EXHIBIT 10.30
As of July 20, 1999, the Company and the Operating Partnership entered into the
attached indemnification agreement with each of the following directors and
officers of the Company:
Xxxxxxx X. XxXxxxx, Xx. Xxxxxxx X. Xxxxxxx
Xxxxxxx X. Xxxxxxx Xxxxxxx X. Xxxxxxxx
Xxxxxx X. XxXxxxx Xxxxxxx X. Xxxxxx
Xxxxx X. Xxxxxx
Xxxxx X. Xxxxxxxx
Xxxxx X. Xxxxx, Xx.
Xxxxxx Xxxxxx III
INDEMNIFICATION AGREEMENT
AGREEMENT, as of July __, 1999 (the "Agreement"), by and among Summit
Properties Inc., a Maryland corporation (the "Company"), Summit Properties
Partnership, L.P., a Delaware limited partnership (the "Partnership," and
together with the Company, "Summit"), and __________ ("Indemnitee").
WHEREAS, it is essential to the success of Summit to retain and attract as
directors and officers the most capable persons available;
WHEREAS, Indemnitee has agreed to serve as a director and/or officer of
the Company;
WHEREAS, both Summit and Indemnitee recognize the increased risk of
litigation and other claims being asserted against directors and officers of
public companies in today's environment;
WHEREAS, the Amended and Restated Articles of Incorporation, as amended
(the "Articles"), and the Bylaws (the "Bylaws") of the Company require the
Company to indemnify and advance expenses to its directors and officers to the
fullest extent permitted by law, and Indemnitee has agreed to serve as a
director and/or officer of the Company in part in reliance on such provisions in
the Articles and the Bylaws;
WHEREAS, the Agreement of Limited Partnership of the Partnership, as
amended (the "Partnership Agreement"), requires the Partnership to indemnify and
advance expenses to the directors and officers of the Company, as the general
partner of the Partnership, to the fullest extent permitted by law, and
Indemnitee has agreed to serve as a director and/or officer of the Company in
part in reliance on such provisions in the Partnership Agreement;
WHEREAS, in recognition of Indemnitee's need for substantial protection
against personal liability in order to enhance Indemnitee's continued service to
the Company and its subsidiaries in an effective manner and Indemnitee's
reliance on the foregoing provisions in the Articles, the Bylaws and the
Partnership Agreement, and in part to provide Indemnitee with specific
contractual protections in addition to those protections promised Indemnitee in
the Articles, the Bylaws and the Partnership Agreement and with specific
contractual assurance that the protection promised by such provisions in the
Articles, the Bylaws and the Partnership Agreement will be available to
Indemnitee (regardless of, among other things, any amendment to or revocation of
such provisions in the Articles, the Bylaws and the Partnership Agreement or any
change in the composition of the Company's Board of Directors or any acquisition
transaction relating to Summit), Summit wishes to provide in this Agreement for
the indemnification of and the advancing of expenses to Indemnitee to the
fullest extent permitted by law, in addition to any other right to
indemnification to which Indemnitee may be entitled, 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;
WHEREAS, certain directors and officers of the Company are parties to that
certain Indemnification Agreement, dated as of January 29, 1994, by and among
Summit and the individuals named therein (the "Prior Agreement"); and
WHEREAS, Summit desires to replace and supersede the Prior Agreement with
a new form of agreement for the directors and officers of the Company.
NOW, THEREFORE, in consideration of the premises and of Indemnitee
agreeing to continue to serve as a director and/or officer of the Company, and
intending to be legally bound hereby, the parties agree as follows:
