EXHIBIT 10.11
INDEMNITY AGREEMENT
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This Agreement is made as of the _____ day of July, 1995, by and
between Nationwide Health Properties, Inc., a Maryland corporation ("NHP"), and
_____________________ (the "Director"), with reference to the following facts:
The Director has been elected as a Director of NHP and NHP wishes the
Director to continue in such capacity. The Director is willing, under certain
circumstances, to continue serving as a Director of NHP.
In order to induce the Director to continue to serve as a Director of
NHP and in consideration of his continued service, NHP hereby agrees to
indemnify the Director as follows:
1. NHP will pay on behalf of the Director and his executors or
administrators, any amount which the Director is or becomes legally obligated to
pay because of any claim or claims made against him as a result of any act or
omission or neglect or breach of duty, including any actual or alleged error or
misstatement or misleading statement, which he commits or suffers, or committed
or suffered prior to the date hereof, while acting in his capacity as a Director
of NHP. The payments which NHP will be obligated to make hereunder shall
include judgments, penalties, fines, settlements, and reasonable expenses
actually incurred by the Director in connection with the proceeding, including
attorney fees, claims or proceedings and appeals therefrom, and costs of
attachment or similar bonds; provided, however, that NHP shall not be obligated
to make any payment
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hereunder which it is prohibited from paying as indemnity, or for any other
reason, under federal or state securities laws or any other applicable law.
2. If a claim under this Agreement is not paid by NHP, or on its
behalf, within thirty days after a written claim has been received by NHP, the
Director may at any time thereafter bring suit against NHP to recover the unpaid
amount of the claim and if successful in whole or in part, the Director shall be
entitled to be paid also the expense of prosecuting such claim. It is
specifically understood and agreed that expenses incurred by the Director in
defending any claim shall be paid or reimbursed by NHP in advance of the final
disposition thereof upon receipt by NHP of (i) a written affirmation by the
Director of the Director's good faith belief that the standard of conduct
necessary under Paragraph 4 hereof for indemnification was met, and (ii) a
written undertaking by or on behalf of the Directors to repay advanced amounts
if it shall ultimately be determined by judgment or other final adjudication
adverse to the Director that the standard under Paragraph 4 hereof has not been
met.
3. In the event of payment under this Agreement, NHP shall be
subrogated to the extent of such payment to all of the rights of recovery of the
Director, 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 NHP effectively to bring suit to enforce such rights.
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4. NHP shall not be liable under this Agreement to make any payment
in connection with any claim made against the Director:
(a) if the proceeding was one by or in the right of NHP and the
Director shall have been adjudged to be liable to NHP.
(b) for which payment is actually made to the Director under a
valid and collectible insurance policy, except in respect of any
excess beyond the amount of payment under such insurance, and any
applicable deductible;
(c) for which the Director is entitled to indemnity and/or
payment by reason of having given notice of any circumstance which
might give rise to claim under any policy of insurance, the terms of
which have expired prior to the effective date of this Agreement;
(d) in any proceeding in which the Director is adjudged to be
liable on the basis that a personal benefit in money, property or
services was improperly received by the Director;
(e) for an accounting of profits made from the purchase or sale
by the Director of securities of NHP within the meaning of Section
16(b) of the Securities Exchange Act of 1934 and amendments thereto or
similar provisions of any state statutory law or common law;
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(f) where the act or omission of the Director was material to the
cause of action in connection with which indemnification is sought and
(i) was committed in bad faith or (ii) was the result of active and
deliberate dishonesty; or
(g) where, in the case of any criminal proceeding, the Director
had reasonable cause to believe that the act or omission giving rise
to the claim for which indemnification is sought was unlawful.
5. The termination of any proceeding by judgment, order, or
settlement does not create a presumption that the Director did not meet the
requisite standard of conduct. The termination of any proceeding by conviction,
or 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 Director
did not meet that standard of conduct.
6. The Director, as a condition precedent to his right to be
indemnified under this Agreement, shall give to NHP 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 NHP shall be given at its principal
office (or such other address as NHP shall designate in writing to the
Director), and shall be directed to the President; notice shall be sent by
certified mail return receipt with postage prepaid, or by facsimile or by
courier and shall be deemed received on receipt of facsimile or courier
confirmation or as
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evidenced by a certified mail return receipt. In addition, the Director shall
give NHP such information and cooperation as it may reasonably require and as
shall be within the Director's power.
7. This Agreement supersedes and replaces any prior agreement. This
Agreement may be executed in any number of counterparts, all of which taken
together shall constitute one instrument.
8. This Agreement shall be governed by and construed in accordance
with Maryland law.
9. Nothing herein shall be deemed to diminish or otherwise restrict
the Director's right to indemnification under any provision of NHP's Charter or
Bylaws and amendments thereto, or under the Maryland General Corporation Law.
It is the intent of this Agreement that the Director herein shall be indemnified
to the fullest extent possible under the Maryland General Corporation Law, and
NHP's Charter and Bylaws, as the same may be amended from time to time. This
Agreement shall in no way limit indemnification to the maximum extent permitted
by the Maryland General Corporation Law.
However, to the extent that this Agreement, or NHP's Charter or Bylaws
provides for indemnification or other rights in addition to those of Section 2-
418 of the Maryland General Corporation Law, such indemnification and/or other
rights shall be valid under Section 2-418(g) of the Maryland General
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Corporation Law, unless expressly limited by the Maryland General Corporation
Law or other applicable law.
10. In case one or more of the provisions contained in this Agreement
(or any portion of any such provision) shall for any reason be held to be
invalid, illegal, or unenforceable in any respect, such invalidity, illegality
or unenforceability shall not affect any other provision of this Agreement (or
any portion of any such provision), but this Agreement shall be construed as if
such invalid, illegal or unenforceable provision (or portion thereof) had never
been contained herein.
11. This Indemnity Agreement shall be applicable during Director's
time of service as a Director and for any applicable limitations period
thereafter.
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.
_________________________________
_______________________, Director
NATIONWIDE HEALTH PROPERTIES, INC.
By________________________________
R. Xxxxx Xxxxxxx
President and Chief Executive
Officer
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