EXHIBIT 10.1
INDEMNITY AGREEMENT
This Indemnity Agreement (this "Agreement") is made as of the ____ day of
________, 2005 by and between US Airways Group, Inc., a Delaware corporation
(the "Corporation") and __________ ("Indemnitee").
WITNESSETH:
WHEREAS, it is essential to the Corporation to retain and attract as
Directors and Officers the most capable persons available; and
WHEREAS, both the Corporation and the Indemnitee recognize the increased
risk of litigation and other claims being asserted against Directors and
Officers of public companies in today's environment; and
WHEREAS, the substantial increase in corporate litigation subjects
Directors and Officers to expensive litigation risks at the same time that the
availability of Directors' and Officers' liability insurance has been severely
limited; and
WHEREAS, it is now and has always been the express policy of the
Corporation to indemnify its Directors and Officers so as to provide them with
the maximum possible protection permitted by law; and
WHEREAS, Indemnitee does not regard the protection available under the
Corporation's Amended and Restated Certificate of Incorporation and Bylaws and
insurance as adequate in the present circumstances, and may not be willing to
serve as a Director or an Officer without adequate protection; and
WHEREAS, the Board of Directors of the Corporation has determined that the
inability to attract and retain the Indemnitee would be detrimental to the best
interests of the Corporation and to its stockholders and the Corporation should
act to assure such persons that there will be increased certainty of such
protection in the future; and
NOW, THEREFORE, in consideration of the Indemnitee's continued services as
a Director or an Officer of the Corporation, the Corporation and Indemnitee do
hereby agree as follows:
1. AGREEMENT TO SERVE. Indemnitee agrees to serve or continue to serve as a
Director or an Officer of the Corporation for so long as he or she is duly
elected or appointed or until such time as he or she tenders his or her
resignation in writing.
2. DEFINITIONS. As used in this Agreement:
(a) References to the "Corporation" shall include US Airways Group,
Inc., any parent, subsidiary or affiliate of US Airways Group, Inc., and
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, agents or
fiduciaries, so that if Indemnitee is or was a director, officer, employee,
agent or fiduciary of such constituent corporation, or is or was serving at
the request of such constituent corporation as a director, officer,
employee, agent or fiduciary of another corporation, partnership, joint
venture, employee benefit plan, trust 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.
(b) The term "Proceeding" shall include any threatened, pending or
completed action, suit, arbitration, alternative dispute resolution
mechanism, investigation, administrative hearing or proceeding, whether
brought against, by or in the right of the Corporation or otherwise, and
whether of a civil, criminal, administrative or investigative nature, in
which Indemnitee is, was or becomes a party, witness or participant or is
threatened to be made a party, witness or participant by reason of the fact
that Indemnitee is or was a Director and/or Officer of the Corporation, or
is or was serving at the written request of the Corporation as a director,
officer, employee, agent or fiduciary of another corporation, partnership,
joint venture, trust or other enterprise. A "Proceeding" shall include
Proceedings with respect to which the event or events that form the subject
matter of the Proceeding occurred prior to the date of this Agreement, so
long as the Indemnitee was at that time a Director and/or Officer of the
Corporation or serving at the request of the Corporation as set forth in
the previous sentence.
(c) The term "Expenses" shall include, without limitation, expenses of
investigations, judicial or administrative proceedings or appeals, amounts
paid in settlement by or on behalf of Indemnitee, attorneys' fees,
retainers, court costs, transcript costs, fees of experts, witness fees,
travel expenses, duplicating costs, printing and binding costs, telephone
charges, postage, delivery service fees and all other disbursements, costs,
expenses and obligations paid or incurred in connection with investigating,
prosecuting, defending, being a witness in, or participating in (including
an appeal), or preparing to prosecute, defend, be a witness in, any
Proceeding or in connection with establishing a right to indemnification
under Paragraph 7 of this Agreement, but shall not include amounts of
judgments, fines or penalties against Indemnitee.
(d) References to "other enterprises" shall include employee benefit
plans; references to "fines" shall include any excise taxes assessed on
Indemnitee with respect to any employee benefit plan; references to
"serving at the request of the Corporation" shall include any service as a
Director, Officer, employee or agent of the Corporation which imposes
duties on, or involves services by, such Director, Officer, employee 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 or
she reasonably believed to be in the interest of the participants and
beneficiaries of an employee benefit plan shall be deemed to have acted in
a manner "not opposed to the best interest of the Corporation" as referred
to in this Agreement.
