Contract
Exhibit 10.1
XXXXXXX
PROPERTIES, INC.
This
INDEMNIFICATION AGREEMENT (the “Agreement”) is made and entered into as of
[EXECUTION DATE], by and between Xxxxxxx Properties, Inc., a Maryland
corporation (the “Company”), and [NAME OF INDEMNITEE] (the
“Indemnitee”).
WHEREAS,
it is essential that the Company be able to retain and attract as directors and
officers the most capable persons available;
WHEREAS,
the Company’s Bylaws permit it to enter into indemnification arrangements and
agreements;
WHEREAS,
the Company desires to provide the Indemnitee with specific contractual
assurances of the Indemnitee’s rights to full indemnification against litigation
risks and expenses (regardless, among other things, of any amendment to or
revocation of the Company’s Bylaws or any change in the ownership of the Company
or the composition of its Board of Directors) and, to the extent insurance is
available, the coverage of the Indemnitee under the Company’s directors and
officers liability insurance policies; and
WHEREAS,
the Indemnitee is relying upon the rights afforded under this Agreement in
accepting Indemnitee’s position as a director or officer of the
Company.
NOW,
THEREFORE, in consideration of the mutual promises and covenants contained
herein, the Company and Indemnitee do hereby covenant and agree as
follows:
1. Definitions.
(a) “Corporate
Status” describes the status of a person who is serving or has served (i) as a
director, officer or employee of the Company, (ii) in any capacity with respect
to any employee benefit plan of the Company, or (iii) as a director, partner,
member, trustee, officer, employee, or agent of any other Entity at the request
of the Company.
(b) “Entity”
shall mean any corporation, partnership, limited liability company, joint
venture, trust, foundation, association, organization or other legal entity and
any group or division of the Company or any of its subsidiaries.
(c) “Expenses”
shall mean all reasonable fees, costs and expenses actually and reasonably
incurred by the Indemnitee in connection with any Proceeding (as defined below),
including, without limitation, attorneys’ fees, disbursements and retainers
(including, without limitation, any such fees, disbursements and retainers
incurred by Indemnitee pursuant to Section 12 of this Agreement), fees and
disbursements of expert witnesses, private investigators and professional
advisors (including, without limitation, accountants), court costs, transcript
costs, fees of experts, travel expenses, duplicating, printing and binding
costs, telephone and fax transmission charges, postage, delivery services,
secretarial services, and other disbursements and expenses.
(d) “Indemnifiable
Expenses,” “Indemnifiable Liabilities” and “Indemnifiable Amounts” shall have
the meanings ascribed to those terms in Section 4 below.
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(f) “Proceeding”
shall mean any threatened, pending or completed claim, action, suit,
arbitration, alternate dispute resolution process, investigation, administrative
hearing, appeal, or any other proceeding, whether civil, criminal,
administrative or investigative, whether formal or informal, including a
proceeding initiated by Indemnitee pursuant to Section 12 of this Agreement to
enforce Indemnitee’s rights hereunder.
2. Services of
Indemnitee. In consideration of the Company’s covenants and
commitments hereunder, Indemnitee agrees to serve as a director or officer of
the Company. However, this Agreement shall not impose any obligation
on Indemnitee or the Company to continue Indemnitee’s service to the Company
beyond any period otherwise required by law or by other agreements or
commitments of the parties, if any.
3. Agreement to
Indemnify. The Company shall indemnify Indemnitee, and advance
Indemnifiable Expenses to, Indemnitee (a) as specifically provided in this
Agreement and (b) otherwise to the fullest extent permitted by Maryland law in
effect on the date hereof and as amended from time to time; provided, however,
that no change in Maryland law shall have the effect of reducing the benefits
available to Indemnitee hereunder based on Maryland law as in effect on the date
hereof. The rights of Indemnitee provided in this Section shall
include, but shall not be limited to, the rights set forth in the other Sections
of this Agreement, including any additional indemnification permitted by Section
2-418(g) of the Maryland General Corporation Law (the “MGCL”).
4. Proceedings Other Than
Proceedings by or in the Right of the Company. Indemnitee
shall be entitled to the rights of indemnification provided in this Section 4
if, by reason of [his/her] Corporate Status, [he/she] is, or is threatened to
be, made a party to any threatened, pending, or completed Proceeding, other than
a Proceeding by or in the right of the Company. Pursuant to this
Section 4, Indemnitee shall be indemnified by the Company against all Expenses
and Liabilities actually and reasonably incurred by [him/her] or on [his/her]
behalf in connection with a Proceeding by reason of [his/her] Corporate Status
(referred to herein as “Indemnifiable Expenses” and “Indemnifiable Liabilities,”
respectively, and collectively as “Indemnifiable Amounts”) unless it is
established that (i) the act or omission of the Indemnitee was material to the
matter giving rise to the Proceeding and (a) was committed in bad faith or (b)
was the result of active and deliberate dishonesty, (ii) the Indemnitee actually
received an improper personal benefit in money, property or services, or (iii)
in the case of any criminal Proceeding, the Indemnitee had reasonable cause to
believe that [his/her] conduct was unlawful.
