INDEMNIFICATION AGREEMENT
Exhibit 10.9
This Indemnification Agreement (“Agreement”) is made as of ___, 2010 by and
between CoreSite Realty Corporation, a Maryland corporation (the “Company”), and
(“Indemnitee”).
RECITALS:
WHEREAS, directors, officers, and other persons in service to corporations or business
enterprises are being increasingly subjected to expensive and time-consuming litigation relating
to, among other things, matters that traditionally would have been brought only against the Company
or business enterprise itself;
WHEREAS, highly competent persons have become more reluctant to serve as directors or in other
capacities 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 corporation;
WHEREAS, the Board of Directors of the Company (the “Board”) has determined that the
increased difficulty in attracting and retaining such persons is detrimental to the best interests
of the Company and that the Company should act to assure such persons that there will be increased
certainty of such protection in the future;
WHEREAS, (i) the charter of the Company (the “Charter”) authorize and the Bylaws of
the Company (the “Bylaws”) require indemnification of the officers and directors of the
Company, (ii) Indemnitee may also be entitled to indemnification pursuant to the Maryland General
Corporation Law (“MGCL”) and (iii) the indemnification provisions set forth in the Charter,
the Bylaws and the MGCL are not exclusive and contemplate that contracts may be entered into
between the Company and members of the Board, officers and other persons with respect to
indemnification;
WHEREAS, this Agreement is a supplement to and in furtherance of the Charter and Bylaws and
any resolutions adopted pursuant thereto, and shall not be deemed a substitute therefore, nor to
diminish or abrogate any rights of Indemnitee thereunder, and
WHEREAS, (i) Indemnitee does not regard the protection available under the Charter, Bylaws and
insurance as adequate in the present circumstances, (ii) Indemnitee may not be willing to serve or
continue to serve as a director without adequate protection, (iii) the Company desires Indemnitee
to serve in such capacity, and (iv) Indemnitee is willing to serve, continue to serve and to take
on additional service for or on behalf of the Company on the condition that he be so indemnified.
AGREEMENT:
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. (a) As used in this Agreement:
“Affiliate” of any specified Person shall mean any other Person controlling,
controlled by or under common control with such specified Person.
“Change in Control” means a change in control of the Company occurring after the
date hereof 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 Exchange 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 date hereof (i) any “person” (as
such term is used in Sections 13(d) and 14(d) of the Exchange Act) is or becomes the
“beneficial owner” (as defined in Rule 13d-3 under the Exchange Act), directly or
indirectly, of securities of the Company representing 15% or more of the combined voting
power of all of the Company’s then-outstanding securities entitled to vote generally in the
election of directors without the prior approval of at least two-thirds of the members of
the Board in office immediately prior to such person’s attaining such percentage interest;
(ii) 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
then in office, as a consequence of which members of the Board in office immediately prior
to such transaction or event constitute less than a majority of the Board thereafter; or
(iii) at any time, a majority of the members of the Board are not individuals (A) who were
directors as of the date hereof or (B) whose election by the Board or nomination for
election by the Company’s stockholders was approved by the affirmative vote of at least
two-thirds of the directors then in office who were directors as of the date hereof or
whose election for nomination for election was previously so approved.
“Corporate Status” describes the status of a person who is or was a director,
officer, employee or agent of (i) the Company or (ii) any other corporation, limited
liability company, partnership or joint venture, trust, employee benefit plan or other
enterprise which such person is or was serving at the request of the Company. As a
clarification and without limiting the circumstances in which Indemnitee may be serving at
the request of the Company, service by Indemnitee shall be deemed to be at the request of
the Company if Indemnitee serves or served as a director, trustee, officer, partner,
manager, managing member, fiduciary, employee or agent of any corporation, partnership,
limited liability company, joint venture, trust, employee benefit plan or other enterprise
(i) of which a majority of the voting power or equity interest is owned directly or
indirectly by the Company or (ii) the management of which is controlled directly or
indirectly by the Company.
