EXHIBIT 10.51
INDEMNIFICATION AGREEMENT
This Indemnification Agreement (the "Agreement") is entered into as of
the ___ day of ____________, 2000, ("Agreement") by and among XXXXXXX PACIFIC
PROPERTIES, Inc., a Maryland corporation (the "Corporation"), XXXXXXX PACIFIC
OPERATING PARTNERSHIP, L.P., a Delaware limited partnership (the "Operating
Partnership") and _________________ (the "Indemnitee").
WHEREAS, the interpretations of statutes, regulations, charter and
bylaws regarding indemnification of directors and officers and limitation of
liability of directors and officers are too uncertain to provide them with
adequate, reliable knowledge of risks to which they may be exposed by virtue of
serving as directors and officers of a corporation, and
WHEREAS, damages sought by class action plaintiffs in some cases amount
to substantial dollar amounts and, whether or not the case is meritorious, the
cost of defending these suits is enormous with few individual directors and
officers having the resources to sustain such legal costs or a judgment in favor
of the plaintiffs even in cases where the defendant was neither culpable nor
profited personally to the detriment of the corporation; and
WHEREAS, it is generally recognized that the issues in controversy in
such litigation are usually related to the knowledge, motives and intent of the
director or officer and that he is usually the only witness with firsthand
knowledge of the essential facts or of exculpating circumstances who is
qualified to testify in his defense regarding matters of such subjective nature,
and that the long period of time which normally and usually elapses before such
suits can be disposed of can extend beyond the normal time for retirement for a
director or officer, with the result that he, after retirement, or in the event
of his death, his spouse, heirs, executors, administrators, as the case may be,
may be faced with limited ability, undue hardship and an intolerable burden in
launching and maintaining a proper and adequate defense of such party or his
estate against claims for damages; and
WHEREAS, the charter and bylaws of the Corporation and the rules and
regulations governing the Corporation allow it to indemnify and hold harmless
their management personnel and their affiliates and each of their respective
officers, directors, partners and employees for losses, claims, damages,
expenses or liabilities incurred by such persons by reason of any action,
omission to act or decision made by any such persons in connection with the
business of the Corporation; and
WHEREAS, the Board of Directors (as defined in Article I hereto) has
concluded that it is reasonable, prudent and necessary for the Corporation
contractually to obligate itself to indemnify the Indemnitees in reasonable and
adequate manner to the fullest extent permitted by applicable law, to assume for
itself maximum liability for expenses and damages in connection with claims
lodged against them for their decisions and actions and to provide for the
advancement of expenses incurred by the Indemnitees; and
WHEREAS, as set forth in Section VIII hereof, it is in the interests of
the parties hereto that the Operating Partnership have the same indemnification
obligations to the Indemnitee as the indemnification obligations of the
Corporation to the Indemnitee; and
WHEREAS, the Indemnitees are willing to serve, for or on behalf of the
Corporation on the condition that they be so indemnified.
NOW, THEREFORE, in consideration of the mutual promises made herein and
other good and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, the parties hereto, intending to be legally bound, agree as
follows:
WITNESSETH
I.
DEFINITIONS
For purposes of this Agreement, the following terms shall have the
meanings set forth below:
A. "BOARD OF DIRECTORS" shall mean the board of directors of the
Corporation.