1. Certain Definitions.
(a) Change in Control. A Change in Control shall be deemed to have
occurred upon any of the following events:
(i) The acquisition in one or more transactions by any
"Person" (as the term person is used for purposes of Section 13(d) or 14(d) of
the Securities Exchange Act of 1934, as amended (the "1934 Act")) of "Beneficial
Ownership" (within the meaning of Rule 13d-3 promulgated under the 0000 Xxx) of
twenty percent (20%) or more of the combined voting power of the Company's then
outstanding Voting Securities; provided, however, that for purposes of this
Section 1(a)(i), the Voting Securities acquired directly from the Company by any
Person shall be excluded from the determination of such Person's Beneficial
Ownership of Voting Securities (but such Voting Securities shall be included in
the calculation of the total number of Voting Securities then outstanding); or
(ii) The individuals who, as of the date hereof, are members
of the Board (the "Incumbent Board"), cease for any reason to constitute at
least two-thirds of the Board; provided, however, that if the election, or
nomination for election by the Company's stockholders, of any new director is
hereafter approved by a vote of at least two-thirds of the Incumbent Board, such
new director shall, for purposes of this Agreement, be considered as a member of
the Incumbent Board; or
(iii) Approval by stockholders of the Company of (A) a merger
or consolidation involving the Company if the stockholders of the Company
immediately before such merger or consolidation do not own, directly or
indirectly immediately following such merger or consolidation, more than eighty
percent (80%) of the combined voting power of the outstanding voting securities
of the corporation resulting from such merger or consolidation in substantially
the same proportion as their ownership of the Voting Securities immediately
before such merger or consolidation or (B) a complete liquidation or dissolution
of the Company or an agreement for the sale or other disposition of all or
substantially all of the assets of the Company.
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(iv) Notwithstanding the foregoing, a Change in Control shall
not be deemed to occur solely because twenty percent (20%) or more of the then
outstanding Voting Securities is acquired by (i) a trustee or other fiduciary
holding securities under one or more employee benefit plans maintained by the
Company or any of its subsidiaries or (ii) any corporation which, immediately
prior to such acquisition, is owned directly or indirectly by the stockholders
of the Company in the same proportion as their ownership of stock in the Company
immediately prior to such acquisition. Nor shall a Change in Control be deemed
to occur solely because any Person (the "Subject Person") acquired Beneficial
Ownership of twenty percent (20%) or more of the outstanding Voting Securities
as a result of the subsequent acquisition of Voting Securities by the Company
which, by reducing the number of Voting Securities outstanding, increases the
proportional number of shares Beneficially Owned by the Subject Person; provided
that if a Change in Control would occur (but for the operation of this sentence)
as a result of the acquisition of Voting Securities by the Company, and after
such share acquisition by the Company, the Subject Person becomes the Beneficial
Owner of any additional Voting Securities which increases the percentage of the
then outstanding Voting Securities Beneficially Owned by the Subject Person,
then a Change in Control shall occur.
(b) Claim. Any threatened, pending or completed action, suit or
proceeding, or any inquiry or investigation, whether threatened, commenced or
conducted by the Company, the Partnership or any other party, that Indemnitee in
good faith believes might lead to the institution of any such action, suit or
proceeding, whether civil, criminal, administrative, investigative or other.
(c) Expenses. Expenses consist of attorneys' fees and all other
costs, charges and expenses paid or incurred in connection with investigating,
defending, settling, being a witness in or participating in (including on
appeal), or preparing to defend, be a witness in or participate in, any Claim
relating to any Indemnifiable Event.
(d) Indemnifiable Event. Any event or occurrence related to the fact
that Indemnitee is, was or has agreed to become a director, officer, employee,
agent or fiduciary of the Company, or is, is deemed to be, or was serving or has
agreed to serve in any capacity, at the request of the Company, in any other
corporation, partnership, joint venture, employee benefit plan, trust or other
enterprise, or by reason of anything done or not done by Indemnitee in any such
capacity.
(e) Potential Change in Control. A Potential Change in Control shall
be deemed to have occurred if (i) the Company enters into an agreement or
arrangement, the consummation of which would result in the occurrence of a
Change in Control; (ii) any person (including the Company) publicly announces an
intention to take or begins taking actions which if completed would constitute a
Change in Control; or (iii) the Board adopts a resolution to the effect that,
for purposes of this Agreement, a Potential Change in Control has occurred.
(f) Voting Securities. Any securities of the Company which vote
generally in the election of directors.
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2. Indemnification; Expenses; Procedure.
