FORM OF INDEMNIFICATION AGREEMENT
Exhibit 10.5
FORM
OF
INDEMNIFICATION AGREEMENT
INDEMNIFICATION AGREEMENT
THIS INDEMNIFICATION AGREEMENT (“Agreement”) is made and entered into as of the ___day of
___, 2009, by and between Xxxxx Global REIT, Inc., a Maryland corporation (the
“Company”), and ___(“Indemnitee”).
WHEREAS, at the request of the Company, Indemnitee currently serves as a director or officer
of the Company and may, therefore, be subjected to claims, suits or proceedings arising as a result
of his or her service; and
WHEREAS, as an inducement to Indemnitee to continue to serve as such director or officer, the
Company has agreed to indemnify and to advance expenses and costs incurred by Indemnitee in
connection with any such claims, suits or proceedings; and
WHEREAS, the parties by this Agreement desire to set forth their agreement regarding
indemnification and advance of expenses;
NOW, THEREFORE, in consideration of the premises and the covenants contained herein, the
Company and Indemnitee do hereby covenant and agree as follows:
Section 1. Definitions. For purposes of this Agreement:
(a) “Applicable Legal Rate” means a fixed rate of interest equal to the applicable federal
rate for mid-term debt instruments as of the day that it is determined that Indemnitee must repay
any advanced expenses.
(b) “Change in Control” means a change in control of the Company occurring after the Effective
Date of a nature that would be required to be reported in response to Item 6(e) of Schedule 14A of
Regulation 14A (or in response to any similar item on any similar schedule or form) promulgated
under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), whether or not the
Company is then subject to such reporting requirement; provided, however, that, without limitation,
such a Change in Control shall be deemed to have occurred if, after the Effective Date (i) any
“person” (as such term is used in Sections 13(d) and 14(d) of the Exchange Act) is or becomes the
“beneficial owner” (as defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of
securities of the Company representing 15% or more of the combined voting power of all of the
Company’s then-outstanding securities entitled to vote generally in the election of directors
without the prior approval of at least two-thirds of the members of the Board of Directors in
office immediately prior to such person’s attaining such percentage interest; (ii) the Company is a
party to a merger, consolidation, sale of assets, plan of liquidation or other reorganization not
approved by at least two-thirds of the members of the Board of Directors then in office, as a
consequence of which members of the Board of Directors in office immediately prior to such
transaction or event constitute less than a majority of the Board of Directors thereafter; or (iii)
at any time, a majority of the members of the Board of Directors are not individuals (A) who were
directors as of the Effective Date or (B) whose election by the Board of Directors or nomination
for election by the Company’s stockholders was approved by the affirmative vote of at least
two-thirds of the directors then in office who
were directors as of the Effective Date or whose election for nomination for election was
previously so approved.
(c) “Corporate Status” means the status of a person as a present or former director, officer,
employee or agent of the Company or as a director, trustee, officer, partner, manager, managing
member, fiduciary, employee or agent of any other foreign or domestic corporation, partnership,
limited liability company, joint venture, trust, employee benefit plan or other enterprise that
such person is or was serving in such capacity at the request of the Company. As a clarification
and without limiting the circumstances in which Indemnitee may be serving at the request of the
Company, service by Indemnitee shall be deemed to be at the request of the Company if Indemnitee
serves or served as a director, trustee, officer, partner, manager, managing member, fiduciary,
employee or agent of any corporation, partnership, limited liability company, joint venture, trust,
employee benefit plan or other enterprise (i) of which a majority of the voting power or equity
interest is owned directly or indirectly by the Company or (ii) the management of which is
controlled directly or indirectly by the Company.
(d) “Disinterested Director” means a director of the Company who is not and was not a party to
the Proceeding in respect of which indemnification and/or advance of Expenses is sought by
Indemnitee.
(e) “Effective Date” means the date set forth in the first paragraph of this Agreement.
(f) “Expenses” means any and all reasonable and out-of-pocket attorneys’ fees and costs,
retainers, court costs, transcript costs, fees of experts, witness fees, travel expenses,
duplicating costs, printing and binding costs, telephone charges, postage, delivery service fees,
federal, state, local or foreign taxes imposed on Indemnitee as a result of the actual or deemed
receipt of any payments under this Agreement, ERISA excise taxes and penalties and any other
disbursements or expenses incurred in connection with prosecuting, defending, preparing to
prosecute or defend, investigating, being or preparing to be a witness in or otherwise
participating in a Proceeding. Expenses shall also include Expenses incurred in connection with
any appeal resulting from any Proceeding including, without limitation, the premium for, security
for and other costs relating to any cost bond supersedeas bond or other appeal bond or its
equivalent.
