EXHIBIT 10.2
INDEMNIFICATION AGREEMENT
This Indemnification Agreement is made in favor of
_____________________ and _______________________, jointly and severally (each
an "Indemnitee," and collectively, the "Indemnitees"), by Government Properties
Trust, Inc. ("Indemnitor"), a Maryland corporation.
W I T N E S S E T H:
WHEREAS, Indemnitor has requested that each of the Indemnitees serve as
a member of its board of directors.
WHEREAS, such service will benefit Indemnitor, and the Indemnitees have
requested, and Indemnitor has agreed to provide, indemnities with respect to
claims arising from such service, all as hereinafter set forth.
NOW, THEREFORE, for good and valuable consideration the sufficiency and
receipt of which is hereby acknowledged, the Indemnitor and the Indemnitees
hereby agree as follows:
1. The following terms shall have the meanings set forth below:
1.1 "Corporate Status" describes the status of a person who is or was a
director of Indemnitor or, while serving as a director of Indemnitor, also
served as a director, officer, agent, member, manager, or partner, trustee or
fiduciary of Indemnitor or of any other corporation, partnership, joint venture,
real estate investment, trust, employee benefit plan or other enterprise at the
request of Indemnitor.
1.2 "Expenses" shall include, without limitation, all reasonable fees
of legal counsel, retainers, court costs, transcript costs, fees of experts,
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 and in the amounts customarily incurred in connection
with defending, preparing to defend, investigating or being or preparing to be a
witness in a Proceeding.
1.3 "Good Faith" shall mean an Indemnitee having acted in good faith
and in a manner the Indemnitee reasonably believed to be in or not opposed to
the best interests of Indemnitor, and, with respect to any Proceeding which is
criminal in nature, having had no reasonable cause to believe the Indemnitee's
conduct was unlawful.
1.4 "Proceeding" includes any claim; demand; pending, threatened or
completed action; suit; arbitration; alternate dispute resolution mechanism;
investigation (including any internal corporate investigation); administrative
hearing; or any other pending, threatened or completed proceeding whether civil,
criminal, administrative or investigative, other than one initiated by an
Indemnitee. For purposes of the foregoing sentence, a "Proceeding" (i) shall not
be deemed to have been initiated by the Indemnitee where the Indemnitee seeks to
enforce the Indemnitee's rights under this Agreement; and (ii) shall be deemed
to include any Proceeding in which Indemnitee is a witness by reason of his
Corporate Status.
2. Indemnitor shall indemnify, defend and hold harmless to the fullest
extent permissible by Maryland law, each of the Indemnitees and their respective
heirs and estates from and against any and all losses, liabilities, costs,
expenses, judgments, fines, penalties and amounts paid in settlement with
Indemnitor's consent arising out of or in connection with any Proceedings,
involving any Indemnitee by reason of his Corporate Status.
3. An Indemnitee shall provide prompt notice of any matter covered by
this Indemnification Agreement to Indemnitor, and Indemnitor shall assume the
defense of the matter with counsel of its choosing, subject to the approval of
the Indemnitee, which approval shall not be unreasonably withheld; provided,
however, failure to give prompt notice to Indemnitor shall not relieve
Indemnitor of any liability hereunder except to the extent that Indemnitor is
materially prejudiced thereby.
4. To the maximum extent permitted by applicable law in effect from
time to time, Indemnitor shall advance all reasonable Expenses which by reason
of an Indemnitee's Corporate Status, were incurred by an Indemnitee in
connection with any Proceeding. Such advances shall be paid 20 days after the
receipt by Indemnitor of a statement or statements from the Indemnitee
requesting such advance or advances, together with an undertaking by Indemnitee
to repay any Expenses if it shall ultimately be determined that Indemnitee is
not entitled to be indemnified against such Expenses and a written affirmation
by the Indemnitee of the Indemnitee's good faith belief that the Indemnitee has
met the standard of conduct set forth in Section 5 which would entitle the
Indemnitee to payment.
