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EXHIBIT 10.15
INDEMNIFICATION AGREEMENT
AGREEMENT, effective as of January 30, 1998 between GETTY REALTY CORP., a
Maryland corporation (the "Company"), and ______________________ (the
"Director"), a director of the Company;
WHEREAS, in recognition of Director's need for substantial protection
against personal liability in order to enhance Director's continued service to
the Company in an effective manner and Director's reliance on the provisions of
the By-Laws requiring indemnification of the Director under certain
circumstances, and in part to provide Director with specific contractual
assurance that the protection promised by such By-Laws will be available to
Director (regardless of, among other things, any amendment to or revocation of
such By-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 Director to the full 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 Director under the
Company's directors' and officers' liability insurance policies.
NOW, THEREFORE, in consideration of the premises and of Director agreeing
to serve or continuing to serve the Company directly or, at its request, with
another enterprise, and intending to be legally bound hereby, the parties hereto
agree as follows:
1. Basic Indemnification Agreement.
(a) In the event Director 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 (as hereinafter defined) by reason of (or arising
in part out of) an Indemnifiable Event (as hereinafter defined), the Company
shall indemnify Director to the fullest extent permitted by law as soon as
practicable but in any event no later than 30 days after written demand is
presented to the Company, against any and all Expenses (as hereinafter defined),
judgment, fines, penalties and amounts paid in settlement of such Claim. If so
requested by Director, the Company shall advance (within ten business days of
such written request) any and all Expenses to Director (an "Expense Advance").
Notwithstanding anything in this Agreement to the contrary, and except as
provided in Section 3, prior to a Change in Control (as hereinafter defined)
Director shall not be entitled to indemnification pursuant to this Agreement in
connection with any Claim initiated by Director against the Company or any
director or officer of the Company unless the Company has joined in or consented
to the initiation of such Claim.
(b) Notwithstanding the foregoing, (i) the obligations of the Company
under Section 1(a) shall be subject to the condition that the Reviewing Party
(as hereinafter defined) shall not have determined (in a written opinion, in any
case in which the special independent counsel referred to in Section 2 is
involved) that Director 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 1(a) shall be subject to the condition that, if,
when and to the extent that the Reviewing Party determines that Director would
not be permitted to be so indemnified under applicable law, the Company shall be
entitled to be reimbursed by Director (who hereby agrees to reimburse the
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Company) for all such amounts theretofore paid; provided, however, that if
Director has commenced legal proceedings in a court of competent jurisdiction to
secure a determination that Director should be indemnified under applicable law,
any determination made by the Reviewing Party that Director would not be
permitted to be indemnified under applicable law shall not be binding and
Director shall not be required to reimburse the Company for any Expense Advance
until a final judicial determination that Director shall reimburse the Company
for any Expense Advance is made with respect thereto (as to which all rights of
appeal therefrom have been exhausted or lapsed). If there has not been a Change
in Control, the Reviewing Party shall be selected by the Board of Directors, and
if there has been such a Change in Control, the Reviewing Party shall be the
special independent counsel referred to in Section 2. The Board of Directors
will appoint the Reviewing Party no later than 10 days after receipt of a demand
for indemnification (including, without limitation, a demand for Expense
Advance). The Reviewing Party shall make his determination no later than 20 days
after his appointment. If after 30 days there has been no determination by the
Reviewing Party or if the Reviewing Party determines that Director substantively
would not be permitted to be indemnified in whole or in part under applicable
law, Director shall have the right to commence litigation in any court in the
states of New York or Maryland 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 of any aspect thereof,
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 Director.
2. Change in Control. The Company agrees that, if there is a Change in
Control of the Company (other than a Change in Control which has been approved
by a majority of the Company's Board of Directors who were directors immediately
prior to such Change in Control) then with respect to all matters thereafter
arising concerning the rights of Director to indemnity payments and Expense
Advances under this Agreement or any other agreement or Company By-Law now or
hereafter in effect relating to Claims for Indemnifiable Events, the Company
shall seek legal advice only from special independent counsel selected by
Director and approved by the Company (which approval shall not be unreasonably
withheld), and who has not otherwise performed services for the Company within
the last five years (other than in connection with such matters) or for
Director. Such counsel, among other things, shall render a written opinion to
the Company and Director as to whether and to what extent Director would be
permitted to be indemnified under applicable law. The Company agrees to pay the
reasonable fees of the special, independent counsel referred to above and to
fully indemnify 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.
3. Indemnification for Additional Expenses. The Company shall indemnify
Director against any and all expenses (including attorneys' fees) and, if
requested by Director, shall (within ten business days of such written request)
advance such expenses to Director, which are incurred by Director in connection
with any claim asserted against or action brought by Director for (i)
indemnification or advance payment of Expenses by the Company under this
Agreement or any other agreement or Company By-Law now or hereafter in effect
relating to Claims for Indemnifiable Events and/or (ii) recovery under any
directors' and officers liability insurance policies maintained by the Company,
regardless of whether Director ultimately is determined to
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be entitled to such indemnification, advance expense payment or insurance
recovery, as the case may be.