“Disinterested Director” means a director of the Company who is not and was not a
party to the Proceeding in respect of which indemnification and/or advance of Expenses is
is sought by Indemnitee.
“Enterprise” shall mean the Company and any other corporation, limited liability
company, partnership, joint venture, trust, employee benefit plan or other enterprise of
which Indemnitee is or was serving at the request of the Company as a director, officer,
employee, agent or fiduciary.
“Expenses” shall mean all reasonable costs, expenses, fees and charges (including
without limitation) attorneys’ fees, retainers, court costs, transcript costs, fees of
experts, witness fees, travel expenses, duplicating costs, printing and binding costs,
telephone
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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, being or preparing to be a witness in, or otherwise
participating in, a Proceeding. Expenses also shall include, without limitation, (i)
expenses incurred in connection with any appeal resulting from, incurred by Indemnitee in
connection with, arising out of respect of or relating to, any Proceeding, including
without limitation, the premium, security for, and other costs relating to any cost bond,
supersedes bond, or other appeal bond or its equivalent, (ii) for purposes of Section 12(e)
only, expenses incurred by Indemnitee in connection with the interpretation, enforcement or
defense of Indemnitee’s rights under this Agreement, by litigation or otherwise, (iii) any
federal, state, local or foreign taxes imposed on Indemnitee as a result of the actual or
deemed receipt of any payments under this Agreement, and (iv) any interest, assessments or
other charges in respect of the foregoing.
“Exchange Act” shall mean the Securities Exchange Act of 1934, as amended.
“Indemnity Obligations” shall mean all obligations of the Company to
Indemnitee under this Agreement, including the Company’s obligations to provide
indemnification to Indemnitee and advance Expenses to Indemnitee under this Agreement.
“Independent Counsel” shall mean a law firm, or a member of a law firm, that is
experienced in matters of corporation law and neither presently 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 (other than with respect to matters concerning the Indemnitee
under this Agreement, or of other indemnitees under similar indemnification agreements), or
(ii) any other party to the Proceeding giving rise to a claim for indemnification
hereunder; provided, however, that 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.
“Liabilities” means all claims, liabilities, damages, losses, judgments, orders,
fines, penalties and other amounts payable that are actually incurred by Indemnitee in
connection with, arising out of, or in respect of or relating to any Proceeding, including,
without limitation, amounts paid in settlement in any Proceeding and all costs and expenses
in complying with any judgment, order or decree issued or entered in connection with any
Proceeding or any settlement agreement, stipulation or consent decree entered into or
issued in settlement of any Proceeding. For the purpose hereof, references to “fines”
shall include any excise tax assessed with respect to any employee benefit plan.
“Person” shall mean any individual, corporation, partnership, limited partnership,
limited liability company, trust, governmental agency or body or any other legal entity.
“Proceeding” shall mean any threatened, pending or completed action, claim, suit,
arbitration, alternate dispute resolution mechanism, formal or informal hearing, inquiry or
investigation, litigation, inquiry, administrative hearing or any other actual, threatened
or completed judicial, administrative or arbitration proceeding (including, without
limitation, any such proceeding under the Securities Act of 1933, as amended, or the
Exchange Act or any other federal law, state law, statute or regulation), whether brought
in the right of the Company or otherwise, and whether of a civil, criminal, administrative
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or investigative nature, in each case, in which Indemnitee was, is or will be, or is
threatened to be, involved as a party, witness or otherwise by reason of the Indemnitee’s
Corporate Status, by reason of any actual or alleged action taken or omission by Indemnitee
or of any action or omission on Indemnitee’s part while acting in Indemnittee’s Corporate
Status, in each case whether or not Indemnitee still has such Corporate Status at the time
any liability or expense is incurred for which indemnification, reimbursement, or
advancement of Expenses can be provided under this Agreement.
“Sponsor Entities” means (i) The Carlyle Group and (ii) any be Affiliate of The
Carlyle Group, provided, however, that neither the Company nor any of its
subsidiaries shall be considered Sponsor Entities hereunder.
