EXHIBIT 10.53
INDEMNIFICATION AGREEMENT
This Agreement is made as of the 6th day of June, 2002, by and between
Lexington Corporate Properties Trust, a Maryland statutory real estate
investment trust (the "Trust"), and E. Xxxxxx Xxxxxxx, a trustee and/or
executive officer of the Trust (the "Indemnitee").
RECITALS
A. The Indemnitee is presently serving or has agreed to serve as a
trustee and/or executive officer of the Trust and the Trust desires the
Indemnitee to serve or to continue in such capacity. The Indemnitee is willing,
subject to certain conditions, including without limitation the execution and
performance of this Agreement by the Trust, to serve or to continue in such
capacity.
B. In order to induce the Indemnitee to serve or to continue in such
capacity, the Trust and the Indemnitee hereby agree as follows:
1. Service. The Indemnitee shall continue to serve as a trustee and/or
executive officer of the Trust for so long as he is duly nominated, elected and
qualified in accordance with the By-Laws of the Trust (the "By-Laws"), or until
he resigns in writing or is removed from such service by the shareholders of the
Trust (the "Shareholders") or the Board of Trustees of the Trust (the "Board")
in accordance with the Declaration of Trust of the Trust (the "Declaration of
Trust"), the By-Laws, other agreements between the Trust and the Indemnitee,
and/or applicable law.
2. Initial Indemnity.
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(a) The Trust shall indemnify the Indemnitee when he was, is, or
is threatened to be made a named defendant or respondent (a "Party") in any
threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative (a "Proceeding"), by reason of the
fact that he is or was a trustee, officer, employee or agent of the Trust, or is
or was serving at the request of the Trust as a director, officer, partner,
member, trustee, manager, employee, or agent of another foreign or domestic
corporation, partnership, joint venture, limited liability company, trust, or
other enterprise (an "Indemnified Capacity"), against any and all judgments,
penalties, fines, settlements and reasonable expenses (including attorneys'
fees) ("Indemnified Amounts") actually incurred by the Indemnitee 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 the Proceeding and (x) was committed in bad faith
or (y) 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 a criminal Proceeding, the Indemnitee had
reasonable cause to believe that his act or omission was unlawful;
provided, however, that indemnification may not be made in respect of any
Proceeding by or in the right of the Trust in which the Indemnitee shall have
been adjudged to be liable to the Trust. The termination of any Proceeding by
judgment, order, or settlement shall not create a presumption that the
Indemnitee did not meet the requisite standard of conduct set forth in this
section (the "Requisite Standard of Conduct"). If then required by the Maryland
General Corporation Law (the "MGCL") or other applicable law, the termination of
any Proceeding by conviction, or a plea of nolo contendere or its equivalent, or
an entry of an order of probation prior to judgement, shall create a rebuttable
presumption that the Indemnitee did not meet the Requisite Standard of Conduct.
(b) The Trust shall not indemnify the Indemnitee under Section
2(a) hereof and/or advance expenses to the Indemnitee under Section 2(g) hereof
in respect of any Proceeding brought by the Indemnitee against the Trust, except
(i) for a Proceeding brought to enforce indemnification under
this Agreement, or
(ii) if the Declaration of Trust, the By-Laws, a resolution of
the Board, or an agreement approved by the Board to which the Trust is
a party expressly provide otherwise.
(c) The Indemnitee may not be indemnified under Section 2(a)
hereof in respect of any Proceeding charging improper personal benefit to the
Indemnitee, whether or not involving action in the Indemnitee's capacity in the
office of trustee in the Trust or in the elective or appointive office in the
Trust held by the Indemnitee, or in the employment or agency relationship
undertaken by the Indemnitee on behalf of the Trust (an "Official Capacity"), in
which the Indemnitee was adjudged to be liable on the basis that personal
benefit was improperly received. For purposes of this Agreement, the term
"Official Capacity" shall not include service for any other foreign or domestic
corporation, partnership, joint venture, trust, other enterprise, or employee
benefit plan.
(d) If the Indemnitee has been successful, on the merits or
otherwise, in the defense of any Proceeding referred to in Section 2(a) hereof,
the Indemnitee shall be indemnified against reasonable expenses (including
attorneys' fees) incurred by the Indemnitee in connection with such Proceeding.