(g) “Independent Counsel” means a law firm, or a member of a law firm, that is experienced in
matters of corporation law and neither is, nor in the past five years has been, retained to
represent: (i) the Company or Indemnitee in any matter material to either such party (other than
with respect to matters concerning Indemnitee under this Agreement or of other indemnitees under
similar indemnification agreements), or (ii) any other party to or participant or witness in the
Proceeding giving rise to a claim for indemnification or advance of Expenses hereunder.
Notwithstanding the foregoing, the term “Independent Counsel” shall not include any person who,
under the applicable standards of professional conduct then prevailing, would have a conflict of
interest in representing either the Company or Indemnitee in an action to determine Indemnitee’s
rights under this Agreement.
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(h) “Proceeding” means any threatened, pending or completed action, suit, arbitration,
alternate dispute resolution mechanism, investigation, inquiry, administrative hearing or any other
proceeding, whether brought by or in the right of the Company or otherwise and whether of a civil
(including intentional or unintentional tort claims), criminal, administrative or investigative
(formal or informal) nature, including any appeal therefrom, except one pending or completed on or
before the Effective Date, unless otherwise specifically agreed in writing by the Company and
Indemnitee. If Indemnitee reasonably believes that a given situation may lead to or culminate in
the institution of a Proceeding, such situation shall also be considered a Proceeding.
Section 2. Services by Indemnitee. Indemnitee will serve as a director or officer of
the Company. However, this Agreement shall not impose any independent obligation on Indemnitee or
the Company to continue Indemnitee’s service to the Company. This Agreement shall not be deemed an
employment contract between the Company (or any other entity) and Indemnitee.
Section 3. General. Subject to the limitations in Section 5, the Company shall
indemnify, and advance Expenses to, Indemnitee (a) as provided in this Agreement and (b) as
otherwise permitted by Maryland law in effect on the Effective Date 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 Effective
Date. Subject to the limitations in Section 5, the rights of Indemnitee provided in this Section 3
shall include, without limitation, 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”).
Section 4. Standard for Indemnification. Subject to the limitations in Section 5, if,
by reason of Indemnitee’s Corporate Status, Indemnitee is, or is threatened to be, made a party to
any Proceeding, Indemnitee shall be indemnified against all judgments, penalties, fines and amounts
paid in settlement and all Expenses actually and reasonably incurred by him or her or on his or her
behalf in connection with any such Proceeding unless it is established by clear and convincing
evidence that (a) the act or omission of Indemnitee was material to the matter giving rise to the
Proceeding and (i) was committed in bad faith or (ii) was the result of active and deliberate
dishonesty, (b) Indemnitee actually received an improper personal benefit in money, property or
services or (c) in the case of any criminal Proceeding, Indemnitee had reasonable cause to believe
that his or her conduct was unlawful.
Section 5. Certain Limits on Indemnification. Notwithstanding any other provision of
this Agreement, the Company shall not be obligated under this Agreement to make any payment to
Indemnitee for indemnification with respect to any Proceeding:
(a) for any loss or liability unless all of the following conditions are met: (i) Indemnitee
has determined, in good faith, that the course of conduct that caused the loss or liability was in
the best interests of the Company; (ii) Indemnitee was acting on behalf of or performing services
for the Company; (iii) such loss or liability was not the result of negligence or misconduct, or,
if Indemnitee is an independent director, gross negligence or willful
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misconduct; and (iv) such indemnification is recoverable only out of the Company’s net assets
and not from the Company’s stockholders;
(b) for any loss or liability arising from an alleged violation of federal or state securities
laws unless one or more of the following conditions are met: (i) there has been a successful
adjudication on the merits of each count involving alleged material securities law violations as to
Indemnitee; (ii) such claims have been dismissed with prejudice on the merits by a court of
competent jurisdiction as to Indemnitee; or (iii) a court of competent jurisdiction approves a
settlement of the claims against Indemnitee and finds that indemnification of the settlement and
the related costs should be made, and the court considering the request for indemnification has
been advised of the position of the Securities and Exchange Commission and of the published
position of any state securities regulatory authority in which securities of the Company were
offered or sold as to indemnification for violations of securities laws; or
(c) (i) that was by or in the right of the Company and in which Indemnitee is adjudged to be
liable to the Company; (ii) where Indemnitee is adjudged to be liable on the basis that personal
benefit was improperly received and which charges improper personal benefit to Indemnitee, whether
or not involving action in Indemnitee’s Corporate Status; or (iii) brought by Indemnitee unless:
(1) the Proceeding was brought to enforce indemnification under this Agreement, and then only to
the extent in accordance with and as authorized by Section 12 of this Agreement, or (2) the
Company’s charter or Bylaws, a resolution of the stockholders entitled to vote generally in the
election of directors or of the Board of Directors or an agreement approved by the Board of
Directors to which the Company is a party expressly provide otherwise.
