EX-10.S
INDEMNITY AGREEMENT
THIS AGREEMENT is made as of this 22nd day of October, 1996, between AMP
Incorporated, a Pennsylvania corporation (the "Corporation"), and (Fullname)
(the "Indemnitee").
W I T N E S S E T H:
WHEREAS, the Indemnitee is currently serving as a member of the Board of
Directors of the Corporation (the "Board of Directors") and in such capacity as
a director is performing valuable services for the Corporation; and
WHEREAS, the Corporation wishes the Indemnitee to continue
in such capacity; and
WHEREAS, as additional consideration for the services of the Indemnitee,
the Corporation has determined that it is reasonable, prudent and necessary and
in its best interests and those of its stockholders to obligate itself
contractually to indemnify its directors so that they will continue to serve the
Corporation free from uncertainties concerning the scope and adequacy of the
protections afforded them against the risks associated with their service to or
for the benefit of the Corporation; and
WHEREAS, the Indemnitee is willing to serve, to continue to serve and to
undertake additional services for or on behalf of the Corporation on the
condition that he/she be so indemnified.
NOW, THEREFORE, in consideration of the premises and the agreements and
covenants contained herein, the Corporation and the Indemnitee, intending to be
legally bound hereby, agree as follows:
ARTICLE I
CERTAIN DEFINITIONS
Section 1.1 Definitions. For purposes of this Agreement, the following
terms have the meanings set forth below, unless the context otherwise requires:
"Board of Directors" shall mean the Board of Directors of
the Corporation.
"Change in Control" shall mean:
i) any Person (as defined below) is or becomes the beneficial owner
(as defined in Rule 13d-3 under the Exchange Act (as defined below),
directly or indirectly, of securities of the Corporation (not including in
the securities beneficially owned by such Person any securities acquired
directly from the Corporation or its affiliates) representing 30% or more
of either the then outstanding shares of common stock of the Corporation or
the combined voting power of the Corporation's then outstanding securities;
or
(ii) the following individuals cease for any reason to constitute a
majority of the number of directors then serving: individuals who, on the
date hereof, constitute the Board and any new director (other than a
director whose initial assumption of office is in connection with an actual
or threatened election contest, including but not limited to a
consent solicitation, relating to the election of directors of the
Corporation) whose appointment or election by the Board or nomination for
election by the Corporation'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 on the date hereof or whose appointment, election or
nomination for election was previously so approved; or
(iii) there is consummated a merger or consolidation of the
Corporation with any other corporation or the issuance of voting securities
of the Corporation in connection with a merger or consolidation of the
Corporation (or any direct or indirect subsidiary of the Corporation)
pursuant to applicable stock exchange requirements, other than (A) a merger
or consolidation that would result in the voting securities of the
Corporation outstanding immediately prior to such merger or consolidation
continuing to represent (either by remaining outstanding or by being
converted into voting securities of the surviving entity or any parent
thereof) at least 50% of the combined voting power of the voting securities
of the Corporation, or such surviving entity or any parent thereof,
outstanding immediately after such merger or consolidation, or (B) a merger
or consolidation effected to implement a recapitalization of the
Corporation (or similar transaction) in which no Person is or becomes the
beneficial owner (as defined in Rule 13d-3 under the Exchange Act),
directly or indirectly, of securities of the Corporation (not including in
the securities beneficially owned by such Person any securities acquired
directly from the Corporation or its affiliates) representing 30% or more
of either the then outstanding shares of common stock of the Corporation or
the combined voting power of the Corporation's then outstanding securities;
or
(iv) the stockholders of the Corporation approve a plan of complete
liquidation or dissolution of the Corporation or there is consummated an
agreement for the sale or disposition by the Corporation of all or
substantially all of the Corporation's assets, other than a sale or
disposition by the Corporation of all or substantially all of the
Corporation's assets to an entity, at least 70% of the combined voting
power of the voting securities of which are owned by Persons in
substantially the same proportions as their ownership of the Corporation
immediately prior to such sale.
"Constituent Corporation" shall have the meaning specified in Section 3.1
of this Agreement.
"Covered Entity" shall have the meaning specified in Section 3.1 of this
Agreement.
"Derivative Proceeding" shall have the meaning specified in Section 3.2 of
this Agreement.
"Disinterested Director" shall mean a director of the Cor poration who is
not or was not a party to, or otherwise involved in, the Proceeding or
Derivative Proceeding in respect of which indemnification is sought by the
Indemnitee.
