INDEMNIFICATION AGREEMENT
INDEMNIFICATION AGREEMENT (the "Agreement") between Metropolis Realty
Trust, Inc., a Maryland corporation (the "Company"), and [___________________],
a director and/or an officer of the Company (the "Indemnitee"), dated as of
____________, 1996.
WHEREAS, it is essential that the Company retain as directors and
officers the most capable persons available.
WHEREAS, both the Company and Indemnitee recognize the increased
risk of litigation and other claims being asserted against directors/officers of
companies in today's environment.
WHEREAS, the Indemnitee has agreed to serve as a director and/or an
officer of the Company.
WHEREAS, the Articles of Incorporation (the "Articles of
Incorporation") and the By-Laws of the Company (the "By-Laws") provide for
certain indemnification of the officers and directors of the Company.
WHEREAS, in recognition of Indemnitee's need for substantial
protection against personal liability and to provide Indemnitee with specific
contractual assurance that the protection provided by the Articles of
Incorporation will be available to Indemnitee (regardless of, among other
things, any amendment to or revocation of the Articles of Incorporation or
By-Laws, or any Change in Control (as herein defined), the Company wishes to
provide in this Agreement for the indemnification of and the advancement of
expenses to Indemnitee to the fullest extent permitted by law and as set forth
in this Agreement, and, to the extent insurance is maintained, for the continued
coverage of Indemnitee under the Company's directors' and officers' liability
insurance policies.
NOW, THEREFORE, in consideration of the premises and intending to be
legally bound hereby, the parties hereto agree as follows:
Section 1. Indemnification.
In the event that the Indemnitee was or is made a party to or
witness or other participant in, or is threatened to be made a party to or
witness or other participant in, or is or was otherwise involved, in any action,
suit, proceeding, arbitration, alternate dispute resolution mechanism, or any
inquiry or investigation, whether civil, criminal, administrative or
investigative (hereinafter a "Proceeding"), by reason of the fact that the
Indemnitee or a person of whom the Indemnitee is the legal representative is or
was a director, officer or
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employee of the Company or is or was serving at the request of the Company as a
director, officer, employee or agent of another corporation or of a partnership,
joint venture, trust or other enterprise, including service with respect to
employee benefit plans, whether the basis of such actual or threatened
proceeding is alleged action in an official capacity as a director, officer,
employee or agent or in any other capacity while serving as a director, officer,
employee or agent, the Indemnitee shall be indemnified and held harmless by the
Company to the fullest extent authorized by the General Corporation Law of
Maryland (the "GCL"), the Articles of Incorporation and the By-Laws as the same
exist or may hereafter be amended (but, in the case of any such amendment, only
to the extent that such amendment permits the Company to provide broader
indemnification rights than said law permitted the Company to provide prior to
such amendment), against all expense, liability and loss (including, without
limitation, attorneys' fees, judgments, fines, ERISA excise taxes or penalties
and amounts paid or to be paid in settlement) reasonably incurred or suffered by
the Indemnitee in connection therewith, and such indemnification shall continue
as to the Indemnitee if the Indemnitee ceases to be a director, officer,
employee or agent and shall inure to the benefit of the Indemnitee's heirs,
executors and administrators; provided, however, that, except as provided in
Section 2 with respect to proceedings seeking to enforce rights to
indemnification, the Company shall indemnify the Indemnitee in connection with a
proceeding (or part thereof) initiated by the Indemnitee only if such proceeding
(or part thereof) was authorized by the Board of Directors of the Company.
Section 2. Suit to Recover.
If a claim under Section 1 is not paid in full by the Company within
thirty days after a written claim 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 and, if successful in whole or in part, the
Indemnitee shall be entitled to be paid also the expense of prosecuting such
claim. It shall be a defense to any such action (other than an action brought to
enforce a claim for expense incurred in defending any actual or threatened
proceeding in advance of its final disposition where the required undertaking,
if any is required, has been tendered to the Company) that the Indemnitee has
not met the standards of conduct which make it permissible under the GCL for the
Company to indemnify the Indemnitee for the amount claimed, but the burden of
proving such defense shall be on the Company. Neither the failure of the Company
(including its Board of Directors, independent legal counsel or stockholders) to
have made a determination prior to the commencement of such action that
indemnification of the Indemnitee is proper in the circumstances because the
Indemnitee has met the applicable standard of conduct set forth in the GCL, nor
an actual determination by the Company (including its Board of Directors,
independent legal counsel or stockholders) that the Indemnitee has not met such
applicable standard of conduct, shall be a defense to the action or create a
presumption that the Indemnitee has not met the applicable standard of conduct.
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Section 3. Change in Control.
Following any "change in control" of the Company of the type
required to be reported under Item 1 of Form 8-K promulgated under the
Securities Exchange Act of 1934, as amended, any determination as to entitlement
to indemnification shall be made by Independent Legal Counsel selected by the
Indemnitee, such Independent Legal Counsel to be retained by the Board of
Directors on behalf of the Company. "Independent Legal Counsel" shall mean an
attorney or firm of attorneys who shall not have otherwise performed services
for the Company or Indemnitee within the last five years (other than with
respect to matters concerning the rights of Indemnitee under this Agreement, or
of other indemnitees under similar indemnity agreements).
Section 4. Insurance.
In the event that the Company maintains insurance to protect itself
and any director or officer of the Company against any expense, liability or
loss, such insurance shall cover the Indemnitee to at least the same extent as
any other director or officer of the Company.
Section 5. Advance of Expenses.