Section 6. Court-Ordered Indemnification. Subject to the limitations in Section 5, a
court of appropriate jurisdiction, upon application of Indemnitee and such notice as the court
shall require, may order indemnification in the following circumstances:
(a) if it determines Indemnitee is entitled to reimbursement under Section 2-418(d)(1) of the
MGCL, the court shall order indemnification, in which case Indemnitee shall be entitled to recover
the Expenses of securing such reimbursement; or
(b) if it determines that Indemnitee is fairly and reasonably entitled to indemnification in
view of all the relevant circumstances, whether or not Indemnitee (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 2-418(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 Expenses.
Section 7. Indemnification for Expenses of a Party Who is Wholly or Partly Successful.
Subject to the limitations in Section 5, to the extent that Indemnitee is, by reason of his or her
Corporate Status, made a party to (or otherwise becomes a participant in) any Proceeding and is
successful, on the merits or otherwise, in the defense of such Proceeding, Indemnitee shall be
indemnified for all Expenses actually and reasonably incurred by him or her
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or on his or her behalf in connection therewith. 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 under this
Section 7 for all Expenses actually and reasonably incurred by him or her or on his or her behalf
in connection with each such claim, issue or matter, allocated on a reasonable and proportionate
basis. For purposes of this Section 7, and without limitation, 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.
Section 8. Advance of Expenses for a Party. If, by reason of Indemnitee’s Corporate
Status, Indemnitee is, or is threatened to be, made a party to any Proceeding, the Company shall,
without requiring a preliminary determination of Indemnitee’s ultimate entitlement to
indemnification hereunder, advance all reasonable Expenses incurred by or on behalf of Indemnitee
in connection with (a) such Proceeding which is initiated by a third party who is not a stockholder
of the Company, or (b) such Proceeding which is initiated by a stockholder of the Company acting in
his or her capacity as such and for which a court of competent jurisdiction specifically approves
such advancement, and which relates to acts or omissions with respect to the performance of duties
or services on behalf of the Company, within ten days after the receipt by the Company of a
statement or statements requesting such advance or advances from time to time, whether prior to or
after final disposition of such Proceeding. Such statement or statements shall reasonably evidence
the Expenses incurred by Indemnitee and shall include or be preceded or accompanied by a written
affirmation by Indemnitee of Indemnitee’s good faith belief that the standard of conduct necessary
for indemnification by the Company as authorized by law and by this Agreement has been met and a
written undertaking by or on behalf of Indemnitee, in substantially the form attached hereto as
Exhibit A or in such form as may be required under applicable law as in effect at the time
of the execution thereof, to reimburse the portion of any Expenses advanced to Indemnitee, together
with the Applicable Legal Rate of interest thereon, relating to claims, issues or matters in the
Proceeding as to which it shall ultimately be established, by clear and convincing evidence, that
the standard of conduct has not been met by Indemnitee and which have not been successfully
resolved as described in Section 7 of this Agreement. To the extent that Expenses advanced to
Indemnitee do not relate to a specific claim, issue or matter in the Proceeding, such Expenses
shall be allocated on a reasonable and proportionate basis. The undertaking required by this
Section 8 shall be an unlimited general obligation by or on behalf of Indemnitee and shall be
accepted without reference to Indemnitee’s financial ability to repay such advanced Expenses and
without any requirement to post security therefor.