(e) A court of appropriate jurisdiction (which may be the same
court in which the Proceeding involving the Indemnitee's liability took place),
upon application of the Indemnitee and such notice as the court shall require,
shall order indemnification in the following circumstances:
(i) If it determines the Indemnitee is entitled to
reimbursement under Section 2(d) hereof, the court shall order
indemnification, in which case the Indemnitee shall be entitled to
recover the expenses (including attorneys' fees) of securing such
reimbursement in addition to the Indemnified Amounts; or
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(ii) If it determines that the Indemnitee is fairly and
reasonably entitled to indemnification in view of all the relevant
circumstances, whether or not the Indemnitee has met the Requisite
Standard of Conduct or has been adjudged liable under the circumstances
described in Section 2(c) hereof, the court shall order such
indemnification as the court shall deem proper. However,
indemnification with respect to any Proceeding by or in the right of
the Trust or in which liability shall have been adjudged in the
circumstances described in Section 2(c) hereof shall be limited to
expenses (including attorneys' fees).
(f) Indemnification under Section 2(a) or 3(a) hereof may not be
made by the Trust unless authorized for a specific Proceeding after a
determination has been made, in the manner described in Section 4(b) hereof,
that indemnification of the Indemnitee is permissible in those circumstances
because the Indemnitee has met the Requisite Standard of Conduct.
(g) The Trust shall pay or reimburse any and all reasonable
expenses (including attorneys' fees) incurred by the Indemnitee in connection
with any Proceeding in advance of the final disposition of such Proceeding in
the manner described in Section 4(e) hereof.
(h) The Trust shall not adopt any amendment to the Declaration of
Trust or By-Laws or any resolution of the Board the effect of which would be to
deny, diminish or encumber the Indemnitee's rights to indemnity pursuant to the
Declaration of Trust, the By-Laws, the MGCL or any other applicable law.
3. Additional Indemnification.
(a) Without limiting any right which the Indemnitee may have
pursuant to Section 2 hereof, the Declaration of Trust, the By-Laws, the MGCL,
any policy of insurance or otherwise, the Trust shall indemnify the Indemnitee
against any amounts which the Indemnitee is or becomes legally obligated to pay
relating to or arising out of any Proceeding to which the Indemnitee is, was, or
is threatened to be made a Party in connection with any act, failure to act or
neglect or breach of duty, including any actual or alleged error, misstatement
or misleading statement, which the Indemnitee commits, suffers, permits or
acquiesces in while acting in an Indemnified Capacity; provided, however, that
the Trust shall not be obligated under this Section 3(a) to indemnify the
Indemnitee against any such amounts to the extent that:
(i) such indemnification would exceed the maximum indemnity
permitted under applicable law at the time of the Indemnitee's request
for indemnification against such amount;
(ii) the Trust is otherwise prohibited by applicable law from
paying such amounts; or
(iii) the Proceeding with respect to which such Indemnified
Amounts are incurred is based upon or attributable to the Indemnitee
actually receiving a personal benefit in money, property or services to
which the Indemnitee was not legally entitled, including, without
limitation, profits made
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from the purchase and sale by the Indemnitee of equity securities of
the Trust which are recoverable by the Trust pursuant to Section 16(b)
of the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), and profits arising from transactions in publicly traded
securities of the Trust which were effected by the Indemnitee in
violation of Section 10(b) of the Exchange Act, including Rule 10b-5
promulgated thereunder.
The Indemnitee shall request indemnification under this Section 3(a) in
accordance with Section 4(a) hereof or in any other manner which the Indemnitee
and the Trust shall reasonably agree. The determination of whether the
Indemnitee shall be entitled to indemnification under this Section 3(a) shall be
made in accordance with Section 4(b) hereof or in any other manner which the
Indemnitee and the Trust shall reasonably agree. Any such determination shall be
binding upon the Trust and the Indemnitee for all purposes.
(b) Expenses (including attorneys' fees) incurred by the
Indemnitee in defending any Proceeding shall be paid by the Trust in advance of
the final disposition thereof as authorized in accordance with Section 4(e)
hereof.
4. Certain Procedures Relating to Indemnification and Advancement of
Expenses.
(a) Except as otherwise permitted or required by the MGCL, the
Indemnitee shall, for purposes of pursuing his rights to indemnification under
Section 2(a) or 3(a) hereof:
(i) submit to the Board a sworn statement of request for
indemnification (the "Indemnification Statement"), averring that
he is entitled to indemnification hereunder; and
(ii) present to the Trust reasonable evidence of all
Indemnified Amounts for which payment is requested.
(b) The determination described in Section 2(f) hereof that the
Indemnitee is entitled to indemnification under Section 2(a) or 3(a) hereof
shall be made:
(i) by the Board, by a majority vote of a quorum consisting of
trustees not, at the time, parties to such Proceeding, or, if such a
quorum cannot be obtained, then by a majority vote of a committee of
the Board consisting solely of two or more trustees not, at the time,
parties to such Proceeding and who were duly designated to act in the
matter by a majority vote of the full Board in which the designated
trustees who are parties may participate;
(ii) by special legal counsel selected by the Board or a
committee of the Board by vote as set forth in subparagraph (i) of this
paragraph, or, if the requisite quorum of the full Board cannot be
obtained therefor and the committee cannot be established, by a
majority vote of the full Board in which trustees who are parties may
participate; or
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(iii) by the Shareholders; provided, however, that shares held
by trustees who are parties to the Proceeding may not be voted with
respect to any such determination.
