MAGUIRE PROPERTIES, INC. INDEMNIFICATION AGREEMENT
Exhibit
99.3
XXXXXXX
PROPERTIES, INC.
This
INDEMNIFICATION AGREEMENT (the “Agreement”) is made and entered into as of
October 2, 2007, by and between Xxxxxxx Properties, Inc., a Maryland corporation
(the “Company”), and Xxxxxx Xxxxxxxx (the “Indemnitee”).
WHEREAS,
it is essential that the Company be able to retain and attract as directors
and
officers the most capable persons available;
WHEREAS,
the Company’s Bylaws permit it to enter into indemnification arrangements and
agreements;
WHEREAS,
the Company desires to provide the Indemnitee with specific contractual
assurances of the Indemnitee’s rights to full indemnification against litigation
risks and expenses (regardless, among other things, of any amendment to or
revocation of the Company’s Bylaws or any change in the ownership of the Company
or the composition of its Board of Directors) and, to the extent insurance
is
available, the coverage of the Indemnitee under the Company’s directors and
officers liability insurance policies; and
WHEREAS,
the Indemnitee is relying upon the rights afforded under this Agreement in
accepting Indemnitee’s position as a director or officer of the
Company.
NOW,
THEREFORE, in consideration of the mutual promises and covenants contained
herein, the Company and Indemnitee do hereby covenant and agree as
follows:
1. Definitions.
(a) “Corporate
Status” describes the status of a person who is serving or has served (i) as a
director, officer or employee of the Company, (ii) in any capacity with respect
to any employee benefit plan of the Company, or (iii) as a director, partner,
member, trustee, officer, employee, or agent of any other Entity at the request
of the Company.
(b) “Entity”
shall mean any corporation, partnership, limited liability company, joint
venture, trust, foundation, association, organization or other legal entity
and
any group or division of the Company or any of its subsidiaries.
(c) “Expenses”
shall mean all reasonable fees, costs and expenses actually and reasonably
incurred by the Indemnitee in connection with any Proceeding (as defined below),
including, without limitation, attorneys’ fees, disbursements and retainers
(including, without limitation, any such fees, disbursements and retainers
incurred by Indemnitee pursuant to Section 12 of this Agreement), fees and
disbursements of expert witnesses, private investigators and professional
advisors (including, without limitation, accountants), court costs, transcript
costs, fees of experts, travel expenses, duplicating, printing and binding
costs, telephone and fax transmission charges, postage, delivery services,
secretarial services, and other disbursements and expenses.
(d) “Indemnifiable
Expenses,” “Indemnifiable Liabilities” and “Indemnifiable Amounts” shall have
the meanings ascribed to those terms in Section 4 below.
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(f) “Proceeding”
shall mean any threatened, pending or completed claim, action, suit,
arbitration, alternate dispute resolution process, investigation, administrative
hearing, appeal, or any other proceeding, whether civil, criminal,
administrative or investigative, whether formal or informal, including a
proceeding initiated by Indemnitee pursuant to Section 12 of this Agreement
to
enforce Indemnitee’s rights hereunder.
2. Services
of Indemnitee. In consideration of the Company’s covenants and
commitments hereunder, Indemnitee agrees to 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.
3. Agreement
to Indemnify. The Company shall indemnify Indemnitee, and advance
Indemnifiable Expenses to, Indemnitee (a) as specifically provided in this
Agreement and (b) otherwise to the fullest extent 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
date
hereof. The rights of Indemnitee provided in this Section shall
include, but shall not be limited to, 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 (the “MGCL”).
4. Proceedings
Other Than Proceedings by or in the Right of the
Company. Indemnitee shall be entitled to the rights of
indemnification provided in this Section 4 if, by reason of his Corporate
Status, he is, or is threatened to be, made a party to any threatened, pending,
or completed Proceeding, other than a Proceeding by or in the right of the
Company. Pursuant to this Section 4, Indemnitee shall be indemnified
by the Company against all Expenses and Liabilities actually and reasonably
incurred by him or on his behalf in connection with a Proceeding by reason
of
his Corporate Status (referred to herein as “Indemnifiable Expenses” and
“Indemnifiable Liabilities,” respectively, and collectively as “Indemnifiable
Amounts”) unless it is established that (i) the act or omission of the
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) the Indemnitee actually received an improper personal benefit
in money, property or services, or (iii) in the case of any criminal Proceeding,
the Indemnitee had reasonable cause to believe that his conduct was
unlawful.
