serve as an officer or director of the Company or of any other enterprise at the Company's request.
16. Severability. The provisions of this Agreement shall be severable in the event that any of the provisions hereof (including any provision within a single section, paragraph or sentence) are held by a court of competent jurisdiction to be invalid, void or otherwise unenforceable in any respect, and the validity and enforceability of any such provision in every other respect and of the remaining provisions hereof shall not be in any way impaired and shall remain enforceable to the fullest extent permitted by law.
17. Governing Law. This Agreement shall be governed by and construed and enforced in accordance with the laws of the State of Delaware applicable to contracts made and to be performed in such state without giving effect to the principles of conflicts of laws.
18. Amendment and Restatement. This Agreement shall amend and restate in its entirety that certain Indemnification Agreement dated as of August 16, 1997, as amended, between the Indemnitee and Belden Inc. (which has been assumed by the Company).
IN WITNESS WHEREOF, the parties hereto have executed this Agreement this 1st day September 2004.
By /s/ C. Baker Cunningham ---------------------------------- Name: C. Baker Cunningham Title: Chief Executive Officer and President /s/ Cathy O. Staples ---------------------------- Cathy O. Staples (Indemnitee) |
EXHIBIT 10.39
INDEMNIFICATION AGREEMENT
AGREEMENT, effective as of September 1, 2004, between Belden CDT Inc., a Delaware corporation (the "Company"), and Robert Canny (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:
1. Certain Definitions:
(a) Change in Control: shall be deemed to have occurred if (i) any "person" (as such term is used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as amended), other than a trustee or other fiduciary holding securities under an employee benefit plan of the Company or a corporation owned directly or indirectly by the stockholders of the Company in substantially the same proportions as their ownership of stock of the Company, is or becomes the "beneficial owner" (as defined in Rule 13d-3 under said Act), directly or indirectly, of securities of the Company
representing 20% or more of the total voting power represented by the Company's then outstanding Voting Securities, or (ii) during any period of two consecutive years, individuals who at the beginning of such period constitute the Board of Directors of the Company and any new director whose election by the Board of Directors or nomination for election by the Company's stockholders was approved by a vote of at least two-thirds (2/3) of the directors then still in office who either were directors at the beginning of the period or whose election or nomination for election was previously so approved, cease for any reason to constitute a majority thereof, or (iii) the stockholders of the Company approve a merger or consolidation of the Company with any other corporation, other than a merger or consolidation which would result in the Voting Securities of the Company outstanding immediately prior thereto continuing to represent (either by remaining outstanding or by being converted into Voting Securities of the surviving entity) at least 80% of the total voting power represented by the Voting Securities of the Company or such surviving entity outstanding immediately after such merger or consolidation, or the stockholders of the Company approve a plan of complete liquidation of the Company or an agreement for the sale or disposition by the Company of (in one transaction or a series of transactions) all or substantially all the Company's assets.
(b) Claim: any threatened, pending or completed action, suit or proceeding, or any inquiry or investigation, whether instituted by the Company or any other party, that Indemnitee in good faith believes might lead to the institution of any such action, suit or proceeding, whether civil, criminal, administrative, investigative or other.
(c) Expenses: include attorneys' fees and all other costs, expenses and obligations paid or incurred in connection with investigating, defending, being a witness in or participating in (including on appeal), or preparing to defend, be a witness in or participate in, any Claim relating to any Indemnifiable Event.
(d) Indemnifiable Event: any event or occurrence related to the fact that Indemnitee is or was a director, officer, employee, agent or fiduciary of the Company, or 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.
(e) Independent Legal Counsel: an attorney or firm of attorneys, selected in accordance with the provisions of Section 3, who shall not have otherwise performed services for the Company or Indemnitee within the last five years (other than with respect to matters concerning the rights of
Indemnitee under this Agreement, or of other indemnitees under similar indemnity agreements).
(f) Potential Change in Control: shall be deemed to have occurred
if (i) the Company enters into an agreement, the consummation
of which would result in the occurrence of a Change in
Control; (ii) any person (including the Company) publicly
announces an intention to take or to consider taking actions
which if consummated would constitute a Change in Control;
(iii) any person, other than a trustee or other fiduciary
holding securities under an employee benefit plan of the
Company or a corporation owned, directly or indirectly, by the
stockholders of the Company in substantially the same
proportions as their ownership of stock of the Company, who is
or becomes the beneficial owner, directly or indirectly, of
securities of the Company representing 9.5% or more of the
combined voting power of the Company's then outstanding Voting
Securities, increases his beneficial ownership of such
securities by five percentage points (5%) or more over the
percentage so owned by such person; or (iv) the Board adopts a
resolution to the effect that, for purposes of this Agreement,
a Potential Change in Control has occurred.
(g) Reviewing Party: any appropriate person or body consisting of a member or members of the Company's Board of Directors or any other person or body appointed by the Board who is not a party to the particular Claim for which Indemnitee is seeking indemnification, or Independent Legal Counsel.
(h) Voting Securities: any securities of the Company which vote generally in the election of directors.
2. Basic Indemnification Arrangement.
(a) In the event Indemnitee was, is or becomes a party to or witness or other participant in, or is threatened to be made a party to or witness or other participant in, a Claim by reason of (or arising in part out of) an Indemnifiable Event, the Company shall indemnify Indemnitee to the fullest extent permitted by law as soon as practicable but in any event no later than thirty days after written demand is presented to the Company, against any and all Expenses, judgments, fines, penalties and amounts paid in settlement (including all interest, assessments and other charges paid or payable in connection with or in respect of such Expenses, judgments, fines, penalties or amounts paid in settlement) 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").
(b) Notwithstanding the foregoing, (i) the obligations of the Company under Section 2(a) shall be subject to the condition that the Reviewing Party
shall not have determined (in a written opinion, in any case in which the Independent Legal Counsel referred to in Section 3 hereof is involved) that Indemnitee would not be permitted to be indemnified under applicable law, and (ii) the obligation of the Company to make an Expense Advance pursuant to Section 2(a) shall be subject to the condition that, if, when and to the extent that the Reviewing Party determines that Indemnitee would not be permitted to be so indemnified under applicable law, the Company shall be entitled to be reimbursed by Indemnitee (who hereby agrees to reimburse the Company) for all such amounts theretofore paid; provided, however, that if Indemnitee has commenced or thereafter commences legal proceedings in a court of competent jurisdiction to secure a determination that Indemnitee should be indemnified under applicable law, any determination made by the Reviewing Party that Indemnitee would not be permitted to be indemnified under applicable law shall not be binding and Indemnitee shall not be required to reimburse the Company for any Expense Advance until a final judicial determination is made with respect thereto (as to which all rights of appeal therefrom have been exhausted or lapsed). If there has not been a Change in Control, the Reviewing Party shall be selected by the Board of Directors, and if there has been such a Change in Control (other than a Change in Control which has been approved by a majority of the Company's Board of Directors who were directors immediately prior to such Change in Control), the Reviewing Party shall be the Independent Legal Counsel referred to in Section 3 hereof. If there has been no determination by the Reviewing Party or if the Reviewing Party determines that Indemnitee substantively would not be permitted to be indemnified in whole or in part under applicable law, Indemnitee shall have the right to commence litigation in any court in the State of Delaware having subject matter jurisdiction thereof and in which venue is proper seeking an initial determination by the court or challenging any such determination by the Reviewing Party or any aspect thereof, including the legal or factual bases therefor, and the Company hereby consents to service of process and to appear in any such proceeding. Any determination by the Reviewing Party otherwise shall be conclusive and binding on the Company and Indemnitee.
3. Change in Control. The Company agrees that if there is a Change in Control of the Company (other than a Change in Control which has been approved by a majority of the Company's Board of Directors who were directors immediately prior to such Change in Control) then with respect to all matters thereafter arising concerning the rights of Indemnitee to indemnity payments and Expense Advances under this Agreement or any other agreement or Company Bylaw now or hereafter in effect relating to Claims for Indemnifiable Events, the Company shall seek legal advice only from Independent Legal Counsel selected by Indemnitee and approved by the Company (which approval shall not be unreasonably withheld). Such counsel, among other things, shall render its written opinion to the Company and Indemnitee as to whether and to what extent the Indemnitee would be permitted to be indemnified under applicable law. The
Company agrees to pay the reasonable fees of the Independent Legal Counsel referred to above and to indemnify fully such counsel against any and all expenses (including attorneys' fees), claims, liabilities and damages arising out of or relating to this Agreement or its engagement pursuant hereto.
4. Establishment of Trust. In the event of a Potential Change in Control,
the Company shall, upon written request by Indemnitee, create a trust
for the benefit of Indemnitee and from time to time upon written
request of Indemnitee shall fund such trust in an amount sufficient to
satisfy any and all Expenses reasonably anticipated at the time of each
such request to be incurred in connection with investigating, preparing
for and defending any Claim relating to an Indemnifiable Event, and any
and all judgments, fines, penalties and settlement amounts of any and
all Claims relating to an Indemnifiable Event from time to time
actually paid or claimed, reasonably anticipated or proposed to be
paid. The amount or amounts to be deposited in the trust pursuant to
the foregoing funding obligation shall be determined by the Reviewing
Party, in any case in which the Independent Legal Counsel referred to
above is involved. The terms of the trust shall provide that (i) the
trust shall not be revoked or the principal thereof invaded, without
the written consent of the Indemnitee, (ii) the trustee shall advance,
within two business days of a request by the Indemnitee, any and all
Expenses to the Indemnitee (and the Indemnitee hereby agrees to
reimburse the trust under the circumstances under which the Indemnitee
would be required to reimburse the Company under Section 2(b) of this
Agreement), (iii) the trust shall continue to be funded by the Company
in accordance with the funding obligation set forth above, (iv) the
trustee shall promptly pay to Indemnitee all amounts for which
Indemnitee shall be entitled to indemnification pursuant to this
Agreement or otherwise, and (v) all unexpended funds in such trust
shall revert to the Company upon a final determination by the Reviewing
Party or a court of competent jurisdiction, as the case may be, that
Indemnitee has been fully indemnified under the terms of this
Agreement. The trustee shall be chosen by Indemnitee. Nothing in this
Section 4 shall relieve the Company of any of its obligations under
this Agreement.
5. Indemnification for Additional Expenses. The Company shall indemnify
Indemnitee against any and all expenses (including attorneys' fees)
and, if requested by Indemnitee, shall (within two business days of
such request) advance such expenses to Indemnitee, which are incurred
by Indemnitee in connection with any action brought by Indemnitee for
(i) indemnification or advance payment of Expenses by the Company under
this Agreement or any other agreement or Company Bylaw now or hereafter
in effect relating to Claims for Indemnifiable Events and/or (ii)
recovery under any directors' and officers' liability insurance
policies maintained by the Company, regardless of whether Indemnitee
ultimately is determined to be entitled to such indemnification,
advance expense payment or insurance recovery, as the case may be.
6. Partial Indemnity, Etc. If Indemnitee is entitled under any provision of this Agreement to indemnification by the Company for some or a portion of the
Expenses, judgments, fines, penalties and amounts paid in settlement arising from or relating to a Claim but not, however, for all of the total amount thereof, the Company shall nevertheless indemnify Indemnitee for the portion thereof to which Indemnitee is entitled. Moreover, notwithstanding any other provision of this Agreement, to the extent that Indemnitee has been successful on the merits or otherwise in defense of any or all Claims relating in whole or in part to an Indemnifiable Event or in defense of any issue or matter therein, including dismissal without prejudice, Indemnitee shall be indemnified against all Expenses incurred in connection therewith.
7. Burden of Proof. In connection with any determination by the Reviewing Party or otherwise as to whether Indemnitee is entitled to be indemnified hereunder the burden of proof shall be on the Company to establish that Indemnitee is not so entitled.
8. No Presumptions. For purposes of this Agreement, the termination of any claim, action, suit or proceeding, by judgment, order, settlement (whether with or without court approval) or conviction, or upon a plea of nolo contendere, or its equivalent, shall not create a presumption that Indemnitee did not meet any particular standard of conduct or have any particular belief or that a court has determined that indemnification is not permitted by applicable law. In addition, neither the failure of the Reviewing Party to have made a determination as to whether Indemnitee has met any particular standard of conduct or had any particular belief, nor an actual determination by the Reviewing Party that Indemnitee has not met such standard of conduct or did not have such belief, prior to the commencement of legal proceedings by Indemnitee to secure a judicial determination that Indemnitee should be indemnified under applicable law shall be a defense to Indemnitee's claim or create a presumption that Indemnitee has not met any particular standard of conduct or did not have any particular belief.
9. Nonexclusivity, Etc. The rights of the Indemnitee hereunder shall be in addition to any other rights Indemnitee may have under the Company's Amended and Restated Bylaws or the Delaware General Corporation Law or otherwise. To the extent that a change in the Delaware General Corporation Law (whether by statute or judicial decision) permits greater indemnification by agreement than would be afforded currently under the Company's Amended and Restated Bylaws and this Agreement, it is the intent of the parties hereto that Indemnitee shall enjoy by this Agreement the greater benefits so afforded by such change.
10. Liability Insurance. To the extent the Company maintains an insurance policy or policies providing directors' and officers' liability insurance, Indemnitee shall be covered by such policy or policies, in accordance with its or their terms, to the maximum extent of the coverage available for any Company director or officer.
11. Period of Limitations. No legal action shall be brought and no cause of action shall be asserted by or in the right of the Company against Indemnitee, Indemnitee's spouse, heirs, executors or personal or legal representatives after the
expiration of two years from the date of accrual of such cause of action, and any claim or cause of action of the Company shall be extinguished and deemed released unless asserted by the timely filing of a legal action within such two-year period; provided, however, that if any shorter period of limitations is otherwise applicable to any such cause of action such shorter period shall govern.
12. Amendments, Etc. No supplement, modification or amendment of this Agreement shall be binding unless executed in writing by both of the parties hereto. No waiver of any of the provisions of this Agreement shall be deemed or shall constitute a waiver of any other provisions hereof (whether or not similar) nor shall such waiver constitute a continuing waiver.
13. Subrogation. In the event of payment under this Agreement, the Company shall be subrogated to the extent of such payment to all of the rights of recovery of Indemnitee, who shall execute all papers required and shall do everything that may be necessary to secure such rights, including the execution of such documents necessary to enable the Company effectively to bring suit to enforce such rights.
14. No Duplication of Payments. The Company shall not be liable under this Agreement to make any payment in connection with any Claim made against Indemnitee to the extent Indemnitee has otherwise actually received payment (under any insurance policy, Bylaw or otherwise) of the amounts otherwise indemnifiable hereunder.
15. Binding Effect, Etc. This Agreement shall be binding upon and inure to the benefit of and be enforceable by the parties hereto and their respective successors, assigns, including any direct or indirect successor by purchase, merger, consolidation or otherwise to all or substantially all of the business and/or assets of the Company, spouses, heirs, executors and personal and legal representatives. This Agreement shall continue in effect regardless of whether Indemnitee continues to serve as an officer or director of the Company or of any other enterprise at the Company's request.
16. Severability. The provisions of this Agreement shall be severable in the event that any of the provisions hereof (including any provision within a single section, paragraph or sentence) are held by a court of competent jurisdiction to be invalid, void or otherwise unenforceable in any respect, and the validity and enforceability of any such provision in every other respect and of the remaining provisions hereof shall not be in any way impaired and shall remain enforceable to the fullest extent permitted by law.
17. Governing Law. This Agreement shall be governed by and construed and enforced in accordance with the laws of the State of Delaware applicable to contracts made and to be performed in such state without giving effect to the principles of conflicts of laws.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement this 1st day September 2004.
By /s/ C. Baker Cunningham ---------------------------------- Name: C. Baker Cunningham Title: Chief Executive Officer and President /s/ Robert Canny --------------------- Robert Canny (Indemnitee) |
EXHIBIT 10.40
INDEMNIFICATION AGREEMENT
AGREEMENT, effective as of September 1, 2004, between Belden CDT Inc., a Delaware corporation (the "Company"), and Peter Sheehan (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:
1. Certain Definitions:
(a) Change in Control: shall be deemed to have occurred if (i) any "person" (as such term is used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as amended), other than a trustee or other fiduciary holding securities under an employee benefit plan of the Company or a corporation owned directly or indirectly by the stockholders of the Company in substantially the same proportions as their ownership of stock of the Company, is or becomes the "beneficial owner" (as defined in Rule 13d-3 under said Act), directly or indirectly, of securities of the Company
representing 20% or more of the total voting power represented by the Company's then outstanding Voting Securities, or (ii) during any period of two consecutive years, individuals who at the beginning of such period constitute the Board of Directors of the Company and any new director whose election by the Board of Directors or nomination for election by the Company's stockholders was approved by a vote of at least two-thirds (2/3) of the directors then still in office who either were directors at the beginning of the period or whose election or nomination for election was previously so approved, cease for any reason to constitute a majority thereof, or (iii) the stockholders of the Company approve a merger or consolidation of the Company with any other corporation, other than a merger or consolidation which would result in the Voting Securities of the Company outstanding immediately prior thereto continuing to represent (either by remaining outstanding or by being converted into Voting Securities of the surviving entity) at least 80% of the total voting power represented by the Voting Securities of the Company or such surviving entity outstanding immediately after such merger or consolidation, or the stockholders of the Company approve a plan of complete liquidation of the Company or an agreement for the sale or disposition by the Company of (in one transaction or a series of transactions) all or substantially all the Company's assets.
(b) Claim: any threatened, pending or completed action, suit or proceeding, or any inquiry or investigation, whether instituted by the Company or any other party, that Indemnitee in good faith believes might lead to the institution of any such action, suit or proceeding, whether civil, criminal, administrative, investigative or other.
(c) Expenses: include attorneys' fees and all other costs, expenses and obligations paid or incurred in connection with investigating, defending, being a witness in or participating in (including on appeal), or preparing to defend, be a witness in or participate in, any Claim relating to any Indemnifiable Event.
(d) Indemnifiable Event: any event or occurrence related to the fact that Indemnitee is or was a director, officer, employee, agent or fiduciary of the Company, or 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.
(e) Independent Legal Counsel: an attorney or firm of attorneys, selected in accordance with the provisions of Section 3, who shall not have otherwise performed services for the Company or Indemnitee within the last five years (other than with respect to matters concerning the rights of
Indemnitee under this Agreement, or of other indemnitees under similar indemnity agreements).
(f) Potential Change in Control: shall be deemed to have occurred
if (i) the Company enters into an agreement, the consummation
of which would result in the occurrence of a Change in
Control; (ii) any person (including the Company) publicly
announces an intention to take or to consider taking actions
which if consummated would constitute a Change in Control;
(iii) any person, other than a trustee or other fiduciary
holding securities under an employee benefit plan of the
Company or a corporation owned, directly or indirectly, by the
stockholders of the Company in substantially the same
proportions as their ownership of stock of the Company, who is
or becomes the beneficial owner, directly or indirectly, of
securities of the Company representing 9.5% or more of the
combined voting power of the Company's then outstanding Voting
Securities, increases his beneficial ownership of such
securities by five percentage points (5%) or more over the
percentage so owned by such person; or (iv) the Board adopts a
resolution to the effect that, for purposes of this Agreement,
a Potential Change in Control has occurred.
(g) Reviewing Party: any appropriate person or body consisting of a member or members of the Company's Board of Directors or any other person or body appointed by the Board who is not a party to the particular Claim for which Indemnitee is seeking indemnification, or Independent Legal Counsel.
(h) Voting Securities: any securities of the Company which vote generally in the election of directors.
2. Basic Indemnification Arrangement.
(a) In the event Indemnitee was, is or becomes a party to or witness or other participant in, or is threatened to be made a party to or witness or other participant in, a Claim by reason of (or arising in part out of) an Indemnifiable Event, the Company shall indemnify Indemnitee to the fullest extent permitted by law as soon as practicable but in any event no later than thirty days after written demand is presented to the Company, against any and all Expenses, judgments, fines, penalties and amounts paid in settlement (including all interest, assessments and other charges paid or payable in connection with or in respect of such Expenses, judgments, fines, penalties or amounts paid in settlement) 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").
(b) Notwithstanding the foregoing, (i) the obligations of the Company under Section 2(a) shall be subject to the condition that the Reviewing Party
shall not have determined (in a written opinion, in any case in which the Independent Legal Counsel referred to in Section 3 hereof is involved) that Indemnitee would not be permitted to be indemnified under applicable law, and (ii) the obligation of the Company to make an Expense Advance pursuant to Section 2(a) shall be subject to the condition that, if, when and to the extent that the Reviewing Party determines that Indemnitee would not be permitted to be so indemnified under applicable law, the Company shall be entitled to be reimbursed by Indemnitee (who hereby agrees to reimburse the Company) for all such amounts theretofore paid; provided, however, that if Indemnitee has commenced or thereafter commences legal proceedings in a court of competent jurisdiction to secure a determination that Indemnitee should be indemnified under applicable law, any determination made by the Reviewing Party that Indemnitee would not be permitted to be indemnified under applicable law shall not be binding and Indemnitee shall not be required to reimburse the Company for any Expense Advance until a final judicial determination is made with respect thereto (as to which all rights of appeal therefrom have been exhausted or lapsed). If there has not been a Change in Control, the Reviewing Party shall be selected by the Board of Directors, and if there has been such a Change in Control (other than a Change in Control which has been approved by a majority of the Company's Board of Directors who were directors immediately prior to such Change in Control), the Reviewing Party shall be the Independent Legal Counsel referred to in Section 3 hereof. If there has been no determination by the Reviewing Party or if the Reviewing Party determines that Indemnitee substantively would not be permitted to be indemnified in whole or in part under applicable law, Indemnitee shall have the right to commence litigation in any court in the State of Delaware having subject matter jurisdiction thereof and in which venue is proper seeking an initial determination by the court or challenging any such determination by the Reviewing Party or any aspect thereof, including the legal or factual bases therefor, and the Company hereby consents to service of process and to appear in any such proceeding. Any determination by the Reviewing Party otherwise shall be conclusive and binding on the Company and Indemnitee.
3. Change in Control. The Company agrees that if there is a Change in Control of the Company (other than a Change in Control which has been approved by a majority of the Company's Board of Directors who were directors immediately prior to such Change in Control) then with respect to all matters thereafter arising concerning the rights of Indemnitee to indemnity payments and Expense Advances under this Agreement or any other agreement or Company Bylaw now or hereafter in effect relating to Claims for Indemnifiable Events, the Company shall seek legal advice only from Independent Legal Counsel selected by Indemnitee and approved by the Company (which approval shall not be unreasonably withheld). Such counsel, among other things, shall render its written opinion to the Company and Indemnitee as to whether and to what extent the Indemnitee would be permitted to be indemnified under applicable law. The
Company agrees to pay the reasonable fees of the Independent Legal Counsel referred to above and to indemnify fully such counsel against any and all expenses (including attorneys' fees), claims, liabilities and damages arising out of or relating to this Agreement or its engagement pursuant hereto.
4. Establishment of Trust. In the event of a Potential Change in Control,
the Company shall, upon written request by Indemnitee, create a trust
for the benefit of Indemnitee and from time to time upon written
request of Indemnitee shall fund such trust in an amount sufficient to
satisfy any and all Expenses reasonably anticipated at the time of each
such request to be incurred in connection with investigating, preparing
for and defending any Claim relating to an Indemnifiable Event, and any
and all judgments, fines, penalties and settlement amounts of any and
all Claims relating to an Indemnifiable Event from time to time
actually paid or claimed, reasonably anticipated or proposed to be
paid. The amount or amounts to be deposited in the trust pursuant to
the foregoing funding obligation shall be determined by the Reviewing
Party, in any case in which the Independent Legal Counsel referred to
above is involved. The terms of the trust shall provide that (i) the
trust shall not be revoked or the principal thereof invaded, without
the written consent of the Indemnitee, (ii) the trustee shall advance,
within two business days of a request by the Indemnitee, any and all
Expenses to the Indemnitee (and the Indemnitee hereby agrees to
reimburse the trust under the circumstances under which the Indemnitee
would be required to reimburse the Company under Section 2(b) of this
Agreement), (iii) the trust shall continue to be funded by the Company
in accordance with the funding obligation set forth above, (iv) the
trustee shall promptly pay to Indemnitee all amounts for which
Indemnitee shall be entitled to indemnification pursuant to this
Agreement or otherwise, and (v) all unexpended funds in such trust
shall revert to the Company upon a final determination by the Reviewing
Party or a court of competent jurisdiction, as the case may be, that
Indemnitee has been fully indemnified under the terms of this
Agreement. The trustee shall be chosen by Indemnitee. Nothing in this
Section 4 shall relieve the Company of any of its obligations under
this Agreement.
5. Indemnification for Additional Expenses. The Company shall indemnify
Indemnitee against any and all expenses (including attorneys' fees)
and, if requested by Indemnitee, shall (within two business days of
such request) advance such expenses to Indemnitee, which are incurred
by Indemnitee in connection with any action brought by Indemnitee for
(i) indemnification or advance payment of Expenses by the Company under
this Agreement or any other agreement or Company Bylaw now or hereafter
in effect relating to Claims for Indemnifiable Events and/or (ii)
recovery under any directors' and officers' liability insurance
policies maintained by the Company, regardless of whether Indemnitee
ultimately is determined to be entitled to such indemnification,
advance expense payment or insurance recovery, as the case may be.
6. Partial Indemnity, Etc. If Indemnitee is entitled under any provision of this Agreement to indemnification by the Company for some or a portion of the
Expenses, judgments, fines, penalties and amounts paid in settlement arising from or relating to a Claim but not, however, for all of the total amount thereof, the Company shall nevertheless indemnify Indemnitee for the portion thereof to which Indemnitee is entitled. Moreover, notwithstanding any other provision of this Agreement, to the extent that Indemnitee has been successful on the merits or otherwise in defense of any or all Claims relating in whole or in part to an Indemnifiable Event or in defense of any issue or matter therein, including dismissal without prejudice, Indemnitee shall be indemnified against all Expenses incurred in connection therewith.
7. Burden of Proof. In connection with any determination by the Reviewing Party or otherwise as to whether Indemnitee is entitled to be indemnified hereunder the burden of proof shall be on the Company to establish that Indemnitee is not so entitled.
8. No Presumptions. For purposes of this Agreement, the termination of any claim, action, suit or proceeding, by judgment, order, settlement (whether with or without court approval) or conviction, or upon a plea of nolo contendere, or its equivalent, shall not create a presumption that Indemnitee did not meet any particular standard of conduct or have any particular belief or that a court has determined that indemnification is not permitted by applicable law. In addition, neither the failure of the Reviewing Party to have made a determination as to whether Indemnitee has met any particular standard of conduct or had any particular belief, nor an actual determination by the Reviewing Party that Indemnitee has not met such standard of conduct or did not have such belief, prior to the commencement of legal proceedings by Indemnitee to secure a judicial determination that Indemnitee should be indemnified under applicable law shall be a defense to Indemnitee's claim or create a presumption that Indemnitee has not met any particular standard of conduct or did not have any particular belief.
9. Nonexclusivity, Etc. The rights of the Indemnitee hereunder shall be in addition to any other rights Indemnitee may have under the Company's Amended and Restated Bylaws or the Delaware General Corporation Law or otherwise. To the extent that a change in the Delaware General Corporation Law (whether by statute or judicial decision) permits greater indemnification by agreement than would be afforded currently under the Company's Amended and Restated Bylaws and this Agreement, it is the intent of the parties hereto that Indemnitee shall enjoy by this Agreement the greater benefits so afforded by such change.
10. Liability Insurance. To the extent the Company maintains an insurance policy or policies providing directors' and officers' liability insurance, Indemnitee shall be covered by such policy or policies, in accordance with its or their terms, to the maximum extent of the coverage available for any Company director or officer.
11. Period of Limitations. No legal action shall be brought and no cause of action shall be asserted by or in the right of the Company against Indemnitee, Indemnitee's spouse, heirs, executors or personal or legal representatives after the
expiration of two years from the date of accrual of such cause of action, and any claim or cause of action of the Company shall be extinguished and deemed released unless asserted by the timely filing of a legal action within such two-year period; provided, however, that if any shorter period of limitations is otherwise applicable to any such cause of action such shorter period shall govern.
12. Amendments, Etc. No supplement, modification or amendment of this Agreement shall be binding unless executed in writing by both of the parties hereto. No waiver of any of the provisions of this Agreement shall be deemed or shall constitute a waiver of any other provisions hereof (whether or not similar) nor shall such waiver constitute a continuing waiver.
13. Subrogation. In the event of payment under this Agreement, the Company shall be subrogated to the extent of such payment to all of the rights of recovery of Indemnitee, who shall execute all papers required and shall do everything that may be necessary to secure such rights, including the execution of such documents necessary to enable the Company effectively to bring suit to enforce such rights.
14. No Duplication of Payments. The Company shall not be liable under this Agreement to make any payment in connection with any Claim made against Indemnitee to the extent Indemnitee has otherwise actually received payment (under any insurance policy, Bylaw or otherwise) of the amounts otherwise indemnifiable hereunder.
15. Binding Effect, Etc. This Agreement shall be binding upon and inure to the benefit of and be enforceable by the parties hereto and their respective successors, assigns, including any direct or indirect successor by purchase, merger, consolidation or otherwise to all or substantially all of the business and/or assets of the Company, spouses, heirs, executors and personal and legal representatives. This Agreement shall continue in effect regardless of whether Indemnitee continues to serve as an officer or director of the Company or of any other enterprise at the Company's request.
16. Severability. The provisions of this Agreement shall be severable in the event that any of the provisions hereof (including any provision within a single section, paragraph or sentence) are held by a court of competent jurisdiction to be invalid, void or otherwise unenforceable in any respect, and the validity and enforceability of any such provision in every other respect and of the remaining provisions hereof shall not be in any way impaired and shall remain enforceable to the fullest extent permitted by law.
17. Governing Law. This Agreement shall be governed by and construed and enforced in accordance with the laws of the State of Delaware applicable to contracts made and to be performed in such state without giving effect to the principles of conflicts of laws.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement this 1st day September 2004.
By /s/C. Baker Cunningham ----------------------------------- Name: C. Baker Cunningham Title: Chief Executive Officer and President /s/Peter Sheehan ----------------------------------- Peter Sheehan (Indemnitee) |
EXHIBIT 10.41
INDEMNIFICATION AGREEMENT
AGREEMENT, effective as of September 1, 2004, between Belden CDT Inc., a Delaware corporation (the "Company"), and Christopher I. Byrnes (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:
1. Certain Definitions:
(a) Change in Control: shall be deemed to have occurred if (i) any "person" (as such term is used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as amended), other than a trustee or other fiduciary holding securities under an employee benefit plan of the Company or a corporation owned directly or indirectly by the stockholders of the Company in substantially the same proportions as their ownership of stock of the Company, is or becomes the "beneficial owner" (as defined in Rule
13d-3 under said Act), directly or indirectly, of securities of the Company representing 20% or more of the total voting power represented by the Company's then outstanding Voting Securities, or (ii) during any period of two consecutive years, individuals who at the beginning of such period constitute the Board of Directors of the Company and any new director whose election by the Board of Directors or nomination for election by the Company's stockholders was approved by a vote of at least two-thirds (2/3) of the directors then still in office who either were directors at the beginning of the period or whose election or nomination for election was previously so approved, cease for any reason to constitute a majority thereof, or (iii) the stockholders of the Company approve a merger or consolidation of the Company with any other corporation, other than a merger or consolidation which would result in the Voting Securities of the Company outstanding immediately prior thereto continuing to represent (either by remaining outstanding or by being converted into Voting Securities of the surviving entity) at least 80% of the total voting power represented by the Voting Securities of the Company or such surviving entity outstanding immediately after such merger or consolidation, or the stockholders of the Company approve a plan of complete liquidation of the Company or an agreement for the sale or disposition by the Company of (in one transaction or a series of transactions) all or substantially all the Company's assets.
