Exhibit 10.2
INDEMNIFICATION AGREEMENT
AGREEMENT dated as of the ____ day of _____, 2005 between KAMAN
CORPORATION, a Connecticut corporation (the "Company"), and ___________ of
___________ (the "Indemnitee").
W I T N E S S E T H:
WHEREAS, at the request of the Company, the Indemnitee serves as a
trustee of a voting trust (the "Voting Trust") established under a Voting Trust
Agreement dated August 14, 2000 in which has been deposited 199,802 shares of
the Company's Class B Common Stock; and
WHEREAS, the Indemnitee further serves as an attorney-in-fact under a
Durable Power of Attorney, dated May 7, 1996, given by Xxxxxxx X. Xxxxx (the
"Durable Power of Attorney"); and
WHEREAS, the Company and the Indemnitee recognize to need for
substantial protection against individual liability arising out of the
Indemnitee's service in such capacities; and
WHEREAS, the Company wishes to provide in this Agreement for the
indemnification of, and the advancing of expenses to the Indemnitee as
hereinafter provided;
NOW, THEREFORE, in consideration of the premises and the mutual
benefits to be derived from this Agreement, and intending to be legally bound
hereby, the parties hereto agree as follows:
1. Indemnification.
(a) The Company hereby agrees to indemnify the Indemnitee in the
event the Indemnitee 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,
any action, suit or proceedings (including any appeal), whether civil,
criminal, administrative, investigative or other, relating to any occurrence or
event before or after the date hereof, by reason of the fact that the
Indemnitee is or was serving at the request of the Company as a trustee of the
Voting Trust and/or an attorney-in-fact under the Durable Power of Attorney,
and with respect to any action taken or not taken in good faith by the
Indemnitee in either such capacity, including but not limited to any such
action, suit or proceeding (including any appeal), whether civil, criminal,
administrative, investigative or other by any third party or by or in the right
of the Company, the Voting Trust or Xxxxxxx X. Xxxxx (hereinafter called a
"Claim"), for and against expenses, including attorneys' fees, and all other
costs, charges and expenses paid, incurred by or assessable against the
Indemnitee in connection with investigating, defending, being a witness in or
participating in, or preparing to defend, be a witness in or participate in,
any Claim (collectively, "Expenses") and judgments, fines, penalties, taxes
(including excise taxes), and amounts paid or to be paid in settlement
(including all interest, assessments and other charges paid or payable in
respect of the foregoing) incurred by the Indemnitee in connection with any
Claim (collectively, "Damages").
(b) If requested by the Indemnitee, the Company shall, upon
presentation of bills, statements of account or invoices for Expenses relating
to a Claim, advance to or pay on behalf of the Indemnitee, within 30 days of
such request, any and all Expenses shown on such bills, statements or invoices
relating to such Claim (an "Expenses Advance"), upon (i) receipt of a written
affirmation of the Indemnitee's good faith belief that the conduct of the
Indemnitee was (A) not opposed to the Company's best interests; (B) in the case
of any criminal proceeding, the Indemnitee had no reasonable cause to believe
the Indemnitee's conduct was unlawful; or (C) that the proceeding involves
conduct for which liability has been limited under a provision of the Company's
Amended and Restated Certificate of Incorporation authorized by the Connecticut
Business Corporation Act (the "CBCA"); (ii) receipt of a written undertaking by
or on behalf of the Indemnitee to repay such Expense Advance in the event of a
final determination, adjudication or judgment (as to which all rights of appeal
have been exhausted or have lapsed) that the Indemnitee is not entitled to
indemnification pursuant to this Agreement; and (iii) if required under
applicable law, a determination is made that the facts then known to those
making the determination would not preclude indemnification under the CBCA.
(c) In the event that the Indemnitee demands indemnification
hereunder as a result of any Claim, the Indemnitee shall provide the Company
with notice of such Claim and shall make available to the Company all
information in the Indemnitee's possession that reasonably relates to such
Claim. The Company shall have the right, but not the obligation, to control the
defense of the Indemnitee from such Claim at the Company's sole cost and
expense and by counsel mutually acceptable to the Company and the Indemnitee.