B. "CHANGE IN CONTROL" shall mean:
(i) the acquisition by an individual, entity or group (within the
meaning of Section 13(d)(3) or 14(d)(2) of the Securities Exchange Act of 1934,
as amended (the "Exchange Act")) (a "Person") of beneficial ownership of the
Corporation if, after such acquisition, such Person beneficially owns (within
the meaning of Rule 13d-3 promulgated under the Exchange Act) 50% or more of
either (x) the then-outstanding Common Shares of the Corporation (the
"Outstanding Corporation Common Shares") or (y) the combined voting power of the
then-outstanding securities of the Corporation entitled to vote generally in the
election of directors (the "Outstanding Corporation Voting Securities");
PROVIDED, HOWEVER, that for purposes of this subsection (i), the following
acquisitions shall not constitute a Change in Control: (A) any acquisition
directly from the Corporation (excluding an acquisition pursuant to the
exercise, conversion or exchange of any security exercisable for, convertible
into or exchangeable for Common Shares or voting securities of the Corporation,
unless the Person exercising, converting or exchanging such security acquired
such security directly from the Corporation or an underwriter or agent of the
Corporation), (B) any acquisition by any employee benefit plan (or related
trust) sponsored or maintained by the Corporation or any company controlled by
the Corporation, or (C) any acquisition by any company pursuant to a Business
Combination (as defined below) which complies with clauses (x) and (y) of
subsection (ii) of this definition; or
(ii) the consummation of an amalgamation, merger, consolidation,
reorganization, recapitalization or statutory share exchange involving the
Corporation or a sale or other disposition of all or substantially all of the
assets of the Corporation (a "Business Combination"), unless, immediately
following such Business Combination, each of the following two conditions is
satisfied: (x) all or substantially all of the individuals and entities who were
the beneficial owners of the Outstanding Corporation Common Shares and
Outstanding Corporation Voting
-2-
Securities immediately prior to such Business Combination beneficially own,
directly or indirectly, more than 50% of the then-outstanding shares of Common
Shares and the combined voting power of the then-outstanding securities entitled
to vote generally in the election of directors, respectively, of the resulting
or acquiring company in such Business Combination (which shall include, without
limitation, a company which as a result of such transaction owns the Corporation
or substantially all of the Corporation's assets either directly or through one
or more subsidiaries) (such resulting or acquiring company is referred to herein
as the "Acquiring Corporation") in substantially the same proportions as their
ownership of the Outstanding Corporation Common Shares and Outstanding
Corporation Voting Securities, respectively, immediately prior to such Business
Combination and (y) no Person (excluding the Acquiring Corporation, any Exempt
Persons or any employee benefit plan (or related trust) maintained or sponsored
by the Corporation or by the Acquiring Corporation) beneficially owns, directly
or indirectly, 50% or more of the then-outstanding Common Shares of the
Acquiring Corporation, or of the combined voting power of the then-outstanding
securities of such company entitled to vote generally in the election of
directors (except to the extent that such ownership existed prior to the
Business Combination).
C. "DISINTERESTED DIRECTOR" shall mean a director of the
Corporation who neither is nor was a party to the Proceeding in respect of which
indemnification or advance of expenses is being sought by an Indemnitee.
D. "EXPENSES" shall mean, without limitation, expenses of
Proceedings including all attorneys' fees, retainers, court costs, transcript
costs, fees of experts, accounting and witness fees, travel expenses,
duplicating costs, printing and binding costs, telephone charges, postage,
delivery service fees, and all other disbursements or expenses of the types
customarily incurred in connection with prosecuting, defending, preparing to
prosecute or defend, investigating or being or preparing to be a witness or
party in a Proceeding.
E. "BAD FAITH" shall mean with respect to a particular
Indemnitee, such Indemnitee not having acted in a manner the Indemnitee
reasonably believed to be in or not opposed to the best interests of the
Corporation, and, with respect to any criminal Proceeding, such Indemnitee
having acted in a certain manner without reasonable cause to believe his conduct
was lawful.
F. "LIABILITIES" shall mean liabilities of any type whatsoever,
including without limitation, any judgments, fines, ERISA excise taxes and
penalties, penalties and amounts paid in settlement (including all interest,
assessments and other charges paid or payable in connection with or in respect
of such judgments, fines, penalties, or amounts paid in settlement) in
connection with the investigation, defense, settlement or appeal of any
Proceeding or any claim, issue or matter therein.
G. "OFFICIAL STATUS" describes the status of a person who is or
was a director or officer of the Corporation, or a member of any committee of
the Board of Directors, and the status of a person who, while a director or
officer of the Corporation, is or was serving at the request of the Corporation
as a director, officer, partner, member, trustee, employee or agent of another
foreign or domestic corporation, partnership, limited liability company or
partnership, joint venture, trust, employee benefit plan, or other entity.
