Exhibit 10(J)
PRIVILEGED AND CONFIDENTIAL
INDEMNIFICATION
AGREEMENT
This Indemnification Agreement
(“Agreement”) is made as of
,
by and between Carpenter Technology Corporation a Delaware
corporation, and
(“Indemnitee”).
RECITALS
WHEREAS, highly competent persons
have become more reluctant to serve publicly-held corporations as
directors or in other capacities unless they are provided with
adequate protection through insurance or adequate indemnification
against inordinate risks of claims and actions against them arising
out of their service to and activities on behalf of the
corporation.
WHEREAS, the Restated Certificate of
Incorporation and Bylaws of the Company require indemnification of
the officers and directors of the Company, and Indemnitee may also
be entitled to indemnification pursuant to the Delaware General
Corporation Law (“DGCL”).
WHEREAS, the Board of Directors of
the Company (the “Board”) has determined that, in order
to attract and retain qualified individuals, the Company will
attempt to maintain on an ongoing basis, at its sole expense,
liability insurance to protect persons serving the Company and its
subsidiaries from certain liabilities.
WHEREAS, the uncertainties relating
to such insurance and to indemnification have increased the
difficulty of attracting and retaining such persons.
WHEREAS, the Board has determined
that the increased difficulty in attracting and retaining such
persons is detrimental to the best interests of the Company’s
stockholders and that the Company should act to assure such persons
that there will be increased certainty of such protection in the
future.
WHEREAS, it is reasonable, prudent
and necessary for the Company contractually to obligate itself to
indemnify, and to advance expenses on behalf of, such persons to
the fullest extent permitted by applicable law so that they will
serve or continue to serve the Company free from undue concern that
they will not be so indemnified.
WHEREAS, this Agreement is a
supplement to and in furtherance of the Restated Certificate of
Incorporation and Bylaws of the Company and any resolutions adopted
pursuant thereto and any liability insurance, and shall not be
deemed a substitute therefor, nor to diminish or abrogate any
rights of Indemnitee thereunder.
WHEREAS, Indemnitee does not regard
the protection available under the Company’s Restated
Certificate of Incorporation, Bylaws and insurance as adequate in
the present circumstances, and may not be willing to serve as an
officer or director without adequate protection, and the Company
desires Indemnitee to serve in such capacity. Indemnitee is willing
to serve, continue to serve and to take on additional service for
or on behalf of the Company on the condition that he be so
indemnified;
NOW, THEREFORE, in consideration of
the promises and the covenants contained herein, the Company and
Indemnitee do hereby covenant and agree as follows:
1. Services to the Company.
Indemnitee will serve or continue to serve, at the will of the
Company, as an officer, director or key employee of the Company for
so long as Indemnitee is duly elected or appointed or until
Indemnitee tenders his or her resignation; however, this Agreement
shall not impose any obligation on Indemnitee or the Company to
continue Indemnitee’s service to the Company beyond any
period otherwise required by law or by other agreements or
commitments or the parties, if any.
2. Definitions. As used in
this Agreement
(a) A “Change in
Control” shall be deemed to occur upon the earliest to occur
after the date of this Agreement of any of the following
events:
(i) Acquisition of Stock by Third
Party. Any Person (as defined below) or group (within the meaning
of Section 13(d)(3) and Section 14(d)(2) of the Exchange Act, or
any successor provision) is or becomes the Beneficial Owner (as
defined below), directly or indirectly, of securities of the
Company representing twenty percent (20%) or more of the combined
voting power of the Company’s then outstanding
securities;
(ii) Change in Board of Directors.