5. Proceedings
by or in the Right of the Company. Indemnitee shall be entitled
to the rights of indemnification provided in this Section 5 if, by reason of
his
Corporate Status, he is made a party to any threatened, pending or completed
Proceeding brought by or in the right of the Company to procure a judgment
in
its favor. Pursuant to this Section 5, Indemnitee shall be
indemnified against all amounts paid in settlement and all Indemnifiable
Expenses actually and reasonably incurred by him or on his behalf 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 such a Proceeding and (a) was committed in bad faith or (b) was the
result of active and deliberate dishonesty or (ii) the Indemnitee actually
received an improper personal benefit in money, property or services; provided,
however, that no indemnification against such
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Indemnifiable
Expenses shall be made in respect of any Proceeding in which Indemnitee shall
have been adjudged to be liable to the Company.
6. Court-Ordered
Indemnification. A court of appropriate jurisdiction, upon
application of a director or officer and such notice as the court shall require,
may order indemnification in the following circumstances:
(a) if
it determines a director or officer is entitled to Indemnifiable Amounts under
Section 2-418(d)(1) of the MGCL, the court shall order indemnification, in
which
case the director or officer shall be entitled to recover the expenses of
securing such Indemnifiable Amounts; or
(b) if
it determines that the director or officer is fairly and reasonably entitled
to
indemnification in view of all the relevant circumstances, whether or not the
director or officer (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 2-148(c) of the MGCL, the court may order such
indemnification as the court shall deem proper. However,
indemnification with respect to any Proceeding by or in the right of the Company
or in which liability shall have been adjudged in the circumstances described
in
Section 2-418(c) of the MGCL shall be limited to Indemnifiable
Expenses.
7. Procedure
for Payment of Indemnifiable Amounts. Indemnitee shall submit to
the Company a written request specifying the applicable Indemnifiable Amounts
for which Indemnitee seeks payment under this Agreement and the basis for the
claim. Subject to the exceptions set forth in Sections 4 and 5,
the Company shall pay such applicable Indemnifiable Amounts to Indemnitee within
twenty (20) calendar days of receipt of the request. At the request
of the Company, Indemnitee shall furnish such documentation and information
as
are reasonably available to Indemnitee and necessary to establish that
Indemnitee is entitled to indemnification hereunder.
8. Indemnification
for Expenses of a Party Who is Wholly or Partly
Successful. Notwithstanding any other provision of this
Agreement, and without limiting any such
provision to the extent that Indemnitee is, by
reason of Indemnitee’s Corporate Status, a party to and is successful, on the
merits or otherwise, in any Proceeding, Indemnitee shall be indemnified for
all
Indemnifiable Expenses reasonably incurred by Indemnitee or on Indemnitee’s
behalf in connection therewith. Without limiting any other rights of
Indemnitee in this Agreement, 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 for all Indemnifiable Expenses reasonably incurred by
Indemnitee or on Indemnitee’s behalf in connection with each successfully
resolved claim, issue or matter. For purposes of this Agreement, 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.
9. Effect
of Certain Resolutions. Neither the settlement nor termination of
any Proceeding nor the failure of the Company to award indemnification or to
determine that indemnification is payable shall create an adverse presumption
that Indemnitee is not entitled to indemnification hereunder. In
addition, the termination of any Proceeding by judgment, order or settlement
shall not create a presumption that the act or omission of the Indemnitee was
material
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to
the
matter giving rise to the Proceeding and was committed in bad faith or was
the
result of active and deliberate dishonesty or the Indemnitee actually received
an improper personal benefit in money, property or services or with respect
to
any criminal action or proceeding, had reasonable cause to believe that
Indemnitee’s action was unlawful. The termination of any Proceeding
by conviction, or upon a plea of nolo contendere or its equivalent, or an entry
of an order of probation prior to judgment, does not create a rebuttable
presumption that the Indemnitee did not meet the requisite standard of conduct.
In addition, the termination of or resignation
by Indemnitee shall not create an adverse presumption that Indemnitee is not
entitled to indemnification hereunder.
10. Agreement
to Advance Interim Expenses. The Company shall pay to Indemnitee
all Indemnifiable Expenses incurred by Indemnitee in connection with any
Proceeding, including a Proceeding by or in the right of the Company, in advance
of the final disposition of such Proceeding, if Indemnitee furnishes the Company
with a written affirmation by the Indemnitee of the Indemnitee’s good faith
belief that the standard of conduct necessary for indemnification by the Company
has been met and a written undertaking by or on behalf of the Indemnitee to
repay the amount of such Indemnifiable Expenses advanced to Indemnitee if it
is
finally determined by a court of competent jurisdiction that Indemnitee is
not
entitled under this Agreement to indemnification with respect to such
Indemnifiable Expenses. The terms and conditions of such undertaking
shall be determined by a quorum of the disinterested members of the Board of
Directors, if any, acting in good faith and as required by the proper exercise
of their duties or, if not available, then by the written opinion of independent
legal counsel or by the Company’s stockholders.