The right to indemnification conferred by this Agreement shall
include the right to be paid by the Company the expenses incurred in defending
any actual or threatened proceeding in advance of its final disposition;
provided, however, that, if the GCL requires, the payment of such expenses
incurred by the Indemnitee in advance of the final disposition of any actual or
threatened proceeding shall be made only upon delivery to the Company of an
undertaking, by or on behalf of the Indemnitee, to repay all amounts so advanced
if it shall ultimately be determined that the Indemnitee is not entitled to be
indemnified under this Agreement or otherwise.
Section 6. Indemnification for Additional Expenses.
The Company shall indemnify Indemnitee against any and all expenses
(including reasonable attorneys' fees) and, if requested by Indemnitee, shall
(within ten business days of such request) advance such expenses to Indemnitee,
which are incurred by Indemnitee in connection with any action brought by
Indemnitee for (i) indemnification or advance payment of expenses by the Company
under this Agreement, the Charter or any other agreement, certificate of
incorporation or Company by-law now or hereafter in effect relating to claims
and/or (ii) recovery under any directors' and officers' liability insurance
policies maintained by the Company; provided, however, that the payment of
expenses incurred by Indemnitee in advance of the final disposition of such
action will be made only upon receipt by the Company of an undertaking by the
Indemnitee to repay all amounts advanced if it should be ultimately determined
that the Indemnitee is not entitled to be indemnified under this Agreement or
otherwise.
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Section 7. Partial Indemnity.
If Indemnitee is entitled under any provision of this Agreement to
indemnification by the Company for a portion of the expenses, judgments, fines,
penalties and amounts paid in settlement of a claim but not, however, for the
total amount thereof, the Company shall nevertheless indemnify Indemnitee for
the portion thereof to which Indemnitee is entitled. Moreover, notwithstanding
any other provision of this Agreement, to the extent that Indemnitee has been
successful on the merits or otherwise in defense of any or all claims or in
defense of any issue or matter therein, including dismissal without prejudice,
Indemnitee shall be indemnified against all expenses incurred in connection
therewith.
Section 8. Burden of Proof.
In connection with any determination by the Reviewing Party or
otherwise as to whether Indemnitee is entitled to be indemnified hereunder, the
burden of proof shall be on the Company to establish that Indemnitee is not so
entitled. "Reviewing Party" shall mean any person or group of persons consisting
of a member or members of the Company's Board of Directors or any other person
or body appointed by the Board who is not a party to the particular Proceeding
for which Indemnitee is seeking indemnification, or Independent Legal Counsel,
who shall determine whether Indemnitee is entitled to be indemnified hereunder.
Section 9. No Presumptions.
For purposes of this Agreement, the termination of any claim,
action, suit or proceeding, by judgment, order, settlement (whether with or
without court approval) or conviction, or upon a plea of nolo contendere, or its
equivalent, shall not create a presumption that Indemnitee did not meet any
particular standard of conduct or have any particular belief or that a court has
determined that indemnification is not permitted by applicable law. In addition,
neither the failure of a Reviewing Party to have made a determination as to
whether Indemnitee has met any particular standard of conduct or had any
particular belief, nor an actual determination by a Reviewing Party that
Indemnitee has not met such standard of conduct or did not have such belief,
prior to the commencement of legal proceedings by Indemnitee to secure a
judicial determination that Indemnitee should be indemnified under applicable
law shall be a defense to Indemnitee's claim or create a presumption that
Indemnitee has not met any particular standard of conduct or did not have any
particular belief.
Section 10. Non-Exclusivity.
The rights conferred in this Agreement shall not be exclusive of any
other right which the Indemnitee may have or hereafter acquire under any
statute, provision of the Articles of Incorporation, By-Laws, agreement, vote of
stockholders or of disinterested directors or otherwise.
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Section 11. 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
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.
Section 12. No Duplication of Payments.
The Company shall not be liable under this Agreement to make any
payment in connection with any claim made against Indemnitee to the extent
Indemnitee has otherwise actually received payment (under any insurance policy,
the Articles of Incorporation or otherwise) of the amounts otherwise
indemnifiable hereunder.
Section 13. Binding Effect.
This Agreement shall be binding upon and inure to the benefit of and
be enforceable by the parties hereto and their respective successors, assigns,
including any direct or indirect successor by purchase, merger, consolidation or
otherwise to all or substantially all of the business and/or assets of the
Company, spouses, heirs, executors and personal and legal representatives. This
Agreement shall continue in effect regardless of whether Indemnitee continues to
serve as an officer or director of the Company or of any other enterprise at the
Company's request.
Section 14. Severability.
The provisions of this Agreement shall be severable in the event
that any of the provisions hereof (including any provision within a single
section, paragraph or sentence) is held by a court of competent jurisdiction to
be invalid, void or otherwise unenforceable in any respect, and the validity and
enforceability of any such provision in every other respect and of the remaining
provisions hereof shall not be in any way impaired and shall remain enforceable
to the fullest extent permitted by law.
Section 15. Amendment.
This Agreement may not be changed, modified or amended except in
writing signed by the parties hereto.
Section 16. Governing Law.
This Agreement shall be governed and construed in accordance with
the law of the State of New York, without regard to its conflict of laws
doctrine.
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IN WITNESS WHEREOF, the Company and the Indemnitee have executed
this Agreement as of the day and year first above written.
COMPANY:
METROPOLIS REALTY TRUST, INC.
By:
Name:
Title:
INDEMNITEE:
Name:
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