Exhibit 10.54
INDEMNIFICATION AGREEMENT
INDEMNIFICATION AGREEMENT, dated as of (this "Agreement"),
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by and between BRE Properties, Inc., a Maryland corporation (the "Company"), and
the undersigned director and/or officer ("Indemnitee").
WITNESSETH:
WHEREAS, the Amended and Restated Articles of Incorporation (the "Charter")
and Amended and Restated Bylaws (the "Bylaws") of the Company provide for
indemnification by the Company of its directors and officers as provided
therein, and the Indemnitee has agreed to serve as a director and/or officer of
the Company or has been serving and continues to serve as a director and/or
officer of the Company in partly reliance on such provision;
WHEREAS, to provide the Indemnitee with additional contractual assurance of
protection against personal liability in connection with certain proceedings
described below, the Company desires to enter into this Agreement;
WHEREAS, the Maryland General Corporation Law (the "MGCL") expressly
recognizes that the indemnification provisions of Section 2-418 of the Maryland
Corporations and Associations Annotated Code (the "Maryland Statute") are not
exclusive of any other rights to which a person seeking indemnification may be
entitled under the Charter or By-Laws of the Company, a resolution of
stockholders or directors, an agreement or otherwise, and this Agreement is
being entered into pursuant to and in furtherance of the Charter and By-Laws of
the Company, as permitted by the Maryland Statute and as authorized by the
Charter and the Board of Directors of the Company; and
WHEREAS, in order to induce the Indemnitee to serve or continue to serve as
a director and/or officer of the Company and in consideration of the
Indemnitee's so serving, the Company desires to indemnify the Indemnitee and to
make arrangements pursuant to which the Indemnitee may be advanced or reimbursed
expenses incurred by the Indemnitee in certain proceedings described below,
according to the terms and conditions set forth below;
NOW THEREFORE, the Company and Indemnitee hereby agree as follows:
1. Indemnification.
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(a) Sole Indemnification Agreement. Notwithstanding the nonexclusivity
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provisions in Section 15(a) of this Agreement, the parties hereto agree that
this Agreement replaces and supercedes any and all prior indemnification
agreements between the Company and Indemnitee.
(b) Third-Party Proceedings. The Company shall indemnify Indemnitee to
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the fullest extent of Maryland law, except as otherwise provided in Section 3 of
this Agreement, if Indemnitee is or was a party or is threatened to be made a
party to any threatened, pending or completed suit, action, proceeding,
arbitration or alternative dispute resolution mechanism, investigation or
administrative hearing, whether civil, criminal, administrative or investigative
(any such suit, action, proceeding, arbitration or alternative dispute
resolution mechanism, investigation, administrative hearing being referred to
herein as a "Proceeding") (other than an action by or in the right of the
Company or any subsidiary or affiliated entity (each, a "Subsidiary") of the
Company) by reason of the fact that Indemnitee is or was an officer, director,
employee or agent of the Company or any Subsidiary of the Company, by reason of
any action or inaction on the part of Indemnitee while an officer, director,
employee or agent of the Company or any Subsidiary of the Company or by reason
of the fact that Indemnitee is or was serving at the request of the Company as
an officer, director, employee or agent of another individual, corporation or
any partnership, joint venture, trust, employee benefit plan or other entity or
enterprise (each a "Person"), against expenses (including reasonable attorneys'
fees), judgments, fines and amounts paid in settlement (if such settlement is
approved in advance by the Company, which approval shall not be unreasonably
withheld) actually and reasonably incurred by Indemnitee in connection with the
defense and/or settlement of such Proceeding (collectively, "Expenses") if
Indemnitee (i) acted in good faith and in a manner Indemnitee reasonably
believed to be in or not opposed to the best interests of the Company and its
stockholders, (ii) did not actually receive an improper personal benefit in
money, property or services and (iii) with respect to any criminal action or
proceeding, had no reasonable cause to believe his conduct was unlawful.
(c) Proceedings by or in the Right of the Company or any Subsidiary.
