EXHIBIT 10.6
JDN REALTY CORPORATION
INDEMNIFICATION AGREEMENT
THIS AGREEMENT, effective as of April 2, 2000, by and between JDN REALTY
CORPORATION, a Maryland corporation, (the "Company") and XXXXX XXXXXX (the
"Indemnitee").
WITNESSETH:
WHEREAS, the Indemnitee has been serving as a director of the Company
since December 1993, and as the Chief Executive Officer of the Company since
April 2, 2000, and the Company desires that the Indemnitee continue to serve in
such capacities;
WHEREAS, the Indemnitee is willing to serve as the Chief Executive Officer
of the Company if the Indemnitee is adequately protected against the risks
associated with such service; and
WHEREAS, the Company believes the proposed indemnification is fair and
reasonable and will help promote the legitimate interests of the Company;
NOW, THEREFORE, in consideration of the promises and mutual agreements
hereinafter set forth, the parties hereto agree as follows:
1. Indemnification.
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The Company shall pay on behalf of the Indemnitee and the Indemnitee's
executors, administrators or assigns, any liability incurred by the Indemnitee
(i) as a result of any actual or threatened claim made against the Indemnitee by
reason of the fact that the Indemnitee has served or is serving as an officer of
the Company, or (ii) because of any actual or alleged breach of duty, neglect,
error, misstatement, misleading statement, omission or other act done or
attempted by the Indemnitee in the Indemnitee's capacity as an officer of the
Company. "Liability" includes (without limitation) (i) damages, judgments,
penalties, fines and settlements, (ii) reasonable attorneys' fees and expenses
and other costs and expenses associated with the investigation, defense,
prosecution, and management of legal actions, claims and proceedings and appeals
therefrom, including costs of attachments, injunction and appeal bonds, and
similar bonds, and (iii) all expenses incurred by the Indemnitee in enforcing
this Agreement. Notwithstanding the foregoing, however, the Company shall not
be obligated to pay any liability that the Company is determined (by a final and
unappealable judgment of a court of competent jurisdiction) to be prohibited by
applicable corporate law from paying as indemnity.
2. Advancement of Expenses.
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Costs and expenses (including, without limitation, reasonable attorneys'
fees) incurred by the Indemnitee in (i) defending or investigating or otherwise
responding to any actual or threatened action, suit, proceeding, or claim
falling within the parameters of paragraph 1 above, and (ii) enforcing this
Agreement, shall be paid by the Company in advance of the final disposition of
such matter within thirty (30) days after receipt of a request for such payment
and a written undertaking by or on behalf of the Indemnitee to repay any such
amount if it is ultimately determined (by a final and unappealable judgment of a
court of competent jurisdiction) that the Indemnitee is not entitled to
indemnification under the terms of this Agreement.
3. Enforcement of Rights.
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If a claim under this Agreement is not paid by or on behalf of the Company
within thirty (30) days after a written claim 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, seek monetary damages, and obtain
equitable relief, including mandatory injunction, and, if successful in whole or
in part, the Indemnitee shall also be entitled to be paid the expense of
prosecuting such claim or claims against the Company.
4. Subrogation.
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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 recovery of the
Indemnitee, who shall execute all papers required and shall (at the Company's
expense, including reasonable payment for the Indemnitee's time and effort
expended in providing assistance to the Company to the extent he is no longer
employed by the Company) do everything that may be reasonably necessary to
secure such rights, including the execution of such documents necessary to
enable the Company to effectively bring suit to enforce such rights.