Section 2. General. The Company shall indemnify, and advance Expenses to, Indemnitee
(a) as provided in this Agreement and (b) otherwise to the maximum 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
2 shall include, without limitation, the rights set forth in the other sections of this Agreement,
including any additional indemnification permitted by Section 2-418(g) of the MGCL.
Section 3. Standard for Indemnification. If, by reason of Indemnitee’s Corporate
Status, Indemnitee is, or is threatened to be, made a party to any Proceeding, Indemnitee shall be
indemnified against all Expenses and Liabilities incurred by him or on his behalf in connection
with any such Proceeding unless it is established that (a) the act or omission of Indemnitee was
material to the matter giving rise to the Proceeding and (i) was committed in bad faith or (ii) was
the result of active and deliberate dishonesty, (b) Indemnitee actually received an improper
personal benefit in money, property or services or (c) in the case of any criminal Proceeding,
Indemnitee had reasonable cause to believe that his conduct was unlawful.
Section 4. Certain Limits on Indemnification. Notwithstanding any other provision of
this Agreement (other than Section 5), Indemnitee shall not be entitled to:
(a) indemnification hereunder if the Proceeding was one by or in the right of the Company and
Indemnitee is adjudged to be liable to the Company;
(b) indemnification hereunder if Indemnitee is adjudged to be liable on the basis that
personal benefit was improperly received in any Proceeding charging improper personal benefit to
Indemnitee, whether or not involving action in the Indemnitee’s Corporate Status; or
(c) indemnification or advance of Expenses hereunder if the Proceeding was brought by
Indemnitee unless: (i) the Proceeding was brought to enforce indemnification under this Agreement,
but then only to the extent in accordance with and as authorized by Section 7 and Section 12 of
this Agreement, or (ii) the Charter or Bylaws, a resolution of the stockholders entitled to vote
generally in the election of directors or of the Board or an agreement approved by the Board to
which the Company is a party expressly provide otherwise.
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Section 5. Court-Ordered Indemnification. Notwithstanding any other provision of this
Agreement, 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, 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 Expenses.
Section 6. 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 was or is, by reason of his Corporate Status, made a party to (or
otherwise becomes a participant in) any Proceeding and is successful, on the merits or otherwise,
in the defense of such Proceeding, Indemnitee shall be indemnified for all Expenses and Liabilities
incurred by him or on his 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 Liabilities and Expenses incurred by him or on his behalf in connection with each
such claim, issue or matter, allocated on a reasonable and proportionate basis. For purposes of
this Section 6 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. Advances of Expenses. Notwithstanding any provision of this Agreement to
the contrary, the Company shall advance, the Expenses incurred by Indemnitee in connection with any
Proceeding, and such advancement shall be made within ten (10) days after the receipt by the
Company of a statement or statements requesting such advances from time to time, whether prior to
or after final disposition of any Proceeding. Advances shall be unsecured and interest free.
Advances shall be made without requiring a preliminary determination of Indemnitee’s ultimate
entitlement to indemnification under the other provisions of this Agreement. Advances shall
include any and all Expenses incurred pursuing an action to enforce this right of advancement,
including Expenses incurred preparing and forwarding statements to the Company to support the
advances claimed. 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 to reimburse the portion of any Expenses advanced to Indemnitee relating to
claims, issues or matters in the Proceeding as to which it shall ultimately be established that the
standard of conduct for indemnification has not been met by Indemnitee and which have not been
successfully resolved as described in Section 6 of this Agreement. The affirmation and undertaking
shall be 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 the extent
that Expenses
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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 7 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.
Section 8. Indemnification For Expenses of a Witness. Notwithstanding any other
provision of this Agreement, to the fullest extent permitted by applicable law and to the extent
that Indemnitee is, by reason of Indemnitee’s Corporate Status, a witness in any Proceeding to
which Indemnitee is not a party, he shall be indemnified against all Expenses and Liabilities
suffered or incurred by him or on his behalf in connection therewith.
Section 9. Procedure for Notification and Defense of Claim.
