Exhibit 10.1
INDEMNITY
AGREEMENT
This Indemnity
Agreement (this “ Agreement ”) is made as of
,
2007, by and between Orbitz Worldwide, Inc., a Delaware
corporation (the “ Company ”), and
(“ Indemnitee ”).
RECITALS
WHEREAS, highly
competent persons have become more reluctant to serve publicly-held
corporations as directors or in other capacities unless they are
provided with adequate protection through insurance or adequate
indemnification against inordinate risks of claims and actions
against them arising out of their service to and activities on
behalf of the corporation;
WHEREAS, the Board
of Directors of the Company (the “ Board ”) has
determined that, in order to attract and retain qualified
individuals, the Company will attempt to maintain on an ongoing
basis, at its sole expense, liability insurance to protect persons
serving the Company and its subsidiaries from certain liabilities.
Although the furnishing of such insurance has been a customary and
widespread practice among United States-based corporations and
other business enterprises, the Company believes that, given
current market conditions and trends, such insurance may be
available to it in the future only at higher premiums and with more
exclusions. At the same time, directors, officers, and other
persons in service to corporations or business enterprises are
being increasingly subjected to expensive and time-consuming
litigation relating to, among other things, matters that
traditionally would have been brought only against the Company or
business enterprise itself. The By-laws of the Company (as amended
from time to time, the “ By-laws ”) provide
for indemnification of the officers and directors of the Company.
Indemnitee may also be entitled to indemnification pursuant to the
General Corporation Law of the State of Delaware (the “
DGCL ”). The Certificate of Incorporation of the
Company (as amended from time to time, the “ Charter
”), the By-laws and the DGCL expressly provide that the
indemnification provisions set forth therein are not exclusive, and
thereby contemplate that contracts may be entered into between the
Company and its directors and officers with respect to
indemnification;
WHEREAS, the
uncertainties relating to such insurance and to indemnification
have increased the difficulty of attracting and retaining such
persons to serve publicly-held corporations as directors and
officers;
WHEREAS, the Board
has determined that the increased difficulty in attracting and
retaining such persons is detrimental to the best interests of the
Company’s stockholders and that the Company should act to
assure such persons that there will be increased certainty of such
protection in the future;
WHEREAS, it is
reasonable, prudent and necessary for the Company contractually to
obligate itself to indemnify, and to advance expenses on behalf of,
such persons to the fullest extent permitted by applicable law so
that they will serve or continue to serve the Company free from
undue concern that they will not be so indemnified;
WHEREAS, this
Agreement is a supplement to and in furtherance of the Charter and
the By-laws and any resolutions adopted pursuant thereto and shall
not be deemed a substitute therefor, nor to diminish or abrogate
any rights of Indemnitee thereunder; and
WHEREAS,
Indemnitee does not regard the protection available under the
Charter and the By-laws and insurance as adequate in the present
circumstances, and may not be willing to serve as a director or
officer without adequate protection, and the Company desires
Indemnitee to serve in such capacity. Indemnitee is willing to
serve, continue to serve and to take on additional service for or
on behalf of the Company on the condition that he or she be so
indemnified.
NOW, THEREFORE, in
consideration of the premises and the covenants contained herein,
the Company and Indemnitee do hereby covenant and agree as
follows:
1.
SERVICES TO THE COMPANY .
(a)
Indemnitee will serve or continue to serve, at the will of the
Company, as a director or officer of the Company for so long as
Indemnitee is duly elected or appointed or until Indemnitee tenders
his or her resignation in writing or is otherwise terminated or
properly removed from office.
(b)
The Company expressly confirms and agrees that (i) it has
entered into this Agreement and assumed the obligations imposed on
the Company hereby in order to induce Indemnitee to serve or
continue to serve as a director and/or officer of the Company and
(ii) the obligations imposed on the Company hereby cover
service by Indemnitee during and after the period with respect to
Indemnitee’s service as a director and/or officer of the
Company, including, specifically, any such period prior to the date
of this Agreement. The Company acknowledges that Indemnitee is
relying upon this Agreement in serving, or continuing to serve, as
a director and/or officer of the Company.