"Effective Date" shall mean and refer to the date of this Agreement.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as amended.
"Independent Counsel" shall mean a law firm, or member of a law firm, that
is experienced in matters of corporation law and neither presently is, nor
in the past five years has been, retained to represent: (i) the Corporation
or the Indemnitee in any matter material to either such party, or (ii) any
other party to the Proceeding or Derivative Proceeding giving rise to a
claim for indemnification hereunder. Notwithstanding the foregoing, the
term "Independent Counsel" shall not include any person who, under
applicable standards of professional conduct then prevailing under the laws
of the Commonwealth of Pennsylvania, would have a conflict of interest in
representing either the Corporation or the Indemnitee in an action to
determine the Indemnitee's rights under this Agreement.
"Person" shall have the meaning given in Section 3(a)(9) of the Exchange
Act, as modified and used in Sections 13(d) and 14(d) thereof, except that
such term shall not include:
(i) the Corporation or any of its subsidiaries;
(ii) a trustee or other fiduciary holding securities
under an employee benefit plan of the Corporation or any of
its subsidiaries;
(iii) an underwriter temporarily holding securities
pursuant to an offering of such securities; or
(iv) a corporation owned, directly or indirectly, by the stockholders
of the Corporation in substantially the same proportions as their ownership
of stock of the Corporation.
"Proceeding" shall have the meaning specified in Section 3.1
of this Agreement.
"Representative" shall have the meaning specified in Section
3.1 of this Agreement.
"Supporting Documentation" shall have the meaning specified in Section 4.1
of this Agreement.
ARTICLE II
AGREEMENT TO SERVE
Section 2.1 Agreement to Serve. Indemnitee agrees to serve as a director of
the Corporation and Indemnitee shall continue to serve in such capacity so long
as he/she is duly elected and qualified, or duly appointed, in accordance with
the Bylaws of the Corporation, or until such time as he/she tenders his/her
resignation in writing or is terminated in that capacity by the Board of
Directors or the stockholders of the Corporation or by operation of law. Nothing
in this Agreement shall give the Indemnitee any contractual rights to be
continued in such capacity.
ARTICLE III
INDEMNIFICATION
Section 3.1 Indemnification in Respect of Proceedings Other Than Derivative
Proceedings. The Corporation, to the extent permitted by the provisions of this
Agreement, shall indemnify the Indemnitee in the event he/she is, was or becomes
a party or is threatened to be made a party to any threatened, pending or
completed investigation, claim, action, suit or proceeding, whether civil,
criminal, administrative or investigative (other than an action, suit or
proceeding by or in the right of the Corporation to procure a judgment in its
favor) and whether formal or informal, and any appeal therein in which the
Indemnitee may be involved (a "Proceeding"), by reason of the fact that the
Indemnitee is or was a director, officer, employee or agent (a "Representative")
of the Corporation, or a constituent corporation absorbed in a consolidation or
merger ("Constituent Corporation"), or is or was serving at the request of the
Corporation or a Constituent Corporation as a Representative of another
corporation, partnership, joint venture, trust or other enterprise, including
without limitation any employee benefit plan (such other corporation,
partnership, joint venture, trust, or other enterprise or employee benefit plan
hereafter being referred to as a "Covered Entity"), against all expenses
(including attorneys' fees and disbursements), judgments, fines and amounts paid
in settlement actually and reasonably incurred by the Indemnitee in connection
with such Proceeding.
Section 3.2 Indemnification In Respect of Derivative Proceedings. The
Corporation, to the extent permitted by the provisions of this Agreement, shall
indemnify the Indemnitee in the event he/she is, was or becomes a party or is
threatened to be made a party to any threatened, pending or completed action,
suit or proceeding by or in the right of the Corporation to procure a judgment
in its favor (a "Derivative Proceeding") by reason of the fact that the
Indemnitee is or was a Representative of the Corporation or a Constituent
Corporation, or is or was serving at the request of the Corporation or a
Constituent Corporation as a Representative of a Covered Entity, against all
expenses (including attorneys' fees and disbursements) actually and reasonably
incurred by the Indemnitee in connection with the defense or settlement of such
Derivative Proceeding. Indemnification shall not be made in a Derivative
Proceeding in which the Indemnitee has been adjudged to be liable to the
Corporation unless and only to the extent that a court of competent jurisdiction
determines upon application that the person is fairly and reasonably entitled to
indemnity for the expenses that such court deems proper.
