Exhibit 10.14
INDEMNIFICATION AGREEMENT
THIS INDEMNIFICATION AGREEMENT is made and entered into this __ day of
_______, 20__ ("Agreement"), by and between Corporate Property Associates 17 --
Global Incorporated, a Maryland corporation (the "Company"), and _____________
("Indemnitee").
WHEREAS, at the request of the Company, Indemnitee currently serves as a
director or officer of the Company and may, therefore, be subjected to claims,
suits or proceedings arising as a result of his or her service; and
WHEREAS, as an inducement to Indemnitee to continue to serve as such
director or officer, the Company has agreed to indemnify and to advance expenses
and costs incurred by Indemnitee in connection with any such claims, suits or
proceedings, subject to certain limitations set forth herein; and
WHEREAS, the parties by this Agreement desire to set forth their agreement
regarding indemnification and advance of expenses;
NOW, THEREFORE, in consideration of the premises and the covenants
contained herein, the Company and Indemnitee do hereby covenant and agree as
follows:
Section 1. Definitions. For purposes of this Agreement:
(a) "Change of Control" means a change in control of the Company occurring
after the Effective Date of a nature that would be required to be reported in
response to Item 6(e) of Schedule 14A of Regulation 14A (or in response to any
similar item on any similar schedule or form) promulgated under the Securities
Exchange Act of 1934, as amended (the "Act"), whether or not the Company is then
subject to such reporting requirement; provided, however, that, without
limitation, such a Change in Control shall be deemed to have occurred if after
the Effective Date (i) any "person" (as such term is used in Sections 13(d) and
14(d) of the Act) is or becomes the "beneficial owner" (as defined in Rule 13d-3
under the Act), directly or indirectly, of securities of the Company
representing 15% or more of the combined voting power of the Company's then
outstanding securities without the prior approval of at least two-thirds of the
members of the Board of Directors in office immediately prior to such person
attaining such percentage interest; (ii) there occurs a proxy contest, or the
Company is a party to a merger, consolidation, sale of assets, plan of
liquidation or other reorganization not approved by at least two-thirds of the
members of the Board of Directors then in office, as a consequence of which
members of the Board of Directors in office immediately prior to such
transaction or event constitute less than a majority of the Board of Directors
thereafter; or (iii) during any period of two consecutive years, other than as a
result of an event described in clause (a)(ii) of this Section 1, individuals
who at the beginning of such period constituted the Board of Directors
(including for this purpose any new director whose election or nomination for
election by the Company's stockholders was approved by a vote of at least
two-thirds of the directors then still in office who were directors at the
beginning of such period) cease for any reason to constitute at least a majority
of the Board of Directors.
(b) "Corporate Status" means the status of a person who is or was a
director, officer, employee or agent of the Company or of any other corporation,
partnership, joint venture, trust, employee benefit plan or other enterprise for
which such person is or was serving at the request of the Company.
(c) "Disinterested Director" means a director of the Company who is not and
was not a party to the Proceeding in respect of which indemnification is sought
by Indemnitee.
(d) "Effective Date" means the date set forth in the first paragraph of
this Agreement.
(e) "Expenses" shall include all reasonable and out-of-pocket attorneys'
fees, retainers, court costs, transcript costs, fees of experts, witness fees,
travel expenses, duplicating costs, printing and binding costs, telephone
charges, postage, delivery service fees, and all other disbursements or expenses
of the types customarily incurred in connection with prosecuting, defending,
preparing to prosecute or defend, investigating, or being or preparing to be a
witness in a Proceeding.
(f) "Independent Counsel" means a law firm, or a member of a law firm, that
is experienced in matters of corporation law and neither is, nor in the past
five years has been, retained to represent: (i) the Company or Indemnitee in any
matter material to either such party, or (ii) any other party to or witness in
the Proceeding giving rise to a claim for indemnification hereunder.