Section 9. Indemnification and Advance of Expenses of a Witness. Subject to the
limitations in Section 5, to the extent that Indemnitee is or may be, by reason of his or her
Corporate Status, made a witness or otherwise asked to participate in any Proceeding, whether
instituted by the Company or any other party, and to which Indemnitee is not a party, he or she
shall be advanced all reasonable Expenses and indemnified against all Expenses actually and
reasonably incurred by him or her or on his or her behalf in connection therewith within ten days
after the receipt by the Company of a statement or statements requesting such advance or advances
from time to time, whether prior to or after final disposition of such Proceeding. Such statement
or statements shall reasonably evidence the Expenses incurred by Indemnitee.
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Section 10. Procedure for Determination of Entitlement to Indemnification.
(a) To obtain indemnification under this Agreement, Indemnitee shall submit to the Company a
written request, including therein or therewith such documentation and information as is reasonably
available to Indemnitee and is reasonably necessary to determine whether and to what extent
Indemnitee is entitled to indemnification. Indemnitee may submit one or more such requests from
time to time and at such time(s) as Indemnitee deems appropriate in his or her sole discretion.
The officer of the Company receiving any such request from Indemnitee shall, promptly upon receipt
of such a request for indemnification, advise the Board of Directors in writing that Indemnitee has
requested indemnification.
(b) Upon written request by Indemnitee for indemnification pursuant to Section 10(a) above, a
determination, if required by applicable law, with respect to Indemnitee’s entitlement thereto
shall promptly be made in the specific case: (i) if a Change in Control shall have occurred, by
Independent Counsel, in a written opinion to the Board of Directors, a copy of which shall be
delivered to Indemnitee, which Independent Counsel shall be selected by Indemnitee and approved by
the Board of Directors in accordance with Section 2-418(e)(2)(ii) of the MGCL, which approval will
not be unreasonably withheld; or (ii) if a Change in Control shall not have occurred, (A) by the
Board of Directors by a majority vote of a quorum consisting of Disinterested Directors or, if such
a quorum cannot be obtained, then by a majority vote of a duly authorized committee of the Board of
Directors consisting solely of one or more Disinterested Directors, (B) if Independent Counsel has
been selected by the Board of Directors in accordance with Section 2-418(e)(2)(ii) of the MGCL and
approved by Indemnitee, which approval shall not be unreasonably withheld, by Independent Counsel,
in a written opinion to the Board of Directors, a copy of which shall be delivered to Indemnitee or
(C) if so directed by a majority of the members of the Board of Directors, by the stockholders of
the Company. If it is so determined that Indemnitee is entitled to indemnification, payment to
Indemnitee shall be made within ten days after such determination. Indemnitee shall cooperate with
the person, persons or entity making such determination with respect to Indemnitee’s entitlement to
indemnification, including providing to such person, persons or entity upon reasonable advance
request any documentation or information which is not privileged or otherwise protected from
disclosure and which is reasonably available to Indemnitee and reasonably necessary to such
determination in the discretion of the Board of Directors or Independent Counsel if retained
pursuant to clause (ii)(B) of this Section 10(b). Any Expenses incurred by Indemnitee in so
cooperating with the person, persons or entity making such determination shall be borne by the
Company (irrespective of the determination as to Indemnitee’s entitlement to indemnification) and
the Company shall indemnify and hold Indemnitee harmless therefrom.
(c) The Company shall pay the reasonable fees and expenses of Independent Counsel, if one is
appointed.
Section 11. Presumptions and Effect of Certain Proceedings.
(a) In making any determination with respect to entitlement to indemnification hereunder, the
person or persons or entity making such determination shall presume that Indemnitee is entitled to
indemnification under this Agreement if Indemnitee has submitted a request for indemnification in
accordance with Section 10(a) of this Agreement, and
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the Company shall have the burden of proof to overcome that presumption in connection with the
making of any determination contrary to that presumption.
(b) The termination of any Proceeding or of any claim, issue or matter therein, by judgment,
order, settlement or conviction, upon a plea of nolo contendere or its equivalent,
or entry of an order of probation prior to judgment, does not create a presumption that Indemnitee
did not meet the requisite standard of conduct described herein for indemnification.
(c) The knowledge and/or actions, or failure to act, of any other director, officer, employee
or agent of the Company or any other director, trustee, officer, partner, manager, managing member,
fiduciary, employee or agent of any other foreign or domestic corporation, partnership, limited
liability company, joint venture, trust, employee benefit plan or other enterprise shall not be
imputed to Indemnitee for purposes of determining any other right to indemnification under this
Agreement.
