EXHIBIT 10.1
INDEMNIFICATION AGREEMENT
-------------------------
INDEMNIFICATION AGREEMENT, dated as of __________, 200_, by and among
CommScope, Inc., a Delaware corporation (the "Company"), CommScope, Inc. of
North Carolina, a North Carolina corporation and a wholly-owned subsidiary
of the Company (the "Subsidiary"), and the director and/or officer of the
Company and/or the Subsidiary whose name appears on the signature page of
this Agreement ("Indemnitee").
RECITALS
--------
A. Highly competent persons are becoming more reluctant to serve
publicly-held corporations as directors or officers or in other capacities
unless they are provided with reasonable protection through insurance or
indemnification against risks of claims and actions against them arising
out of their service to and activities on behalf of the corporations.
B. The Board of Directors of the Company (the "Board") has determined
that the Company should act to assure its directors and officers, and those
of the Subsidiary, that there will be increased certainty of such
protection in the future.
C. It is reasonable, prudent and necessary for the Company
contractually to obligate itself to indemnify such persons to the fullest
extent permitted by applicable law so that they will serve or continue to
serve the Company and the Subsidiary free from undue concern that they will
not be so indemnified.
D. Indemnitee is willing to serve, to continue to serve and to take on
additional service for or on behalf of the Company and/or the Subsidiary on
the condition the Indemnitee be so indemnified.
E. In consideration of the benefits received and to be received by the
Subsidiary in connection with actions taken and to be taken by the Board
and by the officers of the Company, the Subsidiary has determined that it
is in the best interest of the Subsidiary for the reasons set forth above
to be a party to this Agreement and to provide indemnification to the
directors and officers of the Company and the Subsidiary in connection with
their service to and activities on behalf of the Company, the Subsidiary
and their respective subsidiaries.
F. The Subsidiary acknowledges that for purposes of this Agreement the
directors and officers of the Company who enter into this Agreement are
serving in such capacities at the request of the Subsidiary.
G. The Subsidiary further acknowledges that such directors and
officers are willing to serve, to continue to serve and to take on
additional service for or on behalf of the Company, thereby benefiting the
Subsidiary and its subsidiaries, on the condition that the Subsidiary enter
into, and provide indemnification pursuant to, this Agreement.
In consideration of the premises and the covenants contained herein,
the Company, the Subsidiary and the Indemnitee do hereby covenant and agree
as follows:
1. Definitions.
-----------
(a) For purposes of this Agreement:
(i) "Affiliate" shall mean any corporation, partnership,
joint venture, trust or other enterprise in respect of which
Indemnitee is or was or will be serving as a director or officer
directly or indirectly at the request of the Company or the
Subsidiary, and including, but not limited to, service with
respect to an employee benefit plan.
(ii) "Applicable Corporate Law" shall mean the laws of the
state whose corporate laws govern any particular request for
indemnification. With respect to any claim for indemnification
arising as a result of service as an officer or director of the
Company, the Applicable Corporate Law shall be the laws of the
State of Delaware. With respect to any claim for indemnification
arising as a result of service as an officer or director of the
Subsidiary, the Applicable Corporate Law shall be the laws of the
State of North Carolina. In any case in which it is uncertain
which state law is the Applicable Corporate Law, the laws of the
state which provides the greatest rights to the Indemnitee shall
govern.
(iii) "Disinterested Director" shall mean a director of the
Company who is not a party to a Proceeding, as defined below, in
respect of which indemnification is being sought by the
Indemnitee.
(iv) "Expenses" shall include, without limitation, all
reasonable attorneys' fees and costs, retainers, court costs,
transcripts, fees of experts, witness fees, travel expenses,
duplicating costs, printing and binding costs, telephone charges,
postage, delivery service fees and all other disbursements or
expenses incurred in connection with asserting or defending
claims.
(v) "Fines" shall include any excise taxes assessed on
Indemnitee with respect to any employee benefit plan.
