INDEMNITY AGREEMENT
THIS AGREEMENT is made between Atlantic Coast Airlines, Inc.,
a Delaware corporation (the "Company"), and _____________ ("Indemnitee").
The Company and Indemnitee desire that Indemnitee serve or
continue to serve as a director or officer of the Company. In view of the
potential risks of personal liability to which Indemnitee may be exposed
as a result of his service as a director or officer of the Company,
Indemnitee is unwilling to serve, or continue to serve, the Company as a
director or officer without assurances that adequate liability insurance,
indemnification or a combination thereof is, and will continue to be
provided. Therefore, in order to induce Indemnitee to serve as a director
or officer of the Company, the Company desires and intends hereby to
provide indemnification (including advancement of expenses) against any
and all liabilities asserted against Indemnitee to the fullest extent
permitted by Section 145 of the General Corporation Law of the State of
Delaware. For and in consideration of the premises and the covenants
contained herein, the Company and Indemnitee do hereby covenant and agree
as follows:
1. Continued Service. Indemnitee will serve or continue to
serve, at the will of the Company or under separate contract, if such
exists, as a director and/or officer so long as he is duly elected and
qualified in accordance with the Bylaws of the Company or until he tenders
his resignation.
2. Indemnification. The Company shall indemnify Indemnitee
as follows:
(a) The Company shall indemnify Indemnitee in the
event that he is or was a party or is threatened to be made a party to any
threatened, pending or completed action, suit or proceeding, whether
civil, criminal, administrative or investigative (other than an action by
or in the right of the Company) by reason of the fact that he is or was a
director, officer, employee or agent of the Company, or is or was serving
at the request of the Company as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other
enterprise, against expenses (including attorneys' fees), judgments, fines
and amounts paid in settlement actually and reasonably incurred by him or
on his behalf in connection with such action, suit or proceeding, if he
acted in good faith and in a manner he reasonably believed to be in or not
opposed to the best interests of the Company, and, with respect to any
criminal action or proceeding, had no reasonable cause to believe his
conduct was unlawful.
(b) The Company shall indemnify Indemnitee in the
event that he is or was a party or is threatened to be made a party to any
threatened, pending or completed action or suit by or in the right of the
Company to procure a judgment in its favor by reason of the fact that he
is or was a director, officer, employee or agent of the Company, or is or
was serving at the request of the Company as a director, officer, employee
or agent of another corporation, partnership, joint venture, trust or
other enterprise, against expenses (including attorneys' fees) actually
and reasonably incurred by him or on his behalf in connection with the
defense or settlement of such action or suit if he acted in good faith and
in a manner he reasonably believed to be in or not opposed to the best
interest of the Company and except that no indemnification shall be made
in respect of any claim, issue or matter as to which Indemnitee shall have
been adjudged to be liable to the Corporation for gross negligence or
willful misconduct in the performance of his duties to the Company unless
and only to the extent that the Delaware Court of Chancery 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 indemnity for such expenses as the Delaware Court of Chancery
shall deem proper.
(c) Any indemnification under paragraphs (a) and (b)
of this Section 2 (unless ordered by a court) shall be made by the Company
within 65 days of the submission by the Indemnitee of the Indemnification
Statement (as defined under Section 3(a) hereof) and only as authorized in
the specific case upon a determination (in accordance with Section 3
hereof) that indemnification of Indemnitee is proper in the circumstances
because he has met the applicable standard of conduct set forth in
paragraphs (a) and (b) of this Section 2. Such determination shall be
made (i) by a majority vote of the directors who are not or were not
parties to such action ("Disinterested Directors"), suit or proceeding,
even if the number of Disinterested Directors is less than a quorum, or
(ii) if there are no Disinterested Directors or if a majority of
Disinterested Directors so directs, by independent legal counsel in a
written opinion, or (iii) by the stockholders. The independent legal
counsel may be outside counsel currently or previously employed by the
Company, provided that such counsel (A) has not provided legal services to
the Indemnitee, (B) does not regularly advise the Directors or senior
management of the Company with respect to their actions, duties and
responsibilities, and (C) and has not provided legal services to the
Company or the Indemnitee with respect to the transaction or matter out of
which the action, suit or proceeding arose.
(d) Expenses (including attorney fees) incurred by
Indemnitee in defending a civil, criminal, administrative or investigative
action, suit or proceeding to which Indemnitee is or was a party or is
threatened to be made a party by reason of the fact that he is or was a
director or officer of the Company shall be paid by the Company in advance
of the final disposition of such action, suit or proceeding within 14 days
of the receipt by the Company of a sworn statement of request for
advancement of expenses substantially in the form of Exhibit A attached
hereto and made a part hereof ("Undertaking"), averring that (i) he has
reasonably incurred or will reasonably incur actual expenses in defending
a civil, criminal, administrative or investigative action, suit or
proceeding, and (ii) he undertakes to repay such amount if it is
ultimately determined that he is not entitled to be indemnified by the
Company under this Agreement or otherwise; provided that no such expenses
shall be payable hereunder to the extent that the Disinterested Directors,
independent legal counsel, or stockholders, as the case may be, promptly
make a determination as provided herein that the Undertaking is with
respect to an excluded claim as defined in Section 5 hereof.