-3-
H. "PROCEEDING" includes any threatened, pending or completed
action, suit, arbitration, alternative dispute resolution mechanism,
investigation, administrative hearing or any other actual, threatened or
completed proceeding whether civil, criminal, administrative or investigative,
including, without limitation, any Proceeding arising out of or relating to acts
or omissions with respect to any and all related transactions, filings and other
actions, whether or not such acts or omissions occurred prior or subsequent to
the formation of the Corporation and/or Operating Partnership prior to or
subsequent to the date of this Agreement (including, without limitation, matters
relating to the proxy filed by the corporation with the securities and exchange
commission on September 28, 2000, and any amendment thereto and suit by an
Indemnitee seeking to enforce the Indemnitee's rights under this Agreement);
PROVIDED, HOWEVER, that the term Proceeding shall not include a Proceeding
initiated by any of the Indemnitees against the Corporation or any director,
officer, employee or agent of the Corporation and/or Operating Partnership
unless (i) the Corporation has joined in or the Board of Directors has consented
to the initiation of such Proceeding or (ii) the Proceeding is instituted after
a Change in Control.
I. "VOTING SECURITIES" shall mean any securities of an entity
whose holder or holders are entitled to vote generally in the election of the
Board of Directors.
II.
TERM OF AGREEMENT
This Agreement shall continue until and terminate with respect to any
Indemnitee upon the later of:
1. 10 years after the date that such Indemnitee shall have
ceased to serve as a director, officer, partner, member,
trustee, employee, or agent of the Corporation or of any other
corporation, partnership, limited liability company or
partnership, joint venture, trust, employee benefit plan or
other entity which such Indemnitee served at the request of the
Corporation, or
2. The final termination of any Proceeding then pending in
respect of which such Indemnitee is granted rights of
indemnification of Liabilities or advancement of Expenses
hereunder and of any Proceeding commenced by such Indemnitee
pursuant to Section IV.F of this Agreement relating thereto.
This Agreement shall be binding upon the Corporation and its successors and
assigns and shall inure to the benefit of the Indemnitees and their heirs,
executors and administrators.
-4-
III.
SERVICES BY INDEMNITEE, NOTICE OF PROCEEDINGS
AND DEFENSE OF CLAIM
A. AGREEMENT TO SERVE. Each Indemnitee shall serve and/or
continue to serve, at the will of the Corporation or under separate contract, if
such exists, as a director or officer of the Corporation. This Agreement does
not create any additional right for any of the Indemnitees to serve as directors
or officers other than at the will of the Corporation or as otherwise provided
by separate contract. Indemnitee's resignation as a director shall not
constitute a breach of this Agreement.
B. NOTICE OF PROCEEDINGS. Each Indemnitee shall notify the
Corporation promptly in writing upon being served with any summons, citation,
subpoena, complaint, indictment, information or other document relating to any
Proceeding or matter which may be subject to indemnification of Liabilities or
advancement of Expenses covered hereunder, but the Indemnitee's omission to so
notify the Corporation shall not relieve the Corporation from any liability
which it may have to the Indemnitees under this Agreement unless such omission
materially prejudices the rights of the Corporation (including, without
limitation, the Corporation having lost any significant substantive or
procedural rights with respect to the defense of any Proceeding). If such
omission does materially prejudice the rights of the Corporation, the
Corporation shall be relieved from liability under this Agreement to the extent
of such prejudice; but such omission will not relieve the Corporation from any
liability which it may owe to an Indemnitee otherwise than under this Agreement.
