FORM OF INDEMNIFICATION AGREEMENT
AGREEMENT, dated as of August 2, 2006, between Aircastle
Limited, a company incorporated under the laws of Bermuda with its registered
office located at Xxxxxxxxx Xxxxx, 0 Xxxxxx Xxxxxx, Xxxxxxxx 00, Xxxxxxx (the
"Company"), and __________________ ("Indemnitee").
WHEREAS, it is essential to the Company to retain and attract
as directors and officers the most capable persons available;
WHEREAS, Indemnitee is a director and/or officer of the
Company;
WHEREAS, both the Company and Indemnitee recognize the
increased risk of litigation and other claims being asserted against directors
and officers of public companies in today's environment;
WHEREAS, basic protection against undue risk of personal
liability of directors and officers heretofore has been provided through
insurance coverage providing reasonable protection at reasonable cost, and
Indemnitee has relied on the availability of such coverage; but as a result of
substantial changes in the marketplace for such insurance it has become
increasingly more difficult to obtain such insurance on terms providing
reasonable protection at reasonable cost;
WHEREAS, the Amended Bye-laws of the Company require the
Company to indemnify and advance expenses to its directors and officers to the
fullest extent permitted by law and the Indemnitee has been serving and
continues to serve as a director and/or officer of the Company in part in
reliance on such Amended Bye-laws;
WHEREAS, the current difficulty in obtaining adequate director
and officer liability insurance coverage at a reasonable cost and uncertainties
as to the availability of indemnification created by recent court decisions have
increased the risk that the Company will be unable to retain and attract as
directors and officers the most capable persons available;
WHEREAS, the Board of Directors of the Company has determined
that the inability of the Company to retain and attract as directors and
officers the most capable persons would be detrimental to the interests of the
Company and that the Company therefore should seek to assure such persons that
indemnification and insurance coverage will be available in the future; and
WHEREAS, in recognition of Indemnitee's need for substantial
protection against personal liability in order to enhance Indemnitee's continued
service to the Company in an effective manner, the increasing difficulty in
obtaining satisfactory director and officer liability insurance coverage, and
Indemnitee's reliance on the Company's Amended Bye-laws, and in part to provide
Indemnitee with specific contractual assurance that the protection promised by
such Amended Bye-laws will be available to Indemnitee (regardless of, among
other things, any amendment to or
revocation of such Amended Bye-laws or any change in the composition of the
Company's Board of Directors or acquisition transaction relating to the
Company), the Company wishes to provide in this Agreement for the
indemnification of and the advancing of expenses to Indemnitee to the fullest
extent (whether partial or complete) permitted by law and as set forth in this
Agreement, and, to the extent insurance is maintained, for the continued
coverage of Indemnitee under the Company's directors' and officers' liability
insurance policies;
NOW, THEREFORE, in consideration of the premises and of
Indemnitee continuing to serve the Company directly or, at its request, another
enterprise, and intending to be legally bound hereby, the parties hereto agree
as follows:
1. Certain Definitions. In addition to terms defined elsewhere herein,
the following terms have the following meanings when used in this Agreement:
(a) Change in Control: shall be deemed to have occurred if
(i) any "person" (as such term is used in Sections 13(d)
and 14(d) of the Securities Exchange Act of 1934, as
amended), other than Fortress Investment Group LLC and
its affiliates and other than a trustee or other
fiduciary holding securities under an employee benefit
plan of the Company or a corporation owned directly or
indirectly by the shareholders of the Company in
substantially the same proportions as their ownership of
shares of the Company, is or becomes the "beneficial
owner" (as defined in Rule 13d-3 under said Act),
directly or indirectly, of securities of the Company
representing 20% or more of the total voting power
represented by the Company's then outstanding Voting
Securities, or (ii) during any period of two consecutive
years, individuals who at the beginning of such period
constitute the Board of Directors of the Company and any
new director whose election by the Board of Directors or
nomination for election by the Company's shareholders
was approved by a vote of at least two-thirds (2/3) 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 majority
thereof, or (iii) the shareholders of the Company
approve an amalgamation, scheme of arrangement, merger
or consolidation of the Company with any other
corporation, other than an amalgamation, scheme of
arrangement, merger or consolidation which would result
in the Voting Securities of the Company outstanding
immediately prior thereto continuing to represent
(either by remaining outstanding or by being converted
into Voting Securities of the surviving entity) at least
80% of the total voting power represented by the Voting
Securities of the Company or such surviving entity
outstanding immediately after such amalgamation, scheme
of arrangement, merger or consolidation, or the
shareholders of the Company
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approve a plan of complete liquidation of the Company or
an agreement for the sale or disposition by the Company
of (in one transaction or a series of transactions) all
or substantially all the Company's assets.
