INDEMNITY AGREEMENT
EXHIBIT 10.1
INDEMNITY AGREEMENT
Agreement
dated as of August 1, 2009 by and between Textron Inc., a Delaware corporation
(the "Corporation") and _____________________________
("Indemnitee").
Indemnitee
currently is serving as a Director of the Corporation, and the Corporation
desires that Indemnitee continue to serve in such
capacity. Indemnitee is willing to continue to serve in such capacity
if Indemnitee is adequately protected against the risks associated with such
service.
In
addition to the indemnification to which Indemnitee is entitled pursuant to the
Amended and Restated By-Laws (“By-Laws”) of the Corporation, and as additional
consideration for Indemnitee's continued service, the Corporation has furnished
at its expense directors and officers liability insurance protecting Indemnitee
in connection with such service. Such insurance excludes or limits
coverage for certain types of claims.
The
Corporation and Indemnitee have concluded that the indemnities available under
the Corporation's By-Laws and the insurance currently in effect need to be
supplemented to more fully protect Indemnitee against the risks associated with
Indemnitee's service to the Corporation.
In
consideration of the premises and of the mutual agreements hereinafter set forth
and Indemnitee’s continued service as a Director of the Corporation, the parties
hereto agree as follows:
1. Definitions.
(a) Affiliate. "Affiliate" means: any corporation,
partnership, joint venture, limited liability company, trust or other entity
controlling, controlled by or under common control with the
Corporation.
(b) Change in
Control. "Change in Control"
shall mean a change in control of the Corporation of a nature that would be
required to be reported in response to Item 5.01 of Form 8-K (or in response to
any similar item on any similar schedule or form) promulgated under the
Securities Exchange Act of 1934 and amendments thereto, or any
similar successor statute whether or not the Corporation is then subject to this
reporting requirement; provided, however, that a Change in Control shall be
deemed to have occurred if: (i) any individual or entity becomes the beneficial
owner (as defined in Rule 13d-3 under Securities Exchange Act of 1934), directly
or indirectly, of securities of the Corporation representing 30% or more of the
total voting power of the Corporation's then-outstanding voting securities
without the prior approval of at least two-thirds of the members of the Board of
Directors in office immediately prior to such individual or entity attaining
such percentage, (ii) the Corporation is a party to a merger, consolidation,
sale of assets or other reorganization, or a proxy contest, as a consequence of
which members of the Board of Directors in office immediately prior to such
transaction or event constitute less than a majority of the Board of Directors
thereafter, or (iii) during any period of two consecutive years, individuals who
at the beginning of such period constituted the Board of Directors (including
for this purpose any new director whose election or nomination for election by
the Corporation's stockholders was approved by a vote of at least two-thirds of
the directors then still in office who were directors at the beginning of such
period) cease for any reason to constitute at least a majority of the Board of
Directors.
(c) Disinterested
Director. "Disinterested
Director" shall mean a director who is not or was not a party to the Proceeding
in respect of which indemnification is being sought by
Indemnitee.
(d) Expenses. "Expenses" shall
mean without limitation, any expenses incurred in connection with the defense or
settlement of any and all Proceedings, attorneys' fees, witness fees and
expenses, fees and expenses of accountants and other advisors, retainers and
disbursements and advances thereon, costs of investigation,
costs of attachments and
similar bonds, and any expenses of
establishing a right to indemnification or advancement of Expenses under this
Agreement, but shall not include the amount of any damages, judgments, fines,
penalties or amounts paid in settlement by or on behalf of
Indemnitee.
(e) Independent Legal
Counsel. "Independent Legal
Counsel" shall mean a law firm, or a member of a law firm, that is
experienced in matters of corporation law and neither presently is, nor in the
past two years has been, retained to represent: (i) the Corporation
or Indemnitee in any matter material to either such party, or (ii) any other
party to the Proceeding giving rise to a claim for indemnification
hereunder. Notwithstanding the foregoing, the term "Independent Legal
Counsel" shall not include any person who, under the applicable
standards of professional conduct then prevailing, would have a conflict of
interest in representing either the Corporation or Indemnitee in an action to
determine Indemnitee's rights under this Agreement.
(f) Proceeding. "Proceeding" shall mean any threatened,
asserted, pending or completed investigation,
action, suit, claim or other proceeding of any kind whatsoever, and whether of a
civil, criminal, administrative, legislative or investigative nature, including
any arbitration or other alternative dispute resolution mechanism, or any appeal
of any kind thereof, or any inquiry or investigation, whether instituted by the
Corporation, any governmental agency 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,
including any arbitration or other alternative dispute resolution
mechanism.