(a) Basic Indemnification Agreement. In the event Indemnitee was, is
or becomes a party to or witness or other participant in, or is threatened to be
made a party to or witness or other participant in, a Claim by reason of (or
arising in part out of) an Indemnifiable Event, Summit shall indemnify
Indemnitee (without regard to the negligence or other fault of Indemnitee) to
the fullest extent permitted by applicable law, as soon as practicable but in no
event later than thirty (30) days after written demand is presented to Summit,
against any and all Expenses, judgments, fines, penalties, excise taxes and
amounts paid or to be paid in settlement (including all interest, assessments
and other charges paid or payable in connection with or in respect of such
Expenses, judgments, fines, penalties, excise taxes or amounts paid or to be
paid in settlement) of or in connection with such Claim; provided, however, that
Summit shall not be required to indemnify Indemnitee for amounts paid or to be
paid in settlement unless such settlement is approved in advance by the Company,
which approval shall not be unreasonably withheld, or subsequently deemed
reasonable by the Company, a court of appropriate jurisdiction, or an
independent legal counsel chosen and approved by both the Company and
Indemnitee. Summit's obligation to indemnify Indemnitee under this paragraph
shall be deemed mandatory in all cases without regard to the fault or negligence
of Indemnitee unless it is determined, by final adjudication, that the liability
imposed upon Indemnitee was the result of Indemnitee's actual improper receipt
of a personal benefit or profit or of Indemnitee's active and deliberate
dishonesty to Summit. Summit shall indemnify Indemnitee's spouse (whether by
statute or at common law and without regard to the location of the governing
jurisdiction) and children to the same extent and subject to the same
limitations applicable to Indemnitee hereunder for claims arising out of the
status of such person as a spouse or child of Indemnitee, including claims
seeking damages from marital property (including community property) or property
held by such Indemnitee and such spouse or child or property transferred to such
spouse or child, but such indemnity shall not otherwise extend to protect the
spouse or child against liabilities caused by the spouse's or child's own acts.
If Indemnitee makes a request to be indemnified under this Agreement (which
request need not be made prior to the incurrence of any Expenses), the Board of
Directors (acting by majority vote of a quorum consisting of directors who are
not parties to the Claim with respect to the Indemnifiable Event or by majority
vote of a committee of two or more directors who are duly designated to act on
the matter by the full Board, or, if such a quorum is not obtainable and no such
committee has been designated, acting upon an opinion in writing of special
independent legal counsel selected by majority vote of the full Board of
Directors ("Board Action")) shall, as soon as practicable but in no event later
than thirty (30) days after such request, authorize such indemnification.
Notwithstanding anything in the Articles, the Bylaws or the Partnership
Agreement, each as amended from time to time, or this Agreement to the contrary,
following a Change in Control, Indemnitee shall, unless prohibited by law, be
entitled to indemnification pursuant to this Agreement in connection with any
Claim initiated by Indemnitee.
(b) Advancement of Expenses. Notwithstanding anything in the
Articles, the Bylaws, the Partnership Agreement or this Agreement to the
contrary, if so requested by
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Indemnitee, Summit shall advance (within ten (10) business days of such request)
any and all Expenses relating to a Claim to Indemnitee (an "Expense Advance"),
upon the receipt of a written undertaking by or on behalf of Indemnitee (and
without regard to any determination of Indemnitee's financial ability to repay
such Expense Advance) to repay such Expense Advance if a judgment or other final
adjudication adverse to Indemnitee establishes that Indemnitee, with respect to
such Claim, is not eligible for indemnification.
(c) Notice to Insurers. If, at the time of the receipt of a notice
of a Claim pursuant to Section 9 hereof, the Company has directors' and
officers' liability insurance in effect, the Company shall give prompt notice of
the commencement of such proceeding to the insurers in accordance with the
procedures set forth in the respective policies. The Company shall thereafter
take all necessary or desirable action to cause such insurers to pay, on behalf
of Indemnitee, all amounts payable as a result of such proceeding in accordance
with the terms of such policies.
