EXHIBIT 10.15
INDEMNIFICATION AGREEMENT
THIS AGREEMENT is made as of the 30th day of December, 1996
between Home Properties of New York, Inc. (the "Company"), a
Maryland corporation and Xxxx X. Xxxxxx ("Indemnitee").
WHEREAS, highly competent persons are reluctant to
serve as directors and officers of the Company unless they are
provided with adequate protection through insurance and adequate
indemnification against inordinate risks of claims and actions
against them arising out of their service to and activities on
behalf of the Company;
WHEREAS, the current limitations on coverage of
available insurance and the uncertainties relating to
indemnification have increased the difficulty of attracting and
retaining such persons;
WHEREAS, the Board of Directors of the Company has
determined that the ability to attract and retain such persons is
in the best interests of the Company's stockholders and that the
Company should act to assure such persons that there will be
increased certainty of such protection in the future;
WHEREAS, it is reasonable, prudent and necessary for
the Company contractually to obligate itself to indemnify such
persons to the fullest extent permitted by applicable law so that
they will serve or continue to serve the Company free from undue
concern that they will not be so indemnified; and
WHEREAS, the Indemnitee is willing to serve, continue
to serve and to consider taking on additional service for or on
behalf of the Company on the condition that the Indemnitee be so
indemnified;
NOW, THEREFORE, the Company and the Indemnitee hereby
agree as follows:
1. Statutory Indemnity. Without limiting any other
indemnification rights Indemnitee may have, under this Agreement
or otherwise, the Company hereby agrees to hold harmless and
indemnify Indemnitee to the full extent authorized or permitted
by the provisions of the Maryland General Corporation Law, or by
any amendment thereof or other statutory provisions authorizing
or permitting such indemnification which is adopted after the
date hereof.
2. Indemnity. Without limiting any other
indemnification rights Indemnitee may have, under this Agreement
or otherwise, subject only to the exclusions set forth in Section
3 hereof, the Company hereby agrees to hold harmless and
indemnify Indemnitee:
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(a) Against any and all expenses (including attorneys'
fees and expenses incurred in defense or investigation of any
claim, including a claim against the Company or Indemnitee with
respect to this Agreement), judgments, fines and amounts paid in
settlement actually and reasonably incurred by Indemnitee in
connection with any threatened, pending or completed action, suit
or proceeding, whether civil, criminal, administrative or
investigative (including an action by or in the right of the
Company) to which Indemnitee is, was or at any time becomes a
party, or is threatened to be made a party, by reason of the fact
that Indemnitee is, was or at any time becomes a director,
officer, employee or agent of the Company, or is or was serving
or at any time serves at the request of the Company as a
director, officer, employee or agent of Home Properties of
New York, L.P. (the "Partnership"), the limited partnership of
which the Company is general partner, or of any other
corporation, partnership, joint venture, trust, employee benefit
plan or other enterprise;
(b) Otherwise to the fullest extent as may be
permitted to Indemnitee by the Company under the non-exclusivity
provisions of Article VII of the By-laws of the Company as in
effect on the date hereof and subparagraphs (g) and (h) of
Section 2-418 of the Maryland General Corporation Law or any
successor provision; and
(c) The Company covenants and agrees to maintain
Directors' and Officers' Liability Insurance on terms at least as
favorable to Indemnitee as the policy currently in effect (the
"D&O Policy") unless otherwise approved by a majority of the
Board of Directors of the Company.
3. Limitations on Indemnity. No indemnity pursuant to
Section 2 hereof shall be paid by the Company:
(a) if the act or omission of the Indemnitee was
material to the matter giving rise to the proceedings and was
committed in bad faith or as a result of active and deliberate
dishonesty;
(b) in the case of any criminal proceeding, the
Indemnitee had reasonable cause to believe that the act or
omission was unlawful;
(c) if a final decision by a court having jurisdiction
in the matter, or an opinion of Company counsel (or, if requested
by Indemnitee, counsel independent of the Company and Indemnitee)
shall determine that such indemnification is unlawful; or
(d) if the liability arises under the Securities Act
of 1933 in connection with any offering registered under that Act
and the Company has not received an opinion of its counsel or
opinion of a court of appropriate jurisdiction that such
indemnification is not against public policy.
4. Continuation of Indemnity. All agreements and
obligations of the Company contained herein shall continue during
the period Indemnitee is a director, officer, employee or agent
of the Company (or is or was serving at the request of the
Company as a
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director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise) and shall
continue thereafter for the benefit of Indemnitee and his
personal representatives, with respect to any claim or
threatened, pending or completed action, suit or proceeding,
whether, civil, criminal or investigative, that may be asserted,
threatened or exist by reason of the fact that Indemnitee was a
director of the Company or serving in any other capacity referred
to herein.