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3. INDEMNITY IN THIRD PARTY PROCEEDINGS. The Corporation shall indemnify
Indemnitee in accordance with the provisions of this paragraph, against all
Expenses, judgments, fines, ERISA excise taxes and penalties and amounts
paid in settlement (including all interest, assessments, and other charges
paid or payable in connection with or in respect of such Expenses actually
and reasonably incurred by or for Indemnitee in connection with any
Proceeding (other than a Proceeding by or in the right of the Corporation
to procure a judgment in its favor), or any claim, issue or matter therein,
but only if Indemnitee acted in good faith and in a manner in which he or
she reasonably believed to be in or not opposed to the best interests of
the Corporation, and, in the case of a criminal proceeding had no
reasonable cause to believe that his or her conduct was unlawful. The
termination of any such 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
in a manner which he or she reasonably believed to be in or not opposed to
the best interests of the Corporation, and, with respect to any criminal
proceeding, that Indemnitee has reasonable cause to believe that his or her
conduct was unlawful.
4. INDEMNITY IN PROCEEDINGS BY OR IN THE RIGHT OF THE CORPORATION. The
Corporation shall indemnify Indemnitee in accordance with the provisions of
this paragraph, against all Expenses actually and reasonably incurred by or
for Indemnitee in connection with any Proceeding by or in the right of the
Corporation to procure a judgment in its favor, but only if Indemnitee
acted in good faith and in a manner which he or she reasonably believed to
be in or not opposed to the best interests of the Corporation, except that
no indemnification for Expenses shall be made under this paragraph in
respect of any claim, issue or matter as to which Indemnitee shall have
been adjudged to be liable to the Corporation, unless and only to the
extent that the court in which such 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 indemnity for such Expenses which such court shall deem proper.
5. INDEMNIFICATION OF EXPENSES OF SUCCESSFUL PARTY. Notwithstanding any other
provision of this Agreement, to the extent that Indemnitee has been
successful on the merits or otherwise in defense of any Proceeding referred
to in paragraphs 3 and 4 above, or in defense of any claim, issue or matter
therein, Indemnitee shall be indemnified against all Expenses actually and
reasonably incurred by Indemnitee in connection therewith.
6. ADVANCES OF EXPENSES. At the written request of Indemnitee, the Expenses
incurred by Indemnitee in any Proceeding shall be paid by the Corporation
(within two business days of such request) in advance of the final
disposition of such Proceeding, provided, that Indemnitee shall undertake
in writing to repay such amount to the extent that it is ultimately
determined that Indemnitee is not entitled to indemnification; provided
that the Corporation's obligation to advance Expense under this Section 6
shall not be qualified or conditioned in any manner by the Corporation on
the Indemnitee's ability to reimburse the Corporation; and provided,
further, that if Indemnitee has commenced or thereafter commences legal
proceedings in a court of competent jurisdiction to secure a determination
that Indemnitee should be indemnified under applicable law, any
determination made by such forum that Indemnitee would not be permitted to
be
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indemnified under applicable law shall not be binding and Indemnitee shall
not be required to reimburse the Company for any advanced Expenses until a
final judicial determination is made with respect thereto (as to which all
rights of appeal therefrom have been exhausted or lapsed).
7. RIGHT OF INDEMNITEE TO INDEMNIFICATION UPON APPLICATION; PROCEDURE UPON
APPLICATION.
(a) Any indemnification under Paragraphs 3 and 4 or advance under
Paragraph 6 (unless ordered by the court) shall be paid by the Corporation
to the fullest extent permitted by applicable law in effect as of the date
hereof and to such greater extent as applicable law may thereafter from
time to time permit, as soon as practicable but in any event no later than
30 days after receipt of the written request of Indemnitee, unless a
determination is made within said 30 day period by (1) the Board of
Directors by a majority of directors who were not parties to the Proceeding
in respect of which indemnification is being sought event though less than
a quorum; or (2) by a committee of such directors designated by majority
vote of such directors, even though less than a quorum; or (3) if there are
no such directors, or if such directors so elect independent legal counsel
in a written opinion, that Indemnitee has not met the relevant standards
for indemnification set forth in Paragraphs 3 and 4.