Notwithstanding the foregoing, the term "Independent Counsel" shall not include
any person who, under the applicable standards of professional conduct then
prevailing, would have a conflict of interest in representing either the Company
or Indemnitee in an action to determine Indemnitee's rights under this
Agreement. If a Change of Control has not occurred, Independent Counsel shall be
selected by the Board of Directors, with the approval of Indemnitee, which
approval will not be unreasonably withheld. If a Change of Control has occurred,
Independent Counsel shall be selected by Indemnitee, with the approval of the
Board of Directors, which approval will not be unreasonably withheld.
(g) "Proceeding" includes any threatened, pending or completed action,
suit, arbitration, alternate dispute resolution mechanism, investigation,
administrative hearing or any other proceeding, whether civil, criminal,
administrative or investigative (including on appeal).
Section 2. Services by Indemnitee. Indemnitee will 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.
Section 3. Indemnification - General. Subject to the limitations in Section
7, the Company shall indemnify, and advance Expenses to, Indemnitee (a) as
provided in this Agreement and (b) as otherwise 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
Effective Date. Subject to the limitations in Section 7, the rights of
Indemnitee provided in this Section 3 shall include 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 ("MGCL").
Section 4. Rights to Indemnification. Subject to the limitations in Section
7, if, by reason of his or her Corporate Status, Indemnitee is, or is threatened
to be, made a party to or a witness in any Proceeding, Indemnitee shall be
indemnified against all judgments, penalties, fines and amounts paid in
settlement and all Expenses actually and reasonably incurred by him or her or on
his or her behalf unless it is established by clear and convincing evidence that
(i) the act or omission of 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) Indemnitee actually received an improper
personal benefit in money, property or services, or (iii) in the case of any
criminal Proceeding, Indemnitee had reasonable cause to believe that his or her
conduct was unlawful.
Section 5. Court-Ordered Indemnification. Subject to the limitations in
Section 7, a court of appropriate jurisdiction, upon application of Indemnitee
and such notice as the court shall require, may order indemnification in the
following circumstances:
(a) if it determines Indemnitee is entitled to reimbursement under Section
2-418(d)(1) of the MGCL, the court shall order indemnification, in which case
Indemnitee shall be entitled to recover the expenses of securing such
reimbursement; or
(b) if it determines that Indemnitee is fairly and reasonably entitled to
indemnification in view of all the relevant circumstances, whether or not
Indemnitee (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 2-418(c) of the MGCL, in which case the court may order
such indemnification as the court shall deem proper.
Section 6. Indemnification for Expenses of a Party Who is Wholly or Partly
Successful. Subject to the limitations in Section 7, to the extent that
Indemnitee is, by reason of his or her Corporate Status, made a party to and is
successful, on the merits or otherwise, in the defense of any Proceeding, he or
she shall be indemnified for all Expenses actually and reasonably incurred by
him or her or on his or her behalf in connection therewith. 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 under this Section 6 for all
Expenses actually and reasonably incurred by him or her or on his or her behalf
in connection with each successfully resolved claim, issue or matter, allocated
on a reasonable and proportionate basis. For purposes of this Section and
without limitation, 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.
Section 7. Limitations on Indemnification. Notwithstanding any other
provision of this Agreement, the Company shall not be obligated under this
Agreement to make any payment to Indemnitee for indemnification with respect to
any Proceeding:
(a) for any loss or liability unless all of the following conditions are
met: (i) Indemnitee has determined, in good faith, that the course of conduct
that caused the loss or liability was in the best interests of the Company, (ii)
Indemnitee was acting on behalf of or performing services for the Company, (iii)
if Indemnitee is an inside director of the Company, such loss or liability was
not the result of negligence or misconduct, or, if Indemnitee is an independent
director, gross negligence or willful misconduct, and (iv) such indemnification
is recoverable only out of the Company's net assets and not from the Company's
stockholders; or
(b) for any loss or liability arising from an alleged violation of federal
or state securities laws unless one or more of the following conditions are met:
(i) there has been a successful adjudication on the merits of each count
involving alleged securities law violations as to Indemnitee, (ii) such claims
have been dismissed with prejudice on the merits by a court of competent
jurisdiction as to Indemnitee; or (iii) a court of competent jurisdiction
approves a settlement of the claims against Indemnitee and finds that
indemnification of the settlement and the related costs should be made, and the
court considering the request for indemnification has been advised of the
position of the Securities and Exchange Commission and of the published position
of any state securities regulatory authority in which securities of the Company
were offered or sold as to indemnification for violations of securities laws.