C. DEFENSE OF CLAIMS. The Corporation will be entitled to
participate at its own expense in any Proceeding of which it has notice. The
Corporation, jointly with any other indemnifying party similarly notified of any
Proceeding, will be entitled to assume the defense of any Indemnitee therein,
with counsel reasonably satisfactory to such Indemnitee; PROVIDED, HOWEVER, that
the prior written consent of the Indemnitee shall be required for the
Corporation to assume the defense of an Indemnitee in a Proceeding (i) if there
has been a Change in Control in the Corporation, or (ii) if the Indemnitee has
reasonably concluded that there may be a conflict of interest between the
Corporation and such Indemnitee, or between one Indemnitee and another, with
respect to any Proceeding and has provided written notice thereof to the
Corporation. After receipt of written notice from the Corporation to an
Indemnitee of the Corporation's election to assume the defense of such
Indemnitee in any Proceeding, the Corporation will not be liable to such
Indemnitee under this Agreement for any Expenses subsequently incurred by such
Indemnitee in connection with the defense thereof, other than reasonable costs
of investigation or as otherwise provided below. An Indemnitee shall have the
right to employ his own counsel in any such Proceeding, but the fees and
expenses of such counsel incurred after receipt of written notice from the
Corporation of its assumption of the defense thereof shall be at the expense of
such Indemnitee unless:
1. The employment of counsel by such Indemnitee has been
authorized by the Corporation;
-5-
2. Such Indemnitee shall have reasonably concluded that
counsel employed by the Corporation has not adequately
represented such Indemnitee or that there is a conflict of
interest between the Corporation and such Indemnitee with
respect to such Proceeding; or
3. The Corporation shall not in fact have employed counsel
to assume the defense of such Indemnitee in such Proceeding or
such counsel has not in fact assumed such defense or such
counsel is not acting in connection therewith with reasonable
diligence; and in each such case the fees and expenses of such
Indemnitee's counsel shall be advanced by the Corporation
pursuant to Article V.
D. SETTLEMENT OF CLAIMS. The Corporation shall not settle any
Proceeding in any manner which would impose any liability, penalty or limitation
on any of the Indemnitees without the written consent of such Indemnitee;
PROVIDED, HOWEVER, that such Indemnitee shall not unreasonably withhold, delay
or condition consent to any proposed settlement. Unless there has been a Change
in Control, the Corporation shall not be liable to indemnify any of the
Indemnitees under this Agreement or otherwise for any amounts paid in settlement
of any Proceeding effected by such Indemnitee without the Corporation's written
consent. The Corporation shall not unreasonably withhold, delay or condition its
consent to any proposed settlement.
IV.
INDEMNIFICATION
A. IN GENERAL. The Corporation shall indemnify any Indemnitees
against any and all Expenses and Liabilities: (i) as provided in this Agreement,
(ii) to the fullest extent consistent with applicable law in effect on the date
hereof and to such greater extent as applicable law may hereafter from time to
time permit, (iii) for any acts or omissions which occurred prior to each
Indemnitee becoming a director of the Corporation, or establishing any formal
relationship with the Corporation. The rights of the Indemnitees provided under
the preceding sentence shall include, but shall not be limited to, the rights
set forth in this Article IV. It is expressly agreed and understood that the
Corporation's indemnification to Indemnitee shall be absolute, total and
unconditional with respect to any activity or event, including without
limitation the preparation or distribution of any proxy statement, which occurs
prior to the date of commencement of Indemnitee's service as a director of the
Corporation and no process or procedure shall be needed to establish or confirm
such indemnification, except as may be required by applicable law (provided
Indemnitee is notified appropriately by the Corporation). If any Proceeding
arising from any such action or event is brought against Indemnitee, Indemnitee
shall be entitled to separate independent counsel selected by Indemnitee, with
the Expenses thereof paid by the Corporation.
B. INDEMNIFICATION OF A PARTY TO A PROCEEDING. An Indemnitee
shall be entitled to the rights of indemnification provided in this Section IV.B
if, by reason of his Official Status, he is, or is threatened to be made, a
party to any Proceeding. In accordance with this Section IV.B, an Indemnitee
shall be indemnified against all Expenses and Liabilities actually incurred by
him or on his behalf in connection with such Proceeding or any claim, issue or
matter therein, unless
-6-
the acts or omissions of such Indemnitee are material to the matter giving rise
to the Proceeding, and (a) were committed in bad faith (as determined pursuant
to either Section IV.D.2 or Section IV.E below), or (b) were the result of
active and deliberate dishonesty, or (c) for which the Indemnitee actually
received an improper personal benefit in money, property or services, or (d) in
the case of any criminal Proceeding, for which the Indemnitee had reasonable
cause to believe that the act or omission was unlawful; PROVIDED, HOWEVER, that,
if applicable law so provides, no indemnification against such Expenses and
Liabilities shall be made in respect of any claim, issue or matter in a
Proceeding brought by or in the right of the Corporation as to which a final,
nonappealable judgment has been issued by a court of competent jurisdiction that
the Indemnitee is liable to the Corporation, unless and to the extent that such
court shall determine that such indemnification may be made.
