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Exhibit 10.48
FORM OF OFFICER AND DIRECTOR INDEMNIFICATION AGREEMENT
THIS OFFICER AND DIRECTOR INDEMNIFICATION AGREEMENT (the "Agreement")
is made as of the _____ day of __________, 199_, by and between Prison Realty
Corporation, a Maryland corporation (the "Company"), and the undersigned Officer
and/or Director of the Company (the "Indemnitee").
WHEREAS, Indemnitee is currently serving as an Officer and/or Director
of the Company and the Company wishes the Indemnitee to continue in such
capacity. The Indemnitee is willing, under certain circumstances, to continue
serving as an Officer and/or Director of the Company;
WHEREAS, Maryland law provides that a corporation's Charter may include
any provision limiting the liability of its officers or directors to the Company
or its stockholders for money damages except for liability resulting from (a)
actual receipt of an improper benefit or profit in money, property or services
or (b) active and deliberate dishonesty established by a final judgment as being
material to the cause of action;
WHEREAS, the Company's Charter provides that to the fullest extent
allowed by Maryland law, no officer or director of the Company shall be
personally liable to the Company or its stockholders for money damages;
WHEREAS, in addition, the Bylaws of the Company provide that the
officers or directors of the Company shall be entitled to indemnification on the
terms and conditions set forth therein; and
WHEREAS, Indemnitee has indicated that he does not regard the foregoing
provisions of the Company's Charter and Bylaws as adequate to protect him
against the risks associated with his service to the Company and has noted that
the Company's directors' and officers' liability insurance policy has numerous
exclusions and a deductible and thus does not adequately protect Indemnitee. In
this connection the Company and the Indemnitee now agree they should enter into
this Indemnification Agreement in order to provide greater protection to
Indemnitee against such risks of service to the Company.
NOW, THEREFORE, in order to induce the Indemnitee to continue to serve
as an Officer and/or Director of the Company and in consideration of his
continued service, the Company hereby agrees to indemnify the Indemnitee as
follows:
1. Indemnity. The Company will indemnify the Indemnitee, his
executors, administrators or assigns, for any Expenses (as
defined below) which the Indemnitee is or becomes legally
obligated to pay in connection with any Proceeding. As used
in this Agreement the term "Proceeding" shall include any
threatened, pending or completed claim, action, suit or
proceeding,
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whether brought by or in the right of the Company or otherwise
and whether of a civil, criminal, administrative or
investigative nature, in which the Indemnitee may be or may
have been involved as a party or otherwise, by reason of the
fact that Indemnitee is or was an Officer and/or Director of
the Company, by reason of any actual or alleged error or
misstatement or misleading statement made or suffered by the
Indemnitee, by reason of any action taken by him or of any
inaction on his part while acting as such Officer and/or
Director, or by reason of the fact that he was serving at
the request of the Company as a director, trustee, officer,
employee or agent of another corporation, partnership, joint
venture, trust or other enterprise; provided, that in each
such case the act or omission of the Indemnitee was not
material to the matter giving rise to the proceeding and was
not committed in bad faith or was not the result of active and
deliberate dishonesty, or the Indemnitee did not actually
receive an improper personal benefit in money, property, or
services, and, in the case of a criminal proceeding, in
addition had no reasonable cause to believe that his conduct
was unlawful. As used in this Agreement, the term "other
enterprise" shall include (without limitation) employee
benefit plans and administrative committees thereof, and the
term "fines" shall include (without limitations) any excise
tax assessed with respect to any employee benefit plan.
2. Expenses. As used in this Agreement, the term "Expenses" shall
include, without limitation, damages, judgments, fines,
penalties, settlements and costs, attorneys' fees and
disbursements and costs of attachment or similar bonds,
investigations, and any expenses of establishing a right to
indemnification under this Agreement.
3. Enforcement. If a claim or request under this Agreement is not
paid by the Company, or on its behalf, within thirty (30)
days after a written claim or request has been received by
the Company, the Indemnitee may at any time thereafter bring
suit against the Company to recover the unpaid amount of the
claim or request and if successful in whole or in part, the
Indemnitee shall be entitled to be paid also the Expenses of
prosecuting such suit. The Company shall have the right to
recoup from the Indemnitee the amount of any item or items
of Expenses theretofore paid by the Company pursuant to this
Agreement, to the extent such Expenses are not reasonable in
nature or amounts; provided, however, that the Company shall
have the burden of proving such Expenses to be unreasonable.
The burden of proving that the Indemnitee is not entitled to
indemnification for any other reason shall be upon the
Company.
4. 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
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recovery of the Indemnitee, who shall execute all papers
required and shall do everything that may be necessary to
secure such rights, including the execution of such
documents necessary to enable the Company effectively to bring
suit to enforce such rights.