Section 8. Advance of Expenses. The Company shall advance all reasonable
Expenses actually and reasonably incurred by or on behalf of Indemnitee in
connection with any Proceeding (other than a Proceeding brought to enforce
indemnification under this Agreement, applicable law, the charter or Bylaws of
the Company, any agreement or a resolution of the stockholders entitled to vote
generally in the election of directors or of the Board of Directors) to which
Indemnitee is, or is threatened to be, made a party or a witness, which is
initiated by a third party who is not a stockholder of the Company, or which is
initiated by a stockholder of the Company acting in his or her capacity as such
and a court of competent jurisdiction specifically approves such advancement,
and which relates to acts or omissions with respect to the performance of duties
or services on behalf of the Company, within ten days after the receipt by the
Company of a statement or statements from Indemnitee requesting such advance or
advances from time to time, whether prior to or after final disposition of such
Proceeding. Such statement or statements shall reasonably evidence the Expenses
incurred by Indemnitee and shall include or be preceded or accompanied by a
written affirmation by Indemnitee of Indemnitee's good faith belief that the
standard of conduct necessary for indemnification by the Company as authorized
by law and by this Agreement has been met and a written undertaking by or on
behalf of Indemnitee, in substantially the form attached hereto as Exhibit A or
in such form as may be required under applicable law as in effect at the time of
the execution thereof, to reimburse the portion of any Expenses advanced to
Indemnitee, together with the applicable legal rate of interest thereon,
relating to claims, issues or matters in the Proceeding as to which it shall
ultimately be established, by clear and convincing evidence, that the standard
of conduct for indemnification, as set forth in Section 4, has not been met and
which have not been successfully resolved as described in Section 6. To the
extent that Expenses advanced to Indemnitee do not relate to a specific claim,
issue or matter in the Proceeding, such Expenses shall be allocated on a
reasonable and proportionate basis. The undertaking required by this Section 8
shall be an unlimited general obligation by or on behalf of Indemnitee and shall
be accepted without reference to Indemnitee's financial ability to repay such
advanced Expenses and without any requirement to post security therefor. In any
Proceeding initiated by a stockholder of the
Company acting in his or her capacity as such, the Company shall promptly
petition a court of competent jurisdiction for approval of the advancement of
all reasonable Expenses actually and reasonably incurred by or on behalf of
Indemnitee upon the receipt by the Company of a statement or statements from
Indemnitee requesting such advance or advances.
Section 9. Procedure for Determination of Entitlement to Indemnification.
(a) To obtain indemnification under Section 4 of this Agreement, Indemnitee
shall submit to the Company a written request, including such documentation and
information as is reasonably available to Indemnitee and is reasonably necessary
to determine whether and to what extent Indemnitee is entitled to
indemnification. The Secretary of the Company shall, promptly upon receipt of
such a request for indemnification, advise the Board of Directors in writing
that Indemnitee has requested indemnification.
