COGDELL SPENCER INC. FORM OF INDEMNIFICATION AGREEMENT
Exhibit 10.7
XXXXXXX XXXXXXX INC.
This INDEMNIFICATION AGREEMENT (the “Agreement”) made and entered into this ___day of
___, 2005, by and between Xxxxxxx Xxxxxxx Inc., a Maryland corporation (the “Company”), and
___(the “Indemnitee”).
WHEREAS, it is essential that the Company be able to retain and attract as directors and
officers the most capable persons available;
WHEREAS, the Company’s Bylaws permit it to enter into indemnification arrangements and
agreements;
WHEREAS, the Company desires to provide the Indemnitee with specific contractual assurances of
the Indemnitee’s rights to full indemnification against litigation risks and expenses (regardless,
among other things, of any amendment to or revocation of the Company’s Bylaws or any change in the
ownership of the Company or the composition of its board of directors) and, to the extent insurance
is available, the coverage of the Indemnitee under the Company’s directors and officers liability
insurance policies; and
WHEREAS, the Indemnitee is relying upon the rights afforded under this Agreement in accepting
Indemnitee’s position as a director or officer of the Company.
NOW, THEREFORE, in consideration of the mutual promises and covenants contained herein, the
Company and Indemnitee do hereby covenant and agree as follows:
1. Definitions.
(a) “Corporate Status” describes the status of a person who is serving or has served (i) as a
director, officer or employee of the Company, (ii) in any capacity with respect to any employee
benefit plan of the Company, or (iii) as a director, partner, member, trustee, officer, employee,
or agent of any other Entity at the request of the Company.
(b) “Entity” shall mean any corporation, partnership, limited liability company, joint
venture, trust, foundation, association, organization or other legal entity and any group or
division of the Company or any of its subsidiaries.
(c) “Expenses” shall mean all reasonable fees, costs and expenses actually and reasonably
incurred by the Indemnitee in connection with any Proceeding (as defined below), including, without
limitation, attorneys’ fees, disbursements and retainers (including, without limitation, any such
fees, disbursements and retainers incurred by Indemnitee pursuant to Section 10 of this
Agreement), fees and disbursements of expert witnesses, private investigators and professional
advisors (including, without limitation, accountants), court costs, transcript costs, fees of
experts, travel expenses, duplicating, printing
[SIGNATURE PAGE TO INDEMNIFICATION AGREEMENT]
and binding costs, telephone and fax transmission charges, postage, delivery services,
secretarial services, and other disbursements and expenses.
(d) “Indemnifiable Expenses,” “Indemnifiable Liabilities” and “Indemnifiable Amounts” shall
have the meanings ascribed to those terms in Section 4 below.
(e) “Liabilities” shall mean judgments, damages, liabilities, losses, penalties, excise taxes,
fines and amounts paid in settlement.
(f) “Proceeding” shall mean any threatened, pending or completed claim, action, suit,
arbitration, alternate dispute resolution process, investigation, administrative hearing, appeal,
or any other proceeding, whether civil, criminal, administrative or investigative, whether formal
or informal, including a proceeding initiated by Indemnitee pursuant to Section 10 of this
Agreement to enforce Indemnitee’s rights hereunder.
2. Services of Indemnitee. In consideration of the Company’s covenants and commitments
hereunder, Indemnitee agrees to serve as a director or officer of the Company. However, this
Agreement shall not impose any obligation on Indemnitee or the Company to continue Indemnitee’s
service to the Company beyond any period otherwise required by law or by other agreements or
commitments of the parties, if any.
3. Agreement to Indemnify. The Company shall indemnify Indemnitee, and advance
Indemnifiable Expenses to, Indemnitee (a) as specifically provided in this Agreement and (b)
otherwise to the fullest extent permitted by Maryland law in effect on the date hereof and as
amended from time to time; provided, however, that no change in Maryland law shall have the effect
of reducing the benefits available to Indemnitee hereunder based on Maryland law as in effect on
the date hereof. The rights of Indemnitee provided in this Section shall include, but shall not be
limited to, the rights set forth in the other Sections of this Agreement, including any additional
indemnification permitted by Section 2-418(g) of the Maryland General Corporation Law (the “MGCL”).
