Exhibit 10.12
INDEMNIFICATION AGREEMENT
(Advisory Directors)
This INDEMNIFICATION AGREEMENT (this "AGREEMENT") is made and entered into
this ______ day of ________________, 2004 by and between Dimensions REIT I,
Inc., a Maryland corporation (the "COMPANY"), and _____________________ (the
"INDEMNITEE").
RECITALS
WHEREAS, it is essential to the Company to retain and attract as advisory
directors the most capable persons available;
WHEREAS, the Indemnitee is an advisory director of the Company;
WHEREAS, both the Company and the Indemnitee recognize the increased risk
of litigation and other claims being asserted against directors and officers of
companies in today's environment;
WHEREAS, the Company's Articles of Incorporation (the "Charter") provide
that the Company will indemnify its advisory directors to the full extent
permitted by law and will advance expenses in connection therewith, and the
Indemnitee's willingness to serve as an advisory director of the Company is
based in part on the Indemnitee's reliance on such provisions;
WHEREAS, the Maryland General Corporation Law (the "Maryland Statute")
expressly recognizes that the indemnification provisions of the Maryland Statute
are not exclusive of any other rights to which a person seeking indemnification
may be entitled under the Charter or Bylaws of the Company, a resolution of
stockholders or directors, an agreement or otherwise, and this Agreement is
being entered into pursuant to and in furtherance of the Charter and Bylaws, as
permitted by the Maryland Statute and as authorized by the Charter and the Board
of Directors of the Company (the "Board"); and
WHEREAS, in recognition of the Indemnitee's need for substantial protection
against personal liability in order to enhance the Indemnitee's continued
service to the Company in an effective manner, and the Indemnitee's reliance on
the aforesaid provisions of the Charter, and in part to provide the Indemnitee
with specific contractual assurance that the protection promised by such
provisions will be available to the Indemnitee (regardless of, among other
things, any amendment to or revocation of such provisions or any change in the
composition of the Board or any acquisition or business combination transaction
relating to the Company), the Company wishes to provide in this Agreement for
the indemnification of and the advancement of expenses to the Indemnitee as set
forth in this Agreement and, to the extent insurance is maintained, for the
continued coverage of the Indemnitee under the Company's directors' and
officers' liability insurance policies, if any.
NOW, THEREFORE, in consideration of the foregoing premises, the mutual
covenants and agreements contained herein and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto hereby agree as follows:
1. INDEMNIFICATION.
(a) In accordance with the provisions of subsection (b) of this SECTION 1,
the Company shall hold harmless and indemnify the Indemnitee against any and all
reasonable expenses, liabilities and losses (including, without limitation,
investigation expenses and expert witnesses' and attorneys' fees and expenses,
judgments, penalties, fines, ERISA excise taxes and amounts paid or to be paid
in settlement) actually incurred by the Indemnitee (net of any related insurance
proceeds or other amounts received by the Indemnitee or paid by or on behalf of
the Company on the Indemnitee's behalf), in connection with any action, suit,
arbitration or proceeding (or any inquiry or investigation, whether brought by
or in the right of the Company or otherwise, that the Indemnitee in good faith
believes might lead to the institution of any such action, suit, arbitration or
proceeding), whether civil, criminal, administrative or investigative, or any
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appeal therefrom, in which the Indemnitee is a party, is threatened to be made a
party, is a witness or is participating (a "Proceeding") based upon, arising
from, relating to or by reason of the fact that Indemnitee is, was, shall be or
shall have been an advisory director of the Company or is or was serving, shall
serve, or shall have served at the request of the Board of Directors of the
Company as a director, officer, partner, trustee, employee or agent ("Affiliate
Indemnitee") of another foreign or domestic corporation or non-profit
corporation, cooperative, partnership, joint venture, trust or other
incorporated or unincorporated enterprise (each, a "Company Affiliate").
