EXHIBIT 10.13
FORM OF INDEMNIFICATION AGREEMENT
AGREEMENT, made and entered into as of [DATE], between Homestead Village
Incorporated, a Maryland corporation (the "Corporation"), and [EMPLOYEE]
("Indemnitee").
WHEREAS, the Corporation is a Maryland corporation; and
WHEREAS, at the request of the Corporation, Indemnitee currently serves as a
director or officer of the Corporation and may, therefore, be subjected to
claims, suits or proceedings arising as a result of his or her service; and
WHEREAS, as an inducement to Indemnitee to continue to serve as such
director or officer, the Corporation has agreed to indemnify Indemnitee
against expenses and costs incurred by Indemnitee in connection with any such
claims, suits or proceedings, to the fullest extent that is lawful; and
WHEREAS, the parties by this Agreement desire to set forth their agreement
regarding indemnification;
NOW, THEREFORE, parties agree as follows:
1. Acts or Omissions Covered by This Agreement. This Agreement shall cover
any act or omission by an Indemnitee after the date of his or her commencement
of service as an officer or director, regardless of whether said act or
omission occurred prior to the date of this Agreement, which (i) occurs or is
alleged to have occurred by reason of his or her being or having been a
director or officer, (ii) occurs or is alleged to have occurred, during or
after the time when the Indemnitee served as a director or officer and (iii)
gives rise to, or is the direct or indirect subject of a claim in any
threatened, pending or completed action, suit or proceeding at any time or
times whether during or after his or her service as director or officer.
2. Indemnity.
(a) The Corporation hereby agrees to indemnify, and keep indemnified in
accordance with, and to the fullest lawful extent permitted by the
Corporation's Articles of Incorporation and by-laws on the date of
execution hereof, and regardless of any subsequently enacted by-law or
amendment to the Articles of Incorporation to the contrary, Indemnitee,
from and against any and all expenses (including attorney's fees),
judgments, fines, taxes, penalties 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, by reason of the fact that he or she is or
was a director or officer of the Corporation or is or was serving at the
request of the Corporation as a director, trustee, officer, employee or
agent of another corporation, partnership, joint venture, trust or other
enterprise and whether or not such action is by or in the right of the
Corporation or that other corporation, partnership, joint venture, trust or
other enterprise with respect to which the Indemnitee serves or has served.
(b) Despite anything to the contrary in subsection (a), the Corporation
agrees to indemnify Indemnitee in a suit or proceeding initiated by the
Indemnitee only if the Indemnitee acted with the authorization of the
Corporation in initiating that suit or proceeding. However, an arbitration
proceeding brought under Section 8 shall not be subject to this subsection
(b).
(c) An indemnification under this Agreement shall be made upon
Indemnitee's written request to the board of directors, setting forth the
grounds and lawfulness of such indemnification. If the board of directors
disagrees with the Indemnitee, such disagreement shall be resolved by a
decision of the arbitrators in an arbitration proceeding pursuant to
Section 8. For purposes of this Agreement, references to "other
enterprises" shall include, without limitation, employee benefit plans;
references to "fines" shall include any excise taxes assessed on a person
with respect to an employee benefit plan; and references to "serving at the
request of the Corporation" shall include any service as a trustee,
director, officer, employee or agent
of any other partnership, trust or corporation which imposes duties on, or
involves services by, the Indemnitee which are requested in writing by the
board of directors, or which involve services by, such trustee, director,
officer, employee, or agent with respect to an employee benefit plan, its
participants, or beneficiaries.
3. Burden of Proof. Indemnitee shall be presumed to be entitled to
indemnification for any act or omission covered in Section 1 or 2 of this
Agreement. The burden of proof of establishing that Indemnitee is not entitled
to indemnification because of the failure to fulfill some requirement of
Maryland law, the Corporation's Articles of Incorporation or by-laws as in
effect on the date of execution hereof, or this Agreement shall be on the
Corporation.