(d) Selection of Counsel. In the event Summit shall be obligated
under Section 2(b) hereof to pay the Expenses of any proceeding against
Indemnitee, Summit, unless Indemnitee determines that a conflict of interest
exists between Indemnitee and Summit with respect to a particular Claim, shall
be entitled to assume the defense of such proceeding, with counsel approved by
Indemnitee, which approval shall not be unreasonably withheld, upon the delivery
to Indemnitee of written notice of its election to do so and of written notice
that it is so obligated. After delivery of such notice, approval of such counsel
by Indemnitee and the retention of such counsel by Summit, Summit will not be
liable to Indemnitee under this Agreement for any fees of counsel subsequently
incurred by Indemnitee with respect to the same proceeding; provided that (i)
Indemnitee shall have the right to employ his own separate counsel in any such
proceeding in addition to or in place of any counsel retained by Summit on
behalf of Indemnitee at Indemnitee's expense; and (ii) if (A) the employment of
counsel by Indemnitee has been previously authorized by the Company, (B)
Indemnitee shall have concluded that there may be a conflict of interest between
Summit and Indemnitee in the conduct of any such defense or (C) Summit shall
not, in fact, have employed counsel to assume the defense of such proceeding,
then the fees and expenses of Indemnitee's counsel shall be at the expense of
Summit.
(e) Litigation Concerning Right to Indemnification. If there has
been no Board Action or Arbitration (as defined in Section 3), or if Board
Action determines that Indemnitee would not be permitted to be indemnified, in
any respect, in whole or in part, in accordance with Section 2(a) of this
Agreement, Indemnitee shall have the right to commence litigation in the court
which is hearing the action or proceeding relating to the Claim for which
indemnification is sought or in any court having subject matter jurisdiction
thereof and in which venue is proper seeking an initial determination by the
court or challenging any Board Action or any aspect thereof, and each of the
Company and the Partnership hereby consent to service of process and to appear
in any such proceeding. Notwithstanding anything in the Articles, the Bylaws,
the Partnership Agreement or this Agreement to the contrary, if Indemnitee has
commenced legal proceedings in a court of competent jurisdiction or
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Arbitration to secure a determination that Indemnitee should be indemnified
under this Agreement, the Articles, the Bylaws, the Partnership Agreement or
applicable law, any Board Action that Indemnitee would not be permitted to be
indemnified in accordance with Section 2(a) of this Agreement shall not be
binding in the event that such legal proceedings are finally adjudicated. Any
Board Action not followed by such litigation or Arbitration shall be conclusive
and binding on Summit and Indemnitee.
3. Change in Control. Summit agrees that if there is a Change in Control,
Indemnitee, by giving written notice to Summit and the American Arbitration
Association (the "Notice"), may require that any controversy or claim arising
out of or relating to this Agreement, or the breach thereof, shall be settled by
arbitration (the "Arbitration") in Charlotte, North Carolina, in accordance with
the Rules of the American Arbitration Association (the "Rules"). The Arbitration
shall be conducted by a panel of three arbitrators selected in accordance with
the Rules within thirty (30) days of delivery of the Notice. The decision of the
panel shall be made as soon as practicable after the panel has been selected,
and the parties agree to use their reasonable efforts to cause the panel to
deliver its decision within ninety (90) days of its selection. Summit shall pay
all fees and expenses of the Arbitration. The Arbitration shall be conclusive
and binding on Summit and Indemnitee, and Summit or Indemnitee may cause
judgment upon the award rendered by the arbitrators to be entered in any court
having jurisdiction thereof.