C. INDEMNIFICATION FOR EXPENSES OF WITNESS. Notwithstanding any
other provision of this Agreement, to the extent that an Indemnitee, by reason
of such Indemnitee's Official Status, has prepared to serve or has served as a
witness in any Proceeding, such Indemnitee shall be indemnified against all
Expenses actually and reasonably incurred by or for him in connection therewith
and that are not otherwise reimbursed.
D. SPECIFIC LIMITATIONS ON INDEMNIFICATION. Notwithstanding
anything in this Agreement to the contrary, the Corporation shall not be
obligated under this Agreement to make any payment to any Indemnitee for
indemnification with respect to any Proceeding:
1. To the extent that payment is actually made to such
Indemnitee under any insurance policy or is made to such
Indemnitee by the Corporation otherwise than pursuant to this
Agreement.
2. If a court in such Proceeding has entered a judgment
or other adjudication which is final and has become nonappealable
and established that a claim of such Indemnitee for such
indemnification arose from acts or omissions of such Indemnitee
which are material to the matter giving rise to the Proceeding and
which (a) were committed in bad faith, or (b) which were the
result of active and deliberate dishonesty, or (c) for which the
Indemnitee actually received an improper personal benefit in
money, property or services, or (d) in the case of any criminal
Proceeding, for which the Indemnitee had reasonable cause to
believe that the act or omission was unlawful.
3. If there has been no Change in Control, for
Liabilities in connection with Proceedings settled without the
consent of the Corporation (unless such consent was unreasonably
withheld, delayed or conditioned), PROVIDED, HOWEVER, that the
consent of an Indemnitee will not be required with respect to any
Liability for which such Indemnitee is not entitled to
indemnification. If there has been a Change in Control, the
Corporation shall be liable for Liabilities in connection with
Proceedings settled without the consent of the Corporation.
4. For an accounting of profits made from the purchase
or sale by such Indemnitee of securities of the Corporation
within the meaning of Section 16(b) of
-7-
the Securities Exchange Act of 1934 or similar provisions of
any federal, state or local statute or regulation.
5. For any liability of an Indemnitee in connection with
xxxxxxx xxxxxxx, as defined under the United States securities
laws or similar provisions of any state or local statute or
regulation.
E. DETERMINATION OF BAD FAITH.
1. An Indemnitee will be deemed to have acted in Bad Faith if
such is proven by clear and convincing evidence by the Corporation in
one of the forums listed below. Such Indemnitee subject to a claim by
the Corporation that he acted in Bad Faith shall be entitled to select
from among the following forums in which the validity of the
Corporation's claim will be heard:
(a) The Disinterested Directors, which shall make such
determination by majority vote;
(b) The shareholders of the Corporation, which shall
make such determination by majority vote;
(c) Legal counsel selected by such Indemnitee, and
reasonably approved by the Board of Directors, which counsel
shall make such determination in a written opinion; or
(d) A panel of three arbitrators, one of whom is
selected by the Corporation, another of whom is selected by
such Indemnitee and the last of whom is selected by the
first two arbitrators so selected.
2. As soon as practicable, and in no event later than thirty (30)
days after written notice of such Indemnitee's choice of forum pursuant
to this Section IV.E, the Corporation shall, at its own expense, submit
to the selected forum in such manner as such Indemnitee or such
Indemnitee's counsel may reasonably request, its claim that such
Indemnitee is not entitled to indemnification, and the Corporation
shall act in the utmost good faith to assure such Indemnitee a complete
opportunity to defend against such claim. The fees and expenses of the
selected forum in connection with making the determination contemplated
hereunder shall be paid by the Corporation. If the Corporation shall
fail to submit the matter to the selected forum within thirty (30) days
after such Indemnitee's written notice or if the forum so empowered to
make the determination shall have failed to make the requested
determination within thirty (30) days after the matter has been
submitted to it by the Corporation, the requisite determination that
such Indemnitee has the right to indemnification shall be deemed to
have been made.