(b) Upon written request by Indemnitee for indemnification pursuant to the
first sentence of Section 9(a) hereof, a determination, if required by
applicable law, with respect to Indemnitee's entitlement thereto shall promptly
be made in the specific case: (i) if a Change of Control shall have occurred, by
Independent Counsel in a written opinion to the Board of Directors, a copy of
which shall be delivered to Indemnitee; or (ii) if a Change of Control shall not
have occurred, (A) by the Board of Directors (or a duly authorized committee
thereof) by a majority vote of a quorum consisting of Disinterested Directors
(as herein defined), or (B) if a quorum of the Board of Directors consisting of
Disinterested Directors is not obtainable or, even if obtainable, such quorum of
Disinterested Directors so directs, by Independent Counsel in a written opinion
to the Board of Directors, a copy of which shall be delivered to Indemnitee, or
(C) if so directed by a majority of the members of the Board of Directors, by
the stockholders of the Company. If it is so determined that Indemnitee is
entitled to indemnification, payment to Indemnitee shall be made within ten days
after such determination. Indemnitee shall cooperate with the person, persons or
entity making such determination with respect to Indemnitee's entitlement to
indemnification, including providing to such person, persons or entity upon
reasonable advance request any documentation or information which is not
privileged or otherwise protected from disclosure and which is reasonably
available to Indemnitee and reasonably necessary to such determination in the
discretion of the Board of Directors or Independent Counsel if retained pursuant
to clause (ii)(B) of this Section 9. Any Expenses actually and reasonably
incurred by Indemnitee in so cooperating with the person, persons or entity
making such determination shall be borne by the Company (irrespective of the
determination as to Indemnitee's entitlement to indemnification) and the Company
shall indemnify and hold Indemnitee harmless therefrom.
(c) In making a determination with respect to entitlement to
indemnification hereunder, the person or persons or entity making such
determination shall presume that Indemnitee is entitled to indemnification under
this Agreement if Indemnitee has submitted a request for indemnification in
accordance with Section 9(a) of this Agreement, and the Company shall have the
burden of proof to overcome that presumption in connection with the making of
any determination contrary to that presumption.
(d) The termination of any Proceeding by judgment, order, settlement,
conviction, a plea of nolo contendere or its equivalent, or an entry of an order
of probation prior to judgment,
does not create a presumption that Indemnitee did not meet the requisite
standard of conduct described herein for indemnification.
Section 10. Remedies of Indemnitee.
(a) If (i) a determination is made pursuant to Section 9 of this Agreement
that Indemnitee is not entitled to indemnification under this Agreement, (ii)
advance of Expenses is not timely made pursuant to Section 8 of this Agreement,
(iii) no determination of entitlement to indemnification shall have been made
pursuant to Section 9(b) of this Agreement within 30 days after receipt by the
Company of the request for indemnification, (iv) payment of indemnification is
not made pursuant to Section 6 of this Agreement within ten days after receipt
by the Company of a written request therefor, or (v) payment of indemnification
is not made within ten days after a determination has been made that Indemnitee
is entitled to indemnification, Indemnitee shall be entitled to an adjudication
in an appropriate court located in the State of Maryland, or in any other court
of competent jurisdiction, of his or her entitlement to such indemnification or
advance of Expenses. Alternatively, Indemnitee, at his or her option, may seek
an award in arbitration to be conducted by a single arbitrator pursuant to the
commercial Arbitration Rules of the American Arbitration Association. Indemnitee
shall commence such proceeding seeking an adjudication or an award in
arbitration within 180 days following the date on which Indemnitee first has the
right to commence such proceeding pursuant to this Section 10(a); provided,
however, that the foregoing clause shall not apply to a proceeding brought by
Indemnitee to enforce his or her rights under Section 6 of this Agreement.
(b) In any judicial proceeding or arbitration commenced pursuant to this
Section 10, the Company shall have the burden of proving that Indemnitee is not
entitled to indemnification or advance of Expenses, as the case may be.
(c) If a determination shall have been made pursuant to Section 9(b) of
this Agreement that Indemnitee is entitled to indemnification, the Company shall
be bound by such determination in any judicial proceeding or arbitration
commenced pursuant to this Section 10, absent a misstatement by Indemnitee of a
material fact, or an omission of a material fact necessary to make Indemnitee's
statement not materially misleading, in connection with the request for
indemnification.
(d) In the event that Indemnitee, pursuant to this Section 10, seeks a
judicial adjudication of or an award in arbitration to enforce his or her rights
under, or to recover damages for breach of, this Agreement, Indemnitee shall be
entitled to recover from the Company, and shall be indemnified by the Company
for, any and all Expenses actually and reasonably incurred by him or her in such
judicial adjudication or arbitration. If it shall be determined in such judicial
adjudication or arbitration that Indemnitee is entitled to receive part but not
all of the indemnification or advance of Expenses sought, the Expenses incurred
by Indemnitee in connection with such judicial adjudication or arbitration shall
be appropriately prorated.