5. No Indemnification shall apply if it shall ultimately be determined
by a court of competent jurisdiction that an Indemnitee did not act in Good
Faith and in a reasonable belief that his actions were in the best interest of
the stockholders of Indemnitor. [In making a determination with respect to
entitlement to indemnification hereunder, the person, persons or entity making
such determination shall presume that an Indemnitee is entitled to
indemnification under this Agreement, and Indemnitor shall have the burden of
proof to overcome that presumption in connection with the making by any person,
persons or entity of any determination contrary to that presumption.]
6. In the event Indemnitor disputes an Indemnitee's rights to be
indemnified hereunder, Indemnitee shall be entitled to an adjudication in an
appropriate court of the Indemnitee's entitlement to such indemnification or
advancement of expenses. [Alternatively, either party may seek an award in
arbitration to be conducted by a single arbitrator pursuant to the rules of the
American Arbitration Association. That party shall commence such proceeding
seeking an adjudication or an award in arbitration within 180 days following the
date on which such dispute arose. Any such arbitration shall be conducted in
Omaha, Nebraska.
7. In the event that one or more Indemnitees engage a lawyer to enforce
the Indemnitees' rights hereunder or seeks a judicial adjudication of or an
award in arbitration to enforce the Indemnitees' rights under, or to recover
damages for alleged breach of, this Agreement, or bring any other action arising
from or related to this Agreement, the prevailing parties shall be entitled to
recover from the nonprevailing party or parties, and shall be indemnified by
nonprevailing party or parties against, any and all expenses (including
2
reasonable fees of legal counsel) actually and reasonably incurred by the
prevailing party or parties in such adjudication or arbitration; provided,
however, if the Indemnitees are not the prevailing parties, in no event shall
the Indemnitees be liable or obligated under this paragraph to pay or reimburse
the prevailing party or parties for any expenses which in the aggregate exceed
[$50,000] (the "cap").
8. This Agreement is entered into solely for the benefit of the
Indemnitees and their respective heirs and estates, and no third party shall
have any rights hereunder.
9. The rights of indemnification and to receive advancement of expenses
as provided by this Agreement shall not be deemed exclusive of any other rights
to which an Indemnitee may at any time be entitled under applicable law, the
Indemnitor's governing documents, any agreement, a vote of the partners or a
resolution of disinterested directors, or otherwise.
10. This Agreement shall be binding upon the Indemnitor and its
successors and assigns and shall inure to the benefit of the Indemnitees and the
respective legal representatives, heirs, executors and administrators.
11. 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 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
(b) to the fullest extent possible, the provisions of
this Agreement (including, without limitation, each
portion of any section 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 by the provision
held invalid, illegal or unenforceable.
12. This Agreement may be executed in one or more counterparts, each of
which shall be deemed an original but all of which shall constitute one and the
same document.
13. This Agreement constitutes the entire agreement and understanding
between the parties hereto in reference to all the matters herein agreed upon.
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.
14. 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, (ii) mailed by
3
certified or registered mail with postage prepaid, on the third business day
after the date on which it is so mailed, or (iii) sent by recognized overnight
courier, on the next business day after the date on which it is so sent:
If to Indemnitee, to: As shown with the Indemnitee's
signature below.
If to Indemnitor, to: 00000 Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxx, Xxxxxxxx 00000
or to such other address as may have been furnished to the Indemnitee by
Indemnitor or to Indemnitor by the Indemnitee, as the case may be.
15. This Agreement shall be governed and construed in accordance with
the laws of the State of Maryland and shall take effect as a sealed instrument.
IN WITNESS WHEREOF, the undersigned has caused this Agreement to be
executed as of the day of , 200_.
INDEMNITEE GOVERNMENT PROPERTIES TRUST, INC.
By:
---------------------------------- ---------------------------------
Name Its:
----------------------------------
Signature
----------------------------------
Address
4