(b) Claim: any threatened, pending or completed action, suit or proceeding, or any inquiry or investigation, whether instituted by the Company or any other party, that Indemnitee in good faith believes might lead to the institution of any such action, suit or proceeding, whether civil, criminal, administrative, investigative or other.
(c) Expenses: include attorneys' fees and all other costs, expenses and obligations paid or incurred in connection with investigating, defending, being a witness in or participating in (including on appeal), or preparing to defend, be a witness in or participate in, any Claim relating to any Indemnifiable Event.
(d) Indemnifiable Event: any event or occurrence related to the fact that Indemnitee is or was a director, officer, employee, agent or fiduciary of the Company, or 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.
(e) Independent Legal Counsel: an attorney or firm of attorneys, selected in accordance with the provisions of Section 3, who shall not have otherwise performed services for the Company or Indemnitee within the last five years (other than with respect to matters concerning the rights of
Indemnitee under this Agreement, or of other indemnitees under similar indemnity agreements).
(f) Potential Change in Control: shall be deemed to have occurred
if (i) the Company enters into an agreement, the consummation
of which would result in the occurrence of a Change in
Control; (ii) any person (including the Company) publicly
announces an intention to take or to consider taking actions
which if consummated would constitute a Change in Control;
(iii) any person, other than a trustee or other fiduciary
holding securities under an employee benefit plan of the
Company or a corporation owned, directly or indirectly, by the
stockholders of the Company in substantially the same
proportions as their ownership of stock of the Company, who is
or becomes the beneficial owner, directly or indirectly, of
securities of the Company representing 9.5% or more of the
combined voting power of the Company's then outstanding Voting
Securities, increases his beneficial ownership of such
securities by five percentage points (5%) or more over the
percentage so owned by such person; or (iv) the Board adopts a
resolution to the effect that, for purposes of this Agreement,
a Potential Change in Control has occurred.
(g) Reviewing Party: any appropriate person or body consisting of a member or members of the Company's Board of Directors or any other person or body appointed by the Board who is not a party to the particular Claim for which Indemnitee is seeking indemnification, or Independent Legal Counsel.
(h) Voting Securities: any securities of the Company which vote generally in the election of directors.
2. Basic Indemnification Arrangement.
(a) In the event Indemnitee was, is or becomes a party to or witness or other participant in, or is threatened to be made a party to or witness or other participant in, a Claim by reason of (or arising in part out of) an Indemnifiable Event, the Company shall indemnify Indemnitee to the fullest extent permitted by law as soon as practicable but in any event no later than thirty days after written demand is presented to the Company, against any and all Expenses, judgments, fines, penalties and amounts paid in settlement (including all interest, assessments and other charges paid or payable in connection with or in respect of such Expenses, judgments, fines, penalties or amounts paid in settlement) 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").
(b) Notwithstanding the foregoing, (i) the obligations of the Company under Section 2(a) shall be subject to the condition that the Reviewing Party
shall not have determined (in a written opinion, in any case in which the Independent Legal Counsel referred to in Section 3 hereof is involved) that Indemnitee would not be permitted to be indemnified under applicable law, and (ii) the obligation of the Company to make an Expense Advance pursuant to Section 2(a) shall be subject to the condition that, if, when and to the extent that the Reviewing Party determines that Indemnitee would not be permitted to be so indemnified under applicable law, the Company shall be entitled to be reimbursed by Indemnitee (who hereby agrees to reimburse the Company) for all such amounts theretofore paid; provided, however, that if Indemnitee has commenced or thereafter commences legal proceedings in a court of competent jurisdiction to secure a determination that Indemnitee should be indemnified under applicable law, any determination made by the Reviewing Party that Indemnitee would not be permitted to be indemnified under applicable law shall not be binding and Indemnitee shall not be required to reimburse the Company for any Expense Advance until a final judicial determination is made with respect thereto (as to which all rights of appeal therefrom have been exhausted or lapsed). If there has not been a Change in Control, the Reviewing Party shall be selected by the Board of Directors, and if there has been such a Change in Control (other than a Change in Control which has been approved by a majority of the Company's Board of Directors who were directors immediately prior to such Change in Control), the Reviewing Party shall be the Independent Legal Counsel referred to in Section 3 hereof. If there has been no determination by the Reviewing Party or if the Reviewing Party determines that Indemnitee substantively would not be permitted to be indemnified in whole or in part under applicable law, Indemnitee shall have the right to commence litigation in any court in the State of Delaware having subject matter jurisdiction thereof and in which venue is proper seeking an initial determination by the court or challenging any such determination by the Reviewing Party or any aspect thereof, including the legal or factual bases therefor, and the Company hereby consents to service of process and to appear in any such proceeding. Any determination by the Reviewing Party otherwise shall be conclusive and binding on the Company and Indemnitee.
3. Change in Control. The Company agrees that if there is a Change in Control of the Company (other than a Change in Control which has been approved by a majority of the Company's Board of Directors who were directors immediately prior to such Change in Control) then with respect to all matters thereafter arising concerning the rights of Indemnitee to indemnity payments and Expense Advances under this Agreement or any other agreement or Company Bylaw now or hereafter in effect relating to Claims for Indemnifiable Events, the Company shall seek legal advice only from Independent Legal Counsel selected by Indemnitee and approved by the Company (which approval shall not be unreasonably withheld). Such counsel, among other things, shall render its written opinion to the Company and Indemnitee as to whether and to what extent the Indemnitee would be permitted to be indemnified under applicable law. The
Company agrees to pay the reasonable fees of the Independent Legal Counsel referred to above and to indemnify fully such counsel against any and all expenses (including attorneys' fees), claims, liabilities and damages arising out of or relating to this Agreement or its engagement pursuant hereto.
4. Establishment of Trust. In the event of a Potential Change in Control,
the Company shall, upon written request by Indemnitee, create a trust
for the benefit of Indemnitee and from time to time upon written
request of Indemnitee shall fund such trust in an amount sufficient to
satisfy any and all Expenses reasonably anticipated at the time of each
such request to be incurred in connection with investigating, preparing
for and defending any Claim relating to an Indemnifiable Event, and any
and all judgments, fines, penalties and settlement amounts of any and
all Claims relating to an Indemnifiable Event from time to time
actually paid or claimed, reasonably anticipated or proposed to be
paid. The amount or amounts to be deposited in the trust pursuant to
the foregoing funding obligation shall be determined by the Reviewing
Party, in any case in which the Independent Legal Counsel referred to
above is involved. The terms of the trust shall provide that (i) the
trust shall not be revoked or the principal thereof invaded, without
the written consent of the Indemnitee, (ii) the trustee shall advance,
within two business days of a request by the Indemnitee, any and all
Expenses to the Indemnitee (and the Indemnitee hereby agrees to
reimburse the trust under the circumstances under which the Indemnitee
would be required to reimburse the Company under Section 2(b) of this
Agreement), (iii) the trust shall continue to be funded by the Company
in accordance with the funding obligation set forth above, (iv) the
trustee shall promptly pay to Indemnitee all amounts for which
Indemnitee shall be entitled to indemnification pursuant to this
Agreement or otherwise, and (v) all unexpended funds in such trust
shall revert to the Company upon a final determination by the Reviewing
Party or a court of competent jurisdiction, as the case may be, that
Indemnitee has been fully indemnified under the terms of this
Agreement. The trustee shall be chosen by Indemnitee. Nothing in this
Section 4 shall relieve the Company of any of its obligations under
this Agreement.
5. Indemnification for Additional Expenses. The Company shall indemnify
Indemnitee against any and all expenses (including attorneys' fees)
and, if requested by Indemnitee, shall (within two business days of
such request) advance such expenses to Indemnitee, which are incurred
by Indemnitee in connection with any action brought by Indemnitee for
(i) indemnification or advance payment of Expenses by the Company under
this Agreement or any other agreement or Company Bylaw now or hereafter
in effect relating to Claims for Indemnifiable Events and/or (ii)
recovery under any directors' and officers' liability insurance
policies maintained by the Company, regardless of whether Indemnitee
ultimately is determined to be entitled to such indemnification,
advance expense payment or insurance recovery, as the case may be.
6. Partial Indemnity, Etc. If Indemnitee is entitled under any provision of this Agreement to indemnification by the Company for some or a portion of the
Expenses, judgments, fines, penalties and amounts paid in settlement arising from or relating to a Claim but not, however, for all of the total amount thereof, the Company shall nevertheless indemnify Indemnitee for the portion thereof to which Indemnitee is entitled. Moreover, notwithstanding any other provision of this Agreement, to the extent that Indemnitee has been successful on the merits or otherwise in defense of any or all Claims relating in whole or in part to an Indemnifiable Event or in defense of any issue or matter therein, including dismissal without prejudice, Indemnitee shall be indemnified against all Expenses incurred in connection therewith.
7. Burden of Proof. In connection with any determination by the Reviewing Party or otherwise as to whether Indemnitee is entitled to be indemnified hereunder the burden of proof shall be on the Company to establish that Indemnitee is not so entitled.
8. No Presumptions. For purposes of this Agreement, the termination of any claim, action, suit or proceeding, by judgment, order, settlement (whether with or without court approval) or conviction, or upon a plea of nolo contendere, or its equivalent, shall not create a presumption that Indemnitee did not meet any particular standard of conduct or have any particular belief or that a court has determined that indemnification is not permitted by applicable law. In addition, neither the failure of the Reviewing Party to have made a determination as to whether Indemnitee has met any particular standard of conduct or had any particular belief, nor an actual determination by the Reviewing Party that Indemnitee has not met such standard of conduct or did not have such belief, prior to the commencement of legal proceedings by Indemnitee to secure a judicial determination that Indemnitee should be indemnified under applicable law shall be a defense to Indemnitee's claim or create a presumption that Indemnitee has not met any particular standard of conduct or did not have any particular belief.
9. Nonexclusivity, Etc. The rights of the Indemnitee hereunder shall be in addition to any other rights Indemnitee may have under the Company's Amended and Restated Bylaws or the Delaware General Corporation Law or otherwise. To the extent that a change in the Delaware General Corporation Law (whether by statute or judicial decision) permits greater indemnification by agreement than would be afforded currently under the Company's Amended and Restated Bylaws and this Agreement, it is the intent of the parties hereto that Indemnitee shall enjoy by this Agreement the greater benefits so afforded by such change.
10. Liability Insurance. To the extent the Company maintains an insurance policy or policies providing directors' and officers' liability insurance, Indemnitee shall be covered by such policy or policies, in accordance with its or their terms, to the maximum extent of the coverage available for any Company director or officer.
11. Period of Limitations. No legal action shall be brought and no cause of action shall be asserted by or in the right of the Company against Indemnitee, Indemnitee's spouse, heirs, executors or personal or legal representatives after the
expiration of two years from the date of accrual of such cause of action, and any claim or cause of action of the Company shall be extinguished and deemed released unless asserted by the timely filing of a legal action within such two-year period; provided, however, that if any shorter period of limitations is otherwise applicable to any such cause of action such shorter period shall govern.
12. Amendments, Etc. No supplement, modification or amendment of this Agreement shall be binding unless executed in writing by both of the parties hereto. No waiver of any of the provisions of this Agreement shall be deemed or shall constitute a waiver of any other provisions hereof (whether or not similar) nor shall such waiver constitute a continuing waiver.
13. Subrogation. In the event of payment under this Agreement, the Company shall be subrogated to the extent of such payment to all of the rights of recovery of Indemnitee, who shall execute all papers required and shall do everything that may be necessary to secure such rights, including the execution of such documents necessary to enable the Company effectively to bring suit to enforce such rights.
14. No Duplication of Payments. The Company shall not be liable under this Agreement to make any payment in connection with any Claim made against Indemnitee to the extent Indemnitee has otherwise actually received payment (under any insurance policy, Bylaw or otherwise) of the amounts otherwise indemnifiable hereunder.
15. Binding Effect, Etc. This Agreement shall be binding upon and inure to the benefit of and be enforceable by the parties hereto and their respective successors, assigns, including any direct or indirect successor by purchase, merger, consolidation or otherwise to all or substantially all of the business and/or assets of the Company, spouses, heirs, executors and personal and legal representatives. This Agreement shall continue in effect regardless of whether Indemnitee continues to serve as an officer or director of the Company or of any other enterprise at the Company's request.
16. Severability. The provisions of this Agreement shall be severable in the event that any of the provisions hereof (including any provision within a single section, paragraph or sentence) are held by a court of competent jurisdiction to be invalid, void or otherwise unenforceable in any respect, and the validity and enforceability of any such provision in every other respect and of the remaining provisions hereof shall not be in any way impaired and shall remain enforceable to the fullest extent permitted by law.
17. Governing Law. This Agreement shall be governed by and construed and enforced in accordance with the laws of the State of Delaware applicable to contracts made and to be performed in such state without giving effect to the principles of conflicts of laws.
18. Amendment and Restatement. This Agreement shall amend and restate in its entirety that certain Indemnification Agreement dated as of November 14, 1995, as amended, between the Indemnitee and Belden Inc. (which has been assumed by the Company).
IN WITNESS WHEREOF, the parties hereto have executed this Agreement this 1st day September 2004.
By /s/ C. Baker Cunningham ------------------------------- Name: C. Baker Cunningham Title: Chief Executive Officer and President /s/Christopher I. Byrnes ------------------------------- Christopher I. Byrnes (Indemnitee) |
EXHIBIT 10.42
INDEMNIFICATION AGREEMENT
AGREEMENT, effective as of September 1, 2004, between Belden CDT Inc., a Delaware corporation (the "Company"), and John M. Monter (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:
1. Certain Definitions:
(a) Change in Control: shall be deemed to have occurred if (i) any "person" (as such term is used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as amended), other than a trustee or other fiduciary holding securities under an employee benefit plan of the Company or a corporation owned directly or indirectly by the stockholders of the Company in substantially the same proportions as their ownership of stock of the Company, is or becomes the "beneficial owner" (as defined in Rule 13d-3 under said Act), directly or indirectly, of securities of the Company
representing 20% or more of the total voting power represented by the Company's then outstanding Voting Securities, or (ii) during any period of two consecutive years, individuals who at the beginning of such period constitute the Board of Directors of the Company and any new director whose election by the Board of Directors or nomination for election by the Company's stockholders was approved by a vote of at least two-thirds (2/3) of the directors then still in office who either were directors at the beginning of the period or whose election or nomination for election was previously so approved, cease for any reason to constitute a majority thereof, or (iii) the stockholders of the Company approve a merger or consolidation of the Company with any other corporation, other than a merger or consolidation which would result in the Voting Securities of the Company outstanding immediately prior thereto continuing to represent (either by remaining outstanding or by being converted into Voting Securities of the surviving entity) at least 80% of the total voting power represented by the Voting Securities of the Company or such surviving entity outstanding immediately after such merger or consolidation, or the stockholders of the Company approve a plan of complete liquidation of the Company or an agreement for the sale or disposition by the Company of (in one transaction or a series of transactions) all or substantially all the Company's assets.
(b) Claim: any threatened, pending or completed action, suit or proceeding, or any inquiry or investigation, whether instituted by the Company or any other party, that Indemnitee in good faith believes might lead to the institution of any such action, suit or proceeding, whether civil, criminal, administrative, investigative or other.
(c) Expenses: include attorneys' fees and all other costs, expenses and obligations paid or incurred in connection with investigating, defending, being a witness in or participating in (including on appeal), or preparing to defend, be a witness in or participate in, any Claim relating to any Indemnifiable Event.
(d) Indemnifiable Event: any event or occurrence related to the fact that Indemnitee is or was a director, officer, employee, agent or fiduciary of the Company, or 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.
(e) Independent Legal Counsel: an attorney or firm of attorneys, selected in accordance with the provisions of Section 3, who shall not have otherwise performed services for the Company or Indemnitee within the last five years (other than with respect to matters concerning the rights of
Indemnitee under this Agreement, or of other indemnitees under similar indemnity agreements).
(f) Potential Change in Control: shall be deemed to have occurred
if (i) the Company enters into an agreement, the consummation
of which would result in the occurrence of a Change in
Control; (ii) any person (including the Company) publicly
announces an intention to take or to consider taking actions
which if consummated would constitute a Change in Control;
(iii) any person, other than a trustee or other fiduciary
holding securities under an employee benefit plan of the
Company or a corporation owned, directly or indirectly, by the
stockholders of the Company in substantially the same
proportions as their ownership of stock of the Company, who is
or becomes the beneficial owner, directly or indirectly, of
securities of the Company representing 9.5% or more of the
combined voting power of the Company's then outstanding Voting
Securities, increases his beneficial ownership of such
securities by five percentage points (5%) or more over the
percentage so owned by such person; or (iv) the Board adopts a
resolution to the effect that, for purposes of this Agreement,
a Potential Change in Control has occurred.
(g) Reviewing Party: any appropriate person or body consisting of a member or members of the Company's Board of Directors or any other person or body appointed by the Board who is not a party to the particular Claim for which Indemnitee is seeking indemnification, or Independent Legal Counsel.
(h) Voting Securities: any securities of the Company which vote generally in the election of directors.
2. Basic Indemnification Arrangement.
(a) In the event Indemnitee was, is or becomes a party to or witness or other participant in, or is threatened to be made a party to or witness or other participant in, a Claim by reason of (or arising in part out of) an Indemnifiable Event, the Company shall indemnify Indemnitee to the fullest extent permitted by law as soon as practicable but in any event no later than thirty days after written demand is presented to the Company, against any and all Expenses, judgments, fines, penalties and amounts paid in settlement (including all interest, assessments and other charges paid or payable in connection with or in respect of such Expenses, judgments, fines, penalties or amounts paid in settlement) 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").
(b) Notwithstanding the foregoing, (i) the obligations of the Company under Section 2(a) shall be subject to the condition that the Reviewing Party
shall not have determined (in a written opinion, in any case in which the Independent Legal Counsel referred to in Section 3 hereof is involved) that Indemnitee would not be permitted to be indemnified under applicable law, and (ii) the obligation of the Company to make an Expense Advance pursuant to Section 2(a) shall be subject to the condition that, if, when and to the extent that the Reviewing Party determines that Indemnitee would not be permitted to be so indemnified under applicable law, the Company shall be entitled to be reimbursed by Indemnitee (who hereby agrees to reimburse the Company) for all such amounts theretofore paid; provided, however, that if Indemnitee has commenced or thereafter commences legal proceedings in a court of competent jurisdiction to secure a determination that Indemnitee should be indemnified under applicable law, any determination made by the Reviewing Party that Indemnitee would not be permitted to be indemnified under applicable law shall not be binding and Indemnitee shall not be required to reimburse the Company for any Expense Advance until a final judicial determination is made with respect thereto (as to which all rights of appeal therefrom have been exhausted or lapsed). If there has not been a Change in Control, the Reviewing Party shall be selected by the Board of Directors, and if there has been such a Change in Control (other than a Change in Control which has been approved by a majority of the Company's Board of Directors who were directors immediately prior to such Change in Control), the Reviewing Party shall be the Independent Legal Counsel referred to in Section 3 hereof. If there has been no determination by the Reviewing Party or if the Reviewing Party determines that Indemnitee substantively would not be permitted to be indemnified in whole or in part under applicable law, Indemnitee shall have the right to commence litigation in any court in the State of Delaware having subject matter jurisdiction thereof and in which venue is proper seeking an initial determination by the court or challenging any such determination by the Reviewing Party or any aspect thereof, including the legal or factual bases therefor, and the Company hereby consents to service of process and to appear in any such proceeding. Any determination by the Reviewing Party otherwise shall be conclusive and binding on the Company and Indemnitee.
3. Change in Control. The Company agrees that if there is a Change in Control of the Company (other than a Change in Control which has been approved by a majority of the Company's Board of Directors who were directors immediately prior to such Change in Control) then with respect to all matters thereafter arising concerning the rights of Indemnitee to indemnity payments and Expense Advances under this Agreement or any other agreement or Company Bylaw now or hereafter in effect relating to Claims for Indemnifiable Events, the Company shall seek legal advice only from Independent Legal Counsel selected by Indemnitee and approved by the Company (which approval shall not be unreasonably withheld). Such counsel, among other things, shall render its written opinion to the Company and Indemnitee as to whether and to what extent the Indemnitee would be permitted to be indemnified under applicable law. The
Company agrees to pay the reasonable fees of the Independent Legal Counsel referred to above and to indemnify fully such counsel against any and all expenses (including attorneys' fees), claims, liabilities and damages arising out of or relating to this Agreement or its engagement pursuant hereto.
4. Establishment of Trust. In the event of a Potential Change in Control,
the Company shall, upon written request by Indemnitee, create a trust
for the benefit of Indemnitee and from time to time upon written
request of Indemnitee shall fund such trust in an amount sufficient to
satisfy any and all Expenses reasonably anticipated at the time of each
such request to be incurred in connection with investigating, preparing
for and defending any Claim relating to an Indemnifiable Event, and any
and all judgments, fines, penalties and settlement amounts of any and
all Claims relating to an Indemnifiable Event from time to time
actually paid or claimed, reasonably anticipated or proposed to be
paid. The amount or amounts to be deposited in the trust pursuant to
the foregoing funding obligation shall be determined by the Reviewing
Party, in any case in which the Independent Legal Counsel referred to
above is involved. The terms of the trust shall provide that (i) the
trust shall not be revoked or the principal thereof invaded, without
the written consent of the Indemnitee, (ii) the trustee shall advance,
within two business days of a request by the Indemnitee, any and all
Expenses to the Indemnitee (and the Indemnitee hereby agrees to
reimburse the trust under the circumstances under which the Indemnitee
would be required to reimburse the Company under Section 2(b) of this
Agreement), (iii) the trust shall continue to be funded by the Company
in accordance with the funding obligation set forth above, (iv) the
trustee shall promptly pay to Indemnitee all amounts for which
Indemnitee shall be entitled to indemnification pursuant to this
Agreement or otherwise, and (v) all unexpended funds in such trust
shall revert to the Company upon a final determination by the Reviewing
Party or a court of competent jurisdiction, as the case may be, that
Indemnitee has been fully indemnified under the terms of this
Agreement. The trustee shall be chosen by Indemnitee. Nothing in this
Section 4 shall relieve the Company of any of its obligations under
this Agreement.
5. Indemnification for Additional Expenses. The Company shall indemnify
Indemnitee against any and all expenses (including attorneys' fees)
and, if requested by Indemnitee, shall (within two business days of
such request) advance such expenses to Indemnitee, which are incurred
by Indemnitee in connection with any action brought by Indemnitee for
(i) indemnification or advance payment of Expenses by the Company under
this Agreement or any other agreement or Company Bylaw now or hereafter
in effect relating to Claims for Indemnifiable Events and/or (ii)
recovery under any directors' and officers' liability insurance
policies maintained by the Company, regardless of whether Indemnitee
ultimately is determined to be entitled to such indemnification,
advance expense payment or insurance recovery, as the case may be.
6. Partial Indemnity, Etc. If Indemnitee is entitled under any provision of this Agreement to indemnification by the Company for some or a portion of the
Expenses, judgments, fines, penalties and amounts paid in settlement arising from or relating to a Claim but not, however, for all of the total amount thereof, the Company shall nevertheless indemnify Indemnitee for the portion thereof to which Indemnitee is entitled. Moreover, notwithstanding any other provision of this Agreement, to the extent that Indemnitee has been successful on the merits or otherwise in defense of any or all Claims relating in whole or in part to an Indemnifiable Event or in defense of any issue or matter therein, including dismissal without prejudice, Indemnitee shall be indemnified against all Expenses incurred in connection therewith.
7. Burden of Proof. In connection with any determination by the Reviewing Party or otherwise as to whether Indemnitee is entitled to be indemnified hereunder the burden of proof shall be on the Company to establish that Indemnitee is not so entitled.
8. No Presumptions. For purposes of this Agreement, the termination of any claim, action, suit or proceeding, by judgment, order, settlement (whether with or without court approval) or conviction, or upon a plea of nolo contendere, or its equivalent, shall not create a presumption that Indemnitee did not meet any particular standard of conduct or have any particular belief or that a court has determined that indemnification is not permitted by applicable law. In addition, neither the failure of the Reviewing Party to have made a determination as to whether Indemnitee has met any particular standard of conduct or had any particular belief, nor an actual determination by the Reviewing Party that Indemnitee has not met such standard of conduct or did not have such belief, prior to the commencement of legal proceedings by Indemnitee to secure a judicial determination that Indemnitee should be indemnified under applicable law shall be a defense to Indemnitee's claim or create a presumption that Indemnitee has not met any particular standard of conduct or did not have any particular belief.
9. Nonexclusivity, Etc. The rights of the Indemnitee hereunder shall be in addition to any other rights Indemnitee may have under the Company's Amended and Restated Bylaws or the Delaware General Corporation Law or otherwise. To the extent that a change in the Delaware General Corporation Law (whether by statute or judicial decision) permits greater indemnification by agreement than would be afforded currently under the Company's Amended and Restated Bylaws and this Agreement, it is the intent of the parties hereto that Indemnitee shall enjoy by this Agreement the greater benefits so afforded by such change.
10. Liability Insurance. To the extent the Company maintains an insurance policy or policies providing directors' and officers' liability insurance, Indemnitee shall be covered by such policy or policies, in accordance with its or their terms, to the maximum extent of the coverage available for any Company director or officer.
11. Period of Limitations. No legal action shall be brought and no cause of action shall be asserted by or in the right of the Company against Indemnitee, Indemnitee's spouse, heirs, executors or personal or legal representatives after the
expiration of two years from the date of accrual of such cause of action, and any claim or cause of action of the Company shall be extinguished and deemed released unless asserted by the timely filing of a legal action within such two-year period; provided, however, that if any shorter period of limitations is otherwise applicable to any such cause of action such shorter period shall govern.
12. Amendments, Etc. No supplement, modification or amendment of this Agreement shall be binding unless executed in writing by both of the parties hereto. No waiver of any of the provisions of this Agreement shall be deemed or shall constitute a waiver of any other provisions hereof (whether or not similar) nor shall such waiver constitute a continuing waiver.
13. Subrogation. In the event of payment under this Agreement, the Company shall be subrogated to the extent of such payment to all of the rights of recovery of Indemnitee, who shall execute all papers required and shall do everything that may be necessary to secure such rights, including the execution of such documents necessary to enable the Company effectively to bring suit to enforce such rights.
14. No Duplication of Payments. The Company shall not be liable under this Agreement to make any payment in connection with any Claim made against Indemnitee to the extent Indemnitee has otherwise actually received payment (under any insurance policy, Bylaw or otherwise) of the amounts otherwise indemnifiable hereunder.
15. Binding Effect, Etc. This Agreement shall be binding upon and inure to the benefit of and be enforceable by the parties hereto and their respective successors, assigns, including any direct or indirect successor by purchase, merger, consolidation or otherwise to all or substantially all of the business and/or assets of the Company, spouses, heirs, executors and personal and legal representatives. This Agreement shall continue in effect regardless of whether Indemnitee continues to serve as an officer or director of the Company or of any other enterprise at the Company's request.
16. Severability. The provisions of this Agreement shall be severable in the event that any of the provisions hereof (including any provision within a single section, paragraph or sentence) are held by a court of competent jurisdiction to be invalid, void or otherwise unenforceable in any respect, and the validity and enforceability of any such provision in every other respect and of the remaining provisions hereof shall not be in any way impaired and shall remain enforceable to the fullest extent permitted by law.
17. Governing Law. This Agreement shall be governed by and construed and enforced in accordance with the laws of the State of Delaware applicable to contracts made and to be performed in such state without giving effect to the principles of conflicts of laws.
18. Amendment and Restatement. This Agreement shall amend and restate in its entirety that certain Indemnification Agreement dated as of May 4, 2000, as amended, between the Indemnitee and Belden Inc. (which has been assumed by the Company).
IN WITNESS WHEREOF, the parties hereto have executed this Agreement this 1st day September 2004.
By /s/ C. Baker Cunningham ------------------------------------- Name: C. Baker Cunningham Title: Chief Executive Officer and President /s/ John M. Monter ------------------------------------- John M. Monter (Indemnitee) |
EXHIBIT 10.43
INDEMNIFICATION AGREEMENT
AGREEMENT, effective as of September 1, 2004, between Belden CDT Inc., a Delaware corporation (the "Company"), and Lorne D. Bain (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:
1. Certain Definitions:
(a) Change in Control: shall be deemed to have occurred if (i) any "person" (as such term is used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as amended), other than a trustee or other fiduciary holding securities under an employee benefit plan of the Company or a corporation owned directly or indirectly by the stockholders of the Company in substantially the same proportions as their ownership of stock of the Company, is or becomes the "beneficial owner" (as defined in Rule 13d-3 under said Act), directly or indirectly, of securities of the Company
representing 20% or more of the total voting power represented by the Company's then outstanding Voting Securities, or (ii) during any period of two consecutive years, individuals who at the beginning of such period constitute the Board of Directors of the Company and any new director whose election by the Board of Directors or nomination for election by the Company's stockholders was approved by a vote of at least two-thirds (2/3) of the directors then still in office who either were directors at the beginning of the period or whose election or nomination for election was previously so approved, cease for any reason to constitute a majority thereof, or (iii) the stockholders of the Company approve a merger or consolidation of the Company with any other corporation, other than a merger or consolidation which would result in the Voting Securities of the Company outstanding immediately prior thereto continuing to represent (either by remaining outstanding or by being converted into Voting Securities of the surviving entity) at least 80% of the total voting power represented by the Voting Securities of the Company or such surviving entity outstanding immediately after such merger or consolidation, or the stockholders of the Company approve a plan of complete liquidation of the Company or an agreement for the sale or disposition by the Company of (in one transaction or a series of transactions) all or substantially all the Company's assets.
(b) Claim: any threatened, pending or completed action, suit or proceeding, or any inquiry or investigation, whether instituted by the Company or any other party, that Indemnitee in good faith believes might lead to the institution of any such action, suit or proceeding, whether civil, criminal, administrative, investigative or other.
(c) Expenses: include attorneys' fees and all other costs, expenses and obligations paid or incurred in connection with investigating, defending, being a witness in or participating in (including on appeal), or preparing to defend, be a witness in or participate in, any Claim relating to any Indemnifiable Event.