(e) The Company shall have no obligation to indemnify
Indemnitee under this Agreement for any amounts paid in a settlement of
any action, suit or proceeding effected without the Company's prior
written consent, which consent shall not be unreasonably withheld. The
Company shall not settle any claim in any manner that would impose any
obligation on Indemnitee without the Indemnitee's prior written consent.
Indemnitee shall not unreasonably withhold his consent to any proposed
settlement.
(f) The rights to indemnification and advancement of
expenses provided by this Agreement shall not be deemed exclusive of any
other rights to which Indemnitee may be entitled under any statute, bylaw,
insurance policy, agreement, vote of stockholders or Disinterested
Directors or otherwise, both as to action in his official capacity and as
to action in another capacity while holding such office, and shall
continue after Indemnitee has ceased to be a director, officer, employee
or agent and shall inure to the benefit of his heirs, executors and
administrators.
3. Determination of Right to Indemnification. For purposes
of making the determination in a specific case under paragraph (c) of
Section 2 hereof whether to make indemnification, the Disinterested
Directors, independent legal counsel, or stockholders, as the case may be,
shall make such determination in accordance with the following procedure:
(a) Indemnitee may submit to the board of directors a
sworn statement requesting indemnification, which statement shall be
substantially in the form of Exhibit B attached hereto and made a part
hereof (the "Indemnification Statement"), averring that he has met the
applicable standard of conduct set forth in paragraphs (a) and (b) of
Section 2 hereof; and
(b) Submission of the Indemnification Statement to the
board of directors shall create a rebuttable presumption that Indemnitee
is entitled to indemnification under this Agreement, and the Disinterested
Directors, independent legal counsel, or stockholders, as the case may be,
shall within 60 days after submission of the Indemnification Statement
specifically determine that Indemnitee is so entitled, unless it or they
make a determination that (i) sufficient evidence exists to rebut the
presumption that Indemnitee has met the applicable standard of conduct set
forth in paragraphs (a) or (b) of Section 2 hereof or (ii) that the
Indemnification Statement is with respect to an excluded claim as defined
in Section 5 hereof.
4. Merger, Consolidation or Sale of Assets. In the event
that the Company shall be a constituent corporation in a consolidation or
merger, whether the Company is the resulting or surviving corporation or
is absorbed, Indemnitee shall stand in the same position under this
Agreement with respect to the resulting, surviving or changed corporation
as he would have with respect to the Company if its separate existence had
continued. The Board of Directors of the Company shall use its best
efforts to make any sale or transfer of substantially all of the assets of
the Company contingent upon the acquiring party expressly assuming or
guaranteeing the Company's obligations under this Agreement.
5. Certain Definitions. For purposes of this Agreement,
the following definitions apply herein:
"other enterprises" shall include employee benefit plans, and
civic, non-profit, or charitable organizations, whether or not
incorporated;
"fines" shall include any excise taxes assessed on Indemnitee
with respect to any employee benefit plan;
"serving at the request of the Company" shall include any
service at the request or with the express or implied authorization of the
Company, as a director, officer, employee or agent of the Company which
imposes duties on, or involves services by, Indemnitee with respect to a
corporation or "other enterprises," its participants or beneficiaries; and
if Indemnitee acted in good faith and in a manner he reasonably believed
to be in the interest of the participants and beneficiaries of such "other
enterprises," he shall be deemed to have acted in a manner "not opposed to
the best interests of the Company" as referred to in this Agreement; and
"excluded claim" shall include any claim (i) based upon or
attributable to Indemnitee gaining any personal profit or advantage to
which Indemnitee is not entitled, (ii) for an accounting of profits made
from the purchase or sale by Indemnitee of securities of the Company
within the meaning of Section 16 of the Securities Exchange Act of 1934,
as amended, or similar provisions of any state law, or (iii) the payment
of which by the Company is not permitted under any applicable law.
6. Attorney's Fees. In the event that Indemnitee
institutes any legal action to enforce his rights under, or to recover
damages for breach of this Agreement, Indemnitee, if he prevails in whole
or in part, shall be entitled to recover from the Company all attorneys'
fees and disbursements incurred by him.
7. Severability. If any provision of this Agreement or the
application of any provision hereof to any person or circumstances is held
invalid, the remainder of this Agreement and the application of such
provision to other persons or circumstances shall not be affected.
8. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Delaware without
regard to its conflict of laws rules.
9. Modification, Survival. Subject to paragraph (e) of
Section 2 hereof, this Agreement contains the entire agreement of the
parties relating to the subject matter hereof and shall supersede all
other agreements and understandings, if any, between the parties with
respect to the matters contemplated herein. This Agreement may be
modified only by an instrument in writing signed by both parties hereto.
The provisions of this Agreement shall survive the termination of
Indemnitee's service as a director or officer of the Company.
10. Successors and Assigns. This Agreement shall be binding
upon all successors and assigns of the Company and any successors by
merger or otherwise by operation of law, and shall be binding upon and
inure to the benefit of the heirs, executors and administrators of the
Indemnitee.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement and set their seals effective as of the day of ,
199 .
ATLANTIC COAST AIRLINES, INC.
Attest: By:
Secretary President
(Corporate Seal) INDEMNITEE
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