exv10w39



 





EXHIBIT 10.39




FORM OF INDEMNIFICATION AGREEMENT




          AGREEMENT,
effective as of ___, between Belden CDT Inc., a Delaware
corporation (the “Company”), and ___ (the “Indemnitee”).




          WHEREAS, it is essential to the Company to retain and attract as directors and officers the
most capable persons available;




          WHEREAS, Indemnitee is a director or officer of the Company;




          WHEREAS, both the Company and Indemnitee recognize the increased risk of litigation and other
claims being asserted against directors and officers of public companies in today’s environment;




          WHEREAS, the Amended and Restated Bylaws of the Company require the Company to indemnify and
advance expenses to its directors and officers to the full extent permitted by law and the
Indemnitee has been serving and continues to serve as a director or officer of the Company in part
in reliance on such Bylaws;




          WHEREAS, the Amended and Restated Bylaws of the Company and the Delaware General Corporation
Law each provide that the indemnification provided herein shall not be exclusive;




          WHEREAS, in recognition of Indemnitee’s need for substantial protection against personal
liability in order to enhance Indemnitee’s continued service to the Company in an effective manner,
the Company wishes to provide in this Agreement for the indemnification of and the advancing of
expenses to Indemnitee to the fullest extent (whether partial or complete) permitted by law and as
set forth in this Agreement, and, to the extent insurance is maintained, for the continued coverage
of Indemnitee under the Company’s directors’ and officers’ liability insurance policies;




          NOW, THEREFORE, in consideration of the premises and of Indemnitee continuing to serve the
Company directly or, at its request, another enterprise, and intending to be legally bound hereby,
the parties hereto agree as follows:





	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




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	 	 	 	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




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	 	 	 	shall not have determined (in a written opinion, in any case in which the
Independent Legal Counsel referred to in Section 3 hereof is involved) that
Indemnitee would not be permitted to be indemnified under applicable law, and (ii)
the obligation of the Company to make an Expense Advance pursuant to Section 2(a)
shall be subject to the condition that, if, when and to the extent that the
Reviewing Party 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




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	 	 	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




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	 	 	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




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	 	 	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.




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	 	 	[For Messrs. Bloomfield, Rose, Johnson, Byrnes, Monter, Bain, Rethore and Ms. Staples, the
following paragraph is incorporated:]
	 
	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 ___ day
___ 20___.




	 	 	 	 	 
	 

	 	By	 	 
	 

	 	 	 	 
	 

	 	 	 	Name:
	 

	 	 	 	Title:
	 
	 

	 	 	 	 
	 

	 	 	 	(Indemnitee)







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