3. For purposes of any determination of Bad Faith, an Indemnitee
shall be deemed to have acted in Bad Faith if such Indemnitee's action
is not based on the records
-8-
or books or accounts of the Corporation, including financial
statements, or on information supplied to such Indemnitee by the
directors or officers of the Corporation in the course of their duties,
or on the advice of legal counsel for the Corporation or on information
or records given or reports made to the Corporation by an independent
certified public accountant or by an appraiser or other expert selected
with reasonable care by the Corporation. The provisions of this Section
IV.E shall not be deemed to be exclusive or to limit in any way the
other circumstances in which an Indemnitee may be deemed to have met
the standard of conduct set forth in this Agreement.
F. RIGHT TO APPEAL. Notwithstanding a determination by any forum
listed in Section IV.E above that an Indemnitee is not entitled to
indemnification with respect to a specific Proceeding, such Indemnitee shall
have the right to apply to the court in which that Proceeding is or was pending,
or to any other court of competent jurisdiction, for the purpose of enforcing
such Indemnitee's right to indemnification pursuant to this Agreement. The
Corporation shall be precluded from asserting that the procedures and
presumptions of this Agreement are not valid, binding and enforceable. The
Corporation further agrees to stipulate in any such judicial proceeding that it
is bound by all the provisions of this Agreement and is precluded from making
any assertion to the contrary.
G. DIRECTORS' AND OFFICERS' LIABILITY INSURANCE. In addition to
the indemnification protection provided to the Indemnitee by the other sections
of this Agreement, the Corporation shall also purchase and maintain Directors'
and Officers' Liability Insurance, at its expense and in amounts that are
subject to such terms as shall be determined by the Board of Directors of the
Corporation, to protect the Indemnitee against any expense, liability or loss
incurred by it or him in any such capacity, or arising out of his status as
such.
V.
ADVANCEMENT OF EXPENSES
A. ADVANCEMENT OF EXPENSES. The Corporation shall advance to an
Indemnitee all Expenses incurred or to be incurred by or for him in connection
with (i) any Proceeding for which such Indemnitee is entitled to indemnification
pursuant to Article IV above, including any Proceeding under Section IV.E or
Section IV.F involving such Indemnitee and (ii) any other action between the
Corporation and such Indemnitee involving the interpretation or enforcement of
the rights of such Indemnitee under this Agreement, in advance of the final
disposition of such Proceeding or other action, provided that such Indemnitee
executes and submits an undertaking to repay Expenses advanced in the form of
Exhibit A attached hereto (the "Undertaking").
B. PROCEDURE FOR ADVANCEMENT. The Corporation shall advance
Expenses pursuant to subsection A above within ten (10) business days after the
receipt by the Corporation of an Undertaking. Each Indemnitee hereby agrees to
repay any Expenses advanced hereunder if it shall ultimately be determined by a
court of competent jurisdiction that such Indemnitee is not entitled to be
indemnified against such Expenses. Any advances and the undertaking to repay
pursuant to this Article V shall be unsecured and interest free.
-9-
VI.
PRESUMPTIONS AND EFFECT OF CERTAIN PROCEEDINGS
A. BURDEN OF PROOF. In making a determination with respect to
entitlement to indemnification of Liabilities and advancement of Expenses
hereunder, including a determination pursuant to Section IV.F, the person or
persons or entity making such determination shall consider the Indemnitee's
right to such entitlement de novo and such Indemnitee shall not be prejudiced by
reason of a prior determination that such Indemnitee is not entitled to
indemnification. The person or persons making such determination shall also
presume that the Indemnitee is entitled to indemnification and advancement of
Expenses under this Agreement, which presumption the Corporation shall have the
burden of proof to overcome.
B. EFFECT OF OTHER PROCEEDINGS. The termination of any Proceeding
or of any claim, issue or matter therein, by judgment, order, settlement or
conviction, or upon a plea of nolo contendere or its equivalent, shall not of
itself affect the right of an Indemnitee to indemnification or create a
presumption that such Indemnitee acted in Bad Faith.
C. ACTIONS OF OTHERS. The knowledge and/or actions, or failure to
act, of any director, officer, agent or employee of the Corporation shall not be
imputed to the Indemnitees for purposes of determining the right to
indemnification under this Agreement.
VII.