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The Company shall indemnify Indemnitee to the fullest extent of Maryland law,
except as otherwise provided in Section 3 of this Agreement, if Indemnitee is or
was a party or is threatened to be made a party to any threatened, pending or
completed Proceeding by or in the right of the Company or any Subsidiary of the
Company by reason of the fact that Indemnitee is or was an officer, director,
employee or agent of the Company or any Subsidiary of the Company, or by reason
of the fact that Indemnitee is or was serving at the request of the Company as
an officer, director, employee or agent of another Person, against Expenses in
each case to the extent actually and reasonably incurred by Indemnitee if
Indemnitee acted in good faith and in a manner Indemnitee reasonably believed to
be in or not opposed to the best interests of the Company and its stockholders,
provided that no indemnification shall be made in respect of any claim, issue or
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matter as to which Indemnitee shall have been adjudged to be liable to the
Company and its stockholders unless and only to the extent that the Circuit
Court of the State of Maryland, or the court in which such action or proceeding
shall have been brought or is pending, shall determine that in view of all the
circumstances of the case, Indemnitee is fairly and reasonably entitled to
indemnity for expense, and then only to the extent that the court shall
determine.
(d) Selection of Counsel. In the event the Company shall be obligated
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under Section 1(b) or (c) hereof to pay the Expenses of any Proceeding against
Indemnitee, the Company shall be entitled to assume the defense of such
Proceeding, with counsel approved by
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Indemnitee (who shall not unreasonably withhold such approval), upon the
delivery to Indemnitee of written notice of its election so to do. After
delivery of such notice, approval of such counsel by Indemnitee and the
retention of such counsel by the Company, the Company will not be liable to
Indemnitee under this Agreement for any fees of counsel subsequently incurred by
Indemnitee with respect to the same Proceeding, provided that, (i) Indemnitee
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shall have the right to employ Indemnitee's counsel in any such proceeding at
Indemnitee's expense; and (ii) if (A) the employment of counsel by Indemnitee
has been previously authorized in writing by the Company, (B) Indemnitee shall
have reasonably concluded that there may be a conflict of interest between the
Company and Indemnitee in the conduct of any such defense and shall have
notified the Company in writing thereof, (C) Indemnitee shall have reasonably
concluded that there may be a conflict of interest between Indemnitee and other
indemnitees of the Company being represented by counsel retained by the Company
in the same Proceeding and shall have notified the Company in writing thereof,
or (D) the Company shall not, in fact, have employed counsel to assume the
defense of such Proceeding within a reasonable time frame, then the reasonable
fees and expenses of Indemnitee's counsel shall be at the expense of the
Company.
(e) Indemnified Amounts. All amounts payable by the Company pursuant to
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this Section 1 or under Section 2 hereof are herein referred to as "Indemnified
Amounts."
2. Contribution. If, when Indemnitee has met the applicable standard of
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conduct, the indemnification provisions set forth in Section 1 should, under
applicable law, be to any extent unenforceable, then the Company agrees that it
shall be treated as though it is or was a party to the threatened, pending or
completed Proceeding in which Indemnitee is or was involved and that the Company
shall contribute to the amounts paid or payable by Indemnitee as a result of
such Expenses in third-party Proceedings in such proportion as is appropriate to
reflect the relative fault of the Company on the one hand and Indemnitee on the
other in connection with such action or inaction, or alleged action or inaction,
as well as any other relevant equitable considerations.
For purposes of this Section 2, the relative fault shall be determined by
reference to, among other things, the fault of the Company and all of its
directors, officers, employees and agents (other than Indemnitee), as a group
and treated as one entity, and such group's relative intent, knowledge, access
to information and opportunity to have altered or prevented the action or
inaction, or alleged action or inaction, forming the basis for the threatened,
pending or contemplated Proceeding, and Indemnitee's relative fault in light of
such factors on the other hand.