(d) Indemnifiable Event: any event or occurrence related to the fact that Indemnitee is or was a director, officer, employee, agent or fiduciary of the Company, or 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.
(e) Independent Legal Counsel: an attorney or firm of attorneys, selected in accordance with the provisions of Section 3, who shall not have otherwise performed services for the Company or Indemnitee within the last five years (other than with respect to matters concerning the rights of
Indemnitee under this Agreement, or of other indemnitees under similar indemnity agreements).
(f) Potential Change in Control: shall be deemed to have occurred
if (i) the Company enters into an agreement, the consummation
of which would result in the occurrence of a Change in
Control; (ii) any person (including the Company) publicly
announces an intention to take or to consider taking actions
which if consummated would constitute a Change in Control;
(iii) any person, other than a trustee or other fiduciary
holding securities under an employee benefit plan of the
Company or a corporation owned, directly or indirectly, by the
stockholders of the Company in substantially the same
proportions as their ownership of stock of the Company, who is
or becomes the beneficial owner, directly or indirectly, of
securities of the Company representing 9.5% or more of the
combined voting power of the Company's then outstanding Voting
Securities, increases his beneficial ownership of such
securities by five percentage points (5%) or more over the
percentage so owned by such person; or (iv) the Board adopts a
resolution to the effect that, for purposes of this Agreement,
a Potential Change in Control has occurred.
(g) Reviewing Party: any appropriate person or body consisting of a member or members of the Company's Board of Directors or any other person or body appointed by the Board who is not a party to the particular Claim for which Indemnitee is seeking indemnification, or Independent Legal Counsel.
(h) Voting Securities: any securities of the Company which vote generally in the election of directors.
2. Basic Indemnification Arrangement.
(a) In the event Indemnitee was, is or becomes a party to or witness or other participant in, or is threatened to be made a party to or witness or other participant in, a Claim by reason of (or arising in part out of) an Indemnifiable Event, the Company shall indemnify Indemnitee to the fullest extent permitted by law as soon as practicable but in any event no later than thirty days after written demand is presented to the Company, against any and all Expenses, judgments, fines, penalties and amounts paid in settlement (including all interest, assessments and other charges paid or payable in connection with or in respect of such Expenses, judgments, fines, penalties or amounts paid in settlement) 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").
(b) Notwithstanding the foregoing, (i) the obligations of the Company under Section 2(a) shall be subject to the condition that the Reviewing Party
shall not have determined (in a written opinion, in any case in which the Independent Legal Counsel referred to in Section 3 hereof is involved) that Indemnitee would not be permitted to be indemnified under applicable law, and (ii) the obligation of the Company to make an Expense Advance pursuant to Section 2(a) shall be subject to the condition that, if, when and to the extent that the Reviewing Party determines that Indemnitee would not be permitted to be so indemnified under applicable law, the Company shall be entitled to be reimbursed by Indemnitee (who hereby agrees to reimburse the Company) for all such amounts theretofore paid; provided, however, that if Indemnitee has commenced or thereafter commences legal proceedings in a court of competent jurisdiction to secure a determination that Indemnitee should be indemnified under applicable law, any determination made by the Reviewing Party that Indemnitee would not be permitted to be indemnified under applicable law shall not be binding and Indemnitee shall not be required to reimburse the Company for any Expense Advance until a final judicial determination is made with respect thereto (as to which all rights of appeal therefrom have been exhausted or lapsed). If there has not been a Change in Control, the Reviewing Party shall be selected by the Board of Directors, and if there has been such a Change in Control (other than a Change in Control which has been approved by a majority of the Company's Board of Directors who were directors immediately prior to such Change in Control), the Reviewing Party shall be the Independent Legal Counsel referred to in Section 3 hereof. If there has been no determination by the Reviewing Party or if the Reviewing Party determines that Indemnitee substantively would not be permitted to be indemnified in whole or in part under applicable law, Indemnitee shall have the right to commence litigation in any court in the State of Delaware having subject matter jurisdiction thereof and in which venue is proper seeking an initial determination by the court or challenging any such determination by the Reviewing Party or any aspect thereof, including the legal or factual bases therefor, and the Company hereby consents to service of process and to appear in any such proceeding. Any determination by the Reviewing Party otherwise shall be conclusive and binding on the Company and Indemnitee.
3. Change in Control. The Company agrees that if there is a Change in Control of the Company (other than a Change in Control which has been approved by a majority of the Company's Board of Directors who were directors immediately prior to such Change in Control) then with respect to all matters thereafter arising concerning the rights of Indemnitee to indemnity payments and Expense Advances under this Agreement or any other agreement or Company Bylaw now or hereafter in effect relating to Claims for Indemnifiable Events, the Company shall seek legal advice only from Independent Legal Counsel selected by Indemnitee and approved by the Company (which approval shall not be unreasonably withheld). Such counsel, among other things, shall render its written opinion to the Company and Indemnitee as to whether and to what extent the Indemnitee would be permitted to be indemnified under applicable law. The
Company agrees to pay the reasonable fees of the Independent Legal Counsel referred to above and to indemnify fully such counsel against any and all expenses (including attorneys' fees), claims, liabilities and damages arising out of or relating to this Agreement or its engagement pursuant hereto.
4. Establishment of Trust. In the event of a Potential Change in Control,
the Company shall, upon written request by Indemnitee, create a trust
for the benefit of Indemnitee and from time to time upon written
request of Indemnitee shall fund such trust in an amount sufficient to
satisfy any and all Expenses reasonably anticipated at the time of each
such request to be incurred in connection with investigating, preparing
for and defending any Claim relating to an Indemnifiable Event, and any
and all judgments, fines, penalties and settlement amounts of any and
all Claims relating to an Indemnifiable Event from time to time
actually paid or claimed, reasonably anticipated or proposed to be
paid. The amount or amounts to be deposited in the trust pursuant to
the foregoing funding obligation shall be determined by the Reviewing
Party, in any case in which the Independent Legal Counsel referred to
above is involved. The terms of the trust shall provide that (i) the
trust shall not be revoked or the principal thereof invaded, without
the written consent of the Indemnitee, (ii) the trustee shall advance,
within two business days of a request by the Indemnitee, any and all
Expenses to the Indemnitee (and the Indemnitee hereby agrees to
reimburse the trust under the circumstances under which the Indemnitee
would be required to reimburse the Company under Section 2(b) of this
Agreement), (iii) the trust shall continue to be funded by the Company
in accordance with the funding obligation set forth above, (iv) the
trustee shall promptly pay to Indemnitee all amounts for which
Indemnitee shall be entitled to indemnification pursuant to this
Agreement or otherwise, and (v) all unexpended funds in such trust
shall revert to the Company upon a final determination by the Reviewing
Party or a court of competent jurisdiction, as the case may be, that
Indemnitee has been fully indemnified under the terms of this
Agreement. The trustee shall be chosen by Indemnitee. Nothing in this
Section 4 shall relieve the Company of any of its obligations under
this Agreement.
5. Indemnification for Additional Expenses. The Company shall indemnify
Indemnitee against any and all expenses (including attorneys' fees)
and, if requested by Indemnitee, shall (within two business days of
such request) advance such expenses to Indemnitee, which are incurred
by Indemnitee in connection with any action brought by Indemnitee for
(i) indemnification or advance payment of Expenses by the Company under
this Agreement or any other agreement or Company Bylaw now or hereafter
in effect relating to Claims for Indemnifiable Events and/or (ii)
recovery under any directors' and officers' liability insurance
policies maintained by the Company, regardless of whether Indemnitee
ultimately is determined to be entitled to such indemnification,
advance expense payment or insurance recovery, as the case may be.
6. Partial Indemnity, Etc. If Indemnitee is entitled under any provision of this Agreement to indemnification by the Company for some or a portion of the
Expenses, judgments, fines, penalties and amounts paid in settlement arising from or relating to a Claim but not, however, for all of the total amount thereof, the Company shall nevertheless indemnify Indemnitee for the portion thereof to which Indemnitee is entitled. Moreover, notwithstanding any other provision of this Agreement, to the extent that Indemnitee has been successful on the merits or otherwise in defense of any or all Claims relating in whole or in part to an Indemnifiable Event or in defense of any issue or matter therein, including dismissal without prejudice, Indemnitee shall be indemnified against all Expenses incurred in connection therewith.
7. Burden of Proof. In connection with any determination by the Reviewing Party or otherwise as to whether Indemnitee is entitled to be indemnified hereunder the burden of proof shall be on the Company to establish that Indemnitee is not so entitled.
8. No Presumptions. For purposes of this Agreement, the termination of any claim, action, suit or proceeding, by judgment, order, settlement (whether with or without court approval) or conviction, or upon a plea of nolo contendere, or its equivalent, shall not create a presumption that Indemnitee did not meet any particular standard of conduct or have any particular belief or that a court has determined that indemnification is not permitted by applicable law. In addition, neither the failure of the Reviewing Party to have made a determination as to whether Indemnitee has met any particular standard of conduct or had any particular belief, nor an actual determination by the Reviewing Party that Indemnitee has not met such standard of conduct or did not have such belief, prior to the commencement of legal proceedings by Indemnitee to secure a judicial determination that Indemnitee should be indemnified under applicable law shall be a defense to Indemnitee's claim or create a presumption that Indemnitee has not met any particular standard of conduct or did not have any particular belief.
9. Nonexclusivity, Etc. The rights of the Indemnitee hereunder shall be in addition to any other rights Indemnitee may have under the Company's Amended and Restated Bylaws or the Delaware General Corporation Law or otherwise. To the extent that a change in the Delaware General Corporation Law (whether by statute or judicial decision) permits greater indemnification by agreement than would be afforded currently under the Company's Amended and Restated Bylaws and this Agreement, it is the intent of the parties hereto that Indemnitee shall enjoy by this Agreement the greater benefits so afforded by such change.
10. Liability Insurance. To the extent the Company maintains an insurance policy or policies providing directors' and officers' liability insurance, Indemnitee shall be covered by such policy or policies, in accordance with its or their terms, to the maximum extent of the coverage available for any Company director or officer.
11. Period of Limitations. No legal action shall be brought and no cause of action shall be asserted by or in the right of the Company against Indemnitee, Indemnitee's spouse, heirs, executors or personal or legal representatives after the
expiration of two years from the date of accrual of such cause of action, and any claim or cause of action of the Company shall be extinguished and deemed released unless asserted by the timely filing of a legal action within such two-year period; provided, however, that if any shorter period of limitations is otherwise applicable to any such cause of action such shorter period shall govern.
12. Amendments, Etc. No supplement, modification or amendment of this Agreement shall be binding unless executed in writing by both of the parties hereto. No waiver of any of the provisions of this Agreement shall be deemed or shall constitute a waiver of any other provisions hereof (whether or not similar) nor shall such waiver constitute a continuing waiver.
13. Subrogation. In the event of payment under this Agreement, the Company shall be subrogated to the extent of such payment to all of the rights of recovery of Indemnitee, who shall execute all papers required and shall do everything that may be necessary to secure such rights, including the execution of such documents necessary to enable the Company effectively to bring suit to enforce such rights.
14. No Duplication of Payments. The Company shall not be liable under this Agreement to make any payment in connection with any Claim made against Indemnitee to the extent Indemnitee has otherwise actually received payment (under any insurance policy, Bylaw or otherwise) of the amounts otherwise indemnifiable hereunder.
15. Binding Effect, Etc. This Agreement shall be binding upon and inure to the benefit of and be enforceable by the parties hereto and their respective successors, assigns, including any direct or indirect successor by purchase, merger, consolidation or otherwise to all or substantially all of the business and/or assets of the Company, spouses, heirs, executors and personal and legal representatives. This Agreement shall continue in effect regardless of whether Indemnitee continues to serve as an officer or director of the Company or of any other enterprise at the Company's request.
16. Severability. The provisions of this Agreement shall be severable in the event that any of the provisions hereof (including any provision within a single section, paragraph or sentence) are held by a court of competent jurisdiction to be invalid, void or otherwise unenforceable in any respect, and the validity and enforceability of any such provision in every other respect and of the remaining provisions hereof shall not be in any way impaired and shall remain enforceable to the fullest extent permitted by law.
17. Governing Law. This Agreement shall be governed by and construed and enforced in accordance with the laws of the State of Delaware applicable to contracts made and to be performed in such state without giving effect to the principles of conflicts of laws.
18. Amendment and Restatement. This Agreement shall amend and restate in its entirety that certain Indemnification Agreement dated as of August 3, 1993, as amended, between the Indemnitee and Belden Inc. (which has been assumed by the Company).
IN WITNESS WHEREOF, the parties hereto have executed this Agreement this 1st day September 2004.
By /s/ C. Baker Cunningham ---------------------------------- Name: C. Baker Cunningham Title: Chief Executive Officer and President /s/ Lorne D. Bain ---------------------------------- Lorne D. Bain (Indemnitee) |
EXHIBIT 10.44
INDEMNIFICATION AGREEMENT
AGREEMENT, effective as of September 1, 2004, between Belden CDT Inc., a Delaware corporation (the "Company"), and Bernard G. Rethore (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:
1. Certain Definitions:
(a) Change in Control: shall be deemed to have occurred if (i) any "person" (as such term is used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as amended), other than a trustee or other fiduciary holding securities under an employee benefit plan of the Company or a corporation owned directly or indirectly by the stockholders of the Company in substantially the same proportions as their ownership of stock of the Company, is or becomes the "beneficial owner" (as defined in Rule
13d-3 under said Act), directly or indirectly, of securities of the Company representing 20% or more of the total voting power represented by the Company's then outstanding Voting Securities, or (ii) during any period of two consecutive years, individuals who at the beginning of such period constitute the Board of Directors of the Company and any new director whose election by the Board of Directors or nomination for election by the Company's stockholders was approved by a vote of at least two-thirds (2/3) of the directors then still in office who either were directors at the beginning of the period or whose election or nomination for election was previously so approved, cease for any reason to constitute a majority thereof, or (iii) the stockholders of the Company approve a merger or consolidation of the Company with any other corporation, other than a merger or consolidation which would result in the Voting Securities of the Company outstanding immediately prior thereto continuing to represent (either by remaining outstanding or by being converted into Voting Securities of the surviving entity) at least 80% of the total voting power represented by the Voting Securities of the Company or such surviving entity outstanding immediately after such merger or consolidation, or the stockholders of the Company approve a plan of complete liquidation of the Company or an agreement for the sale or disposition by the Company of (in one transaction or a series of transactions) all or substantially all the Company's assets.
(b) Claim: any threatened, pending or completed action, suit or proceeding, or any inquiry or investigation, whether instituted by the Company or any other party, that Indemnitee in good faith believes might lead to the institution of any such action, suit or proceeding, whether civil, criminal, administrative, investigative or other.
(c) Expenses: include attorneys' fees and all other costs, expenses and obligations paid or incurred in connection with investigating, defending, being a witness in or participating in (including on appeal), or preparing to defend, be a witness in or participate in, any Claim relating to any Indemnifiable Event.
(d) Indemnifiable Event: any event or occurrence related to the fact that Indemnitee is or was a director, officer, employee, agent or fiduciary of the Company, or 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.
(e) Independent Legal Counsel: an attorney or firm of attorneys, selected in accordance with the provisions of Section 3, who shall not have otherwise performed services for the Company or Indemnitee within the last five years (other than with respect to matters concerning the rights of
Indemnitee under this Agreement, or of other indemnitees under similar indemnity agreements).
(f) Potential Change in Control: shall be deemed to have occurred
if (i) the Company enters into an agreement, the consummation
of which would result in the occurrence of a Change in
Control; (ii) any person (including the Company) publicly
announces an intention to take or to consider taking actions
which if consummated would constitute a Change in Control;
(iii) any person, other than a trustee or other fiduciary
holding securities under an employee benefit plan of the
Company or a corporation owned, directly or indirectly, by the
stockholders of the Company in substantially the same
proportions as their ownership of stock of the Company, who is
or becomes the beneficial owner, directly or indirectly, of
securities of the Company representing 9.5% or more of the
combined voting power of the Company's then outstanding Voting
Securities, increases his beneficial ownership of such
securities by five percentage points (5%) or more over the
percentage so owned by such person; or (iv) the Board adopts a
resolution to the effect that, for purposes of this Agreement,
a Potential Change in Control has occurred.
(g) Reviewing Party: any appropriate person or body consisting of a member or members of the Company's Board of Directors or any other person or body appointed by the Board who is not a party to the particular Claim for which Indemnitee is seeking indemnification, or Independent Legal Counsel.
(h) Voting Securities: any securities of the Company which vote generally in the election of directors.
2. Basic Indemnification Arrangement.
(a) In the event Indemnitee was, is or becomes a party to or witness or other participant in, or is threatened to be made a party to or witness or other participant in, a Claim by reason of (or arising in part out of) an Indemnifiable Event, the Company shall indemnify Indemnitee to the fullest extent permitted by law as soon as practicable but in any event no later than thirty days after written demand is presented to the Company, against any and all Expenses, judgments, fines, penalties and amounts paid in settlement (including all interest, assessments and other charges paid or payable in connection with or in respect of such Expenses, judgments, fines, penalties or amounts paid in settlement) 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").
(b) Notwithstanding the foregoing, (i) the obligations of the Company under Section 2(a) shall be subject to the condition that the Reviewing Party
shall not have determined (in a written opinion, in any case in which the Independent Legal Counsel referred to in Section 3 hereof is involved) that Indemnitee would not be permitted to be indemnified under applicable law, and (ii) the obligation of the Company to make an Expense Advance pursuant to Section 2(a) shall be subject to the condition that, if, when and to the extent that the Reviewing Party determines that Indemnitee would not be permitted to be so indemnified under applicable law, the Company shall be entitled to be reimbursed by Indemnitee (who hereby agrees to reimburse the Company) for all such amounts theretofore paid; provided, however, that if Indemnitee has commenced or thereafter commences legal proceedings in a court of competent jurisdiction to secure a determination that Indemnitee should be indemnified under applicable law, any determination made by the Reviewing Party that Indemnitee would not be permitted to be indemnified under applicable law shall not be binding and Indemnitee shall not be required to reimburse the Company for any Expense Advance until a final judicial determination is made with respect thereto (as to which all rights of appeal therefrom have been exhausted or lapsed). If there has not been a Change in Control, the Reviewing Party shall be selected by the Board of Directors, and if there has been such a Change in Control (other than a Change in Control which has been approved by a majority of the Company's Board of Directors who were directors immediately prior to such Change in Control), the Reviewing Party shall be the Independent Legal Counsel referred to in Section 3 hereof. If there has been no determination by the Reviewing Party or if the Reviewing Party determines that Indemnitee substantively would not be permitted to be indemnified in whole or in part under applicable law, Indemnitee shall have the right to commence litigation in any court in the State of Delaware having subject matter jurisdiction thereof and in which venue is proper seeking an initial determination by the court or challenging any such determination by the Reviewing Party or any aspect thereof, including the legal or factual bases therefor, and the Company hereby consents to service of process and to appear in any such proceeding. Any determination by the Reviewing Party otherwise shall be conclusive and binding on the Company and Indemnitee.
3. Change in Control. The Company agrees that if there is a Change in Control of the Company (other than a Change in Control which has been approved by a majority of the Company's Board of Directors who were directors immediately prior to such Change in Control) then with respect to all matters thereafter arising concerning the rights of Indemnitee to indemnity payments and Expense Advances under this Agreement or any other agreement or Company Bylaw now or hereafter in effect relating to Claims for Indemnifiable Events, the Company shall seek legal advice only from Independent Legal Counsel selected by Indemnitee and approved by the Company (which approval shall not be unreasonably withheld). Such counsel, among other things, shall render its written opinion to the Company and Indemnitee as to whether and to what extent the Indemnitee would be permitted to be indemnified under applicable law. The
Company agrees to pay the reasonable fees of the Independent Legal Counsel referred to above and to indemnify fully such counsel against any and all expenses (including attorneys' fees), claims, liabilities and damages arising out of or relating to this Agreement or its engagement pursuant hereto.
4. Establishment of Trust. In the event of a Potential Change in Control,
the Company shall, upon written request by Indemnitee, create a trust
for the benefit of Indemnitee and from time to time upon written
request of Indemnitee shall fund such trust in an amount sufficient to
satisfy any and all Expenses reasonably anticipated at the time of each
such request to be incurred in connection with investigating, preparing
for and defending any Claim relating to an Indemnifiable Event, and any
and all judgments, fines, penalties and settlement amounts of any and
all Claims relating to an Indemnifiable Event from time to time
actually paid or claimed, reasonably anticipated or proposed to be
paid. The amount or amounts to be deposited in the trust pursuant to
the foregoing funding obligation shall be determined by the Reviewing
Party, in any case in which the Independent Legal Counsel referred to
above is involved. The terms of the trust shall provide that (i) the
trust shall not be revoked or the principal thereof invaded, without
the written consent of the Indemnitee, (ii) the trustee shall advance,
within two business days of a request by the Indemnitee, any and all
Expenses to the Indemnitee (and the Indemnitee hereby agrees to
reimburse the trust under the circumstances under which the Indemnitee
would be required to reimburse the Company under Section 2(b) of this
Agreement), (iii) the trust shall continue to be funded by the Company
in accordance with the funding obligation set forth above, (iv) the
trustee shall promptly pay to Indemnitee all amounts for which
Indemnitee shall be entitled to indemnification pursuant to this
Agreement or otherwise, and (v) all unexpended funds in such trust
shall revert to the Company upon a final determination by the Reviewing
Party or a court of competent jurisdiction, as the case may be, that
Indemnitee has been fully indemnified under the terms of this
Agreement. The trustee shall be chosen by Indemnitee. Nothing in this
Section 4 shall relieve the Company of any of its obligations under
this Agreement.
5. Indemnification for Additional Expenses. The Company shall indemnify
Indemnitee against any and all expenses (including attorneys' fees)
and, if requested by Indemnitee, shall (within two business days of
such request) advance such expenses to Indemnitee, which are incurred
by Indemnitee in connection with any action brought by Indemnitee for
(i) indemnification or advance payment of Expenses by the Company under
this Agreement or any other agreement or Company Bylaw now or hereafter
in effect relating to Claims for Indemnifiable Events and/or (ii)
recovery under any directors' and officers' liability insurance
policies maintained by the Company, regardless of whether Indemnitee
ultimately is determined to be entitled to such indemnification,
advance expense payment or insurance recovery, as the case may be.
6. Partial Indemnity, Etc. If Indemnitee is entitled under any provision of this Agreement to indemnification by the Company for some or a portion of the
Expenses, judgments, fines, penalties and amounts paid in settlement arising from or relating to a Claim but not, however, for all of the total amount thereof, the Company shall nevertheless indemnify Indemnitee for the portion thereof to which Indemnitee is entitled. Moreover, notwithstanding any other provision of this Agreement, to the extent that Indemnitee has been successful on the merits or otherwise in defense of any or all Claims relating in whole or in part to an Indemnifiable Event or in defense of any issue or matter therein, including dismissal without prejudice, Indemnitee shall be indemnified against all Expenses incurred in connection therewith.
7. Burden of Proof. In connection with any determination by the Reviewing Party or otherwise as to whether Indemnitee is entitled to be indemnified hereunder the burden of proof shall be on the Company to establish that Indemnitee is not so entitled.
8. No Presumptions. For purposes of this Agreement, the termination of any claim, action, suit or proceeding, by judgment, order, settlement (whether with or without court approval) or conviction, or upon a plea of nolo contendere, or its equivalent, shall not create a presumption that Indemnitee did not meet any particular standard of conduct or have any particular belief or that a court has determined that indemnification is not permitted by applicable law. In addition, neither the failure of the Reviewing Party to have made a determination as to whether Indemnitee has met any particular standard of conduct or had any particular belief, nor an actual determination by the Reviewing Party that Indemnitee has not met such standard of conduct or did not have such belief, prior to the commencement of legal proceedings by Indemnitee to secure a judicial determination that Indemnitee should be indemnified under applicable law shall be a defense to Indemnitee's claim or create a presumption that Indemnitee has not met any particular standard of conduct or did not have any particular belief.
9. Nonexclusivity, Etc. The rights of the Indemnitee hereunder shall be in addition to any other rights Indemnitee may have under the Company's Amended and Restated Bylaws or the Delaware General Corporation Law or otherwise. To the extent that a change in the Delaware General Corporation Law (whether by statute or judicial decision) permits greater indemnification by agreement than would be afforded currently under the Company's Amended and Restated Bylaws and this Agreement, it is the intent of the parties hereto that Indemnitee shall enjoy by this Agreement the greater benefits so afforded by such change.
10. Liability Insurance. To the extent the Company maintains an insurance policy or policies providing directors' and officers' liability insurance, Indemnitee shall be covered by such policy or policies, in accordance with its or their terms, to the maximum extent of the coverage available for any Company director or officer.
11. Period of Limitations. No legal action shall be brought and no cause of action shall be asserted by or in the right of the Company against Indemnitee, Indemnitee's spouse, heirs, executors or personal or legal representatives after the
expiration of two years from the date of accrual of such cause of action, and any claim or cause of action of the Company shall be extinguished and deemed released unless asserted by the timely filing of a legal action within such two-year period; provided, however, that if any shorter period of limitations is otherwise applicable to any such cause of action such shorter period shall govern.
12. Amendments, Etc. No supplement, modification or amendment of this Agreement shall be binding unless executed in writing by both of the parties hereto. No waiver of any of the provisions of this Agreement shall be deemed or shall constitute a waiver of any other provisions hereof (whether or not similar) nor shall such waiver constitute a continuing waiver.
13. Subrogation. In the event of payment under this Agreement, the Company shall be subrogated to the extent of such payment to all of the rights of recovery of Indemnitee, who shall execute all papers required and shall do everything that may be necessary to secure such rights, including the execution of such documents necessary to enable the Company effectively to bring suit to enforce such rights.
14. No Duplication of Payments. The Company shall not be liable under this Agreement to make any payment in connection with any Claim made against Indemnitee to the extent Indemnitee has otherwise actually received payment (under any insurance policy, Bylaw or otherwise) of the amounts otherwise indemnifiable hereunder.
15. Binding Effect, Etc. This Agreement shall be binding upon and inure to the benefit of and be enforceable by the parties hereto and their respective successors, assigns, including any direct or indirect successor by purchase, merger, consolidation or otherwise to all or substantially all of the business and/or assets of the Company, spouses, heirs, executors and personal and legal representatives. This Agreement shall continue in effect regardless of whether Indemnitee continues to serve as an officer or director of the Company or of any other enterprise at the Company's request.
16. Severability. The provisions of this Agreement shall be severable in the event that any of the provisions hereof (including any provision within a single section, paragraph or sentence) are held by a court of competent jurisdiction to be invalid, void or otherwise unenforceable in any respect, and the validity and enforceability of any such provision in every other respect and of the remaining provisions hereof shall not be in any way impaired and shall remain enforceable to the fullest extent permitted by law.
17. Governing Law. This Agreement shall be governed by and construed and enforced in accordance with the laws of the State of Delaware applicable to contracts made and to be performed in such state without giving effect to the principles of conflicts of laws.
18. Amendment and Restatement. This Agreement shall amend and restate in its entirety that certain Indemnification Agreement dated as of February 27, 1997, as amended, between the Indemnitee and Belden Inc. (which has been assumed by the Company).
IN WITNESS WHEREOF, the parties hereto have executed this Agreement this 1st day September 2004.
By /s/ C. Baker Cunningham ------------------------------------ Name: C. Baker Cunningham Title: Chief Executive Officer and President /s/Bernard G. Rethore ------------------------------------ Bernard G. Rethore (Indemnitee) |
EXHIBIT 10.45
INDEMNIFICATION AGREEMENT
AGREEMENT, effective as of September 1, 2004, between Belden CDT Inc., a Delaware corporation (the "Company"), and Bryan C. Cressey (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:
1. Certain Definitions:
(a) Change in Control: shall be deemed to have occurred if
(i) any "person" (as such term is used in Sections 13(d) and
14(d) of the Securities Exchange Act of 1934, as amended),
other than a trustee or other fiduciary holding securities
under an employee benefit plan of the Company or a corporation
owned directly or indirectly by the stockholders of the
Company in substantially the same proportions as their
ownership of stock of the Company, is or becomes the
"beneficial owner" (as defined in Rule 13d-3 under said Act),
directly or indirectly, of securities of the Company
representing 20% or more of the total voting power represented by the Company's then outstanding Voting Securities, or (ii) during any period of two consecutive years, individuals who at the beginning of such period constitute the Board of Directors of the Company and any new director whose election by the Board of Directors or nomination for election by the Company's stockholders was approved by a vote of at least two-thirds (2/3) of the directors then still in office who either were directors at the beginning of the period or whose election or nomination for election was previously so approved, cease for any reason to constitute a majority thereof, or (iii) the stockholders of the Company approve a merger or consolidation of the Company with any other corporation, other than a merger or consolidation which would result in the Voting Securities of the Company outstanding immediately prior thereto continuing to represent (either by remaining outstanding or by being converted into Voting Securities of the surviving entity) at least 80% of the total voting power represented by the Voting Securities of the Company or such surviving entity outstanding immediately after such merger or consolidation, or the stockholders of the Company approve a plan of complete liquidation of the Company or an agreement for the sale or disposition by the Company of (in one transaction or a series of transactions) all or substantially all the Company's assets.
(b) Claim: any threatened, pending or completed action, suit or proceeding, or any inquiry or investigation, whether instituted by the Company or any other party, that Indemnitee in good faith believes might lead to the institution of any such action, suit or proceeding, whether civil, criminal, administrative, investigative or other.
(c) Expenses: include attorneys' fees and all other costs, expenses and obligations paid or incurred in connection with investigating, defending, being a witness in or participating in (including on appeal), or preparing to defend, be a witness in or participate in, any Claim relating to any Indemnifiable Event.
(d) Indemnifiable Event: any event or occurrence related to the fact that Indemnitee is or was a director, officer, employee, agent or fiduciary of the Company, or 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.
(e) Independent Legal Counsel: an attorney or firm of attorneys, selected in accordance with the provisions of Section 3, who shall not have otherwise performed services for the Company or Indemnitee within the last five years (other than with respect to matters concerning the rights of
Indemnitee under this Agreement, or of other indemnitees under similar indemnity agreements).
(f) Potential Change in Control: shall be deemed to have occurred
if (i) the Company enters into an agreement, the consummation
of which would result in the occurrence of a Change in
Control; (ii) any person (including the Company) publicly
announces an intention to take or to consider taking actions
which if consummated would constitute a Change in Control;
(iii) any person, other than a trustee or other fiduciary
holding securities under an employee benefit plan of the
Company or a corporation owned, directly or indirectly, by the
stockholders of the Company in substantially the same
proportions as their ownership of stock of the Company, who is
or becomes the beneficial owner, directly or indirectly, of
securities of the Company representing 9.5% or more of the
combined voting power of the Company's then outstanding Voting
Securities, increases his beneficial ownership of such
securities by five percentage points (5%) or more over the
percentage so owned by such person; or (iv) the Board adopts a
resolution to the effect that, for purposes of this Agreement,
a Potential Change in Control has occurred.