(a) Indemnitee shall notify the Company in writing of any Proceeding with respect to which
Indemnitee intends to seek indemnification or advancement of Expenses hereunder as soon as
reasonably practicable following the receipt by Indemnitee of written notice thereof. The written
notification to the Company shall include a description of the nature of the Proceeding and the
facts underlying the Proceeding. To obtain indemnification under this Agreement, Indemnitee shall
submit to the Company a written request, including therein or therewith 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 following the final
disposition of such action, suit or proceeding. Any delay or failure by Indemnitee to notify the
Company hereunder will not relieve the Company from any liability which it may have to Indemnitee
hereunder or otherwise under this Agreement, and any delay or failure in so notifying the Company
shall not constitute a waiver by Indemnitee of any rights 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. The Secretary of the Company shall, promptly upon receipt of such a request for
indemnification, advise the Board in writing that Indemnitee has requested indemnification.
(b) In the event Indemnitee is entitled to indemnification and/or advancement of Expenses with
respect to any Proceeding, Indemnitee may, at Indemnitee’s option, (i) retain counsel selected by
Indemnitee and approved by the Company (which approval shall not to be unreasonably withheld,
conditioned or delayed) to defend Indemnitee in such Proceeding, at the sole expense of the
Company, or (ii) have the Company assume the defense of Indemnitee in such Proceeding, in which
case the Company shall assume the defense of such Proceeding with counsel selected by the Company
and approved by Indemnitee (which approval shall not be unreasonably withheld, conditioned or
delayed) within ten (10) days of the Company’s receipt of written notice of Indemnitee’s election
to cause the Company to do so. If the Company is required to assume the defense of any such
Proceeding, it shall engage legal counsel for such defense, and the Company shall be solely
responsible for all fees and expenses of such legal counsel and otherwise of such defense. Such
legal counsel may represent both Indemnitee and the Company (and/or any other party or parties
entitled to be indemnified by the Company with respect to such matter) unless, in the reasonable
opinion of legal counsel to Indemnitee, there is a conflict of interest between Indemnitee and the
Company (or any other such party or parties) or there are legal defenses available to Indemnitee
that are not available to the Company (or any such other party or parties). Notwithstanding either
party’s assumption of responsibility for defense of a Proceeding, each party shall have the right
to engage separate counsel at its own expense. The party having responsibility for defense of a
Proceeding shall
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provide the other party and its counsel with all copies of pleadings and material
correspondence relating to the proceeding. Indemnitee and the Company shall reasonably cooperate
in the defense of any Proceeding with respect to which indemnification is sought hereunder,
regardless of whether the Company or Indemnitee assumes the defense thereof. Indemnitee may not
settle or compromise any Proceeding without the prior written consent of the Company, which consent
shall not be unreasonably withheld, conditioned or delayed. The Company may not settle or
compromise any proceeding without the prior written consent of Indemnitee, which consent shall not
be unreasonably withheld, conditioned or delayed.
Section 10. Procedure Upon Application for Indemnification.
(a) Upon written request by Indemnitee for indemnification pursuant to Section 9(a) above, 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 in Control shall have occurred, by
Independent Counsel, in a written opinion to the Board, a copy of which shall be delivered to
Indemnitee, which Independent Counsel shall be selected by the Indemnitee and approved by the Board
in accordance with Section 2-418(e)(2)(ii) of the MGCL, which approval will not be unreasonably
withheld; or (ii) if a Change in Control shall not have occurred, (A) by the Board by a majority
vote of a quorum consisting of Disinterested Directors or, if such a quorum cannot be obtained,
then by a majority vote of a duly authorized committee of the Board consisting solely of one or
more Disinterested Directors, (B) if Independent Counsel has been selected by the Board in
accordance with Section 2-418(e)(2)(ii) of the MGCL and approved by the Indemnitee, which approval
shall not be unreasonably withheld, by Independent Counsel, in a written opinion to the Board, a
copy of which shall be delivered to Indemnitee or (C) if so directed by a majority of the members
of the Board, 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 or
Independent Counsel if retained pursuant to clause (ii)(B) of this Section 10(a). Any Expenses
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.