(b) Claim: means any threatened, asserted, pending or
completed action, suit or proceeding, or appeal thereof,
or any inquiry or investigation, whether instituted by
the Company or any governmental agency or any other
party, that Indemnitee in good faith believes might lead
to the institution of any such action, suit or
proceeding, whether civil, criminal, administrative,
investigative or other, including any arbitration or
other alternative dispute resolution mechanism.
(c) Expenses: include attorneys' fees and all other costs,
expenses and obligations (including, without limitation,
experts' fees, court costs, retainers, transcript fees,
duplicating, printing and binding costs, as well as
telecommunications, postage and courier charges) paid or
incurred in connection with investigating, defending,
being a witness in or participating in (including on
appeal), or preparing to investigate, defend, be a
witness in or participate in, any Claim relating to any
Indemnifiable Event.
(d) Indemnifiable Amounts: means any and all Expenses,
damages, judgments, fines, penalties, ERISA excise taxes
and amounts paid in settlement (including all interest,
assessments and other charges paid or payable in
connection with or in respect of such Expenses,
judgments, fines, penalties, excise taxes or amounts
paid in settlement) arising out of or resulting from any
Claim relating to an Indemnifiable Event.
(e) Indemnifiable Event: means any event or occurrence,
whether occurring before, on or after the date of this
Agreement, related to the fact that Indemnitee is or was
a director and/or officer or fiduciary of the Company,
or is or was serving at the request of the Company as a
director, officer, employee, trustee, agent or fiduciary
of another company, corporation, limited liability
company, partnership, joint venture, employee benefit
plan, trust or other entity or enterprise, or by reason
of anything done or not done by Indemnitee in any such
capacity.
(f) Independent Legal Counsel: means an attorney or firm of
attorneys, selected in accordance with the provisions of
Section 3 hereof, who is experienced in matters of
corporate law and who shall not have otherwise performed
services for the Company or Indemnitee within the last
five years (other than with respect to
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matters concerning the rights of Indemnitee under this
Agreement, or of other indemnitees under similar
indemnity agreements).
(g) Reviewing Party: means any appropriate person or body
consisting of a member or members of the Company's Board
of Directors or any other person or body appointed by
the Board who is not a party to the particular Claim for
which Indemnitee is seeking indemnification, or
Independent Legal Counsel.
(h) Voting Securities: means any securities of the Company
which vote generally in the election of directors.
2. Basic Indemnification Arrangement; Advancement of Expenses.
(a) Subject to clause 11 and applicable law, in the event
Indemnitee was, is or becomes a party to or witness or other participant in, or
is threatened to be made a party to or witness or other participant in, a Claim
by reason of (or arising in part out of) an Indemnifiable Event, the Company
shall indemnify Indemnitee to the fullest extent permitted by law as soon as
practicable but in any event no later than thirty days after written demand is
presented to the Company, against any and all Indemnifiable Amounts.
(b) If so requested by Indemnitee, the Company shall advance
(within two business days of such request) any and all Expenses incurred by
Indemnitee (an "Expense Advance"). The Company shall, in accordance with such
request (but without duplication), either (i) pay such Expenses on behalf of
Indemnitee, or (ii) reimburse Indemnitee for such Expenses. Indemnitee's right
to an Expense Advance is absolute and shall not be subject to any prior
determination by the Reviewing Party that the Indemnitee has satisfied any
applicable standard of conduct for indemnification.
(c) Notwithstanding anything in this Agreement to the
contrary, Indemnitee shall not be entitled to indemnification or advancement of
Expenses pursuant to this Agreement in connection with any Claim initiated by
Indemnitee unless (i) the Company has joined in or Company's Board of Directors
has authorized or consented to the initiation of such Claim or (ii) the Claim is
one to enforce Indemnitee's rights under this Agreement.