(g) Reviewing Party: any appropriate person or body consisting of a member or members of the Company's Board of Directors or any other person or body appointed by the Board who is not a party to the particular Claim for which Indemnitee is seeking indemnification, or Independent Legal Counsel.
(h) Voting Securities: any securities of the Company which vote generally in the election of directors.
2. Basic Indemnification Arrangement.
(a) In the event Indemnitee was, is or becomes a party to or witness or other participant in, or is threatened to be made a party to or witness or other participant in, a Claim by reason of (or arising in part out of) an Indemnifiable Event, the Company shall indemnify Indemnitee to the fullest extent permitted by law as soon as practicable but in any event no later than thirty days after written demand is presented to the Company, against any and all Expenses, judgments, fines, penalties and amounts paid in settlement (including all interest, assessments and other charges paid or payable in connection with or in respect of such Expenses, judgments, fines, penalties or amounts paid in settlement) 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").
(b) Notwithstanding the foregoing, (i) the obligations of the Company under Section 2(a) shall be subject to the condition that the Reviewing Party
shall not have determined (in a written opinion, in any case in which the Independent Legal Counsel referred to in Section 3 hereof is involved) that Indemnitee would not be permitted to be indemnified under applicable law, and (ii) the obligation of the Company to make an Expense Advance pursuant to Section 2(a) shall be subject to the condition that, if, when and to the extent that the Reviewing Party determines that Indemnitee would not be permitted to be so indemnified under applicable law, the Company shall be entitled to be reimbursed by Indemnitee (who hereby agrees to reimburse the Company) for all such amounts theretofore paid; provided, however, that if Indemnitee has commenced or thereafter commences legal proceedings in a court of competent jurisdiction to secure a determination that Indemnitee should be indemnified under applicable law, any determination made by the Reviewing Party that Indemnitee would not be permitted to be indemnified under applicable law shall not be binding and Indemnitee shall not be required to reimburse the Company for any Expense Advance until a final judicial determination is made with respect thereto (as to which all rights of appeal therefrom have been exhausted or lapsed). If there has not been a Change in Control, the Reviewing Party shall be selected by the Board of Directors, and if there has been such a Change in Control (other than a Change in Control which has been approved by a majority of the Company's Board of Directors who were directors immediately prior to such Change in Control), the Reviewing Party shall be the Independent Legal Counsel referred to in Section 3 hereof. If there has been no determination by the Reviewing Party or if the Reviewing Party determines that Indemnitee substantively would not be permitted to be indemnified in whole or in part under applicable law, Indemnitee shall have the right to commence litigation in any court in the State of Delaware having subject matter jurisdiction thereof and in which venue is proper seeking an initial determination by the court or challenging any such determination by the Reviewing Party or any aspect thereof, including the legal or factual bases therefor, and the Company hereby consents to service of process and to appear in any such proceeding. Any determination by the Reviewing Party otherwise shall be conclusive and binding on the Company and Indemnitee.
3. Change in Control. The Company agrees that if there is a Change in Control of the Company (other than a Change in Control which has been approved by a majority of the Company's Board of Directors who were directors immediately prior to such Change in Control) then with respect to all matters thereafter arising concerning the rights of Indemnitee to indemnity payments and Expense Advances under this Agreement or any other agreement or Company Bylaw now or hereafter in effect relating to Claims for Indemnifiable Events, the Company shall seek legal advice only from Independent Legal Counsel selected by Indemnitee and approved by the Company (which approval shall not be unreasonably withheld). Such counsel, among other things, shall render its written opinion to the Company and Indemnitee as to whether and to what extent the Indemnitee would be permitted to be indemnified under applicable law. The
Company agrees to pay the reasonable fees of the Independent Legal Counsel referred to above and to indemnify fully such counsel against any and all expenses (including attorneys' fees), claims, liabilities and damages arising out of or relating to this Agreement or its engagement pursuant hereto.
4. Establishment of Trust. In the event of a Potential Change in Control,
the Company shall, upon written request by Indemnitee, create a trust
for the benefit of Indemnitee and from time to time upon written
request of Indemnitee shall fund such trust in an amount sufficient to
satisfy any and all Expenses reasonably anticipated at the time of each
such request to be incurred in connection with investigating, preparing
for and defending any Claim relating to an Indemnifiable Event, and any
and all judgments, fines, penalties and settlement amounts of any and
all Claims relating to an Indemnifiable Event from time to time
actually paid or claimed, reasonably anticipated or proposed to be
paid. The amount or amounts to be deposited in the trust pursuant to
the foregoing funding obligation shall be determined by the Reviewing
Party, in any case in which the Independent Legal Counsel referred to
above is involved. The terms of the trust shall provide that (i) the
trust shall not be revoked or the principal thereof invaded, without
the written consent of the Indemnitee, (ii) the trustee shall advance,
within two business days of a request by the Indemnitee, any and all
Expenses to the Indemnitee (and the Indemnitee hereby agrees to
reimburse the trust under the circumstances under which the Indemnitee
would be required to reimburse the Company under Section 2(b) of this
Agreement), (iii) the trust shall continue to be funded by the Company
in accordance with the funding obligation set forth above, (iv) the
trustee shall promptly pay to Indemnitee all amounts for which
Indemnitee shall be entitled to indemnification pursuant to this
Agreement or otherwise, and (v) all unexpended funds in such trust
shall revert to the Company upon a final determination by the Reviewing
Party or a court of competent jurisdiction, as the case may be, that
Indemnitee has been fully indemnified under the terms of this
Agreement. The trustee shall be chosen by Indemnitee. Nothing in this
Section 4 shall relieve the Company of any of its obligations under
this Agreement.
5. Indemnification for Additional Expenses. The Company shall indemnify
Indemnitee against any and all expenses (including attorneys' fees)
and, if requested by Indemnitee, shall (within two business days of
such request) advance such expenses to Indemnitee, which are incurred
by Indemnitee in connection with any action brought by Indemnitee for
(i) indemnification or advance payment of Expenses by the Company under
this Agreement or any other agreement or Company Bylaw now or hereafter
in effect relating to Claims for Indemnifiable Events and/or (ii)
recovery under any directors' and officers' liability insurance
policies maintained by the Company, regardless of whether Indemnitee
ultimately is determined to be entitled to such indemnification,
advance expense payment or insurance recovery, as the case may be.
6. Partial Indemnity, Etc. If Indemnitee is entitled under any provision of this Agreement to indemnification by the Company for some or a portion of the
Expenses, judgments, fines, penalties and amounts paid in settlement arising from or relating to a Claim but not, however, for all of the total amount thereof, the Company shall nevertheless indemnify Indemnitee for the portion thereof to which Indemnitee is entitled. Moreover, notwithstanding any other provision of this Agreement, to the extent that Indemnitee has been successful on the merits or otherwise in defense of any or all Claims relating in whole or in part to an Indemnifiable Event or in defense of any issue or matter therein, including dismissal without prejudice, Indemnitee shall be indemnified against all Expenses incurred in connection therewith.
7. Burden of Proof. In connection with any determination by the Reviewing Party or otherwise as to whether Indemnitee is entitled to be indemnified hereunder the burden of proof shall be on the Company to establish that Indemnitee is not so entitled.
8. No Presumptions. For purposes of this Agreement, the termination of any claim, action, suit or proceeding, by judgment, order, settlement (whether with or without court approval) or conviction, or upon a plea of nolo contendere, or its equivalent, shall not create a presumption that Indemnitee did not meet any particular standard of conduct or have any particular belief or that a court has determined that indemnification is not permitted by applicable law. In addition, neither the failure of the Reviewing Party to have made a determination as to whether Indemnitee has met any particular standard of conduct or had any particular belief, nor an actual determination by the Reviewing Party that Indemnitee has not met such standard of conduct or did not have such belief, prior to the commencement of legal proceedings by Indemnitee to secure a judicial determination that Indemnitee should be indemnified under applicable law shall be a defense to Indemnitee's claim or create a presumption that Indemnitee has not met any particular standard of conduct or did not have any particular belief.
9. Nonexclusivity, Etc. The rights of the Indemnitee hereunder shall be in addition to any other rights Indemnitee may have under the Company's Amended and Restated Bylaws or the Delaware General Corporation Law or otherwise. To the extent that a change in the Delaware General Corporation Law (whether by statute or judicial decision) permits greater indemnification by agreement than would be afforded currently under the Company's Amended and Restated Bylaws and this Agreement, it is the intent of the parties hereto that Indemnitee shall enjoy by this Agreement the greater benefits so afforded by such change.
10. Liability Insurance. To the extent the Company maintains an insurance policy or policies providing directors' and officers' liability insurance, Indemnitee shall be covered by such policy or policies, in accordance with its or their terms, to the maximum extent of the coverage available for any Company director or officer.
11. Period of Limitations. No legal action shall be brought and no cause of action shall be asserted by or in the right of the Company against Indemnitee, Indemnitee's spouse, heirs, executors or personal or legal representatives after the
expiration of two years from the date of accrual of such cause of action, and any claim or cause of action of the Company shall be extinguished and deemed released unless asserted by the timely filing of a legal action within such two-year period; provided, however, that if any shorter period of limitations is otherwise applicable to any such cause of action such shorter period shall govern.
12. Amendments, Etc. No supplement, modification or amendment of this Agreement shall be binding unless executed in writing by both of the parties hereto. No waiver of any of the provisions of this Agreement shall be deemed or shall constitute a waiver of any other provisions hereof (whether or not similar) nor shall such waiver constitute a continuing waiver.
13. Subrogation. In the event of payment under this Agreement, the Company shall be subrogated to the extent of such payment to all of the rights of recovery of Indemnitee, who shall execute all papers required and shall do everything that may be necessary to secure such rights, including the execution of such documents necessary to enable the Company effectively to bring suit to enforce such rights.
14. No Duplication of Payments. The Company shall not be liable under this Agreement to make any payment in connection with any Claim made against Indemnitee to the extent Indemnitee has otherwise actually received payment (under any insurance policy, Bylaw or otherwise) of the amounts otherwise indemnifiable hereunder.
15. Binding Effect, Etc. This Agreement shall be binding upon and inure to the benefit of and be enforceable by the parties hereto and their respective successors, assigns, including any direct or indirect successor by purchase, merger, consolidation or otherwise to all or substantially all of the business and/or assets of the Company, spouses, heirs, executors and personal and legal representatives. This Agreement shall continue in effect regardless of whether Indemnitee continues to serve as an officer or director of the Company or of any other enterprise at the Company's request.
16. Severability. The provisions of this Agreement shall be severable in the event that any of the provisions hereof (including any provision within a single section, paragraph or sentence) are held by a court of competent jurisdiction to be invalid, void or otherwise unenforceable in any respect, and the validity and enforceability of any such provision in every other respect and of the remaining provisions hereof shall not be in any way impaired and shall remain enforceable to the fullest extent permitted by law.
17. Governing Law. This Agreement shall be governed by and construed and enforced in accordance with the laws of the State of Delaware applicable to contracts made and to be performed in such state without giving effect to the principles of conflicts of laws.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement this 1st day September 2004.
By /s/C. Baker Cunningham ---------------------------------- Name: C. Baker Cunningham Title: Chief Executive Officer and President /s/Bryan C. Cressey ----------------------------------- Bryan C. Cressey (Indemnitee) |
EXHIBIT 10.46
INDEMNIFICATION AGREEMENT
AGREEMENT, effective as of September 1, 2004, between Belden CDT Inc., a Delaware corporation (the "Company"), and Ferdinand C. Kuznik (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:
1. Certain Definitions:
(a) Change in Control: shall be deemed to have occurred if (i) any "person" (as such term is used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as amended), other than a trustee or other fiduciary holding securities under an employee benefit plan of the Company or a corporation owned directly or indirectly by the stockholders of the Company in substantially the same proportions as their ownership of stock of the Company, is or becomes the "beneficial owner" (as defined in Rule
13d-3 under said Act), directly or indirectly, of securities of the Company representing 20% or more of the total voting power represented by the Company's then outstanding Voting Securities, or (ii) during any period of two consecutive years, individuals who at the beginning of such period constitute the Board of Directors of the Company and any new director whose election by the Board of Directors or nomination for election by the Company's stockholders was approved by a vote of at least two-thirds (2/3) of the directors then still in office who either were directors at the beginning of the period or whose election or nomination for election was previously so approved, cease for any reason to constitute a majority thereof, or (iii) the stockholders of the Company approve a merger or consolidation of the Company with any other corporation, other than a merger or consolidation which would result in the Voting Securities of the Company outstanding immediately prior thereto continuing to represent (either by remaining outstanding or by being converted into Voting Securities of the surviving entity) at least 80% of the total voting power represented by the Voting Securities of the Company or such surviving entity outstanding immediately after such merger or consolidation, or the stockholders of the Company approve a plan of complete liquidation of the Company or an agreement for the sale or disposition by the Company of (in one transaction or a series of transactions) all or substantially all the Company's assets.
(b) Claim: any threatened, pending or completed action, suit or proceeding, or any inquiry or investigation, whether instituted by the Company or any other party, that Indemnitee in good faith believes might lead to the institution of any such action, suit or proceeding, whether civil, criminal, administrative, investigative or other.
(c) Expenses: include attorneys' fees and all other costs, expenses and obligations paid or incurred in connection with investigating, defending, being a witness in or participating in (including on appeal), or preparing to defend, be a witness in or participate in, any Claim relating to any Indemnifiable Event.
(d) Indemnifiable Event: any event or occurrence related to the fact that Indemnitee is or was a director, officer, employee, agent or fiduciary of the Company, or 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.
(e) Independent Legal Counsel: an attorney or firm of attorneys, selected in accordance with the provisions of Section 3, who shall not have otherwise performed services for the Company or Indemnitee within the last five years (other than with respect to matters concerning the rights of
Indemnitee under this Agreement, or of other indemnitees under similar indemnity agreements).
(f) Potential Change in Control: shall be deemed to have occurred
if (i) the Company enters into an agreement, the consummation
of which would result in the occurrence of a Change in
Control; (ii) any person (including the Company) publicly
announces an intention to take or to consider taking actions
which if consummated would constitute a Change in Control;
(iii) any person, other than a trustee or other fiduciary
holding securities under an employee benefit plan of the
Company or a corporation owned, directly or indirectly, by the
stockholders of the Company in substantially the same
proportions as their ownership of stock of the Company, who is
or becomes the beneficial owner, directly or indirectly, of
securities of the Company representing 9.5% or more of the
combined voting power of the Company's then outstanding Voting
Securities, increases his beneficial ownership of such
securities by five percentage points (5%) or more over the
percentage so owned by such person; or (iv) the Board adopts a
resolution to the effect that, for purposes of this Agreement,
a Potential Change in Control has occurred.
(g) Reviewing Party: any appropriate person or body consisting of a member or members of the Company's Board of Directors or any other person or body appointed by the Board who is not a party to the particular Claim for which Indemnitee is seeking indemnification, or Independent Legal Counsel.
(h) Voting Securities: any securities of the Company which vote generally in the election of directors.
2. Basic Indemnification Arrangement.
(a) In the event Indemnitee was, is or becomes a party to or witness or other participant in, or is threatened to be made a party to or witness or other participant in, a Claim by reason of (or arising in part out of) an Indemnifiable Event, the Company shall indemnify Indemnitee to the fullest extent permitted by law as soon as practicable but in any event no later than thirty days after written demand is presented to the Company, against any and all Expenses, judgments, fines, penalties and amounts paid in settlement (including all interest, assessments and other charges paid or payable in connection with or in respect of such Expenses, judgments, fines, penalties or amounts paid in settlement) 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").
(b) Notwithstanding the foregoing, (i) the obligations of the Company under Section 2(a) shall be subject to the condition that the Reviewing Party
shall not have determined (in a written opinion, in any case in which the Independent Legal Counsel referred to in Section 3 hereof is involved) that Indemnitee would not be permitted to be indemnified under applicable law, and (ii) the obligation of the Company to make an Expense Advance pursuant to Section 2(a) shall be subject to the condition that, if, when and to the extent that the Reviewing Party determines that Indemnitee would not be permitted to be so indemnified under applicable law, the Company shall be entitled to be reimbursed by Indemnitee (who hereby agrees to reimburse the Company) for all such amounts theretofore paid; provided, however, that if Indemnitee has commenced or thereafter commences legal proceedings in a court of competent jurisdiction to secure a determination that Indemnitee should be indemnified under applicable law, any determination made by the Reviewing Party that Indemnitee would not be permitted to be indemnified under applicable law shall not be binding and Indemnitee shall not be required to reimburse the Company for any Expense Advance until a final judicial determination is made with respect thereto (as to which all rights of appeal therefrom have been exhausted or lapsed). If there has not been a Change in Control, the Reviewing Party shall be selected by the Board of Directors, and if there has been such a Change in Control (other than a Change in Control which has been approved by a majority of the Company's Board of Directors who were directors immediately prior to such Change in Control), the Reviewing Party shall be the Independent Legal Counsel referred to in Section 3 hereof. If there has been no determination by the Reviewing Party or if the Reviewing Party determines that Indemnitee substantively would not be permitted to be indemnified in whole or in part under applicable law, Indemnitee shall have the right to commence litigation in any court in the State of Delaware having subject matter jurisdiction thereof and in which venue is proper seeking an initial determination by the court or challenging any such determination by the Reviewing Party or any aspect thereof, including the legal or factual bases therefor, and the Company hereby consents to service of process and to appear in any such proceeding. Any determination by the Reviewing Party otherwise shall be conclusive and binding on the Company and Indemnitee.
3. Change in Control. The Company agrees that if there is a Change in Control of the Company (other than a Change in Control which has been approved by a majority of the Company's Board of Directors who were directors immediately prior to such Change in Control) then with respect to all matters thereafter arising concerning the rights of Indemnitee to indemnity payments and Expense Advances under this Agreement or any other agreement or Company Bylaw now or hereafter in effect relating to Claims for Indemnifiable Events, the Company shall seek legal advice only from Independent Legal Counsel selected by Indemnitee and approved by the Company (which approval shall not be unreasonably withheld). Such counsel, among other things, shall render its written opinion to the Company and Indemnitee as to whether and to what extent the Indemnitee would be permitted to be indemnified under applicable law. The
Company agrees to pay the reasonable fees of the Independent Legal Counsel referred to above and to indemnify fully such counsel against any and all expenses (including attorneys' fees), claims, liabilities and damages arising out of or relating to this Agreement or its engagement pursuant hereto.
4. Establishment of Trust. In the event of a Potential Change in Control,
the Company shall, upon written request by Indemnitee, create a trust
for the benefit of Indemnitee and from time to time upon written
request of Indemnitee shall fund such trust in an amount sufficient to
satisfy any and all Expenses reasonably anticipated at the time of each
such request to be incurred in connection with investigating, preparing
for and defending any Claim relating to an Indemnifiable Event, and any
and all judgments, fines, penalties and settlement amounts of any and
all Claims relating to an Indemnifiable Event from time to time
actually paid or claimed, reasonably anticipated or proposed to be
paid. The amount or amounts to be deposited in the trust pursuant to
the foregoing funding obligation shall be determined by the Reviewing
Party, in any case in which the Independent Legal Counsel referred to
above is involved. The terms of the trust shall provide that (i) the
trust shall not be revoked or the principal thereof invaded, without
the written consent of the Indemnitee, (ii) the trustee shall advance,
within two business days of a request by the Indemnitee, any and all
Expenses to the Indemnitee (and the Indemnitee hereby agrees to
reimburse the trust under the circumstances under which the Indemnitee
would be required to reimburse the Company under Section 2(b) of this
Agreement), (iii) the trust shall continue to be funded by the Company
in accordance with the funding obligation set forth above, (iv) the
trustee shall promptly pay to Indemnitee all amounts for which
Indemnitee shall be entitled to indemnification pursuant to this
Agreement or otherwise, and (v) all unexpended funds in such trust
shall revert to the Company upon a final determination by the Reviewing
Party or a court of competent jurisdiction, as the case may be, that
Indemnitee has been fully indemnified under the terms of this
Agreement. The trustee shall be chosen by Indemnitee. Nothing in this
Section 4 shall relieve the Company of any of its obligations under
this Agreement.
5. Indemnification for Additional Expenses. The Company shall indemnify
Indemnitee against any and all expenses (including attorneys' fees)
and, if requested by Indemnitee, shall (within two business days of
such request) advance such expenses to Indemnitee, which are incurred
by Indemnitee in connection with any action brought by Indemnitee for
(i) indemnification or advance payment of Expenses by the Company under
this Agreement or any other agreement or Company Bylaw now or hereafter
in effect relating to Claims for Indemnifiable Events and/or (ii)
recovery under any directors' and officers' liability insurance
policies maintained by the Company, regardless of whether Indemnitee
ultimately is determined to be entitled to such indemnification,
advance expense payment or insurance recovery, as the case may be.
6. Partial Indemnity, Etc. If Indemnitee is entitled under any provision of this Agreement to indemnification by the Company for some or a portion of the
Expenses, judgments, fines, penalties and amounts paid in settlement arising from or relating to a Claim but not, however, for all of the total amount thereof, the Company shall nevertheless indemnify Indemnitee for the portion thereof to which Indemnitee is entitled. Moreover, notwithstanding any other provision of this Agreement, to the extent that Indemnitee has been successful on the merits or otherwise in defense of any or all Claims relating in whole or in part to an Indemnifiable Event or in defense of any issue or matter therein, including dismissal without prejudice, Indemnitee shall be indemnified against all Expenses incurred in connection therewith.
7. Burden of Proof. In connection with any determination by the Reviewing Party or otherwise as to whether Indemnitee is entitled to be indemnified hereunder the burden of proof shall be on the Company to establish that Indemnitee is not so entitled.
8. No Presumptions. For purposes of this Agreement, the termination of any claim, action, suit or proceeding, by judgment, order, settlement (whether with or without court approval) or conviction, or upon a plea of nolo contendere, or its equivalent, shall not create a presumption that Indemnitee did not meet any particular standard of conduct or have any particular belief or that a court has determined that indemnification is not permitted by applicable law. In addition, neither the failure of the Reviewing Party to have made a determination as to whether Indemnitee has met any particular standard of conduct or had any particular belief, nor an actual determination by the Reviewing Party that Indemnitee has not met such standard of conduct or did not have such belief, prior to the commencement of legal proceedings by Indemnitee to secure a judicial determination that Indemnitee should be indemnified under applicable law shall be a defense to Indemnitee's claim or create a presumption that Indemnitee has not met any particular standard of conduct or did not have any particular belief.
9. Nonexclusivity, Etc. The rights of the Indemnitee hereunder shall be in addition to any other rights Indemnitee may have under the Company's Amended and Restated Bylaws or the Delaware General Corporation Law or otherwise. To the extent that a change in the Delaware General Corporation Law (whether by statute or judicial decision) permits greater indemnification by agreement than would be afforded currently under the Company's Amended and Restated Bylaws and this Agreement, it is the intent of the parties hereto that Indemnitee shall enjoy by this Agreement the greater benefits so afforded by such change.
10. Liability Insurance. To the extent the Company maintains an insurance policy or policies providing directors' and officers' liability insurance, Indemnitee shall be covered by such policy or policies, in accordance with its or their terms, to the maximum extent of the coverage available for any Company director or officer.
11. Period of Limitations. No legal action shall be brought and no cause of action shall be asserted by or in the right of the Company against Indemnitee, Indemnitee's spouse, heirs, executors or personal or legal representatives after the
expiration of two years from the date of accrual of such cause of action, and any claim or cause of action of the Company shall be extinguished and deemed released unless asserted by the timely filing of a legal action within such two-year period; provided, however, that if any shorter period of limitations is otherwise applicable to any such cause of action such shorter period shall govern.
12. Amendments, Etc. No supplement, modification or amendment of this Agreement shall be binding unless executed in writing by both of the parties hereto. No waiver of any of the provisions of this Agreement shall be deemed or shall constitute a waiver of any other provisions hereof (whether or not similar) nor shall such waiver constitute a continuing waiver.
13. Subrogation. In the event of payment under this Agreement, the Company shall be subrogated to the extent of such payment to all of the rights of recovery of Indemnitee, who shall execute all papers required and shall do everything that may be necessary to secure such rights, including the execution of such documents necessary to enable the Company effectively to bring suit to enforce such rights.
14. No Duplication of Payments. The Company shall not be liable under this Agreement to make any payment in connection with any Claim made against Indemnitee to the extent Indemnitee has otherwise actually received payment (under any insurance policy, Bylaw or otherwise) of the amounts otherwise indemnifiable hereunder.
15. Binding Effect, Etc. This Agreement shall be binding upon and inure to the benefit of and be enforceable by the parties hereto and their respective successors, assigns, including any direct or indirect successor by purchase, merger, consolidation or otherwise to all or substantially all of the business and/or assets of the Company, spouses, heirs, executors and personal and legal representatives. This Agreement shall continue in effect regardless of whether Indemnitee continues to serve as an officer or director of the Company or of any other enterprise at the Company's request.
16. Severability. The provisions of this Agreement shall be severable in the event that any of the provisions hereof (including any provision within a single section, paragraph or sentence) are held by a court of competent jurisdiction to be invalid, void or otherwise unenforceable in any respect, and the validity and enforceability of any such provision in every other respect and of the remaining provisions hereof shall not be in any way impaired and shall remain enforceable to the fullest extent permitted by law.
17. Governing Law. This Agreement shall be governed by and construed and enforced in accordance with the laws of the State of Delaware applicable to contracts made and to be performed in such state without giving effect to the principles of conflicts of laws.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement this 1st day September 2004.
By /s/ C. Baker Cunningham ----------------------- Name: C. Baker Cunningham Title: Chief Executive Officer and President /s/ Ferdinand C. Kuznik ----------------------- Ferdinand C. Kuznik (Indemnitee) |
EXHIBIT 10.47
INDEMNIFICATION AGREEMENT
AGREEMENT, effective as of September 1, 2004, between Belden CDT Inc., a Delaware corporation (the "Company"), and Lance C. Balk (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:
1. Certain Definitions:
(a) Change in Control: shall be deemed to have occurred if
(i) any "person" (as such term is used in Sections 13(d) and
14(d) of the Securities Exchange Act of 1934, as amended),
other than a trustee or other fiduciary holding securities
under an employee benefit plan of the Company or a corporation
owned directly or indirectly by the stockholders of the
Company in substantially the same proportions as their
ownership of stock of the Company, is or becomes the
"beneficial owner" (as defined in Rule 13d-3 under said Act),
directly or indirectly, of securities of the Company
representing 20% or more of the total voting power represented by the Company's then outstanding Voting Securities, or (ii) during any period of two consecutive years, individuals who at the beginning of such period constitute the Board of Directors of the Company and any new director whose election by the Board of Directors or nomination for election by the Company's stockholders was approved by a vote of at least two-thirds (2/3) of the directors then still in office who either were directors at the beginning of the period or whose election or nomination for election was previously so approved, cease for any reason to constitute a majority thereof, or (iii) the stockholders of the Company approve a merger or consolidation of the Company with any other corporation, other than a merger or consolidation which would result in the Voting Securities of the Company outstanding immediately prior thereto continuing to represent (either by remaining outstanding or by being converted into Voting Securities of the surviving entity) at least 80% of the total voting power represented by the Voting Securities of the Company or such surviving entity outstanding immediately after such merger or consolidation, or the stockholders of the Company approve a plan of complete liquidation of the Company or an agreement for the sale or disposition by the Company of (in one transaction or a series of transactions) all or substantially all the Company's assets.
(b) Claim: any threatened, pending or completed action, suit or proceeding, or any inquiry or investigation, whether instituted by the Company or any other party, that Indemnitee in good faith believes might lead to the institution of any such action, suit or proceeding, whether civil, criminal, administrative, investigative or other.
(c) Expenses: include attorneys' fees and all other costs, expenses and obligations paid or incurred in connection with investigating, defending, being a witness in or participating in (including on appeal), or preparing to defend, be a witness in or participate in, any Claim relating to any Indemnifiable Event.
(d) Indemnifiable Event: any event or occurrence related to the fact that Indemnitee is or was a director, officer, employee, agent or fiduciary of the Company, or 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.
(e) Independent Legal Counsel: an attorney or firm of attorneys, selected in accordance with the provisions of Section 3, who shall not have otherwise performed services for the Company or Indemnitee within the last five years (other than with respect to matters concerning the rights of
Indemnitee under this Agreement, or of other indemnitees under similar indemnity agreements).
(f) Potential Change in Control: shall be deemed to have occurred
if (i) the Company enters into an agreement, the consummation
of which would result in the occurrence of a Change in
Control; (ii) any person (including the Company) publicly
announces an intention to take or to consider taking actions
which if consummated would constitute a Change in Control;
(iii) any person, other than a trustee or other fiduciary
holding securities under an employee benefit plan of the
Company or a corporation owned, directly or indirectly, by the
stockholders of the Company in substantially the same
proportions as their ownership of stock of the Company, who is
or becomes the beneficial owner, directly or indirectly, of
securities of the Company representing 9.5% or more of the
combined voting power of the Company's then outstanding Voting
Securities, increases his beneficial ownership of such
securities by five percentage points (5%) or more over the
percentage so owned by such person; or (iv) the Board adopts a
resolution to the effect that, for purposes of this Agreement,
a Potential Change in Control has occurred.
(g) Reviewing Party: any appropriate person or body consisting of a member or members of the Company's Board of Directors or any other person or body appointed by the Board who is not a party to the particular Claim for which Indemnitee is seeking indemnification, or Independent Legal Counsel.
(h) Voting Securities: any securities of the Company which vote generally in the election of directors.
2. Basic Indemnification Arrangement.
(a) In the event Indemnitee was, is or becomes a party to or witness or other participant in, or is threatened to be made a party to or witness or other participant in, a Claim by reason of (or arising in part out of) an Indemnifiable Event, the Company shall indemnify Indemnitee to the fullest extent permitted by law as soon as practicable but in any event no later than thirty days after written demand is presented to the Company, against any and all Expenses, judgments, fines, penalties and amounts paid in settlement (including all interest, assessments and other charges paid or payable in connection with or in respect of such Expenses, judgments, fines, penalties or amounts paid in settlement) 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").