3. Limitations to Rights of Indemnification and Advancement of Expenses.
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Except as otherwise provided in Sections 8 and 11 of this Agreement, Indemnitee
shall not be entitled to indemnification or advancement of Expenses under this
Agreement:
(a) with respect to any Proceeding initiated, brought or made by or on
behalf of Indemnitee (i) against the Company, unless a Change in Control (as
defined in Section 3(g) of this Agreement) shall have occurred, or (ii) against
any Person other than the Company, unless approved in advance by the Board of
Directors of the Company (the "Board");
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(b) on account of Indemnitee's conduct which shall be determined by
final judgment by a court having jurisdiction in the matter that Indemnitee was
knowingly fraudulent, deliberately dishonest, engaged in willful misconduct or
that Indemnitee received an improper personal benefit;
(c) for any Expenses incurred by Indemnitee with respect to any
Proceeding instituted by Indemnitee to enforce or interpret this Agreement, to
the extent that a court of competent jurisdiction determines that any of the
material assertions made by Indemnitee in such Proceeding was not made in good
faith or was frivolous;
(d) for Expenses or liabilities of any type whatsoever (including, but
not limited to, judgments, fines, ERISA excise taxes or penalties and amounts
paid in settlement) which have been paid directly to Indemnitee by an insurance
carrier under a policy of officers' and directors' liability insurance
maintained by the Company;
(e) for expenses or the payment of profits arising from the purchase
and sale by Indemnitee of securities in violation of Section 16 (b) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), or any similar
successor statute; or
(f) if it shall be determined by final judgment by a court having
jurisdiction in the matter that such indemnification is not lawful.
(g) "Change in Control" means the occurrence of any of the following
events:
(i) the Company is merged, consolidated or reorganized into or with
another corporation or other entity, and as a result of such merger,
consolidation or reorganization less than a majority of the combined voting
power of the then-outstanding securities of such corporation or entity
immediately after such transaction are held in the aggregate by the holders of
voting stock immediately prior to such transaction;
(ii) the Company sells or otherwise transfers all or substantially
all of its assets to another corporation or other entity in which, after giving
effect to such sale or transfer, the holders of voting stock of the Company
immediately prior to such sale or transfer hold in the aggregate less than a
majority of the combined voting power of the then-outstanding securities of such
other corporation;
(iii) there is a report filed on Schedule 13D or Schedule 14D-1
(or any successor schedule, form or report or item therein), each as promulgated
pursuant to the Exchange Act, disclosing that any person or entity, other than
any shareholder of the Company (and its affiliates) owning 10% or more of the
Company's voting stock on the date hereof, has become the beneficial owner (as
the term "beneficial owner" is defined under Rule 13d-3 or any successor rule or
regulation promulgated under the Exchange Act) of securities representing 50% or
more of the combined voting power of the Company's voting stock; or
(iv) if during any period of two consecutive years individuals who
at the beginning of any such period constitute the Board cease for any reason to
constitute at least a
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majority thereof; provided, however, that for purposes of this clause (iv) each
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director of the Company who is first elected, or first nominated for election by
the Company's stockholders, by a vote of at least majority of the directors of
the Company (or a committee of the Board) then still in office who were
directors of the Company at the beginning of any such period shall be deemed to
have been a director of the Company at the beginning of such period.
Notwithstanding the provisions of clause (iii) above, unless otherwise
determined in the specific case by majority vote of the Board, a "Change in
Control" shall not be deemed to have occurred solely because the Company, any
Subsidiary or any employee stock ownership plan or any other employee benefit
plan of the Company or any Subsidiary either files or becomes obligated to file
a report or a proxy statement under or in response to Schedule 13D, Schedule
14D-1 or Schedule 14A (or any successor schedule, form or report or item
therein) under the Exchange Act disclosing beneficial ownership by it of shares
of voting stock of the Company, whether in excess of 50% or otherwise.
4. Procedure for Determination of Entitlement to Indemnification.
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(a) To obtain indemnification under this Agreement, Indemnitee shall
submit to the Company a written request, including such documentation and
information as is reasonably available to Indemnitee and is reasonably necessary
to determine whether and to what extent Indemnitee is entitled to
indemnification. The Secretary of the Company shall, promptly upon receipt of
such a request for indemnification, advise the Board in writing that Indemnitee
has requested indemnification.
(b) Upon written request by Indemnitee for indemnification, a
determination with respect to Indemnitee's entitlement thereto shall be made in
the specific case as follows:
(i) if a Change in Control shall have occurred, by Independent
Counsel (as defined in Section 4(f) of this Agreement) in a written opinion to
the Board, a copy of which shall be delivered to Indemnitee (unless Indemnitee
shall request that such determination be made by the Board, in which case the
determination shall be made in the manner provided below in clause (ii)); or
(ii) if a Change in Control shall not have occurred, (A) by the
Board by a majority vote of a quorum consisting of disinterested directors, or
(B) if a quorum of the Board consisting of disinterested directors is not
obtainable or, even if obtainable, such quorum of disinterested directors so
directs, by Independent Counsel in a written opinion to the Board, a copy of
which shall be delivered to Indemnitee.
