EXHIBIT 10.19
[AMENDED AND RESTATED] INDEMNIFICATION AGREEMENT
THIS [AMENDED AND RESTATED] INDEMNIFICATION AGREEMENT (this
"Agreement"), is made and entered into as of the ___ day of ___________, 1998,
by and between POST PROPERTIES, INC., a Georgia corporation (the "Company"),
and _______________, an officer or director of the Company ("Indemnitee"). For
the purposes of this Agreement, all references to the "Company" shall include
all subsidiaries, affiliates, corporations, partnerships, joint ventures,
enterprises, employee benefit plans, trusts and other entities on behalf of
which Indemnitee serves or will serve at the Company's request as an officer,
director, partner, trustee, employee or agent or in a related capacity.
WITNESSETH:
WHEREAS, Indemnitee has agreed to serve, at the request of the Company,
as an officer or director of the Company;
[WHEREAS, the parties hereto have executed that certain Indemnification
Agreement dated as of July 22, 1993, which agreement is hereby amended and
restated in its entirety; and]
WHEREAS, Indemnitee is willing to serve on behalf of the Company on the
condition that he or she be indemnified, and that he or she have litigation
expenses advanced, to the maximum extent permitted by law.
NOW, THEREFORE, in consideration of Indemnitee's agreement to serve as
an officer or director of the Company, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties do hereby agree as follows:
1. Mandatory Indemnification.
(a) General. The Company shall indemnify and hold harmless
Indemnitee to the maximum extent provided for in this Agreement, and, to the
extent that applicable law from time to time in effect shall permit
indemnification that is broader than provided in this Agreement, then to the
maximum extent authorized by law. All amounts payable under the Company's
indemnification obligation shall be paid within thirty (30) days of Indemnitee's
request therefor.
(b) Actions Other Than Derivative Actions. In connection with any
threatened, pending or completed claim, action, suit or proceeding to which
Indemnitee is made or is threatened to be made a named defendant or respondent
("Party"), whether civil, criminal, administrative or investigative, and whether
formal or informal (an "Action"), but not including any Action by or in the
right of the Company (a "Derivative Action"), the Company hereby agrees to
indemnify and hold Indemnitee harmless from and against any judgment,
settlement, penalty, fine (including any excise tax assessed with respect to any
employee benefit plan), interest and reasonable expense (including attorneys'
fees) actually incurred by him or her by reason of the fact that Indemnitee is
or was an officer, director, employee or agent of the Company, or has liability
under Section 1l(a) of the Securities Act of 1933, as amended, or is or was
serving at the request of the Company as an officer, director, agent or
fiduciary of any corporation, partnership, joint venture, employee benefit plan,
trust or other enterprise; provided, that Indemnitee conducted himself or
herself in good faith and reasonably believed (i) in the case of conduct in his
of her official capacity, that such conduct was in the best interests of the
Company; (ii) in all other cases, that such conduct was at least not opposed to
the best interests of the Company; (iii) in the case of any criminal Action,
that the Indemnitee had no reasonable cause to believe that such conduct was
unlawful; and (iv) in the case of conduct with
2
respect to any employee benefit plan, that the Indemnitee acted in a manner he
or she believed to be good faith to be in the interests of the participants in
and beneficiaries of the plan. Whether an Action is threatened, and whether
Indemnitee is threatened to be made a Party thereto, shall be determined by
Indemnitee in his reasonable judgment.
(c) Derivative Actions. In connection with any Derivative Action,
the Company hereby agrees to indemnify and hold Indemnitee harmless from and
against any reasonable expenses actually incurred by him or her (including
amounts paid in settlement but not including amounts paid as a judgment, penalty
or fine in respect of any such action) by reason of the fact that Indemnitee is
or was an officer, director, partner, trustee, employee or agent of the Company;
provided, that Indemnitee met the relevant standard of conduct described in
Section 1(b) hereof.
(d) Termination of Action. The termination of any Action by
judgment, order, settlement, conviction, or upon a plea of nolo contendere or
its equivalent shall not, of itself, create a presumption that Indemnitee did
not meet the relevant standard of conduct described in Section 1(b) hereof.
(e) Conduct of Indemnitee. Notwithstanding any foregoing provision
to the contrary, under no circumstance shall the Company indemnify or hold
Indemnitee harmless from and against any liability for judgments, settlements,
penalties, fines (including excise taxes assessed with respect to any employee
benefit plan), or expenses (including attorneys' fees) incurred by Indemnitee in
a proceeding in which Indemnitee is adjudged liable to the Company or is
subjected to injunctive relief in favor of the Company (i) for any
appropriation, in violation of his or her duties, of any business opportunity of
the Company, (ii) for acts or omissions that involve intentional misconduct or
knowing violation of law, (iii) for the types of liability set forth in Section
14-2-832
3
of the Georgia Business Corporation Code (unlawful distributions), or (iv) for
any transaction from which he or she received an improper personal benefit.
2. Partial Indemnification. If Indemnitee is entitled under any
provision of this Agreement to indemnification by the Company for some or a
portion of any liability (including judgments, settlements, penalties, fines
(including excise taxes assessed with respect to any employee benefit plan),
interest or reasonable expenses (including attorneys' fees)) actually incurred
by him or her but not entitled to indemnification for all of the total amount
thereof, the Company shall indemnify Indemnitee for such portion thereof to
which Indemnitee is entitled.