Section 11. Defense of the Underlying Proceeding.
(a) Indemnitee shall notify the Company promptly upon being served with or
receiving any summons, citation, subpoena, complaint, indictment, information,
notice, request or other document relating to any Proceeding which may result in
the right to indemnification or the advance of Expenses hereunder; provided,
however, that the failure to give any such notice shall not disqualify
Indemnitee from the right, or otherwise affect in any manner any right of
Indemnitee, to indemnification or the advance of Expenses under this Agreement
unless the Company's ability to defend in such Proceeding or to obtain proceeds
under any insurance policy is materially and adversely prejudiced thereby, and
then only to the extent the Company is thereby actually so prejudiced.
(b) Subject to the provisions of the last sentence of this Section 11(b)
and of Section 11(c) below, the Company shall have the right to defend
Indemnitee in any Proceeding which may give rise to indemnification hereunder;
provided, however, that the Company shall notify Indemnitee of any such decision
to defend within 15 calendar days following receipt of notice of any such
Proceeding under Section 11(a) above. The Company shall not, without the prior
written consent of Indemnitee, which shall not be unreasonably withheld or
delayed, consent to the entry of any judgment against Indemnitee or enter into
any settlement or compromise which (i) includes an admission of fault of
Indemnitee or (ii) does not include, as an unconditional term thereof, the full
release of Indemnitee from all liability in respect of such Proceeding, which
release shall be in form and substance reasonably satisfactory to Indemnitee.
This Section 11(b) shall not apply to a Proceeding brought by Indemnitee under
Section 10 above or Section 17 below.
(c) Notwithstanding the provisions of Section 11(b) above, if in a
Proceeding to which Indemnitee is a party by reason of Indemnitee's Corporate
Status, (i) Indemnitee reasonably concludes, based upon an opinion of counsel
approved by the Company, which approval shall not be unreasonably withheld, that
he or she may have separate defenses or counterclaims to assert with respect to
any issue which may not be consistent with other defendants in such Proceeding,
(ii) Indemnitee reasonably concludes, based upon an opinion of counsel approved
by the Company, which approval shall not be unreasonably withheld, that an
actual or apparent conflict of interest or potential conflict of interest exists
between Indemnitee and the Company, or (iii) if the Company fails to assume the
defense of such Proceeding in a timely manner, Indemnitee shall be entitled to
be represented by separate legal counsel of Indemnitee's choice, subject to the
prior approval of the Company, which shall not be unreasonably withheld, at the
expense of the Company. In addition, if the Company fails to comply with any of
its obligations under this Agreement or in the event that the Company or any
other person takes any action to declare this Agreement void or unenforceable,
or institutes any Proceeding to deny or to recover from Indemnitee the benefits
intended to be provided to Indemnitee hereunder, Indemnitee shall have the right
to retain counsel of Indemnitee's choice, subject to the prior approval of the
Company, which shall not be unreasonably withheld, at the expense of the Company
(subject to Section 10(d)), to represent Indemnitee in connection with any such
matter.
Section 12. Non-Exclusivity; Survival of Rights; Subrogation; Insurance.
(a) The rights of indemnification and advance of Expenses as provided by
this Agreement shall not be deemed exclusive of any other rights to which
Indemnitee may at any time be entitled under applicable law, the charter or
Bylaws of the Company, any agreement or a resolution of the stockholders
entitled to vote generally in the election of directors or of the Board of
Directors, or otherwise. No amendment, alteration or repeal of this Agreement or
of any provision hereof shall limit or restrict any right of Indemnitee under
this Agreement in respect of any action taken or omitted by such Indemnitee in
his or her Corporate Status prior to such amendment, alteration or repeal.
(b) In the event of any 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 take all action necessary
to secure such rights, including execution of such documents as are necessary to
enable the Company to bring suit to enforce such rights.