During any period of two (2) consecutive years (not including any
period prior to the execution of this Agreement), individuals who
at the beginning of such period constitute the Board, and any
director (other than a director designated by a person who has
entered into an agreement with the Company to effect a transaction
described in Sections 2(a)(i), 2(a)(iii) or 2(a)(iv)) whose
election by the Board or nomination for election by the
Company’s stockholders was approved by a vote of at least
two-thirds 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 least a majority of the members of the
Board;
(iii) Corporate Transactions. The
effective date of a merger or consolidation of the Company with any
other entity, other than a merger or consolidation which would
result in the voting securities of the Company 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), in substantially
the same proportions as their current ownership of stock, more than
51% of the combined voting power of the voting securities of the
surviving entity outstanding immediately after such merger or
consolidation and with the power to elect at least a majority of
the board of directors or other governing body of such surviving
entity;
(iv) Liquidation. The approval by
the stockholders of the Company of a complete liquidation of the
Company or an agreement for the sale or disposition by the Company
of all or substantially all of the Company’s assets other
than such a sale or disposition to an entity in
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which the Company or its shareholders continue
to own after such a sale at least 51% of the total voting power
represented by the voting securities of such entity in
substantially the same proportions as their then current ownership
of stock of the Company and have the power to elect at least a
majority of the board of directors or other governing body of such
surviving entity; and
(v) Other Events. There occurs any
other event of a nature that would be required to be reported in
response to Item 6(e) of Schedule 14A of Regulation 14A (or a
response to any similar item on any similar schedule or form)
promulgated under the Exchange Act (as defined below), whether or
not the Company is then subject to such reporting
requirement.
For purposes of this Section 2(a), the following
terms shall have the following meanings:
(A) “Exchange Act” shall
mean the Securities Exchange Act of 1934, as amended.
(B) “Person” means an
individual, entity, partnership, limited liability company,
corporation, association, joint stock company, trust, joint
venture, unincorporated organization, and a governmental entity or
any department agency or political subdivision thereof; provided,
however, that Person shall exclude (i) the Company, (ii) any
trustee or other fiduciary holding securities under an employee
benefit plan of the Company, and (iii) any corporation owned,
directly or indirectly, by the stockholders of the Company in
substantially the same proportions as their ownership of stock of
the Company.
(C) “Beneficial Owner”
shall have the meaning given to such term in Rule 13d-3 under the
Exchange Act.
(b) “Company” shall mean
Carpenter Technology Corporation, and shall include, in addition to
the resulting corporation, any constituent corporation (including
any constituent of a constituent) absorbed in a consolidation or
merger which, if its separate existence had continued, would have
had power and authority to indemnify its directors, officers,
employees, trustees, fiduciaries or agents, so that if Indemnitee
is or was a director, officer, employee, trustee, fiduciary or
agent of such constituent corporation, or is or was serving at the
request of such constituent corporation as a director, officer,
employee. trustee, fiduciary or agent of another corporation,
partnership, joint venture, trust employee benefit program or other
enterprise, Indemnitee shall stand in the same position under the
provisions of this Agreement with respect to the resulting or
surviving corporation as Indemnitee would have with respect to such
constituent corporation if its separate existence had
continued.
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(c) “Corporate Status”
describes the status of a person who is or was a director, officer,
employee, agent, trustee or fiduciary of the Company or of any
other corporation, partnership or joint venture, trust, employee
benefit plan or other enterprise which such person is or was
serving at the request of the Company.
(d) “Disinterested
Director” means a director of the Company who is not and was
not a party to the Proceeding in respect of which indemnification
is sought by Indemnitee.
(e) “Enterprise” shall
mean the Company and any other corporation, partnership, joint
venture, trust, employee benefit plan or other enterprise of which
Indemnitee is or was serving at the request of the Company as a
director, officer, employee, agent, trustee or
fiduciary.