5. Notification and Defense of Claim. Promptly after
receipt by Indemnitee of notice of any claim or the commencement
of any action, suit or proceeding, Indemnitee will, if a claim
for indemnity in respect thereof is to be made against the
Company under this Agreement, notify the Company of the
commencement thereof; but the omission so to notify the Company
will not relieve it from any liability which it may have to
Indemnitee otherwise than under this Agreement. With respect to
any such action, suit or proceeding as to which Indemnitee
notifies the Company of the commencement thereof:
(a) The Company will be entitled to participate
therein at its own expense; and
(b) Except as otherwise provided below, to the extent
that it may wish, the Company, jointly with any other
indemnifying party similarly notified, will be entitled to assume
the defense thereof, with counsel reasonably satisfactory to
Indemnitee. After notice from the Company to Indemnitee of its
election so to assume the defense thereof the Company will not be
liable to Indemnitee under this Agreement for any legal or other
expenses subsequently incurred by Indemnitee in connection with
the defense thereof other than reasonable costs of investigation,
or reasonable expenses incurred by Indemnitee in interpreting
this Agreement and in concluding whether or not a conflict of
interest may exist as contemplated in (ii) below, or as otherwise
provided below. Indemnitee shall have the right to employ its
counsel in such action, suit or proceeding but the fees and
expenses of such counsel incurred after notice from the Company
of its assumption of the defense thereof shall be at the expense
of Indemnitee unless (i) the employment of counsel by Indemnitee
has been authorized by the Company, (ii) Indemnitee shall have
reasonably concluded that there may be a conflict of interest
between the Company and Indemnitee in the conduct of the defense
of such action which would materially hinder the ability of
counsel to the Company to represent Indemnitee, or (iii) the
Company shall not in fact have employed counsel reasonably
satisfactory to Indemnitee to assume the defense of such action,
in each of which cases the fees and expenses of Indemnitee's
counsel shall be at the expense of the Company. The Company
shall not be entitled to assume the defense of any action, suit
or proceeding brought by or on behalf of the Company or as to
which Indemnitee shall have made the conclusion provided for in
(ii) above;
(c) The Company shall not be liable to indemnify
Indemnitee under this Agreement for any amounts paid in
settlement of any action or claim effected without its written
consent. The Company shall not settle any action or claim in any
manner which would impose any liability, penalty, limitation or
acknowledgment of fault on Indemnitee without Indemnitee's
written consent. Neither the Company nor Indemnitee will
unreasonably withhold their consent to any proposed settlement;
and
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(d) Nothing contained herein shall require Indemnitee
or the Company to take any actions which would limit the
availability of coverage under the D&O Policy or would permit the
carrier to disclaim coverage. Indemnitee and the Company agree
to use their respective best efforts to comply with the terms and
conditions of the D&O Policy.
6. Advance and Repayment of Expenses. The Company
shall advance to Indemnitee all reasonable expenses incurred by
Indemnitee in defending any civil or criminal action, suit or
proceeding against Indemnitee, within 10 days of receiving (a) a
written affirmation of Indemnitee that (i) the act or omission
giving rise to any such action, suit or proceeding was not
committed in bad faith or the result of active and deliberate
dishonesty, and (ii) in the case of a criminal proceeding,
Indemnitee did not have reasonable cause to believe that the act
or omission giving rise to such action, suit or proceeding was
unlawful, and (b) a written undertaking by or on behalf of
Indemnitee to repay the amount advances if it is ultimately
determined that the Indemnitee has not met the standard of
conduct necessary for indemnification under applicable law.
7. Enforcement. (a) The Company expressly confirms
and agrees that it has entered into this Agreement and assumed
the obligations imposed on the Company hereby in order to induce
Indemnitee to become or continue as a director or officer of the
Company, and acknowledges that Indemnitee is relying upon this
Agreement in continuing in such capacity; and
(b) In the event either the Company or Indemnitee
brings any action to enforce rights or to collect moneys due
under this Agreement, to the extent that Indemnitee is successful
in such action, the Company shall reimburse Indemnitee for all of
Indemnitee's reasonable fees and expenses in defending, bringing
or pursuing such action.
8. Separability. Each of the provisions of this
Agreement is a separate and distinct agreement and 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.
9. Governing Law; Binding Effect; Amendment and
Termination.
(a) This Agreement shall be
interpreted and enforced in accordance with the laws of the State
of New York without regard to principles of conflicts of laws
except to the extent the laws of the State of Maryland apply by
reason of the fact that the Company is a corporation organized
under the laws of the State of Maryland;
(b) This Agreement shall be binding upon Indemnitee
and upon the Company, its successors and assigns, and shall inure
to the benefit of Indemnitee, his heirs, personal representatives
and assigns and to the benefit of the Company, its successors and
assigns, and supersedes any prior agreement between the parties;
and
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(c) No amendment, modification, termination or
cancellation of this Agreement shall be effective unless in
writing signed by both parties hereto.
IN WITNESS WHEREOF, the parties hereto have executed
this Agreement on and as of the day and year first above written.
HOME PROPERTIES OF NEW YORK, INC.
By: /s/ Xxxxxx X. Xxxxxxxxx
---------------------------------
Xxxxxx X. Xxxxxxxxx, President
/s/ Xxxx X. Xxxxxx
---------------------------------
Xxxx X. Xxxxxx
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