Section 12. Remedies of Indemnitee.
(a) If (i) a determination is made pursuant to Section 10(b) of this Agreement that Indemnitee
is not entitled to indemnification under this Agreement, (ii) advance of Expenses is not timely
made pursuant to Section 8 of this Agreement, (iii) no determination of entitlement to
indemnification shall have been made pursuant to Section 10(b) of this Agreement within 60 days
after receipt by the Company of the request for indemnification, (iv) payment of indemnification is
not made pursuant to Section 7 of this Agreement within ten days after receipt by the Company of a
written request therefor, or (v) payment of indemnification pursuant to any other section of this
Agreement or the charter or Bylaws of the Company is not made within ten days after a determination
has been made that Indemnitee is entitled to indemnification, Indemnitee shall be entitled to an
adjudication in an appropriate court located in the State of Maryland, or in any other court of
competent jurisdiction, of his or her entitlement to such indemnification or advance of Expenses.
Alternatively, Indemnitee, at his or her option, may seek an award in arbitration to be conducted
by a single arbitrator pursuant to the Commercial Arbitration Rules of the American Arbitration
Association. Indemnitee shall commence a proceeding seeking an adjudication or an award in
arbitration within 180 days following the date on which Indemnitee first has the right to commence
such proceeding pursuant to this Section 12(a); provided, however, that the foregoing clause shall
not apply to a proceeding brought by Indemnitee to enforce his or her rights under Section 7 of
this Agreement. Except as set forth herein, the provisions of Maryland law (without regard to its
conflicts of laws rules) shall apply to any such arbitration. The Company shall not oppose
Indemnitee’s right to seek any such adjudication or award in arbitration.
(b) In any judicial proceeding or arbitration commenced pursuant to this Section 12,
Indemnitee shall be presumed to be entitled to indemnification or advance of Expenses, as the case
may be, under this Agreement and the Company shall have the burden of proving that Indemnitee is
not entitled to indemnification or advance of Expenses, as the case may be. If Indemnitee
commences a judicial proceeding or arbitration pursuant to this Section 12, Indemnitee shall not be
required to reimburse the Company for any advances pursuant to Section 8 of this Agreement until a
final determination is made with respect to Indemnitee’s entitlement to indemnification (as to
which all rights of appeal have been exhausted
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or lapsed). The Company shall, to the fullest extent not prohibited by law, be precluded from asserting in
any judicial proceeding or arbitration commenced pursuant to this Section 12 that the procedures
and presumptions of this Agreement are not valid, binding and enforceable and shall stipulate in
any such court or before any such arbitrator that the Company is bound by all of the provisions of
this Agreement.
(c) If a determination shall have been made pursuant to Section 10(b) of this Agreement that
Indemnitee is entitled to indemnification, the Company shall be bound by such determination in any
judicial proceeding or arbitration commenced pursuant to this Section 12, absent a misstatement by
Indemnitee of a material fact, or an omission of a material fact necessary to make Indemnitee’s
statement not materially misleading, in connection with the request for indemnification.
(d) In the event that Indemnitee, pursuant to this Section 12, seeks a judicial adjudication
of or an award in arbitration to enforce his or her rights under, or to recover damages for breach
of, this Agreement, Indemnitee shall be entitled to recover from the Company, and shall be
indemnified by the Company for, any and all Expenses actually and reasonably incurred by him or her
in such judicial adjudication or arbitration. If it shall be determined in such judicial
adjudication or arbitration that Indemnitee is entitled to receive part but not all of the
indemnification or advance of Expenses sought, the Expenses incurred by Indemnitee in connection
with such judicial adjudication or arbitration shall be appropriately prorated.
(e) Interest shall be paid by the Company to Indemnitee at the maximum rate allowed to be
charged for judgments under the Courts and Judicial Proceedings Article of the Annotated Code of
Maryland for amounts which the Company pays or is obligated to pay under this Section 12 for the
period commencing with the date on which Indemnitee requests indemnification, reimbursement or
advance of any Expenses and ending on the date such payment is made to Indemnitee by the Company.
Section 13. Defense of the Underlying Proceeding.