2. Rights to
Indemnification. The Corporation shall indemnify Indemnitee
and Indemnitee's executors, administrators or assigns, to the fullest extent
permitted by Delaware law in effect on the date hereof and as amended from time
to time, if Indemnitee is or was a party or is threatened to be made a party to
(or is or was a witness or other participant in) any Proceeding by reason of the
fact that Indemnitee served as a Director of the Corporation or any Affiliate
thereof or because of any actual or alleged breach of duty, neglect, error,
misstatement, misleading statement, omission or other act done or not done, or
suffered or wrongfully attempted by Indemnitee in Indemnitee's capacity as a
Director of the Corporation or any Affiliate thereof. The payments
that the Corporation will be obligated to make hereunder shall include (without
limitation) damages, judgments, settlements, fines, penalties and Expenses, actually and reasonably incurred by Indemnitee in
connection with such 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 Corporation, and, with respect to any criminal action or
proceeding, had no reasonable cause to believe Indemnitee’s conduct was
unlawful; provided, however, that the Corporation shall not be obligated
to pay fines or other obligations or fees imposed by law or otherwise that it is
prohibited by applicable law from paying as indemnity or for any other
reason.
3. Advancement of
Expenses. Expenses incurred by the Indemnitee in defending or
investigating any Proceeding referred to in Section 2 hereof shall be paid by
the Corporation in advance of the final disposition of such Proceeding upon
receipt of a written undertaking by or on behalf of Indemnitee to repay
any such amounts if it is ultimately determined, after a final adjudication
(including all appeals), that Indemnitee is not entitled to indemnification
under the terms of this Agreement. Notwithstanding the foregoing, no advance shall be made
by the Corporation if a determination is reasonably and promptly made (i)
by the Board of Directors by a majority vote of Disinterested Directors, even
though less than a quorum, (2) by a committee of such Disinterested Directors
designated by a majority vote of Disinterested Directors, even though less than
a quorum, or (3) if there are no Disinterested Directors or such Disinterested
Directors so direct, by Independent Legal Counsel in a written opinion, that,
based upon the facts known to the Board of Directors, the committee or
Independent Legal Counsel at the time such determination is made the Indemnitee
acted in bad faith or in a manner that the Indemnitee did not believe to be in
or not opposed to the best interests of the Corporation, or, with respect to any
criminal proceeding, that the Indemnitee believed or had reasonable cause to
believe his or her conduct was unlawful. In no event shall any advance be made
in instances where the Board of Directors, the committee or Independent Legal
Counsel reasonably determines that the Indemnitee deliberately breached his or
her duty to the Corporation or its stockholders.
4. Procedure for Obtaining
Indemnification. Upon written
request by an Indemnitee for indemnification,
the entitlement of Indemnitee to indemnification shall be determined in
accordance with Section 5 hereof and such indemnification shall be paid in full
within ninety days after a written request for indemnification has been received
by the Corporation. Such request shall include documentation or
information which is necessary for such determination and which is reasonably
available to the Indemnitee. Notwithstanding the foregoing, to the
extent that Indemnitee has been successful on the merits or otherwise in defense
or investigation of any Proceeding or in the defense of any claim, issue or
matter therein, or to the extent that indemnification has been ordered by a
court, Indemnitee shall be deemed to be entitled to
indemnification.
Upon making a request for indemnification, Indemnitee
shall be presumed to be entitled to indemnification hereunder and the Corporation shall
have the burden of proving that Indemnitee is not entitled to be
indemnified. If the person or persons empowered to make such
determination pursuant to Section 5 hereof fail to make the requested
determination with respect to indemnification within ninety days after a
written request for indemnification has been received by the
Corporation, a requisite determination of entitlement to indemnification shall
be deemed to have been made and the Indemnitee shall be absolutely entitled to
such indemnification, absent actual and material fraud in the request for
indemnification.
The termination of any Proceeding by judgment, order,
settlement, conviction, or upon a plea of nolo contendere or its equivalent
shall not, of itself, create a presumption that Indemnitee did not act in good
faith and in a manner which Indemnitee reasonably believed to be in the best interests of the
Corporation, or, with respect to any criminal action or proceeding, that
Indemnitee had reasonable cause to believe that his or her conduct was
unlawful.
