INDEMNIFICATION AGREEMENT
Exhibit 10.54
THIS AGREEMENT is made on the date set forth below to be effective as of the 1st
day of January, 2011 between Home Properties, Inc. (the “Company”), a Maryland corporation and
Xxxxxx X. Xxxxx, Xx. (“Indemnitee”).
WHEREAS, highly competent persons are reluctant to serve as directors and officers of the
Company unless they are provided with adequate protection through insurance and adequate
indemnification against inordinate risks of claims and actions against them arising out of their
service to and activities on behalf of the Company;
WHEREAS, the current limitations on coverage of available insurance and the uncertainties
relating to indemnification have increased the difficulty of attracting and retaining such persons;
WHEREAS, the Board of Directors of the Company has determined that the ability to attract and
retain such persons is in 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 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; and
WHEREAS, the Indemnitee is willing to serve, continue to serve and to consider taking on
additional service for or on behalf of the Company on the condition that the Indemnitee be so
indemnified;
NOW, THEREFORE, the Company and the Indemnitee hereby agree as follows:
1. Statutory Indemnity. Without limiting any other indemnification rights Indemnitee may
have, under this Agreement or otherwise, the Company hereby agrees to hold harmless and indemnify
Indemnitee to the full extent authorized or permitted by the provisions of the Maryland General
Corporation Law, or by any amendment thereof or other statutory provisions authorizing or
permitting such indemnification which is adopted after the date hereof.
2. Indemnity. Without limiting any other indemnification rights Indemnitee may have, under
this Agreement or otherwise, subject only to the exclusions set forth in Section 3 hereof, the
Company hereby agrees to hold harmless and indemnify Indemnitee:
(a) Against any and all expenses (including attorneys’ fees and expenses incurred in defense
or investigation of any claim, including a claim against the Company or Indemnitee with respect to
this Agreement), judgments, fines and amounts paid in settlement actually and reasonably incurred
by Indemnitee in connection with any threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative
(including an action by or in the right of the Company) to which Indemnitee is, was or at any
time becomes a party, or is threatened to be made a party, by reason of the fact that Indemnitee
is, was or at any time becomes a director, officer, employee or agent of the Company, or is or was
serving or at any time serves at the request of the Company as a director, officer, employee or
agent of Home Properties of New York, L.P. (the “Partnership”), the limited partnership of which
the Company is general partner, or of any other corporation, partnership, joint venture, trust,
employee benefit plan or other enterprise;
(b) Otherwise to the fullest extent as may be permitted to Indemnitee by the Company under the
non-exclusivity provisions of Article VII of the By-laws of the Company as in effect on the date
hereof and subparagraphs (g) and (h) of Section 2-418 of the Maryland General Corporation Law or
any successor provision; and
(c) The Company covenants and agrees to maintain Directors’ and Officers’ Liability Insurance
on terms at least as favorable to Indemnitee as the policy currently in effect (the “D&O Policy”)
unless otherwise approved by a majority of the Board of Directors of the Company.
3. Limitations on Indemnity. No indemnity pursuant to Section 2 hereof shall be paid by the
Company:
(a) if the act or omission of the Indemnitee was material to the matter giving rise to the
proceedings and was committed in bad faith or as a result of active and deliberate dishonesty;
(b) in the case of any criminal proceeding, the Indemnitee had reasonable cause to believe
that the act or omission was unlawful;
(c) if a final decision by a court having jurisdiction in the matter, or an opinion of Company
counsel (or, if requested by Indemnitee, counsel independent of the Company and Indemnitee) shall
determine that such indemnification is unlawful; or
(d) if the liability arises under the Securities Act of 1933 in connection with any offering
registered under that Act and the Company has not received an opinion of its counsel or opinion of
a court of appropriate jurisdiction that such indemnification is not against public policy.
4. Continuation of Indemnity. All agreements and obligations of the Company contained herein
shall continue during the period Indemnitee is a director, officer, employee or agent of the
Company (or is or was serving at the request of the Company as a director, officer, employee or
agent of another corporation, partnership, joint venture, trust or other enterprise) and shall
continue thereafter for the benefit of Indemnitee and his personal representatives, with respect to
any claim or threatened, pending or completed action, suit or proceeding, whether, civil, criminal
or investigative, that may be asserted, threatened or exist by reason of the fact that Indemnitee
was a director of the Company or serving in any other capacity referred to herein.
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5. Notification and Defense of Claim. Promptly after receipt by Indemnitee of notice of any
claim or the commencement of any action, suit or proceeding, Indemnitee will, if a
claim for indemnity in respect thereof is to be made against the Company under this Agreement,
notify the Company of the commencement thereof; but the omission so to notify the Company will not
relieve it from any liability which it may have to Indemnitee otherwise than under this Agreement.
