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EXHIBIT 10.21
OFFICER AND TRUSTEE INDEMNIFICATION AGREEMENT
This Agreement is made as of the 18th day of July, 1997, by and between
CCA Prison Realty Trust, a Maryland real estate investment trust (the
"Company"), and the undersigned Officer or Trustee of the Company (the
"Indemnitee").
WHEREAS, Indemnitee is currently serving as an Officer or Trustee of
the Company and the Company wishes the Indemnitee to continue in such capacity.
The Indemnitee is willing, under certain circumstances, to continue serving as
an Officer Trustee of the Company;
WHEREAS, Maryland Code Annotated, Courts of Judicial Proceeding,
Article 5-350, provides that a real estate investment trust's Declaration of
Trust may include any provision limiting the liability of its officers or
trustees to the trust or its shareholders for money damages except for liability
resulting from (a) actual receipt of an improper benefit or profit in money,
property or services or (b) active and deliberate dishonesty established by a
final judgment as being material to the cause of action.
WHEREAS, the Company's Amended and Restated Declaration of Trust
provides that to the fullest extent allowed by Maryland law, no officer trustee
of the Company shall be liable to the Company or its shareholders for money
damages;
WHEREAS, in addition, the Bylaws of the Company provide that the
officer trustees of the Company shall be entitled to indemnification on the
terms and conditions set forth therein; and
WHEREAS, Indemnitee has indicated that he does not regard the foregoing
provisions of the Company's Declaration of Trust and Bylaws as adequate to
protect him against the risks associated with his service to the Company and has
noted that the Company's directors' and officers' liability insurance policy has
numerous exclusions and a deductible and thus does not adequately protect
Indemnitee. In this connection the Company and the Indemnitee now agree they
should enter into this Indemnification Agreement in order to provide greater
protection to Indemnitee against such risks of service to the Company.
NOW, THEREFORE, in order to induce the Indemnitee to continue to serve
as a Trustee of the Company and in consideration of his continued service, the
Company hereby agrees to indemnify the Indemnitee as follows:
1. Indemnity. The Company will indemnify the Indemnitee, his
executors, administrators or assigns, for any Expenses (as
defined below) which the Indemnitee is or becomes legally
obligated to pay in connection with any Proceeding. As used in
this Agreement the term "Proceeding" shall include any
threatened, pending or completed claim, action, suit or
proceeding, whether brought by or in the right of the Company
or otherwise and whether of a civil, criminal, administrative
or investigative nature, in which the Indemnitee may be or may
have been involved as a party or otherwise, by
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reason of the fact that Indemnitee is or was a director or
officer of the Company, by reason of any actual or alleged
error or misstatement or misleading statement made or suffered
by the Indemnitee, by reason of any action taken by him or of
any inaction on his part while acting as such director or
officer, or by reason of the fact that he was serving at the
request of the Company as a director, trustee, officer,
employee or agent of another corporation, partnership, joint
venture, trust or other enterprise; provided, that in each
such case Indemnitee acted in good faith and in a manner which
he reasonably believed to be in or not opposed to the best
interests of the Company, and, in the case of a criminal
proceeding, in addition had no reasonable cause to believe
that his conduct was unlawful. As used in this Agreement, the
term "other enterprise" shall include (without limitation)
employee benefit plans and administrative committees thereof,
and the term "fines" shall include (without limitations) any
excise tax assessed with respect to any employee benefit plan.
2. Expenses. As used in this Agreement, the term "Expenses" shall
include, without limitation, damages, judgments, fines,
penalties, settlements and costs, attorneys' fees and
disbursements and costs of attachment or similar bonds,
investigations, and any expenses of establishing a right to
indemnification under this Agreement.
3. Enforcement. If a claim or request under this Agreement is not
paid by the Company, or on its behalf, within thirty days
after a written claim or request has been received by the
Company, the Indemnitee may at any time thereafter bring suit
against the Company to recover the unpaid amount of the claim
or request and if successful in whole or in part, the
Indemnitee shall be entitled to be paid also the Expenses of
prosecuting such suit. The Company shall have the right to
recoup from the Indemnitee the amount of any item or items of
Expenses theretofore paid by the Company pursuant to this
Agreement, to the extent such Expenses are not reasonable in
nature or amounts; provided, however, that the Company shall
have the burden of proving such Expenses to be unreasonable.
The burden of proving that the Indemnitee is not entitled to
indemnification for any other reason shall be upon the
Company.
4. Subrogation. In the event of payment under this Agreement, the
Company shall be subrogated to the extent of such payment to
all of the rights of recovery of the Indemnitee, who shall
execute all papers required and shall do everything that may
be necessary to secure such rights, including the execution of
such documents necessary to enable the Company effectively to
bring suit to enforce such rights.