(c) The Company shall not be liable under this Agreement to make any
payment of amounts otherwise indemnifiable or payable or reimbursable as
Expenses hereunder if and to the extent that Indemnitee has otherwise actually
received such payment under any insurance policy, contract, agreement or
otherwise.
Section 13. Insurance. The Company will use its reasonable best efforts to
acquire and maintain directors and officers liability insurance, on terms and
conditions deemed appropriate by the Board of Directors of the Company, with the
advice of counsel, covering Indemnitee or any claim made against Indemnitee for
service as a director or officer of the Company and covering the Company for any
indemnification or advance of Expenses made by the Company to Indemnitee for any
claims made against Indemnitee for service as a director or officer of the
Company. Without in any way limiting any other obligation under this Agreement,
the Company shall indemnify Indemnitee for any payment by Indemnitee arising out
of the amount of any deductible or retention and the amount of any excess of the
aggregate of all judgments, penalties, fines, settlements and reasonable
Expenses actually and reasonably incurred by Indemnitee in connection with a
Proceeding over the coverage of any insurance referred to in the previous
sentence.
Section 14. Indemnification for Expenses of a Witness. Subject to the
limitations in Section 7, to the extent that Indemnitee is or may be, by reason
of his or her Corporate Status, a witness in any Proceeding, whether instituted
by the Company or any other party, and to which Indemnitee is not a party but in
which the Indemnitee receives a subpoena to testify or to produce documents, he
or she shall be advanced all reasonable Expenses and indemnified against all
Expenses actually and reasonably incurred by him or her or on his or her behalf
in connection therewith.
Section 15. Duration of Agreement; Binding Effect.
(a) This Agreement shall continue until and terminate ten years after the
date that Indemnitee's Corporate Status shall have ceased; provided, that the
rights of Indemnitee
hereunder shall continue until the final termination of any Proceeding then
pending in respect of which Indemnitee is granted rights of indemnification or
advance of Expenses hereunder and of any proceeding commenced by Indemnitee
pursuant to Section 10 of this Agreement relating thereto.
(b) The indemnification and advance of Expenses provided by, or granted
pursuant to, this Agreement shall be binding upon and be enforceable by the
parties hereto and their respective successors and assigns (including any direct
or indirect successor by purchase, merger, consolidation or otherwise to all or
substantially all of the business or assets of the Company), shall continue as
to an Indemnitee who has ceased to be a director, trustee, officer, employee or
agent of the Company or of any other corporation, partnership, joint venture,
trust, employee benefit plan or other enterprise which such person is or was
serving in any capacity at the written request of the Company, and shall inure
to the benefit of Indemnitee and his or her spouse, assigns, heirs, devisees,
executors and administrators and other legal representatives.
(c) The Company 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, 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 would be required to perform if no such succession had
taken place.
Section 16. Severability. If any provision or provisions of this Agreement
shall be held to be invalid, illegal or unenforceable for any reason whatsoever:
(a) the validity, legality and enforceability of the remaining provisions of
this Agreement (including, without limitation, each portion of any section of
this Agreement containing any such provision held to be invalid, illegal or
unenforceable that is not itself invalid, illegal or unenforceable) shall not in
any way be affected or impaired thereby; and (b) to the fullest extent possible,
the provisions of this Agreement (including, without limitation, each portion of
any section of this Agreement containing any such provision held to be invalid,
illegal or unenforceable, that is not itself invalid, illegal or unenforceable)
shall be construed so as to give effect to the intent manifested thereby.
Section 17. Exception to Right of Indemnification or Advance of Expenses.
Notwithstanding any other provision of this Agreement, Indemnitee shall not be
entitled to indemnification or advance of Expenses under this Agreement with
respect to any Proceeding brought by Indemnitee, unless (a) the Proceeding is
brought to enforce indemnification under this Agreement, and then only to the
extent in accordance with and as authorized by Sections 8 and 10 of this
Agreement, or (b) the Company's Bylaws, as amended, the Company's charter, a
resolution of the stockholders entitled to vote generally in the election of
directors or of the Board of Directors or an agreement approved by the Board of
Directors to which the Company is a party expressly provide otherwise.