(c) If it is so determined that Indemnitee is entitled to
indemnification, payment to Indemnitee shall be made within fifteen (15) days
after such determination. Indemnitee shall cooperate with the Person or Persons
making such determination with respect to Indemnitee's entitlement to
indemnification, including providing to such Person or Persons upon reasonable
advance request any documentation or information that is not privileged or
otherwise protected from disclosure and that is reasonably available to
Indemnitee and reasonably necessary to such determination.
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(d) If a Change in Control shall not have occurred, the Board shall
select any Independent Counsel, and the Company shall give written notice to
Indemnitee advising him of the identity of the Independent Counsel so selected.
If a Change in Control shall have occurred, the Independent Counsel shall be
selected by Indemnitee (unless Indemnitee shall request that such selection be
made by the Board), and Indemnitee shall give written notice to the Company
advising it of the identity of the Independent Counsel so selected. In either
event, Indemnitee or the Company, as the case may be, may make a written
objection to such selection. Such objection may be asserted only on the ground
that the Independent Counsel so selected may not serve as Independent Counsel
unless and until a court has determined that such objection is without merit.
Either the Company or Indemnitee may petition a court in the State of Maryland
or Indemnitee may petition a court in the State of Maryland for resolution of
any objection which shall have been made by the Company or Indemnitee to the
other's selection of Independent Counsel. The party with respect to whom an
objection is favorably resolved shall be paid all reasonable fees and expenses
incident to the procedures of this Section 4(d). Upon the due commencement of
any judicial proceeding or arbitration pursuant to Section 11 of this Agreement,
Independent Counsel shall be discharged and relieved of any further
responsibility in such capacity (subject to the applicable standards of
professional conduct then prevailing).
(e) Notwithstanding the foregoing, the Indemnitee may, at any time
after sixty (60) days after a claim for Indemnified Amounts has been filed with
the Company (or upon receipt of written notice that a claim for Indemnified
Amounts has been rejected, if earlier) and before three (3) years after a claim
for Indemnified Amounts has been filed, petition a court of competent
jurisdiction to determine whether the Indemnitee is entitled to indemnification
under the provisions of this Agreement, and such court shall thereupon have the
exclusive authority to make such determination unless and until such court
dismisses or otherwise terminates such action without having made such
determination. The court shall, as petitioned, make an independent determination
of whether the Indemnitee is entitled to indemnification as provided under this
Agreement, irrespective of any prior determination made by the Board of
Directors or independent counsel. If the court shall determine that the
Indemnitee is entitled to indemnification as to any claim, issue or matter
involved in the Proceeding with respect to which there has been no prior
determination pursuant to this Agreement or with respect to which there has been
a prior determination that the Indemnitee was not entitled to indemnification
hereunder, the Company shall pay all expenses (including attorneys' fees and
disbursements) actually incurred by the Indemnitee in connection with such
judicial determination.
(f) "Independent Counsel" means a law firm or a member of a law firm
that neither at the time in question, nor in the five years immediately
preceding such time has been retained to represent (i) the Company or Indemnitee
in any matter material to either such party or (ii) any other party to the
Proceeding giving rise to a claim for indemnification under this Agreement.
Notwithstanding the foregoing, the term "Independent Counsel" shall not include
any Person who, under the applicable standards of professional conduct then
prevailing under the law of the State of Maryland, would be precluded from
representing either the Company or Indemnitee in an action to determine
Indemnitee's rights under this Agreement.
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5. Presumptions and Effect of Certain Proceedings.
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(a) In making a determination, with respect to entitlement to
indemnification hereunder, the Person or Persons making such determination shall
presume that Indemnitee is entitled to indemnification under this Agreement if
Indemnitee has submitted a request for indemnification in accordance with
Section 4 of this Agreement, and the Company shall bear the burden of proof to
rebut that presumption in connection with the making by any Person or Persons of
any determination contrary to that presumption.