(a) Indemnitee shall notify the Company promptly in writing upon being served with any
summons, citation, subpoena, complaint, indictment, request or other document relating to any
Proceeding which may result in the right to indemnification or the advance of Expenses hereunder
and shall include with such notice a description of the nature of the Proceeding and a summary of
the facts underlying the Proceeding. The failure to give any such notice shall not disqualify
Indemnitee from the right, or otherwise affect in any manner any right of Indemnitee, to
indemnification or the advance of Expenses under this Agreement unless the Company’s ability to
defend in such Proceeding or to obtain proceeds under any insurance policy is materially and
adversely prejudiced thereby, and then only to the extent the Company is thereby actually so
prejudiced.
(b) Subject to the provisions of the last sentence of this Section 13(b) and of Section 13(c)
below, the Company shall have the right to defend Indemnitee in any Proceeding which may give rise
to indemnification hereunder; provided, however, that the Company shall notify Indemnitee of any
such decision to defend within 15 calendar days following receipt of
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notice of any such Proceeding under Section 13(a) above. The Company shall not, without the
prior written consent of Indemnitee, which shall not be unreasonably withheld or delayed, consent
to the entry of any judgment against Indemnitee or enter into any settlement or compromise which
(i) includes an admission of fault of Indemnitee, (ii) does not include, as an unconditional term
thereof, the full release of Indemnitee from all liability in respect of such Proceeding, which
release shall be in form and substance reasonably satisfactory to Indemnitee, or (iii) would impose
any Expense, judgment, fine, penalty or limitation on Indemnitee. This Section 13(b) shall not
apply to a Proceeding brought by Indemnitee under Section 12 of this Agreement.
(c) Notwithstanding the provisions of Section 13(b) above, if in a Proceeding to which
Indemnitee is a party by reason of Indemnitee’s Corporate Status, (i) Indemnitee reasonably
concludes, based upon an opinion of counsel approved by the Company, which approval shall not be
unreasonably withheld, that he or she may have separate defenses or counterclaims to assert with
respect to any issue which may not be consistent with other defendants in such Proceeding, (ii)
Indemnitee reasonably concludes, based upon an opinion of counsel approved by the Company, which
approval shall not be unreasonably withheld, that an actual or apparent conflict of interest or
potential conflict of interest exists between Indemnitee and the Company, or (iii) if the Company
fails to assume the defense of such Proceeding in a timely manner, Indemnitee shall be entitled to
be represented by separate legal counsel of Indemnitee’s choice, subject to the prior approval of
the Company, which shall not be unreasonably withheld, at the expense of the Company. In addition,
if the Company fails to comply with any of its obligations under this Agreement or in the event
that the Company or any other person takes any action to declare this Agreement void or
unenforceable, or institutes any Proceeding to deny or to recover from Indemnitee the benefits
intended to be provided to Indemnitee hereunder, Indemnitee shall have the right to retain counsel
of Indemnitee’s choice, subject to the prior approval of the Company, which shall not be
unreasonably withheld, at the expense of the Company (subject to Section 12(d) of this Agreement),
to represent Indemnitee in connection with any such matter.
Section 14. Non-Exclusivity; Survival of Rights; Subrogation.
(a) The rights of indemnification and advance of Expenses as provided by this Agreement shall
not be deemed exclusive of any other rights to which Indemnitee may at any time be entitled under
applicable law, the charter or Bylaws of the Company, any agreement or a resolution of the
stockholders entitled to vote generally in the election of directors or of the Board of Directors,
or otherwise. Unless consented to in writing by Indemnitee, no amendment, alteration or repeal of
this Agreement or of any provision hereof shall limit or restrict any right of Indemnitee under
this Agreement in respect of any action taken or omitted by such Indemnitee in his or her Corporate
Status prior to such amendment, alteration or repeal, regardless of whether a claim with respect to
such action or inaction is raised prior or subsequent to such amendment, alteration or repeal. No
right or remedy herein conferred is intended to be exclusive of any other right or remedy, and
every other right or remedy shall be cumulative and in addition to every other right or remedy
given hereunder or now or hereafter existing at law or in equity or otherwise. The assertion of
any right or remedy hereunder, or otherwise, shall not prohibit the concurrent assertion or
employment of any other right or remedy.
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(b) In the event of any payment under this Agreement, the Company shall be subrogated to the
extent of such payment to all of the rights of recovery of Indemnitee, who shall execute all papers
required and take all action necessary to secure such rights, including execution of such documents
as are necessary to enable the Company to bring suit to enforce such rights.