(vi) "Independent Counsel" shall mean a law firm or lawyer
that neither is presently nor in the past year has been retained
to represent: (i) the Company, the Subsidiary or Indemnitee in
any matter material to such party or (ii) any other party to a
Proceeding giving rise to a claim for indemnification hereunder
in any matter material to such other party. Notwithstanding the
foregoing, the term "Independent Counsel" shall not include any
firm or person who, under the applicable standards of
professional conduct then prevailing, would have a conflict of
interest in representing any of the Company, the Subsidiary or
Indemnitee in an action to determine Indemnitee's right to
indemnification under this Agreement. All Expenses of the
Independent Counsel incurred in connection with acting pursuant
to this Agreement shall be borne by the Company.
(vii) "Losses" shall mean all Expenses, liabilities, losses
and claims (including attorneys' fees, judgments, fines, excise
taxes, penalties and amounts to be paid in settlement) incurred
in connection with any Proceeding.
2
(viii) "Proceeding" shall include any threatened, pending or
completed action, suit, arbitration, alternate dispute resolution
mechanism, investigation, administrative hearing or any other
proceeding, whether civil, criminal, administrative or
investigative, and any appeal therefrom.
(b) For purposes of this Agreement, a person who acted in good
faith and in a manner such person reasonably believed to be in the
interest of the participants and beneficiaries of an employee benefit
plan shall be deemed to have acted in a manner "not opposed to the
best interests of the Company" as referred to in this Agreement; the
term "serving at the request of the Company or the Subsidiary" shall
include any service as a director, officer, employee or agent of the
corporation which imposes duties on, or involves services by, such
director, officer, employee or agent with respect to an employee
benefit plan, its participants or beneficiaries; and references to the
"Company" or "the Subsidiary" shall include, in addition to the
resulting corporation, any constituent corporation (including any
constituent of a constituent) absorbed in a consolidation or merger
which, if its separate existence had continued, would have had power
and authority to indemnify Indemnitee in its capacity as a director,
officer, or employee or agent, so that Indemnitee shall stand in the
same position under this Agreement with respect to the resulting or
surviving corporation as Indemnitee would have stood with respect to
such constituent corporation if its separate existence had continued.
2. Service by Indemnitee. Indemnitee agrees to begin or continue to
serve the Company or the Subsidiary or any Affiliate as a director and/or
officer. Notwithstanding anything contained herein, this Agreement shall
not create a contract of employment between the Company or the Subsidiary
and Indemnitee, and the termination of Indemnitee's relationship with the
Company or the Subsidiary or an Affiliate by either party hereto shall not
be restricted by this Agreement.
3. Indemnification. The Company and the Subsidiary jointly and
severally agree to indemnify Indemnitee for, and hold Indemnitee harmless
from and against, any Losses or Expenses at any time incurred by or
assessed against Indemnitee arising out of or in connection with the
service of Indemnitee as a director or officer of the Company or the
Subsidiary or of an Affiliate (collectively referred to as an "Officer or
Director of the Company") to the fullest extent permitted by the Applicable
Corporate Laws in effect on the date hereof or as such laws may from time
to time hereafter be amended to increase the scope of such permitted
indemnification. Without diminishing the scope of the indemnification
provided by this Section 3, the rights of indemnification of Indemnitee
provided hereunder shall include but shall not be limited to those rights
set forth hereinafter. Nothing in this Agreement shall be construed as
limiting any right of indemnification arising under the Applicable
Corporate Laws.
4. Action or Proceeding Other Than an Action by or in the Right of the
Company or the Subsidiary. Indemnitee shall be entitled to the
indemnification rights provided herein if Indemnitee is a person who was or
is made a party or is threatened to be made a party to or is involved
(including, without limitation, as a witness) in any Proceeding, other than
an action by or in the right of the Company or the Subsidiary, as the case
may be, by reason of (a) the fact that Indemnitee is or was an Officer or
Director of the Company or any other entity which Indemnitee is or was or
will be serving at the request of the Company or the Subsidiary, as the
case may be, or (b) anything done or not done by Indemnitee in any such
capacity.