Section 3.3 Indemnification for Expenses in the Event Indemnitee is Wholly
or Partly Successful. Any provision of this Agreement to the contrary
notwithstanding, to the extent that the Indemnitee is successful on the merits
or otherwise in defense of any Proceeding or Derivative Proceeding or in defense
of any claim, issue or matter therein, the Indemnitee shall be indemnified
against all expenses (including attorneys' fees and disbursements) actually and
reasonably incurred by him/her or on his/her behalf in connection therewith. If
the Indemnitee is not wholly successful in such Proceeding but is successful on
the merits or otherwise in defense of one or more, but less than all, claims,
issues or matters therein, the Corporation shall indemnify the Indemnitee
against all expenses actually and reasonably incurred by him/her or on his/her
behalf in connection with each such successfully resolved claim, issue or
matter.
Section 3.4 Advancement of Expenses. To the extent permitted by the
provisions of this Agreement, all reasonable expenses (including attorneys' fees
and disbursements) incurred by or on behalf of the Indemnitee in connection with
any Proceed ing or Derivative Proceeding shall, upon determination by the Board
of Directors or its duly authorized committee, be advanced to the Indemnitee by
the Corporation within twenty days after the receipt by the Corporation of a
written statement or statements from the Indemnitee requesting such advance or
advances from time to time prior to final disposition of such Proceeding or
Deriva tive Proceeding. Such statement or statements shall reasonably identify,
describe and document the legal expenses actually and reasonably incurred by the
Indemnitee and, if required by law at the time of such advance, shall include or
be accompanied by an undertaking by or on behalf of the Indemnitee to repay the
amount advanced if ultimately it should be determined that the Indemnitee is not
entitled to be indemnified against such expenses pursuant to this Agreement. In
making its determina tion, the Board of Directors or its duly authorized
committee may (but need not) specify appropriate terms and conditions to be
applicable to any advancements made hereunder.
Section 3.5 Limitations on Indemnification.
(A) Anything herein to the contrary notwithstanding, the Corporation shall
have no obligation to pay any indemnity or to advance any expenses to the
Indemnitee pursuant to this Article III if and to the extent:
(i) The Indemnitee did not act in good faith and in a manner the
Indemnitee reasonably believed to be in, or not opposed to, the best
interests of the Corporation and, with respect to any criminal proceeding,
had reasonable cause to believe his/her conduct was unlawful;
(ii) The Indemnitee actually receives such payment under any
insurance policy, other agreement or contract, statute, bylaw or otherwise;
(iii) A court having jurisdiction in the matter shall, by final
decision, determine that such indemnification or advancement of expenses is
unlawful; or
(iv) The Indemnitee misrepresented or failed to disclose a material
fact in making the request for indemnification or advancement.
(B) The termination of any Proceeding described in Section 3.1 of this
Agreement or of any claim, issue or matter therein, by judgment, order,
settlement or conviction, or upon a plea of nolo contendere or its equivalent,
shall not, of itself, adversely affect the right of the Indemnitee to
indemnification or create a presumption that the Indemnitee did not act in good
faith and in a manner which the Indemnitee reasonably believed to be in or not
opposed to the best interests of the Corporation or, with respect to a criminal
proceeding, that the Indemnitee had reasonable cause to believe that such
conduct was unlawful.
(C) Notwithstanding any other provision of this Agreement, the Indemnitee
shall not be entitled to indemnification or to the advancement of expenses under
this Agreement in respect of any Proceeding or Derivative Proceeding, or any
claim, issue or matter therein, brought, made or raised by the Indemnitee
against the Corporation as a party, intervenor, amicus curiae or otherwise,
unless the same was brought, made or raised after the occurrence of a Change of
Control.
ARTICLE IV
INDEMNIFICATION PROCEDURES
Section 4.1 Notification of Claim. To obtain indemnification under this
Agreement, the Indemnitee shall submit to the General Legal Counsel of the
Corporation a written request, including such documentation or information as is
reasonably available to the Indemnitee or reasonably necessary to determine
whether and to what extent the Indemnitee is entitled to indemnification (the
"Supporting Documentation"). The deter mination of the Indemnitee's entitlement
to indemnification shall be made not later than sixty days after receipt by the
Corpora tion of the written request for indemnification together with the
Supporting Documentation. The Secretary of the Corporation shall, promptly upon
receipt of notice from the General Legal Counsel of such a request for
indemnification, advise the Board of Directors or its duly authorized committee
in writing that the Indemnitee has requested indemnification.