5. Determination of
Conduct. Any indemnification
(except as provided by Section 4 hereof) shall be made by the Corporation only
as authorized in the specified case upon a determination that indemnification of
Indemnitee is proper under the circumstances
because Indemnitee has met the applicable
standard of conduct set forth in Section 2 of this Agreement. Such
determination shall be made by any of the following: (i) the Board of
Directors, by a majority vote the Disinterested
Directors, even though less than a quorum, (ii) by a committee of such
Disinterested Directors, designated by a majority vote of the Disinterested
Directors, even though less than a quorum, (iii) if there are no Disinterested
Directors, or if such Disinterested Directors so direct, by Independent Legal
Counsel in a written opinion, or (iv) by the stockholders, with the shares owned
by Indemnitee not being entitled to vote thereon, or (v) in the event that a
Change in Control has occurred, by Independent Legal Counsel in a written
opinion to the Board of Directors, a copy of which shall be delivered to
Indemnitee.
Independent Legal Counsel shall be selected by the Board
of Directors and approved by Indemnitee (which approval shall not be
unreasonably withheld); provided, however, that if a Change in Control has
occurred, Independent Legal Counsel shall be selected by Indemnitee and
approved by the Corporation (which approval shall not be
unreasonably withheld). The Corporation agrees to pay the reasonable
fees of the Independent Legal Counsel and to indemnify fully such Independent
Legal Counsel against any and all expense (including attorneys' fees), liability
and loss arising out of or relating to this Agreement or the engagement of the
Independent Legal Counsel pursuant hereto.
6. Procedure for Obtaining
Advances. The advances to be
made pursuant to Section 3 hereof shall be paid in full within thirty
days after a written request for payment of advances has been received by the
Corporation. Such request shall reasonably evidence the Expenses
incurred by Indemnitee.
7. Failure to Pay
Requests. If Indemnitee properly makes a request for
indemnification or advancement under this Agreement and (a) a request for
indemnification under this Agreement is not paid by or on behalf of the
Corporation within ninety days after a written request has been received by the
Corporation, (b) a determination is made pursuant to Section 5 hereof that
Indemnitee is not entitled to indemnification, or (c) advances are not paid in
full by or on behalf of the Corporation within thirty days after a written
request for payment of advances has been received by the Corporation, Indemnitee
or Indemnitee’s executors, administrators or assigns may at any time thereafter
bring suit against the Corporation to recover the unpaid amount of any claim for
indemnification or advances and, if successful in whole or in part, Indemnitee
shall also be entitled to be paid the Expenses actually and reasonably incurred
in connection with prosecuting such claim.
Without limitation of the foregoing, the Indemnitee may
at any time apply to the Court of Chancery of the State of Delaware or
any other court of competent jurisdiction in the State of Delaware for
indemnification by the Corporation under this Agreement. The basis of
such indemnification shall be a determination by such court that indemnification
of Indemnitee is proper in the circumstances and is permitted under applicable
law and this Agreement. No contrary determination by the Board of
Directors of the Corporation (or any committee thereof), Independent Legal
Counsel or the stockholders of the Corporation, nor the absence of any
determination by the Board of Directors of the Corporation (or any committee
thereof), Independent Legal Counsel or the stockholders of the Corporation,
shall be a defense to such application or create a presumption that Indemnitee
has not met any applicable standard of conduct. Notice of any
application for indemnification pursuant to this Section 7 shall be given to the
Corporation promptly upon the filing of such application. If
successful, in whole or in part, Indemnitee shall be entitled to be paid the
expense of prosecuting such application.
If a determination is made or deemed to have been made
under the terms of this Agreement that Indemnitee is entitled to
indemnification, the Corporation shall be bound by such
determination and shall be precluded from asserting that such determination has
not been made or that the procedure by which such determination was made is not valid, binding and
enforceable. In any suit brought by Indemnitee to enforce a right to
indemnification or advancement of Expenses hereunder, or by the Corporation to
recover an advancement of Expenses, the burden of proving that Indemnitee is not
entitled to be indemnified, or to such advancement of Expenses, shall be on the
Corporation.
8. Subrogation. In
the event of payment under this Agreement, the Corporation 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 Corporation effectively to bring suit to enforce such
rights. The Corporation shall pay or reimburse all expenses actually
and reasonably incurred by Indemnitee in connection with such
subrogation.