(b) The Company shall pay the reasonable fees and expenses of Independent Counsel, if one is
appointed.
(c) In the event the determination of entitlement to indemnification is to be made by
Independent Counsel pursuant to Section 9(a) hereof, (i) the Independent Counsel shall be selected
by the Company within ten (10) days of the Submission Date (the cost of each such counsel to be
paid by the Company), (ii) shall give written notice to Indemnitee advising it of the identity of
the Independent Counsel so selected and (iii) Indemnitee may, within ten (10) days after such
written notice of selection shall have been given, deliver to the Company Indemnitee’s written
objection to such selection. Absent a timely objection, the person so selected shall act as
Independent Counsel. If a written objection is so made by Indemnitee, the Independent Counsel so
selected may not serve as Independent Counsel unless and until such objection is withdrawn. If no
Independent Counsel shall have been selected and not objected to before the later of (i) thirty
(30) days after the later of submission by Indemnitee of a written request for
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indemnification pursuant to Section 9(a) hereof (the “Submission Date”) and (ii) ten (10)
days after the final disposition of the Proceeding, each of the Company and Indemnitee shall select
a law firm or member of a law firm meeting the qualifications to serve as Independent Counsel, and
such law firms or members of law firms shall select the Independent Counsel. Upon the due
commencement of any judicial proceeding or arbitration pursuant to Section 12(a) of this Agreement,
Independent Counsel shall be discharged and relieved of any further responsibility in such capacity
(subject to the applicable standards of professional conduct then prevailing).
Section 11. Presumptions and Effect of Certain Proceedings.
(a) In making a determination with respect to entitlement to indemnification hereunder, the
person or persons or entity making such determination shall, to the fullest extent not prohibited
by law, presume that Indemnitee is entitled to indemnification under this Agreement if Indemnitee
has submitted a request for indemnification in accordance with Section 10(a) of this Agreement, and
the Company shall, to the fullest extent not prohibited by law, have the burden of proof to
overcome that presumption in connection with the making by any person, persons or entity of any
determination contrary to that presumption. Neither the failure of the Company (including by its
directors or independent legal counsel) to have made a determination prior to the commencement of
any action pursuant to this Agreement that indemnification is proper in the circumstances because
Indemnitee has met the applicable standard of conduct, nor an actual determination by the Company
(including by its directors or independent legal counsel) that Indemnitee has not met such
applicable standard of conduct, shall be a defense to the action or create a presumption that
Indemnitee has not met the applicable standard of conduct.
(b) Subject to Section 12(e), if the person, persons or entity empowered or selected under
Section 9 of this Agreement to determine whether Indemnitee is entitled to indemnification shall
not have made a determination within sixty (60) days after receipt by the Company of the request
therefore, the requisite determination of entitlement to indemnification shall, to the fullest
extent not prohibited by law, be deemed to have been made and Indemnitee shall be entitled to such
indemnification, absent a prohibition of such indemnification under applicable law; provided,
however, that such 60-day period may be extended for a reasonable time, not to exceed an additional
sixty (60) days, if (i) the determination is to be made by Independent Counsel and Indemnitee
objects to the Company’s selection of Independent Counsel and (ii) the Independent Counsel
ultimately selected requires such additional time for the obtaining or evaluating of documentation
and/or information relating thereto.
(c) The termination of any Proceeding or of any claim, issue or matter therein, by judgment,
order, settlement or conviction, or upon a plea of nolo contendere or its
equivalent, shall not (except as otherwise expressly provided in this Agreement) adversely affect
the right of Indemnitee to indemnification or create a presumption that Indemnitee did not act in
good faith and in a manner which he reasonably believed to be in or not opposed to the best
interests of the Company or, with respect to any criminal Proceeding, that Indemnitee had
reasonable cause to believe that Indemnitee’s conduct was unlawful.
(d) The knowledge and/or actions, or failure to act, of any director, officer, agent or
employee of the Enterprise shall not be imputed to Indemnitee for purposes of determining the right
to indemnification under this Agreement.