5. Proceedings by or in the
Right of the Company. Indemnitee shall be entitled to the
rights of indemnification provided in this Section 5 if, by reason of [his/her]
Corporate Status, [he/she] is made a party to any threatened, pending or
completed Proceeding brought by or in the right of the Company to procure a
judgment in its favor. Pursuant to this Section 5, Indemnitee shall
be indemnified against all amounts paid in settlement and all Indemnifiable
Expenses actually and reasonably incurred by [him/her] or on [his/her] behalf in
connection with such Proceeding unless
it is established that (i) the act or omission of the Indemnitee was material to
the matter giving rise to such a Proceeding and (a) was committed in bad faith
or (b) was the result of active and deliberate dishonesty or (ii) the Indemnitee
actually received an improper personal benefit in money, property or services;
provided, however, that no
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7. Court-Ordered
Indemnification. A court of appropriate jurisdiction, upon
application of a director or officer and such notice as the court shall require,
may order indemnification in the following circumstances:
(a) if it
determines a director or officer is entitled to Indemnifiable Amounts under
Section 2-418(d)(1) of the MGCL, the court shall order indemnification, in which
case the director or officer shall be entitled to recover the expenses of
securing such Indemnifiable Amounts; or
(b) if it
determines that the director or officer is fairly and reasonably entitled to
indemnification in view of all the relevant circumstances, whether or not the
director or officer (i) has met the standards of conduct set forth in Section
2-418(b) of the MGCL or (ii) has been adjudged liable for receipt of an improper
personal benefit under Section 2-148(c) of the MGCL, the court may order such
indemnification as the court shall deem proper. However,
indemnification with respect to any Proceeding by or in the right of the Company
or in which liability shall have been adjudged in the circumstances described in
Section 2-418(c) of the MGCL shall be limited to Indemnifiable
Expenses.
8. Procedure for Payment of
Indemnifiable Amounts. Indemnitee shall submit to the Company
a written request specifying the applicable Indemnifiable Amounts for which
Indemnitee seeks payment under this Agreement and the basis for the
claim. Subject to the exceptions set forth in Sections 4 and 5,
the Company shall pay such applicable Indemnifiable Amounts to Indemnitee within
twenty (20) calendar days of receipt of the request. At the request
of the Company, Indemnitee shall furnish such documentation and information as
are reasonably available to Indemnitee and necessary to establish that
Indemnitee is entitled to indemnification hereunder.
9. Indemnification for Expenses
of a Party Who is Wholly or Partly Successful. Notwithstanding
any other provision of this Agreement, and without limiting any such
provision to
the extent that Indemnitee is, by reason of Indemnitee’s Corporate Status, a
party to and is successful, on the merits or otherwise, in any Proceeding,
Indemnitee shall be indemnified for all Indemnifiable Expenses reasonably
incurred by Indemnitee or on Indemnitee’s behalf in connection
therewith. Without limiting any other rights of Indemnitee in this
Agreement, if Indemnitee is not wholly successful in such Proceeding but is
successful, on the merits or otherwise, as to one or more but less than all
claims, issues or matters in such Proceeding, the Company shall indemnify
Indemnitee for all Indemnifiable Expenses reasonably incurred by Indemnitee or
on Indemnitee’s behalf in connection with each successfully resolved claim,
issue or matter. For purposes of this Agreement, the termination of
any claim, issue or matter in such a Proceeding by dismissal, with or without
prejudice, shall be deemed to be a successful result as to such claim, issue or
matter.