3
5. Actions by or in the Right of the Company or the Subsidiary.
Indemnitee shall be entitled to the indemnification rights provided herein
if Indemnitee is a person who was or is a party or is threatened to be made
a party to or is involved (including, without limitation, as a witness) in
any Proceeding brought by or in the right of the Company or the Subsidiary
to procure a judgment in its favor by reason of (a) the fact that
Indemnitee is or was an Officer or Director of the Company or (b) anything
done or not done by Indemnitee in any such capacity. Pursuant to this
Section, Indemnitee shall be indemnified against Losses or Expenses
incurred or suffered by Indemnitee or on Indemnitee's behalf in connection
with the defense or settlement of any Proceeding if Indemnitee acted in
good faith and in a manner Indemnitee reasonably believed to be in or not
opposed to the best interests of the Company or the Subsidiary or the
stockholders of the Company. Notwithstanding the foregoing provisions of
this Section, no such indemnification shall be made in respect of any
claim, issue or matter as to which the Applicable Corporate Law expressly
prohibits such indemnification by reason of an adjudication of liability of
Indemnitee to the Company or the Subsidiary unless and only to the extent
that the Court of Chancery of the State of Delaware or the court in which
such action or suit was brought shall determine upon application that,
despite the adjudication of liability but in view of all the circumstances
of the case, Indemnitee is fairly and reasonably entitled to indemnity for
such Losses and Expenses which the Court of Chancery or such other court
shall deem proper.
6. Indemnification for Losses and Expenses of Party Who is Wholly or
Partly Successful. Notwithstanding any other provision of this Agreement,
to the extent that Indemnitee has been wholly successful on the merits or
otherwise in any Proceeding referred to in Section 3, 4 or 5 hereof on any
claim, issue or matter therein, Indemnitee shall be indemnified against all
Losses and Expenses incurred by Indemnitee or on Indemnitee's behalf in
connection therewith. If Indemnitee is not wholly successful in such
Proceeding but is successful, on the merits or otherwise, as to one or more
but less than all claims, issues or matters in such Proceeding, the Company
and the Subsidiary jointly and severally agree to indemnify Indemnitee to
the maximum extent permitted by law against all Losses and Expenses
incurred by Indemnitee in connection with each successfully resolved claim,
issue or matter. For purposes of this Section and without limitation, the
termination of any such claim, issue or matter by dismissal with or without
prejudice shall be deemed to be a successful resolution as to such claim,
issue or matter.
7. Settlement. The Company and the Subsidiary shall have no obligation
to indemnify Indemnitee under this Agreement for any amounts paid in
settlement of any Proceeding effected without the Company's prior written
consent. The Company and the Subsidiary shall not settle any claim, in any
manner, which would impose any Loss on Indemnitee without Indemnitee's
prior written consent. The Company, the Subsidiary or Indemnitee shall not
unreasonably withhold their consent to any proposed settlement.
8. Payment for Expenses of a Witness. Notwithstanding any other
provision of this Agreement, to the extent that Indemnitee is, by reason of
the fact that Indemnitee is or was an Officer or Director of the Company,
as the case may be, a witness in any Proceeding, the Company and the
Subsidiary jointly and severally agree to pay to Indemnitee all Expenses
actually and reasonably incurred by Indemnitee or on Indemnitee's behalf in
connection therewith.
4
9. Advancement of Expenses and Costs. All Expenses incurred by or on
behalf of Indemnitee (or reasonably expected by Indemnitee to be incurred
by Indemnitee within three months) in connection with any Proceeding shall
be paid by the Company or the Subsidiary in advance of the final
disposition of such Proceeding within twenty days after the receipt by the
Company or the Subsidiary of a statement or statements from Indemnitee
requesting from time to time such advance or advances, whether or not a
determination to indemnify has been made under Section 10. Indemnitee's
entitlement to such advancement of Expenses shall include those incurred in
connection with any Proceeding by Indemnitee seeking an adjudication or
award in arbitration pursuant to this Agreement. The financial ability of
Indemnitee to repay an advance shall not be a prerequisite to the making of
such advance. Such statement or statements shall reasonably evidence such
Expenses incurred (or reasonably expected to be incurred) by Indemnitee in
connection therewith and, if required by the Applicable Corporate Law,
shall include or be accompanied by a written undertaking by or on behalf of
Indemnitee to repay such amount if it shall ultimately be determined that
Indemnitee is not entitled to be indemnified therefor pursuant to the terms
of this Agreement.
