MAGUIRE PROPERTIES, INC. INDEMNIFICATION AGREEMENT
Exhibit
10.192
XXXXXXX
PROPERTIES, INC.
This
INDEMNIFICATION AGREEMENT (the “Agreement”) made and entered into this
8th
day of
December 2005, by and between Xxxxxxx Properties, Inc., a Maryland corporation
(the “Company”), and Xxxxx X. Xxxxx (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 12 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 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.
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(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 12 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
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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 twenty (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
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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, does not create 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 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 10 of this Agreement, together with documentation evidencing that
Indemnitee has incurred such Indemnifiable Expenses. Payment of Indenmifiable
Expenses under Section 10 shall be made no later than twenty (20) calendar
days after the Company’s receipt of such request and the affirmation and
undertaking required by Section 10.
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, 4 and 5 above or a request for an advancement of Indemnifiable
Expenses under Sections 10 and 11 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 12(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 12(a)
above, or in connection with any claim or counterclaim brought by the Company
in
connection therewith.
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(d) Validity
of Agreement.
The
Company shall be precluded from asserting in any Proceeding, including, without
limitation, an action under Section 12(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 12(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 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.
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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, as amended, 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 12 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, as amended, a resolution of the Board of Directors
or
an agreement approved by the 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 19 above with respect to changes in applicable law
which broaden the right of Indemnitee to be indemnified by the
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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: Xxxxx
X.
Xxxxx
c/o
Xxxxx-XxXxxxxx LLC
00000
Xx
Xxxxxx Xxxxxx
Xxxxx
000
Xxx
Xxxxxxx, XX 00000
Phone:
(000) 000-0000
Facsimile:
(000) 000-0000
(ii) If
to the
Company, to: Xxxxxxx
Properties, Inc.
000
Xxxxx
Xxxxx Xxx, Xxxxx 000
Xxx
Xxxxxxx, XX 00000
Phone:
(000) 000-0000
Facsimile:
(000) 000-0000
Attn:
Xxxxxx X. Xxxxxxx III and Xxxx X. Lammas
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, as amended; however, in the
event of a conflict between this Agreement and such provisions, the provisions
of this Agreement shall control.
26. Counterparts.
This
Agreement may be executed in any number of counterparts and by the parties
hereto in separate counterparts, each of which when so executed shall be deemed
to be an original and all of which taken together shall constitute one and
the
same agreement. Each party shall become bound by this Agreement immediately
upon
affixing its signature hereto.
[Signature
Page Follows]
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IN
WITNESS WHEREOF, the parties hereto have executed this Indemnification Agreement
as of the day and year first above written.
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COMPANY:
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XXXXXXX
PROPERTIES, INC.
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By:
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/s/
Xxxxxx X. Xxxxxxx III
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Name:
Xxxxxx X. Xxxxxxx III
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Title:
Chairman and Co-CEO
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INDEMNITEE:
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By:
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/s/
Xxxxx X. Xxxxx
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Xxxxx
X. Xxxxx
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