Section 12. Remedies of Indemnitee.
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(a) Subject to Section 12(e), in the event that (i) a determination is made pursuant to
Section 10(a) of this Agreement that Indemnitee is not entitled to indemnification under this
Agreement, (ii) advancement of Expenses is not timely made pursuant to Section 7 of this Agreement,
(iii) no determination of entitlement to indemnification shall have been made pursuant to Section
10(a) of this Agreement within ninety (90) 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 (10) days after receipt by the Company of a written request therefore, (v)
payment of indemnification pursuant to any other section of this Agreement, the Charter or the
Bylaws is not made within ten (10) days after a determination has been made that Indemnitee is
entitled to indemnification, or (vi) in the event that the Company or any other person takes or
threatens to take any action to declare this Agreement void or unenforceable, or institutes any
litigation or other action or Proceeding designed to deny, or to recover from, the Indemnitee the
benefits provided or intended to be provided to the Indemnitee hereunder, Indemnitee shall be
entitled to an adjudication by a court of Indemnitee’s entitlement to such indemnification and/or
advancement of Expenses. Alternatively, Indemnitee, at Indemnitee’s 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. The Company shall not oppose Indemnitee’s right to seek any
such adjudication or award in arbitration.
(b) In the event that a determination shall have been made pursuant to Section 10(a) of this
Agreement that Indemnitee is not entitled to indemnification, any judicial proceeding or
arbitration commenced pursuant to this Section 12 shall be conducted in all respects as a de novo
trial, or arbitration, on the merits and Indemnitee shall not be prejudiced by reason of that
adverse determination. In any judicial proceeding or arbitration commenced pursuant to this
Section 12, the Company shall have the burden of proving Indemnitee is not entitled to
indemnification or advancement of Expenses, as the case may be.
(c) If a determination shall have been made pursuant to Section 10(a) 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 12, absent a prohibition of
such indemnification under applicable law.
(d) The Company shall, to the fullest extent not prohibited by law, be precluded from
asserting in any judicial proceeding or arbitration commenced pursuant to this Section 12 that the
procedures and presumptions of this Agreement are not valid, binding and enforceable and shall
stipulate in any such court or before any such arbitrator that the Company is bound by all the
provisions of this Agreement.
(e) In the event that Indemnitee, pursuant to this Section 12, seeks a judicial adjudication
of or an award in arbitration to enforce his rights under, or to recover damages for breach of,
this Agreement, if Indemnitee is successful, 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 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.
(f) Interest shall be paid by the Company to Indemnitee at the maximum rate allowed to be
charged for judgments under the Courts and Judicial Proceedings Article of the
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Annotated Code of Maryland for amounts which the Company pays or is obligated to pay for the
period commencing with the date on which the Company was requested to advance expenses in
accordance with Section 7 of this Agreement or to make the determination of entitlement to
indemnification under Section 12(a) above and ending on the date such payment is made to Indemnitee
by the Company
Section 13. Non-exclusivity; Survival of Rights; Insurance; Privacy of Indemnification;
Subrogation.
(a) The rights of indemnification and to receive advancement 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, the Bylaws, any agreement, a vote of stockholders or a
resolution 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 Indemnitee’s Corporate Status prior to
such amendment, alteration or repeal. To the extent that a change in Maryland law, whether by
statute or judicial decision, permits greater indemnification or advancement of Expenses than would
be afforded currently under the Charter, the Bylaws and/or this Agreement, it is the intent of the
parties hereto that Indemnitee shall enjoy by this Agreement the greater benefits so afforded by
such change. No right or remedy herein conferred is intended to be exclusive of any other right or
remedy, and every other right and remedy shall be cumulative and in addition to every other right
and remedy given hereunder or now or hereafter existing at law or in equity or otherwise. The
assertion or employment of any right or remedy hereunder, or otherwise, shall not prevent the
concurrent assertion or employment of any other right or remedy.