9. Exceptions to Corporation’s
Obligations. Except to the extent required under Section 3 of
this Agreement, the Corporation shall not be liable under this
Agreement:
(a) To indemnify or advance amounts to Indemnitee in
connection with any action, suit or proceeding initiated or brought voluntarily by
Indemnitee and not by way of defense, unless said action, suit or proceedings
were authorized by the Board of Directors of the Corporation or brought by
Indemnitee to enforce rights under this Agreement.
(b) To indemnify Indemnitee in connection with any
Proceeding brought by or on behalf of the Corporation against Indemnitee that is
authorized by the Board of Directors of the Corporation, except as provided in
Section 3 hereof.
(c) To indemnify Indemnitee for any amounts for which
payment is actually made to Indemnitee under an insurance policy maintained
by the Corporation or its Affiliate, except in respect of any excess beyond the
amount of payment under such insurance;
(d) To indemnify Indemnitee for any amounts for which
Indemnitee has actually received payment by the Corporation or its Affiliate otherwise
than pursuant to this Agreement;
(e) To indemnify Indemnitee for liability based upon or
attributable to Indemnitee gaining any personal profit or advantage to which
Indemnitee was not legally entitled, provided, however, that
notwithstanding the foregoing, Indemnitee shall be protected under this
Agreement as to any claims upon which suit may be brought alleging that the
Indemnitee gained any personal profit or advantage to which Indemnitee was not
legally entitled, unless a judgment or other final adjudication thereof adverse
to Indemnitee shall establish that Indemnitee gained any such personal profit or
advantage;
(f) To indemnify Indemnitee for an accounting of profits
made from the purchase or sale by Indemnitee of securities of the Corporation
within the meaning of Section l6(b) of the Securities Exchange Act of l934 and
amendments thereto or similar provisions of any state statutory law or common
law; or
(g) To indemnify Indemnitee for liability brought about or
contributed to by the dishonesty of Indemnitee; provided, however,
that notwithstanding the foregoing, Indemnitee shall be protected under this
Agreement as to any claims upon which suit may be brought alleging dishonesty on
the part of Indemnitee, unless a judgment or other final adjudication thereof
adverse to Indemnitee shall establish that Indemnitee committed acts of active
and deliberate dishonesty with actual dishonest purpose and
intent.
10. Right to Rely on Experts.
Notwithstanding anything to the contrary
herein, Indemnitee shall be entitled to indemnification for any action or
omission to act undertaken (a) in good faith reliance upon the records of the
Corporation, including its financial statements, or upon information,
opinions, reports or statements furnished to Indemnitee by the officers or
employees of the Corporation or any of its Affiliates in the course of their
duties, or by committees of the board of directors of the Corporation, or by any
other Person as to matters Indemnitee reasonably believes are within such other
Person's professional or expert competence, or (b) on behalf of the Corporation
in furtherance of the interests of the Corporation in good faith in reliance
upon, and in accordance with, the advice of legal counsel or accountants,
provided such legal counsel or accountants were selected with reasonable care by
or on behalf of the Corporation. In addition, the knowledge and/or
actions, or failures to act, of any director, officer, agent or employee of the
Corporation shall not be imputed to Indemnitee for purposes of determining the
right to indemnity hereunder.
11. Approval of
Settlement. The Corporation shall
not be liable to indemnify Indemnitee under this Agreement for any amounts paid
in settlement of any Proceeding effected without the Corporation's prior written
approval. The Corporation shall not settle any
Proceeding in any manner that would impose any penalty or limitation on or
disclosure obligation with respect to Indemnitee without Indemnitee's prior
written approval. Neither the Corporation nor Indemnitee shall
unreasonably withhold its approval of any proposed settlement.
12. Scope. In the event of any changes, after the
date
of this Agreement, in any applicable law, statute, or rule which expands the
right of a Delaware corporation to indemnify or advance expenses to an
Indemnitee, such changes shall be, ipso facto, within the purview of
Indemnitee's rights and the Corporation's obligations under this
Agreement. In the event of any change in any applicable law, statute,
or rule which narrows the right of a Delaware corporation to indemnify or
advance expenses to and Indemnitee, such changes, except to the extent otherwise
required by such law, statute or rule to be applied to this Agreement shall have
no effect on this Agreement or the parties' rights and obligations
hereunder.