Section 4.2 Determination of Entitlement. The Indemnitee's entitlement to
indemnification under this Agreement shall be determined in one of the following
ways:
(i) by a majority vote of the Disinterested Directors
if they constitute a quorum of the Board of Directors;
(ii) by a written opinion of Independent Counsel if a quorum of the
Board of Directors consisting of Disinterested Directors is not obtainable
or, even if obtainable, a majority of such Disinterested Directors so
directs; or
(iii) by the stockholders of the Corporation (but only if a majority
of the Disinterested Directors, if they constitute a quorum of the Board of
Directors, presents the issue of entitlement to indemnification to the
stockholders for their determination).
Section 4.3 Selection of Independent Counsel. In the event the
determination of entitlement to indemnification is to be made by Independent
Counsel pursuant to Section 4.2 of this Agreement, a majority of such
Disinterested Directors or, if the Disinterested Directors do not constitute a
quorum of the Board of Directors, a majority of the Board of Directors shall
select the Independent Counsel, but only an Independent Counsel to which the
Indemnitee does not reasonably object; provided, however, that if a Change in
Control shall have occurred, the Indemnitee shall select such Independent
Counsel to which a majority of the Disinterested Directors or, if the
Disinterested Directors do not constitute a quorum of the Board of Directors, a
majority of the Board does not reasonably object.
Section 4.4 Payment of Indemnification. If a determination shall have been
made pursuant to Section 4.2 that the Indemnitee is entitled to indemnification,
the Corporation shall be obligated to pay the amounts constituting such
indemnification within five days after such determination has been made and
shall be conclusively bound by such determination unless (i) the Indem xxxxx
misrepresented or failed to disclose a material fact in making the request for
indemnification or in the Supporting Documentation, or (ii) such indemnification
is prohibited by law.
Section 4.5 Effect of Failure to Notify. Anything herein to the contrary
notwithstanding, failure of the Indemnitee to notify the Corporation as provided
in this Article IV shall not relieve the Corporation from any liability which it
may have to the Indemnitee otherwise than under this Agreement.
Section 4.6 Enforcement of Rights by Indemnitee. In the event that the
Indemnitee seeks to enforce his/her rights under, or to recover damages for
breach of, this Agreement, the Indemnitee shall be entitled to recover from the
Corporation and shall be indemnified by the Corporation against any expenses
actually and reasonably incurred by the Indemnitee if he/she prevails. If it
shall be determined that the Indemnitee is entitled to receive part but not all
of the indemnification or advancement of expenses sought, the expenses incurred
by Indemnitee in connection therewith shall be prorated accordingly.
ARTICLE V
TERM OF AGREEMENT
Section 5.1 Term. This Agreement shall continue until, and shall terminate
upon, the later of: (a) ten (10) years after the date on or as of which the
Indemnitee shall have ended his/her service as a director or other
Representative of the Corporation or a Constituent Corporation, or as a
Representative of a Covered Entity which the Indemnitee served at the request of
the Corporation or a Constituent Corporation; or (b) the final termination of
all Proceedings and Derivative Proceedings in respect of which the Indemnitee is
or may be entitled to be granted rights of indemnification or advancement of
expenses hereunder and of any proceeding commenced by the Indemnitee pursuant to
Section 4.6 of Article IV of this Agreement relating thereto.
ARTICLE VI
GENERAL PROVISIONS
Section 6.1 Non-Exclusivity. The rights of indemnification and to receive
advancement of expenses, as provided by this Agreement, shall not be deemed
exclusive of any other rights to which the Indemnitee may at any time be
entitled under applicable law, the Articles of Incorporation or Bylaws of the
Corporation, any agreement, vote of stockholders or directors, or otherwise.
Section 6.2 Insurance; Subrogation. In the event that with respect to any
payment made to the Indemnitee under this Agreement the Corporation maintains
one or more policies provid ing liability insurance for the acts or omissions
giving rise to such payment, the Corporation shall be subrogated to the extent
of such payment to any and all rights of recovery of the Indem xxxxx, and the
Indemnitee hereby agrees to execute all papers required and to take all action
necessary to secure such rights, including execution of such documents as are
necessary to enable the Corporation to bring suit to enforce such rights.