(b) The Company hereby acknowledges that Indemnitee has certain rights to indemnification,
advancement of Expenses and/or insurance provided by the Sponsor Entities. The Company hereby
agrees (i) that it is the Indemnitor of first resort for any claims made against Indemnitee by
reason of his Corporate Status (i.e., its obligations to Indemnitee are primary and any obligation
of the Sponsor Entities to advance Expenses or to provide indemnification for the same Expenses or
Liabilities incurred by Indemnitee by reason of his Corporate Status are secondary), (ii) that it
shall be required to advance the full amount of Expense incurred by Indemnitee by reason of his
Corporate Status and shall be liable for the full amount of all Expenses and Liabilities to the
extent legally permitted and as required by the terms of this Agreement and the Company’s Charter
or Bylaws (or any other agreement between the Company and Indemnitee), without regard to any rights
Indemnitee may have against the Sponsor Entities, and, (iii) that it irrevocably waives,
relinquishes and releases the Sponsor Entities from any and all claims against the Sponsor Entities
for contribution or subrogation in respect of any claims made against Indemnitee by reason of his
Corporate Status. The Company further agrees that no advancement or payment by the Sponsor Parties
on behalf of Indemnitee with respect to any claim for which Indemnitee has sought indemnification
from the Company pursuant to this Agreement shall affect the foregoing and the Sponsor Entities
shall have a right of contribution and/or be subrogated to the extent of such advancement or
payment to all of the rights of recovery of Indemnitee against the Company as permitted by this
Agreement. The Company and Indemnitee agree that the Sponsor Entities are express third party
beneficiaries of the terms of this Section 16(b).
(c) [Except as provided in paragraph (b) above, t][T]he Company shall not be liable under this
Agreement to make any payment of amounts otherwise indemnifiable or
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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. [Include language in bold for directors nominated by Sponsor Entities]
(d) To the extent that the Company maintains an insurance policy or policies providing
liability insurance for directors, officers, employees, or agents of the Company or of any other
corporation, partnership, joint venture, trust, employee benefit plan or other enterprise which
such person serves at the request of the Company, Indemnitee shall be covered by such policy or
policies in accordance with its or their terms to the maximum extent of the coverage available for
any such director, officer, employee or agent under such policy or policies. If, at the time of
the receipt of a notice of a claim pursuant to the terms hereof, the Company has director and
officer liability insurance in effect, the Company shall give prompt notice of the commencement of
such proceeding to the insurers in accordance with the procedures set forth in the respective
policies. The Company shall thereafter take all necessary or desirable action to cause such
insurers to pay, on behalf of the Indemnitee, all amounts payable as a result of such proceeding in
accordance with the terms of such policies.
(e) The indemnification provided for in this Agreement will remain in full force and effect
regardless of any investigation made by or on behalf of Indemnitee.
Section 14. Duration of Agreement; Not Employment Contract. This Agreement shall
continue until and terminate on the date that Indemnitee is no longer subject to any actual or
possible Proceeding (including any rights of appeal thereto and any Proceeding commenced by
Indemnitee pursuant to Section 12 of this Agreement). This Agreement shall be binding upon the
Company and its successors and assigns and shall inure to the benefit of Indemnitee and
Indemnitee’s heirs, executors and administrators. This Agreement shall not be deemed an employment
contract between the Company (or any of its subsidiaries or any Enterprise) and Indemnitee.
Indemnitee specifically acknowledges that Indemnitee’s employment with the Company (or any of its
subsidiaries or any Enterprise), if any, is at will, and the Indemnitee may be discharged at any
time for any reason, with or without cause, except as may be otherwise provided in any written
employment contract between Indemnitee and the Company (or any of its subsidiaries or any
Enterprise), other applicable formal severance policies duly adopted by the Board, or, with respect
to service as a director of the Company, by the Charter, the Bylaws and the MGCL.
Section 15. 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 shall remain enforceable to the fullest extent permitted by
law; (b) such provision or provisions shall be deemed reformed to the extent necessary to conform
to applicable law and to give the maximum effect to the intent of the parties hereto; and (c) 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 16. Enforcement.