(b) In providing the foregoing indemnification, the Company shall, with
respect to a Proceeding, hold harmless and indemnify the Indemnitee to the
fullest extent required by the Maryland Statute and to the fullest extent
permitted by the Express Permitted Indemnification Provisions (as hereinafter
defined) of the Maryland Statute. For purposes of this Agreement, the "Express
Permitted Indemnification Provisions" of the Maryland Statute shall mean
indemnification as permitted by Section 2-418(b) of the Maryland Statute or by
any amendment thereof or other statuary provisions expressly permitting such
indemnification which is adopted after the date hereof (but, in the case of any
such amendment, only to the extent that such amendment permits the Company to
provide broader indemnification rights than said law required or permitted the
Company to provide prior to such amendment).
(c) Without limiting the generality of the foregoing, the Indemnitee shall
be entitled to the rights of indemnification provided in this Section 1 for any
expenses actually incurred in any Proceeding initiated by or in the right of the
Company unless the Indemnitee shall have been adjudged to be liable to the
Company.
(d) If the Indemnitee is entitled under this Agreement to indemnification
by the Company for some or a portion of the Indemnified Amounts (as hereinafter
defined) but not, however, for all of the total amount thereof, the Company
shall nevertheless indemnify the Indemnitee for the portion thereof to which
Indemnitee is entitled.
(e) Notwithstanding anything herein to the contrary, if the Indemnitee (or
Affiliate Indemnitee) is unwilling to accept a settlement offer (the "Settlement
Offer") with respect to any Proceeding, under which settlement offer no civil or
criminal liability (or presumption of civil or criminal liability) is imposed on
the Indemnitee (or Affiliate Indemnitee) and the Company has agreed in writing
to pay all costs and expenses associated therewith, then the Company's
indemnification obligations hereunder with respect to such Proceeding shall
terminate, provided that Indemnitee shall still be entitled to receive all
rights provided, and amounts payable, under the Settlement Offer.
2. OTHER INDEMNIFICATION ARRANGEMENTS. The Maryland Statute, the Charter
and the Bylaws of the Company permit the Company to purchase and maintain
insurance or furnish similar protection or make other arrangements, including,
without limitation, providing a trust fund letter of credit or surety bond
(collectively, the "Indemnity Arrangements") on behalf of the Indemnitee against
any liability asserted against him or incurred by or on behalf of him in such
capacity as an advisory director of the Company or as an Affiliate Indemnitee,
or arising out of his status as such, whether or not the Company would have the
power to indemnify him against such liability under the provisions of this
Agreement or under the Maryland Statute, as it may then be in effect. The
purchase, establishment and maintenance of any such Indemnification Arrangement
shall not in any way limit or affect the rights and obligations of the Company
or of the Indemnitee under this Agreement except as expressly provided herein,
and the execution and delivery of this Agreement by the Company and the
Indemnitee shall not in any way limit or affect the rights and obligations of
the Company or the other party or parties thereto under any such Indemnification
Arrangement. All amounts payable by the Company pursuant to this SECTION 2 and
SECTION 1 hereof are herein referred to as "Indemnified Amounts."
3. ADVANCE PAYMENT OF INDEMNIFIED AMOUNTS.
(a) The Indemnitee hereby is granted the right to receive in advance of a
final, non-appealable judgment or other final adjudication of a Proceeding (a
"Final Determination") the amount of
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any and all expenses, including, without limitation, investigation expenses,
expert witness and attorneys' fees and other expenses expended or incurred by
the Indemnitee in connection with any Proceeding or otherwise expended or
incurred by the Indemnitee (such amounts so expended or incurred being referred
to as "Advanced Amounts").
(b) In making any written request for Advanced Amounts, the Indemnitee
shall submit to the Company a schedule setting forth in reasonable detail the
dollar amount expended or incurred and expected to be expended. Each such
listing shall be supported by the xxxx, agreement or other documentation
relating thereto, each of which shall be appended to the schedule as an exhibit.
In addition, before the Indemnitee may receive Advanced Amounts from the
Company, the Indemnitee shall provide to the Company (i) a written affirmation
of the Indemnitee's good faith belief that the applicable standard of conduct
required for indemnification by the Company has been satisfied by the Indemnitee
and (ii) a written undertaking by or on behalf of the Indemnitee to repay the
Advanced Amount if it shall ultimately be determined that the Indemnitee has not
satisfied any applicable standard of conduct. The written undertaking required
from the Indemnitee shall be an unlimited general obligation of the Indemnitee
but need not be secured. The Company shall pay to the Indemnitee all Advanced
Amounts within ten (10) business days after receipt by the Company of all
information and documentation required to be provided by the Indemnitee pursuant
to this subsection (b).
