Exhibit 10.13(a)
AMENDED AND RESTATED INDEMNITY AGREEMENT
THIS AMENDED AND RESTATED INDEMNITY AGREEMENT (the
"Agreement) is made between Atlantic Coast Airlines
Holdings, Inc., a Delaware corporation (the "Company"), and
_____________ ("Indemnitee").
WHEREAS, the company and Indemnitee entered into that
certain Indemnity Agreement, dated as of ________, and now
desire to amend and restate that agreement in its entirety
in accordance with the terms hereof:
WHEREAS, the Company and Indemnitee desire that Indemnitee
serve or continue to serve as a director or officer of the
Company;
WHEREAS, 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, Company
and Indemnitee desire to set forth in writing their
understanding and agreement that indemnification is and will
continue to be provided; and
WHEREAS, 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 ("DGCL").
NOW, THEREFORE, for and in consideration of the premises and
covenants contained herein, the Company and Indemnitee do
hereby amend and restate that certain Indemnity Agreement,
dated as of ______ in its entirety in accordance with the
terms hereof, and further covenant and agree as follows:
SECTION 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. The Indemnitee may at any time and
for any reason resign from such position (subject to any
other contractual obligation and to any other obligation
imposed by operation of law). If Indemnitee shall serve in
any other capacity with respect to the Company, nothing in
this Agreement shall confer upon the Indemnitee the right to
continue in the employ of the Company or affect the right of
the Company to terminate the Indemnitee's employment at any
time in the sole discretion of the Company, with or without
cause.
SECTION 2. Indemnification. The Company hereby
indemnifies Indemnitee as follows:
(a) The Company indemnifies Indemnitee in the event
that he is or was a party or is threatened to be made a
party to any Proceeding (other than an action by or in the
right of the Company) against Expenses (including attorneys'
fees), judgments, penalties, Fines and liabilities in
accordance with this Agreement, the DGCL, the Certificate of
Incorporation and the Bylaws and actually and reasonably
incurred by him or on his behalf in connection with such
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
Proceeding, had no reasonable cause to believe his conduct
was unlawful.
(b) The Company indemnifies Indemnitee in the event
that he is or was a party or is threatened to be made a
party to any Proceeding by or in the right of the Company
against Expenses (including attorneys' fees) actually and
reasonably incurred by him or on his behalf in connection
with such Proceeding in accordance with this Agreement, the
DGCL, the Certificate of Incorporation or Bylaws, 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,
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, or other court of competent
jurisdiction, 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
court shall deem proper.
(c) Notwithstanding any other provision of this
Agreement and to the maximum extent permitted under
applicable law, to the extent that Indemnitee 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 Indemnitee 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, to the maximum extent
permitted under applicable law, indemnify Indemnitee against
all Expenses actually and reasonably incurred by Indemnitee
or on his behalf in connection with each successfully
resolved claim, issue or matter. For purposes of this
Section 2(c) and without limitation, the termination of any
claim, issue or matter in such a Proceeding by dismissal or
withdrawal, with or without prejudice, shall, to the maximum
extent permitted by applicable law, be deemed to be a
successful result with respect to Indemnitee as to such
claim, issue or matter. Without limiting the foregoing, if
any Proceeding or any claim, issue or matter therein is
disposed of or withdrawn, on the merits or otherwise
(including a disposition without prejudice), without (i) the
disposition being adverse to the Indemnitee, (ii) an
adjudication that the Indemnitee was liable to the Company,
(iii) a plea of guilty or nolo contendere by Indemnitee,
(iv) an adjudication that the Indemnitee did not act in good
faith and in a manner Indemnitee reasonably believed to be
in or not opposed to the best interests of the Company and
(v) with respect to any criminal Proceeding, an adjudication
that the Indemnitee had reasonable cause to believe
Indemnitee's conduct was unlawful, Indemnitee shall, to the
maximum extent permitted by applicable law, be considered
for the purposes hereof to have been successful with respect
thereto.
(d) Notwithstanding any other provision of this
Agreement, to the maximum extent permitted by applicable
law, Indemnitee shall be entitled to indemnification against
all Expenses actually and reasonably incurred or suffered by
Indemnitee or on his behalf if Indemnitee is, 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, involved as a witness or otherwise in any
threatened, pending or completed action, suit, arbitration,
alternate dispute mechanism, investigation, inquiry,
administrative or legislative hearing or proceeding,
including any and all appeals, to which Indemnitee neither
is, nor is threatened to be made, a party. Any claim for
Expenses under this Section 2(d) shall be handled as if a
claim for indemnification in a Proceeding as set forth in
this Agreement. If Indemnitee is, or is threatened to be
made, a party to such Proceeding, then the provisions of
Section 2(a), (b) or (c), as appropriate, shall apply in
accordance with the terms thereof.