2.
DEFINITIONS . As used in this Agreement:
(a)
“ Beneficial Owner ” shall have the meaning
given to such term in Rule l3d-3 under the Exchange Act (as
defined below); provided , however , that Beneficial
Owner shall exclude any Person otherwise becoming a Beneficial
Owner by reason of the stockholders of the Company approving a
merger of the Company with another entity.
(b)
A “ Change in Control ” shall be deemed to occur
upon the earliest to occur after the date of this Agreement of any
of the following events:
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(i)
any Person (as defined below) is or becomes the Beneficial Owner
(as defined below), directly or indirectly, of securities of the
Company representing thirty percent (30%) or more of the combined
voting power of the Company’s then outstanding voting
securities;
(ii)
individuals who as of July 25, 2007 constituted the Board and
any new director (other than a director whose initial assumption of
office is in connection with an actual or threatened election
contest, including but not limited to a consent solicitation,
relating to the election of directors of the Company) whose
appointment or election by the Board or nomination for election by
the Company’s stockholders was approved by a vote of at least
two-thirds of the directors then still in office who either were
directors on such date or whose appointment, election or nomination
for election was previously so approved, cease for any reason to
constitute a least a majority of the directors then serving on the
Board;
(iii)
a merger or consolidation of the Company or any direct or indirect
subsidiary of the Company with any other entity, other than a
merger or consolidation immediately following which the individuals
who comprise the Board immediately prior thereto constitute at
least a majority of the Board or the board of directors or
governing body of the entity surviving such merger or consolidation
or, if the Company or the entity surviving such merger is then a
subsidiary, the ultimate parent thereof;
(iv)
the approval by the stockholders of the Company of a complete
liquidation of the Company or an agreement or series of agreements
for the sale or disposition by the Company of all or substantially
all of the Company’s assets, other than a sale or disposition
by the Company of all or substantially all of the Company’s
assets to an entity, immediately following which the individuals
who comprise the Board immediately prior thereto constitute at
least a majority of the board of directors of the entity to which
such assets are sold or disposed of or, if such entity is a
subsidiary, the ultimate parent thereof; or
(v)
there occurs any other event of a nature that would be required to
be reported in response to Item 6(e) of Schedule 14A of
Regulation 14A (or a response to any similar item on any similar
schedule or form) promulgated under the Exchange Act (as defined
below), whether or not the Company is then subject to such
reporting requirement.
Notwithstanding the
foregoing, a Change in Control shall not be deemed to have occurred
by virtue of the consummation of any transaction or series of
integrated transactions immediately following which individuals who
comprise the Board immediately prior thereto constitute at least a
majority of the board of directors of an entity which owns all or
substantially all of the assets of the Company immediately
following such transaction or series of transactions.
(c)
“ Corporate Status ” describes the status of a
person who is or was a director, officer, trustee, general partner,
member, fiduciary, employee or agent of the
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Company or of any other
Enterprise (as defined below) which such person is or was serving
at the request of the Company.
(d)
“ Disinterested Director ” means a director of
the Company who is not and was not a party to the Proceeding (as
defined below) in respect of which indemnification is sought by
Indemnitee.
(e)
“ Enterprise ” shall mean the Company and any
other corporation, limited liability company, partnership, joint
venture, trust, employee benefit plan or other enterprise of which
Indemnitee is or was serving at the request of the Company as a
director, officer, trustee, general partner, member, fiduciary,
employee or agent.
(f)
“ Exchange Act ” shall mean the Securities
Exchange Act of 1934, as amended.