(d) Notwithstanding the foregoing, (i) the indemnification
obligations of the Company under Section 2(a) shall be subject to the condition
that the Reviewing Party shall not have determined (in a written opinion, in any
case in which the Independent Legal Counsel referred to in Section 3 hereof is
involved) that Indemnitee would not be permitted to be indemnified under
applicable law, and (ii) the obligation of the Company to make an Expense
Advance pursuant to Section 2(b) shall be subject to the condition that, if,
when and to the extent that the Reviewing Party determines that Indemnitee would
not be permitted to be so indemnified under applicable law, the Company shall be
entitled to be reimbursed by Indemnitee (who hereby agrees to reimburse the
Company) for all such amounts theretofore paid (it being understood and
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agreed that the foregoing agreement by Indemnitee shall be deemed to satisfy any
requirement that Indemnitee provide the Company with an undertaking to repay any
Expense Advance if it is ultimately determined that the Indemnitee is not
entitled to indemnification under applicable law); provided, however, 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 the Reviewing Party
that Indemnitee would not be permitted to be indemnified under applicable law
shall not be binding and Indemnitee shall not be required to reimburse the
Company for any Expense Advance until a final judicial determination is made
with respect thereto (as to which all rights of appeal therefrom have been
exhausted or lapsed). Indemnitee's undertaking to repay such Expense Advances
shall be unsecured and interest-free. If there has not been a Change in Control,
the Reviewing Party shall be selected by the Company's Board of Directors, and
if there has been such a Change in Control, the Reviewing Party shall be the
Independent Legal Counsel referred to in Section 3 hereof. If there has been no
determination by the Reviewing Party within thirty days after written demand is
presented to the Company or if the Reviewing Party determines that Indemnitee
would not be permitted to be indemnified in whole or in part under applicable
law, Indemnitee shall have the right to commence litigation in the Supreme Court
of Bermuda or 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 the
Reviewing Party or any aspect thereof, including the legal or factual bases
therefor, and the Company hereby consents to service of process and to appear in
any such proceeding. Any determination by the Reviewing Party otherwise shall be
conclusive and binding on the Company and Indemnitee.
3. Change in Control. The Company agrees that if there is a Change in
Control of the Company then with respect to all matters thereafter arising
concerning the rights of Indemnitee to indemnity payments and Expense Advances
under this Agreement or any Company Amended Bye-law or provision of the
Company's Memorandum of Association now or hereafter in effect, the Company
shall seek legal advice only from Independent Legal Counsel selected by
Indemnitee and approved by the Company (which approval shall not be unreasonably
delayed, conditioned or withheld). Such counsel, among other things, shall
render its written opinion to the Company and Indemnitee as to whether and to
what extent the Indemnitee would be permitted to be indemnified under applicable
law. The Company agrees to pay the reasonable fees of the Independent Legal
Counsel and to indemnify fully such counsel against any and all expenses
(including attorneys' fees), claims, liabilities and damages arising out of or
relating to this Agreement or its engagement pursuant hereto.
4. Indemnification for Additional Expenses. Subject to clause 11 and
subject to Section 2(d), the Company shall indemnify Indemnitee against any and
all Expenses and, if requested by Indemnitee, shall advance such Expenses to
Indemnitee subject to and in accordance with Section 2(b), which are incurred by
Indemnitee in connection with any action brought by Indemnitee for (i)
indemnification or an Expense Advance by the Company under this Agreement or any
Company Amended Bye-law or provision of the Company's Memorandum of Association
now or hereafter in effect and/or (ii)
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recovery under any directors' and officers' liability insurance policies
maintained by the Company, regardless of whether Indemnitee ultimately is
determined to be entitled to such indemnification, Expense Advance or insurance
recovery, as the case may be.
5. Partial Indemnity, Etc. If Indemnitee is entitled under any
provision of this Agreement to indemnification by the Company for some or a
portion of the Expenses or other Indemnifiable Amounts in respect of a Claim but
not, however, for all of the total amount thereof, the Company shall
nevertheless indemnify Indemnitee for the portion thereof to which Indemnitee is
entitled. Moreover, notwithstanding any other provision of this Agreement,
except for clause 11, to the extent that Indemnitee has been successful on the
merits or otherwise in defense of any or all Claims relating in whole or in part
to an Indemnifiable Event or in defense of any issue or matter therein,
including dismissal without prejudice, Indemnitee shall be indemnified against
all Expenses incurred in connection therewith.
