Indemnity Agreement
EXHIBIT 10.2
Indemnity Agreement
Agreement, between Anixter International Inc., a Delaware corporation (the
“Company”), and (the “Indemnitee”) effective as of the date Indemnitee became
an officer or director of the Company.
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 by-laws of the Company require the Company to indemnify and advance
expenses to its directors and officers as provided therein and the Indemnitee has been serving and
continues to serve as a director or officer of the Company in part in reliance on such by-laws;
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, and Indemnitee’s reliance on the aforesaid by-laws, and in part to provide
Indemnitee with specific contractual assurance the protection promised by such by-laws will be
available to Indemnitee (regardless of, among other things, any amendment to or revocation of such
by-laws or any change in the composition of the Company’s Board of Directors or acquisition
transaction relating to the Company), the Company wishes to provide in this Agreement for the
indemnification of and the advancing of expenses to Indemnitee to the full 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, with 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 more than 50% 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 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 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 conducted 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 is or was serving at the
request of the Company 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) 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
25% or more of the combined voting power of the Company’s then outstanding Voting Securities, or
(iv) the Board adopts a resolution to the effect that, for purposes of this Agreement, a Potential
Change in Control has occurred.
(f) 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 (including the
special, independent counsel referred to in Section 3) who is not a party to the particular Claim
for which Indemnitee is seeking indemnification.
(g) 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, judgements, fines, penalties or amounts paid in settlement) of such
Claim. Notwithstanding anything in this Agreement to the contrary, Indemnitee shall not be
entitled to indemnification pursuant to this Agreement in connection with any Claim initiated by
Indemnitee against the Company or any director or officer of the Company unless the Company has
joined in or consented to the initiation of such Claim. If so requested by
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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 written
opinion, in any case in which the special, independent 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 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, the Reviewing Party shall be
the special, independent 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 domicile or
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, 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 by-law now or hereafter in effect
relating to Claims for Indemnifiable Events, the Company shall seek legal advice only from
special, independent counsel selected by Indemnitee and approved by the Company (which approval
shall not be unreasonably withheld), and who has not otherwise performed services for the Company
within the last five years (other than in connection with such matters) or Indemnitee. 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 special, independent counsel referred to
above and to fully indemnify such counsel against any and all expenses (including attorney’s
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 the 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
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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 special,
independent counsel referred to above is involved. The terms of the Trust shall provide that upon
a Change in Control (i) 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), (ii) the Trust shall continue to be funded by the
Company in accordance with the funding obligation set forth above, (iii) the Trustee shall
promptly pay to the Indemnitee all amounts for which the Indemnitee shall be entitled to
indemnification pursuant to this Agreement or otherwise, and (iv) 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 the Indemnitee has been fully indemnified under
the terms of this Agreement, or that it is no longer anticipated that expenses will be incurred or
amounts will be paid in connection with the Indemnifiable Event. The Trustee shall be chosen by
the 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 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 claim asserted against or action brought by Indemnitee for (i) indemnification
or advance payment of Expenses by the Company under this Agreement or any other agreement or
Company by-law 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 of 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. 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.
7. No Presumption. 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.
8. Non-exclusivity, Etc. The rights of the Indemnitee hereunder shall be in addition to any
other rights Indemnitee may have under the Company’s by-laws 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 by-laws 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.
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9 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 provided
under such policy or policies in effect for any other Company director or officer.
10. 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.
11. 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.
12. 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, by-law or otherwise) of the
amounts otherwise indemnifiable hereunder.
13. 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, 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.
14. 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, and
the remaining provisions shall remain enforceable to the fullest extent permitted by law.
15. 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.
| Anixter International Inc. |
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| By: | ||||
| Xxxx X. Xxx | ||||
| Vice President, General Counsel & Secretary | ||||
I acknowledge and agree that this Indemnity Agreement supersedes, in its entirety, any
previous indemnity agreement provided to me by the Company.
| , Indemnitee | ||
| Dated: |
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