(g)
“ Expenses ” shall include all reasonable
attorneys’ fees, retainers, court costs, transcript costs,
fees of experts and accountants, witness fees, travel expenses,
duplicating costs, printing and binding costs, telephone charges,
postage, delivery service fees, and all other disbursements or
expenses of the types customarily incurred in connection with
prosecuting, defending, preparing to prosecute or defend,
investigating, being or preparing to be a witness in, or otherwise
participating in, a Proceeding. Expenses also shall include costs
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, supersedeas bond,
or other appeal bond or its equivalent. Expenses, however, shall
not include amounts paid in settlement by Indemnitee or the amount
of judgments or fines against Indemnitee.
(h)
“ Independent Counsel ” means a law firm, or a
member of a law firm, that is experienced in matters of corporation
law and neither presently is, nor in the past five years has been,
retained to represent: (i) the Company or Indemnitee in any
matter material to either such party (other than with respect to
matters concerning Indemnitee under this Agreement, or of other
indemnitees under similar indemnification agreements), or
(ii) any other party to the Proceeding giving rise to a claim
for indemnification hereunder. Notwithstanding the foregoing, the
term “Independent Counsel” shall not include any person
who, under the applicable standards of professional conduct then
prevailing, would have a conflict of interest in representing
either the Company or Indemnitee in an action to determine
Indemnitee’s rights under this Agreement.
(i)
“ Person ” shall have the meaning as set forth
in Sections 13(d) and 14(d) of the Exchange Act;
provided , however , that Person shall exclude
(i) the Company and its subsidiaries, (ii) any trustee or
other fiduciary holding securities under an employee benefit plan
of the Company or any of its subsidiaries, and (iii) any
corporation owned, directly or indirectly, by the stockholders of
the Company in substantially the same proportions as their
ownership of stock of the Company.
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(j)
The term “ Proceeding ” shall include any
threatened, pending or completed action, suit, arbitration,
alternate dispute resolution mechanism, investigation, inquiry,
administrative hearing, appeal or any other actual, threatened or
completed proceeding, whether brought in the right of the Company
or otherwise and whether of a civil, criminal, administrative or
investigative nature, in which Indemnitee was, is or will be
involved as a party or witness or otherwise by reason of the fact
that Indemnitee is or was a director or officer of the Company, by
reason of any action taken (or failure to act) by him or her of any
action (or failure to act) on his or her part while acting as
director or officer of the Company, or by reason of the fact that
he or she is or was serving at the request of the Company as a
director, officer, trustee, general partner, member, fiduciary,
employee or agent of any other Enterprise, in each case whether or
not serving in such capacity at the time any liability or expense
is incurred for which indemnification, reimbursement, or
advancement of expenses can be provided under this Agreement.
3.
INDEMNITY IN THIRD-PARTY PROCEEDINGS . The Company shall
indemnify Indemnitee in accordance with the provisions of this
Section 3 if Indemnitee was, is, or is threatened to be made,
a party to or a participant (as a witness or otherwise) or
otherwise involved in any Proceeding, other than a Proceeding by or
in the right of the Company to procure a judgment in its favor.
Pursuant to this Section 3, Indemnitee shall be indemnified
against all Expenses, judgments, fines, 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, judgments, fines, penalties and amounts paid in
settlement) actually and reasonably incurred by Indemnitee or on
his or her behalf in connection with such Proceeding or any claim,
issue or matter therein or related thereto, if Indemnitee 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 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 of court, 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 and in a manner which he or she reasonably believed to be in
or not opposed to the best interests of the Company, and with
respect to any criminal Proceeding, that such person had reasonable
cause to believe that his or her conduct was unlawful.
4.
INDEMNITY IN PROCEEDINGS BY OR IN THE RIGHT OF THE COMPANY .
