Exhibit 10.1
INDEMNIFICATION AGREEMENT
This Agreement, made and entered into as of the 10th day of
July, 2006 (the "Agreement"), by and between Reckson Associates Realty Corp., a
Maryland corporation (the "Company"), and Xxxxxx X. Xxxxx ("Indemnitee").
WHEREAS, at the request of the Company, Indemnitee currently
serves as a director of the Company and may, therefore, be subjected to claims,
suits or proceedings arising as a result of his service; and
WHEREAS, Section 2-418 of the Maryland General Corporation Law
(the "MGCL") sets forth the terms of permitted and required indemnification of,
and advancement of expenses to, directors and officers of a Maryland
corporation;
WHEREAS, as an inducement to Indemnitee to serve as such
director, the Company has agreed to indemnify Indemnitee against expenses and
costs incurred by Indemnitee in connection with any such claims, suits or
proceedings, to the fullest extent that is lawful; and
WHEREAS, the parties by this Agreement desire to set forth
their agreement regarding indemnification;
NOW, THEREFORE, in consideration of the premises and the
covenants contained herein, the Company and Indemnitee do hereby covenant and
agree as follows:
1. Acts or Omissions Covered by This Agreement.
This Agreement shall cover any act or omission by Indemnitee
after the date of his commencement of service as a director, regardless of
whether said act or omission occurred prior to the date of this Agreement, which
(i) occurs or is alleged to have occurred by reason of his being or having been
a director, (ii) occurs or is alleged to have occurred, during or after the time
when Indemnitee served as a director and (iii) gives rise to, or is the direct
or indirect subject of a claim in any threatened, pending or completed action,
suit or proceeding at any time or times whether during or after his service as a
director.
2. Indemnity.
(a) The Company shall indemnify the Indemnitee to the fullest
lawful extent permitted by Maryland law (including, without limitation,
indemnification permitted under Section 2-418(g) of the MGCL), as amended from
time to time, in connection with any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative or investigative (a
"Proceeding"), by reason of the fact that he is or was a director of the Company
or is or was serving at the request of the Company as a director, trustee,
officer, partner, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise and whether or not such action is by or in
the right of the Company or that other corporation, partnership, joint venture,
trust or other enterprise with respect to which the Indemnitee serves or has
served.
(b) Notwithstanding anything to the contrary in subsection
(a), the Company shall indemnify Indemnitee in a Proceeding initiated by
Indemnitee only if Indemnitee acted with the authorization of the Company in
initiating that proceeding. However, any proceeding brought by the Indemnitee to
enforce his rights under this Agreement shall not be subject to this subsection
(b).
(c) An indemnification under this Agreement shall be made upon
Indemnitee's written request to the Board of Directors of the Company (the
"Board of Directors"), setting forth the grounds and lawfulness of such
indemnification. For purposes of this Agreement, references to "other
enterprises" shall include, without limitation, employee benefit plans;
references to "fines" shall include any excise taxes assessed on a person with
respect to an employee benefit plan; and references to "serving at the request
of the Company" shall include any service as a trustee, director, officer,
employee or agent of any other partnership, trust or corporation which imposes
duties on, or involves services by, Indemnitee which are requested in writing by
the Board of Directors, or which involve services by such trustee, director,
officer, employee or agent with respect to an employee benefit plan, its
participants or beneficiaries.
3. Burden of Proof.
Indemnitee shall be presumed to be entitled to indemnification
for any act or omission covered in Section 1 or 2 of this Agreement. The burden
of proof of establishing that Indemnitee is not entitled to indemnification
because of the failure to fulfill some requirement of Maryland law, the charter
of the Company, or bylaws as in effect from time to time or this Agreement shall
be on the Company.
4. Notice by Indemnitee.
Indemnitee shall notify the Company in writing of any matter
with respect to which Indemnitee intends to seek indemnification hereunder as
soon as reasonably practicable following the receipt by Indemnitee of written
threat thereof, provided that failure to so notify the Company shall not
constitute a waiver by Indemnitee of his rights hereunder.
5. Advancement of Expenses.
In the event of any Proceeding involving Indemnitee which may
give rise to a right of indemnification from the Company pursuant to this
Agreement, the Company shall advance to Indemnitee amounts to cover expenses
(including fees and disbursements of counsel) incurred by Indemnitee in
connection with any Proceeding in advance of final disposition within one
business day after receipt by the Company of (i) an undertaking by or on behalf
of the Indemnitee to repay the amount advanced in the event that it shall be
ultimately determined in accordance with this Agreement that he is not entitled
to indemnification by the Company, (ii) a written affirmation by the Indemnitee
of his good faith belief that the standard of conduct necessary for
indemnification by the Company has been met and (iii) satisfactory evidence as
to the amount of such expenses. Indemnitee's written certification together with
a copy of the statement paid or to be paid by Indemnitee shall constitute
satisfactory evidence of the amount of such expenses.
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6. Defense of Claim.
The Indemnitee shall have the absolute right to employ his own
counsel in respect of any Proceeding; provided, that in the event that more than
one director or executive officer is entitled to indemnification under this
Agreement or a similar agreement arising out of the same Proceeding, all such
directors or executive officers, including Indemnitee, shall, to the extent
practicable, endeavor to use the same counsel; and further provided that the
counsel selected by the Indemnitee would not be precluded as a matter of
professional ethics from representing the Company or a person adverse to the
Company.
7. Non-Exclusivity of Right of Indemnification.
The indemnification rights granted to Indemnitee under this
Agreement shall not be deemed exclusive of, or in limitation of, any rights to
which Indemnitee may be entitled under Maryland law, the charter of the Company,
or bylaws, any other agreement, vote of stockholders or directors or otherwise.
8. Term of Agreement and Survival of Right of Indemnification.
(a) Subject to subparagraph (b) of this section, the term of
this Agreement shall continue for as long as the Indemnitee serves as a director
of the Company.
(b) The rights granted to Indemnitee hereunder shall continue
after termination as provided in Section 1 and shall inure to the benefit of
Indemnitee, his personal representative, heirs, executors, administrators and
beneficiaries, and this Agreement shall be binding upon the Company, its
successors and assigns.
9. Legal Fees and Expenses.
The Company shall pay all legal fees and expenses which
Indemnitee may incur to collect money due under this Agreement or as a result of
the Company's contesting the validity or enforceability of this Agreement.
10. Governing Law.
This Agreement shall be governed by the laws of the State of
Maryland.
11. Severability.
If any provision of this Agreement is determined to be invalid
or unenforceable, the invalidity or unenforceability shall not affect the
validity or enforceability of any other provision of this Agreement, and this
Agreement shall be interpreted as though the invalid or unenforceable provision
was not a part of this Agreement.
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12. Changes in Law.
This Agreement is intended to provide to Indemnitee, to the
fullest lawful extent permitted by Maryland law as in effect from time to time,
indemnification and advancement of expenses in connection with a Proceeding as
described in Sections 2 and 5 hereof; 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.
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The parties have executed this Agreement as of the day and year first
above stated.
RECKSON ASSOCIATES REALTY CORP.
By: /s/ Xxxxx X. Xxxxxxx
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Name: Xxxxx X. Xxxxxxx
Title: Chief Executive Officer
INDEMNITEE
/s/ Xxxxxx X. Xxxxx
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Name: Xxxxxx X. Xxxxx
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