4. Proceedings Other Than Proceedings by or in the Right of the Company. Indemnitee shall
be entitled to the rights of indemnification provided in this Section 4 if, by reason of
his Corporate Status, he is, or is threatened to be, made a party to any threatened, pending, or
completed Proceeding, other than a Proceeding by or in the right of the Company. Pursuant to this
Section 4, Indemnitee shall be indemnified by the Company against all Expenses and
Liabilities actually and reasonably incurred by him or on his behalf in connection with a
Proceeding by reason of his Corporate Status (referred to herein as “Indemnifiable Expenses” and
“Indemnifiable Liabilities,” respectively, and collectively as “Indemnifiable Amounts”) unless it
is established that (i) the act or omission of the Indemnitee was material to the matter giving
rise to the Proceeding and (a) was committed in bad faith or (b) was the result of active and
deliberate dishonesty, (ii) the Indemnitee actually received an improper personal benefit in money,
property or services, or (iii) in the case of any criminal Proceeding, the Indemnitee had
reasonable cause to believe that his conduct was unlawful.
5. Proceedings by or in the Right of the Company. Indemnitee shall be entitled to the
rights of indemnification provided in this Section 5 if, by reason of his Corporate Status,
he is made a party to any threatened, pending or completed Proceeding brought by or in the right of
the Company to procure a judgment in its favor. Pursuant to this Section 5, Indemnitee
shall be indemnified against all amounts paid in settlement and all Indemnifiable Expenses actually
and reasonably incurred by him or on his behalf in connection with such Proceeding unless it is
established that (i) the act or omission of the Indemnitee was material to the matter giving rise
to such a Proceeding and (a) was committed in bad faith or (b) was the result of active and
deliberate dishonesty or (ii) the Indemnitee actually received an
improper personal benefit in money, property or services; provided, however, that no
indemnification against such Indemnifiable Expenses shall be made in respect of any Proceeding in
which Indemnitee shall have been adjudged to be liable to the Company.
6. Court-Ordered Indemnification. A court of appropriate jurisdiction, upon application of
a director or officer and such notice as the court shall require, may order indemnification in the
following circumstances:
(a) if it determines a director or officer is entitled to Indemnifiable Amounts under Section
2-418(d)(1) of the MGCL, the court shall order indemnification, in which case the director or
officer shall be entitled to recover the expenses of securing such Indemnifiable Amounts; or
(b) if it determines that the director or officer is fairly and reasonably entitled to
indemnification in view of all the relevant circumstances, whether or not the director or officer
(i) has met the standards of conduct set forth in Section 2-418(b) of the MGCL or (ii) has been
adjudged liable for receipt of an improper personal benefit under Section 2-148(c) of the MGCL, the
court may order such indemnification as the court shall deem proper. However, indemnification with
respect to any Proceeding by or in the right of the Company or in which liability shall have been
adjudged in the circumstances described in Section 2-418(c) of the MGCL shall be limited to
Indemnifiable Expenses.
7. Procedure for Payment of Indemnifiable Amounts. Indemnitee shall submit to the Company
a written request specifying the applicable Indemnifiable Amounts for which Indemnitee seeks
payment under this Agreement and the basis for the claim. Subject to the exceptions set forth in
Sections 4 and 5, the Company shall pay such applicable Indemnifiable Amounts to
Indemnitee within 20 calendar days of receipt of the request. At the request of the Company,
Indemnitee shall furnish such documentation and information as are reasonably available to
Indemnitee and necessary to establish that Indemnitee is entitled to indemnification hereunder.