10. Procedure for Determination of Entitlement to Indemnification.
-------------------------------------------------------------
(a) When seeking indemnification under this Agreement (which
shall not include in any case the right of Indemnitee to receive
payments pursuant to Section 8 and Section 9 hereof, which shall
not be subject to this Section 10), Indemnitee shall submit a
written request for indemnification to the Company and the
Subsidiary; provided, however, that no delay or failure on the
part of the Indemnitee in notifying the Company or the Subsidiary
shall relieve the Company or the Subsidiary, as the case may be,
from any obligation hereunder unless and solely to the extent the
Company or the Subsidiary, as the case may be, is materially and
adversely prejudiced thereby. Determination of Indemnitee's
entitlement to indemnification shall be made promptly, but in no
event later than 60 days after receipt by the Company and the
Subsidiary of Indemnitee's written request for indemnification.
The Secretary of the Company shall, promptly upon receipt of
Indemnitee's request for indemnification, advise the Board that
Indemnitee has made such request for indemnification.
(b) If, at the time of the receipt of a written request for
indemnification pursuant to Section 10(a) above, the Company has
D&O Insurance, as such term is defined in Section 15 below, in
effect, the Company shall give prompt notice of the Proceeding
which is the subject of such request to the insurers in
accordance with the procedures set forth in the respective
policies in favor of Indemnitee. The Company shall, thereafter,
take all necessary or desirable action to cause such insurers to
pay, on behalf of Indemnitee, all Losses and Expenses payable as
a result of such action, suit or proceeding in accordance with
the terms of such policies.
(c) The entitlement of Indemnitee to indemnification under
this Agreement shall be determined in the specific case (1) by
the Board by a majority vote of the Disinterested Directors, even
though less than a quorum, or (2) by a committee of the
Disinterested Directors designated by majority vote of the
Disinterested Directors, even though less than a quorum, or (3)
if there are no Disinterested Directors, or if such Disinterested
Directors so direct, by Independent Counsel, or (4) by the
stockholders of the Company.
5
(d) In the event the determination of entitlement is to be
made by Independent Counsel, such Independent Counsel shall be
selected by the Board and the Board of Directors of the
Subsidiary and approved by Indemnitee. Upon failure of the Board
and the Board of Directors of the Subsidiary to so select such
Independent Counsel or upon failure of Indemnitee to so approve,
such Independent Counsel shall be selected by the American
Arbitration Association of New York, New York or such other
person as such Association shall designate to make such
selection.
(e) If a determination made pursuant to Section 10(c) is
that Indemnitee is not entitled to indemnification to the full
extent of Indemnitee's request, Indemnitee shall have the right
to seek entitlement to indemnification in accordance with the
procedures set forth in Section 11 hereof.
(f) If the person or persons empowered pursuant to Section
10(c) to make a determination with respect to entitlement to
indemnification shall have failed to make the requested
determination within 60 days after receipt by the Company and the
Subsidiary of such request, the requisite determination of
entitlement to indemnification shall be deemed to have been made
and Indemnitee shall be absolutely entitled to such
indemnification, absent (i) misrepresentation by Indemnitee of a
material fact in the request for indemnification or (ii) a final
judicial determination that all or any part of such
indemnification is expressly prohibited by law.
(g) The termination of any Proceeding by judgment, order,
settlement or conviction, or upon a plea of nolo contendere or
its equivalent, shall not, of itself, adversely affect the rights
of Indemnitee to indemnification hereunder except as may be
specifically provided herein, or create a presumption that
Indemnitee did not act in good faith and in a manner which
Indemnitee reasonably believed to be in or not opposed to the
best interests of the Company or the Subsidiary or the
stockholders of the Company, as the case may be, or create a
presumption that (with respect to any criminal action or
proceeding) Indemnitee had reasonable cause to believe that
Indemnitee's conduct was lawful.