(b) Notwithstanding the foregoing, (i) the obligations of the Company under Section 2(a) shall be subject to the condition that the Reviewing Party
shall not have determined (in a written opinion, in any case in which the Independent Legal Counsel referred to in Section 3 hereof is involved) that Indemnitee would not be permitted to be indemnified under applicable law, and (ii) the obligation of the Company to make an Expense Advance pursuant to Section 2(a) shall be subject to the condition that, if, when and to the extent that the Reviewing Party determines that Indemnitee would not be permitted to be so indemnified under applicable law, the Company shall be entitled to be reimbursed by Indemnitee (who hereby agrees to reimburse the Company) for all such amounts theretofore paid; provided, however, that if Indemnitee has commenced or thereafter commences legal proceedings in a court of competent jurisdiction to secure a determination that Indemnitee should be indemnified under applicable law, any determination made by the Reviewing Party that Indemnitee would not be permitted to be indemnified under applicable law shall not be binding and Indemnitee shall not be required to reimburse the Company for any Expense Advance until a final judicial determination is made with respect thereto (as to which all rights of appeal therefrom have been exhausted or lapsed). If there has not been a Change in Control, the Reviewing Party shall be selected by the Board of Directors, and if there has been such a Change in Control (other than a Change in Control which has been approved by a majority of the Company's Board of Directors who were directors immediately prior to such Change in Control), the Reviewing Party shall be the Independent Legal Counsel referred to in Section 3 hereof. If there has been no determination by the Reviewing Party or if the Reviewing Party determines that Indemnitee substantively would not be permitted to be indemnified in whole or in part under applicable law, Indemnitee shall have the right to commence litigation in any court in the State of Delaware having subject matter jurisdiction thereof and in which venue is proper seeking an initial determination by the court or challenging any such determination by the Reviewing Party or any aspect thereof, including the legal or factual bases therefor, and the Company hereby consents to service of process and to appear in any such proceeding. Any determination by the Reviewing Party otherwise shall be conclusive and binding on the Company and Indemnitee.
3. Change in Control. The Company agrees that if there is a Change in Control of the Company (other than a Change in Control which has been approved by a majority of the Company's Board of Directors who were directors immediately prior to such Change in Control) then with respect to all matters thereafter arising concerning the rights of Indemnitee to indemnity payments and Expense Advances under this Agreement or any other agreement or Company Bylaw now or hereafter in effect relating to Claims for Indemnifiable Events, the Company shall seek legal advice only from Independent Legal Counsel selected by Indemnitee and approved by the Company (which approval shall not be unreasonably withheld). Such counsel, among other things, shall render its written opinion to the Company and Indemnitee as to whether and to what extent the Indemnitee would be permitted to be indemnified under applicable law. The
Company agrees to pay the reasonable fees of the Independent Legal Counsel referred to above and to indemnify fully such counsel against any and all expenses (including attorneys' fees), claims, liabilities and damages arising out of or relating to this Agreement or its engagement pursuant hereto.
4. Establishment of Trust. In the event of a Potential Change in Control,
the Company shall, upon written request by Indemnitee, create a trust
for the benefit of Indemnitee and from time to time upon written
request of Indemnitee shall fund such trust in an amount sufficient to
satisfy any and all Expenses reasonably anticipated at the time of each
such request to be incurred in connection with investigating, preparing
for and defending any Claim relating to an Indemnifiable Event, and any
and all judgments, fines, penalties and settlement amounts of any and
all Claims relating to an Indemnifiable Event from time to time
actually paid or claimed, reasonably anticipated or proposed to be
paid. The amount or amounts to be deposited in the trust pursuant to
the foregoing funding obligation shall be determined by the Reviewing
Party, in any case in which the Independent Legal Counsel referred to
above is involved. The terms of the trust shall provide that (i) the
trust shall not be revoked or the principal thereof invaded, without
the written consent of the Indemnitee, (ii) the trustee shall advance,
within two business days of a request by the Indemnitee, any and all
Expenses to the Indemnitee (and the Indemnitee hereby agrees to
reimburse the trust under the circumstances under which the Indemnitee
would be required to reimburse the Company under Section 2(b) of this
Agreement), (iii) the trust shall continue to be funded by the Company
in accordance with the funding obligation set forth above, (iv) the
trustee shall promptly pay to Indemnitee all amounts for which
Indemnitee shall be entitled to indemnification pursuant to this
Agreement or otherwise, and (v) all unexpended funds in such trust
shall revert to the Company upon a final determination by the Reviewing
Party or a court of competent jurisdiction, as the case may be, that
Indemnitee has been fully indemnified under the terms of this
Agreement. The trustee shall be chosen by Indemnitee. Nothing in this
Section 4 shall relieve the Company of any of its obligations under
this Agreement.
5. Indemnification for Additional Expenses. The Company shall indemnify
Indemnitee against any and all expenses (including attorneys' fees)
and, if requested by Indemnitee, shall (within two business days of
such request) advance such expenses to Indemnitee, which are incurred
by Indemnitee in connection with any action brought by Indemnitee for
(i) indemnification or advance payment of Expenses by the Company under
this Agreement or any other agreement or Company Bylaw now or hereafter
in effect relating to Claims for Indemnifiable Events and/or (ii)
recovery under any directors' and officers' liability insurance
policies maintained by the Company, regardless of whether Indemnitee
ultimately is determined to be entitled to such indemnification,
advance expense payment or insurance recovery, as the case may be.
6. Partial Indemnity, Etc. If Indemnitee is entitled under any provision of this Agreement to indemnification by the Company for some or a portion of the
Expenses, judgments, fines, penalties and amounts paid in settlement arising from or relating to a Claim but not, however, for all of the total amount thereof, the Company shall nevertheless indemnify Indemnitee for the portion thereof to which Indemnitee is entitled. Moreover, notwithstanding any other provision of this Agreement, to the extent that Indemnitee has been successful on the merits or otherwise in defense of any or all Claims relating in whole or in part to an Indemnifiable Event or in defense of any issue or matter therein, including dismissal without prejudice, Indemnitee shall be indemnified against all Expenses incurred in connection therewith.
7. Burden of Proof. In connection with any determination by the Reviewing Party or otherwise as to whether Indemnitee is entitled to be indemnified hereunder the burden of proof shall be on the Company to establish that Indemnitee is not so entitled.
8. No Presumptions. For purposes of this Agreement, the termination of any claim, action, suit or proceeding, by judgment, order, settlement (whether with or without court approval) or conviction, or upon a plea of nolo contendere, or its equivalent, shall not create a presumption that Indemnitee did not meet any particular standard of conduct or have any particular belief or that a court has determined that indemnification is not permitted by applicable law. In addition, neither the failure of the Reviewing Party to have made a determination as to whether Indemnitee has met any particular standard of conduct or had any particular belief, nor an actual determination by the Reviewing Party that Indemnitee has not met such standard of conduct or did not have such belief, prior to the commencement of legal proceedings by Indemnitee to secure a judicial determination that Indemnitee should be indemnified under applicable law shall be a defense to Indemnitee's claim or create a presumption that Indemnitee has not met any particular standard of conduct or did not have any particular belief.
9. Nonexclusivity, Etc. The rights of the Indemnitee hereunder shall be in addition to any other rights Indemnitee may have under the Company's Amended and Restated Bylaws or the Delaware General Corporation Law or otherwise. To the extent that a change in the Delaware General Corporation Law (whether by statute or judicial decision) permits greater indemnification by agreement than would be afforded currently under the Company's Amended and Restated Bylaws and this Agreement, it is the intent of the parties hereto that Indemnitee shall enjoy by this Agreement the greater benefits so afforded by such change.
10. Liability Insurance. To the extent the Company maintains an insurance policy or policies providing directors' and officers' liability insurance, Indemnitee shall be covered by such policy or policies, in accordance with its or their terms, to the maximum extent of the coverage available for any Company director or officer.
11. Period of Limitations. No legal action shall be brought and no cause of action shall be asserted by or in the right of the Company against Indemnitee, Indemnitee's spouse, heirs, executors or personal or legal representatives after the
expiration of two years from the date of accrual of such cause of action, and any claim or cause of action of the Company shall be extinguished and deemed released unless asserted by the timely filing of a legal action within such two-year period; provided, however, that if any shorter period of limitations is otherwise applicable to any such cause of action such shorter period shall govern.
12. Amendments, Etc. No supplement, modification or amendment of this Agreement shall be binding unless executed in writing by both of the parties hereto. No waiver of any of the provisions of this Agreement shall be deemed or shall constitute a waiver of any other provisions hereof (whether or not similar) nor shall such waiver constitute a continuing waiver.
13. Subrogation. In the event of payment under this Agreement, the Company shall be subrogated to the extent of such payment to all of the rights of recovery of Indemnitee, who shall execute all papers required and shall do everything that may be necessary to secure such rights, including the execution of such documents necessary to enable the Company effectively to bring suit to enforce such rights.
14. No Duplication of Payments. The Company shall not be liable under this Agreement to make any payment in connection with any Claim made against Indemnitee to the extent Indemnitee has otherwise actually received payment (under any insurance policy, Bylaw or otherwise) of the amounts otherwise indemnifiable hereunder.
15. Binding Effect, Etc. This Agreement shall be binding upon and inure to the benefit of and be enforceable by the parties hereto and their respective successors, assigns, including any direct or indirect successor by purchase, merger, consolidation or otherwise to all or substantially all of the business and/or assets of the Company, spouses, heirs, executors and personal and legal representatives. This Agreement shall continue in effect regardless of whether Indemnitee continues to serve as an officer or director of the Company or of any other enterprise at the Company's request.
16. Severability. The provisions of this Agreement shall be severable in the event that any of the provisions hereof (including any provision within a single section, paragraph or sentence) are held by a court of competent jurisdiction to be invalid, void or otherwise unenforceable in any respect, and the validity and enforceability of any such provision in every other respect and of the remaining provisions hereof shall not be in any way impaired and shall remain enforceable to the fullest extent permitted by law.
17. Governing Law. This Agreement shall be governed by and construed and enforced in accordance with the laws of the State of Delaware applicable to contracts made and to be performed in such state without giving effect to the principles of conflicts of laws.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement this 1st day September 2004.
By /s/ C. Baker Cunningham ---------------------------------- Name: C. Baker Cunningham Title: Chief Executive Officer and President /s/ Lance C. Balk --------------------------- Lance C. Balk (Indemnitee) |
EXHIBIT 10.48
INDEMNIFICATION AGREEMENT
AGREEMENT, effective as of September 1, 2004, between Belden CDT Inc., a Delaware corporation (the "Company"), and Michael F. O. Harris (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:
1. Certain Definitions:
(a) Change in Control: shall be deemed to have occurred if
(i) any "person" (as such term is used in Sections 13(d) and
14(d) of the Securities Exchange Act of 1934, as amended),
other than a trustee or other fiduciary holding securities
under an employee benefit plan of the Company or a corporation
owned directly or indirectly by the stockholders of the
Company in substantially the same proportions as their
ownership of stock of the Company, is or becomes the
"beneficial owner" (as defined in Rule
13d-3 under said Act), directly or indirectly, of securities of the Company representing 20% or more of the total voting power represented by the Company's then outstanding Voting Securities, or (ii) during any period of two consecutive years, individuals who at the beginning of such period constitute the Board of Directors of the Company and any new director whose election by the Board of Directors or nomination for election by the Company's stockholders was approved by a vote of at least two-thirds (2/3) of the directors then still in office who either were directors at the beginning of the period or whose election or nomination for election was previously so approved, cease for any reason to constitute a majority thereof, or (iii) the stockholders of the Company approve a merger or consolidation of the Company with any other corporation, other than a merger or consolidation which would result in the Voting Securities of the Company outstanding immediately prior thereto continuing to represent (either by remaining outstanding or by being converted into Voting Securities of the surviving entity) at least 80% of the total voting power represented by the Voting Securities of the Company or such surviving entity outstanding immediately after such merger or consolidation, or the stockholders of the Company approve a plan of complete liquidation of the Company or an agreement for the sale or disposition by the Company of (in one transaction or a series of transactions) all or substantially all the Company's assets.
(b) Claim: any threatened, pending or completed action, suit or proceeding, or any inquiry or investigation, whether instituted by the Company or any other party, that Indemnitee in good faith believes might lead to the institution of any such action, suit or proceeding, whether civil, criminal, administrative, investigative or other.
(c) Expenses: include attorneys' fees and all other costs, expenses and obligations paid or incurred in connection with investigating, defending, being a witness in or participating in (including on appeal), or preparing to defend, be a witness in or participate in, any Claim relating to any Indemnifiable Event.
(d) Indemnifiable Event: any event or occurrence related to the fact that Indemnitee is or was a director, officer, employee, agent or fiduciary of the Company, or 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.
(e) Independent Legal Counsel: an attorney or firm of attorneys, selected in accordance with the provisions of Section 3, who shall not have otherwise performed services for the Company or Indemnitee within the last five years (other than with respect to matters concerning the rights of
Indemnitee under this Agreement, or of other indemnitees under similar indemnity agreements).
(f) Potential Change in Control: shall be deemed to have occurred
if (i) the Company enters into an agreement, the consummation
of which would result in the occurrence of a Change in
Control; (ii) any person (including the Company) publicly
announces an intention to take or to consider taking actions
which if consummated would constitute a Change in Control;
(iii) any person, other than a trustee or other fiduciary
holding securities under an employee benefit plan of the
Company or a corporation owned, directly or indirectly, by the
stockholders of the Company in substantially the same
proportions as their ownership of stock of the Company, who is
or becomes the beneficial owner, directly or indirectly, of
securities of the Company representing 9.5% or more of the
combined voting power of the Company's then outstanding Voting
Securities, increases his beneficial ownership of such
securities by five percentage points (5%) or more over the
percentage so owned by such person; or (iv) the Board adopts a
resolution to the effect that, for purposes of this Agreement,
a Potential Change in Control has occurred.
(g) Reviewing Party: any appropriate person or body consisting of a member or members of the Company's Board of Directors or any other person or body appointed by the Board who is not a party to the particular Claim for which Indemnitee is seeking indemnification, or Independent Legal Counsel.
(h) Voting Securities: any securities of the Company which vote generally in the election of directors.
2. Basic Indemnification Arrangement.
(a) In the event Indemnitee was, is or becomes a party to or witness or other participant in, or is threatened to be made a party to or witness or other participant in, a Claim by reason of (or arising in part out of) an Indemnifiable Event, the Company shall indemnify Indemnitee to the fullest extent permitted by law as soon as practicable but in any event no later than thirty days after written demand is presented to the Company, against any and all Expenses, judgments, fines, penalties and amounts paid in settlement (including all interest, assessments and other charges paid or payable in connection with or in respect of such Expenses, judgments, fines, penalties or amounts paid in settlement) 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").
(b) Notwithstanding the foregoing, (i) the obligations of the Company under Section 2(a) shall be subject to the condition that the Reviewing Party
shall not have determined (in a written opinion, in any case in which the Independent Legal Counsel referred to in Section 3 hereof is involved) that Indemnitee would not be permitted to be indemnified under applicable law, and (ii) the obligation of the Company to make an Expense Advance pursuant to Section 2(a) shall be subject to the condition that, if, when and to the extent that the Reviewing Party determines that Indemnitee would not be permitted to be so indemnified under applicable law, the Company shall be entitled to be reimbursed by Indemnitee (who hereby agrees to reimburse the Company) for all such amounts theretofore paid; provided, however, that if Indemnitee has commenced or thereafter commences legal proceedings in a court of competent jurisdiction to secure a determination that Indemnitee should be indemnified under applicable law, any determination made by the Reviewing Party that Indemnitee would not be permitted to be indemnified under applicable law shall not be binding and Indemnitee shall not be required to reimburse the Company for any Expense Advance until a final judicial determination is made with respect thereto (as to which all rights of appeal therefrom have been exhausted or lapsed). If there has not been a Change in Control, the Reviewing Party shall be selected by the Board of Directors, and if there has been such a Change in Control (other than a Change in Control which has been approved by a majority of the Company's Board of Directors who were directors immediately prior to such Change in Control), the Reviewing Party shall be the Independent Legal Counsel referred to in Section 3 hereof. If there has been no determination by the Reviewing Party or if the Reviewing Party determines that Indemnitee substantively would not be permitted to be indemnified in whole or in part under applicable law, Indemnitee shall have the right to commence litigation in any court in the State of Delaware having subject matter jurisdiction thereof and in which venue is proper seeking an initial determination by the court or challenging any such determination by the Reviewing Party or any aspect thereof, including the legal or factual bases therefor, and the Company hereby consents to service of process and to appear in any such proceeding. Any determination by the Reviewing Party otherwise shall be conclusive and binding on the Company and Indemnitee.
3. Change in Control. The Company agrees that if there is a Change in Control of the Company (other than a Change in Control which has been approved by a majority of the Company's Board of Directors who were directors immediately prior to such Change in Control) then with respect to all matters thereafter arising concerning the rights of Indemnitee to indemnity payments and Expense Advances under this Agreement or any other agreement or Company Bylaw now or hereafter in effect relating to Claims for Indemnifiable Events, the Company shall seek legal advice only from Independent Legal Counsel selected by Indemnitee and approved by the Company (which approval shall not be unreasonably withheld). Such counsel, among other things, shall render its written opinion to the Company and Indemnitee as to whether and to what extent the Indemnitee would be permitted to be indemnified under applicable law. The
Company agrees to pay the reasonable fees of the Independent Legal Counsel referred to above and to indemnify fully such counsel against any and all expenses (including attorneys' fees), claims, liabilities and damages arising out of or relating to this Agreement or its engagement pursuant hereto.
4. Establishment of Trust. In the event of a Potential Change in Control,
the Company shall, upon written request by Indemnitee, create a trust
for the benefit of Indemnitee and from time to time upon written
request of Indemnitee shall fund such trust in an amount sufficient to
satisfy any and all Expenses reasonably anticipated at the time of each
such request to be incurred in connection with investigating, preparing
for and defending any Claim relating to an Indemnifiable Event, and any
and all judgments, fines, penalties and settlement amounts of any and
all Claims relating to an Indemnifiable Event from time to time
actually paid or claimed, reasonably anticipated or proposed to be
paid. The amount or amounts to be deposited in the trust pursuant to
the foregoing funding obligation shall be determined by the Reviewing
Party, in any case in which the Independent Legal Counsel referred to
above is involved. The terms of the trust shall provide that (i) the
trust shall not be revoked or the principal thereof invaded, without
the written consent of the Indemnitee, (ii) the trustee shall advance,
within two business days of a request by the Indemnitee, any and all
Expenses to the Indemnitee (and the Indemnitee hereby agrees to
reimburse the trust under the circumstances under which the Indemnitee
would be required to reimburse the Company under Section 2(b) of this
Agreement), (iii) the trust shall continue to be funded by the Company
in accordance with the funding obligation set forth above, (iv) the
trustee shall promptly pay to Indemnitee all amounts for which
Indemnitee shall be entitled to indemnification pursuant to this
Agreement or otherwise, and (v) all unexpended funds in such trust
shall revert to the Company upon a final determination by the Reviewing
Party or a court of competent jurisdiction, as the case may be, that
Indemnitee has been fully indemnified under the terms of this
Agreement. The trustee shall be chosen by Indemnitee. Nothing in this
Section 4 shall relieve the Company of any of its obligations under
this Agreement.
5. Indemnification for Additional Expenses. The Company shall indemnify
Indemnitee against any and all expenses (including attorneys' fees)
and, if requested by Indemnitee, shall (within two business days of
such request) advance such expenses to Indemnitee, which are incurred
by Indemnitee in connection with any action brought by Indemnitee for
(i) indemnification or advance payment of Expenses by the Company under
this Agreement or any other agreement or Company Bylaw now or hereafter
in effect relating to Claims for Indemnifiable Events and/or (ii)
recovery under any directors' and officers' liability insurance
policies maintained by the Company, regardless of whether Indemnitee
ultimately is determined to be entitled to such indemnification,
advance expense payment or insurance recovery, as the case may be.
6. Partial Indemnity, Etc. If Indemnitee is entitled under any provision of this Agreement to indemnification by the Company for some or a portion of the
Expenses, judgments, fines, penalties and amounts paid in settlement arising from or relating to a Claim but not, however, for all of the total amount thereof, the Company shall nevertheless indemnify Indemnitee for the portion thereof to which Indemnitee is entitled. Moreover, notwithstanding any other provision of this Agreement, to the extent that Indemnitee has been successful on the merits or otherwise in defense of any or all Claims relating in whole or in part to an Indemnifiable Event or in defense of any issue or matter therein, including dismissal without prejudice, Indemnitee shall be indemnified against all Expenses incurred in connection therewith.
7. Burden of Proof. In connection with any determination by the Reviewing Party or otherwise as to whether Indemnitee is entitled to be indemnified hereunder the burden of proof shall be on the Company to establish that Indemnitee is not so entitled.
8. No Presumptions. For purposes of this Agreement, the termination of any claim, action, suit or proceeding, by judgment, order, settlement (whether with or without court approval) or conviction, or upon a plea of nolo contendere, or its equivalent, shall not create a presumption that Indemnitee did not meet any particular standard of conduct or have any particular belief or that a court has determined that indemnification is not permitted by applicable law. In addition, neither the failure of the Reviewing Party to have made a determination as to whether Indemnitee has met any particular standard of conduct or had any particular belief, nor an actual determination by the Reviewing Party that Indemnitee has not met such standard of conduct or did not have such belief, prior to the commencement of legal proceedings by Indemnitee to secure a judicial determination that Indemnitee should be indemnified under applicable law shall be a defense to Indemnitee's claim or create a presumption that Indemnitee has not met any particular standard of conduct or did not have any particular belief.
9. Nonexclusivity, Etc. The rights of the Indemnitee hereunder shall be in addition to any other rights Indemnitee may have under the Company's Amended and Restated Bylaws or the Delaware General Corporation Law or otherwise. To the extent that a change in the Delaware General Corporation Law (whether by statute or judicial decision) permits greater indemnification by agreement than would be afforded currently under the Company's Amended and Restated Bylaws and this Agreement, it is the intent of the parties hereto that Indemnitee shall enjoy by this Agreement the greater benefits so afforded by such change.
10. Liability Insurance. To the extent the Company maintains an insurance policy or policies providing directors' and officers' liability insurance, Indemnitee shall be covered by such policy or policies, in accordance with its or their terms, to the maximum extent of the coverage available for any Company director or officer.
11. Period of Limitations. No legal action shall be brought and no cause of action shall be asserted by or in the right of the Company against Indemnitee, Indemnitee's spouse, heirs, executors or personal or legal representatives after the
expiration of two years from the date of accrual of such cause of action, and any claim or cause of action of the Company shall be extinguished and deemed released unless asserted by the timely filing of a legal action within such two-year period; provided, however, that if any shorter period of limitations is otherwise applicable to any such cause of action such shorter period shall govern.
12. Amendments, Etc. No supplement, modification or amendment of this Agreement shall be binding unless executed in writing by both of the parties hereto. No waiver of any of the provisions of this Agreement shall be deemed or shall constitute a waiver of any other provisions hereof (whether or not similar) nor shall such waiver constitute a continuing waiver.
13. Subrogation. In the event of payment under this Agreement, the Company shall be subrogated to the extent of such payment to all of the rights of recovery of Indemnitee, who shall execute all papers required and shall do everything that may be necessary to secure such rights, including the execution of such documents necessary to enable the Company effectively to bring suit to enforce such rights.
14. No Duplication of Payments. The Company shall not be liable under this Agreement to make any payment in connection with any Claim made against Indemnitee to the extent Indemnitee has otherwise actually received payment (under any insurance policy, Bylaw or otherwise) of the amounts otherwise indemnifiable hereunder.
15. Binding Effect, Etc. This Agreement shall be binding upon and inure to the benefit of and be enforceable by the parties hereto and their respective successors, assigns, including any direct or indirect successor by purchase, merger, consolidation or otherwise to all or substantially all of the business and/or assets of the Company, spouses, heirs, executors and personal and legal representatives. This Agreement shall continue in effect regardless of whether Indemnitee continues to serve as an officer or director of the Company or of any other enterprise at the Company's request.
16. Severability. The provisions of this Agreement shall be severable in the event that any of the provisions hereof (including any provision within a single section, paragraph or sentence) are held by a court of competent jurisdiction to be invalid, void or otherwise unenforceable in any respect, and the validity and enforceability of any such provision in every other respect and of the remaining provisions hereof shall not be in any way impaired and shall remain enforceable to the fullest extent permitted by law.
17. Governing Law. This Agreement shall be governed by and construed and enforced in accordance with the laws of the State of Delaware applicable to contracts made and to be performed in such state without giving effect to the principles of conflicts of laws.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement this 1st day September 2004.
By /s/ C. Baker Cunningham ---------------------------------- Name: C. Baker Cunningham Title: Chief Executive Officer and President /s/ Michael F. O. Harris --------------------------- Michael F. O. Harris (Indemnitee) |
EXHIBIT 10.49
INDEMNIFICATION AGREEMENT
AGREEMENT, effective as of September 1, 2004, between Belden CDT Inc., a Delaware corporation (the "Company"), and Glenn Kalnasy (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:
1. Certain Definitions:
(a) Change in Control: shall be deemed to have occurred if (i) any "person" (as such term is used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as amended), other than a trustee or other fiduciary holding securities under an employee benefit plan of the Company or a corporation owned directly or indirectly by the stockholders of the Company in substantially the same proportions as their ownership of stock of the Company, is or becomes the "beneficial owner" (as defined in Rule 13d-3 under said Act), directly or indirectly, of securities of the Company
representing 20% or more of the total voting power represented by the Company's then outstanding Voting Securities, or (ii) during any period of two consecutive years, individuals who at the beginning of such period constitute the Board of Directors of the Company and any new director whose election by the Board of Directors or nomination for election by the Company's stockholders was approved by a vote of at least two-thirds (2/3) of the directors then still in office who either were directors at the beginning of the period or whose election or nomination for election was previously so approved, cease for any reason to constitute a majority thereof, or (iii) the stockholders of the Company approve a merger or consolidation of the Company with any other corporation, other than a merger or consolidation which would result in the Voting Securities of the Company outstanding immediately prior thereto continuing to represent (either by remaining outstanding or by being converted into Voting Securities of the surviving entity) at least 80% of the total voting power represented by the Voting Securities of the Company or such surviving entity outstanding immediately after such merger or consolidation, or the stockholders of the Company approve a plan of complete liquidation of the Company or an agreement for the sale or disposition by the Company of (in one transaction or a series of transactions) all or substantially all the Company's assets.
(b) Claim: any threatened, pending or completed action, suit or proceeding, or any inquiry or investigation, whether instituted by the Company or any other party, that Indemnitee in good faith believes might lead to the institution of any such action, suit or proceeding, whether civil, criminal, administrative, investigative or other.
(c) Expenses: include attorneys' fees and all other costs, expenses and obligations paid or incurred in connection with investigating, defending, being a witness in or participating in (including on appeal), or preparing to defend, be a witness in or participate in, any Claim relating to any Indemnifiable Event.
(d) Indemnifiable Event: any event or occurrence related to the fact that Indemnitee is or was a director, officer, employee, agent or fiduciary of the Company, or 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.
(e) Independent Legal Counsel: an attorney or firm of attorneys, selected in accordance with the provisions of Section 3, who shall not have otherwise performed services for the Company or Indemnitee within the last five years (other than with respect to matters concerning the rights of
Indemnitee under this Agreement, or of other indemnitees under similar indemnity agreements).
(f) Potential Change in Control: shall be deemed to have occurred
if (i) the Company enters into an agreement, the consummation
of which would result in the occurrence of a Change in
Control; (ii) any person (including the Company) publicly
announces an intention to take or to consider taking actions
which if consummated would constitute a Change in Control;
(iii) any person, other than a trustee or other fiduciary
holding securities under an employee benefit plan of the
Company or a corporation owned, directly or indirectly, by the
stockholders of the Company in substantially the same
proportions as their ownership of stock of the Company, who is
or becomes the beneficial owner, directly or indirectly, of
securities of the Company representing 9.5% or more of the
combined voting power of the Company's then outstanding Voting
Securities, increases his beneficial ownership of such
securities by five percentage points (5%) or more over the
percentage so owned by such person; or (iv) the Board adopts a
resolution to the effect that, for purposes of this Agreement,
a Potential Change in Control has occurred.
(g) Reviewing Party: any appropriate person or body consisting of a member or members of the Company's Board of Directors or any other person or body appointed by the Board who is not a party to the particular Claim for which Indemnitee is seeking indemnification, or Independent Legal Counsel.
(h) Voting Securities: any securities of the Company which vote generally in the election of directors.
2. Basic Indemnification Arrangement.
(a) In the event Indemnitee was, is or becomes a party to or witness or other participant in, or is threatened to be made a party to or witness or other participant in, a Claim by reason of (or arising in part out of) an Indemnifiable Event, the Company shall indemnify Indemnitee to the fullest extent permitted by law as soon as practicable but in any event no later than thirty days after written demand is presented to the Company, against any and all Expenses, judgments, fines, penalties and amounts paid in settlement (including all interest, assessments and other charges paid or payable in connection with or in respect of such Expenses, judgments, fines, penalties or amounts paid in settlement) 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").
(b) Notwithstanding the foregoing, (i) the obligations of the Company under Section 2(a) shall be subject to the condition that the Reviewing Party
shall not have determined (in a written opinion, in any case in which the Independent Legal Counsel referred to in Section 3 hereof is involved) that Indemnitee would not be permitted to be indemnified under applicable law, and (ii) the obligation of the Company to make an Expense Advance pursuant to Section 2(a) shall be subject to the condition that, if, when and to the extent that the Reviewing Party determines that Indemnitee would not be permitted to be so indemnified under applicable law, the Company shall be entitled to be reimbursed by Indemnitee (who hereby agrees to reimburse the Company) for all such amounts theretofore paid; provided, however, that if Indemnitee has commenced or thereafter commences legal proceedings in a court of competent jurisdiction to secure a determination that Indemnitee should be indemnified under applicable law, any determination made by the Reviewing Party that Indemnitee would not be permitted to be indemnified under applicable law shall not be binding and Indemnitee shall not be required to reimburse the Company for any Expense Advance until a final judicial determination is made with respect thereto (as to which all rights of appeal therefrom have been exhausted or lapsed). If there has not been a Change in Control, the Reviewing Party shall be selected by the Board of Directors, and if there has been such a Change in Control (other than a Change in Control which has been approved by a majority of the Company's Board of Directors who were directors immediately prior to such Change in Control), the Reviewing Party shall be the Independent Legal Counsel referred to in Section 3 hereof. If there has been no determination by the Reviewing Party or if the Reviewing Party determines that Indemnitee substantively would not be permitted to be indemnified in whole or in part under applicable law, Indemnitee shall have the right to commence litigation in any court in the State of Delaware having subject matter jurisdiction thereof and in which venue is proper seeking an initial determination by the court or challenging any such determination by the Reviewing Party or any aspect thereof, including the legal or factual bases therefor, and the Company hereby consents to service of process and to appear in any such proceeding. Any determination by the Reviewing Party otherwise shall be conclusive and binding on the Company and Indemnitee.
3. Change in Control. The Company agrees that if there is a Change in Control of the Company (other than a Change in Control which has been approved by a majority of the Company's Board of Directors who were directors immediately prior to such Change in Control) then with respect to all matters thereafter arising concerning the rights of Indemnitee to indemnity payments and Expense Advances under this Agreement or any other agreement or Company Bylaw now or hereafter in effect relating to Claims for Indemnifiable Events, the Company shall seek legal advice only from Independent Legal Counsel selected by Indemnitee and approved by the Company (which approval shall not be unreasonably withheld). Such counsel, among other things, shall render its written opinion to the Company and Indemnitee as to whether and to what extent the Indemnitee would be permitted to be indemnified under applicable law. The
Company agrees to pay the reasonable fees of the Independent Legal Counsel referred to above and to indemnify fully such counsel against any and all expenses (including attorneys' fees), claims, liabilities and damages arising out of or relating to this Agreement or its engagement pursuant hereto.