In the event that the Company shall elect to exercise such right to control
such defense, the Indemnitee shall have the right to participate in such
defense at the Indemnitee's sole expense and through counsel of its choice. No
Claim shall be settled or compromised without the consent of the Company, which
shall not be unreasonably withheld, unless the Company shall have failed, after
the lapse of a reasonable time, but in no event more than 30 days after notice
to the Company of such proposed settlement or compromise, to notify the
Indemnitee of the Company's reasonable objection thereto. The Indemnitee's
failure to give timely notice or to provide copies of documents or to furnish
information in connection with any Claim shall not constitute a defense to any
claim for indemnification by the Indemnitee hereunder except, and only to the
extent, that the Company is materially prejudiced thereby.
(d) If there has not been a Change in Control (as defined in
Section 2(b) hereof), any determination required by the CBCA that
indemnification of the Indemnitee is permissible in the circumstances shall be
made by the Company's Board of Directors (the "Board"), a committee of the
Board, special legal counsel, or the Company's shareholders (the "Reviewing
Party") in accordance with the CBCA, with the method of determination to be
chosen by the Board. If there has been a Change in Control, the Reviewing Party
shall be the special legal counsel selected by the Company in accordance with
the CBCA and approved by the Indemnitee (which approval shall not be
unreasonably withheld) unless (i) the Change in Control has been approved by a
majority of the Board who were directors immediately prior to such Change in
Control and (ii) the individuals who were directors prior to the Change in
Control constitute at least two-thirds of the members of the Board as of the
date of the determination. If there has been no determination by the Reviewing
Party or if the Reviewing Party determines that the Indemnitee would not be
permitted to be indemnified in whole or in part under applicable law, the
Indemnitee shall have the right to commence litigation in any court in the
State of Connecticut 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, or 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
the Indemnitee.
2. Change in Control.
(a) If there has been a Change in Control, except as otherwise
provided in Section 1(d) of this Agreement, special legal counsel shall be
selected by the Company in accordance with the CBCA and approved by the
Indemnitee (which approval shall not be unreasonable withheld) and such special
legal counsel shall determine whether the officer or director is entitled to
indemnity payments and Expense Advances under this Agreement or any other
agreement or Certificate of Incorporation or By-laws of the Company now or
hereafter in effect relating to Claims for Indemnifiable Events. Such special
legal counsel, among other things, shall render its written opinion to the
Company and the Indemnitee as to whether and to what extent the Indemnitee will
be permitted to be indemnified. The Company agrees to pay the reasonable fees
of the special legal counsel and to indemnify fully such special legal counsel
against any and all expenses (including attorneys' fees), claims, liabilities
and damages arising out of or relating to this Agreement or the engagement of
special legal counsel pursuant hereto.