Section 18. Identical Counterparts. This Agreement may be executed in one
or more counterparts, each of which shall for all purposes be deemed to be an
original but all of which together shall constitute one and the same Agreement.
One such counterpart signed by the party
against whom enforceability is sought shall be sufficient to evidence the
existence of this Agreement.
Section 19. Headings. The headings of the paragraphs of this Agreement are
inserted for convenience only and shall not be deemed to constitute part of this
Agreement or to affect the construction thereof.
Section 20. Modification and Waiver. 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.
Section 21. Notices. All notices, requests, demands and other
communications hereunder shall be in writing and shall be deemed to have been
duly given if (i) delivered by hand and receipted for by the party to whom said
notice or other communication shall have been directed, or (ii) mailed by
certified or registered mail with postage prepaid, on the third business day
after the date on which it is so mailed:
(a) If to Indemnitee, to: The address set forth on the signature page
hereto.
(b) If to the Company to:
Corporate Property Associates 17 -- Global Incorporated
00 Xxxxxxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx
00000
Attn: General Counsel
or to such other address as may have been furnished to Indemnitee by the Company
or to the Company by Indemnitee, as the case may be.
Section 22. Governing Law. The parties agree that this Agreement shall be
governed by, and construed and enforced in accordance with, the laws of the
State of Maryland, without regard to its conflicts of laws rules.
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the
day and year first above written.
ATTEST: CORPORATE PROPERTY ASSOCIATES 17 --
GLOBAL INCORPORATED
By: (SEAL)
------------------------------------- -----------------------------
Name:
Title:
WITNESS: INDEMNITEE
------------------------------------- ---------------------------------
Name:
Address:
EXHIBIT A
FORM OF AFFIRMATION AND UNDERTAKING TO REPAY EXPENSES ADVANCED
The Board of Directors of Corporate Property Associates 17 -- Global
Incorporated
Re: Undertaking to Repay Expenses Advanced
Ladies and Gentlemen:
This undertaking is being provided pursuant to that certain Indemnification
Agreement dated the _____ day of _______________, 200__, by and between
Corporate Property Associates 17 -- Global Incorporated, a Maryland corporation
(the "Company"), and the undersigned Indemnitee (the "Indemnification
Agreement"), pursuant to which I am entitled to advance of expenses in
connection with [DESCRIPTION OF PROCEEDING] (the "Proceeding").
Terms used herein and not otherwise defined shall have the meanings
specified in the Indemnification Agreement.
I am subject to the Proceeding by reason of my Corporate Status or by
reason of alleged actions or omissions by me in such capacity. I hereby affirm
that at all times, insofar as I was involved as a director or officer of the
Company, in any of the facts or events giving rise to the Proceeding, I (1)
acted in good faith and honestly, (2) did not receive any improper personal
benefit in money, property or services and (3) in the case of any criminal
proceeding, had no reasonable cause to believe that any act or omission by me
was unlawful.
In consideration of the advance of Expenses by the Company for reasonable
attorneys' fees and related expenses incurred by me in connection with the
Proceeding (the "Advanced Expenses"), I hereby agree that if, in connection with
the Proceeding, it is established that (1) an act or omission by me 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 or (2) I actually
received an improper personal benefit in money, property or services or (3) in
the case of any criminal proceeding, I had reasonable cause to believe that the
act or omission was unlawful, then I shall promptly reimburse the portion of the
Advanced Expenses, together with the applicable legal rate of interest thereon,
relating to the claims, issues or matters in the Proceeding as to which the
foregoing findings have been established and which have not been successfully
resolved as described in Section 6 of the Indemnification Agreement. To the
extent that Advanced Expenses do not relate to a specific claim, issue or matter
in the Proceeding, I agree that such Expenses shall be allocated on a reasonable
and proportionate basis.
IN WITNESS WHEREOF, I have executed this Affirmation and Undertaking on
this _____ day of _______________, 200__.
WITNESS:
(SEAL)
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