5. Exclusions. The Company shall not be liable under this
Agreement to pay any Expenses in connection with any claim
made against the Indemnitee:
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(a) to the extent that payment is actually made to the
Indemnitee under a valid, enforceable and collectible
insurance policy;
(b) to the extent that the Indemnitee is indemnified and
actually paid otherwise than pursuant to this
Agreement;
(c) in connection with a judicial action by or in the
right of the Company, in respect of any claim, issue
or matter as to which the Indemnitee shall have been
adjudged to be liable for gross negligence or
intentional misconduct in the performance of his duty
to the Company unless and only to the extent that any
court in which such action was brought shall
determine upon application that, despite the
adjudication of liability but in view of all the
circumstances of the case, the Indemnitee is fairly
and reasonably entitled to indemnity for such
expenses as such court shall deem proper;
(d) if it is proved by final judgment in a court of law
or other final adjudication to have been based upon
or attributable to the Indemnitee's in fact having
gained any personal profit or advantage to which he
was not legally entitled;
(e) for a disgorgement of profits made from the purchase
and sale by the Indemnitee of securities pursuant to
Section 16(b) of the Securities Exchange Act of 1934
and amendments thereto or similar provisions of any
state statutory law or common law;
(f) brought about or contributed to by the dishonesty of
the Indemnitee seeking payment hereunder; however,
notwithstanding the foregoing, the Indemnitee shall
be protected under this Agreement as to any claims
upon which suit may be brought against him by reason
of any alleged dishonesty on his part, unless a
judgment or other final adjudication thereof adverse
to the Indemnitee shall establish that he committed
(i) acts of active and deliberate dishonesty, (ii)
with actual dishonest purpose and intent, (iii) which
acts were material to the cause of action so
adjudicated; or
(g) for any judgment, fine or penalty which the Company
is prohibited by applicable law from paying as
indemnity or for any other reason.
6. Indemnification of Expenses or Successful Party.
Notwithstanding any other provision of this Agreement, to the
extent that the Indemnitee has been
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successful on the merits or otherwise in defense of any
Proceeding or in defense of any claim, issue or matter
therein, including dismissal without prejudice, Indemnitee
shall be indemnified against any and all Expenses incurred in
connection therewith.
7. Partial Indemnification. If the Indemnitee is entitled under
any provision of this Agreement to indemnification by the
Company for some or a portion of Expenses, but not for the
total amount thereof, the Company shall nevertheless indemnify
the Indemnitee for the portion of such Expenses to which the
Indemnitee is entitled.
8. Advance of Expenses. Expenses incurred by the Indemnitee in
connection with any Proceeding, except the amount of any
settlement, shall be paid by the Company in advance upon
request of the Indemnitee that the Company pay such Expenses.
The Indemnitee hereby undertakes to repay to the Company the
amount of any Expenses theretofore paid by the Company to the
extent that it is ultimately determined that such Expenses
were not reasonable or that the Indemnitee is not entitled to
indemnification.
9. Approval of Expenses. No Expenses for which indemnity shall be
sought under this Agreement, other than those in respect of
judgments and verdicts actually rendered, shall be incurred
without the prior consent of the Company, which consent shall
not be unreasonably withheld.
10. Notice of Claim. The Indemnitee, as a condition precedent to
his right to be indemnified under this Agreement, shall give
to the Company notice in writing as soon as practicable of any
claim made against him for which indemnity will or could be
sought under this Agreement. Notice to the Company shall be
given at its principal office and shall be directed to the
Secretary (or such other address as the Company shall
designate in writing to the Indemnitee); notice shall be
deemed received if sent by prepaid mail properly addressed,
the date of such notice being the date postmarked. In
addition, the Indemnitee shall give the Company such
information and cooperation as it may reasonable require and
as shall be within the Indemnitee's power.
11. Counterparts. This Agreement may be executed in any number of
counterparts, all of which taken together shall constitute one
instrument.
12. Indemnification Hereunder Not Exclusive. Nothing herein shall
be deemed to diminish or otherwise restrict the Indemnitee's
right to indemnification under any provision of the
Declaration of Trust or Bylaws of the Company and amendments
thereto or under law.
13. Governing Law. This Agreement shall be governed by and
construed in
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accordance with the internal laws of the State of Maryland.
14. Saving Clause. Wherever there is conflict between any
provision of this Agreement and any applicable present or
future statute, law or regulations contrary to which the
Company and the Indemnitee have no legal right to contract,
the latter shall prevail, but in such event the affected
provisions of this Agreement shall be curtailed and restricted
only to the extent necessary to bring them within applicable
legal requirements.
15. Coverage. The provisions of this Agreement shall apply with
respect to the Indemnitee's service as an Officer or Trustee
of the Company prior to the date of this Agreement and with
respect to all periods of such service after the date of this
Agreement, even though the Indemnitee may have ceased to be an
Officer or Trustee of the Company.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and signed as of the day and year first above written.
CCA PRISON REALTY TRUST
By:
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Its:
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OFFICER OR TRUSTEE
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