6. Burden of Proof. In connection with any determination by the
Reviewing Party or otherwise as to whether Indemnitee is entitled to be
indemnified hereunder the Reviewing Party or court shall presume that the
Indemnitee has satisfied the applicable standard of conduct and is entitled to
indemnification, and the burden of proof shall be on the Company to establish,
by clear and convincing evidence, that Indemnitee is not so entitled.
7. Reliance as Safe Harbor. For purposes of this Agreement and subject
to applicable law, Indemnitee shall be deemed to have acted in good faith and in
a manner he or she reasonably believed to be in or not opposed to the best
interests of the Company if Indemnitee's actions or omissions to act are taken
in good faith reliance upon the records of the Company, including its financial
statements, or upon information, opinions, reports or statements furnished to
Indemnitee by the officers or employees of the Company in the course of their
duties, or by committees of the Company's Board of Directors, or by any other
person (including legal counsel, accountants and financial advisors) as to
matters Indemnitee reasonably believes are within such other person's
professional or expert competence and who has been selected with reasonable care
by or on behalf of the Company. In addition, the knowledge and/or actions, or
failures to act, of any director, officer, agent or employee of the Company
shall not be imputed to Indemnitee for purposes of determining the right to
indemnity hereunder.
8. No Other Presumptions. For purposes of this Agreement, but subject
to applicable law, the termination of any claim, action, suit or proceeding, by
judgment, order, settlement (whether with or without court approval) or
conviction, or upon a plea of nolo contendere, or its equivalent, shall not
create a presumption that Indemnitee did not meet any particular standard of
conduct or have any particular belief or that a court has determined that
indemnification is not permitted by applicable law. In addition, neither the
failure of the Reviewing Party to have made a determination as to whether
Indemnitee has met any particular standard of conduct or had any particular
belief, nor an actual determination by the Reviewing Party that Indemnitee has
not met such standard of conduct or did not have such belief, prior to the
commencement of legal proceedings by Indemnitee to secure a judicial
determination that Indemnitee should be indemnified
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under applicable law shall be a defense to Indemnitee's claim or create a
presumption that Indemnitee has not met any particular standard of conduct or
did not have any particular belief.
9. Nonexclusivity, Etc. The rights of the Indemnitee hereunder shall be
in addition to any other rights Indemnitee may have under the Company's Amended
Bye-laws or Memorandum of Association or the Companies Xxx 0000 of Bermuda or
otherwise. To the extent that a change in applicable law (whether by statute or
judicial decision) permits greater indemnification by agreement than would be
afforded currently under the Company's Amended Bye-laws or Memorandum of
Association or this Agreement, it is the intent of the parties hereto that
Indemnitee shall enjoy by this Agreement the greater benefits so afforded by
such change.
10. Liability Insurance. To the extent the Company maintains an
insurance policy or policies providing directors' and officers' liability
insurance, Indemnitee shall be covered by such policy or policies, in accordance
with its or their terms, to the maximum extent of the coverage available for any
Company director or officer.
11. Limitation of Indemnification. Notwithstanding any other terms or
provisions of this Agreement, nothing herein shall indemnify the Indemnitee
against, or exempt the Indemnitee from, any liability in respect of the
Indemnitee's fraud or dishonesty.
12. Amendments, Etc. No supplement, modification or amendment of this
Agreement shall be binding unless executed in writing by both of the parties
hereto. 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.
13. Subrogation. In the event of payment under this Agreement, the
Company shall be subrogated to the extent of such payment to all of the rights
of recovery of Indemnitee, who shall execute all papers reasonably required and
shall do everything that may be reasonably necessary to secure such rights,
including the execution of such documents necessary to enable the Company
effectively to bring suit to enforce such rights.
14. No Duplication of Payments. The Company shall not be liable under
this Agreement to make any payment in connection with any Claim made against
Indemnitee to the extent Indemnitee has otherwise actually received payment
(under any insurance policy, Amended Bye-law, provision of the Company's
Memorandum of Association or otherwise) of the amounts otherwise indemnifiable
hereunder.