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(a) The Company expressly confirms and agrees that it has entered into this Agreement and
assumed the obligations imposed on it hereby in order to induce Indemnitee to serve as a director
or officer of the Company, and the Company acknowledges that Indemnitee is relying upon this
Agreement in serving as a director or officer of the Company.
(b) This Agreement constitutes the entire agreement between the parties hereto with respect to
the subject matter hereof and supersedes all prior agreements and understandings, oral, written and
implied, between the parties hereto with respect to the subject matter hereof; provided, however,
that this Agreement is a supplement to and in furtherance of the Charter, the Bylaws and applicable
law, and shall not be deemed a substitute therefore, nor to diminish or abrogate any rights of
Indemnitee thereunder.
Section 17. Modification and Waiver. No supplement, modification or amendment of this
Agreement shall be binding unless executed in writing by the parties thereto. 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 nor shall any waiver constitute a continuing waiver.
Section 18. Notices. All notices, requests, demands and other communications under
this Agreement shall be in writing and shall be deemed to have been duly given if (a) delivered by
hand and receipted for by the party to whom said notice or other communication shall have been
directed, (b) mailed by certified or registered mail with postage prepaid, on the third business
day after the date on which it is so mailed, (c) mailed by reputable overnight courier and
receipted for by the party to whom said notice or other communication shall have been directed or
(d) sent by facsimile transmission, with receipt of oral confirmation that such transmission has
been received:
(a) If to Indemnitee, at the address indicated on the signature page of this Agreement, or
such other address as Indemnitee shall provide to the Company.
(b) If to the Company to
or to any other address as may have been furnished to Indemnitee by the Company.
Section 19. Applicable Law and Consent to Jurisdiction. This Agreement and the legal
relations among the parties shall be governed by, and construed and enforced in accordance with,
the laws of the State of Maryland, without regard to its conflict of laws rules. The Company and
Indemnitee hereby irrevocably and unconditionally (i) agree that any action or proceeding arising
out of or in connection with this Agreement shall be brought only in the United States District
Court For the District of Maryland, Northern Division (the “Maryland Court”), and not in
any other state or federal court in the United States of America or any court in any other country,
(ii) consent to submit to the exclusive jurisdiction of the Maryland Court for purposes of any
action or proceeding arising out of or in connection with this Agreement, (iii) waive any objection
to the laying of venue of any such action or proceeding in the Maryland Court, and (iv) waive, and
agree not to plead or to make, any claim that any such action or proceeding brought in the Maryland
Court has been brought in an improper or inconvenient forum.
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Section 20. 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. Only one such counterpart signed by the party against whom
enforceability is sought needs to be produced to evidence the existence of this Agreement.
Section 21. Third-Party Beneficiaries. The Sponsor Entities are intended third-party
beneficiaries of this Agreement.
Section 22. Miscellaneous. Use of the masculine pronoun shall be deemed to include
usage of the feminine pronoun where appropriate. 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.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be signed as of the day and year
first above written.
| CORESITE REALTY CORPORATION | INDEMNITEE | |||||||||
By: |
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Name:
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Name: | |||||||||
Office:
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Address: | |||||||||
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EXHIBIT A
FORM OF AFFIRMATION AND UNDERTAKING TO REPAY EXPENSES
ADVANCED
The Board of Directors of CoreSite Realty Corporation
Re: Undertaking to Repay Expenses Advanced
Ladies and Gentlemen:
This undertaking is being provided pursuant to that certain Indemnification Agreement dated
the day of , 2010, by and between CoreSite Realty Corporation, 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 my good faith belief that at all
times, insofar as I was involved as [a director] [an officer] of the Company, in any of the facts
or events giving rise to the Proceeding, I (1) did not act with bad faith or active or deliberate
dishonesty, (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 relating to the claims, issues or matters
in the Proceeding as to which the foregoing findings have been established.
IN WITNESS WHEREOF, I have executed this Affirmation and Undertaking on this day of
, 2010.
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