(h) For purposes of any determination of good faith
hereunder, Indemnitee shall be deemed to have acted in good faith
if in taking such action Indemnitee relied on the records or
books of account of the Company or the Subsidiary or an
Affiliate, including financial statements, or on information
supplied to Indemnitee by the officers of the Company or the
Subsidiary or an Affiliate in the course of their duties, or on
the advice of legal counsel for the Company or the Subsidiary or
an Affiliate or on information or records given or reports made
to the Company or the Subsidiary or an Affiliate by an
independent certified public accountant or by an appraiser or
other expert selected with reasonable care. The Company and/or
the Subsidiary shall have the burden of establishing the absence
of good faith. The provisions of this Section 10(h) shall not be
deemed to be exclusive or to limit in any way the other
circumstances in which Indemnitee may be deemed to have met the
applicable standard of conduct set forth in this Agreement.
6
(i) The knowledge and/or actions, or failure to act, of any
other director, officer, agent or employee of the Company or the
Subsidiary or an Affiliate shall not be imputed to Indemnitee for
purposes of determining the right to indemnification under this
Agreement.
11. Remedies in Cases of Determination Not to Indemnify or to Advance
Expenses.
-----------------------------------------------------------------
(a) In the event that (i) a determination is made that
Indemnitee is not entitled to indemnification hereunder, (ii)
advances are not made pursuant to Section 9 hereof or (iii)
payment has not been timely made following a determination of
entitlement to indemnification pursuant to Section 10 hereof,
Indemnitee shall be entitled to seek a final adjudication, either
through an arbitration proceeding or in an appropriate court of
the State of Delaware or any other court of competent
jurisdiction permitted by the Applicable Corporate Law, of
Indemnitee's entitlement to such indemnification or advance.
(b) In the event a determination has been made in accordance
with the procedures set forth in Section 10 hereof, in whole or
in part, that Indemnitee is not entitled to indemnification, any
judicial proceeding or arbitration referred to in Section 11(a)
shall be de novo and Indemnitee shall not be prejudiced by reason
of any such prior determination that Indemnitee is not entitled
to indemnification, and the Company and/or the Subsidiary shall
bear the burdens of proof specified in Sections 6 and 10 hereof
in such proceeding.
(c) If a determination is made or deemed to have been made
pursuant to the terms of Section 10 or 11 hereof that Indemnitee
is entitled to indemnification, the Company and the Subsidiary
shall be bound by such determination in any judicial proceeding
or arbitration in the absence of (i) a misrepresentation of a
material fact by Indemnitee or (ii) a final judicial
determination that all or any part of such indemnification is
expressly prohibited by law.
(d) To the extent deemed appropriate by the court, interest
shall be paid by the Company or the Subsidiary, or both, to
Indemnitee at a reasonable interest rate for amounts which the
Company or the Subsidiary, or both, indemnifies or is obliged to
indemnify Indemnitee for the period commencing with the date on
which Indemnitee requested indemnification (or reimbursement or
advancement of any Expenses) and ending with the date on which
such payment is made to Indemnitee by the Company or the
Subsidiary, or both.