15. Defense of Claims. The Company shall be entitled to participate in
the defense of any Claim relating to an Indemnifiable Event or to assume the
defense thereof, with counsel reasonably satisfactory to the Indemnitee;
provided that if Indemnitee believes, after consultation with counsel selected
by Indemnitee, that (i) the use of counsel chosen by the Company to represent
Indemnitee would present such counsel with
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an actual or potential conflict of interest, (ii) the named parties in any such
Claim (including any impleaded parties) include both the Company and Indemnitee
and Indemnitee concludes that there may be one or more legal defenses available
to him or her that are different from or in addition to those available to the
Company, or (iii) any such representation by such counsel would be precluded
under the applicable standards of professional conduct then prevailing, then
Indemnitee shall be entitled to retain separate counsel (but not more than one
law firm plus, if applicable, local counsel in respect of any particular Claim)
at the Company's expense. The Company shall not be liable to Indemnitee under
this Agreement for any amounts paid in settlement of any Claim relating to an
Indemnifiable Event effected without the Company's prior written consent. The
Company shall not, without the prior written consent of the Indemnitee, effect
any settlement of any Claim relating to an Indemnifiable Event which the
Indemnitee is or could have been a party unless such settlement solely involves
the payment of money and includes a complete and unconditional release of
Indemnitee from all liability on all claims that are the subject matter of such
Claim. Neither the Company nor Indemnitee shall unreasonably withhold its or his
or her consent to any proposed settlement; provided that Indemnitee may withhold
consent to any settlement that does not provide a complete and unconditional
release of Indemnitee.
16. Binding Effect, Etc. This Agreement shall be binding upon and inure
to the benefit of and be enforceable by the parties hereto and their respective
successors, (including any direct or indirect successor or continuing company by
amalgamation, scheme of arrangement, purchase, merger, consolidation or
otherwise to all or substantially all of the business and/or assets of the
Company), assigns, spouses, heirs, executors and personal and legal
representatives. The Company shall require and cause any successor (whether
direct or indirect by amalgamation, scheme of arrangement, purchase, merger,
consolidation, or otherwise) to all or substantially all of the business and/or
assets of the Company, by written agreement in form and substance satisfactory
to Indemnitee and his or her counsel, expressly to assume and agree to perform
this Agreement in the same manner and to the same extent that the Company would
be required to perform if no such succession had taken place. This Agreement
shall continue in effect regardless of whether Indemnitee continues to serve as
an officer and/or director of the Company or of any other entity or enterprise
at the Company's request.
17. Security. To the extent requested by Indemnitee and approved by the
Company's Board of Directors, the Company may at any time and from time to time
provide security to Indemnitee for the obligations of the Company hereunder
through an irrevocable bank line of credit, funded trust or other collateral or
by other means. Any such security, once provided to Indemnitee, may not be
revoked or released without the prior written consent of such Indemnitee.
18. Severability. The provisions of this Agreement shall be severable
in the event that any of the provisions hereof (including any provision within a
single section, paragraph or sentence) are held by a court of competent
jurisdiction to be invalid, void or otherwise unenforceable in any respect, and
the validity and enforceability of any such
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provision in every other respect and of the remaining provisions hereof shall
not be in any way impaired and shall remain enforceable to the fullest extent
permitted by law.
19. Specific Performance, Etc. The parties recognize that if any
provision of this Agreement is violated by the Company, Indemnitee may be
without an adequate remedy at law. Accordingly, in the event of any such
violation, Indemnitee shall be entitled, if Indemnitee so elects, to institute
proceedings, either in law or at equity, to obtain damages, to enforce specific
performance, to enjoin such violation, or to obtain any relief or any
combination of the foregoing as Indemnitee may elect to pursue.
20. Counterparts. This Agreement may be executed in 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
to evidence the existence of this Agreement.
21. Headings. The headings of the sections and paragraphs of this
Agreement are inserted for convenience only and shall not be deemed to
constitute part of this Agreement or to affect the construction or
interpretation thereof.
22. Governing Law. This Agreement shall be governed by and construed
and enforced in accordance with the laws of the State of Delaware applicable to
contracts made and to be performed in such state without giving effect to the
principles of conflicts of laws.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the date first above written.
AIRCASTLE LIMITED
By:
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Name:
Title:
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