(e) Notwithstanding anything to the contrary in this
Agreement, the Company shall not be obligated to indemnify
Indemnitee with respect to any Expenses (including
attorneys' fees), judgments, penalties, Fines and
liabilities or to pay or advance Expenses related to any
claim, asserted by the Indemnitee initially or by cross-
claim, counter-claim, or third-party claim, in any
Proceeding against the Company, other than a Proceeding
commenced to enforce a claim for indemnification (including
a claim for advancement of Expenses), unless, prior to the
initiation of such Proceeding, the initiation of such
Proceeding is approved by the Board of Directors of the
Company by a majority vote of a quorum consisting of
directors who are not or were not parties to such Proceeding
("Disinterested Directors"), or, if such quorum cannot be
obtained, by a majority vote of a committee duly designated
by the Board of Directors (in which designation all
Directors may participate), consisting solely of two or more
Disinterested Directors.
SECTION 3. Procedure Upon Application for Indemnification
(a) Any indemnification under paragraphs (a), (b), (c)
and (d) of 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 7(a) hereof) and only as authorized in the
specific case upon a determination (in accordance with
Section 7 hereof) that indemnification of Indemnitee is
proper in the circumstances because he has met the
applicable standard of conduct set forth in paragraphs (a),
(b), (c) and (d) of Section 2. Such determination shall be
made (i) by a majority vote of Disinterested Directors, 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, in a
written opinion by independent legal counsel retained and
paid by the Company, 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 personally, (B) does not regularly advise the
Board of 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 Proceeding arose.
(b) Indemnitee shall cooperate with the person,
persons or entity making such determination with respect to
Indemnitee's entitlement to indemnification, including
providing to such person, persons or entity upon reasonable
advance request any documentation or information which is
not privileged or otherwise protected from disclosure and
which is reasonably available to Indemnitee and reasonably
necessary to such determination. Any costs or expenses
(including reasonable attorneys' fees and disbursements)
incurred by Indemnitee in so cooperating with the person,
persons or entity making such determination shall be borne
by the Company (irrespective of the determination as to
Indemnitee's entitlement to indemnification) and the Company
hereby indemnifies and agrees to hold Indemnitee harmless
therefrom. The person, persons or entity making the
determination with respect to Indemnitee's entitlement to
indemnification shall notify Indemnitee of such
determination no later than five (5) business days after the
determination is made.
SECTION 4. Advances of Expenses. All Expenses
(including reasonable attorney fees) incurred by Indemnitee
in defending a Proceeding shall be paid, as incurred by or
on behalf of Indemnitee, by the Company in advance of the
final disposition of such Proceeding within thirty days
after submission to the Company of each statement or invoice
for such Expenses, if the Company has first received from
Indemnitee a sworn statement substantially in the form of
Exhibit A attached hereto and made a part hereof
("Undertaking"), averring that (i) Indemnitee has reasonably
incurred or will reasonably incur actual Expenses in
defending a Proceeding, and (ii) Indemnitee 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 need
be advanced hereunder to the extent that the Disinterested
Directors, independent legal counsel, or stockholders,
proceeding as in Section 3(a) above, as the case may be,
within fifteen (15) business days of receipt of the sworn
statement of request for advancement of Expenses, make, and
communicate in writing to Indemnitee, a determination as
provided herein that the Undertaking is with respect to an
Excluded Claim as defined in Section 13(d) hereof. Advances
shall include any and all reasonable Expenses incurred
pursuing an action to enforce this right of advancement,
including Expenses incurred preparing and forwarding
statements to the Company to support the advances claimed.
SECTION 5. Settlement. The Company shall have no
obligation to indemnify Indemnitee under this Agreement for
any amounts paid in a settlement of any 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 which consent Indemnitee shall not
unreasonably withhold.
SECTION 6. Non-exclusivity. 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 in accordance
with the terms hereof after Indemnitee has ceased to be a
director, officer, employee or agent and shall inure to the
benefit of his heirs, executors and administrators.
SECTION 7. Determination of Right to Indemnification.