4. Establishment of Trust. In the event of a Potential Change in Control
or a Change in Control, Summit shall, promptly upon written request by
Indemnitee to the Company, create a trust for the benefit of Indemnitee (a
"Trust") and from time to time, upon written request by or on behalf of
Indemnitee to Summit, shall fund such Trust in an amount, as set forth in such
request, sufficient to satisfy any and all Expenses reasonably anticipated at
the time of each such request to be incurred in connection with investigating,
preparing for and defending any Claim relating to an Indemnifiable Event, and
any and all judgments, fines, penalties and settlement amounts of any and all
Claims relating to an Indemnifiable Event from time to time actually paid or
claimed, reasonably anticipated or proposed to be paid. The terms of the Trust
shall provide that upon a Change in Control (i) the Trust shall not be revoked
or the principal thereof invaded, without the written consent of Indemnitee;
(ii) the trustee of the Trust (the "Trustee") shall advance, within ten (10)
business days of a request by Indemnitee, any and all Expenses to Indemnitee,
not advanced directly by Summit to Indemnitee (and Indemnitee hereby agrees to
reimburse the Trust under the circumstances under which Indemnitee would be
required to reimburse Summit under Section 2(b) of this Agreement); (iii) the
Trust shall continue to be funded by Summit in accordance with the funding
obligation set forth above; (iv) the Trustee shall promptly pay to Indemnitee
all amounts for which Indemnitee shall be entitled to indemnification pursuant
to this Agreement or otherwise; and (v) all unexpended funds in such Trust shall
revert to Summit upon a final determination by Board Action or Arbitration or a
court of competent jurisdiction, as the case may be, that Indemnitee has been
fully indemnified under the terms of this Agreement. The Trustee shall be an
independent third party chosen by Indemnitee. Nothing in this Section 4 shall
relieve Summit of any of its obligations under this Agreement.
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5. Indemnification for Additional Expenses. Summit shall indemnify
Indemnitee against any and all expenses (including, without limitation,
attorneys' fees, subject to Section 20 hereof) and, if requested by Indemnitee,
shall (within ten (10) business days of such request) advance such expenses to
Indemnitee, which are incurred by Indemnitee in connection with any claim
asserted by or action brought by Indemnitee for (i) indemnification or advance
payment of Expenses by the Company under applicable law, the Articles, the
Bylaws, the Partnership Agreement, this Agreement, or any other agreement now or
hereafter in effect relating to Claims for Indemnifiable Events and/or (ii)
recovery under any directors' and officers' liability insurance policies
maintained by the Company, regardless of whether Indemnitee ultimately is
determined to be entitled to such indemnification, advance expense payment or
insurance recovery, as the case may be.
6. Partial Indemnity, Etc. If Indemnitee is entitled under any provision
of this Agreement to indemnification by Summit for some or a portion of the
Expenses, judgments, fines, penalties, excise taxes and amounts paid or to be
paid in settlement of a Claim but not, however, for all of the total amount
thereof, Summit 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 relating in whole or in part
to an Indemnifiable Event or in defense of any issue or matter therein,
including, without limitation, dismissal without prejudice, Indemnitee shall be
presumed to be entitled to indemnification against any and all Expenses,
judgments, fines, penalties, excise taxes and amounts paid or to be paid in
settlement of such Claim or Claims in connection with any determination made or
to be made by Board Action, Arbitration or a court of competent jurisdiction
whether and to what extent Indemnitee is entitled to be indemnified hereunder,
and the burden of proof shall be on Summit to establish that Indemnitee is not
so entitled.
7. No Presumption. 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 or this
Agreement.
8. Contribution. In the event that the indemnification provided for in
this Agreement is unavailable to Indemnitee for any reason whatsoever, Summit,
in lieu of indemnifying Indemnitee, shall contribute to the amount incurred by
Indemnitee, whether for judgments, fines, penalties, excise taxes, amounts paid
or to be paid in settlement and/or for Expenses, in connection with any Claim
relating to an Indemnifiable Event, in such proportion as is deemed fair and
reasonable in light of all of the circumstances of such action by Board Action
or Arbitration or by the court before which such action was brought in order to
reflect (i) the relative benefits received by Summit and Indemnitee as a result
of the event(s) and/or transaction(s) giving cause to such action; and/or (ii)
the relative fault of Summit (and its other directors, officers, employees and
agents) and Indemnitee in connection with such event(s)
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and/or transaction(s). Indemnitee's right to contribution under this Section 8
shall be determined in accordance with, pursuant to and in the same manner as,
the provisions in Sections 2 and 3 hereof relating to Indemnitee's right to
indemnification under this Agreement.