(b) In the case of a determination made in accordance with this
paragraph that Indemnitee is not entitled to whole or partial
indemnification with respect to a specific Proceeding, or a failure by any
such forum to make any determination, Indemnitee shall have the right to
apply to any court of competent jurisdiction for the purpose of enforcing
Indemnitee's right to indemnification pursuant to this Agreement or to
commence litigation in any court in the State of Delaware having subject
matter jurisdiction thereof and in which venue is proper seeking an initial
determination by the court or challenging any such determination by such
forum or any aspect thereof, including the legal or factual bases therefor,
and the Corporation hereby consents to service of process and to appear in
any such proceeding. The burden of proving that indemnification or advances
are not appropriate shall be on the Corporation. Neither the failure of the
Corporation (including its Board of Directors, a committee thereof or
independent legal counsel) to have made a determination prior to the
commencement of such action that Indemnitee has met the applicable standard
of conduct nor an actual determination by the Corporation (including its
Board of Directors, a committee thereof or independent legal counsel) that
Indemnitee has not met such standard shall be a defense to the action nor
create a presumption that Indemnitee has not met the applicable standard of
conduct. Indemnitee's Expenses actually and reasonably incurred in
connection with successfully establishing his right to indemnification or
advance, in whole or in part, shall also be indemnified by the Corporation.
(c) With respect to any Proceeding for which indemnification is
requested, the Corporation will be entitled to participate therein at its
own expense and, except as otherwise provided below, the Corporation may
assume the defense thereof, with counsel satisfactory to Indemnitee. After
notice from the Corporation to Indemnitee of its election to assume the
defense of a Proceeding, the Corporation will not be liable to
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Indemnitee under this Agreement for any Expenses subsequently incurred by
Indemnitee in connection with the defense thereof, other than as provided
below. The Corporation shall not settle any Proceeding in any manner which
would impose any penalty or limitation on Indemnitee without Indemnitee's
written consent. Indemnitee shall have the right to employ counsel in any
Proceeding but the fees and expenses of such counsel incurred after notice
from the Corporation of its assumption of the defense of the Proceeding
shall be at the expense of Indemnitee, unless (i) the employment of counsel
by Indemnitee has been authorized by the Corporation, (ii) Indemnitee shall
have reasonably concluded that there may be a conflict of interest between
the Corporation and Indemnitee in the conduct of the defense of a
Proceeding, or (iii) the Corporation shall not in fact have employed
counsel to assume the defense of a Proceeding, in each of which cases the
fees and expenses of Indemnitee's counsel shall be advanced by the
Corporation. Notwithstanding the foregoing, the Corporation shall not be
entitled to assume the defense of any Proceeding brought by or in the right
of the Corporation.
8. LIMITATIONS ON INDEMNIFICATION. No payment pursuant to this Agreement shall
be made by the Corporation:
(a) To indemnify Indemnitee for any Expenses, judgments, fines or
penalties sustained in any Proceeding for which payment is actually made to
Indemnitee (under a valid and collectible insurance policy, by-law,
contract, agreement or otherwise), except in respect of any excess beyond
the amount of payment under such insurance;
(b) To indemnify Indemnitee for any Expenses, judgments, fines or
penalties sustained in any Proceeding for an accounting of profits made
from the purchase or sales by Indemnitee of securities of the Corporation
pursuant to the provisions of Section 16(b) of the Securities Exchange Act
of 1934, the rules and regulations promulgated thereunder and amendments
thereto or similar provisions of any federal, state or local statutory law;
(c) To indemnify Indemnitee for any Expenses, judgments, fines or
penalties resulting from Indemnitee's conduct which is finally adjudged to
have been willful misconduct, knowingly fraudulent or deliberately
dishonest; or
(d) If a court of competent jurisdiction finally determines that such
payment hereunder is unlawful.
9. INDEMNIFICATION HEREUNDER NOT EXCLUSIVE. The 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 the
Certificate of Incorporation or the By-Laws of the Corporation, in each
case as amended or restated, any agreement, any vote of stockholders or
disinterested Directors, the General Corporation Law of the State of
Delaware, or otherwise, both as to action in his or her official capacity
and as to action in another capacity while holding such office. The
indemnification provided by this Agreement shall continue as to Indemnitee
even though he or she may have ceased to be a Director or Officer of the
Corporation and shall inure to the benefit of the heirs and personal
representatives of Indemnitee.
