Exhibit 10.13
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INDEMNIFICATION AGREEMENT
THIS AGREEMENT, made and entered into as of the ____ day of March, 1999 between
World Airways, Inc., a Delaware corporation ("Corporation"), and _______________
("Director").
WITNESSETH THAT:
WHEREAS, __________________, a Director of the Corporation, performs a
valuable service in such capacity for Corporation, and
WHEREAS, the Board of Directors of Corporation has adopted By-laws (the
"By-laws") providing for the indemnification of the officers, directors, agents
and employees of Corporation to the maximum extent authorized by Section 145 of
the Delaware General Corporation Law, as amended (the "Corporation Law"); and
WHEREAS, such By-laws and the Corporation Law, by their non-exclusive
nature, permit contracts between Corporation and officers and Directors with
respect to indemnification of such officers and Directors; and
WHEREAS, in accordance with the authorization as provided by the
Corporation Law, Corporation has purchased and presently maintains a policy or
policies of Directors and Officers Liability Insurance ("D&O Insurance"),
covering certain liabilities which may be incurred by its directors and officers
in the performance of their duties as such; and
WHEREAS, as a result of recent developments affecting the terms, scope
and availability of D&O insurance there exists general uncertainty as to the
extent of protection afforded Corporation's officers by such D&O Insurance and
by statutory and by-law indemnification provisions; and
WHEREAS, in order to induce Director to serve as a Director of the
Corporation, Corporation has determined and agreed to enter into this contract
with Director;
NOW, THEREFORE, in consideration of Director's service as a Director
after the date hereof, the parties hereto agree as follows:
1. Indemnity of Director. Corporation hereby agrees to hold
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harmless and indemnify Director to the full extent authorized or permitted by
the provisions of the Corporation Law.
2. Continuation of Insurance.
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(a) Corporation represents that it presently has in force and effect a
policy of D&O Insurance in the amount of $20,000,000 the (the "Insurance
Policy");
(b) Subject only to the provisions of Section 2 (c) hereof, Corporation
hereby agrees that, so long as Director shall continue to serve as a director of
Corporation (or shall continue at the request of Corporation to serve as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise) and thereafter so long as Director shall be
subject to any possible claim or threatened, pending or completed action, suit
or proceeding, whether civil, criminal, administrative or investigative by
reason of the fact that Director was a director of Corporation (or served in any
of said other capacities), Corporation will purchase and maintain in effect for
the benefit of Director one or more valid, binding and enforceable policy or
policies of D&O Insurance providing, in all respects, coverage at least
comparable to that presently provided pursuant to the Insurance Policy;
(c) Corporation shall not be required to maintain said policy or
policies of D&O Insurance in effect if in the business judgment of a majority of
the then directors of the Corporation (i) said insurance in not reasonably
available or if either (ii) the premium cost for such insurance is substantially
disproportionate to the amount of coverage or (iii) the coverage provided by
such insurance is so limited by exclusions that there is insufficient benefit
from such insurance;
(d) In the event Corporation does not purchase and maintain in effect
said policy or policies of D&O Insurance pursuant to the provisions of Section
2(c) hereof, Corporation agrees to hold harmless and indemnify Director to the
full extent of the coverage which would otherwise have been provided for the
benefit of Director pursuant to the Insurance Policy.
3. Additional Indemnity. Subject only to the exclusions set forth in
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Section 4 hereof, Corporation hereby further agrees to hold harmless and
indemnify Director:
(a) against any and all expenses (including attorneys fees), judgments,
fines and amounts paid in settlement actually and reasonably incurred by
Director in connection with any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or investigative (including
an action by or in the right of the Corporation) to which Director is, was or at
any time becomes a party, or is threatened to be made a party, by reason of the
fact that Director is, was or at any time becomes a director, officer, employee
or agent of Corporation, or is or was serving or at any time serves at the
request of Corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise; and
(b) otherwise to the fullest extent as may be provided to Director by
Corporation under the non-exclusivity provisions of Section 8.02 of the By-laws
of Corporation and the Corporation Law.
4. Limitations on Additional Indemnity. No indemnity pursuant to
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Section 3 hereof shall be paid by Corporation:
(a) in respect to renumeration paid to Director if it shall be
determined by a final judgment or other final adjudication that such
renumeration was in violation of law;
(b) on account of any suit in which judgment is rendered against
Director for an accounting of profits made from the purchase or sale by Director
of securities of Corporation pursuant to the provision of Section 16(b) of the
Securities Exchange Act of 1934 and amendments thereto or similar provisions of
any federal, state or local statutory law;
(c) on account of Director's conduct which is finally adjudged to have
been knowingly or deliberately dishonest, or to constitute willful misconduct;
or
(d) if a final decision by a court having jurisdiction in the matter
shall determine that such indemnification is not lawful.