(b) For purposes of this Agreement, a "Change in Control" shall
mean any of the following events:
(i) any Person (as defined below) is or becomes the
Beneficial Owner, as defined in Rule 13d-3 under the Securities Exchange Act of
1934, as amended (the "Exchange Act"), directly or indirectly, of securities of
the Company representing 35% or more of the then outstanding securities of the
Company generally entitled to vote in the election of directors of the Company,
excluding any Person who becomes such a Beneficial Owner in connection with a
transaction described in clause (A) of paragraph (iii) below; or
(ii) the following individuals cease for any reason to
constitute a majority of the number of directors then serving: individuals who,
on November 1, 2003, constituted the Board and any new director (other than a
director whose initial assumption of office is a result of an actual or
threatened election contest, including but not limited to a consent
solicitation, relating to the election of directors of the Company and whose
appointment or election was not approved by at least two-thirds (2/3) of the
directors of the Company in office immediately prior to any such contest) whose
appointment or election by the Board or nomination for election by the
Company's stockholders was approved or recommended by a vote of at least
two-thirds (2/3) of the directors then in office; or
(iii) there is consummated a Merger, as defined below, of the
Company with any other business entity, other than (A) a Merger which would
result in the securities of the Company generally entitled to vote in the
election of directors of the Company outstanding immediately prior to such
Merger continuing to represent (either by remaining outstanding or by being
converted into such securities of the surviving entity or any parent thereof),
in combination with the ownership of any trustee or other fiduciary holding
such securities under an employee benefit plan of the Company or any Subsidiary
of the Company, at least 65% of the securities of the Company or such surviving
entity or any parent thereof outstanding immediately after such Merger,
generally entitled to vote in the election of directors of the Company or such
surviving entity or any parent thereof and, in the case of such surviving
entity or any parent thereof, of a class registered under Section 12 of the
Exchange Act, or (B) a Merger effected to implement a recapitalization of the
Company (or similar transaction) in which no Person is or becomes the
Beneficial Owner, directly or indirectly, of securities of the Company
representing 35% or more of the then outstanding securities of the Company
generally entitled to vote in the election of directors of the Company; or
(iv) (A) the stockholders of the Company approve a plan of
complete liquidation or dissolution of the Company or there is consummated the
sale or disposition by the Company of all or substantially all of the Company's
assets, other than a sale or disposition by the Company of all or substantially
all of the Company's assets to an entity where the outstanding securities
generally entitled to vote in the election of directors of the Company
immediately prior to the sale continue to represent (either by remaining
outstanding or by being converted into such securities of the surviving entity
or any parent thereof) 65% or more of the outstanding securities of such entity
generally entitled to vote in the election of directors immediately after such
sale and of a class registered under Section 12 of the Exchange Act, or (B) a
disposition or divestiture by the Company or any Subsidiary of the Company to
any Person of either Kaman Aerospace Corporation or Kaman Industrial
Technologies Corporation, including, without intending to limit the foregoing,
any such disposition or divestiture effected by (x) a sale of all or
substantially all of the securities or all or substantially all of the assets
of either Kaman Aerospace Corporation or Kaman Industrial Technologies
Corporation, (y) the Merger of either Kaman Aerospace Corporation or Kaman
Industrial Technologies Corporation with or into any Person, other than a
Merger which would result in the voting securities of the Subsidiary party to
such Merger outstanding immediately prior to such Merger continuing to
represent (either by remaining outstanding or by being converted into voting
securities of the surviving entity or any parent thereof) at least 65% of the
securities of such Subsidiary or such surviving entity or any parent thereof
outstanding immediately after such Merger and generally entitled to vote in the
election of directors of the Subsidiary or such surviving entity or parent
thereof, or (z) a spin off, dividend or other distribution of all or
substantially all of the securities or all or substantially all of the assets
(or of the stock of a business entity owning such securities or assets) of
either Kaman Aerospace Corporation or Kaman Industrial Technologies Corporation
to the Company's stockholders.
(v) As used herein, "Merger" means a merger, share exchange,
consolidation or similar business combination under applicable law.
(vi) As used herein, "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 (A) the Company or any
of its direct or indirect Subsidiaries, (B) a trustee or other fiduciary
holding securities under an employee benefit plan of the Company, (C) an
underwriter temporarily holding securities pursuant to an offering of such
securities, (D) a corporation owned, directly or indirectly, by the
stockholders of the Company in substantially the same proportions and with
substantially the same voting rights as their ownership and voting rights with
respect to the Company, (E) the voting trust established pursuant to a Voting
Trust Agreement dated August 14, 2000 between Xxxx X. Xxxxx, Xx., as General
Partner of Newgate Associates Limited Partnership and the trustees named
therein (the "Newgate Voting Trust"), provided that the following individuals
continue to constitute a majority of the voting trustees of that voting trust:
individuals serving as trustees of the Newgate Voting Trust as of November 1,
2003 and individuals designated by the Board in accordance with the terms of
that voting trust, provided no Change in Control pursuant to Section 2(b)(2) of
this Agreement has occurred, (F) the individuals referred to in the immediately
preceding subsection (E) solely with respect to their status as Beneficial
Owners of securities of the Company subject to the Newgate Voting Trust, (G)
Xxxxxxx X. Xxxxx, any individual to whom he has directly granted a general
power of attorney, or any entity created or controlled by him, provided that he
and/or any attorneys-in-fact appointed directly by him possess and exercise, in
person or by proxy solicited by the Board, the right to vote all securities of
the Company generally entitled to vote in the election of directors of the
Company, of which he, any such holder of his general power of attorney, or any
such entity is the Beneficial Owner, and (H) the holder of a general power of
attorney and the attorneys-in-fact referred to in the immediately preceding
subsection (G) solely with respect to their status as Beneficial Owners of
securities of the Company because of their appointment as such.