With respect to any such action, suit or proceeding as to which Indemnitee notifies the Company of
the commencement thereof:
(a) The Company will be entitled to participate therein at its own expense; and
(b) Except as otherwise provided below, to the extent that it may wish, the Company, jointly
with any other indemnifying party similarly notified, will be entitled to assume the defense
thereof, with counsel reasonably satisfactory to Indemnitee. After notice from the Company to
Indemnitee of its election so to assume the defense thereof the Company will not be liable to
Indemnitee under this Agreement for any legal or other expenses subsequently incurred by Indemnitee
in connection with the defense thereof other than reasonable costs of investigation, or reasonable
expenses incurred by Indemnitee in interpreting this Agreement and in concluding whether or not a
conflict of interest may exist as contemplated in (ii) below, or as otherwise provided below.
Indemnitee shall have the right to employ its counsel in such action, suit or proceeding but the
fees and expenses of such counsel incurred after notice from the Company of its assumption of the
defense thereof shall be at the expense of Indemnitee unless (i) the employment of counsel by
Indemnitee has been authorized by the Company, (ii) Indemnitee shall have reasonably concluded that
there may be a conflict of interest between the Company and Indemnitee in the conduct of the
defense of such action which would materially hinder the ability of counsel to the Company to
represent Indemnitee, or (iii) the Company shall not in fact have employed counsel reasonably
satisfactory to Indemnitee to assume the defense of such action, in each of which cases the fees
and expenses of Indemnitee’s counsel shall be at the expense of the Company. The Company shall not
be entitled to assume the defense of any action, suit or proceeding brought by or on behalf of the
Company or as to which Indemnitee shall have made the conclusion provided for in (ii) above;
(c) The Company shall not be liable to indemnify Indemnitee under this Agreement for any
amounts paid in settlement of any action or claim effected without its written consent. The
Company shall not settle any action or claim in any manner which would impose any liability,
penalty, limitation or acknowledgment of fault on Indemnitee without Indemnitee’s written consent.
Neither the Company nor Indemnitee will unreasonably withhold their consent to any proposed
settlement; and
(d) Nothing contained herein shall require Indemnitee or the Company to take any actions which
would limit the availability of coverage under the D&O Policy or would permit the carrier to
disclaim coverage. Indemnitee and the Company agree to use their respective best efforts to comply
with the terms and conditions of the D&O Policy.
6. Advance and Repayment of Expenses. The Company shall advance to Indemnitee all reasonable
expenses incurred by Indemnitee in defending any civil or criminal action, suit or proceeding
against Indemnitee, within 10 days of receiving (a) a written affirmation of Indemnitee that (i)
the act or omission giving rise to any such action, suit or proceeding was not committed in bad
faith or the result of active and deliberate dishonesty, and
(ii) in the case of a criminal proceeding, Indemnitee did not have reasonable cause to believe
that the act or omission giving rise to such action, suit or proceeding was unlawful, and (b) a
written undertaking by or on behalf of Indemnitee to repay the amount advances if it is ultimately
determined that the Indemnitee has not met the standard of conduct necessary for indemnification
under applicable law.
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7. Enforcement.
(a) The Company expressly confirms and agrees that it has entered into this
Agreement and assumed the obligations imposed on the Company hereby in order to induce Indemnitee
to become or continue as a director or officer of the Company, and acknowledges that Indemnitee is
relying upon this Agreement in continuing in such capacity; and
(b) In the event either the Company or Indemnitee brings any action to enforce rights or to
collect moneys due under this Agreement, to the extent that Indemnitee is successful in such
action, the Company shall reimburse Indemnitee for all of Indemnitee’s reasonable fees and expenses
in defending, bringing or pursuing such action.
8. Separability. Each of the provisions of this Agreement is a separate and distinct
agreement and independent of the others, so that if any provision hereof shall be held to be
invalid or unenforceable for any reason, such invalidity or unenforceability shall not affect the
validity or enforceability of the other provisions hereof.
9. Governing Law; Binding Effect; Amendment and Termination.
(a) This Agreement shall be interpreted and enforced in accordance with the laws of the State
of New York without regard to principles of conflicts of laws except to the extent the laws of the
State of Maryland apply by reason of the fact that the Company is a corporation organized under the
laws of the State of Maryland;
(b) This Agreement shall be binding upon Indemnitee and upon the Company, its successors and
assigns, and shall inure to the benefit of Indemnitee, his heirs, personal representatives and
assigns and to the benefit of the Company, its successors and assigns, and supersedes any prior
agreement between the parties; and
(c) No amendment, modification, termination or cancellation of this Agreement shall be
effective unless in writing signed by both parties hereto.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the date set forth below to
be effective as of the day and year first above written.
| Dated: November 22, 2010 | HOME PROPERTIES, INC. | |||||
| By: | /s/ Xxx X. XxXxxxxxx
|
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| Executive Vice President and Secretary | ||||||
| Dated: November 30, 2010 | /s/ Xxxxxx X. Xxxxx, Xx. | |||||
| Xxxxxx X. Xxxxx, Xx. | ||||||
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