5. Exclusions. The Company shall not be liable under this
Agreement to pay any Expenses in connection with any claim
made against the Indemnitee:
(a) to the extent that payment is actually made to the
Indemnitee under a valid, enforceable and collectible
insurance policy;
(b) to the extent that the Indemnitee is indemnified and
actually paid otherwise than pursuant to this
Agreement;
(c) in connection with a judicial action by or in the
right of the Company, in respect of any Proceeding in
which the Indemnitee shall have been adjudged to be
liable;
(d) in connection with any Proceeding charging improper
personal benefit to the Indemnitee, whether or not
involving action in the Indemnitee's official
capacity, in which the Indemnitee was adjudged to be
liable on the basis that personal benefit was
improperly received;
(e) for a disgorgement of profits made from the purchase
and sale by the Indemnitee of securities pursuant to
Section 16(b) of the Securities Exchange Act of 1934
and any amendments thereto or similar provisions of
any state statutory law or common law;
(f) brought about or contributed to by the dishonesty of
the Indemnitee seeking payment hereunder; however,
notwithstanding the foregoing, the Indemnitee shall be
protected under this Agreement as to any claims upon
which suit may be brought against him by reason of any
alleged dishonesty on his part, unless a judgment or
other final adjudication thereof adverse to the
Indemnitee shall establish
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that he committed (i) acts of active and deliberate
dishonesty, (ii) with actual dishonest purpose and
intent, (iii) which acts were material to the cause
of action so adjudicated; or
(g) for any judgment, fine or penalty which the Company is
prohibited by applicable law from paying as indemnity
or for any other reason.
6. Indemnification of Expenses or Successful Party.
Notwithstanding any other provision of this Agreement, to
the extent that the Indemnitee has been successful on the
merits or otherwise in defense of any Proceeding or in
defense of any claim, issue or matter therein, including
dismissal without prejudice, Indemnitee shall be indemnified
against any and all Expenses incurred in connection therewith.
7. Partial Indemnification. If the Indemnitee is entitled under
any provision of this Agreement to indemnification by the
Company for some or a portion of Expenses, but not for the
total amount thereof, the Company shall nevertheless indemnify
the Indemnitee for the portion of such Expenses to which the
Indemnitee is entitled.
8. Advance of Expenses. Expenses incurred by the Indemnitee in
connection with any Proceeding, except the amount of any
settlement, shall be paid by the Company in advance upon
request of the Indemnitee that the Company pay such Expenses.
The Indemnitee hereby undertakes to repay to the Company the
amount of any Expenses theretofore paid by the Company to
the extent that it is ultimately determined that such
Expenses were not reasonable or that the Indemnitee is not
entitled to indemnification.
9. Approval of Expenses. No Expenses for which indemnity shall be
sought under this Agreement, other than those in respect of
judgments and verdicts actually rendered, shall be incurred
without the prior consent of the Company, which consent
shall not be unreasonably withheld.
10. Notice of Claim. The Indemnitee, as a condition precedent to
his right to be indemnified under this Agreement, shall give
to the Company notice in writing as soon as practicable of
any claim made against him for which indemnity will or could
be sought under this Agreement. Notice to the Company shall
be given at its principal office and shall be directed to
the Secretary (or such other address as the Company shall
designate in writing to the Indemnitee); notice shall be
deemed received if sent by prepaid mail properly addressed,
the date of such notice being the date postmarked. In
addition, the Indemnitee shall give the Company such
information and
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cooperation as it may reasonable require and as shall be
within the Indemnitee's power.
11. Counterparts. This Agreement may be executed in any number of
counterparts, all of which taken together shall constitute
one instrument.
12. Indemnification Hereunder Not Exclusive. Nothing herein shall
be deemed to diminish or otherwise restrict the Indemnitee's
right to indemnification under any provision of the Charter
or Bylaws of the Company and amendments thereto or under law.
13. Governing Law. This Agreement shall be governed by and
construed in accordance with the internal laws of the State
of Maryland.
14. Saving Clause. Wherever there is conflict between any
provision of this Agreement and any applicable present or
future statute, law or regulations contrary to which the
Company and the Indemnitee have no legal right to contract,
the latter shall prevail, but in such event the affected
provisions of this Agreement shall be curtailed and
restricted only to the extent necessary to bring them within
applicable legal requirements.
15. Coverage. The provisions of this Agreement shall apply with
respect to the Indemnitee's service as an Officer and/or
Director of the Company prior to the date of this Agreement
and with respect to all periods of such service after the
date of this Agreement, even though the Indemnitee may have
ceased to be an Officer and/or Director of the Company.
[signatures on following page]
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IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed and signed as of the day and year first above
written.
PRISON REALTY CORPORATION
By:
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Its:
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OFFICER AND/OR DIRECTOR
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