5. Claims Excluded.
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The Company shall not be liable under this Agreement to pay any liability
incurred by the Indemnitee:
(a) To the extent payment is actually made to the Indemnitee under an
insurance policy maintained by the Company;
(b) To the extent the Indemnitee is actually paid or indemnified by
the Company otherwise than pursuant to this Agreement;
(c) If it is established (by a final and unappealable judgment of a
court of competent jurisdiction) that the act or omission of the Indemnitee was
material to the matter giving rise to the proceeding in connection with which
indemnity is sought and
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(i) was committed by the Indemnitee in bad faith, or (ii) was the result of
active and deliberate dishonesty of the Indemnitee;
(d) If it is determined (by a final and unappealable judgment of a
court of competent jurisdiction) that the Indemnitee actually received an
improper personal benefit in money, property or services unless, in view of all
the circumstances of the case, a court of competent jurisdiction determines that
the Indemnitee is fairly and reasonably entitled to indemnity;
(e) If it is determined (by a final and unappealable judgment of a
court of competent jurisdiction) in any criminal proceeding, that the Indemnitee
had reasonable cause to believe that the act or omission of the Indemnitee was
unlawful;
(f) In any proceeding by or in the right of the Company against such
Indemnitee, wherein the Indemnitee shall have been determined (by a final and
unappealable judgment of a court of competent jurisdiction) to be liable to the
Company; or
(g) For an accounting of profits made from the purchase or sale by the
Indemnitee of securities of the Company within the meaning of Section 16(b) of
the Securities Exchange Act of 1934, as amended.
6. Notice.
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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 directed to JDN
Realty Corporation, 000 Xxxx Xxxxx Xxxxx Xxxx, Xxxxx 000, Xxxxxxx, Xxxxxxx
00000, Attention: Corporate 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 (at the Company's expense,
including payment for the Indemnitee's reasonable time and effort expended in
providing assistance to the Company to the extent he is no longer employed by
the Company) give the Company such information and cooperation as it may
reasonably require in connection with such claim.
7. Non-Exclusivity of Rights.
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Nothing herein shall be deemed to diminish or otherwise restrict the
Indemnitee's right to indemnification under any provision of the Company's
Articles of Incorporation or Bylaws or the laws of the State of Maryland.
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8. Continued Service.
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The Indemnitee agrees to continue to serve as an officer of the Company to
the best of the Indemnitee's ability until the expiration or earlier termination
of the Indemnitee's term of office or until the Indemnitee tenders his
resignation in writing; provided, however, that nothing in this Agreement is
intended to create a contract of employment.
9. Choice of Law.
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This Agreement shall be governed by and construed in accordance with the
laws of the State of Maryland.
10. Binding Agreement.
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This Agreement shall be binding upon all successors and assigns of the
Company (including any transferee of all or substantially all of its assets and
any successor by merger or operation of law) and shall inure to the benefit of
the heirs, personal representatives and estate of the Indemnitee.
11. Severability.
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If any provision or provisions of this Agreement shall be held to be
invalid, illegal or unenforceable for any reason whatsoever (a) the validity,
legality and enforceability of the remaining provisions of this Agreement
(including without limitation, all portions of any section of this Agreement
containing any such provisions held to be invalid, illegal or unenforceable,
that are not by themselves invalid, illegal or unenforceable) shall not in any
way be affected or impaired thereby, and (b) to the fullest extent possible, the
provisions of this Agreement (including, without limitation, all portions of any
paragraph of this Agreement containing any such provision held to be invalid,
illegal or unenforceable, that are not themselves invalid, illegal or
unenforceable) shall be construed so as to give effect to the intent of the
parties that the Company provide protection to the Indemnitee to the fullest
extent allowed by law.
12. Arbitration.
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Any dispute arising under this Agreement shall be subject to binding
arbitration according to the commercial arbitration rules of the American
Arbitration Association in a proceeding before a single arbitrator in Atlanta,
Georgia.
13. Headings.
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The headings have been inserted for convenience only and shall not be deemed
to limit or otherwise affect any of the provisions of this Agreement.
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14. Miscellaneous.
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Payments to be made under this Agreement shall not be subject to the
Company's right of set-off for claims against the Indemnitee.
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.
JDN REALTY CORPORATION
By: /s/ Xxxx X. Xxxxxx, Xx.
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Its: CFO
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ATTEST:
/s/ Xxxxxxx X. Xxxxxxx
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Asst. Secretary
INDEMNITEE
/s/ XXXXX XXXXXX
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XXXXX XXXXXX
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