4. Partial Indemnity, Etc. If Director is entitled under any provision of
this Agreement to indemnification by the Company of some or a portion of the
Expenses, judgments, fines, penalties and amounts paid in settlement of a Claim
but not, however, for all of the total amount thereof, the Company shall
nevertheless indemnify Director for the portion thereof to which Director is
entitled. Moreover, notwithstanding any other provision of this Agreement, to
the extent that Director has been successful on the merits or otherwise in
defense of any or all Claims relating in whole or in part to an Indemniflable
Event or in defense of any issue or matter therein, including dismissal without
prejudice, Director shall be indemnified against all Expenses incurred in
connection therewith. In connection with any determination by the Reviewing
Party or otherwise as to whether Director is entitled to be indemnified
hereunder the burden of proof shall be on the Company to establish that Director
is not so entitled.
5. No Presumption. For purposes of this Agreement, the termination of any
action, suit or proceeding by judgment, order, settlement (whether with or
without court approval) or conviction, shall not create a presumption that
Director 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.
6. Non-exclusivity, Etc. The rights of Director hereunder shall be in
addition to any other rights Director may have under the Company's By-Laws or
the Maryland General Corporation Law or otherwise. To the extent that a change
in the Maryland General Corporation Law (whether by statute or judicial
decision), or the Company's By-Laws, permits greater indemnification by
agreement than would be afforded currently under the Company's By-Laws and this
Agreement, it is the intent of the parties hereto that Director shall enjoy by
this Agreement the greater benefits so afforded by such change.
7. Liability Insurance. To the extent the Company maintains an insurance
policy or policies providing directors' and officers' liability insurance,
Director shall be covered by such policy or policies, in accordance with its or
their terms, to the maximum extent of the coverage reasonably and economically
available (as solely determined by the Board of Directors) for any Company
director.
8. Certain Definitions:
(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 a trustee or other fiduciary
holding securities under an employee benefit plan of the Company or a
corporation owned directly or indirectly by the stockholders of the Company in
substantially the same proportions as their ownership of stock 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 two-year period constitute the Board of Directors of
the
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Company and any new director whose election by the Board of Directors or
nomination for election by the Company's stockholders 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 such two-year period or whose election or
nomination for election was previously so approved, cease for any reason to
constitute a majority of the Board of Directors, or (iii) the stockholders of
the Company approve a merger or consolidation of the Company with any other
corporation, other than a 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 merger or consolidation, or (iv) the
stockholders of the Company approve a plan of complete liquidation of the
Company or an agreement for the sale or disposition by the Company of all or
substantially all the Company's assets.
(b) Claim" shall mean any threatened, pending or completed action,
suit or proceeding, or any inquiry or investigation whether conducted by the
Company or any other party, whether civil, criminal, administrative or
investigative.
(c) "Expenses" include attorneys' fees and all other costs, expenses
and obligations paid or incurred in connection with investigating, defending,
being a witness in or participating in (including on appeal), or preparing to
defend, be a witness in or participate in any Claim relating to any
Indemnifiable Event.
(d) "Indemnifiable Event" is any event or occurrence related to the
fact that Director is or was a director, officer, employee, agent 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 corporation,
partnership, joint venture, employee benefit plan, trust or other enterprise, or
arising by reason of anything done or not done by Director in any such capacity.
(e) Reviewing Party" is 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 (including the special independent counsel referred
to in Section 2) who is not a party to the particular Claim for which Director
is seeking indemnification.
(f) "Voting Securities" are any securities of the Company which vote
generally in the election of directors.
9. Amendments and Waiver. 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.
10. 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 Director, who shall execute all papers required and shall do
everything that may be necessary to secure such rights,
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including the execution of such documents necessary to enable the Company
effectively to bring suit to enforce such rights.
11. No Duplication of Payments. The Company shall not be liable under this
Agreement to make any payment in connection with any claim made against Director
to the extent Director has otherwise actually received payment (under any
insurance policy, By-Law or otherwise) of the amounts otherwise indemnifiable
hereunder.
12. 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 and assigns, including any (i) direct or indirect successor by
purchase, merger, consolidation or otherwise to all or substantially all of the
business and/or assets of the Company, and (ii) spouses, heirs, and personal and
legal representatives. This Agreement shall continue in effect regardless of
whether Director continues to serve as a director (or in one of the capacities
enumerated in Section 8(d) hereof) of the Company or of any other enterprise at
the Company's request.
13.Severabi1ity. The provisions of this Agreement shall be severable in
the event that any of the provisions hereof (including any provisions within a
single section, paragraph or sentence) are held by a court of competent
jurisdiction to be invalid, void or otherwise unenforceable, and the remaining
provisions shall remain enforceable to the fullest extent permitted by law.
14. Governing Law. This Agreement shall be governed by and construed and
enforced in accordance with the laws of the State of Maryland 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 on the
day and year first above written.
ATTEST: GETTY REALTY CORP.
By: (SEAL)
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Secretary Xxx Xxxxxxxxx, President
WITNESS DIRECTOR
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