8. Indemnification for Expenses of a Party Who is Wholly or Partly Successful.
Notwithstanding any other provision of this Agreement, and without limiting any such provision to
the extent that Indemnitee is, by reason of Indemnitee’s Corporate Status, a party to and is
successful, on the merits or otherwise, in any Proceeding, Indemnitee shall be indemnified for all
Indemnifiable Expenses reasonably incurred by Indemnitee or on Indemnitee’s behalf in connection
therewith. Without limiting any other rights of Indemnitee in this Agreement, if Indemnitee is not
wholly successful in such Proceeding but is successful, on the merits or otherwise, as to one or
more but less than all claims, issues or matters in such Proceeding, the Company shall indemnify
Indemnitee for all Indemnifiable Expenses reasonably incurred by Indemnitee or on Indemnitee’s
behalf in connection with each successfully resolved claim, issue or matter. For purposes of this
Agreement, the termination of any claim, issue or matter in such a Proceeding by dismissal, with or
without prejudice, shall be deemed to be a successful result as to such claim, issue or matter.
9. Effect of Certain Resolutions. Neither the settlement nor termination of any Proceeding
nor the failure of the Company to award indemnification or to determine that indemnification is
payable shall create an adverse presumption that Indemnitee is not entitled to indemnification
hereunder. In addition, the termination of any Proceeding by judgment, order or settlement shall
not create a presumption that the act or omission of the Indemnitee was material to the matter
giving rise to the Proceeding and was committed in bad faith or was the result of active and
deliberate dishonesty or the Indemnitee actually received an improper personal benefit in money,
property or services or with respect to any criminal action or proceeding, had reasonable cause to
believe that Indemnitee’s action was unlawful. The termination of any Proceeding by conviction, or
upon a plea of nolo contendere or its equivalent, or an entry of an order of probation prior to
judgment, creates a rebuttable presumption that the Indemnitee did
not meet the requisite standard of conduct. In addition, the termination of or resignation by
Indemnitee shall not create an adverse presumption that Indemnitee is not entitled to
indemnification hereunder.
10. Agreement to Advance Interim Expenses. The Company shall pay to Indemnitee all
Indemnifiable Expenses incurred by Indemnitee in connection with any Proceeding, including a
Proceeding by or in the right of the Company, in advance of the final disposition of such
Proceeding, if Indemnitee furnishes the Company with a written affirmation by the Indemnitee of the
Indemnitee’s good faith belief that the standard of conduct necessary for indemnification by the
Company has been met and a written undertaking by or on behalf of the Indemnitee to repay the
amount of such Indemnifiable Expenses advanced to Indemnitee if it is finally determined by a court
of competent jurisdiction that Indemnitee is not entitled under this Agreement to indemnification
with respect to such Indemnifiable Expenses. The terms and conditions of such undertaking shall be
determined by a quorum of the disinterested members of the Company’s board of directors, if any,
acting in good faith and as required by the proper exercise of their duties or, if not available,
then by the written opinion of independent legal counsel or by the Company’s stockholders.
11. Procedure for Payment of Interim Expenses. Indemnitee shall submit to the Company a
written request specifying the Indemnifiable Expenses for which Indemnitee seeks an advancement
under Section 8 of this Agreement, together with documentation evidencing that Indemnitee
has incurred such Indemnifiable Expenses. Payment of Indemnifiable Expenses under Section
8 shall be made no later than 20 calendar days after the Company’s receipt of such request and
the affirmation and undertaking required by Section 8.
12. Remedies of Indemnitee.
(a) Right to Petition Court. In the event that Indemnitee makes a request for payment
of Indemnifiable Amounts under Sections 3 and 5 above or a request for an
advancement of Indemnifiable Expenses under Sections 8 and 9 above and the Company
fails to make such payment or advancement in a timely manner pursuant to the terms of this
Agreement, Indemnitee may petition the appropriate judicial authority to enforce the Company’s
obligations under this Agreement.
(b) Burden of Proof. In any judicial proceeding brought under Section 10(a)
above, the Company shall have the burden of proving that Indemnitee is not entitled to payment of
Indemnifiable Amounts hereunder.