11. Procedure
for Payment of Interim Expenses. Indemnitee shall submit to the
Company a written request specifying the Indemnifiable Expenses for which
Indemnitee seeks an advancement under Section 10 of this Agreement,
together with documentation evidencing that Indemnitee has incurred such
Indemnifiable Expenses. Payment of Indenmifiable Expenses under
Section 10 shall be made no later than twenty (20) calendar days after the
Company’s receipt of such request and the affirmation and undertaking required
by Section 10.
12. Remedies
of Indemnitee.
(a) Right
to Petition Court. In the event that Indemnitee makes a request
for payment of Indemnifiable Amounts under Sections 3, 4 and 5 above or a
request for an advancement of Indemnifiable Expenses under Sections 10 and
11
above and the Company fails to make such payment or advancement in a timely
manner pursuant to the terms of this Agreement, Indemnitee may petition the
appropriate judicial authority to enforce the Company’s obligations under this
Agreement.
(b) Burden
of Proof. In any judicial proceeding brought under Section 12(a)
above, the Company shall have the burden of proving that Indemnitee is not
entitled to payment of Indemnifiable Amounts hereunder.
(c) Expenses. The
Company agrees to reimburse Indemnitee in full for any Expenses incurred by
Indemnitee in connection with investigating, preparing for, litigating,
defending or settling any action brought by Indemnitee under Section 12(a)
above, or in connection with any claim or counterclaim brought by the Company
in
connection therewith.
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(d) Validity
of Agreement. The Company shall be precluded from asserting in
any Proceeding, including, without limitation, an action under Section 12(a)
above, that the provisions of this Agreement are not valid, binding and
enforceable or that there is insufficient consideration for this Agreement
and
shall stipulate in court that the Company is bound by all the provisions of
this
Agreement.
(e) Failure
to Act Not a Defense. The failure of the Company (including its
Board of Directors or any committee thereof, independent legal counsel, or
stockholders) to make a determination concerning the permissibility of the
payment of Indemnifiable Amounts or the advancement of Indemnifiable Expenses
under this Agreement shall not be a defense in any action brought under Section
12(a) above, and shall not create a presumption that such payment or advancement
is not permissible.
13. Representations
and Warranties of the Company. The Company hereby represents and
warrants to Indemnitee as follows:
(a) Authority. The
Company has all necessary corporate power and authority to enter into, and
be
bound by the terms of, this Agreement, and the execution, delivery and
performance of the undertakings contemplated by this Agreement have been duly
authorized by the Company.
(b) Enforceability. This
Agreement, when executed and delivered by the Company in accordance with the
provisions hereof, shall be a legal, valid and binding obligation of the
Company, enforceable against the Company in accordance with its terms, except
as
such enforceability may be limited by applicable bankruptcy, insolvency,
moratorium, reorganization or similar laws affecting the enforcement of
creditors’ rights generally or general equitable principles, and to the extent
limited by applicable federal or state securities laws.
14. Insurance. The
Company will use commercially reasonable efforts to obtain and maintain a policy
or policies of insurance with reputable insurance companies providing the
members of the Board of Directors with coverage for losses from wrongful acts,
and to ensure the Company’s performance of its indemnification obligations under
this Agreement. In all policies of director and officer liability
insurance, Indemnitee shall be named as an insured in such a manner as to
provide Indemnitee at least the same rights and benefits as are accorded to
the
most favorably insured of the Company’s officers and
directors. Notwithstanding the foregoing, if the Company, after
employing commercially reasonable efforts as provided in this Section,
determines in good faith that such insurance is not reasonably available, if
the
premium costs for such insurance are disproportionate to the amount of coverage
provided, or if the coverage provided by such insurance is limited by exclusions
so as to provide an insufficient benefit, the Company shall use its commercially
reasonable efforts to obtain and maintain a policy or policies of insurance
with
coverage having features as similar as practicable to those described
above.
15. Fees
and Expenses. During the term of the Indemnitee’s service as a
director or officer, the Company shall promptly reimburse the Indemnitee for
all
expenses incurred by him in connection with his service as a director or officer
or member of any board committee or otherwise in connection with the Company’s
business.
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17. Successors. This
Agreement shall be (a) binding upon all successors and assigns of the Company
(including any transferee of all or a substantial portion of the business,
stock
and/or assets of the Company and any direct or indirect successor by merger
or
consolidation or otherwise by operation of law) and (b) binding on and shall
inure to the benefit of the heirs, personal representatives, executors and
administrators of Indemnitee. This Agreement shall continue for the
benefit of Indemnitee and such heirs, personal representatives, executors and
administrators after Indemnitee has ceased to have Corporate
Status.