9. Notice/Cooperation by Indemnitee. Indemnitee shall, as a condition
precedent to Indemnitee's right to be indemnified under this Agreement, give
Summit notice in writing as soon as practicable of any Claim made against
Indemnitee for which indemnification will or could be sought under this
Agreement. Such notice shall contain the written affirmation of Indemnitee that
the standard of conduct necessary for indemnification hereunder has been
satisfied. Notice to Summit shall be directed to the General Counsel of the
Company in the manner provided in Section 19 hereof. Indemnitee shall give
Summit such information and cooperation with respect to such Claim as it may
reasonably require and as shall be within Indemnitee's power. A delay or defect
in the notice under this Section 9 shall not invalidate Indemnitee's right to
indemnity under this Agreement unless, and only to the extent that, such delay
or defect materially prejudices the defense of the Claim or the availability to
Summit of insurance coverage for such Claim. Failure to give notice under this
Section 9 shall not be a defense if Summit has actual notice of Indemnitee's
claim for indemnification.
10. Non-exclusivity, Etc. The rights of Indemnitee hereunder shall be in
addition to any other rights Indemnitee may have under the Articles, the Bylaws,
the Partnership Agreement or applicable law, and nothing herein shall be deemed
to diminish or otherwise restrict Indemnitee's right to indemnification under
any such other provision. To the extent applicable law or the Articles, the
Bylaws or the Partnership Agreement, as in effect on the date hereof or at any
time in the future, permit greater indemnification than as provided for in this
Agreement, the parties hereto agree that Indemnitee shall enjoy by this
Agreement the greater benefits so afforded by such law or provision of the
Articles, the Bylaws or the Partnership Agreement, and this Agreement shall be
deemed amended without any further action by Summit or Indemnitee to grant such
greater benefits. Indemnitee may elect to have Indemnitee's rights hereunder
interpreted on the basis of applicable law in effect at the time of execution of
this Agreement, at the time of the occurrence of the Indemnifiable Event giving
rise to a claim or at the time indemnification is sought.
11. Liability Insurance.
(a) To the extent that the Company maintains at any time an
insurance policy or policies providing directors' and officers' liability
insurance, Indemnitee shall be covered by such policy or policies, in accordance
with its or their terms, to the maximum extent of the coverage available for any
other director or officer under such insurance policy. The purchase and
maintenance of such insurance shall not in any way limit or affect the rights
and obligations of the parties hereto, and the execution and delivery of this
Agreement shall not in any way be construed to limit or affect the rights and
obligations of the Company and/or of the other parties under any such insurance
policy.
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(b) For seven years after Indemnitee no longer serves as a director
or officer of the Company, the Company (or its successor or successors) shall
continue to provide directors' and officers' liability insurance for events
occurring during his service with the Company on terms no less favorable in
terms of coverage and amount than such insurance maintained by the Company at
the date of Indemnitee's separation from the Company. In the event such coverage
is not available, the maximum available coverage shall be maintained pursuant to
this covenant.
12. Period of Limitations. No legal action shall be brought and no cause
of action shall be asserted by or on behalf of Summit or any affiliate of Summit
against Indemnitee, Indemnitee's spouse, heirs, executors or personal or legal
representatives after the expiration of two years from the date of accrual of
such cause of action, and any claim or cause of action of Summit or its
affiliate shall be extinguished and deemed released unless asserted by the
timely filing of a legal action within such two-year period; provided, however,
that if any shorter period of limitations is otherwise applicable to any such
cause of action such shorter period shall govern.
13. Amendments, Etc. Except as provided in Section 10 hereof, 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. Subrogation. In the event of payment under this Agreement, Summit
shall be subrogated to the extent of such payment to all of the rights of
recovery with respect to such payment 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 Summit
effectively to bring suit to enforce such rights.
15. No Duplication of Payments. Summit 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, Bylaw or otherwise) of the amounts otherwise
indemnifiable hereunder.