10. Effect of Certain
Resolutions. Neither the settlement nor termination of any
Proceeding nor the failure of the Company to award indemnification or to
determine that indemnification is payable shall create an adverse presumption
that Indemnitee is not entitled to indemnification hereunder. In
addition, the termination of any Proceeding by judgment, order or settlement
shall not create a presumption that the act or omission of the Indemnitee was
material
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12. Agreement to Advance Interim
Expenses. The Company shall pay to Indemnitee all
Indemnifiable Expenses incurred by Indemnitee in connection with any Proceeding,
including a Proceeding by or in the right of the Company, in advance of the
final disposition of such Proceeding, if Indemnitee furnishes the Company with a
written affirmation by the Indemnitee of the Indemnitee’s good faith belief that
the standard of conduct necessary for indemnification by the Company has been
met and a written undertaking by or on behalf of the Indemnitee to repay the
amount of such Indemnifiable Expenses advanced to Indemnitee if it is finally
determined by a court of competent jurisdiction that Indemnitee is not entitled
under this Agreement to indemnification with respect to such Indemnifiable
Expenses. The terms and conditions of such undertaking shall be
determined by a quorum of the disinterested members of the Board of Directors,
if any, acting in good faith and as required by the proper exercise of their
duties or, if not available, then by the written opinion of independent legal
counsel or by the Company’s stockholders.
13. Procedure for Payment of
Interim Expenses. Indemnitee shall submit to the Company a
written request specifying the Indemnifiable Expenses for which Indemnitee seeks
an advancement under Section 10 of this Agreement, together with
documentation evidencing that Indemnitee has incurred such Indemnifiable
Expenses. Payment of Indenmifiable Expenses under Section 10
shall be made no later than twenty (20) calendar days after the Company’s
receipt of such request and the affirmation and undertaking required by
Section 10.
14. Remedies of
Indemnitee.
(a) Right to Petition
Court. In the event that Indemnitee makes a request for
payment of Indemnifiable Amounts under Sections 3, 4 and 5 above or a request
for an advancement of Indemnifiable Expenses under Sections 10 and 11 above and
the Company fails to make such payment or advancement in a timely manner
pursuant to the terms of this Agreement, Indemnitee may petition the appropriate
judicial authority to enforce the Company’s obligations under this
Agreement.
(b) Burden of
Proof. In any judicial proceeding brought under Section 12(a)
above, the Company shall have the burden of proving that Indemnitee is not
entitled to payment of Indemnifiable Amounts hereunder.
(c) Expenses. The
Company agrees to reimburse Indemnitee in full for any Expenses incurred by
Indemnitee in connection with investigating, preparing for, litigating,
defending or settling any action brought by Indemnitee under Section 12(a)
above, or in connection with any claim or counterclaim brought by the Company in
connection therewith.
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(e) Failure to Act Not a
Defense. The failure of the Company (including its Board of
Directors or any committee thereof, independent legal counsel, or stockholders)
to make a determination concerning the permissibility of the payment of
Indemnifiable Amounts or the advancement of Indemnifiable Expenses under this
Agreement shall not be a defense in any action brought under Section 12(a)
above, and shall not create a presumption that such payment or advancement is
not permissible.
15. Representations and
Warranties of the Company. The Company hereby represents and
warrants to Indemnitee as follows:
(a) Authority. The
Company has all necessary corporate power and authority to enter into, and be
bound by the terms of, this Agreement, and the execution, delivery and
performance of the undertakings contemplated by this Agreement have been duly
authorized by the Company.
(b) Enforceability. This
Agreement, when executed and delivered by the Company in accordance with the
provisions hereof, shall be a legal, valid and binding obligation of the
Company, enforceable against the Company in accordance with its terms, except as
such enforceability may be limited by applicable bankruptcy, insolvency,
moratorium, reorganization or similar laws affecting the enforcement of
creditors’ rights generally or general equitable principles, and to the extent
limited by applicable federal or state securities laws.
16. Insurance. The
Company will use commercially reasonable efforts to obtain and maintain a policy
or policies of insurance with reputable insurance companies providing the
members of the Board of Directors with coverage for losses from wrongful acts,
and to ensure the Company’s performance of its indemnification obligations under
this Agreement. In all policies of director and officer liability
insurance, Indemnitee shall be named as an insured in such a manner as to
provide Indemnitee at least the same rights and benefits as are accorded to the
most favorably insured of the Company’s officers and
directors. Notwithstanding the foregoing, if the Company, after
employing commercially reasonable efforts as provided in this Section,
determines in good faith that such insurance is not reasonably available, if the
premium costs for such insurance are disproportionate to the amount of coverage
provided, or if the coverage provided by such insurance is limited by exclusions
so as to provide an insufficient benefit, the Company shall use its commercially
reasonable efforts to obtain and maintain a policy or policies of insurance with
coverage having features as similar as practicable to those described
above.
17. Fees and
Expenses. During the term of the Indemnitee’s service as a
director or officer, the Company shall promptly reimburse the Indemnitee for all
expenses incurred by [him/her] in connection with [his/her] service as a
director or officer or member of any board committee or otherwise in connection
with the Company’s business.