(c) Expenses. The Company agrees to reimburse Indemnitee in full for any Expenses
incurred by Indemnitee in connection with investigating, preparing for, litigating, defending or
settling any action brought by Indemnitee under Section 10(a) above, or in connection with
any claim or counterclaim brought by the Company in connection therewith.
(d) Validity of Agreement. The Company shall be precluded from asserting in any
Proceeding, including, without limitation, an action under Section 10(a) above, that the
provisions of this Agreement are not valid, binding and enforceable or that there is insufficient
consideration for this Agreement and shall stipulate in court that the Company is bound by all the
provisions of this Agreement.
(e) Failure to Act Not a Defense. The failure of the Company (including its board of
directors or any committee thereof, independent legal counsel, or stockholders) to make a
determination concerning the permissibility of the payment of Indemnifiable Amounts or the
advancement of Indemnifiable Expenses under this Agreement shall not be a defense in any action
brought under Section 10(a) above, and shall not create a presumption that such payment or
advancement is not permissible.
13. Representations and Warranties of the Company. The Company hereby represents and
warrants to Indemnitee as follows:
(a) Authority. The Company has all necessary corporate power and authority to enter
into, and be bound by the terms of, this Agreement, and the execution, delivery and performance of
the undertakings contemplated by this Agreement have been duly authorized by the Company.
(b) Enforceability. This Agreement, when executed and delivered by the Company in
accordance with the provisions hereof, shall be a legal, valid and binding obligation of the
Company, enforceable against the Company in accordance with its terms, except as such
enforceability may be limited by applicable bankruptcy, insolvency, moratorium, reorganization or
similar laws affecting the enforcement of creditors’ rights generally or general equitable
principles, and to the extent limited by applicable federal or state securities laws.
14. Insurance. The Company will use commercially reasonable efforts to obtain and maintain
a policy or policies of insurance with reputable insurance companies providing the members of the
Company’s board of directors with coverage for losses from wrongful acts, and to ensure the
Company’s performance of its indemnification obligations under this Agreement. In all policies of
director and officer liability insurance, Indemnitee shall be named as an insured in such a manner
as to provide Indemnitee at least the same rights and benefits as are accorded to the most
favorably insured of the Company’s officers and directors.
Notwithstanding the foregoing, if the Company, after employing commercially reasonable efforts
as provided in this Section, determines in good faith that such insurance is not reasonably
available, if the premium costs for such insurance are disproportionate to the amount of coverage
provided, or if the coverage provided by such insurance is limited by exclusions so as to provide
an insufficient benefit, the Company shall use its commercially reasonable efforts to obtain and
maintain a policy or policies of insurance with coverage having features as similar as practicable
to those described above.
15. Fees and Expenses. During the term of the Indemnitee’s service as a director or
officer, the Company shall promptly reimburse the Indemnitee for all expenses incurred by him in
connection with his service as a director or officer or member of any board committee or otherwise
in connection with the Company’s business.
16. Contract Rights Not Exclusive. The rights to payment of Indemnifiable Amounts and
advancement of Indemnifiable Expenses provided by this Agreement shall be in addition to, but not
exclusive of, any other rights which Indemnitee may have at any time under applicable law, the
Company’s Bylaws, as amended, Charter, or any other agreement, vote of stockholders or directors,
or otherwise, both as to action in Indemnitee’s official capacity and as to action in any other
capacity as a result of Indemnitees’s serving as a director or officer of the Company.
17. Successors. This Agreement shall be (a) binding upon all successors and assigns of the
Company (including any transferee of all or a substantial portion of the business, stock and/or
assets of the Company and any direct or indirect successor by merger or consolidation or otherwise
by operation of law) and (b) binding on and shall inure to the benefit of the heirs, personal
representatives, executors and administrators of Indemnitee. This Agreement shall continue for the
benefit of Indemnitee and such heirs, personal representatives, executors and administrators after
Indemnitee has ceased to have Corporate Status.