4. Establishment of Trust. In the event of a Potential Change in Control,
the Company shall, upon written request by Indemnitee, create a trust
for the benefit of Indemnitee and from time to time upon written
request of Indemnitee shall fund such trust in an amount sufficient to
satisfy any and all Expenses reasonably anticipated at the time of each
such request to be incurred in connection with investigating, preparing
for and defending any Claim relating to an Indemnifiable Event, and any
and all judgments, fines, penalties and settlement amounts of any and
all Claims relating to an Indemnifiable Event from time to time
actually paid or claimed, reasonably anticipated or proposed to be
paid. The amount or amounts to be deposited in the trust pursuant to
the foregoing funding obligation shall be determined by the Reviewing
Party, in any case in which the Independent Legal Counsel referred to
above is involved. The terms of the trust shall provide that (i) the
trust shall not be revoked or the principal thereof invaded, without
the written consent of the Indemnitee, (ii) the trustee shall advance,
within two business days of a request by the Indemnitee, any and all
Expenses to the Indemnitee (and the Indemnitee hereby agrees to
reimburse the trust under the circumstances under which the Indemnitee
would be required to reimburse the Company under Section 2(b) of this
Agreement), (iii) the trust shall continue to be funded by the Company
in accordance with the funding obligation set forth above, (iv) the
trustee shall promptly pay to Indemnitee all amounts for which
Indemnitee shall be entitled to indemnification pursuant to this
Agreement or otherwise, and (v) all unexpended funds in such trust
shall revert to the Company upon a final determination by the Reviewing
Party or a court of competent jurisdiction, as the case may be, that
Indemnitee has been fully indemnified under the terms of this
Agreement. The trustee shall be chosen by Indemnitee. Nothing in this
Section 4 shall relieve the Company of any of its obligations under
this Agreement.
5. Indemnification for Additional Expenses. The Company shall indemnify
Indemnitee against any and all expenses (including attorneys' fees)
and, if requested by Indemnitee, shall (within two business days of
such request) advance such expenses to Indemnitee, which are incurred
by Indemnitee in connection with any action brought by Indemnitee for
(i) indemnification or advance payment of Expenses by the Company under
this Agreement or any other agreement or Company Bylaw now or hereafter
in effect relating to Claims for Indemnifiable Events and/or (ii)
recovery under any directors' and officers' liability insurance
policies maintained by the Company, regardless of whether Indemnitee
ultimately is determined to be entitled to such indemnification,
advance expense payment or insurance recovery, as the case may be.
6. Partial Indemnity, Etc. If Indemnitee is entitled under any provision of this Agreement to indemnification by the Company for some or a portion of the
Expenses, judgments, fines, penalties and amounts paid in settlement arising from or relating to a Claim but not, however, for all of the total amount thereof, the Company shall nevertheless indemnify Indemnitee for the portion thereof to which Indemnitee is entitled. Moreover, notwithstanding any other provision of this Agreement, to the extent that Indemnitee has been successful on the merits or otherwise in defense of any or all Claims relating in whole or in part to an Indemnifiable Event or in defense of any issue or matter therein, including dismissal without prejudice, Indemnitee shall be indemnified against all Expenses incurred in connection therewith.
7. Burden of Proof. In connection with any determination by the Reviewing Party or otherwise as to whether Indemnitee is entitled to be indemnified hereunder the burden of proof shall be on the Company to establish that Indemnitee is not so entitled.
8. No Presumptions. For purposes of this Agreement, the termination of any claim, action, suit or proceeding, by judgment, order, settlement (whether with or without court approval) or conviction, or upon a plea of nolo contendere, or its equivalent, shall not create a presumption that Indemnitee did not meet any particular standard of conduct or have any particular belief or that a court has determined that indemnification is not permitted by applicable law. In addition, neither the failure of the Reviewing Party to have made a determination as to whether Indemnitee has met any particular standard of conduct or had any particular belief, nor an actual determination by the Reviewing Party that Indemnitee has not met such standard of conduct or did not have such belief, prior to the commencement of legal proceedings by Indemnitee to secure a judicial determination that Indemnitee should be indemnified under applicable law shall be a defense to Indemnitee's claim or create a presumption that Indemnitee has not met any particular standard of conduct or did not have any particular belief.
9. Nonexclusivity, Etc. The rights of the Indemnitee hereunder shall be in addition to any other rights Indemnitee may have under the Company's Amended and Restated Bylaws or the Delaware General Corporation Law or otherwise. To the extent that a change in the Delaware General Corporation Law (whether by statute or judicial decision) permits greater indemnification by agreement than would be afforded currently under the Company's Amended and Restated Bylaws and this Agreement, it is the intent of the parties hereto that Indemnitee shall enjoy by this Agreement the greater benefits so afforded by such change.
10. Liability Insurance. To the extent the Company maintains an insurance policy or policies providing directors' and officers' liability insurance, Indemnitee shall be covered by such policy or policies, in accordance with its or their terms, to the maximum extent of the coverage available for any Company director or officer.
11. Period of Limitations. No legal action shall be brought and no cause of action shall be asserted by or in the right of the Company against Indemnitee, Indemnitee's spouse, heirs, executors or personal or legal representatives after the
expiration of two years from the date of accrual of such cause of action, and any claim or cause of action of the Company shall be extinguished and deemed released unless asserted by the timely filing of a legal action within such two-year period; provided, however, that if any shorter period of limitations is otherwise applicable to any such cause of action such shorter period shall govern.
12. Amendments, Etc. No supplement, modification or amendment of this Agreement shall be binding unless executed in writing by both of the parties hereto. No waiver of any of the provisions of this Agreement shall be deemed or shall constitute a waiver of any other provisions hereof (whether or not similar) nor shall such waiver constitute a continuing waiver.
13. Subrogation. In the event of payment under this Agreement, the Company shall be subrogated to the extent of such payment to all of the rights of recovery of Indemnitee, who shall execute all papers required and shall do everything that may be necessary to secure such rights, including the execution of such documents necessary to enable the Company effectively to bring suit to enforce such rights.
14. No Duplication of Payments. The Company shall not be liable under this Agreement to make any payment in connection with any Claim made against Indemnitee to the extent Indemnitee has otherwise actually received payment (under any insurance policy, Bylaw or otherwise) of the amounts otherwise indemnifiable hereunder.
15. Binding Effect, Etc. This Agreement shall be binding upon and inure to the benefit of and be enforceable by the parties hereto and their respective successors, assigns, including any direct or indirect successor by purchase, merger, consolidation or otherwise to all or substantially all of the business and/or assets of the Company, spouses, heirs, executors and personal and legal representatives. This Agreement shall continue in effect regardless of whether Indemnitee continues to serve as an officer or director of the Company or of any other enterprise at the Company's request.
16. Severability. The provisions of this Agreement shall be severable in the event that any of the provisions hereof (including any provision within a single section, paragraph or sentence) are held by a court of competent jurisdiction to be invalid, void or otherwise unenforceable in any respect, and the validity and enforceability of any such provision in every other respect and of the remaining provisions hereof shall not be in any way impaired and shall remain enforceable to the fullest extent permitted by law.
17. Governing Law. This Agreement shall be governed by and construed and enforced in accordance with the laws of the State of Delaware applicable to contracts made and to be performed in such state without giving effect to the principles of conflicts of laws.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement this 1st day September 2004.
By /s/ C. Baker Cunningham ----------------------- Name: C. Baker Cunningham Title: Chief Executive Officer and President /s/ Glenn Kalnasy ------------------ Glenn Kalnasy (Indemnitee) |
EXHIBIT 10.50
THIRD AMENDMENT TO THE
BELDEN WIRE & CABLE COMPANY
SUPPLEMENTAL EXCESS DEFINED BENEFIT PLAN
WHEREAS, Belden Wire & Cable Company (hereinafter referred to as the "Company") established the Belden Wire & Cable Company Supplemental Excess Defined Benefit Plan (as amended from time to time, hereinafter referred to as the "Plan") restated as of January 1, 1998, for the benefit of certain employees of the Employer;
WHEREAS, Section 7.1 of Article VII of the Plan provides for the Company's amending the Plan; and
WHEREAS, the Company deems it desirable to make certain amendments to the Plan effective immediately before the Effective Time, as defined in the Agreement and Plan of Merger by and among Cable Design Technologies Corporation, BC Merger Corp. and Belden Inc. dated as of February 4, 2004, as amended;
NOW, THEREFORE, the Plan is amended effective immediately before the Effective Time as follows:
1. The following definition is added in Article II as Section 2.1 (with the remaining definitions to be renumbered accordingly):
"2.1 'BELDEN CDT' means Belden CDT Inc., a Delaware corporation."
2. The definition of "CHANGE OF CONTROL" in Article II is amended by (a) changing each reference to "the Company" therein to a reference to "Belden CDT", and (b) adding to the end thereof the following sentence: "For the avoidance of doubt, the consummation of the transactions contemplated by the Agreement and Plan of Merger by and among Cable Design Technologies Corporation, BC Merger Corp. and Belden Inc. dated as of February 4, 2004, as amended, shall not constitute a 'Change of Control' under the Plan."
3. The definition of "DEFERRAL PLAN" in Article II is deleted and replaced with the following: "'DEFERRAL PLAN' means the Belden Inc. Deferred Compensation Plan, as amended from time to time."
4. The definition of "PENSION PLAN" in Article II is amended by adding the words ", as amended from time to time" to the end thereof.
5. The definition of "PLAN" in Article II is amended by adding the words ", as amended from time to time" to the end thereof.
6. The definition of "PLAN ADMINISTRATOR" is amended by changing the reference to "Article VII" therein to a reference to "Article VIII".
7. The definition of "TRUST" in Article II is deleted and replaced with the following:
"2.21 'TRUST' means the Trust Agreement Establishing the Trust by and between Belden Wire & Cable Company (For the Supplemental Excess Defined Benefit Plan) and CG Trust Company, now Prudential Bank & Trust, F.S.B., effective January 1, 2001, as amended from time to time, and any successor agreement thereto. Such Trust constitutes an unfunded arrangement and will not affect the status of the Plan as an unfunded plan for purposes of Title I of ERISA."
8. Capitalized terms used herein, unless otherwise defined herein, have the meaning ascribed to such terms in the Plan. Except as expressly provided herein all provisions of the Plan shall remain in full force and effect.
IN WITNESS WHEREOF, Belden Wire & Cable Company, by its duly authorized officer, executes this amendment as of the 14th day of July, 2004.
BELDEN WIRE & CABLE COMPANY
By: /s/ Cathy O. Staples ------------------------------- Its: Vice President, Human Resources ------------------------------- Attest: /s/ Eivind J. Kolemainen ------------------------ Eivind J. Kolemainen |
EXHIBIT 10.51
THIRD AMENDMENT TO THE
BELDEN WIRE & CABLE COMPANY
SUPPLEMENTAL EXCESS DEFINED CONTRIBUTION PLAN
WHEREAS, Belden Wire & Cable Company (hereinafter referred to as the "Company") established the Belden Wire & Cable Company Supplemental Excess Defined Contribution Plan (as amended from time to time, hereinafter referred to as the "Plan") restated as of January 1, 1998, for the benefit of certain employees of the Employer;
WHEREAS, Section 9.1 of Article IX of the Plan provides for the Company's amending the Plan; and
WHEREAS, the Company deems it desirable to make certain amendments to the Plan effective immediately before the Effective Time, as defined in the Agreement and Plan of Merger by and among Cable Design Technologies Corporation, BC Merger Corp. and Belden Inc. dated as of February 4, 2004, as amended;
NOW, THEREFORE, the Plan is amended effective immediately before the Effective Time as follows:
1. The following definition is added in Article II as Section 2.1 (with the remaining definitions to be renumbered accordingly):
"2.1 'BELDEN CDT' means Belden CDT Inc., a Delaware corporation."
2. The definition of "CHANGE OF CONTROL" in Article II is amended by (a) changing each reference to "the Company" therein to a reference to "Belden CDT", and (b) adding to the end thereof the following sentence: "For the avoidance of doubt, the consummation of the transactions contemplated by the Agreement and Plan of Merger by and among Cable Design Technologies Corporation, BC Merger Corp. and Belden Inc. dated as of February 4, 2004, as amended, shall not constitute a 'Change of Control' under the Plan."
3. The definition of "DEFERRAL PLAN" in Article II is deleted and replaced with the following: "'DEFERRAL PLAN' means the Belden Inc. Deferred Compensation Plan, as amended from time to time."
4. The definition of "PLAN" in Article II is amended by adding the words ", as amended from time to time" to the end thereof.
5. The definition of "PLAN ADMINISTRATOR" is amended by changing the reference to "Article VII" therein to a reference to "Article X".
6. The definition of "SAVINGS PLAN" in Article II is amended by adding the words ", as amended from time to time" to the end thereof.
7. The definition of "TRUST" in Article II is deleted and replaced with the following:
"2.21 'TRUST' means the Trust Agreement Establishing the Trust by and between Belden Wire & Cable Company (For the Supplemental Excess Defined Contribution Plan) and CG Trust Company, now Prudential Bank & Trust, F.S.B., effective January 1, 2001, as amended from time to time, and any successor agreement thereto. Such Trust constitutes an unfunded arrangement and will not affect the status of the Plan as an unfunded plan for purposes of Title I of ERISA."
8. Capitalized terms used herein, unless otherwise defined herein, have the meaning ascribed to such terms in the Plan. Except as expressly provided herein all provisions of the Plan shall remain in full force and effect.
IN WITNESS WHEREOF, Belden Wire & Cable Company, by its duly authorized officer, executes this amendment as of the 14th day of July, 2004.
BELDEN WIRE & CABLE COMPANY
By: /s/ Cathy O. Staples -------------------- Its: Vice President, Human Resources ------------------------------- Attest: /s/ Eivind J. Kolemainen ------------------------ Eivind J. Kolemainen |
EXHIBIT 10.52
TRUST AGREEMENT
Establishing
THE
TRUST
BY AND BETWEEN
BELDEN WIRE & CABLE COMPANY
(FOR THE SUPPLEMENTAL EXCESS DEFINED BENEFIT PLAN)
and
CG TRUST COMPANY
TABLE OF CONTENTS
PAGE ---- Section 1 Establishment of Trust 1 Section 2 Payments to Plan Participants 2 and Their Beneficiaries Section 3 Trustee Responsibility Regarding 3 Payments to Trust Beneficiary When Company is Insolvent Section 4 Payments to Company 4 Section 5 Investment Authority 4 Section 6 Disposition of Income 4 Section 7 Accounting by Trustee 5 Section 8 Responsibility of Trustee 5 Section 9 Compensation and Expenses of Trustee 6 Section 10 Resignation and Removal of Trustee 6 Section 11 Appointment of Successor 7 Section 12 Amendment or Termination 7 Section 13 Payment of Incurred Expenses 8 Section 14 Miscellaneous 8 Section 15 Effective Date 9 |
(a) This Agreement made this first day of January, 2001, by and between Belden Wire & Cable Company (the "Company") and CG Trust Company, a trust company organized under the laws of the State of Illinois with its principal office and place of business in Chicago, Illinois (the "Trustee");
(b) WHEREAS, Company has adopted the Belden Wire & Cable Company Supplemental Excess Defined Benefit Plan (the "Plan");
(c) WHEREAS, Company has incurred or expects to incur liability under the terms of such Plan with respect to the individuals participating in such Plan;
(d) WHEREAS, Company wishes to establish a trust (hereinafter called "Trust" or "Trust Fund") and to contribute to the Trust assets that shall be held herein, subject to the claims of Company's creditors in the event of Company's insolvency, as herein defined, until paid to Plan participants and their beneficiaries in such manner and at such times as specified in the Plan;
(e) WHEREAS, it is the intention of the parties that this Trust shall constitute an unfunded arrangement and shall not affect the status of the Plan as an unfunded plan maintained for the purpose of providing benefits for a select group of management or highly compensated employees for purposes of Title I of the Employee Retirement Income Security Act of 1974;
(f) WHEREAS, it is the intention of Company to make contributions to the Trust to provide itself with a source of funds to assist in the meeting of its liabilities under the Plan.
NOW, THEREFORE, the parties do hereby establish the Trust and agree that the Trust shall be comprised, held and disposed of as follows:
Section 1. Establishment of Trust.
(a) Company hereby deposits with Trustee in trust certain good and valuable consideration, which shall become the principal of the Trust to be held, administered and disposed of by Trustee as provided in this Trust Agreement.
(b) The Trust hereby established shall be revocable by the Company; it shall become irrevocable upon a Change of Control, as defined herein.
(c) The Trust is intended to be a grantor trust, of which Company is the grantor, within the meaning of subpart E, part I, subchapter J, chapter 1, subtitle A of the Internal Revenue Code of 1986, as amended, and shall be construed accordingly.
(d) The principal of the Trust, and any earnings thereon shall be held separate and apart from other funds of Company and shall be used exclusively for the uses and purposes of Plan participants and general creditors as herein set forth. Before a Change in Control, (i) plan participants and their beneficiaries shall have no preferred claim on, or any beneficial ownership interest in, any assets of the Trust, (ii) any rights created under the Plan and this Trust Agreement shall be mere unsecured contractual rights of Plan participants and their beneficiaries against Company, (iii) any assets held by the Trust will be subject to the claims of Company's general creditors under federal and state law in the event of insolvency, as defined in Section 3(a) herein.
(e) Upon a Change of Control, Company shall, as soon as possible, but in no event longer than thirty (30) days following the Change of Control, as defined herein, make an irrevocable contribution to the Trust in an amount that is sufficient to pay all Plan participants and their beneficiaries the aggregate accrued benefits to which they would be entitled pursuant to the Plan as of the date of the Change of Control (whether or not they are then entitled to receive such accrued benefits), and shall thereafter make further irrevocable contributions to the Trust on a current basis as and in the amount that such benefits accrue. The Trustee shall have no responsibility for enforcing the Company's obligation to make payment of any contribution to the Trust, for the timing or amount thereof, or for the adequacy of the Trust to meet or discharge any liabilities of the Plan.
Section 2. Payments to Plan Participants and Their Beneficiaries.
(a) Company shall deliver to Trustee a schedule (the "Payment Schedule") that indicates the amounts payable in respect of each Plan participant (and his or her beneficiaries), that provides a formula or other instructions acceptable to Trustee for determining the amounts so payable, the form in which such amount is to be paid (as provided for or available under the Plan), and the time of commencement for payment of such amounts. Except as otherwise provided herein, Trustee shall make payments to the Plan participants and their beneficiaries in accordance with such Payment Schedule. The Trustee shall make provisions for reporting and withholding of any federal, state or local taxes that may be required to be withheld with respect to the payment of benefits pursuant to the terms of the Plan and shall pay amounts withheld to the appropriate taxing authorities or determine that such amounts have been reported, withheld and paid by Company.
(b) The entitlement of a Plan participant or his or her beneficiaries to benefits under the Plan shall be determined by Company or such party as it shall designate under the Plan, and any claim for such benefits shall be considered and reviewed under the procedures set out in the Plan.
(c) Company may make payment of benefits directly to Plan participants or their beneficiaries as they become due under the terms of the Plan. Company shall notify Trustee of its decision to make payment of benefits directly prior to the time amounts are payable to participants or their beneficiaries. Trustee shall require Company to provide reasonable written documentation that such payments have been made directly to such participant or beneficiary. In addition, if the principal of the Trust, and any earnings thereon, are not sufficient to make payments of benefits in accordance with the terms of the Plan, Company shall make the balance of each such payment as it falls due. Trustee shall notify Company where principal and earnings are not sufficient.
Section 3. Trustee Responsibility Regarding Payments to Trust Beneficiary When Company is Insolvent.
(a) Trustee shall cease payment of benefits to Plan participants and their beneficiaries if the Company is insolvent. Company shall be considered "insolvent" for purposes of this Trust Agreement if (i) Company is unable to pay its debts as they become due or (ii) Company is subject to a pending proceeding as a debtor under the United States Bankruptcy Code.
(b) At all times during the continuance of this Trust, as provided in
Section 1(d) hereof, the principal and income of the Trust shall be
subject to claims of general creditors of Company under federal and
state law as set forth below.
(1) The Board of Directors and the Chief Executive Officer of Company shall have the duty to inform Trustee in writing of Company's insolvency. If a person claiming to be a creditor of Company alleges in writing to Trustee that Company has become insolvent, Trustee shall determine whether Company is insolvent and, pending such determination, Trustee shall discontinue payment of benefits to Plan participants or their beneficiaries.
(2) Unless Trustee has actual knowledge of Company's insolvency, or has received notice from Company or a person claiming to be a creditor alleging that Company is insolvent, Trustee shall have no duty to inquire whether Company is insolvent. Trustee may in all events rely on such evidence concerning Company's solvency as may be furnished to Trustee and that provides Trustee with a reasonable basis for making a determination concerning Company's solvency.
(3) If at any time Trustee has determined that Company is insolvent, Trustee shall discontinue payments to Plan participants or their beneficiaries and shall hold the assets of the Trust for the benefit of Company's general creditors. Nothing in this Trust Agreement shall in any way diminish any rights of Plan participants or their beneficiaries to pursue their rights as general creditors of Company with respect to benefits due under the Plan or otherwise.
(4) Trustee shall resume the payment of benefits to Plan participants or their beneficiaries in accordance with Section 2 of this Trust Agreement only after Trustee has determined that Company is not insolvent (or is no longer insolvent).
(c) Provided that there are sufficient assets, if Trustee discontinues the payment of benefits from the Trust pursuant to Section 3(b) hereof and subsequently resumes such payments, the first payment following such discontinuance shall include the aggregate amount of all payments due to Plan participants or their beneficiaries under the terms of the Plan for the period of such discontinuance, less the aggregate amount of any payments made to Plan participants and their beneficiaries by Company in lieu of the payments provided for hereunder during any such period of discontinuance.
Section 4. Payments to Company.
Except as provided in Section 3 hereof, after the Trust has become irrevocable, Company shall have no right or power to direct Trustee to return to Company or to divert to others any of the Trust assets before all payment[s] of accrued benefits (present and future) have been made to Plan participants and their beneficiaries pursuant to the terms of the Plan.
Section 5. Investment Authority.
Trustee shall have the power to invest the assets of the Trust Fund in such investment vehicles as directed by the Company, including insurance policies or securities (including stock or rights to acquire stock) or obligations issued by Company. All rights associated with assets of the Trust shall be exercised by Trustee or the person designated by Trustee pursuant to the Company's direction, and shall in no event be exercisable by or rest with Plan participants.
Section 6. Disposition of Income.
During the term of this Trust, all income received by the Trust, net of expenses and taxes, shall be accumulated and reinvested.
Section 7. Accounting by Trustee.
The Trustee has accepted this Trust on the condition that the Company has entered or is entering into a service agreement with Connecticut General Life Insurance Company ("Connecticut General") whereby Connecticut General will provide recordkeeping services for all assets held pursuant to this Trust Agreement. The Trustee shall be required to forward to the Company, or require Connecticut General to forward to the Company, the recordkeeping reports and related financial information provided by Connecticut General, but the Trustee shall not otherwise be required to provide Trust accounts.
Section 8. Responsibility of Trustee.
(a) Trustee shall act with the care, skill, prudence and diligence under the circumstances then prevailing that a prudent person acting in like capacity and familiar with such matters would use in the conduct of an enterprise of a like character and with like aims, provided, however, that Trustee shall incur no liability to any person for any action taken pursuant to a direction, request or approval given by Company or any delegate appointed by the Company which is contemplated by, and in conformity with, the terms of the Plan or this Trust and is given in writing by Company or its delegate. In the event of a dispute between Company and a party, Trustee may apply to a court of competent jurisdiction to resolve the dispute.
(b) If Trustee undertakes or defends any litigation arising in connection with this Trust, Company agrees to indemnify Trustee against Trustee's costs, expenses and liabilities (including, without limitation, attorneys' fees and expenses) relating thereto and to be primarily liable for such payments. If Company does not pay such costs, expenses and liabilities in a reasonably timely manner, Trustee may obtain payment from the Trust.
(c) Trustee may hire agents, accountants, actuaries, investment advisors, financial consultants or other professionals to assist it in performing any of its duties or obligations hereunder, including recordkeeping, reporting, custody of assets or proxy voting. Such agents may include affiliates of the Trustee.
(d) Trustee shall have, without exclusion, all powers conferred in Trustees in accordance with applicable law, unless expressly provided otherwise herein, provided, however, that if an insurance policy is held as an asset of the Trust, Trustee shall have no power to name a beneficiary other than the Trust, to assign the policy (as distinct from conversion of the policy to a different form) other than to a successor trustee, or to loan to any person the proceeds of any borrowing against such policy.
(e) The Company shall indemnify and hold harmless the Trustee from and against any and all claims, losses, damages, expenses (including reasonable counsel fees) and liability to which the Trustee may be subject by reason of any act done or omitted to be done, except where the same is finally adjudicated to be due to the negligence or willful misconduct of the Trustee.
(f) In addition to and in no way in limitation of the indemnification of paragraph (e) of this section, the Company hereby agrees to indemnify and hold harmless the Trustee from and against any claims, losses, damages, expenses (including reasonable counsel fees) and liability to which the Trustee may be subject by reason of any act or omission of any prior, subsequent or existing trustee of the Plan.
(g) The Trustee shall be responsible only for such assets as are actually received by it as Trustee hereunder. The Trustee shall have no duty or authority to ascertain whether any contributions should be made to it pursuant to the Plan or to bring any action to enforce any obligation to make any such contribution, nor shall it have any responsibility concerning the amount of any contribution or the application of the Plan's contribution formula. The Trustee shall have no responsibility for any assets not held under this Trust, even if those assets are held as assets of the Plan under a separate trust agreement. Responsibility for any such assets shall be solely that of the trustees named in such separate trust agreement, or, in the event no such separate trust exists, the Company.
Section 9. Compensation and Expenses of Trustee.
Company shall pay all administrative and Trustees' fees and expenses in accordance with a fee schedule provided to the Company. In addition, Trustee shall be paid its reasonable expenses, including reasonable expenses of counsel and other agents employed by the Trustee, incurred in connection with administration of the Trust Fund. If the Trustee proposes an amended fee schedule and the Company fails to object thereto within ninety (90) days of its receipt, the amended fee schedule shall be deemed accepted by the Company. If not paid, the fees and expenses shall be paid from the Trust.
Section 10. Resignation and Removal of Trustee.
(a) Trustee may resign at any time by written notice to Company, which shall be effective 30 (thirty) days after receipt of such notice unless Company and Trustee agree otherwise.
(b) Trustee may be removed by Company on 30 (thirty) days notice or upon shorter notice accepted by Trustee.
(c) The Trustee's service pursuant to this Agreement is conditioned upon the existence of one or more contracts between the Company and Connecticut General providing for full Plan recordkeeping services. In the event the contract providing for such recordkeeping services is discontinued or terminated, this Trust Agreement shall be terminated as well with no further notice from either party to the other as of the date of discontinuance or termination of the contract providing for Plan recordkeeping services.
(d) Upon resignation or removal of Trustee and appointment of a successor Trustee, all assets shall subsequently be transferred to the successor Trustee. The transfer shall be completed within 30 days after receipt of notice of resignation, removal or transfer, unless Company extends the time limit.
(e) If Trustee resigns or is removed, a successor shall be appointed, in accordance with Section 11 hereof, by the effective date of resignation or removal under paragraph(s) (a), (b) or (c) of this section. If no such appointment has been made, Trustee may apply to a court of competent jurisdiction for appointment of a successor or for instructions. All expenses of Trustee in connection with the proceeding shall be allowed as administrative expenses of the Trust.
Section 11. Appointment of Successor.
If Trustee resigns or is removed in accordance with Section 10(a), (b) or (c) hereof, Company may appoint any third party, such as a bank trust department or other party that may be granted corporate trustee powers under state law, as a successor to replace Trustee upon resignation or removal. The appointment shall be effective when accepted in writing by the new Trustee, who shall have all of the rights and powers of the former Trustee, including ownership rights in the Trust assets. The former Trustee shall execute any instrument necessary or reasonably requested by Company or the successor Trustee to evidence the transfer.
Section 12. Amendment or Termination.
(a) This Trust Agreement may be amended by a written instrument executed by Trustee and Company. Notwithstanding the foregoing, no such amendment shall conflict with the terms of the Plan or shall make the Trust revocable after it has become irrevocable in accordance with Section 1(b) hereof.
(b) The Trust shall not terminate until the date on which Plan participants and their beneficiaries are no longer entitled to benefits pursuant to the terms of the Plan. Upon termination of the Trust any assets remaining in the Trust shall be returned to Company.
(c) If and when the Trust becomes irrevocable as provided herein, any amendment of this Agreement will require the approval of at least 80 percent of the Plan Participants (or their beneficiaries).
Section 13. Payment of Incurred Expenses
So long as the Participant is not acting in bad faith, the Company shall promptly pay as they are incurred by each Plan Participant any Expenses arising from or related to any action, suit, or proceeding filed by a Participant to enforce his or her rights under this Agreement or Plan ("Claim"). "Expenses" shall mean all costs, expenses (including attorney's fees, witness fees and investigative costs) and obligations paid or incurred in connection with or relating to a Claim (including all interest, assessments and other charges paid or payable in connection with or in respect of any of the foregoing).
Section 14. Miscellaneous.
(a) Any provision of this Trust Agreement prohibited by law shall be ineffective to the extent of any such prohibition, without invalidating the remaining provisions hereof.
(b) Benefits payable to Plan participants and their beneficiaries under this Trust Agreement may not be anticipated, assigned (either at law or in equity), alienated, pledged, encumbered or subjected to attachment, garnishment, levy, execution or other legal or equitable process.
(c) This Trust Agreement and the Trust hereby created shall be governed, construed, administered and regulated in all respects in accordance with the laws of Illinois.
(d) For purposes of this Trust, the term "Change of Control" shall
mean (i) the occurrence of a Triggering Event under the Rights
Agreement of July 6, 1995 between Belden, Inc. and the Chase
Mellon Shareholder Services, LLC, (successor to First Chicago
Trust Company of New York), as such Rights Agreement may be
assigned or amended, or (ii) the purchase or other acquisition by
any person, entity or group thereof, within the meaning of
Section 13(d) or 14(d) of the Securities Exchange act of 1934
("Act"), or any comparable successor provisions, of beneficial
ownership (within the meaning of Rule 13d-3 promulgated under the
Act) of 25 percent or more of either outstanding shares of common
stock or the combined voting power of Company's then outstanding
voting securities entitled to vote generally, (iii) the approval
by the stockholders of the Company of a reorganization, merger,
or consolidation, in each case, with respect to which persons who
were stockholders of the Company immediately prior to such
reorganization, merger or consolidation do not, immediately
thereafter, own more than 60 percent of the combined voting power
entitled to vote generally in the election of directors of the
reorganized, merged or consolidated Company's then outstanding
securities, or (iv) a liquidation or dissolution of Company or of
the sale of all or substantially all of the Company's assets.