For purposes of making the determination in a specific case
under of Section 3 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 form
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), (b), (c) or
(d) of Section 2 hereof. The omission to notify the Board
of Directors shall not relieve the Company from any
liability for indemnification which it may have to
Indemnitee under this Agreement.
(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 65 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), (b), (c) or (d) of Section 2 hereof
or (ii) that the Indemnification Statement is with respect
to an Excluded Claim as defined in Section 13(d) hereof.
(c) If it is so determined that Indemnitee is entitled
to indemnification, payment to Indemnitee shall be made
within fifteen (15) business days after such determination.
SECTION 8. Remedies of the Indemnitee in Cases of
Determination not to Indemnify or to Advance Expenses. In
the event that a determination is made under Sections 3 or
7 that the Indemnitee is not entitled to indemnification
hereunder or if payment has not been timely made following a
determination of entitlement to indemnification in
accordance with Section 7(c), or if Expenses are not
advanced pursuant to Section 4, the Indemnitee shall be
entitled to a final adjudication in the Court of Chancery of
the State of Delaware, or any other court of competent
jurisdiction, of his entitlement to such indemnification or
advance. Alternatively, the Indemnitee at his option may
seek an award in arbitration to be conducted by a single
arbitrator pursuant to the rules of the American Arbitration
Association, such award to be made within 65 days following
the filing of the demand for arbitration. The Company shall
not oppose the Indemnitee's right to seek any such
adjudication or award in arbitration. Such judicial
proceeding or arbitration shall be made de novo and the
Indemnitee shall not be prejudiced by reason of a
determination (if so made) under Sections 3, or 7 that he is
not entitled to indemnification. If a determination is made
or deemed to have been made pursuant to Sections 2 and 3
that the Indemnitee is entitled to indemnification, the
Company shall be bound by such determination and is
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. The Company
further agrees to stipulate in any such court or before any
such arbitrator that the Company is bound by all the
provisions of this Agreement and is precluded from making
any assertions to the contrary. If the court or arbitrator
shall determine that the Indemnitee is entitled to any
indemnification hereunder, the Company shall pay all
Expenses actually and reasonably incurred by the Indemnitee
in connection with such adjudication or award in arbitration
(including, but not limited to, any appellate Proceedings).
SECTION 9. Notification and Defense of Claim. Promptly
after receipt by the Indemnitee of notice of any Proceeding,
the Indemnitee will, if a claim in respect thereof is to be
made against the Company under this Agreement, notify the
Company in writing of the commencement thereof; but the
omission so to notify the Company will not relieve the
Company from any liability that it may have to the
Indemnitee under this Agreement or otherwise.
Notwithstanding any other provision of this Agreement, with
respect to any such Proceeding as to which the Indemnitee
notifies the Company:
(a) The Company will be entitled to participate therein at
its own expense; and
(b) Except as otherwise provided in this Section 9(b), to
the extent that it may wish, the Company, jointly with any
other indemnifying party similarly notified, shall be
entitled to assume the defense thereof, with counsel
selected as provided in this Section 9(b). After notice
from the Company to the Indemnitee of its election so to
assume the defense thereof, the Company shall not be liable
to the Indemnitee under this Agreement for any Expenses
subsequently incurred by the Indemnitee in connection with
the defense thereof other than costs of investigation or as
otherwise provided below. The Indemnitee shall have the
right to employ his own counsel in such Proceeding, but the
fees and expenses of such counsel incurred after notice from
the Company of its assumption of the defense thereof shall
be at the expense of the Indemnitee, unless (i) the
employment of counsel by the Indemnitee has been authorized
by the Company, (ii) the Company and Indemnitee shall have
reasonably concluded that there may be a conflict of
interest between the Company and the Indemnitee in the
conduct of the defense of such Proceeding, (iii) the Company
shall not in fact have employed counsel to assume the
defense of the action, in each of which cases the Expenses
of Indemnitee's counsel shall be at the expense of the
Company, [or (iv) if the Company has selected counsel to
represent Indemnitee and other current and former directors
and officers of the Company in the defense of a Proceeding,
and a majority of such persons, including Indemnitee,
reasonably object to such counsel selected by the Company
pursuant to this Section 9(b), then such persons, including
Indemnitee, shall be permitted to employ one (1) additional
counsel of their choice and the reasonable fees and expenses
of such counsel shall be at the expense of the Company;
provided, however, that such counsel shall be chosen from
amongst the list of counsel, if any, approved by any company
with which the Company obtains or maintains insurance. The
Company shall not be entitled to assume the defense of any
Proceeding brought by or on behalf of the Company or as to
which the Indemnitee shall have made the conclusion provided
for in (ii) above.