(f) “Expenses” shall
mean all retainers, court costs, transcript costs, fees of experts,
witness fees, private investigators, travel expenses, duplicating
costs, printing and binding costs, telephone charges, postage, fax
transmission charges, secretarial services, delivery service fees,
reasonable attorneys’ fees, and all other disbursements or
expenses of the types customarily incurred in connection with
prosecuting, defending, preparing to prosecute or defend,
investigating, being or preparing to be a witness in, or otherwise
participating in, a Proceeding or in connection with seeking
indemnification under this Agreement. Expenses also shall include
Expenses incurred in connection with any appeal resulting from any
Proceeding, including without limitation the premium, security for,
and other costs relating to any cost bond, supersedeas bond, or
other appeal bond or its equivalent. Expenses, however, shall not
include amounts paid in settlement by Indemnitee or the amount of
judgments or fines against Indemnitee
(g) “Losses” shall mean
all loss, liability, judgments, damages, amounts paid in
settlement, fines, penalties, interest, assessments, other charges
or, with respect to an employee benefit plan, excise taxes or
penalties assessed with respect thereto.
(h) Reference to “other
enterprise” shall include employee benefit plans; references
to “fines” shall include any excise tax assessed with
respect to any employee benefit plan; references to “serving
at the request of the Company” shall include any service as a
director, officer, employee, trustee, fiduciary or agent of the
Company which imposes duties on, or involves services by, such
director, officer, employee, trustee, fiduciary or agent with
respect to an employee benefit plan, its participants or
beneficiaries; and a person who acted in good faith and in a manner
he reasonably believed to be in the best interests of the
participants and beneficiaries of an employee benefit plan shall be
deemed to have acted in a manner “not opposed to the best
interests of the Company” as referred to under applicable
law.
(i) The term
“Proceeding” shall include any threatened, pending or
completed action, suit, arbitration, alternate dispute resolution
mechanism, investigation, inquiry, administrative hearing or any
other actual, threatened or completed proceeding, including any and
all appeals, whether brought in the right of the Company
or
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otherwise and whether of a civil,
criminal, administrative or investigative nature and whether formal
or informal, in which Indemnitee was, is or will be involved as a
party or otherwise by reason of or relating to the fact that
Indemnitee is or was a director, officer, employee, agent, trustee
or fiduciary of the Company, by reason of or relating to any action
taken by him or of any action on his part while acting as director,
officer, employee, agent, trustee or fiduciary of the Company, or
by reason of the fact that he is or was serving at the request of
the Company as a director, officer, employee, agent or fiduciary of
another Enterprise, in each case whether or not serving in such
capacity at the time any Loss or Expense is incurred for which
indemnification, reimbursement, or advancement of Expenses can be
provided under this Agreement, including one initiated by a
Indemnitee to enforce his rights under this Agreement.
(j) “Independent
Counsel” means a law firm, or a member of a law firm, that is
experienced in matters of relevant corporation law and neither
presently is, nor in the past five years has been, retained to
represent: (i) the Company or Indemnitee in any matter material to
either such party (other than with respect to matters concerning
the Indemnitee under this Agreement, or of other indemnitees under
similar indemnification agreements), or (ii) any other party to the
Proceeding giving rise to a claim for indemnification hereunder.
Notwithstanding the foregoing, the term “Independent
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 Company or
Indemnitee in an action to determine Indemnitee’s rights
under this Agreement. The Company agrees to pay the reasonable fees
and expenses of the Independent Counsel referred to above and to
fully indemnify such counsel against any and all Expenses and
Losses arising out of or relating to this Agreement or its
engagement pursuant hereto.
(k) For purposes of Sections 3 and
4, the meaning of the phrase “to the fullest extent permitted
by law” shall include, but not be limited to:
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A.
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to the fullest
extent permitted by Section 145 of the DGCL or any section that
replaces or succeeds Section 145 with respect to such matters of
the DGCL, and
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B.
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to the fullest
extent authorized or permitted by any amendments to or replacements
of the DGCL adopted after the date of this Agreement that increase
the extent to which a corporation may indemnify its officers,
directors, employees, agents, trustees, fiduciaries and other
persons acting or serving at the Company’s
request.
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3. Indemnity in Third-Party
Proceedings. The Company shall indemnify Indemnitee in
accordance with the provisions of this Section 3 if Indemnitee was
or is, or was or is threatened to be made, a party to or a witness
or participant in any Proceeding, other than a Proceeding by or in
the right of the Company to procure a judgment in its favor.