The Board of Directors and the Chief Executive Officer of the Company shall have a duty to inform Trustee in writing of any Change of Control. Unless Trustee has actual knowledge of Company's Change of Control, or has received notice from the Company that a Change of Control has occurred, Trustee shall have no duty to inquire whether a Change of Control has occurred.
(e) In the event of any conflict between provisions of the Plan and those of this Trust Agreement, this Trust Agreement shall prevail.
Section 15. Effective Date.
The effective date of this Trust Agreement shall be January 1, 2001.
Attest: BELDEN WIRE & CABLE COMPANY /s/ Eivind J. Kolemainen By /s/ Cathy O. Staples ------------------------ --------------------- Its Vice President --------------------- Date March 26, 2001 ------------------- Attest: CG TRUST COMPANY /s/ By /s/ ------------------------- ------------------------------ Its ------------------------------- Date ------------------------------ |
EXHIBIT 10.53
FIRST AMENDMENT TO THE TRUST AGREEMENT
ESTABLISHING THE TRUST
BY AND BETWEEN BELDEN WIRE & CABLE COMPANY
(FOR THE SUPPLEMENTAL EXCESS DEFINED BENEFIT PLAN)
and CG TRUST COMPANY (NOW PRUDENTIAL BANK & TRUST, F.S.B.)
WHEREAS, Belden Wire & Cable Company (hereinafter referred to as the "Company") and CG Trust Company, now Prudential Bank & Trust, F.S.B. (hereinafter referred to as the "Trustee"), established a trust pursuant to a Trust Agreement (hereinafter referred to as the "Trust Agreement") effective January 1, 2001 establishing the Trust by and between Belden Wire & Cable Company (for the Supplemental Excess Defined Benefit Plan) and CG Trust Company, now Prudential Bank & Trust, F.S.B.;
WHEREAS, the trust was established by the Trust Agreement in connection with the Belden Wire & Cable Company Supplemental Excess Defined Benefit Plan (as amended from time to time, the "Plan");
WHEREAS, Section 12 of the Trust Agreement provides for the amending of the Trust Agreement by written instrument executed by the Trustee and the Company; and
WHEREAS, the Company and the Trustee deem it desirable to make certain amendments to the Trust Agreement effective immediately before the Effective Time, as defined in the Agreement and Plan of Merger by and among Cable Design Technologies Corporation, BC Merger Corp. and Belden Inc. dated as of February 4, 2004, as amended;
NOW, THEREFORE, the Trust Agreement is amended effective immediately before the Effective Time as follows:
1. The definition of "Plan" is amended by inserting the words "as amended from time to time," immediately before the words "the 'Plan'" in the parenthetical in the first "WHEREAS" clause.
2. Paragraph (d) of Section 14, which defines "Change of Control", is deleted and replaced with the following:
"For purposes of this Trust, the term 'Change of Control' shall have the meaning assigned by the Plan. For the avoidance of doubt, the consummation of the transactions contemplated by the Agreement and Plan of Merger by and among Cable Design Technologies Corporation, BC Merger Corp. and Belden Inc. dated as of February 4, 2004, as amended, shall not constitute a 'Change of Control' under the Plan. The Board of Directors and the Chief Executive Officer of the Company shall have a duty to inform the Trustee in writing of any Change of Control. Unless Trustee has actual knowledge of a Change of Control, or has received notice from the Company that a Change of Control
has occurred, Trustee shall have no duty to inquire whether a Change of Control has occurred."
3. Capitalized terms used herein, unless otherwise defined herein, have the meaning ascribed to such terms in the Trust Agreement. Except as expressly provided herein all provisions of the Trust Agreement shall remain in full force and effect.
IN WITNESS WHEREOF, Belden Wire & Cable Company and Prudential Bank & Trust, F.S.B., by their respective duly authorized officers, execute this amendment as of the 14th day of July, 2004.
BELDEN WIRE & CABLE COMPANY
By: /s/ Cathy O. Staples ------------------------- Its: Vice President, Human Resources -------------------------------- Attest: /s/ Eivind J. Kolemainen ------------------------ Eivind J. Kolemainen |
PRUDENTIAL BANK & TRUST, F.S.B.
By: /s/ ------------------------------ Its: ------------------------------- |
EXHIBIT 10.54
TRUST AGREEMENT
Establishing
THE
TRUST
BY AND BETWEEN
BELDEN WIRE & CABLE COMPANY
(FOR THE SUPPLEMENTAL EXCESS DEFINED CONTRIBUTION PLAN)
and
CG TRUST COMPANY
TABLE OF CONTENTS
PAGE ---- Section 1 Establishment of Trust 1 Section 2 Payments to Plan Participants 2 and Their Beneficiaries Section 3 Trustee Responsibility Regarding 3 Payments to Trust Beneficiary When Company is Insolvent Section 4 Payments to Company 4 Section 5 Investment Authority 4 Section 6 Disposition of Income 4 Section 7 Accounting by Trustee 5 Section 8 Responsibility of Trustee 5 Section 9 Compensation and Expenses of Trustee 6 Section 10 Resignation and Removal of Trustee 6 Section 11 Appointment of Successor 7 Section 12 Amendment or Termination 7 Section 13 Payment of Incurred Expenses 8 Section 14 Miscellaneous 8 Section 15 Effective Date 9 |
(a) This Agreement made this first day of January, 2001, by and between Belden Wire & Cable Company (the "Company") and CG Trust Company, a trust company organized under the laws of the State of Illinois with its principal office and place of business in Chicago, Illinois (the "Trustee");
(b) WHEREAS, Company has adopted the Belden Wire & Cable Company Supplemental Excess Defined Contribution Plan (the "Plan");
(c) WHEREAS, Company has incurred or expects to incur liability under the terms of such Plan with respect to the individuals participating in such Plan;
(d) WHEREAS, Company wishes to establish a trust (hereinafter called "Trust" or "Trust Fund") and to contribute to the Trust assets that shall be held herein, subject to the claims of Company's creditors in the event of Company's insolvency, as herein defined, until paid to Plan participants and their beneficiaries in such manner and at such times as specified in the Plan;
(e) WHEREAS, it is the intention of the parties that this Trust shall constitute an unfunded arrangement and shall not affect the status of the Plan as an unfunded plan maintained for the purpose of providing deferred compensation for a select group of management or highly compensated employees for purposes of Title I of the Employee Retirement Income Security Act of 1974;
(f) WHEREAS, it is the intention of Company to make contributions to the Trust to provide itself with a source of funds to assist in the meeting of its liabilities under the Plan.
NOW, THEREFORE, the parties do hereby establish the Trust and agree that the Trust shall be comprised, held and disposed of as follows:
Section 1. Establishment of Trust.
(a) Company hereby deposits with Trustee in trust certain good and valuable consideration, which shall become the principal of the Trust to be held, administered and disposed of by Trustee as provided in this Trust Agreement.
(b) The Trust hereby established shall be revocable by the Company; it shall become irrevocable upon a Change of Control, as defined herein.
(c) The Trust is intended to be a grantor trust, of which Company is the grantor, within the meaning of subpart E, part I, subchapter J, chapter 1, subtitle A of the Internal Revenue Code of 1986, as amended, and shall be construed accordingly.
(d) The principal of the Trust, and any earnings thereon shall be held
separate and apart from other funds of Company and shall be used
exclusively for the uses and purposes of Plan participants and
general creditors as herein set forth. Before a Change in Control,
(i) plan participants and their beneficiaries shall have no preferred
claim on, or any beneficial ownership interest in, any assets of the
Trust, (ii) any rights created under the Plan and this Trust
Agreement shall be mere unsecured contractual rights of Plan
participants and their beneficiaries against Company, (iii) any
assets held by the Trust will be subject to the claims of Company's
general creditors under federal and state law in the event of
insolvency, as defined in Section 3(a) herein.
(e) Upon a Change of Control, Company shall, as soon as possible, but in no event longer than thirty (30) days following the Change of Control, as defined herein, make an irrevocable contribution to the Trust in an amount that is sufficient to pay all Plan participants and their beneficiaries the aggregate accrued benefits to which they would be entitled pursuant to the Plan as of the date of the Change of Control (whether or not they are then entitled to receive such accrued benefits), and shall thereafter make further irrevocable contributions to the Trust on a current basis as and in the amount that such benefits accrue. The Trustee shall have no responsibility for enforcing the Company's obligation to make payment of any contribution to the Trust, for the timing or amount thereof, or for the adequacy of the Trust to meet or discharge any liabilities of the Plan.
Section 2. Payments to Plan Participants and Their Beneficiaries.
(a) Company shall deliver to Trustee a schedule (the "Payment Schedule") that indicates the amounts payable in respect of each Plan participant (and his or her beneficiaries), that provides a formula or other instructions acceptable to Trustee for determining the amounts so payable, the form in which such amount is to be paid (as provided for or available under the Plan), and the time of commencement for payment of such amounts. Except as otherwise provided herein, Trustee shall make payments to the Plan participants and their beneficiaries in accordance with such Payment Schedule. The Trustee shall make provisions for reporting and withholding of any federal, state or local taxes that may be required to be withheld with respect to the payment of benefits pursuant to the terms of the Plan and shall pay amounts withheld to the appropriate taxing authorities or determine that such amounts have been reported, withheld and paid by Company.
(b) The entitlement of a Plan participant or his or her beneficiaries to benefits under the Plan shall be determined by Company or such party as it shall designate under the Plan, and any claim for such benefits shall be considered and reviewed under the procedures set out in the Plan.
(c) Company may make payment of benefits directly to Plan participants or their beneficiaries as they become due under the terms of the Plan. Company shall notify Trustee of its decision to make payment of benefits directly prior to the time amounts are payable to participants or their beneficiaries. Trustee shall require Company to provide reasonable written documentation that such payments have been made directly to such participant or beneficiary. In addition, if the principal of the Trust, and any earnings thereon, are not sufficient to make payments of benefits in accordance with the terms of the Plan, Company shall make the balance of each such payment as it falls due. Trustee shall notify Company where principal and earnings are not sufficient.
Section 3. Trustee Responsibility Regarding Payments to Trust Beneficiary When Company is Insolvent.
(a) Trustee shall cease payment of benefits to Plan participants and their beneficiaries if the Company is insolvent. Company shall be considered "insolvent" for purposes of this Trust Agreement if (i) Company is unable to pay its debts as they become due or (ii) Company is subject to a pending proceeding as a debtor under the United States Bankruptcy Code.
(b) At all times during the continuance of this Trust, as provided in
Section 1(d) hereof, the principal and income of the Trust shall be
subject to claims of general creditors of Company under federal and
state law as set forth below.
(1) The Board of Directors and the Chief Executive Officer of Company shall have the duty to inform Trustee in writing of Company's insolvency. If a person claiming to be a creditor of Company alleges in writing to Trustee that Company has become insolvent, Trustee shall determine whether Company is insolvent and, pending such determination, Trustee shall discontinue payment of benefits to Plan participants or their beneficiaries.
(2) Unless Trustee has actual knowledge of Company's insolvency, or has received notice from Company or a person claiming to be a creditor alleging that Company is insolvent, Trustee shall have no duty to inquire whether Company is insolvent. Trustee may in all events rely on such evidence concerning Company's solvency as may be furnished to Trustee and that provides Trustee with a reasonable basis for making a determination concerning Company's solvency.
(3) If at any time Trustee has determined that Company is insolvent, Trustee shall discontinue payments to Plan participants or their beneficiaries and shall hold the assets of the Trust for the benefit of Company's general creditors. Nothing in this Trust Agreement shall in any way diminish any rights of Plan participants or their beneficiaries to pursue their rights as general creditors of Company with respect to benefits due under the Plan or otherwise.
(4) Trustee shall resume the payment of benefits to Plan participants or their beneficiaries in accordance with Section 2 of this Trust Agreement only after Trustee has determined that Company is not insolvent (or is no longer insolvent).
(c) Provided that there are sufficient assets, if Trustee discontinues the payment of benefits from the Trust pursuant to Section 3(b) hereof and subsequently resumes such payments, the first payment following such discontinuance shall include the aggregate amount of all payments due to Plan participants or their beneficiaries under the terms of the Plan for the period of such discontinuance, less the aggregate amount of any payments made to Plan participants and their beneficiaries by Company in lieu of the payments provided for hereunder during any such period of discontinuance.
Section 4. Payments to Company.
Except as provided in Section 3 hereof, after the Trust has become irrevocable, Company shall have no right or power to direct Trustee to return to Company or to divert to others any of the Trust assets before all payment[s] of accrued benefits (present and future) have been made to Plan participants and their beneficiaries pursuant to the terms of the Plan.
Section 5. Investment Authority.
Trustee shall have the power to invest the assets of the Trust Fund in such investment vehicles as directed by the Company, including insurance policies or securities (including stock or rights to acquire stock) or obligations issued by Company. All rights associated with assets of the Trust shall be exercised by Trustee or the person designated by Trustee pursuant to the Company's direction, and shall in no event be exercisable by or rest with Plan participants.
Section 6. Disposition of Income.
During the term of this Trust, all income received by the Trust, net of expenses and taxes, shall be accumulated and reinvested.
Section 7. Accounting by Trustee.
The Trustee has accepted this Trust on the condition that the Company has entered or is entering into a service agreement with Connecticut General Life Insurance Company ("Connecticut General") whereby Connecticut General will provide recordkeeping services for all assets held pursuant to this Trust Agreement. The Trustee shall be required to forward to the Company, or require Connecticut General to forward to the Company, the recordkeeping reports and related financial information provided by Connecticut General, but the Trustee shall not otherwise be required to provide Trust accounts.
Section 8. Responsibility of Trustee.
(a) Trustee shall act with the care, skill, prudence and diligence under the circumstances then prevailing that a prudent person acting in like capacity and familiar with such matters would use in the conduct of an enterprise of a like character and with like aims, provided, however, that Trustee shall incur no liability to any person for any action taken pursuant to a direction, request or approval given by Company or any delegate appointed by the Company which is contemplated by, and in conformity with, the terms of the Plan or this Trust and is given in writing by Company or its delegate. In the event of a dispute between Company and a party, Trustee may apply to a court of competent jurisdiction to resolve the dispute.
(b) If Trustee undertakes or defends any litigation arising in
connection with this Trust, Company agrees to indemnify
Trustee against Trustee's costs, expenses and liabilities
(including, without limitation, attorneys' fees and expenses)
relating thereto and to be primarily liable for such payments.
If Company does not pay such costs, expenses and liabilities
in a reasonably timely manner, Trustee may obtain payment from
the Trust.
(c) Trustee may hire agents, accountants, actuaries, investment advisors, financial consultants or other professionals to assist it in performing any of its duties or obligations hereunder, including recordkeeping, reporting, custody of assets or proxy voting. Such agents may include affiliates of the Trustee.
(d) Trustee shall have, without exclusion, all powers conferred in Trustees in accordance with applicable law, unless expressly provided otherwise herein, provided, however, that if an insurance policy is held as an asset of the Trust, Trustee shall have no power to name a beneficiary other than the Trust, to assign the policy (as distinct from conversion of the policy to a different form) other than to a successor trustee, or to loan to any person the proceeds of any borrowing against such policy.
(e) The Company shall indemnify and hold harmless the Trustee from and against any and all claims, losses, damages, expenses (including reasonable counsel fees) and liability to which the Trustee may be subject by reason of any act done or omitted to be done, except where the same is finally adjudicated to be due to the negligence or willful misconduct of the Trustee.
(f) In addition to and in no way in limitation of the indemnification of paragraph (e) of this section, the Company hereby agrees to indemnify and hold harmless the Trustee from and against any claims, losses, damages, expenses (including reasonable counsel fees) and liability to which the Trustee may be subject by reason of any act or omission of any prior, subsequent or existing trustee of the Plan.
(g) The Trustee shall be responsible only for such assets as are actually received by it as Trustee hereunder. The Trustee shall have no duty or authority to ascertain whether any contributions should be made to it pursuant to the Plan or to bring any action to enforce any obligation to make any such contribution, nor shall it have any responsibility concerning the amount of any contribution or the application of the Plan's contribution formula. The Trustee shall have no responsibility for any assets not held under this Trust, even if those assets are held as assets of the Plan under a separate trust agreement. Responsibility for any such assets shall be solely that of the trustees named in such separate trust agreement, or, in the event no such separate trust exists, the Company.
Section 9. Compensation and Expenses of Trustee.
Company shall pay all administrative and Trustees' fees and expenses in accordance with a fee schedule provided to the Company. In addition, Trustee shall be paid its reasonable expenses, including reasonable expenses of counsel and other agents employed by the Trustee, incurred in connection with administration of the Trust Fund. If the Trustee proposes an amended fee schedule and the Company fails to object thereto within ninety (90) days of its receipt, the amended fee schedule shall be deemed accepted by the Company. If not paid, the fees and expenses shall be paid from the Trust.
Section 10. Resignation and Removal of Trustee.
(a) Trustee may resign at any time by written notice to Company, which shall be effective 30 (thirty) days after receipt of such notice unless Company and Trustee agree otherwise.
(b) Trustee may be removed by Company on 30 (thirty) days notice or upon shorter notice accepted by Trustee.
(c) The Trustee's service pursuant to this Agreement is conditioned upon the existence of one or more contracts between the Company and Connecticut General providing for full Plan recordkeeping services. In the event the contract providing for such recordkeeping services is discontinued or terminated, this Trust Agreement shall be terminated as well with no further notice from either party to the other as of the date of discontinuance or termination of the contract providing for Plan recordkeeping services.
(d) Upon resignation or removal of Trustee and appointment of a successor Trustee, all assets shall subsequently be transferred to the successor Trustee. The transfer shall be completed within 30 days after receipt of notice of resignation, removal or transfer, unless Company extends the time limit.
(e) If Trustee resigns or is removed, a successor shall be
appointed, in accordance with Section 11 hereof, by the
effective date of resignation or removal under paragraph(s)
(a), (b) or (c) of this section. If no such appointment has
been made, Trustee may apply to a court of competent
jurisdiction for appointment of a successor or for
instructions. All expenses of Trustee in connection with the
proceeding shall be allowed as administrative expenses of the
Trust.
Section 11. Appointment of Successor.
If Trustee resigns or is removed in accordance with Section 10(a), (b) or (c) hereof, Company may appoint any third party, such as a bank trust department or other party that may be granted corporate trustee powers under state law, as a successor to replace Trustee upon resignation or removal. The appointment shall be effective when accepted in writing by the new Trustee, who shall have all of the rights and powers of the former Trustee, including ownership rights in the Trust assets. The former Trustee shall execute any instrument necessary or reasonably requested by Company or the successor Trustee to evidence the transfer.
Section 12. Amendment or Termination.
(a) This Trust Agreement may be amended by a written instrument executed by Trustee and Company. Notwithstanding the foregoing, no such amendment shall conflict with the terms of the Plan or shall make the Trust revocable after it has become irrevocable in accordance with Section 1(b) hereof.
(b) The Trust shall not terminate until the date on which Plan participants and their beneficiaries are no longer entitled to benefits pursuant to the terms of the Plan. Upon termination of the Trust any assets remaining in the Trust shall be returned to Company.
(c) If and when the Trust becomes irrevocable as provided herein, any amendment of this Agreement will require the approval of at least 80 percent of the Plan Participants (or their beneficiaries).
Section 13. Payment of Incurred Expenses
So long as the Participant is not acting in bad faith, the Company shall promptly pay as they are incurred by each Plan Participant any Expenses arising from or related to any action, suit, or proceeding filed by a Participant to enforce his or her rights under this Agreement or Plan ("Claim"). "Expenses" shall mean all costs, expenses (including attorney's fees, witness fees and investigative costs) and obligations paid or incurred in connection with or relating to a Claim (including all interest, assessments and other charges paid or payable in connection with or in respect of any of the foregoing).
Section 14. Miscellaneous.
(a) Any provision of this Trust Agreement prohibited by law shall be ineffective to the extent of any such prohibition, without invalidating the remaining provisions hereof.
(b) Benefits payable to Plan participants and their beneficiaries under this Trust Agreement may not be anticipated, assigned (either at law or in equity), alienated, pledged, encumbered or subjected to attachment, garnishment, levy, execution or other legal or equitable process.
(c) This Trust Agreement and the Trust hereby created shall be governed, construed, administered and regulated in all respects in accordance with the laws of Illinois.
(d) For purposes of this Trust, the term "Change of Control" shall
mean (i) the occurrence of a Triggering Event under the Rights
Agreement of July 6, 1995 between Belden, Inc. and the Chase
Mellon Shareholder Services, LLC, (successor to First Chicago
Trust Company of New York), as such Rights Agreement may be
assigned or amended, or (ii) the purchase or other acquisition
by any person, entity or group thereof, within the meaning of
Section 13(d) or 14(d) of the Securities Exchange act of 1934
("Act"), or any comparable successor provisions, of beneficial
ownership (within the meaning of Rule 13d-3 promulgated under
the Act) of 25 percent or more of either outstanding shares of
common stock or the combined voting power of Company's then
outstanding voting securities entitled to vote generally,
(iii) the approval by the stockholders of the Company of a
reorganization, merger, or consolidation, in each case, with
respect to which persons who were stockholders of the Company
immediately prior to such reorganization, merger or
consolidation do not, immediately thereafter, own more than 60
percent of the combined voting power entitled to vote
generally in the election of directors of the reorganized,
merged or
consolidated Company's then outstanding securities, or (iv) a liquidation or dissolution of Company or of the sale of all or substantially all of the Company's assets. The Board of Directors and the Chief Executive Officer of the Company shall have a duty to inform Trustee in writing of any Change of Control. Unless Trustee has actual knowledge of Company's Change of Control, or has received notice from the Company that a Change of Control has occurred, Trustee shall have no duty to inquire whether a Change of Control has occurred.
(e) In the event of any conflict between provisions of the Plan and those of this Trust Agreement, this Trust Agreement shall prevail.
Section 15. Effective Date.
The effective date of this Trust Agreement shall be January 1, 2001.
Attest: BELDEN WIRE & CABLE COMPANY /s/ Eivind J. Kolemainen By /s/ Cathy O. Staples --------------------------- -------------------------------- Its Vice President ------------------------------- Date March 26, 2001 ------------------------------ Attest: CG TRUST COMPANY /s/ By /s/ --------------------------- ---------------------------------- Its ---------------------------------- Date --------------------------------- |
EXHIBIT 10.55
FIRST AMENDMENT TO THE TRUST AGREEMENT
ESTABLISHING THE TRUST
BY AND BETWEEN BELDEN WIRE & CABLE COMPANY
(FOR THE SUPPLEMENTAL EXCESS DEFINED CONTRIBUTION PLAN)
and CG TRUST COMPANY (NOW PRUDENTIAL BANK & TRUST, F.S.B.)
WHEREAS, Belden Wire & Cable Company (hereinafter referred to as the "Company") and CG Trust Company, now Prudential Bank & Trust, F.S.B. (hereinafter referred to as the "Trustee"), established a trust pursuant to a Trust Agreement (hereinafter referred to as the "Trust Agreement") effective January 1, 2001 establishing the Trust by and between Belden Wire & Cable Company (for the Supplemental Excess Defined Contribution Plan) and CG Trust Company, now Prudential Bank & Trust, F.S.B.;
WHEREAS, the trust was established by the Trust Agreement in connection with the Belden Wire & Cable Company Supplemental Excess Defined Contribution Plan (as amended from time to time, the "Plan");
WHEREAS, Section 12 of the Trust Agreement provides for the amending of the Trust Agreement by written instrument executed by the Trustee and the Company; and
WHEREAS, the Company and the Trustee deem it desirable to make certain amendments to the Trust Agreement effective immediately before the Effective Time, as defined in the Agreement and Plan of Merger by and among Cable Design Technologies Corporation, BC Merger Corp. and Belden Inc. dated as of February 4, 2004, as amended;
NOW, THEREFORE, the Trust Agreement is amended effective immediately before the Effective Time as follows:
1. The definition of "Plan" is amended by inserting the words "as amended from time to time," immediately before the words "the 'Plan'" in the parenthetical in the first "WHEREAS" clause.
2. Paragraph (d) of Section 14, which defines "Change of Control", is deleted and replaced with the following:
"For purposes of this Trust, the term 'Change of Control' shall have the meaning assigned by the Plan. For the avoidance of doubt, the consummation of the transactions contemplated by the Agreement and Plan of Merger by and among Cable Design Technologies Corporation, BC Merger Corp. and Belden Inc. dated as of February 4, 2004, as amended, shall not constitute a 'Change of Control' under the Plan. The Board of Directors and the Chief Executive Officer of the Company shall have a duty to inform the Trustee in writing of any Change of Control. Unless Trustee has actual knowledge of a Change of Control, or has received notice from the Company that a Change of Control
has occurred, Trustee shall have no duty to inquire whether a Change of Control has occurred."
3. Capitalized terms used herein, unless otherwise defined herein, have the meaning ascribed to such terms in the Trust Agreement. Except as expressly provided herein all provisions of the Trust Agreement shall remain in full force and effect.
IN WITNESS WHEREOF, Belden Wire & Cable Company and Prudential Bank & Trust, F.S.B., by their respective duly authorized officers, execute this amendment as of the 14th day of July, 2004.
BELDEN WIRE & CABLE COMPANY
By: /s/ Cathy O. Staples -------------------- Its: Vice President, Human Resources ------------------------------- Attest: /s/ Eivind J. Kolemainen ------------------------ Eivind J. Kolemainen |
PRUDENTIAL BANK & TRUST, F.S.B.
By: /s/ ------------------------ Its: ----------------------- |
EXHIBIT 10.59
AMENDMENT TO BELDEN INC. 2003 EMPLOYEE STOCK PURCHASE PLAN
Reference is made to the Agreement and Plan of Merger by and among Cable Design Technologies Corporation, BC Merger Corp. and Belden Inc. dated as of February 4, 2004, as amended (the "Merger Agreement").
The Belden Inc. 2003 Employee Stock Purchase Plan is terminated immediately prior to the Effective Time (as defined in the Merger Agreement).
EXHIBIT 10.60
AMENDMENT TO BELDEN U.K. EMPLOYEE SHARE OWNERSHIP PLAN
Reference is made to the Agreement and Plan of Merger by and among Cable Design Technologies Corporation, BC Merger Corp. and Belden Inc. dated as of February 4, 2004, as amended (the "Merger Agreement").
The Belden U.K. Employee Share Ownership Plan is terminated immediately prior to the Effective Time (as defined in the Merger Agreement).
EXHIBIT 10.61
AMENDMENT TO CERTAIN EQUITY-BASED BENEFIT PLANS
The equity-based benefit plans of Cable Design Technologies Corporation (now
Belden CDT Inc.) (the "Company") include the Amended and Restated 1988 Employee
Stock Purchase and Option Plan (Intercole Holding Corporation), Long Term
Performance Incentive Plan (1993), Supplemental Long-Term Performance Incentive
Plan (1995), Non-Employee Director Plan (1995), Management Stock Award Plan
(1998), 1998 Employee Stock Purchase Plan, 1999 Long-Term Performance Incentive
Plan and 2001 Long-Term Performance Incentive Plan (the preceding named plans
collectively being the "Company Equity Incentive Plans").
Reference is made to the Agreement and Plan of Merger by and among Cable Design Technologies Corporation, BC Merger Corp. and Belden Inc. dated as of February 4, 2004, as amended (the "Merger Agreement"). Pursuant to the Merger Agreement, the Company effected a one-for-two reverse stock split of the common stock, par value $0.01 per share, of the Company ("Old Common Stock"), whereupon each two shares of Old Common Stock existing immediately prior to the effective time of the reverse stock split (the "Reverse Split Effective Time") were automatically reclassified into one share of common stock, par value $0.01 per share, of the Company (the "New Common Stock").
The Company Equity Incentive Plans are amended effective as of the Reverse Split Effective Time as follows:
1. All options to purchase Old Common Stock granted pursuant to any of the Company Equity Incentive Plans outstanding immediately prior to the Reverse Split Effective Time are automatically adjusted such that (a) such options are exercisable for shares of New Common Stock, (b) the number of shares of Old Common Stock for which each such option was exercisable immediately prior to the Reverse Split Effective Time is automatically divided by two, and (c) the exercise price per share of Old Common Stock for which each such option was exercisable immediately prior to the Reverse Split Effective Time is automatically multiplied by two.
2. The number of shares reserved for issuance under each plan for which no shares of Old Common Stock, options to purchase Old Common Stock or other awards have been granted as of the Reverse Split Effective Time is automatically divided by two.
EXHIBIT 10.62
FIRST AMENDMENT TO CREDIT AND
SECURITY AGREEMENT
THIS FIRST AMENDMENT TO CREDIT AND SECURITY AGREEMENT (this "First
Amendment") is dated as of the _____ day of May, 2004 among BELDEN INC. (the
"Parent"), BELDEN TECHNOLOGIES, INC., BELDEN COMMUNICATIONS COMPANY and BELDEN
WIRE & CABLE COMPANY (collectively, the "Borrowers"), WACHOVIA BANK, NATIONAL
ASSOCIATION, as Agent (the "Agent"), and the Lenders party hereto (collectively,
the "Required Lenders"):
WITNESSETH:
WHEREAS, the Borrowers, the Agent, the Required Lenders and the other Lenders party thereto executed and delivered that certain Credit and Security Agreement, dated as of October 9, 2003 (the "Credit Agreement");
WHEREAS, the Borrowers have requested and the Agent and the Required Lenders have agreed to certain amendments to the Credit Agreement relating to the entering into of (i) the Agreement and Plan of Merger, dated as of February 4,2004 by and among Cable Design Technologies Corporation, BC Merger Corp. and the Parent (the "Merger Agreement", with the merger contemplated thereunder being the "Merger") and (ii) the Asset Purchase Agreement dated as of March 18,2004, by and among Superior Essex Communications LLC, Belden Communications Company and Belden (Canada) Inc.(the "Asset Purchase Agreement", with the asset sale contemplated thereunder being the "Communications Sale");
NOW, THEREFORE, for and in consideration of the above premises and other good and valuable consideration, the receipt and sufficiency of which hereby is acknowledged by the parties hereto, the Parent, the Borrowers, the Agent and the Required Lenders hereby covenant and agree as follows:
1. Definitions. Unless otherwise specifically defined above, which definitions will be deemed incorporated into the Credit Agreement, each term used herein which is defined in the Credit Agreement shall have the meaning assigned to such term in the Credit Agreement.
2. Amendment to Section 4.22 (Restrictions). Section 4.22 of the Credit Agreement is hereby amended by (i) adding to the end of the first sentence thereof the words ", except for the Asset Purchase Agreement and the Merger Agreement", and (ii) adding after the words "on SCHEDULE 4.22," in the second sentence thereof the words "and except for the Merger Agreement,".
3. Amendment to Section 4.24 (Business Conduct). Section 4.24 of the Credit Agreement is hereby amended by (i) adding to the beginning thereof the words "Except for the execution, delivery and performance of the Asset Purchase Agreement", and (ii) adding after the words "each Borrower's knowledge," in the sixth line thereof the words "except with respect to Belden Communications Company in connection with the Communications Sale,".