(e) In any suit brought by the Indemnitee to enforce a right
to indemnification hereunder (but not in a suit brought by the
Indemnitee to enforce a right to an advancement of expenses) it
shall be a defense that the Indemnitee has not met any applicable
standard for indemnification required by the Applicable Corporate
Law. In any suit brought by the Company or the Subsidiary to
recover an advancement of expenses pursuant to the terms of an
undertaking, the Company and/or the Subsidiary shall be entitled
to recover such expenses upon a final adjudication that the
Indemnitee has failed to meet any applicable standard for
indemnification required by the Applicable Corporate Law. Neither
the failure of the Company (including its Disinterested
7
Directors, a committee of Disinterested Directors designated by
majority vote of the Disinterested Directors, Independent
Counsel, or its stockholders) to have made a determination prior
to the commencement of such suit that indemnification of the
Indemnitee is proper in the circumstances because the Indemnitee
has met the applicable standard of conduct set forth in the
Applicable Corporate Law, nor an actual determination by the
Company (including its Disinterested Directors, a committee of
Disinterested Directors designated by majority vote of the
Disinterested Directors, Independent Counsel, or its
stockholders) that the Indemnitee has not met such applicable
standard of conduct, shall create a presumption that the
Indemnitee has not met the applicable standard of conduct or, in
the case of such a suit brought by the Indemnitee, be a defense
to such suit. In any suit brought by the Indemnitee to enforce a
right to indemnification or to an advancement of expenses
hereunder, or by the Company or the Subsidiary to recover an
advancement of expenses pursuant to the terms of an undertaking,
the burden of proving that the Indemnitee is not entitled to be
indemnified, or to such advancement of expenses, under this
Section 11 or otherwise shall be on the Company and/or the
Subsidiary.
12. Expenses Incurred by Indemnitee to Enforce this Agreement. All
Expenses incurred by Indemnitee in connection with the preparation and
submission of Indemnitee's request for indemnification hereunder shall be
jointly and severally borne by the Company and the Subsidiary. In the event
that Indemnitee is a party to or intervenes in any Proceeding in which the
validity or enforceability of this Agreement is at issue or seeks an
adjudication to enforce Indemnitee's rights under, or to recover damages
for breach of, this Agreement, Indemnitee, if Indemnitee prevails in whole
in such action, shall be entitled to recover from the Company and the
Subsidiary, and shall be jointly and severally indemnified by the Company
and the Subsidiary against, any Expenses incurred by Indemnitee. If it is
determined that Indemnitee is entitled to indemnification for part (but not
all) of the indemnification so requested, Expenses incurred in seeking
enforcement of such partial indemnification shall be reasonably prorated
among the claims, issues or matters for which Indemnitee is entitled to
indemnification and for claims, issues or matters for which Indemnitee is
not so entitled.
13. Non-Exclusivity. The rights of indemnification and to receive
advances as provided by this Agreement shall not be deemed exclusive of any
other rights to which Indemnitee may at any time be entitled under any law,
certificate of incorporation, by-law, other agreement, vote of stockholders
or resolution of directors or otherwise, both as to action in the
Indemnitee's official capacity and as to action in another capacity while
holding such office. To the extent Indemnitee would be prejudiced thereby,
no amendment, alteration, rescission or replacement of this Agreement or
any provision hereof shall be effective as to Indemnitee with respect to
any action taken or omitted by such Indemnitee in Indemnitee's position
with the Company or the Subsidiary or an Affiliate or any other entity
which Indemnitee is or was serving at the request of the Company or the
Subsidiary prior to such amendment, alteration, rescission or replacement.
8
14. Duration of Agreement. This Agreement shall apply to any claim
asserted and any Losses and Expenses incurred in connection with any claim
asserted on or after the effective date of this Agreement and shall
continue until and terminate upon the later of: (a) ten years after
Indemnitee has ceased to occupy any of the positions or have any of the
relationships described in Section 3, 4 or 5 hereof; or (b) one year after
the final termination of all pending or threatened Proceedings of the kind
described herein with respect to Indemnitee. This Agreement shall be
binding upon the Company and the Subsidiary and their respective successors
and assigns and shall inure to the benefit of Indemnitee and Indemnitee's
spouse, assigns, heirs, devisee, executors, administrators or other legal
representatives.
15. Maintenance of D&O Insurance.
----------------------------
(a) Subject to Section 15(c) below, the Company and the
Subsidiary each hereby covenants and agrees with Indemnitee that, so
long as Indemnitee shall continue to serve as an Officer or Director
of the Company and thereafter so long as Indemnitee shall be subject
to any possible claim or threatened, pending or completed Proceeding,
whether civil, criminal or investigative, by reason of the fact that
Indemnitee was an Officer or Director of the Company or any other
entity which Indemnitee was serving at the request of the Company or
the Subsidiary, the Company and the Subsidiary shall maintain in full
force and effect (i) the directors' and officers' liability insurance
issued by the insurer and having the policy amount and deductible as
currently in effect with respect to Directors and Officers of the
Company or any of its subsidiaries and (ii) any replacement or
substitute policies issued by one or more reputable insurers providing
in all respects coverage at least comparable to and in the same amount
as that currently provided under such existing policy (collectively,
"D&O Insurance").