Section 15. Insurance. The Company will use its reasonable best efforts to acquire
directors and officers liability insurance, on terms and conditions deemed appropriate by the Board
of Directors, with the advice of counsel, covering Indemnitee or any claim made against Indemnitee
by reason of his or her Corporate Status and covering the Company for any indemnification or
advance of Expenses made by the Company to Indemnitee for any claims made against Indemnitee by
reason of his or her Corporate Status. Without in any way limiting any other obligation under this
Agreement, the Company shall indemnify Indemnitee for any payment by Indemnitee arising out of the
amount of any deductible or retention and the amount of any excess of the aggregate of all
judgments, penalties, fines, settlements and Expenses incurred by Indemnitee in connection with a
Proceeding over the coverage of any insurance referred to in the previous sentence. The purchase,
establishment and maintenance of any such insurance shall not in any way limit or affect the rights
or obligations of the Company or Indemnitee under this Agreement except as expressly provided
herein, and the execution and delivery of this Agreement by the Company and Indemnitee shall not in
any way limit or affect the rights or obligations of the Company under any such insurance policies.
If, at the time the Company receives notice from any source of a Proceeding to which Indemnitee is
a party or a participant (as a witness or otherwise), the Company has director and officer
liability insurance in effect, the Company shall give prompt notice of such Proceeding to the
insurers in accordance with the procedures set forth in the respective policies.
Section 16. Coordination of Payments. The Company shall not be liable under this
Agreement to make any payment of amounts otherwise indemnifiable or payable or reimbursable as
Expenses hereunder if and to the extent that Indemnitee has otherwise actually received such
payment under any insurance policy, contract, agreement or otherwise.
Section 17. Reports to Stockholders. To the extent required by the MGCL, the Company
shall report in writing to its stockholders the payment of any amounts for indemnification of, or
advance of Expenses to, Indemnitee under this Agreement arising out of a Proceeding by or in the
right of the Company with the notice of the meeting of stockholders of the Company next following
the date of the payment of any such indemnification or advance of Expenses or prior to such
meeting.
Section 18. Duration of Agreement; Binding Effect.
(a) This Agreement shall continue until and terminate on the later of (i) the date that
Indemnitee shall have ceased to serve as a director, officer, employee or agent of the Company or
as a director, trustee, officer, partner, manager, managing member, fiduciary, employee or agent of
any other foreign or domestic corporation, real estate investment trust, partnership, limited
liability company, joint venture, trust, employee benefit plan or other enterprise that such person
is or was serving in such capacity at the request of the Company and (ii) the date that Indemnitee
is no longer subject to any actual or possible Proceeding (including
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any rights of appeal thereto and any Proceeding commenced by Indemnitee pursuant to Section 12
of this Agreement).
(b) The indemnification and advance of Expenses provided by, or granted pursuant to, this
Agreement shall be binding upon and be enforceable by the parties hereto and their respective
successors and assigns (including any direct or indirect successor by purchase, merger,
consolidation or otherwise to all or substantially all of the business or assets of the Company),
shall continue as to an Indemnitee who has ceased to be a director, officer, employee or agent of
the Company or a director, trustee, officer, partner, manager, managing member, fiduciary, employee
or agent of any other foreign or domestic corporation, partnership, limited liability company,
joint venture, trust, employee benefit plan or other enterprise that such person is or was serving
in such capacity at the request of the Company, and shall inure to the benefit of Indemnitee and
his or her spouse, assigns, heirs, devisees, executors and administrators and other legal
representatives.
(c) The Company shall require and cause any successor (whether direct or indirect by purchase,
merger, consolidation or otherwise) to all, substantially all or a substantial part, of the
business and/or assets of the Company, by written agreement in form and substance satisfactory to
Indemnitee, expressly to assume and agree to perform this Agreement in the same manner and to the
same extent that the Company would be required to perform if no such succession had taken place.