18. Subrogation. In
the event of any payment of Indemnifiable Amounts under this Agreement, the
Company shall be subrogated to the extent of such payment to all of the rights
of contribution or recovery of Indemnitee against other persons, and Indemnitee
shall take, at the request of the Company, all reasonable action necessary
to
secure such rights, including the execution of such documents as are necessary
to enable the Company to bring suit to enforce such rights.
19. Change
in Law. To the extent that a change in applicable law (whether by
statute or judicial decision) shall permit broader indemnification than is
provided under the terms of the Charter, as amended, or Bylaws of the Company,
as amended, and this Agreement, Indemnitee shall be entitled to such broader
indemnification and this Agreement shall be deemed to be amended to such
extent.
20. Severability. Whenever
possible, each provision of this Agreement shall be interpreted in such a manner
as to be effective and valid under applicable law, but if any provision of
this
Agreement, or any clause thereof, shall be determined by a court of competent
jurisdiction to be illegal, invalid or unenforceable, in whole or in part,
such
provision or clause shall be limited or modified in its application to the
minimum extent necessary to make such provision or clause valid, legal and
enforceable, and the remaining provisions and clauses of this Agreement shall
remain fully enforceable and binding on the parties.
21. Indemnitee
as Plaintiff. Except as provided in Section 12 of this Agreement
and in the next sentence, Indemnitee shall not be entitled to payment of
Indemnifiable Amounts or advancement of Indemnifiable Expenses with respect
to
any Proceeding brought by Indemnitee against the Company, any Entity which
it
controls, any director or officer thereof, or any third party, unless (a) the
Proceeding is brought to enforce indemnification under this Agreement or
otherwise or (b) the Company’s Bylaws, as amended, the Charter, as amended, a
resolution of the Board of Directors or an agreement approved by the Board
of
Directors to which the Company is party expressly provide
otherwise. This Section shall not apply to affirmative defenses
asserted by Indemnitee in an action brought against Indemnitee.
22. Modifications
and Waiver. Except as provided in Section 19 above with
respect to changes in applicable law which broaden the right of Indemnitee
to be
indemnified by the
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Company,
no supplement, modification or amendment of this Agreement shall be binding
unless executed in writing by each 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 of this Agreement (whether or not similar),
nor
shall such waiver constitute a continuing waiver.
23. General
Notices. All notices, requests, demands and other communications
hereunder shall be in writing and shall be deemed to have been duly given (a)
when delivered by hand, (b) when transmitted by facsimile and receipt is
acknowledged, or (c) if mailed by certified or registered mail with postage
prepaid, on the third business day after the date on which it is so
mailed:
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(i) If
to Indemnitee, to:
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Xxxxxx
Xxxxxxxx
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000
Xxxxxx Xxx.
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Xxxxxxxxx,
XX 00000
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Phone:
000-000-0000
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Facsimile:
000-000-0000
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(ii) If
to the Company, to:
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Xxxxxxx
Properties, Inc.
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0000
Xxxxx Xxx., Xxx. 000
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Xxxxx
Xxxxxx, XX 00000
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Phone:
000-000-0000
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Facsimile:
000-000-0000
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Attn: Xxxxxxxx
Xxxxxx
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or
to
such other address as may have been furnished in the same manner by any party
to
the others.
24. Governing
Law. This Agreement shall be governed by and construed and
enforced under the laws of Maryland without giving effect to the provisions
thereof relating to conflicts of law.
25. Agreement
Governs. This Agreement is to be deemed consistent wherever
possible with relevant provisions of the Company’s Bylaws, as amended, and
Charter, as amended; however, in the event of a conflict between this Agreement
and such provisions, the provisions of this Agreement shall
control.
26. Counterparts. This
Agreement may be executed in any number of counterparts and by the parties
hereto in separate counterparts, each of which when so executed shall be deemed
to be an original and all of which taken together shall constitute one and
the
same agreement. Each party shall become bound by this Agreement
immediately upon affixing its signature hereto.
[Signature
Page Follows]
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IN
WITNESS WHEREOF, the parties hereto have executed this
Indemnification Agreement as of the day and year first above
written.
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COMPANY:
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XXXXXXX
PROPERTIES, INC.
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By:
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/s/ XXXX X. XXXXXX | |
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Name:
Xxxx X. Xxxxxx
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Title:
EVP
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INDEMNITEE:
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By:
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/s/ XXXXXX XXXXXXXX | |
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Xxxxxx
Xxxxxxxx
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