(b) The termination of any Proceeding or of any claim, issue or matter
therein by judgment, order, settlement or conviction, or upon a plea of nolo
contendere or its equivalent, shall not (except as otherwise expressly provided
in this Agreement) of itself adversely affect the right of Indemnitee to
indemnification or create a presumption that 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 its stockholders, or, with respect to any
criminal action or proceeding, that Indemnitee had reasonable cause to believe
that his conduct was unlawful.
(c) Indemnitee's conduct with respect to an employee benefit plan for
a purpose he reasonably believed to be in the interests of the participants in
and beneficiaries of the plan shall be deemed to be conduct that Indemnitee
reasonably believed to be in or not opposed to the best interests of the Company
and its stockholders.
(d) For purposes of any determination hereunder, Indemnitee shall be
deemed to have 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 its stockholders, or,
with respect to any criminal action or proceeding, to have had no reasonable
cause to believe his conduct was unlawful, if his action was based on (i) the
records or books of account of the Company or another Person, including
financial statements, (ii) information supplied to him by the officers of the
Company or another Person in the course of their duties, (iii) the advice of
legal counsel for the Company or another Person, or (iv) information or records
given or reports made to the Company or another Person by an independent
certified public accountant or by an appraiser or other expert selected with
reasonable care by the Company or another Person.
6. Success on Merits or Otherwise. Notwithstanding any other provision of
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this Agreement, to the extent that Indemnitee has been successful on the merits
or otherwise in defense of any Proceeding described in Section 1 hereof, or in
defense of any claim, issue or matter therein, he shall be indemnified against
Expenses actually and reasonably incurred by him in connection with the
investigation, defense, settlement or appeal thereof. For purposes of this
Section 6, the term "successful on the merits or otherwise" shall include, but
not be limited to, (i) any termination, withdrawal or dismissal (with or without
prejudice) of any Proceeding against Indemnitee without any express finding of
liability or guilt against him, (ii) the expiration of 180 days after the making
of any claim or threat of a Proceeding without the institution of the same and
without any promise of payment or payment made to induce a settlement or (iii)
the settlement of any Proceeding under Section 1, pursuant to which Indemnitee
pays less than $10,000.
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7. Partial Indemnification. If Indemnitee is entitled under any provision
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of this Agreement to indemnification by the Company for some or a portion of the
Expenses of Indemnitee in connection with the investigation, defense, settlement
or appeal of any Proceeding specified in Section 1, but not, however, for the
total amount thereof, the Company shall nevertheless indemnify Indemnitee for
the portion thereof to which Indemnitee is entitled. The party or parties making
the determination shall determine the portion (if less than all) of such
Expenses for which Indemnitee is entitled to indemnification under this
Agreement.
8. Costs. All the costs of making the determination required by Section 4
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hereof shall be borne solely by the Company, including, but not limited to, the
costs of legal counsel and judicial determinations. The Company shall also be
solely responsible for paying (i) all reasonable expenses incurred by Indemnitee
to enforce this Agreement, including, but not limited to, the costs incurred by
Indemnitee to obtain court-ordered indemnification pursuant to Section 11,
regardless of the outcome of any such application or proceeding, and (ii) all
costs of defending any Proceedings challenging payments to Indemnitee under this
Agreement.
9. Advance of Expenses.
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(a) The Indemnitee hereby is granted the right to receive in advance of
a final, nonappealable judgment or other final adjudication of a Proceeding (a
"Final Determination") the amount of any and all expenses, including, without
limitation, investigation expenses, expert witnesses' and attorneys' fees and
other expenses expended or incurred by the Indemnitee in connection with any
Proceeding or otherwise expended or incurred by the Indemnitee (such amounts so
expended or incurred being referred to as "Advanced Amounts").
(b) In making any written request for Advanced Amounts, the Indemnitee
shall submit to the Company a schedule setting forth in reasonable detail the
dollar amount expended or incurred and expected to be expended. Each such
listing shall be supported by the xxxx, agreement, or other documentation
relating thereto, each of which shall be appended to the schedule as an exhibit.