4. PROCEDURE FOR PAYMENT OF INDEMNIFIED AMOUNTS.
(a) To obtain indemnification under this Agreement, the Indemnitee shall
submit to the Company a written request for payment of the appropriate
Indemnified Amounts, including with such request such documentation and
information as is reasonably available to the Indemnitee and reasonably
necessary to determine whether and to what extent the Indemnitee is entitled to
indemnification. The Secretary of the Company shall, promptly upon receipt of
such a request for indemnification, advise the Board in writing that the
Indemnitee has requested indemnification.
(b) The Company shall pay the Indemnitee the appropriate Indemnified
Amounts unless it is established that the Indemnitee has not met any applicable
standard of conduct of the Express Permitted Indemnification Provisions. For
purposes of determining whether the Indemnitee is entitled to Indemnified
Amounts, in order to deny indemnification to the Indemnitee the Company has the
burden of proof in establishing that the Indemnitee did not meet the applicable
standard of conduct. In this regard, a termination of any Proceeding by
judgment, order or settlement does not create a presumption that the Indemnitee
did not meet the requisite standard of conduct; provided, however, that the
termination of any criminal proceeding by conviction, or a pleading of nolo
contendere or its equivalent, or an entry of an order of probation prior to
judgment, creates a rebuttable presumption that the Indemnitee did not meet the
applicable standard of conduct.
(c) Any determination that the Indemnitee has not met the applicable
standard of conduct required to qualify for indemnification shall be made (i)
either by the Board by a majority vote of a quorum consisting of directors who
were not parties of such action, suit or proceeding or (ii) by independent legal
counsel (who may be the outside counsel regularly employed by the Company),
provided that the manner in which (and, if applicable, the counsel by which) the
right to indemnification is to be determined shall be approved in advance in
writing by both the highest ranking executive officer of the Company who is not
party to such action (sometimes hereinafter referred to as the "Senior Officer")
and by the Indemnitee. In the event that such parties are unable to agree on the
manner in which any such determination is to be made, such determination shall
be made by independent legal counsel retained by the Company especially for such
purpose, provided that such counsel be approved in advance in writing by both
the Senior Officer and the Indemnitee and, provided further, that such counsel
shall not be outside counsel regularly employed by the Company. The fees and
expenses of counsel in connection with making said determination contemplated
hereunder shall be paid by the Company, and if requested by such counsel, the
Company shall give such counsel an appropriate written agreement with respect to
the payment of their fees and expenses and such other matters as may be
reasonably requested by counsel.
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(d) The Company will use its best efforts to conclude as soon as
practicable any required determination pursuant to subsection (c) above and
promptly will advise the Indemnitee in writing with respect to any determination
that the Indemnitee is or is not entitled to indemnification, including a
description of any reason or basis for which indemnification has been denied.
Payment of any applicable Indemnified Amounts will be made to the Indemnitee
within ten (10) days after any determination of the Indemnitee's entitlement to
indemnification.
(e) Notwithstanding the foregoing, the Indemnitee may, at any time sixty
(60) days after a claim for Indemnified Amounts has been filed with the Company
(or upon receipt of written notice that a claim for Indemnified Amounts has been
rejected, if earlier) and before three (3) years after a claim for Indemnified
Amounts has been filed, petition a court of competent jurisdiction to determine
whether the Indemnitee is entitled to indemnification under the provisions of
this Agreement, and such court shall thereupon have the exclusive authority to
make such determination unless and until such court dismisses or otherwise
terminates such action without having made such determination. The court shall,
as petitioned, make an independent determination of whether the Indemnitee is
entitled to indemnification as provided under this Agreement, irrespective of
any prior determination made by the Board or independent counsel. If the court
shall determine that the Indemnitee is entitled to indemnification as to any
claim, issue or matter involved in the Proceeding with respect to which there
has been no prior determination pursuant to this Agreement or with respect to
which there has been a prior determination that the Indemnitee was not entitled
to indemnification hereunder, the Company shall pay all expenses (including
attorneys' fees) actually incurred by the Indemnitee in connection with such
judicial determination.