3. Indemnification for Additional Expenses. The Company shall
indemnify the Indemnitee against any and all Expenses and, if requested by the
Indemnitee, shall, upon presentation of bills, statements of account or
invoices for Expenses, within 30 days of such request advance such Expenses
shown on such bills, statements or invoices to the Indemnitee, which are
incurred by the Indemnitee in connection with any claim asserted by or action
brought by the Indemnitee for (a) indemnification or advance payment of
Expenses in accordance with Section 1(b) hereof by the Company under this
Agreement, any other agreement to which the Company and the Indemnitee are
parties, any provision of the Company's Certificate of Incorporation or By-laws
now or hereafter in effect relating to Claims and/or (b) recovery under any
directors' and officers' liability insurance policies maintained by the Company
relating to Claims, upon receipt of a written undertaking by or on behalf of
the Indemnitee to repay such expenses in the event of a final determination,
adjudication or judgment (as to which all rights of appeal have been exhausted
or have lapsed) that the Indemnitee is not entitled to indemnification.
4. Partial Indemnity; Successful Defense; Burden of Proof. If the
Indemnitee is entitled under any provisions of this Agreement to
indemnification by the Company for some or a portion of the Expenses and
Damages but not, however, for the total amount thereof, the Company shall
nevertheless indemnify the Indemnitee for the portion thereof to the maximum
amount permitted under applicable law. Moreover, notwithstanding any other
provision of this Agreement, to the extent that the Indemnitee has been
successful on the merits or otherwise in defense of any or all Claims or in
defense of any issue or matter therein, the Indemnitee shall be indemnified
against any and all Expenses and Damages. In connection with any determination
by action of the Board of Directors of the Company, arbitration agency or court
of competent jurisdiction regarding whether the Indemnitee is or is not
entitled to be indemnified hereunder, the burden of proof shall be on the
Company to establish that the Indemnitee is not so entitled.
5. No Presumption. For purposes of this Agreement, the termination
of any Claim by judgment, order or settlement (whether with or without court
approval), conviction or upon a plea of nolo contendere or its equivalent,
shall not create a presumption that the Indemnitee did not meet any particular
standard of conduct or had any particular belief or that a court has determined
that indemnification is not permitted by this Agreement or applicable law.
6. Contribution. In the event that the indemnification provided for in
this Agreement is unavailable to the Indemnitee for any reason whatsoever, the
Company, in lieu of indemnifying the Indemnitee, shall contribute to the
Expenses and Damages, in such proportion as is deemed fair and reasonable in
light of all of the circumstances of the related Claim by the Board of
Directors of the Company or by the arbitrator, agency or court before which
such Claim was brought in order to reflect (a) the relative benefits received
by the Company, or any subsidiary or affiliate of the Company, and the
Indemnitee as a result of the events and/or transactions giving rise to such
Claim and/or (b) the relative fault of the Company or any subsidiary or
affiliate of the Company (and its directors, officers, employees and agents
other than the Indemnittee) and the Indemnitee in connection with such events
and/or transactions.