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10. PARTIAL INDEMNIFICATION. If Indemnitee is entitled under any provision of
this Agreement to indemnification by the Corporation for a portion of the
Expenses, judgments, fines or penalties actually and reasonably incurred by
him or her in any Proceeding but not, however, for the total amount
thereof, the Corporation shall nevertheless indemnify Indemnitee for the
portion of such Expenses, judgments, fines or penalties to which Indemnitee
is entitled to the maximum extent permitted by law.
11. MAINTENANCE OF LIABILITY INSURANCE.
(a) The Corporation hereby covenants and agrees that, as long as
Indemnitee continues to serve as a Director and/or Officer of the
Corporation and thereafter as long as Indemnitee may be subject to any
Proceeding, the Corporation, subject to subsection (c), shall maintain in
full force and effect directors' and officers' liability insurance ("D&O
Insurance") in reasonable amounts from established and reputable insurers.
(b) In all D&O Insurance policies, Indemnitee shall be named as an
insured in such a manner as to provide the Indemnitee the same rights and
benefits as are accorded to the most favorably insured of the Corporation's
Directors or Officers.
(c) Notwithstanding the foregoing, but subject to the terms of the
Agreement and Plan of Merger, dated as of May 19, 2005, as amended, among
the Corporation, America West Holdings Corporation, and Barbell Acquisition
Corp., the Corporation shall have no obligation to obtain or maintain the
D&O Insurance if the Corporation determines in good faith that such
insurance is not reasonably available, the premium costs for such insurance
are disproportionate to the amount of coverage provided, the coverage
provided by such insurance is so limited by exclusions that it provides an
insufficient benefit, or Indemnitee is covered by similar insurance
maintained by a subsidiary of the Corporation.
12. SUBROGATION. In the event of any 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
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.
13. SAVINGS CLAUSE. If this Agreement or any portion hereof is invalidated on
any ground by any court of competent jurisdiction, the Corporation shall
nevertheless indemnify Indemnitee to the extent permitted by any applicable
portion of this Agreement that has not been invalidated or by any other
applicable law.
14. NOTICE. Indemnitee shall, as a condition precedent to his or her right to
be indemnified under this Agreement, give to the Corporation notice in
writing as soon as practicable of any proceeding for which indemnity will
or could be sought under this Agreement. Notice to the Corporation shall be
directed to US Airways Group, Inc., 000 Xxxx Xxx Xxxxxx Xxxxxxx, Xxxxx,
Xxxxxxx 00000, Attention: General Counsel (or such other address as the
Corporation shall designate in writing to Indemnitee). Notice shall be
deemed received three days after the date postmarked if sent by prepaid
mail, properly
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addressed. In addition, Indemnitee shall give the Corporation such
information and cooperation as it may reasonably require and as shall be
within Indemnitee's power.
15. COUNTERPARTS. This Agreement may be executed on any number of counterparts,
all of which shall be deemed to constitute one and the same instrument.
16. APPLICABLE LAW. This Agreement shall be governed by, and construed and
interpreted in accordance with, the law of the State of Delaware.
17. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon the
Corporation and its successors and assigns.
18. AMENDMENTS. No amendment, waiver, modification, termination or cancellation
of this Agreement shall be effective unless in writing signed by both of
the parties hereto. The indemnification rights afforded to Indemnitee
hereby are contract rights and may not be diminished, eliminated or
otherwise affected by amendments to the Amended and Restated Certificate of
Incorporation or Bylaws of the Corporation or by other agreements.
19. INTEGRATION AND ENTIRE AGREEMENT. This Agreement sets forth the entire
understanding between the parties hereto and supersedes and merges all
previous written and oral agreements between the parties hereto related to
the subject matter hereof.
(Signatures on following page)
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IN WITNESS WHEREOF, the parties hereby have caused this Agreement to be
duly executed and signed as of the day and year first above written.
US AIRWAYS GROUP, INC.
By:
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[Name]
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[Title]
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INDEMNITEE
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[Name]
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