5. AGREEMENT NOT EXCLUSIVE; SUBROGATION RIGHTS, ETC.
(a) This Agreement shall not be deemed exclusive of and shall not diminish
any other rights the Indemnitee may have to be indemnified or insured or
otherwise protected against any liability, loss or expense by the Company, any
subsidiary of the Company or any other person or entity under any charter,
bylaws, law, agreement, policy of insurance or similar protection, vote of
stockholders or directors, disinterested or not, or otherwise, whether or not
now in effect, both as to actions in the Indemnitee's official capacity, and as
to actions in another capacity while holding such office. The Company's
obligations to make payments of Indemnified Amounts hereunder shall be satisfied
to the extent that payments with respect to the same Proceeding (or part
thereof) have been made to or for the benefit of the Indemnitee by reason of the
indemnification of the Indemnitee pursuant to any other arrangement made by the
Company for the benefit of the Indemnitee.
(b) In the event the Indemnitee shall receive payment from any insurance
carrier or from the plaintiff in any Proceeding against the Indemnitee in
respect of Indemnified Amounts after payments on account of all or part of such
Indemnified Amounts have been made by the Company pursuant hereto, the
Indemnitee shall promptly reimburse to the Company the amount, if any, by which
the sum of such payment by such insurance carrier or such plaintiff and payments
by the Company or pursuant to arrangements made by the Company to Indemnitee
exceeds such Indemnified Amounts; provided, however, that such portions, if any,
of such insurance proceeds that are required to be reimbursed to the insurance
carrier under the terms of its insurance policy, such as deductible or
co-insurance payments, shall not be deemed to be payments to the Indemnitee
hereunder. In addition, upon payment of Indemnified Amounts hereunder, the
Company shall be subrogated to the rights of the Indemnitee receiving such
payments (to the extent thereof) against any insurance carrier (to the extent
permitted under such insurance policies) or plaintiff in respect of such
Indemnified Amounts, and the Indemnitee shall execute and deliver any and all
instruments and documents and perform any and all other acts or deeds which the
Company deems necessary or advisable to secure such rights. Such right of
subrogation shall be terminated upon receipt by the Company of the amount to be
reimbursed by the Indemnitee pursuant to the first sentence of this subsection
(b).
6. INSURANCE COVERAGE. In the event that the Company maintains directors'
and officers' liability insurance to protect itself and any advisory director,
director or officer of the Company against any expense, liability or loss, such
insurance shall cover the Indemnitee to at least the same extent as any other
advisory director of the Company.
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7. ESTABLISHMENT OF TRUST. The Company may, in its sole discretion,
create a trust (the "Trust") for the benefit of the Indemnitee and, to the
extent such Trust has been created, from time to time upon written request of
Indemnitee shall fund the Trust in an amount sufficient to satisfy any and all
Indemnified Amounts (including Advanced Amounts) which are actually paid or
which Indemnitee reasonably determines from time to time may be payable by the
Company under this Agreement. The amount or amounts to be deposited in the Trust
pursuant to the foregoing funding obligation shall be determined by the
independent legal counsel appointed under Section 4 hereof. If the Trust is
established, the terms thereof shall provide that (i) the Trust shall not be
revoked or the principal thereof invaded without the written consent of the
Indemnitee; (ii) the trustee of the Trust (the "Trustee") shall advance, within
ten (10) business days of a request by the Indemnitee, any and all Advanced
Amounts to the Indemnitee (and the Indemnitee hereby agrees to reimburse the
Trust under the circumstances which the Indemnitee would be required to
reimburse the Company under Section 3(b)(ii) hereof); the Company shall continue
to fund the Trust from time to time in accordance with the funding obligations
set forth above; (iv) the Trustee shall promptly pay to the Indemnitee all
Indemnified Amounts for which the Indemnitee shall be entitled to
indemnification pursuant to this Agreement; and (v) all unexpended funds in the
Trust shall revert to the Company upon a final determination by a court of
competent jurisdiction in a final decision from which there is no further right
of appeal that the Indemnitee has been fully indemnified under the terms of this
Agreement. The Trustee shall be chosen by the Indemnitee. Nothing in this
SECTION 7 shall relieve the Company of any of its obligations under this
Agreement.