18. Subrogation. In the event of any payment of Indemnifiable Amounts under this
Agreement, the Company shall be subrogated to the extent of such payment to all of the rights of
contribution or recovery
of Indemnitee against other persons, and Indemnitee shall take, at the request of the Company, all
reasonable action necessary to secure such rights, including the execution of such documents as are
necessary to enable the Company to bring suit to enforce such rights.
19. Change in Law. To the extent that a change in applicable law (whether by statute or
judicial decision) shall permit broader indemnification than is provided under the terms of the
Charter, as amended, or Bylaws of the Company, as amended, and this Agreement, Indemnitee shall be
entitled to such broader indemnification and this Agreement shall be deemed to be amended to such
extent.
20. Severability. Whenever possible, each provision of this Agreement shall be interpreted
in such a manner as to be effective and valid under applicable law, but if any provision of this
Agreement, or any clause thereof, shall be determined by a court of competent jurisdiction to be
illegal, invalid or unenforceable, in whole or in part, such provision or clause shall be limited
or modified in its application to the minimum extent necessary to make such provision or clause
valid, legal and enforceable, and the remaining provisions and clauses of this Agreement shall
remain fully enforceable and binding on the parties.
21. Indemnitee as Plaintiff. Except as provided in Section 10 of this Agreement
and in the next sentence, Indemnitee shall not be entitled to payment of Indemnifiable Amounts or
advancement of Indemnifiable Expenses with respect to any Proceeding brought by Indemnitee against
the Company, any Entity which it controls, any director or officer thereof, or any third party,
unless (a) the Proceeding is brought to enforce indemnification under this Agreement or otherwise
or (b) the Company’s Bylaws, as amended, the Charter, a resolution of the Company’s board of
directors or an agreement approved by the Company’s board of directors to which the Company is
party expressly provide otherwise. This Section shall not apply to affirmative defenses asserted
by Indemnitee in an action brought against Indemnitee.
22. Modifications and Waiver. Except as provided in Section 17 above with respect
to changes in applicable law which broaden the right of Indemnitee to be indemnified by the
Company, no supplement, modification or amendment of this Agreement shall be binding unless
executed in writing by each 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 of this Agreement
(whether or not similar), nor shall such waiver constitute a continuing waiver.
23. General Notices. All notices, requests, demands and other communications hereunder
shall be in writing and shall be deemed to have been duly given (a) when delivered by hand, (b)
when transmitted by facsimile and receipt is acknowledged, or (c) if mailed by certified or
registered mail with postage prepaid, on the third business day after the date on which it is so
mailed:
(i)
|
If to Indemnitee, to: | |
Name: | ||
Address: | ||
Phone: | ||
Facsimile: |
(ii)
|
If to the Company, to: | |
Xxxxxxx Xxxxxxx Inc. | ||
0000 Xxxxxxx Xxxxx Xxxxx | ||
Xxxxx 000 | ||
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000 | ||
Attention: Xxxxx Xxxxxxx | ||
Facsimile: (000) 000-0000 | ||
With a copy to: Xxxxxxxx Chance US LLP | ||
00 Xxxx 00xx Xxxxxx | ||
Xxx Xxxx, XX 00000 | ||
Attention: Xxx X. Xxxxxxxxx, Esq. |
or to such other address as may have been furnished in the same manner by any party to the
others.
24. Governing Law. This Agreement shall be governed by and construed and enforced under
the laws of Maryland without giving effect to the provisions thereof relating to conflicts of law.
25. Agreement Governs. This Agreement is to be deemed consistent wherever possible with
relevant provisions of the Company’s Bylaws, as amended, and Charter; however, in the event of a
conflict between this Agreement and such provisions, the provisions of this Agreement shall
control.
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IN WITNESS WHEREOF, the parties hereto have executed this Indemnification Agreement as of the
day and year first above written.
COMPANY: | ||||
XXXXXXX XXXXXXX INC. | ||||
By: | ||||
Name: | ||||
Title: | ||||
INDEMNITEE: | ||||
By: | ||||