(b) In all policies of D&O Insurance, the Officers and Directors
of the Company shall be named as insureds in such a manner as to
provide Indemnitee the same rights and benefits, subject to the same
limitations, as are accorded to the Company's directors or officers
most favorably insured by such policy.
(c) Notwithstanding anything to the contrary set forth in (a)
above, the Company and the Subsidiary shall have no obligation to
maintain D&O Insurance if the Company and the Subsidiary determine in
good faith that such insurance is not reasonably available, the
premium cost for such insurance is disproportionate to the amount of
coverage provided or the coverage provided by such insurance is
limited by exclusions so as to provide an insufficient benefit.
16. Severability. Should any part, term or condition hereof be
declared illegal or unenforceable or in conflict with any other law, the
validity of the remaining portions or provisions hereof shall not be
affected thereby, and the illegal or unenforceable portions hereof shall be
and hereby are redrafted to conform with applicable law, while leaving the
remaining portions hereof intact.
17. Counterparts. This Agreement may be executed in several
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same document.
9
18. Headings. Section headings are for convenience only and do not
control or affect meaning or interpretation of any terms or provisions
hereof.
19. Modification and Waiver. No supplement, modification or amendment
of this Agreement shall be binding unless executed in writing by each of
the parties hereto.
20. No Duplicative Payment. The Company and the Subsidiary shall not
be liable under this Agreement to make any payment of amounts otherwise
indemnifiable hereunder if and to the extent that Indemnitee has otherwise
actually received such payment (net of Expenses incurred in collecting such
payment) under any insurance policy, contract, agreement or otherwise.
21. Notices. All notices, requests, demands and other communications
provided for by this Agreement shall be in writing (including telecopier or
similar writing) and shall be deemed to have been given at the time when
mailed, enclosed in a registered or certified postpaid envelope, in any
general or branch office of the United States Postal Service, or sent by
Federal Express or other similar overnight courier service, addressed to
the address of the parties stated below or to such changed address as such
party may have fixed by notice or, if given by telecopier, when such
telecopy is transmitted and the appropriate answer back is received.
(a) If to Indemnitee, to the address appearing on the signature
page hereof.
(b) If to the Company or the Subsidiary to:
CommScope, Inc.
0000 XxxxXxxxx Xxxxx, XX
Xxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: General Counsel
22. Governing Law. The parties agree that this Agreement shall be
governed by, and construed and enforced in accordance with, the internal
laws of the State of Delaware without regard to its conflicts of law rules;
provided that the Applicable Corporate Laws shall be used to determine
specific issues to the extent provided herein.
23. Entire Agreement. Subject to the provisions of Section 13 hereof,
this Agreement constitutes the entire understanding between the parties and
supersedes all proposals, commitments, writings, negotiations and
understandings, oral and written, and all other communications between the
parties relating to the subject matter hereof. To the extent a written
agreement between the parties relating to the subject matter hereof was
previously executed, this Agreement shall be retroactive to the effective
date of such previous written agreement, except to the extent that
Indemnitee would be prejudiced thereby. This Agreement may not be amended
or otherwise modified except in writing duly executed by all of the
parties. A waiver by any party of any breach or violation of this Agreement
shall not be deemed or construed as a waiver of any subsequent breach or
violation thereof.
10
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
COMMSCOPE, INC.
By:
------------------------------
Name:
Title:
COMMSCOPE, INC. OF NORTH CAROLINA
By:
------------------------------
Name:
Title:
INDEMNITEE
Name:
----------------------------
Address:
-------------------------
City and State:
------------------
Telecopier Number:
---------------