4. Notice by Indemnitee. Indemnitee shall notify the Corporation in writing
of any matter with respect to which Indemnitee intends to seek indemnification
hereunder as soon as reasonably practicable following the receipt by
Indemnitee of written threat thereof, provided that failure to so notify the
Corporation shall not constitute a waiver by Indemnitee of his or her rights
hereunder.
5. Advancement of Expenses. In the event of any action, suit or proceeding
against Indemnitee which may give rise to a right of indemnification from the
Corporation pursuant to this Agreement, following written request to the
Corporation by the Indemnitee, the Corporation shall advance to Indemnitee
amounts to cover expenses incurred by Indemnitee in defending the action, suit
or proceeding in advance of final disposition upon receipt of (i) an
undertaking by or on behalf of the Indemnitee to repay the amount advanced in
the event that it shall be ultimately determined in accordance with Section 3
of this Agreement that he or she is not entitled to indemnification by the
Corporation, and (ii) satisfactory evidence as to the amount of such expenses.
Indemnitee's written certification together with a copy of the statement paid
or to be paid by Indemnitee shall constitute satisfactory evidence unless
determined to the contrary in an arbitration proceeding conducted pursuant to
Section 8 of this Agreement.
6. Non-Exclusivity of Right of Indemnification. The indemnification rights
granted to Indemnitee under this Agreement shall not be deemed exclusive of,
or in limitation of, any rights to which Indemnitee may be entitled under
Maryland law, the Corporation's Articles of Incorporation or by-laws, any
other agreement, vote of stockholders or directors or otherwise.
7. Termination of Agreement and Survival of Right of Indemnification.
(a) Subject to subparagraph (b) of this section, this Agreement shall
terminate when the Indemnitee's term of office as a director or officer
ends.
(b) The rights granted to Indemnitee hereunder shall continue after
termination as provided in Section 1 and shall inure to the benefit of
Indemnitee, his or her personal representative, heirs, executors,
administrators and beneficiaries, and this Agreement shall be binding upon
the Corporation, its successors and assigns.
8. Arbitration of All Disputes Concerning Entitlement. Any controversy or
claim arising out of or relating to the Indemnitee's entitlement to
indemnification under this Agreement shall be settled by arbitration in the
State of Texas by three arbitrators, one of whom shall be appointed by the
Corporation, one by the Indemnitee and the third of whom shall be appointed by
the first two arbitrators. If the first two arbitrators cannot agree on the
appointment of a third arbitrator or if either party fails to appoint an
arbitrator, then that arbitrator shall be appointed by a Court. The
arbitration shall be conducted in accordance with the rules of the American
Arbitration Association. Judgment upon the award rendered by the arbitrators
may be entered in any court having jurisdiction thereof. Interest on any
judgment shall be assessed at a rate or rates the arbitrators consider just
under the circumstances. If it is necessary or desirable for the Indemnitee to
retain legal counsel or incur other costs and expenses (including, without
limitation, travel costs and expenses) in connection with enforcement of his
or her rights under this Agreement, the Corporation shall pay his or her
reasonable attorneys' fees and reasonable costs and expenses in connection
with enforcement of his or her rights (including the enforcement of any
arbitration
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award in court), regardless of the final outcome, unless the arbitrators
determine that under the circumstances recovery by the Indemnitee of all or a
part of any such fees and costs and expenses would be unjust.
9. Governing Law.
(a) Except as provided for in subparagraph (b) of this section, this
Agreement shall be governed by the laws of the State of Maryland.
(b) Any arbitration under this Agreement shall be governed by the laws of
the State of Texas.
10. Severability. If any provision of this Agreement is determined to be
invalid or unenforceable, the invalidity or unenfoceability shall not affect
the validity or enforceability of any other provision of this Agreement, and
this Agreement shall be interpreted as though the invalid or unenforceable
provision was not a part of this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the day
and year first above stated.
Homestead Village Incorporated
By __________________________________
Name:
Title:
INDEMNITEE
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