NON-EXCLUSIVITY, SUBROGATION AND MISCELLANEOUS
A. NON-EXCLUSIVITY. The rights of each Indemnitee hereunder shall
not be deemed exclusive of any other rights to which such Indemnitee may at any
time be entitled under any provision of law, regulation, the Corporation's
charter, bylaws, vote of shareholders, resolution of directors or otherwise, and
to the extent that during the term of this Agreement the rights of the then
existing directors and officers are more favorable to such directors and
officers than the rights currently provided to the Indemnitees under this
agreement, the Indemnitees shall be entitled to the full benefits of such more
favorable rights.
B. SUBROGATION. In the event of any payment under thus Agreement,
the Corporation shall be subrogated to the extent of such payment to all of the
rights of recovery of the Indemnitee to whom such payment is made. Such
Indemnitee shall execute all documents required and take all action necessary to
secure such rights, including execution of such documents as are necessary to
enable the Corporation to bring suit to enforce such rights.
C. NOTICES. All notices, requests, demands and other
communications hereunder shall be in writing and shall be deemed to have been
duly given if (i) delivered by hand and receipted for by the party to whom said
notice or other communication shall have been directed, when received, or (ii)
mailed by certified or registered mail with postage prepaid, on the third
business day after the date on which it is so mailed:
-10-
If to an Indemnitee, addressed to the Indemnitee at the
following addresses:
With a copy to:
If to the Corporation, addressed to the Corporation at the
following address:
Xxxxxxx Pacific Properties, Inc.
000 Xxxx X Xxxxxx
Xxxxx 000
Xxx Xxxxx, Xxxxxxxxxx 00000
Attn: Corporate Secretary
(000) 000-0000 (fax)
If to the Operating Partnership, addressed to the Operating
Partnership at the following address:
Xxxxxxx Pacific Operating Partnership, L.P.
000 Xxxx X Xxxxxx
Xxxxx 000
Xxx Xxxxx, Xxxxxxxxxx 00000
Attn: Corporate Secretary
(000) 000-0000 (fax)
or to such other address as may have been furnished to an Indemnitee by the
Corporation or to the Corporation by an Indemnitee, as the case may be.
D. GOVERNING LAW. THE PARTIES AGREE THAT THIS AGREEMENT SHALL BE
GOVERNED BY, AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE SUBSTANTIVE LAWS
OF THE STATE OF MARYLAND WITHOUT REGARD TO ITS CHOICE OF LAW RULES.
E. ENTIRE AGREEMENT. This Agreement constitutes the entire
agreement and understanding between the parties hereto in reference to the
subject matter hereof; PROVIDED, HOWEVER, that the parties acknowledge and agree
that the charter and bylaws of the Corporation may contain provisions on the
subject matter hereof and that this Agreement is not intended to, and does not,
limit the rights or obligations of the parties hereto pursuant to such
instruments.
-11-
F. SUCCESSORS AND ASSIGNS. The rights, benefits, responsibilities
and obligations arising hereunder shall inure to the benefit of and be binding
upon the parties hereto and their respective heirs, executors, assigns,
successors, affiliates, agents, and representatives.
G. AMENDMENT OF AGREEMENT AND SCHEDULES. No amendment,
alteration, rescission or replacement of this Agreement or any provision hereof
shall (i) be effective as to any Indemnitee or the Corporation unless executed
in writing by the Indemnitee(s) affected thereby and the Corporation if affected
thereby or (ii) be effective as to any Indemnitee with respect to any action or
inaction by such Indemnitee in the Indemnitee's Official Status prior to such
amendment, alteration, rescission or replacement.
H. TITLES. The titles to the articles and sections of this
Agreement are inserted for convenience or reference only and should not be
deemed a part hereof or affect the construction or interpretation of any
provisions hereof.
I. INVALIDITY OF PROVISIONS. Every provision of this Agreement is
severable, and the invalidity or unenforceability of any term or provision shall
not effect the validity or enforceability of the remainder of this Agreement.
J. PRONOUNS AND PLURALS. Whenever the context may require, any
pronoun used in this Agreement shall include the corresponding masculine,
feminine or neuter forms, and the singular form of nouns, pronouns and verbs
shall include the plural and VICE VERSA.