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19. Successors. This
Agreement shall be (a) binding upon all successors and assigns of the Company
(including any transferee of all or a substantial portion of the business, stock
and/or assets of the Company and any direct or indirect successor by merger or
consolidation or otherwise by operation of law) and (b) binding on and shall
inure to the benefit of the heirs, personal representatives, executors and
administrators of Indemnitee. This Agreement shall continue for the
benefit of Indemnitee and such heirs, personal representatives, executors and
administrators after Indemnitee has ceased to have Corporate
Status.
20. Subrogation. In
the event of any payment of Indemnifiable Amounts under this Agreement, the
Company shall be subrogated to the extent of such payment to all of the rights
of contribution or recovery of Indemnitee against other persons, and Indemnitee
shall take, at the request of the Company, all reasonable action necessary to
secure such rights, including the execution of such documents as are necessary
to enable the Company to bring suit to enforce such rights.
21. Change in
Law. To the extent that a change in applicable law (whether by
statute or judicial decision) shall permit broader indemnification than is
provided under the terms of the Charter, as amended, or Bylaws of the Company,
as amended, and this Agreement, Indemnitee shall be entitled to such broader
indemnification and this Agreement shall be deemed to be amended to such
extent.
22. Severability. Whenever
possible, each provision of this Agreement shall be interpreted in such a manner
as to be effective and valid under applicable law, but if any provision of this
Agreement, or any clause thereof, shall be determined by a court of competent
jurisdiction to be illegal, invalid or unenforceable, in whole or in part, such
provision or clause shall be limited or modified in its application to the
minimum extent necessary to make such provision or clause valid, legal and
enforceable, and the remaining provisions and clauses of this Agreement shall
remain fully enforceable and binding on the parties.
23. Indemnitee as
Plaintiff. Except as provided in Section 12 of this Agreement
and in the next sentence, Indemnitee shall not be entitled to payment of
Indemnifiable Amounts or advancement of Indemnifiable Expenses with respect to
any Proceeding brought by Indemnitee against the Company, any Entity which it
controls, any director or officer thereof, or any third party, unless (a) the
Proceeding is brought to enforce indemnification under this Agreement or
otherwise or (b) the Company’s Bylaws, as amended, the Charter, as amended, a
resolution of the Board of Directors or an agreement approved by the Board of
Directors to which the Company is party expressly provide
otherwise. This Section shall not apply to affirmative defenses
asserted by Indemnitee in an action brought against Indemnitee.
24. Modifications and
Waiver. Except as provided in Section 19 above with
respect to changes in applicable law which broaden the right of Indemnitee to be
indemnified by the
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26. General
Notices. All notices, requests, demands and other
communications hereunder shall be in writing and shall be deemed to have been
duly given (a) when delivered by hand, (b) when transmitted by facsimile and
receipt is acknowledged, or (c) if mailed by certified or registered mail with
postage prepaid, on the third business day after the date on which it is so
mailed:
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(i) If
to Indemnitee, to:
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[NAME
OF INDEMNITEE]
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[ADDRESS
1]
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[ADDRESS
2]
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[CITY],
[STATE] [ZIP CODE]
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Phone:
__________________
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Facsimile:
__________________
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(ii) If
to the Company, to:
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Xxxxxxx
Properties, Inc.
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000
X. Xxxxx Xxx., Xxx. 0000
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Xxx
Xxxxxxx, XX 00000
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Phone:
__________________
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Facsimile:
__________________
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Attn: [GENERAL
COUNSEL]
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or to
such other address as may have been furnished in the same manner by any party to
the others.
27. Governing
Law. This Agreement shall be governed by and construed and
enforced under the laws of Maryland without giving effect to the provisions
thereof relating to conflicts of law.
28. Agreement
Governs. This Agreement is to be deemed consistent wherever
possible with relevant provisions of the Company’s Bylaws, as amended, and
Charter, as amended; however, in the event of a conflict between this Agreement
and such provisions, the provisions of this Agreement shall
control.
26. Counterparts. This
Agreement may be executed in any number of counterparts and by the parties
hereto in separate counterparts, each of which when so executed shall be deemed
to be an original and all of which taken together shall constitute one and the
same agreement. Each party shall become bound by this Agreement
immediately upon affixing its signature hereto.
[Signature
Page Follows]
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IN WITNESS WHEREOF, the parties hereto have executed this
Indemnification Agreement as of the day and year first above
written.
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COMPANY:
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XXXXXXX
PROPERTIES, INC.
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By:
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/s/
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| Name: | ||
| Title: | ||
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INDEMNITEE
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By
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/s/
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Name:
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[NAME OF INDEMNITEE] | |