The Company shall indemnify Indemnitee in accordance with the
provisions of this Section 4 if Indemnitee was, is, or is
threatened to be made, a party to or a participant (as a witness or
otherwise) or otherwise involved in any Proceeding by or in the
right of the Company to procure a judgment in its favor. Pursuant
to this Section 4, Indemnitee shall be indemnified against all
Expenses actually and reasonably incurred by him or her or on his
or her behalf in connection with the defense or settlement of such
Proceeding or any claim, issue or matter therein or related
thereto, if Indemnitee 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. No indemnification for Expenses shall be
made under this Section 4 in respect of any claim, issue or
matter as to which Indemnitee shall have been finally adjudged by a
court to be liable to the Company, unless and only to the extent
that any court in which the Proceeding was brought or the Delaware
Court of Chancery (the
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“ Delaware
Court ”) 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
indemnification.
5.
INDEMNIFICATION FOR EXPENSES OF A PARTY WHO IS WHOLLY OR PARTLY
SUCCESSFUL . Notwithstanding any other provisions of this
Agreement, 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 him or her 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 indemnify Indemnitee against all
Expenses actually and reasonably incurred by him or her or on his
or her behalf in connection with each successfully resolved claim,
issue or matter. If Indemnitee is not wholly successful in such
Proceeding, the Company also shall indemnify Indemnitee against all
Expenses reasonably incurred in connection with a claim, issue or
matter related to any claim, issue, or matter on which Indemnitee
was successful. For purposes of this Section 5 and without
limitation, the termination of any claim, issue or matter in such a
Proceeding by dismissal, with or without prejudice, shall be deemed
to be a successful result as to such claim, issue or matter,
provided that there has been no finding that Indemnitee
(a) did not act in good faith, (b) did not act in a
manner reasonably believed to be in or not opposed to the best
interests of the Company or (c) with respect to any criminal
Proceeding, had reasonable grounds to believe that his or her
conduct was unlawful.
6.
INDEMNIFICATION FOR EXPENSES OF A WITNESS . Notwithstanding
any other provision of this Agreement, to the extent that
Indemnitee is, by reason of his or her Corporate Status, a witness
in or otherwise incurs Expenses in connection with any Proceeding
to which Indemnitee is not a party, he or she shall be indemnified
against all Expenses actually and reasonably incurred by him or her
or on his or her behalf in connection therewith.
7.
ADDITIONAL INDEMNIFICATION . Notwithstanding any limitation
in Sections 3, 4 or 5 of this Agreement, the Company shall
indemnify Indemnitee to the fullest extent permitted by applicable
law if Indemnitee is a party to or threatened to be made a party to
any Proceeding (including a Proceeding by or in the right of the
Company to procure a judgment in its favor) against all Expenses,
judgments, fines, 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,
judgments, fines, penalties and amounts paid in settlement)
actually and reasonably incurred by Indemnitee in connection with
the Proceeding. No indemnity shall be made under this
Section 7 on account of Indemnitee’s conduct which
constitutes a breach of Indemnitee’s duty of loyalty to the
Company or its stockholders or is an act or omission not in good
faith or which involves intentional misconduct or a knowing
violation of the law.
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8.
EXCLUSIONS . Notwithstanding any provision in this
Agreement, the Company shall not be obligated under this Agreement
to make any indemnity in connection with any claim made against
Indemnitee:
(a)
for which payment has actually been received by or on behalf of
Indemnitee under any insurance policy or other indemnity provision,
except with respect to any excess beyond the amount actually
received under any insurance policy or other indemnity provision;
or
(b)
for an accounting of profits made from the purchase and sale (or
sale and purchase) by Indemnitee of securities of the Company
within the meaning of Section 16(b) of the Exchange Act
or similar provisions of state statutory law or common law;
(c)
except as otherwise provided in Section 13(f) hereof,
prior to a Change in Control, in connection with any Proceeding (or
any part of any Proceeding) initiated by Indemnitee, including any
Proceeding (or any part of any Proceeding) initiated by Indemnitee
against the Company or its directors, officers, employees or other
indemnitees, unless (i) the Board of the Company authorized
the Proceeding (or any part of any Proceeding) prior to its
initiation or (ii) the Company provides the indemnification,
in its sole discretion, pursuant to the powers vested in the
Company under applicable law.
9.
A
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