In addition, before the Indemnitee may receive Advanced Amounts from the
Company, the Indemnitee shall provide to the Company (i) a written affirmation
of the Indemnitee's good faith belief that the applicable standard of conduct
required for indemnification by the Company has been satisfied by the
Indemnitee, and (ii) a written undertaking by or on behalf of the Indemnitee to
repay the Advanced Amount if it shall ultimately be determined that the
Indemnitee has not satisfied any applicable standard of conduct. The written
undertaking required from the Indemnitee shall be an unlimited general
obligation of the Indemnitee but need not be secured. The Company shall pay to
the Indemnitee all Advanced Amounts within twenty (20) days after receipt by the
Company of all information and documentation required to be provided by the
Indemnitee pursuant to this paragraph.
10. Indemnification for Expenses of a Witness. Notwithstanding any other
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provision of this Agreement, to the extent that Indemnitee is, by reason of any
event or occurrence related to the fact that Indemnitee is or was an officer,
director, employee or agent of the Company or any Subsidiary of the Company, or
is or was serving at the request of the Company as an officer, director,
employee or agent of another Person, a witness in any Proceeding, whether
instituted by
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the Company or any other party, and to which Indemnitee is not a party, he shall
be indemnified against all Expenses actually and reasonably incurred by him or
on his behalf in connection therewith.
11. Enforcement.
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(a) If a claim for indemnification or advancement of Expenses made to
the Company pursuant to Section 4 or 9 is not timely paid in full to Indemnitee
by the Company as required by Section 4 or 9, respectively, Indemnitee shall be
entitled to seek judicial enforcement of the Company's obligations to make such
payment in an appropriate court of the State of Maryland. In the event that a
determination is made that Indemnitee is not entitled to indemnification or
advancement of Expenses hereunder, (i) Indemnitee may seek a de novo
adjudication of Indemnitee's entitlement to such indemnification or advancement
either, at Indemnitee's sole option, (A) an appropriate court of the State of
Maryland, or (B) an arbitration to be conducted by a single arbitrator, located
in San Francisco, California, pursuant to the rules of the American Arbitration
Association; (ii) any such judicial proceeding or arbitration shall not in any
way be prejudiced by, and Indemnitee shall not be prejudiced in any way by such
adverse determination; and (iii) in any such judicial proceeding or arbitration
the Company shall have the burden of proving that Indemnitee is not entitled to
indemnification or advancement of Expenses under this Agreement. Indemnitee
shall commence a proceeding seeking an adjudication of Indemnitee's right to
indemnification or advancement of Expenses pursuant to the preceding sentence
within six (6) months following the date on which Indemnitee first has the right
to commence such proceeding pursuant to this Section 11(a).
(b) The Company shall be precluded from asserting in any judicial
proceeding or arbitration commenced pursuant to the provisions of Section 11(a)
that the procedures and presumptions of this Agreement are not valid, binding
and enforceable and shall stipulate in any such court or before any such
arbitrator that the Company is bound by all the provisions of this Agreement.
(c) In any action brought under this Section 11, it shall be a defense
to a claim for indemnification (other than an action brought to enforce a claim
for advancement of expenses) that Indemnitee has not met the standards of
conduct which make it permissible under Maryland law for the Company to
indemnify Indemnitee for the amount claimed. The burden of proving such defense
shall be on the Company.
12. Liability Insurance and Funding. To the extent the Company maintains an
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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
director or officer of the Company. If, at the time of the receipt of a notice
of a claim pursuant to Section 4 hereof, the Company has directors' and
officers' liability insurance in effect, the Company shall give prompt notice of
the commencement of such proceeding to the insurers in accordance with the
procedures set forth in the respective policies. The Company shall thereafter
take all necessary or desirable action to cause such insurers to pay, on behalf
of Indemnitee, all amounts payable as a result of such
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Proceeding in accordance with the terms of such policies. The Company shall have
no obligation to obtain or maintain such insurance.
13. Merger or Consolidation. In the event that the Company shall be a
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constituent corporation in a merger, consolidation or other reorganization, the
Company shall require as a condition thereto, (a) if it shall not be the
surviving, resulting or acquiring corporation therein, the surviving, resulting
or acquiring corporation to agree to indemnify Indemnitee to the full extent
provided herein, and (b) whether or not the Company is the surviving, resulting
or acquiring corporation therein, Indemnitee shall also stand in the same
position under this Agreement with respect to the surviving, resulting or
acquiring corporation as Indemnitee would have with respect to the Company if
the Company's separate existence had continued.