(d) The Company and Indemnitee agree herein that a monetary remedy for breach of this
Agreement, at some later date, may be inadequate, impracticable and difficult of proof, and further
agree that such breach may cause Indemnitee irreparable harm. Accordingly, the parties hereto
agree that Indemnitee may enforce this Agreement by seeking injunctive relief and/or specific
performance hereof, without any necessity of showing actual damage or irreparable harm and that by
seeking injunctive relief and/or specific performance, Indemnitee shall not be precluded from
seeking or obtaining any other relief to which he or she may be entitled. Indemnitee shall further
be entitled to such specific performance and injunctive relief, including temporary restraining
orders, preliminary injunctions and permanent injunctions, without the necessity of posting bonds
or other undertakings in connection therewith. The Company acknowledges that, in the absence of a
waiver, a bond or undertaking may be required of Indemnitee by a court, and the Company hereby
waives any such requirement of such a bond or undertaking.
Section 19. Severability. 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,
each portion of any Section, paragraph or sentence 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 shall remain enforceable to the fullest
extent permitted by law; (b) such provision or provisions shall be deemed reformed to the extent
necessary to conform to applicable law and to give the maximum effect to the intent of the parties
hereto; and (c) to the fullest extent possible, the provisions of this Agreement (including,
without limitation, each portion of any Section, paragraph or sentence of this Agreement containing
any such provision held to be invalid, illegal or unenforceable, that is not
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itself invalid, illegal or unenforceable) shall be construed so as to give effect to the
intent manifested thereby.
Section 20. Identical Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall for all purposes be deemed to be an original but all of which
together shall constitute one and the same Agreement. One such counterpart signed by the party
against whom enforceability is sought shall be sufficient to evidence the existence of this
Agreement.
Section 21. Headings. The headings of the paragraphs of this Agreement are inserted
for convenience only and shall not be deemed to constitute part of this Agreement or to affect the
construction thereof.
Section 22. Modification and Waiver. No supplement, modification or amendment of this
Agreement shall be binding unless executed in writing by both 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 hereof (whether or not similar) nor shall such waiver constitute a continuing waiver.
Section 23. 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
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:
(a) If to Indemnitee, to the address set forth on the signature page hereto.
(b) If to the Company, to:
Xxxxx Global REIT, Inc.
Suite 5000
0000 Xxxx Xxx Xxxxxxxxx
Xxxxxxx, Xxxxx 00000-0000
Attn: General Counsel
Suite 5000
0000 Xxxx Xxx Xxxxxxxxx
Xxxxxxx, Xxxxx 00000-0000
Attn: General Counsel
or to such other address as may have been furnished in writing to Indemnitee by the Company or to
the Company by Indemnitee, as the case may be.
Section 24. Governing Law. The parties agree that this Agreement shall be governed
by, and construed and enforced in accordance with, the laws of the State of Maryland, without
regard to its conflicts of laws rules.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year
first above written.
| XXXXX GLOBAL REIT, INC. |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
| INDEMNITEE |
||||
| Name: | ||||
| Address: | ||||
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EXHIBIT A
FORM OF UNDERTAKING TO REPAY EXPENSES ADVANCED
The Board of Directors of Xxxxx Global REIT, Inc.
Re: Undertaking to Repay Expenses Advanced
Ladies and Gentlemen:
This undertaking is being provided pursuant to that certain Indemnification Agreement, dated
the ___day of ___, 2009, by and between Xxxxx Global REIT, Inc., a Maryland
corporation (the “Company”), and the undersigned Indemnitee (the “Indemnification Agreement”),
pursuant to which I am entitled to advance 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 Corporate Status or by reason of alleged
actions or omissions by me in such capacity. I hereby affirm my good belief that at all times,
insofar as I was involved as a director or officer of the Company, in any of the facts or events
giving rise to the Proceeding, I (1) did not act with bad faith or active or deliberate dishonesty,
(2) did not receive any improper personal benefit in money, property or services and (3) in the
case of any criminal proceeding, had no reasonable cause to believe that any act or omission by me
was unlawful.
In consideration of the advance of Expenses by the Company for reasonable attorneys’ fees and
related Expenses incurred by me in connection with the Proceeding (the “Advanced Expenses”), I
hereby agree that if, in connection with the Proceeding, it is established that (1) an act or
omission by me 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 or (2) I actually received an
improper personal benefit in money, property or services or (3) in the case of any criminal
proceeding, I had reasonable cause to believe that the act or omission was unlawful, then I shall
promptly reimburse the portion of the Advanced Expenses, together with the Applicable Legal Rate of
interest thereon, relating to the claims, issues or matters in the Proceeding as to which the
foregoing findings have been established.
IN WITNESS WHEREOF, I have executed this Affirmation and Undertaking on this ___day of
___, 20___.