SECTION 10. Duration of Agreement. This Agreement shall
terminate upon the later of: (a) ten years after the
Indemnitee has ceased to occupy any of the positions or have
any relationships described in Section 1; and (b) the final
termination of all then-pending or threatened Proceedings to
which the Indemnitee may be subject. The indemnification
provided under this Agreement shall continue as to the
Indemnitee even though he may have ceased to be a director
or officer of the Company. This Agreement shall be binding
upon the Company and its successors and assigns and shall
inure to the benefit of the Indemnitee and his spouse,
assigns, heirs, devises, executors, administrators or other
legal representatives.
SECTION 11. 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.
SECTION 12. Presumptions and Effect of Certain
Proceedings. The Secretary of the Company shall, promptly
upon receipt of the Indemnitee's request for
indemnification, advise in writing the Board of Directors or
such other person or persons empowered to make the
determination as provided in Sections 3 and 7 that the
Indemnitee has made such request for indemnification. Upon
making such request for indemnification, the Indemnitee
shall be presumed to be entitled to indemnification
hereunder and the Company shall have the burden of proof in
the making of any determination contrary to such
presumption. The termination of any Proceeding by judgment,
order, settlement or conviction, or upon a plea of nolo
contendere or its equivalent, shall not, of itself:
(a) create a presumption that the Indemnitee did not act in
good faith and in a manner which he reasonably believed to
be in or not opposed to the best interests of the Company,
and, with respect to any criminal Proceeding, that the
Indemnitee had reasonable cause to believe that his conduct
was unlawful; or (b) otherwise adversely affect the rights
of the Indemnitee to indemnification except as may be
provided herein.
SECTION 13. Certain Definitions. For purposes of this
Agreement, the following definitions apply herein:
(a) "Disinterested Directors" shall have the meaning set
forth in Section 2(c);
(b) "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.;
(c) "Expenses" includes, without limitation, costs and
expenses of investigations, judicial or administrative
proceedings or appeals, amounts paid in settlement by or on
behalf of Indemnitee, all reasonable attorneys' fees,
witness fees and expenses, fees and expenses of accountants
and other advisors, expert witnesses, travel expenses,
duplicating costs, retainers and disbursements and advances
thereon, and any expenses of establishing a right to
indemnification under Section 8, but shall not include the
amount of judgments, penalties, Fines or liabilities
actually levied against Indemnitee. Expenses also shall
include reasonable expenses customarily 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, supersedes bond, or
other appeal bond or its equivalent.;
(d) "Fines" shall include any fine, surcharge or penalty
imposed on Indemnitee by any law, regulation or in a
judicial or administrative proceeding and shall also include
any excise taxes assessed on Indemnitee with respect to any
other enterprises;
(e) "Indemnification Statement" shall have the meaning set
forth in Section 7(a);
(f) "other enterprises" shall include employee benefit
plans, and civic, non-profit, or charitable organizations,
whether or not incorporated;
(g) "Proceeding" includes any threatened, pending or
completed action, suit, arbitration, alternate dispute
mechanism, investigation, inquiry, administrative or
legislative hearing or proceeding, including any and all
appeals, whether brought in the name of the Company or
otherwise and whether of a civil, criminal, administrative
or investigative nature, including, but not limited to,
actions, suits or proceedings brought under and/or
predicated upon the Securities Act of 1933, as amended,
and/or the Securities Exchange Act of 1934, as amended,
and/or their respective state counterparts and/or any rule
or regulation promulgated thereunder, in which Indemnitee
may be or may have been involved as a party or otherwise, 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 or fiduciary of any other entity, including, but
not limited to, another corporation, partnership, joint
venture or trust, or by reason of anything done or not done
by him in any such capacity, whether or not he is serving in
such capacity at the time any liability or expense is
incurred for which indemnification or reimbursement can be
provided under this Agreement;
(h) "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
(i)"Undertaking" shall have the meaning set forth Section 4.
SECTION 14. 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 Expenses incurred
by him.