Pursuant to this Section 3, Indemnitee shall be indemnified against
all Expenses and Losses to the fullest extent permitted under
law.
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4. Indemnity in Proceedings by or
in the Right of the Company. The Company shall indemnify
Indemnitee in accordance with the provisions of this Section 4 if
Indemnitee was or is, or was or is threatened to be made, a party
to or a participant in any Proceeding by or in the right of the
Company to procure a judgment in its favor. Pursuant to this
Section 4, Indemnitee shall be indemnified against all Expenses and
Losses actually and reasonably incurred or suffered by him or on
his behalf in connection with such Proceeding or any claim, issue
or matter therein to the fullest extent permitted under law. No
indemnification for Expenses shall be made under this Section 4 in
respect of any claim, issue or matter as to which Indemnitee shall
have been finally adjudged by a court to be liable to the Company,
unless and only to the extent that the Delaware Court of Chancery
or any court in which the Proceeding was brought shall determine
upon application that, despite the adjudication of liability but in
view of all the circumstances of the case, Indemnitee is fairly and
reasonably entitled to indemnification.
5. Indemnification for Expenses
of a Party Who is Wholly or Partly Successful. Notwithstanding
any other provisions of this Agreement, to the extent that
Indemnitee was or is a party to (or a participant in) and is
successful, on the merits or otherwise, in any Proceeding or in
defense of any claim, issue or matter therein, in whole or in part,
the Company shall indemnify Indemnitee against all Expenses
actually and reasonably incurred by him in connection therewith. If
Indemnitee is not wholly successful in such Proceeding but is
successful, on the merits or otherwise, as to one or more but less
than all claims, issues or matters in such Proceeding, the Company
shall indemnify Indemnitee against all Expenses actually and
reasonably incurred by him or on his behalf in connection with each
successfully resolved claim, issue or matter and any claim, issue
or matter related to any claim, issue, or matter on which the
Indemnitee was successful. For purposes of this Section and without
limitation, the termination of any claim, issue or matter in such a
Proceeding by dismissal, with or without prejudice, shall be deemed
to be a successful result as to such claim, issue or
matter.
6. Indemnification For Expenses
of a Witness. Notwithstanding any other provision of this
Agreement, to the extent that Indemnitee is, by reason of his
Corporate Status, a witness in any Proceeding to which Indemnitee
is not a party, he shall be indemnified against all Expenses
actually and reasonably incurred by him or on his behalf in
connection therewith.
7. Exclusions.
Notwithstanding any provision in this Agreement, the Company shall
not be obligated under this Agreement to make any indemnity in
connection with any claim made against Indemnitee:
(a) for which payment has actually
been made to or on behalf of Indemnitee under any insurance policy
or other indemnity provision, except with respect to any excess
beyond the amount paid under any insurance policy or other
indemnity provision; or
(b) for an accounting of profits
made from the purchase and sale (or sale and purchase) by
Indemnitee of securities of the Company within the meaning of
Section 16(b) of the Securities Exchange Act of 1934, as amended,
or similar provisions of state statutory law or common law;
or
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(c) in connection with any
Proceeding (or any part of any Proceeding) initiated or brought
voluntarily by Indemnitee prior to a Change of Control against the
Company or its directors, officers, employees or other indemnitees,
unless (i) the Board of Directors of the Company authorized the
Proceeding (or any part of any Proceeding) prior to its initiation,
(ii) the Company provides the indemnification, in its sole
discretion, pursuant to the powers vested in the Company under
applicable law.
8. Advances of Expenses.
Notwithstanding any provision of this Agreement to the contrary,
the Company shall advance the Expenses incurred by Indemnitee in
connection with any Proceeding for which indemnification is or may
be available pursuant to this Agreement within 20 days after the
receipt by the Company of a statement or statements requesting such
advances from time to time, whether prior to or after final
disposition of any Proce