4. Amendment to Section 5.37 (Other Restrictive Agreements). Section 5.37 of the Credit Agreement is hereby amended by adding after the words "under SECTION 5.17," in the second line thereof the words "and except for the Asset Purchase Agreement and the Merger Agreement,".
5. Effect of First Amendment. Except as set forth expressly hereinabove, all terms of the Credit Agreement and the other Credit Documents shall be and remain in full force and effect, and shall constitute the legal, valid, binding and enforceable obligations of the Borrowers and the Guarantors, as applicable. Nothing contained in this First Amendment constitutes the Agent's or any of the Required Lenders' approval of or consent to the completion of the Merger or the Communications Sale.
6. Counterparts. This First Amendment may be executed in any number of counterparts and by different parties hereto in separate counterparts and transmitted by facsimile to the other parties, each of which when so executed and delivered by facsimile shall be deemed to be an original and all of which counterparts, taken together, shall constitute but one and the same instrument.
7. Section References. Section titles and references used in this First Amendment shall be without substantive meaning or content of any kind whatsoever and are not a part of the agreements among the parties hereto evidenced hereby.
8. No Default. To induce the Agent and the Required Lenders to enter into this First Amendment and to continue to make advances pursuant to the Credit Agreement, the Borrowers hereby acknowledge and agree that, as of the date hereof, after giving effect to this First Amendment, there exists no Default or Event of Default.
9. No Novation or Mutual Departure. The Borrowers expressly acknowledge and agree that there has not been, and this First Amendment does not constitute or establish, a novation with respect to the Credit Agreement or any of the Credit Documents, or a mutual departure from the strict terms, provisions and conditions thereof, other than the amendments set forth hereinabove.
10. Conditions Precedent. This First Amendment shall become effective only upon execution and delivery by facsimile to counsel for the Agent, Tracy S. Plott, Jones Day, facsimile no. 404-581-8330, of (i) a signature page to this First Amendment by the Borrowers, the Agent and the Required Lenders, and (ii) a signature page of the Consent and Reaffirmation of Guarantors at the end hereof by the Guarantors.
11. Further Assurances. The Borrowers agree to take such further actions as the Agent shall reasonably request in connection herewith to evidence the amendments herein contained.
12. Governing Law. This First Amendment shall be governed by and construed and interpreted in accordance with, the laws of the State of New York.
IN WITNESS WHEREOF, the Borrowers, the Agent and each of the Required Lenders has caused this First Amendment to be duly executed, under seal, by its duly authorized officer as of the day and year first above written.
BELDEN INC.
By: /s/ RICHARD K. REECE ----------------------------------------------------------- Title: Vice President Finance, and Chief Financial Officer |
BELDEN TECHNOLOGIES, INC.
By: /s/ RICHARD K. REECE ----------------------------------------------------------- Title: Vice President |
BELDEN COMMUNICATIONS COMPANY
By: /s/ RICHARD K. REECE ----------------------------------------------------------- Title: Vice President |
BELDEN WIRE & CABLE COMPANY
By: /s/ RICHARD K. REECE ----------------------------------------------------------- Title: Vice President |
WACHOVIA BANK, NATIONAL ASSOCIATION,
as Agent and as a Lender
BY: /s/ --------------------------------- Title: Director |
U.S. BANK NATIONAL ASSOCIATION,
as Syndication Agent and as a Lender
By: /s/ CAROLYN M. ROONEY ----------------------------------- Title: |
COMERICA BANK,
as a Lender
By: /s/ ------------------------------------ Title: Commercial Banking Officer |
THE NORTHERN TRUST COMPANY,
as a Lender
By: /s/ FREDRIC W. MCCLENDON -------------------------------------- Title: Vice President |
CONSENT AND REAFFIRMATION AFFIRMATION OF GUARANTORS
Each of the undersigned (i) acknowledges receipt of the foregoing First Amendment, (ii) consents to the execution and delivery of the First Amendment by the parties thereto and (iii) reaffirms all of its obligations and covenants under the Guaranty dated as of October 9,2003 executed by it, and agrees that none of such obligations and covenants shall be affected by the execution and delivery of the First Amendment. This First Amendment may be executed in any number of counterparts and by different parties hereto in separate counterparts and transmitted by facsimile to the other parties, each of which when so executed and delivered by facsimile shall be deemed to be an original and all of which counterparts, taken together, shall constitute but one and the same instrument.
BELDEN HOLDINGS, INC.
By: /s/ RICHARD K. REECE ------------------------------ Title: Vice President |
BELDEN INTERNATIONAL. INC.
By: /s/ RICHARD K. REECE ------------------------------ Title: Vice President |
EXHIBIT 10.63
CONSENT UNDER AND SECOND AMENDMENT TO CREDIT AND
SECURITY AGREEMENT
THIS CONSENT UNDER AND SECOND AMENDMENT TO CREDIT AND SECURITY AGREEMENT (this "Consent and Second Amendment") is dated as of the 26th day of May, 2004 among BELDEN INC. (the "Parent"), BELDEN TECHNOLOGIES, INC., BELDEN COMMUNICATIONS COMPANY and BELDEN WIRE & CABLE COMPANY (collectively with the Parent, the "Borrowers"), WACHOVIA BANK, NATIONAL ASSOCIATION, as Agent (the "Agent"), and the Lenders party hereto (collectively, the "Lenders");
WITNESSETH:
WHEREAS, the Borrowers, the Agent and the Lenders executed and delivered that certain Credit and Security Agreement, dated as of October 9, 2003 (as amended by that certain First Amendment to Credit and Security Agreement dated May 10, 2004, the "Credit Agreement");
WHEREAS, the Borrowers have requested that the Agent and the Lenders consent to the merger of the Parent with a subsidiary of Cable Design Technologies Corporation ("CDT"), pursuant to the terms and conditions of the Agreement and Plan of Merger dated as of February 4, 2004 by and among CDT, BC Merger Corp. and the Parent, attached as Appendix 1 hereto (the "Merger Agreement", with the merger contemplated thereunder being the "Merger");
WHEREAS, the Borrowers have requested that the Agent and the Lenders consent to the sale of certain assets of the Parent's North American communications wire and cable business to Superior Essex Communications LLC ("Superior"), pursuant to the terms and conditions of the Asset Purchase Agreement dated as of March 18, 2004 by and among Superior, Belden Communications Company and Belden (Canada) Inc., attached as Appendix 2 hereto (the "Asset Purchase Agreement", with the asset sale contemplated thereunder being the "Communications Sale"); and
WHEREAS, the Merger, the Communications Sale, the Merger Agreement and the Asset Purchase Agreement require certain consents and amendments to provisions of the Credit Agreement, and the Agent and the Lenders have agreed to grant such consent and provide for such amendments, subject to the terms and conditions hereof;
NOW, THEREFORE, for and in consideration of the above premises and other good and valuable consideration, the receipt and sufficiency of which hereby is acknowledged by the parties hereto, the Borrowers, the Agent and the Lenders hereby covenant and agree as follows:
1. Definitions. Unless otherwise specifically defined (or whose definition is amended) above or below, which definitions will be deemed incorporated into the Credit
Agreement, each capitalized term used herein which is defined in the Credit Agreement shall have the meaning assigned to such term in the Credit Agreement.
2. Consent. Effective upon satisfaction of the conditions to effectiveness
set forth in paragraph 20 hereof, the Agent and the Lenders approve and
consent to the terms of each of the Merger and the Communications Sale
and the execution, delivery and performance of the Merger Agreement and
the Asset Purchase Agreement by the Borrowers that are parties thereto,
and the Agent and the Lenders further acknowledge that the foregoing
(i) does not breach Section 5.05 (Consolidations and Mergers) or
Section 5.31 (Dispositions of Collateral) of the Credit Agreement, and
(ii) does not constitute a "Material Adverse Effect" as defined in the
Credit Agreement.
3. Release of Liens. Effective simultaneously with the Communications
Sale, the Agent and the Lenders release and discharge any and all Liens
and security interests arising under Article 3 (Collateral) of the
Credit Agreement, and any and all Liens and security interests
otherwise granted to the Agent or the Lenders as security for any
Obligations, with respect to the personal property and other assets of
Belden Communications Company, including without limitation with
respect to the assets of Belden Communications Company described in the
first paragraph of Section 3.01 of the Credit Agreement and the
categories of assets of Belden Communications Company listed in Section
3.O 1(a)-(p) of the Credit Agreement. The Agent shall execute, deliver
and record, at or prior to the closing of the Communications Sale, all
documents and instruments necessary to evidence or carry out such
release, including without limitation UCC-3 termination statements.
4. Amendment to Certain Definitions. Effective simultaneously with the Communications Sale, notwithstanding anything in the Credit Agreement to the contrary, (i) the definition of "Collateral" in the Credit Agreement, and all the defined terms in the Credit Agreement that comprise part of the Collateral (including without limitation "Accounts", "General Intangibles", "Inventory", "Equipment", "Goods", "Investment Property", "Intellectual Property", "Patents", "Trademarks" and "Copyrights"), shall no longer include any personal property or other asset of Belden Communications Company of any nature, (ii) the definition of "Collateral Location" in the Credit Agreement shall no longer include any location of Belden Communications Company, and (iii) Belden Communications Company will be considered a "Guarantor" but not a "Borrower" under the Credit Agreement, in connection with which Belden Communications Company will sign a Guaranty substantially in the form of EXHIBIT S to the Credit Agreement.
5. Amendment to Section 2.15 (Lockbox: Collateral Reserve Accounts:
Control Agreements). Effective simultaneously with the Communications
Sale but subject to paragraph 9 below, the first sentence of Section
2.15(a)(ii) of the Credit Agreement is amended and restated in its
entirety as follows:
"(ii) If at any time the sum of (x) Excess Borrowing Availability and (y) Unrestricted Cash Balances is less than $25,000,000, the provisions of this clause (ii) shall become applicable and shall be maintained thereafter, regardless of subsequent changes in the sum of (x) Excess Borrowing Availability and (y) Unrestricted Cash Balances above $25,000,000."
Effective simultaneously with the Communications Sale but subject to paragraph 9 below, the second sentence of Section 2.15(a)(ii) of the Credit Agreement is amended by replacing the words "Promptly upon Excess Borrowing Availability becoming less than $25,000,000," at the beginning thereof with the words "Promptly upon the sum of (x) Excess Borrowing Availability and (y) Unrestricted Cash Balances becoming less than $25,000,000,".
6. Amendment to Section 4.10 (Ownership of Property; Liens). Effective simultaneously with the Communications Sale, Section 4.10 of the Credit Agreement is amended by adding to the beginning thereof the words "Except for Belden Communications Company,".
7. Amendment to Section 5.10 (Maintenance of Property). Effective simultaneously with the Communications Sale, Section 5.10 of the Credit Agreement is amended by adding to the beginning thereof the words "Except for Belden Communications Company,".
8. Amendment to Section 5.19 (Financial Covenants). Effective simultaneously with the Communications Sale but subject to paragraph 9 below, the first paragraph of Section 5.19 of the Credit Agreement is amended and restated in its entirety as follows:
"SECTION 5.19 Financial Covenants. The financial covenants set
forth in this SECTION 5.19 shall be determined on a
consolidated basis and tested monthly, commencing the first
full Fiscal Month following the Closing Date, and shall be in
effect and applicable at all times, except that the covenant
set forth in subsection (a) of this SECTION 5.19 shall not be
in effect or applicable during any period in which the sum of
(x) Excess Borrowing Availability and (y) Unrestricted Cash
Balances is, or after giving effect to the making of a Loan or
the issuance of any Letter of Credit would be, greater than or
equal to $25,000,000, or on or after the Appraisal Approval
Date, $30,000,000."
9. Certain Amendments No Longer Effective. If the Agent, the Lenders and the Borrowers shall not have executed an amendment to the Credit Agreement substantially according to the terms and conditions set forth on Appendix 3 hereto, together with any modifications thereto or other provisions that are agreed to by such parties in writing (the "Third Amendment"), within forty-five (45) days of the consummation of the Merger, with the parties agreeing in good faith to negotiate such Third Amendment, then the amendments to Sections 2.15(a)(ii) and 5.19 of the Credit Agreement contained in paragraphs 5 and 8 above shall be rescinded and the language contained in each such Sections of the Credit Agreement shall be as originally executed.
10. Amendment to Section 6.01 (Events of Default). Section 6.01(k) of the
Credit Agreement is hereby amended by adding immediately before clause
(i) thereof the words "except for the transactions contemplated by the
Merger Agreement," and by adding to the beginning of Section 6.01(m) of
the Credit Agreement the words "except for the transactions
contemplated by the Asset Purchase Agreement".
11. Amendment to Definition of "Special Foreign Guarantees". The definition of "Special Foreign Guarantees" in the Credit Agreement is hereby amended and restated in its entirety as follows:
"'Special Foreign Guarantees' shall mean Guarantees issued by Wachovia or an Affiliate thereof for the benefit of Foreign Subsidiaries of the Borrowers and Guarantors to cover (i) customs, excise and similar taxes in the United Kingdom, (ii) overdraft protection in connection with certain Canadian Deposit Accounts and (iii) other business purposes requested by the Borrowers and Guarantors for the benefit of Foreign Subsidiaries."
12. Representations and Warranties. The Borrowers hereby restate and renew each and every representation and warranty heretofore made by them in Article 4 of the Credit Agreement (as amended by this Consent and Second Amendment), as fully as if made on the date hereof (except where reference is made to a specific date). Each of the Borrowers represents and warrants to the Agent and the Lenders that the Merger and the documentation related thereto have not and will not trigger any acceleration, default, mandatory redemption, or put rights under the Senior Notes, the Senior Note Purchase Agreements, the CDT Debentures (other than, with respect to such debentures, the conversion of such debentures to equity), or, in any material respect, any of the other existing indebtedness of the Borrowers or the Guarantors or any of the other existing indebtedness of CDT in a manner that would be reasonably likely to result in a Material Adverse Effect, or result in the imposition of any Lien on any of their respective assets (or the assets of any of their respective subsidiaries) except in favor of the Agent and the Lenders. "CDT Debentures" shall mean the 4.00% Convertible Subordinated Debentures due July 15, 2023 of Cable Design Technologies Corporation.
13. Effect of Consent and Second Amendment. Except as set forth expressly
hereinabove, all terms of the Credit Agreement and the other Credit
Documents shall be and remain in full force and effect, and shall
constitute the legal, valid, binding and enforceable obligations of the
Borrowers and the Guarantors, as applicable. The consent set forth in
Section 2 hereof shall relate only to the Merger and the Communications
Sale and to the execution, delivery and performance of the Merger
Agreement and the Asset Purchase Agreement. Subject to the terms and
provisions of this Consent and Second Amendment, the consent hereby
granted by the Agent and the Lenders shall not (i) apply to any other
past, present or future noncompliance with any provision of the Credit
Agreement or any of the other Credit Documents, (ii) impair or
otherwise adversely affect the Agent's or the Lenders' right at any
time to exercise any right or remedy in connection with the Credit
Agreement or any of the other Credit Documents, or (iii) amend, modify
or otherwise alter any other provision of the Credit Agreement or any
of the other Credit Documents, or constitute any course of dealing or
other basis for amending, modifying or otherwise altering any other
obligations of the Borrowers or any other Person under the Credit
Agreement or any of the other Credit Documents.
14. Counterparts. This Consent and Second Amendment may be executed in any number of counterparts and by different parties hereto in separate counterparts and transmitted by facsimile to the other parties, each of which when so executed and delivered by facsimile
shall be deemed to be an original and all of which counterparts, taken together, shall constitute but one and the same instrument.
15. Section References. Section titles and references used in this Consent and Second Amendment shall be without substantive meaning or content of any kind whatsoever and are not a part of the agreements among the parties hereto evidenced hereby.
16. No Default. To induce the Agent and the Lenders to enter into this Consent and Second Amendment and to continue to make advances pursuant to the Credit Agreement, the Borrowers hereby acknowledge and agree that, as of the date hereof, there exists (i) no Default or Event of Default and (ii) no right of offset, defense, counterclaim, claim or objection in favor of the Borrowers arising out of or with respect to any of the Loans or other obligations of the Borrowers owed to the Agent or the Lenders under the Credit Agreement or the obligations of the Guarantors under the Guaranty.
17. No Novation or Mutual Departure. The Borrowers expressly acknowledge and agree that there has not been, and this Consent and Second Amendment does not constitute or establish, a novation with respect to the Credit Agreement or any of the Credit Documents, or a mutual departure from the strict terms, provisions and conditions thereof, other than the consent and amendments set forth hereinabove.
18. Further Assurances. The Borrowers agree to take such further actions as the Agent shall reasonably request in connection herewith to evidence the consent and amendments herein contained.
19. Governing Law. This Consent and Second Amendment shall be governed by and construed and interpreted in accordance with the laws of the State of New York.
20. Conditions Precedent. This Consent and Second Amendment shall become effective only upon (a) payment to the Agent, for the ratable benefit of all Lenders, in immediately available funds a fully-earned and nonrefundable amendment fee in an amount equal to .15% of the Aggregate Commitments, which the Lenders agree is the fee payable with respect to (collectively) the First Amendment to Credit and Security Agreement dated as of May 10, 2004, this Consent and Second Amendment and the Third Amendment to be executed, (b) the receipt by the Agent of a Borrowing Base Certificate as of the end of the Borrowers' accounting month of April reflecting (on a pro forma basis) the completion of the Communications Sale (even though such completion is not anticipated to occur until after such time) and indicating that Working Capital Obligations do not exceed the aggregate amount of the Borrowing Base, and (c) execution and delivery by facsimile to counsel for the Agent, Tracy S. Plott, Jones Day, facsimile no. 404-581-8330, of (i) a signature page to this Consent and Second Amendment by the Borrowers, the Agent and the Lenders, and (ii} a signature page of the Consent and Reaffirmation of Guarantors at the end hereof by the Guarantors.
IN WITNESS WHEREOF, the Borrowers, the Agent and each of the Lenders has caused this Consent and Second Amendment to be duly executed, under seal, by its duly authorized officer as of the day and year first above written.
BELDEN INC.
By: /s/ RICHARD K. REECE ---------------------------------------- Title: Vice President, Finance and CFO |
BELDEN TECHNOLOGIES, INC.
By: /s/ RICHARD K. REECE ---------------------------------------- Title: Vice President |
BELDEN COMMUNICATIONS COMPANY
By: /s/ RICHARD K. REECE ---------------------------------------- Title: Vice President |
BELDEN WIRE & CABLE COMPANY
By: /s/ RICHARD K. REECE ---------------------------------------- Title: Vice President |
WACHOVIA BANK, NATIONAL ASSOCIATION,
as Agent and as a Lender
By: /s/ ---------------------------------------- Title: Director |
U.S. BANK NATIONAL ASSOCIATION,
as Syndication Agent and as a Lender
BY: /s/ CAROLYN M. ROONEY --------------------------------- Title: Vice President |
COMERICA BANK,
as a Lender
By: /s/ --------------------------- Title: CBO |
THE NORTHERN TRUST COMPANY,
as a Lender
By: /s/ FREDERIC W. MCCLENDON --------------------------- Title: Vice President |
ING BANK N.V,
as a Lender
By: /s/ MR. L. F. L. M. OP DE COUL ------------------------------------------------------ Title: Lead Cashmanagement By: /s/ MR. P. A. Y. VAN VUCCREN ------------------------------------------------------ Title: Director Department Companies and Institutions |
FIFTH THIRD BANK, INDIANA,
as a Lender
By: /s/ ---------------------------- Title: |
CONSENT AND REAFFIRMATION OF GUARANTORS
Each of the undersigned (i) acknowledges receipt of the foregoing Consent and Second Amendment, (ii) consents to the execution and delivery of the Consent and Second Amendment by the parties thereto add (iii) reaffirms all of its obligations and covenants under the Guaranty dated as of October 9,2003 executed by it, and agrees that none of such obIigations and cavenants shall be affected by the execution and delivery of the Consent and Second Amendment. This Consent and Reaffirmation may be executed in any number of counterparts and by different parties hereto in separate counterparts and transmitted by facsimile to the other parties, each of which when so executed and delivered by facsimile shall be deemed to be an original and all of which counterparts, taken together, shall constitute but one and the same instrument.
BELDEN HOLDINGS, INC.
By: /s/ RICHARD K. REECE ---------------------------- Title: Vice President |
BELDEN INTERNATIONAL, INC.
By: /s/ RICHARD K. REECE ---------------------------- Title: Vice President |
APPENDIX 1
[AGREEMENT AND PLAN OF MERGER TO BE ATTACHED]
APPENDIX 2
[ASSET PURCHASE AGREEMENT TO BE ATTACHED]
APPENDIX 3
THIRD AMENDMENT TERMS AND CONDITIONS
1. The following definitions will be revised or added:
a. "Parent" will be revised to mean Belden CDT Inc., and its successors and permitted assigns.
b. "Borrowers" will be revised to mean, individually and collectively, as the context requires, each of the following Persons, each of them being jointly and severally obligated as Borrowers under the Credit Agreement: (a) Belden CDT Inc., Belden Inc., Belden Technologies, Inc., Belden Wire & Cable Company and Cable Design Technologies Inc.; and (b) in the case of each Borrower, its successors and its permitted assigns.
c. "Consolidated Fixed Charges" and "Fixed Charge Coverage Ratio" will be revised to indicate that the calculations involved during the 12 Fiscal Month period after the Merger shall be determined, for any date of calculation during such period, using the first Fiscal Month after the Merger through and including the Fiscal Month prior to the date of calculation; at the end of the 12 Fiscal Month period after the Merger, such calculations shall be as provided in the existing Credit Agreement.
d. A new definition of "CDT Group" will be inserted which will include the Parent (i.e. Belden CDT Inc.) and all of the U.S. subsidiaries of the Parent other than Belden Inc. and its U.S. subsidiaries.
e. A new definition of the "CDT Debentures" will be inserted.
2. Each member of the CDT Group, other than the Parent and Cable Design Technologies Inc. (which will Borrowers), will execute and deliver a Subsidiary Guaranty and Joinder Agreement in the form of Exhibit T, thereby becoming "Guarantors" under the Credit Agreement.
3. The following sections of the Credit Agreement will be revised as noted:
a. Section 5.16 Restricted Payments and Investments and Acquisitions will be revised so that the dividend restriction will be increased to $12,000,000 annually.
b. Section 5.20 Permitted Debt - The CDT Debentures will be added as permitted debt.
c. Section 5.29 Appraisals; Field Examinations. Field examinations in accordance with Section 5.29 of the Credit Agreement will be required on an annual basis.
However, the frequency of such examinations in the future shall be modified in the Agent's commercially reasonable judgment.
4. Notwithstanding anything in the Credit Agreement to the contrary, for purposes of Article 4, Article 5 and Section 6.01 of the Credit Agreement only, the definition of "Collateral" in the Credit Agreement, and all defined terms in the Credit Agreement that comprise part of the Collateral (including without limitation "Accounts", "General Intangibles", "Inventory", "Equipment", "Goods", "Investment Property", "Intellectual Property", "Patents", "Trademarks" and "Copyrights"), shall not include any personal property or other asset of any nature of any CDT Group entity; and the definition of "Collateral Location" in the Credit Agreement shall not include any location of any CDT Group entity. Further, the covenant in Section 5.17 (Permitted Liens) of the Credit Agreement shall additionally exclude any Lien on any assets of any CDT Group entity existing at the time of the Merger and not created in contemplation of the Merger. However, no personal property or other asset of any CDT Group entity will be included in the Borrowing Base except as provided in paragraph 5 below.
5. After the signing of the Third Amendment, the Borrowers may elect to include personal property and other assets of specified CDT Group entities (or specified operating divisions of such entities) into the Borrowing Base in accordance with the terms of the Credit Agreement, in which event (i) such personal property and other assets will become subject to the provisions of the Credit Agreement from which they had been excluded under the first sentence of paragraph 4 above, (ii) supplemental disclosures under Articles 4 and 5 of the Credit Agreement (whether or not the wording thereof permits such supplemental disclosures) will be mutually negotiated in good faith by the parties, and (iii) subject to the Credit Agreement, such personal property and other assets will be subject to the reasonably satisfactory completion of necessary field exams and any other investigations deemed necessary in the Agent's reasonable credit judgment.
6. With respect to the CDT Group and as necessary or appropriate due to including the CDT Group in the Credit Agreement as provided by paragraphs 1 and 2 above: (i) supplemental disclosures under Articles 4 and 5 of the Credit Agreement (whether or not the wording thereof permits such supplemental disclosures) will be mutually negotiated in good faith by the parties, and (ii) other appropriate changes to the terms and conditions of Article 1, Article 4, Article 5 and Section 6.01 of the Credit Agreement will be mutually negotiated in good faith by the parties.
Exhibit 31.1
CERTIFICATE PURSUANT TO
CERTIFICATION OF PRINCIPAL EXECUTIVE OFFICER
I, C. Baker Cunningham, certify that:
November 15, 2004
SECTION 302 OF THE SARBANES-OXLEY ACT OF 2002
1.
I have reviewed this quarterly report on Form 10-Q of Belden CDT
Inc.;
2.
Based on my knowledge, this report does not contain any untrue
statement of a material fact or omit to state a material fact necessary
to make the statements made, in light of circumstances under which the
statements were made, not misleading with respect to the period covered
by this report;
3.
Based on my knowledge, the financial statements, and other financial
information included in this report, fairly present in all material
respects the financial condition, results of operations and cash flows
of the registrant as of, and for, the periods presented in this report.
4.
The registrants other certifying officer and I are responsible for
establishing and maintaining disclosure controls and procedures (as
defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) for the
registrant and we have:
a)
designed such disclosure controls and procedures, or
caused such disclosure controls and procedures to be designed
under our supervision, to ensure that material information
relating to the registrant, including its consolidated
subsidiaries, is made known to us by others within those entities,
particularly during the period in which this report is being
prepared;
b)
evaluated the effectiveness of the registrants
disclosure controls and procedures and presented in this report
our conclusions about the effectiveness of the disclosure controls
and procedures, as of the end of the period covered by this
report, based on such evaluation; and
c)
disclosed in this report any change in the registrants
internal control over financial reporting (as defined in Exchange
Act Rules 13a-15(f) and 15d-15(f)) that occurred during the
registrants most recent fiscal quarter (the registrants fourth
fiscal quarter in the case of an annual report) that has
materially affected, or is reasonably likely to materially affect,
the registrants internal control over financial reporting.
5.
The registrants other certifying officer and I have disclosed, based
on our most recent evaluation of internal control over financial
reporting, to the registrants auditors and the audit committee of the
registrants board of directors (or personal performing the equivalent
functions):
a)
all significant deficiencies and material weaknesses in
the design or operation of internal control over financial
reporting which are reasonably likely to adversely affect the
registrants ability to record, process, summarize and report
financial information; and
b)
any fraud, whether or not material, that involves
management or other employees who have a significant role in the
registrants internal control over financial reporting.
/s/ C. Baker Cunningham
C. Baker Cunningham
President and Chief Executive Officer
Exhibit 31.2
CERTIFICATE PURSUANT TO
CERTIFICATION OF PRINCIPAL FINANCIAL OFFICER
I, Richard K. Reece, certify that:
November 15, 2004
SECTION 302 OF THE SARBANES-OXLEY ACT OF 2002
1.
I have reviewed this quarterly report on Form 10-Q of Belden CDT
Inc.;
2.
Based on my knowledge, this report does not contain any untrue
statement of a material fact or omit to state a material fact necessary
to make the statements made, in light of circumstances under which the
statements were made, not misleading with respect to the period covered
by this report;
3.
Based on my knowledge, the financial statements, and other financial
information included in this report, fairly present in all material
respects the financial condition, results of operations and cash flows
of the registrant as of, and for, the periods presented in this report.
4.
The registrants other certifying officer and I are responsible for
establishing and maintaining disclosure controls and procedures (as
defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) for the
registrant and we have:
a)
designed such disclosure controls and procedures, or
caused such disclosure controls and procedures to be designed
under our supervision, to ensure that material information
relating to the registrant, including its consolidated
subsidiaries, is made known to us by others within those entities,
particularly during the period in which this report is being
prepared;
b)
evaluated the effectiveness of the registrants
disclosure controls and procedures and presented in this report
our conclusions about the effectiveness of the disclosure controls
and procedures, as of the end of the period covered by this
report, based on such evaluation; and
c)
disclosed in this report any change in the registrants
internal control over financial reporting (as defined in Exchange
Act Rules 13a-15(f) and 15d-15(f)) that occurred during the
registrants most recent fiscal quarter (the registrants fourth
fiscal quarter in the case of an annual report) that has
materially affected, or is reasonably likely to materially affect,
the registrants internal control over financial reporting.
5.
The registrants other certifying officer and I have disclosed, based
on our most recent evaluation of internal control over financial
reporting, to the registrants auditors and the audit committee of the
registrants board of directors (or personal performing the equivalent
functions):
a)
all significant deficiencies and material weaknesses in
the design or operation of internal control over financial
reporting which are reasonably likely to adversely affect the
registrants ability to record, process, summarize and report
financial information; and
b)
any fraud, whether or not material, that involves
management or other employees who have a significant role in the
registrants internal control over financial reporting.
/s/ Richard K. Reece
Richard K. Reece
Vice President, Finance and Chief Financial Officer
Exhibit 32.1
CERTIFICATE PURSUANT TO
In connection with the Quarterly Report of Belden CDT Inc. (the Company) on
Form 10-Q for the period ended September 30, 2004 as filed with the Securities
and Exchange Commission on the date hereof (the Report), I, C. Baker
Cunningham, President and Chief Executive Officer of the Company, certify,
pursuant to 18 U.S.C. § 1350, as adopted pursuant to § 906 of the
Sarbanes-Oxley Act of 2002, that:
/s/ C. Baker Cunningham
C. Baker Cunningham
18 U.S.C. SECTION 1350,
AS ADOPTED PURSUANT TO
SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002
(1)
The Report fully complies with the requirements of section 13(a) or 15(d)
of the Securities Exchange Act of 1934; and
(2)
The information contained in the Report fairly presents, in all material
respects, the financial condition and results of operations of the
Company.
President and Chief Executive Officer
November 15, 2004
Exhibit 32.2
CERTIFICATE PURSUANT TO
In connection with the Quarterly Report of Belden CDT Inc. (the Company) on
Form 10-Q for the period ended September 30, 2004 as filed with the Securities
and Exchange Commission on the date hereof (the Report), I, Richard K. Reece,
Vice President, Finance and Chief Financial Officer of the Company, certify,
pursuant to 18 U.S.C. § 1350, as adopted pursuant to § 906 of the
Sarbanes-Oxley Act of 2002, that:
/s/ Richard K. Reece
Richard K. Reece
18 U.S.C. SECTION 1350,
AS ADOPTED PURSUANT TO
SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002
(1)
The Report fully complies with the requirements of section 13(a) or 15(d)
of the Securities Exchange Act of 1934; and
(2)
The information contained in the Report fairly presents, in all material
respects, the financial condition and results of operations of the
Company.
Vice President, Finance and
Chief Financial Officer
November 15, 2004