16. Binding Effect, Etc. This Agreement shall be binding upon and inure to
the benefit of and be enforceable against and 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 or the Partnership), spouses, heirs and
personal and legal representatives. Summit 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 or the Partnership, 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 or the
Partnership, as the case may be, would be required
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to perform if no such succession had taken place, but the absence of any such
writing shall not be a defense to any claim for indemnity made hereunder. This
Agreement shall continue in effect regardless of whether Indemnitee continues to
serve as a director and/or officer of the Company or of any other enterprise at
the Company's request.
17. 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) are held by a court of competent
jurisdiction to be invalid, void or otherwise unenforceable, and the remaining
provisions shall remain enforceable to the fullest extent permitted by law.
18. Exceptions. Any other provision herein to the contrary
notwithstanding, Summit shall not be obligated pursuant to the terms of this
Agreement to indemnify Indemnitee in the following circumstances:
(a) Insured Claims. Summit shall not be obligated to indemnify
Indemnitee for expenses or liabilities of any type whatsoever (including, but
not limited to, judgments, fines, excise taxes under the Employee Retirement
Income Security Act of 1974, as amended, or penalties and amounts paid in
settlement) to the extent that Indemnitee has otherwise actually received
payment, or payments have been made on behalf of Indemnitee, with respect to
such expense or liability (under any insurance policy, provision of the
Articles, the Bylaws or the Partnership Agreement, or otherwise) of amounts
otherwise indemnifiable hereunder; or
(b) Claims Under Section 16(b). Summit shall not be obligated to
indemnify Indemnitee for expenses and the payment of profits arising from the
purchase and sale by Indemnitee of securities in violation of Section 16(b) of
the 1934 Act, or any similar successor statute.
19. Notices. All notices, requests, demands and other communications
required or permitted hereunder shall be in writing and shall be deemed to have
been duly given when delivered by hand or when mailed by certified or registered
mail, return receipt requested, with postage prepaid:
(a) If to Indemnitee, to:
-------------------
-------------------
-------------------
or to such other person or address which Indemnitee shall furnish to Summit in
writing pursuant to the above.
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(b) If to Summit, to:
Summit Properties Inc.
000 Xxxxx Xxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxx, XX 00000
ATTN: General Counsel
or to such person or address as Summit shall furnish to Indemnitee in writing
pursuant to the above.
20. Attorneys' Fees. In the event that any action is instituted by
Indemnitee under this Agreement to enforce or interpret any of the terms hereof,
Indemnitee shall be entitled to be paid all court costs and expenses, including
reasonable attorneys' fees, incurred by Indemnitee with respect to such action,
unless as a part of such action, a court of competent jurisdiction determines
that each of the material assertions made by Indemnitee as a basis for such
action were not made in good faith or were frivolous. In the event of an action
instituted by or in the name of the Company and/or the Partnership under this
Agreement or to enforce or interpret any of the terms of this Agreement,
Indemnitee shall be entitled to be paid all court costs and expenses, including
attorneys' fees, incurred by Indemnitee in defense of such action (including
with respect to Indemnitee's counterclaims and cross-claims made in such
action), unless as a part of such action the court determines that each of
Indemnitee's material defenses to such action were made in bad faith or were
frivolous.
21. Governing Law. This Agreement shall be governed by and construed and
enforced in accordance with the laws of the State of Maryland, which laws are
applicable to contracts made and to be performed in such state without giving
effect to the principles of conflicts of laws.
22. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall constitute an original and all of which
together shall constitute a single agreement.
23. Prior Agreement. This Agreement replaces and supersedes the Prior
Agreement to the extent applicable to Indemnitee.
[Remainder of Page Intentionally Left Blank]
11
IN WITNESS WHEREOF, the parties hereto have duly executed and delivered
this Agreement as of the date first set forth above.
SUMMIT PROPERTIES INC.
By:_______________________________
Name:
Title:
SUMMIT PROPERTIES PARTNERSHIP, L.P.
By: Summit Properties Inc.
Its General Partner
By:_______________________________
Name:
Title:
INDEMNITEE:
------------------------------------
[Name]