SECTION 15. Partial Indemnification. If the Indemnitee
is entitled under any provision of this Agreement to
indemnification by the Company for some or a portion of the
Expenses, costs, judgments, penalties, Fines, or liabilities
actually and reasonably incurred by him in connection with
the investigation, defense, appeal or settlement of a
Proceeding, but not, however, for all of the total amount
thereof pursuant to Section 8 hereof or otherwise, the
Company shall nevertheless indemnify the Indemnitee for the
portion of such Expenses, costs, judgments, penalties,
Fines, and liabilities actually and reasonably incurred by
him to which the Indemnitee is entitled.
SECTION 16. Severability. If any provision or provisions
of this Agreement shall be held invalid, illegal or
unenforceable for any reason whatsoever, (a) the validity,
legality and enforceability of the remaining provisions of
this Agreement (including, without limitation, all portions
of any Sections of this Agreement containing any such
provision held to be invalid, illegal or unenforceable, that
are not themselves invalid, illegal 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 Section of this Agreement containing any such provision
held to be invalid, illegal or unenforceable, that are not
themselves invalid, illegal or unenforceable) shall be
construed so as to give effect to the intent manifest by the
provision held invalid, illegal or unenforceable.
SECTION 17. 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.
SECTION 18. Modification, Survival and Waiver. Subject
to Section 6 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. 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.
SECTION 19. 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.
SECTION 20. Identical Counterparts. This Agreement may
be executed in one or more counterparts, each of which shall
for all purposes be deemed to be an original but all of
which together shall constitute one and the same Agreement.
Only one such counterpart signed by the party against whom
enforceability is sought needs to be produced as evidence of
the existence of this Agreement.
SECTION 21. Headings; References; Pronouns. The
headings of the Sections of this Agreement are inserted for
convenience only and shall not be deemed to constitute part
of this Agreement or to affect the construction thereof.
References herein to Section numbers are to Sections of this
Agreement. All pronouns and any variations thereof shall be
deemed to refer to the masculine, feminine, neuter, singular
or plural as appropriate.
SECTION 22. Notices. All notices, requests, demands or
other communications hereunder shall be in writing and shall
be deemed to have been duly given and received (i) if
delivered by hand, on the date so delivered, or (ii) if sent
by overnight courier, on the next business day after being
so sent, or (iii) if sent by facsimile, on the day so sent:
(a) If to the Indemnitee, to:
(b) If to the Company, to:
Atlantic Coast Airlines Holdings, Inc.
00000 Xxxxxxxx Xxxxx, Xxxxx 000
Xxxxxx, XX 00000
Attn: President
facsimile: (000) 000-0000
with a copy to:
Atlantic Coast Airlines Holdings, Inc.
00000 Xxxxxxxx Xxxxx, Xxxxx 000
Xxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxxxx, Esq.
facsimile: (000) 000-0000
or to such other address as may be furnished to the
Indemnitee by the Company or to the Company by the
Indemnitee, as the case may be.
IN WITNESS WHEREOF, the parties hereto have duly executed
this Agreement and set their seals effective as of the ___
day of January, 2003.
ATLANTIC COAST AIRLINES HOLDINGS, INC.
By: _______________________
INDEMNITEE
By:
________________________________
EXHIBIT A
FORM OF UNDERTAKING FOR ADVANCEMENT OF EXPENSE
The undersigned hereby demands the advancement of expenses
as provided in Section 4 of that certain Agreement, dated
___ _, 2002, between Atlantic Coast Airlines Holdings, Inc.
(the "Company") and _________ ________ (the "Indemnitee"),
and avers that he has reasonably incurred or will reasonably
incur actual Expenses in defending a proceeding and
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.
IN WITNESS WHEREOF, the undersigned has duly executed this
statement.
_______________________________
WITNESSED BY:
_______________________________
EXHIBIT B
FORM OF INDEMNIFICATION STATEMENT
The undersigned hereby demands indemnification as provided
in Section 2 of that certain Agreement, dated ___ _, 2002,
between Atlantic Coast Airlines Holdings, Inc. (the
"Company") and _________ ________ (the "Indemnitee") and
avers that,:
__ (a)in a Proceeding other than an action by or in the
Right of the Company, Indemnitee 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 Proceeding, had no reasonable cause to believe his
conduct was unlawful; or
__ (b) in a Proceeding by or in the right of the Company,
Indemnitee acted in good faith and in a manner he reasonably
believed to be in or not opposed to the best interests of
the Company.
IN WITNESS WHEREOF, the undersigned has duly executed this
statement.
______________________________
WITNESSED BY:
_______________________________