7. Interpretation of Indemnity. It is agreed between the parties that,
although the indemnities and other protections given by the Company to the
Indemnitee are considered necessary, fair and reasonable, if it should be found
that any of the provisions are void as going beyond that which is permitted by
law and if, by deleting part of the wording or by substituting a more
restricted indemnity or protection than that set out in Section 1, such
provision would be valid and enforceable, there shall be substituted such more
restricted indemnity or other provision or such deletions shall be made as
shall render Section 1 or such part thereof valid and enforceable; provided,
however, that the terms of such substituted indemnity or other provision or
such deletions shall be consistent with the provisions of Section 12.
8. Notices to the Company by the Indemnitee. The Indemnitee agrees to
notify the Company promptly in writing upon being served with or having actual
knowledge of any citation, summons, complaint, indictment or any other similar
document relating to any action which may result in a claim for indemnification
or contribution hereunder.
9. Non-exclusivity. The rights of the Indemnitee hereunder shall be in
addition to any other rights the Indemnitee may have under the Certificate of
Incorporation or By-laws of the Company or of any subsidiary or affiliate of
the Company, or under applicable law or otherwise, and nothing herein shall be
deemed to diminish or otherwise restrict the Indemnitee's right to
indemnification under any such other provision. It is the intention of the
Company that the Indemnitee be indemnified hereunder to the maximum extent that
a corporation organized under the laws of Connecticut may indemnify its
officers, directors, employees and agents pursuant to the CBCA, or if
applicable law prohibits indemnification to such extent, to the maximum extent
permitted hereunder by causing any subsidiary or affiliate of the Company to
satisfy such obligation on behalf of the Company.
10. Amendments, Waiver. No supplement, modification or amendment of
this Agreement shall be binding unless executed in writing by all 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. Binding Effect. This Agreement shall be binding upon and inure to
the benefit of and be enforceable against the parties hereto and, in the case
of the Company, its successors and 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) or, in the case
of the Indemnitee, his or her heirs and legal representatives. This Agreement
shall continue in effect regardless of whether the Indemnitee continues to
serve as a director, officer, employee, agent or fiduciary of the Company, or
any subsidiary or affiliate of the Company, or any other enterprise at the
Company's request.
12. Severability. Subject to Section 4, if a court of competent
jurisdiction shall determine that any provision of this Agreement is void and
of no effect, the provisions of this Agreement shall be deemed amended to
delete or modify, as necessary, the offending provision, and this Agreement as
so amended or modified shall not be rendered unenforceable or impaired but
shall remain in force to the fullest extent possible in keeping with the
intention of the parties hereto.
13. Governing Law. The validity, interpretation and performance of
this Agreement shall be governed by the laws of the State of Connecticut
applicable to agreements made and to be performed entirely within such State.
14. Liability Insurance. To the extent the Company maintains at any
time an insurance policy or policies providing directors' and officers'
liability insurance, the Indemnitee shall be covered by such policy or
policies, in accordance with the terms of such policy or policies, to the
maximum extent of the coverage available for any other director or officer of
the Company under such insurance policy or policies. The purchase and
maintenance of such insurance shall not in any way limit or affect the rights
and obligations of the parties hereto, and the execution and delivery of this
Agreement shall not in any way be construed to limit or affect the rights and
obligations of the Company and/or of the other parties under any such insurance
policy.
15. Notices. All notices, requests, demands and other communications
required or permitted hereunder shall be in writing and shall be deemed to have
been duly given when delivered by hand, seven business days after mailing by
certified or registered mail, return receipt requested, with postage prepaid,
upon delivery when delivered by facsimile and the sender has confirmation of
delivery, or upon delivery by a courier service:
(a) If to the Indemnitee:
At the address for the Indemnitee shown in the Company's
records
(b) If to the Company:
Kaman Corporation
0000 Xxxx Xxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxx, Esq.
Senior Vice President and Secretary
or to such other address as the Indemnitee or the Company shall designate in
writing pursuant to the above.
IN WITNESS WHEREOF, the parties hereto have duly executed and
delivered this Agreement as of the date first written above.
KAMAN CORPORATION
By: ____________________________
INDEMNITEE:
__________________________________