(c) Authorization of indemnification and determination as to
reasonableness of expenses shall be made in the same manner as the determination
that indemnification is permissible; provided, however, that if the
determination that indemnification is permissible is made by the Shareholders,
authorization of indemnification and determination as to reasonableness of
expenses shall be made by the Board or a committee of the Board in the manner
specified in (i) above; and provided, further, that if the determination that
indemnification is permissible is made by special legal counsel, authorization
of indemnification and determination as to reasonableness of expenses shall be
made in the manner specified in (ii) above for selection of such counsel.
Independent legal counsel shall not be any person or firm who, under the
applicable standards of professional conduct then prevailing, would have a
conflict of interest in representing either the Trust or the Indemnitee in an
action to determine the Indemnitee's rights under this Agreement. The Trust
agrees to pay the reasonable fees and expenses of such independent legal counsel
and to indemnify such counsel against costs, charges and expenses (including
attorneys' fees) actually and reasonably incurred by such counsel in connection
with this Agreement.
(d) The Board shall make the determination described in Section
2(f) hereof in the manner set forth in Section 4(b) hereof within 30 calendar
days of receipt of an Indemnification Statement; provided, however, that the
Board may, in its sole and absolute discretion, elect to extend such 30 day
period for up to 30 additional calendar days by delivering notice of such
extension to the Indemnitee within the initial 30 day period. The provisions of
this Section 4(d) are intended to be procedural only and shall not affect the
right of the Indemnitee to indemnification under Sections 2(a) or 3(a). Any
determination by the Board that the Indemnitee is not entitled to such
indemnification and any failure of the Trust to pay any amounts requested in an
Indemnification Statement shall be subject to judicial review as provided in
Section 6 hereof.
(e) For purposes of determining whether to authorize advancement
of expenses pursuant to Section 2(g) or Section 3(b) hereof, the Indemnitee
shall submit to the Board:
(i) a written affirmation by the Indemnitee of the
Indemnitee's good faith belief that the Requisite Standard of Conduct
has been met (an "Affirmation"); and
(ii) a written undertaking by or on behalf of the Indemnitee
to repay the amount if it shall ultimately be determined that the
Requisite Standard of Conduct has not been met (an "Undertaking").
The Undertaking required by this Section 4(e) shall be an unlimited general
obligation of the Indemnitee but need not be secured and shall be accepted
without reference to financial ability to make the repayment. Payments under
this subsection shall be made as provided by the Declaration of Trust, the
By-laws, or contract or as specified in this Section 4. The Board shall,
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within 10 calendar days of receipt of an Undertaking, authorize immediate
payment of the expenses stated in such Undertaking, whereupon the Trust shall
immediately make payment of such amounts.
5. Subrogation; Duplication of Payments.
(a) Upon making any payment required or permitted to be made
under this Agreement, the Trust shall be subrogated to the extent of such
payment to all of the rights of recovery of the Indemnitee, and the Indemnitee
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 Trust effectively to bring suit to enforce such rights.
(b) The Trust shall have no obligation to make any payment
required to be made under this Agreement to the extent of any payment of such
amounts (under any insurance policy, the Declaration of Trust, the By-Laws or
otherwise) that the Indemnitee has actually received.
6. Enforcement.
(a) If the Trust fails to pay in full any amount required to be
paid to the Indemnitee under this Agreement within 30 calendar days after such
amount becomes due and payable hereunder, the Indemnitee may at any time
thereafter bring suit against the Trust to recover the unpaid portion of such
amount.
(b) In any action brought under Section 6(a) hereof, it shall be
a defense to a claim for indemnification pursuant to Section 2(a) or 3(a) hereof
(other than an action brought to enforce a claim for expenses incurred in
defending any proceeding in advance of its final disposition where the
Undertaking, if any is required, has been tendered to the Trust) that the
Indemnitee has not met the Requisite Standard of Conduct, but the burden of
proving such defense shall be on the Trust. Neither the failure of the Board to
have made a determination (in the manner described in Section 4(b) hereof),
prior to commencement of such action, that the Indemnitee has met the Requisite
Standard of Conduct, nor an actual determination by the Board (in the manner
described in Section 4(b) hereof), following commencement of such action, that
the Indemnitee has not met the Requisite Standard of Conduct, shall be a defense
to the action or create a presumption that the Indemnitee has not met the
Requisite Standard of Conduct.