Section 6.3 Arbitration. Either the Indemnitee or the Corporation may
demand arbitration to resolve any dispute or controversy arising under or
relating to this Agreement or any breach thereof. If arbitration is demanded,
the dispute or controversy shall be submitted by the parties to binding arbitra
tion in New York City before a panel of three arbitrators in accordance with the
Commercial Arbitration Rules of the American Arbitration Association. The
Indemnitee and the Corporation each shall choose an arbitrator, and those two
arbitrators in turn shall select the third member of the panel; provided that
upon mutual consent of the Indemnitee and the Corporation the matter shall be
decided by a single arbitrator. Judgment upon the award rendered by the
arbitrators may be entered in any court of competent jurisdiction. Each party
shall pay its own costs and expenses incurred in connection with such
arbitration; provided that if the arbitrators determine that the moving party
acted in bad faith in demanding and bringing such arbitration, such moving party
shall be required to reimburse the other party for its or his/her costs and
expenses (including reasonable attorneys' fees) incurred in connection with the
arbitration.
Section 6.4 Amendment and Waiver.
(A) No amendment, modification, termination or cancellation of this
Agreement or any provision hereof shall be effective unless executed in writing
by both parties hereto.
(B) No waiver of any of the provisions of this Agreement shall be deemed
or shall constitute a waiver of any other provisions hereof nor shall such
waiver constitute a continuing waiver; provided, however, that a waiver given in
writing by either party shall be enforceable against such party to the extent
set forth in the waiver instrument.
Section 6.5 Severability. If any provision of this Agreement shall be held
to be invalid, illegal or unenforceable for any reason whatsoever: (i) such
provision shall be invalid, illegal or unenforceable only to the extent of such
prohibition and the validity, legality and enforceability of the remaining
provisions of this Agreement (including, without limitation, each portion of any
Section of this Agreement containing any such provision held to be invalid,
illegal or unenforceable, that is not itself invalid, illegal or unenforceable)
shall not in any way be affected or impaired thereby; and (ii) to the fullest
extent possible, the remaining provisions of this Agreement (including, without
limitation, each portion of any Section of this Agreement containing any such
provision held to be invalid, illegal or unenforceable, that is not itself
invalid, illegal or unenforceable) shall be construed so as to give effect to
the intent manifested by the provision held invalid, illegal or unenforceable.
Section 6.6 Binding Effect; Scope of Coverage. This Agreement shall be
binding upon the Indemnitee and upon the Corporation and its successors and
assigns (including any direct or indirect successor by merger, consolidation or
operation of law or by sale or transfer of all or substantially all of its
assets); shall inure to the benefit of the Indemnitee and his/her heirs and
personal and legal representatives; and shall be appli cable to Proceedings and
Derivative Proceedings commenced or continuing after the Effective Date of this
Agreement, whether arising from acts or omissions occurring before or after the
Effective Date.
Section 6.7 Notices. All notices, requests, demands and other
communications hereunder shall be in writing and shall be deemed to have been
duly given if (i) delivered by hand and receipted for by the party to whom said
notice or other com munication shall have been directed, or (ii) mailed by
certified or registered mail with postage prepaid, return receipt requested, on
the third business day after the date on which it is so mailed:
(a) If to Indemnitee, to: (Address)
(b) If to the Corporation to: AMP Incorporated
000 Xxxxxxxxxx Xxxx
M.S. 176-41
Xxxxxxxxxx, XX 00000
Attention: General Legal Counsel
or to such other address as may have been furnished in writing to the Indemnitee
by the Corporation or to the Corporation by the Indemnitee, as the case may be.
Section 6.8 Governing Law. This Agreement shall be governed by, and
construed and enforced in accordance with, the laws of the Commonwealth of
Pennsylvania without giving effect to the conflict of law rules thereof.
Section 6.9 Entire Agreement. This Agreement constitutes the entire
agreement between the parties hereto with respect to the subject matter of this
Agreement, and supersedes all prior and contemporaneous agreements and
understandings of the parties relating thereto, whether oral or written.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the
date and year first above written.
ATTEST: AMP
INCORPORATED
________________________ By:__________________________
X. X. Xxxxxx
Chairman of the Board
(Address)
----------------------------
(Fullname)
WITNESS:
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address: ______________________________
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Schedule A to EX-10.S
Agreements identical in all material respects to the "Indemnity Agreement
dated October 22, 1996" were entered into with each member of the Board of
Directors. Additionally, agreements identical in all material respects to the
"Indmenity Agreement dated October 22, 1996" but containing introductory
language identifying the individual as on executive officer of the Company were
entered into with each executive officer of the Company.