8. CONTINUATION OF INDEMNITY. All agreements and obligations of the
Company contained herein shall continue during the period the Indemnitee is an
advisory director of the Company (or is serving at the request of the Company as
an Affiliate Indemnitee) and shall continue thereafter so long as the Indemnitee
shall be subject to any possible Proceeding by reason of the fact that the
Indemnitee was an advisory director of the Company or was serving in any other
capacity referred to herein.
9. SUCCESSORS; BINDING AGREEMENT. This Agreement shall be binding on and
shall inure to the benefit of and be enforceable by the Company's successors and
assigns and by the Indemnitee's personal or legal representatives, executors,
administrators, successors, heirs, distributees, devisees and legatees. The
Company shall require any successor or assignee (whether direct or indirect, by
purchase, merger, consolidation or otherwise) to all or substantially all of the
business and/or assets of the Company, by written agreement in form and
substance reasonably satisfactory to the Company and to the 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 or assignment had taken place.
10. ENFORCEMENT. The Company has entered into this Agreement and assumed
the obligations imposed on the Company hereby in order to induce the Indemnitee
to act as an advisory director of the Company, and acknowledge that the
Indemnitee is relying upon this Agreement in continuing in such capacity. In the
event the Indemnitee is required to bring any action to enforce rights or to
collect moneys due under this Agreement and is successful in such action, the
Company shall reimburse the Indemnitee for all of the Indemnitee's fees and
expenses in bringing and pursuing such action. The Indemnitee shall be entitled
to the advancement of Indemnified Amounts to the full extent contemplated by
Section 3 hereof in connection with such proceeding.
11. SEPARABILITY. Each of the provisions of this Agreement is a separate
and distinct agreement independent of the others, so that if any provision
hereof shall be held to be invalid or unenforceable for any reason, such
invalidity or unenforceability shall not affect the validity or enforceability
of the other provisions hereof, which other provisions shall remain in full
force and effect.
12. MISCELLANEOUS. No provision of this Agreement may be modified, waived
or discharged unless such modification, waiver or discharge is approved by the
Board and agreed to in writing signed by the Indemnitee and either the Chairman
of the Board or the Chief Executive Officer of the Company or another officer of
the Company specifically designated by the Board. No waiver by either party at
any time of any breach by the other party of, or of compliance with, any
condition or provision of this Agreement to be performed by such other party
shall be deemed a waiver of similar or dissimilar provisions or conditions
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at the same time or at any prior or subsequent times. No agreements or
representations, oral or otherwise, express or implied, with respect to the
subject matter hereof have been made by either party which are not set forth
expressly in this Agreement. The validity, interpretation, construction, and
performance of this Agreement shall be governed by the laws of the State of
Maryland, without giving effect to the principles of conflicts of laws thereof.
The Indemnitee may bring an action seeking resolution of disputes or
controversies arising under or in any way related to this Agreement in the state
or federal court jurisdiction in which the Indemnitee resides or in which his
place of business is located, and in any related appellate courts, and the
Company consents to the jurisdiction of such courts and to such venue.
13. NOTICES. For the purposes of this Agreement, notices and all other
communications provided for in the Agreement shall be in writing and shall be
deemed to have been duly given when delivered or mailed by United States
registered mail, return receipt requested, postage prepaid, as follows: (i) if
to the Indemnitee, at the address set forth below the Indemnitee's name on the
signature page hereof, and (ii) if to the Company:
Dimensions REIT I, Inc.
0000 X. 00xx Xxxxxx Xxxxx, Xxxxx 000
Xxxxxxx, Xxxxxx 00000
or to such other address as either party may have furnished to the other in
writing in accordance herewith, except that notices of change of address shall
be effective only upon receipt.
14. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original but all of which
together shall constitute one and the same instrument.
15. EFFECTIVENESS. This Agreement shall be effective as of the date it is
executed.
IN WITNESS WHEREOF, the undersigned have caused this Agreement to be
executed as of the day and year first above written.
DIMENSIONS REIT I, INC. [NAME OF INDEMNITEE]
By:
-------------------------------- -----------------------------------
Xxxxx X. Xxxxxxxxxxx, President
"COMPANY" "INDEMNITEE"
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