5. Contribution. If the indemnification provided in Sections 1, 2 (d)
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and 3 is unavailable and may not be paid to Director for any reason other than
those set forth in paragraphs (b), (c) and (d) of Section 4, then in respect of
any threatened, pending or completed action, suit or proceeding in which the
Corporation is jointly liable with Director (or would be if joined in such
action, suit or proceeding), the Corporation shall contribute to the amount of
expenses (including attorney's fees), judgment, fines and amounts paid in
settlement actually and reasonably incurred and paid or payable by Director in
such proportion as is appropriate to reflect (i) the relative benefits received
by the Corporation on the one hand and the Director on the other hand from the
transaction from which such action, suit or proceeding arose, and (ii) the
relative fault of the Corporation on the one hand and of the Director on the
other in connection with the events which resulted in such expenses, judgments,
fines or settlement amounts, as well as any other relevant equitable
considerations. The relative fault of the Corporation on the one hand and of the
Director on the other shall be determined by reference to, among other things,
the parties' relative intent, knowledge, access to information and opportunity
to correct or prevent the circumstances resulting in such expenses, judgments,
fines or settlement amounts. The Corporation agrees that it would not be just
and equitable if contribution pursuant to this Section 5 were determined by pro
rata allocation or any other method of allocation which does not take account of
the foregoing equitable considerations.
6. Continuation of Obligations. All agreements and obligations of
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Corporation contained herein shall continue during the period Director is a
director, officer, employee or agent of Corporation (or is or was serving at the
request of Corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise) and shall
continue thereafter so long as Director shall be subject to any possible claim
or threatened, pending or completed action, suit or proceeding, whether civil,
criminal or investigative, by reason of the fact that Director was a director of
Corporation or serving in any other capacity referred to herein.
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7. Notification and Defense of Claim. Promptly after receipt by
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Director of notice of the commencement of any action, suit or proceeding,
Director will, if a claim in respect thereof is to be made against Corporation
under this Agreement, notify Corporation of the commencement thereof; but the
omission so to notify Corporation will not relieve it from any liability which
it may have to Director otherwise than under this Agreement. With respect to any
such action, suit or proceeding as to which Director notifies Corporation of the
commencement thereof:
(a) Corporation will be entitled to participate therein at its own
expense;
(b) except as otherwise provided below, to the extent that it may wish,
Corporation jointly with any other indemnifying party similarly notified will be
entitled to assume the defense thereof, with counsel satisfactory to Director.
After notice from Corporation to Director of its election so as to assume the
defense thereof, Corporation will not be liable to Director in connection with
the defense thereof other than reasonable costs of investigation or as otherwise
provided below. Director shall have the right to employ its counsel in such
action, suit or proceeding but the fees and expenses of such counsel incurred
after notice from Corporation of its assumption of the defense thereof shall be
at the expense of Director unless (i) the employment of counsel by Director has
been authorized by Corporation, (ii) Director shall have reasonably concluded
that there may be a conflict of interest between Corporation and Director in the
conduct of the defense of such action or (iii) Corporation shall not in fact
have employed counsel to assume the defense of such action, in each of which
cases the fees and expenses of counsel shall be at the expense of Corporation.
Corporation shall not be entitled to assume the defense of any action, suit or
proceeding brought by or on behalf of Corporation or as to which Director shall
have made the conclusion provided for in (ii) above; and
(c) Corporation shall not be liable to indemnify Director under this
Agreement for any amounts paid in settlement of any action or claim effected
without its written consent. Corporation shall not settle any action or claim in
any manner which would impose any penalty or limitation on Director without
Director's written consent. Neither Corporation nor Director will unreasonably
withhold its consent to any proposed settlement.
8. Advancement and Repayment of Expenses.
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(a) In the event that Director employs its own counsel pursuant to
Section 7 (b) (i) above, Corporation shall advance to Director, prior to any
final disposition of any threatened or pending action, suit or proceeding,
whether civil, criminal, administrative or investigative, any and all reasonable
expenses (including legal fees and expenses) incurred in investigating or
defending any such action, suit or proceeding within ten (10) days after
receiving copies of invoices presented by Director for such expenses.
(b) Director agrees to reimburse Corporation for all reasonable
expenses paid by Corporation in defending any civil or criminal action, suit or
proceeding against Director in the
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event and only to the extent it shall be ultimately determined that Director is
not entitled, under the provisions of the Corporation Law, the By-laws, this
Agreement or otherwise, to be indemnified by Corporation for such expenses.
9. Enforcement.
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(a) Corporation expressly confirms and agrees that it has entered into
this Agreement and assumed the obligations imposed on Corporation hereby in
order to induce Director to serve as a director of Corporation, and acknowledges
that Director is relying upon this Agreement in serving in such capacity.
(b) In the event Director is required to bring any action to enforce
rights or to collect moneys due under this Agreement and is successful in such
action, Corporation shall reimburse Director for all of Director's reasonable
fees and expenses in bringing and pursuing such action.
10. Separability. Each of the provisions of this Agreement is a
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separate and distinct agreement and independent of the others, so that if any
provision hereof shall be held to be invalid or unenforceable for any reason,
such invalidity or unenforceability shall not affect the validity or
enforceability of the other provisions hereof.
11. Governing Law. This Agreement shall be interpreted and enforced in
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accordance with the laws of the State of Delaware.
12. Binding Effect. This Agreement shall be binding upon Director and
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upon Corporation, its successors and assigns, a shall inure to the benefit of
Director, his or her heirs, personal representatives and assigns and to the
benefit of Corporation, its successors and assigns.
13. Amendment and Termination. No amendment, modification, termination
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or cancellation of this Agreement shall be effective unless in writing signed by
both parties hereto.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
and as of the day and year first above written.
WORLD AIRWAYS, INC.
By: ______________________________
Title: Chairman, President & CEO
Director:____________________________
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