13. Non-Exclusivity;
Continuation of Rights. The
rights
provided under this Agreement shall not be deemed exclusive of any rights to
which an Indemnitee may be entitled under the Corporation's Restated Certificate
of Incorporation, its By-Laws, any agreement, any vote of stockholders or
Disinterested Directors, the Delaware General Corporation Law, or otherwise,
both as to action in Indemnitee's official capacity and as to action in another
capacity while holding such office. The rights provided under this
Agreement shall continue as to Indemnitee for an action taken or not taken while
serving in an indemnified capacity even though he may have ceased to serve in
such capacity at the time of any Proceeding. No amendment or
alteration of the Corporation’s Restated Certificate of Incorporation, By-Laws
or any other agreement shall adversely affect the rights provided to Indemnitee
under this Agreement.
14. Partial
Indemnification. If Indemnitee
is entitled under any provision of this Agreement to
indemnification by the Corporation for some or a portion of the amounts actually
or reasonably incurred by Indemnitee in connection with a Proceeding, or in
connection with any suit brought by Indemnitee to enforce a right to
indemnification or advancement of Expenses under this Agreement, but not,
however, for the total amount thereof, the Corporation shall nevertheless
indemnify Indemnitee for that portion of such amount to which Indemnitee is
entitled.
15. Notice. Indemnitee
shall give to the Corporation notice in writing as soon as practicable after
receipt by Indemnitee of notice of any claim made against Indemnitee for which
indemnification or advancement of Expenses will or could be sought under this
Agreement; provided, however, that the failure to notify the Corporation shall
not relieve the Corporation of any liability to Indemnitee that it may have
under this Agreement. Notice to the Corporation shall be directed to Textron
Inc., 00 Xxxxxxxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxx Xxxxxx 00000,
attention: Corporate Secretary (or such other address as the
Corporation shall designate in writing to Indemnitee). Notice shall
be deemed received if sent by prepaid mail properly addressed, the date of such
notice being the date postmarked. In addition, Indemnitee shall give
the Corporation such information and cooperation as it may reasonably
request.
16. Prior
Agreements. This Agreement may
not be released, discharged, abandoned, changed or modified in any
manner except by an instrument in writing signed by the parties. This
Agreement shall supersede and replace any prior indemnification agreements
entered into by and between the Corporation and Indemnitee and any such prior
agreements shall be terminated upon execution of this
Agreement.
17. Agreement to
Serve. Indemnitee agrees to continue to serve as a Director of
the Corporation to the best of Indemnitee's ability until the expiration or
earlier termination of Indemnitee's term of office or until Indemnitee tenders
his or her resignation in writing.
18. Governing Law; Consent to
Jurisdiction. This Agreement shall be governed by and
construed in accordance with Delaware law, as
applied to contracts between Delaware residents entered into and to be performed
entirely within Delaware, and without regard to choice of law
principles. The Corporation and Indemnitee each
hereby irrevocably consent to the jurisdiction of the courts of the State of
Delaware for all purposes in connection with any action or proceeding which
arises out of or related to this Agreement and agree that ay action instituted
under this Agreement shall be brought only in the state courts of the State of
Delaware.
19. Successors and
Assigns. This Agreement shall be binding upon all successors
and assigns of the Corporation (including any transferee of all or substantially
all of its assets and any successor by merger or operation of law) and shall
be binding upon and inure to the benefit of and be enforceable by the
heirs, executors and personal and legal representatives and estate of
Indemnitee. This Agreement shall continue in effect regardless of
whether Indemnitee continues to serve as a director of the Corporation or any of
its Affiliates.
20. Separability; Waiver.
If any provision or provisions of this Agreement shall be held to be invalid,
illegal, avoidable or unenforceable for any reason whatsoever (a) the validity,
legality, unavoidability and enforceability of the remaining provisions of this
Agreement (including, without limitation, all portions of any paragraphs of this
Agreement containing any such provision held to be invalid, illegal, avoidable
or unenforceable, that are not by themselves invalid, illegal, avoidable or
unenforceable) shall not in any way be affected or impaired thereby, and (b) to
the fullest extent possible, the provisions of this Agreement (including,
without limitation, all portions of any paragraph of this Agreement containing
any such provision held to be invalid, illegal, avoidable or unenforceable, that
are not by themselves invalid, illegal, avoidable or unenforceable) shall be
construed so as to give effect to the intent of the parties that the Corporation
provide protection to Indemnitee to the fullest enforceable
extent. 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.
IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed as of the day and year first above written.
| ATTEST: | TEXTRON INC. | ||
| By: | |||
|
|
|||
| (Name of Indemnitee) |