(c) The Trust acknowledges that the expenses associated with the
enforcement of the Indemnitee's rights under this Agreement by litigation or
other legal action would substantially detract from the benefits intended to be
extended to the Indemnitee hereunder and it is the intent of the Trust that the
Indemnitee not be required to incur such expenses. Accordingly, the Trust shall
pay and be solely responsible for any and all costs, charges and expenses
(including attorneys' fees) reasonably incurred by the Indemnitee, and
irrevocably authorizes the Indemnitee from time to time to retain counsel of his
choice to represent the Indemnitee, in connection with (i) any failure of the
Trust to comply with any of its obligations under this Agreement, as determined
by the Indemnitee, (ii) any action taken by the Trust or any other person to
declare this Agreement, or any provision hereof, void or unenforceable, and
(iii) any Proceeding causing or intended to cause the denial to, or
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the recovery from, the Indemnitee of the benefits intended to be provided to the
Indemnitee hereunder.
7. Merger or Consolidation. In the event of a merger, consolidation, or
other transaction in which the Trust's existence ceases upon consummation
thereof, the Trust shall require the surviving, resulting or acquiring
corporation, as a condition to such transaction, to agree in writing to
indemnify the Indemnitee to the full extent provided in this Agreement.
Irrespective of whether the Trust is the resulting, surviving or acquiring
corporation in any such transaction, and irrespective of whether the agreement
referenced in the preceding sentence shall have been obtained, the Indemnitee
shall stand in the same position under this Agreement with respect to the
resulting, surviving or acquiring corporation as he would have with respect to
the Trust if its separate existence had continued.
8. Nonexclusivity and Severability.
(a) The indemnification and advancement of expenses provided or
authorized by this Agreement may not be deemed exclusive of any other rights, by
indemnification or otherwise, to which the Indemnitee may be entitled under the
Declaration of Trust, the By-laws, a resolution of the Shareholders or the
Board, the MGCL, an agreement or otherwise, both as to action in an Official
Capacity and as to action in another capacity while holding such office, it
being the intention of the Trust to provide the Indemnitee with the maximum
indemnification permissible under applicable law.
(b) Nothing in this Agreement shall be deemed to limit the
Trust's power to pay or reimburse expenses incurred by the Indemnitee in
connection with an appearance as a witness in a Proceeding at a time when the
Indemnitee has not been made a Party in such Proceeding.
(c) If any provision of this Agreement or the application of any
provision hereof to any person or circumstances is held invalid, unenforceable
or otherwise illegal, the remainder of this Agreement and the application of
such provision to other persons or circumstances shall not be affected, and the
provision so held to be invalid, unenforceable or otherwise illegal shall be
reformed to the extent (and only to the extent) necessary to make it valid,
enforceable and legal.
9. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Maryland, without giving effect to the
principles of conflict of laws thereof.
10. Entire Agreement; Modification; Survival. This Agreement
constitutes a complete and exclusive statement of the agreement between the
parties with respect to its subject matter, and supersedes any and all prior
agreements, whether written or oral, between the parties with respect to its
subject matter. This Agreement may be modified only by an instrument in writing
signed by both parties hereto. The provisions of this Agreement shall survive
the death, disability or incapacity of the Indemnitee or the termination of the
Indemnitee's service as a trustee and/or executive officer of the Trust and
shall inure to the benefit of the Indemnitee's heirs, executors and
administrators.
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11. Certain Terms. For purposes of this Agreement, references to "other
enterprises" shall include employee benefit plans; references to "fines" shall
include any excise taxes assessed on the Indemnitee with respect to any employee
benefit plan; references to "serve" or "serving at the request of the Company"
shall include any service as a director, officer, employee or agent of the
Company which imposes duties on, or involves services by, the Indemnitee with
respect to an employee benefit plan, its participants or beneficiaries;
references to the masculine shall include the feminine; references to the
singular shall include the plural and vice versa; and action taken or omitted by
the Indemnitee in good faith and in a manner he reasonably believed to be in the
interest of the participants and beneficiaries of an employee benefit plan, he
shall be deemed to have acted in a manner "not opposed to the best interests of
the Company" as referred to herein.
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IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the date first above written.
LEXINGTON CORPORATE PROPERTIES TRUST
By:
----------------------------
Name:
Title:
INDEMNITEE
--------------------------------
Name: E. Xxxxxx Xxxxxxx
Similar agreements were entered into with the following trustees and executive
officers:
Xxxxxxx X. Xxxxx
X. Xxxxxx Eglin
Xxxxxxx Xxxxxxx
Xxxxxxx X. Xxxxxxxxx
Xxxx X. Xxxx
Xxxxxxxx Xxxxxxxx
Xxxx X. Xxxxxxxx
Xxxx X. Xxxxxxx
Xxxx X. Xxxxxxx