14. Nondisclosure of Payments. Except as expressly required by federal
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securities laws or other applicable laws or regulations or by judicial process,
Indemnitee shall not disclose any payments made under this Agreement, whether
indemnification or advancement of expenses, unless prior written approval of the
Company is obtained.
15. Nonexclusivity and Severability; Subrogation.
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(a) The right to indemnification and advancement of Expenses provided
by this Agreement shall not be exclusive of any other rights to which Indemnitee
may be entitled under the Charter or Bylaws of the Company, Maryland law, any
other statute, insurance policy, agreement, vote of stockholders of the Company
or of the Board (or otherwise), both as to actions in his official capacity and
as to actions in another capacity while holding such office, and shall continue
after Indemnitee has ceased to be a director or officer of the Company and shall
inure to the benefit of his heirs, executors and administrators; provided,
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however, that to the extent Indemnitee otherwise would have any greater right to
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indemnification and/or advancement of Expenses under any provision of the
Charter or the Bylaws of the Company, Indemnitee shall be deemed to have such
greater right pursuant to this Agreement; and, provided, further, that to the
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extent that any change is made to Maryland law (whether by legislative action or
judicial decision), the Charter and/or the Bylaws that permits any greater right
to indemnification and/or advancement of Expenses than that provided under this
Agreement as of the date hereof, Indemnitee shall be deemed to have such greater
right pursuant to this Agreement. No amendment, alteration, or repeal of this
Agreement or of any provision hereof shall limit or restrict any right of
Indemnitee under this Agreement in respect of any action taken or omitted by
such Indemnitee prior to such amendment, alteration, or repeal.
(b) If any provision or provisions of this Agreement are held to be
invalid, illegal or unenforceable for any reason whatsoever: (i) the validity,
legality and enforceability of the remaining provisions of this Agreement
(including, without limitation, all portions of any provisions 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 (ii) to the fullest extent possible, the
provisions of this Agreement (including, without limitation, all portions of any
provisions of this Agreement containing any such provision held to be invalid,
illegal or unenforceable, that are not themselves
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invalid, illegal or unenforceable) shall be construed so as to give effect to
the intent manifested by the provision held invalid, illegal or unenforceable.
(c) In the event of any 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 required and take all
actions necessary to secure such rights, including execution of such documents
as are necessary to enable the Company to bring suit to enforce such rights.
16. Notices. All notices, requests, demands and other communications under
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this Agreement shall be in writing and shall be deemed duly given (i) if
delivered by hand and receipted for by the party addressed, on the date of such
receipt, of (ii) if mailed by domestic certified or registered mail with postage
prepaid, on the third business day after the date postmarked. Addresses for
notice to either party are as shown on the signature page of this Agreement, or
as subsequently modified by written notice.
17. Mutual Acknowledgement. Both the Company and Indemnitee acknowledge
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that in certain instances federal law or public policy may override applicable
state law and prohibit the Company from indemnifying Indemnitee under this
Agreement or otherwise. For example, the Company and Indemnitee acknowledge that
the Securities and Exchange Commission (the "Commission") has taken the position
that indemnification is not permissable for liabilities arising under certain
federal securities laws, and federal legislation prohibits indemnification for
certain ERISA violations. Indemnitee understands and acknowledges that the
Company shall not be required to provide indemnification or advance Expenses in
violation of any law or public policy.
18. Governing Law. This Agreement shall be governed by and construed in
-------------
accordance with the laws of the State of Maryland, without giving effect to
principles of conflict of laws.
19. Consent to Jurisdiction. The Company and Indemnitee each hereby
-----------------------
irrevocably consent to the jurisdiction of the courts of the State of Maryland
for all purposes in connection with any action, suit or proceeding which arises
out of or relates to this Agreement.
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 enforcement is sought needs to
be produced to evidence the existence of this Agreement.
21. Modification; Survival. This Agreement may be modified only by an
----------------------
instrument in writing signed by both parties hereto. The provisions of this
Agreement shall survive the death, disability or incapacity of Indemnitee or the
termination of Indemnitee's service as a director or officer of the Company and
shall inure to the benefit of Indemnitee's heirs, executors and administrators.
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IN WITNESS WHEREOF, the parties hereto have executed this agreement as of
the date first above written.
BRE PROPERTIES, INC.
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Name:
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Title:
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INDEMNITEE
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Name:
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