K. SEVERABILITY. If any provision or provisions of this Agreement
shall be held to be invalid, illegal or unenforceable for any reason whatsoever:
1. the validity, legality and enforceability of the remaining
provisions of this Agreement (including, without limitation, each
portion of any Article of this Agreement containing any such provision
held to be invalid, illegal or unenforceable, that is not itself
invalid, illegal or unenforceable) shall not in any way be affected or
impaired thereby; and
2. to the fullest extent possible, the provisions of this
Agreement (including, without limitation, each portion of any Article
of this Agreement containing any such provision held to be invalid,
illegal or unenforceable, that is not itself invalid, illegal or
unenforceable) shall be construed so as to give effect to the intent
manifested thereby.
-12-
L. COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together constitute one agreement binding on all the parties hereto.
VIII.
OBLIGATIONS OF OPERATING PARTNERSHIP
The Operating Partnership shall have the same obligations to
the Indemnitee as the obligations of the Corporation hereunder, the Operating
Partnership hereby acknowledging and confirming to the Indemnitee (a) that the
services of the Indemnitee as a director and/or an officer of the Corporation
are important and valuable to the Operating Partnership because of the
Corporation's status as general partner of the Operating Partnership, and (b)
that the business and affairs of the Corporation are conducted primarily
through, and the assets of the Corporation are owned primarily by, the Operating
Partnership. Without limiting the other provisions of this Agreement, the
Indemnitee shall be entitled to indemnification and to his other rights
hereunder with respect to matters arising in the conduct of the affairs of the
Operating Partnership to the same extent as with respect to matters arising in
the conduct of the affairs of the Corporation.
-13-
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
XXXXXXX PACIFIC PROPERTIES, Inc.
a Maryland corporation
By:
-----------------------------------------------
Name:
Title:
XXXXXXX PACIFIC OPERATING
PARTNERSHIP, L.P.,
a Delaware limited partnership
By: XXXXXXX PACIFIC PROPERTIES, Inc.
a Maryland corporation, its General Partner
By:
-----------------------------------------
Name:
Title:
-----------------------------------
(Indemnitee)
-14-
EXHIBIT A
FORM OF UNDERTAKING TO REPAY EXPENSES ADVANCED
Re: Undertaking to Repay Expenses Advanced
Ladies and Gentlemen:
Pursuant to the Indemnification Agreement dated as of the _____ day of
_______________, 2000 by and among the Corporation and the Indemnitees, the
undersigned is an Indemnitee and is thereby entitled to advancement of expenses
in connection with [DESCRIPTION OF PROCEEDING] (the "Proceeding"). Terms used
herein and not otherwise defined shall have the meanings specified in the
Indemnification Agreement.
I am subject to the Proceeding by reason of my Official Status or by
reason of actions allegedly taken or omitted by me in such capacity. During the
period of time to which the Proceeding relates I was [(NAME OF POSITION HELD)]
of Xxxxxxx Pacific Properties, Inc. (the "Corporation"). Pursuant to Section V
of the Indemnification Agreement, the Corporation is obligated to advance to me
Expenses that are reasonably incurred by or for me in connection with the
Proceeding, provided that I execute and submit to the Corporation an Undertaking
in which I (i) undertake to repay the Corporation for any Expenses paid by it on
my behalf if it shall be ultimately determined that I am not entitled to be
indemnified by the Corporation against such Expenses, (ii) affirm my good faith
belief that I have met the standard of conduct necessary for indemnification by
the Corporation, and (iii) reasonably evidence the Expenses incurred by or for
me.
[DESCRIPTION OF EXPENSES INCURRED OR TO BE INCURRED BY OR FOR
INDEMNITEE]
This letter shall constitute my undertaking to repay to the Corporation
any Expenses paid by it on my behalf in connection with the Proceeding if it is
ultimately determined that I am not entitled to be indemnified by the
Corporation with respect to such Expenses as set forth above. I hereby affirm my
good faith belief that I have met the standard of conduct necessary for
indemnification by the Corporation and that I am entitled to such
indemnification.
---------------------------------
Signature
---------------------------------
Name
---------------------------------
Date
A-1