3. Advancement of Expenses. The Company agrees to pay, in advance
of the final disposition of any Action (including, for this purpose, any
proceeding in Section 5 hereof) and within ten (10) days after Indemnitee's
written request, all reasonable expenses incurred by Indemnitee in defending or
acting as a witness in connection with such Action, including but not limited to
the investigation, defense, settlement or appeal of any Action, to which
Indemnitee is a Party or threatened in the reasonable judgment of Indemnitee to
be made a Party by reason of the fact that Indemnitee is or was an officer,
director, employee or agent of the Company, or has liability under Section 11
(a) of the Securities Act of 1933, as amended, or is or was serving at the
request of the Company as an officer, director, agent or fiduciary of any
corporation, partnership, joint venture, employee benefit plan, trust or other
enterprise. Indemnitee shall furnish the Company (i) a written affirmation of
his or her good faith belief that he or she has met the standard of conduct set
forth in Section 1(b) hereof or that the Action involves conduct for which
liability has been eliminated under a provision of the Company's articles of
incorporation; and (ii) a written undertaking to repay any funds advanced if it
is ultimately determined that Indemnitee is not entitled to indemnification.
4
Indemnitee agrees to reimburse the Company for any such advancement if, when and
to the extent it is ultimately determined (by a court in a proceeding described
in Section 5 or otherwise) that Indemnitee is not entitled to indemnification
pursuant to this Agreement.
4. Indemnification in Specific Actions.
(a) The determination of whether, with respect to any specific
Action, Indemnitee has met the applicable standard of conduct set forth in
Section 1(b) hereof and is entitled to indemnification pursuant to Section 1
hereof shall be made (i) if there are two or more disinterested directors, by
the Board of Directors by a majority vote of all the disinterested directors (a
majority of whom shall for such purpose constitute a quorum) or by a majority of
the members of a committee of two or more disinterested directors appointed by
such vote; (ii) if a determination cannot be made under (i) above, in a written
opinion by independent legal counsel, selected in the manner described in the
foregoing clause (i) or, if there are fewer than two disinterested directors,
selected by the Board of Directors of the Company (in which selection directors
who do not qualify as disinterested directors may participate); or (iii) if
agreed to by Indemnitee, by the vote of a majority of shares of the Company
entitled to vote thereon (excluding shares owned by, or the voting of which is
controlled by, directors who do not qualify as disinterested directors).
(b) In the event that the determination is made that Indemnitee is
entitled to indemnification or advancement of expenses in a specific Action
pursuant to Section 1 hereof, such a determination is binding upon the Company
in any subsequent proceedings in connection with such Action.
5
5. Enforcement of this Agreement.
(a) Reasonable expenses incurred by Indemnitee in connection with
his or her request for indemnification hereunder shall be borne by the Company,
unless Indemnitee is determined not to be entitled to indemnification for any
liability or expense hereunder. In the event that Indemnitee is a party to or
intervenes in any proceeding in which the validity or enforceability of this
Agreement is at issue or seeks an adjudication or award in arbitration to
enforce his or her rights under, or to recover damages for breach of, this
Agreement, Indemnitee, if he or she prevails in whole or in part in such action,
shall be entitled to recover from the Company and shall be indemnified by the
Company against any expenses actually and reasonably incurred by him or her.
(b) In any proceeding in which the validity or enforceability of
this Agreement is at issue, or in which Indemnitee seeks an adjudication or
award in arbitration to enforce his or her rights hereunder, the Company shall
have the burden of proving that Indemnitee is not entitled to indemnification
hereunder.
6. Termination of Service. Indemnitee's right to indemnification
and advancement of expenses pursuant to this Agreement shall continue regardless
of whether Indemnitee has ceased for any reason to be a director of the Company
and shall inure to the benefit of the heirs of Indemnitee and the executors or
administrators of Indemnitee's estate.
7. Maintenance of Directors and Officers Liability Insurance. In
the event the Company maintains policies of Directors and Officers Liability
Insurance, Indemnitee shall be named as an insured in such manner as to provide
Indemnitee the same rights and benefits as are accorded to the most favorably
insured of the Company's directors.
6
8. Subrogation. In the event Indemnitee receives a payment under
this Agreement, the Company shall be subrogated to the extent of such payment to
all of the rights of recovery of Indemnitee, who shall do everything that may be
necessary to secure such rights, including the execution of such documents
necessary to enable the Company effectively to bring suit to enforce such
rights.
9. No Duplication of Payments. The Company shall not be liable
under this Agreement to make any payment in connection with any Action to the
extent Indemnitee has otherwise actually received payment (under any insurance
policy, bylaw provision or otherwise) of the amounts otherwise indemnifiable
hereunder.
10. Non-Exclusivity. Indemnitee's rights under this Agreement
shall be in addition to, and not in lieu of, any other rights Indemnitee may
have under any provision of the Company's Articles of Incorporation or Bylaws,
the Georgia Business Corporation Code or pursuant to any Directors and Officers
Liability Insurance. Nothing in this Agreement shall be deemed to diminish or
otherwise restrict Indemnitee's right to indemnification under any provision of
the Company's Articles of Incorporation or Bylaws, the Georgia Business
Corporation Code or pursuant to any Directors and Officers Liability Insurance,
but the rights to indemnification hereunder shall in any event apply
notwithstanding any contrary provision in, or conflict with, any provision of
the Company's Articles of Incorporation or Bylaws, unless prohibited by law.
11. Binding Effect. This Agreement shall be binding upon and inure
to the benefit of and be enforceable by the parties hereto and their respective
successors, assigns (including any direct or indirect successor by merger or
consolidation as provided in the Georgia Business Corporation Code), heirs,
executors and administrators.
7
12. Governing Law. This Agreement shall be deemed to be made in,
and in all respects shall be interpreted, construed, and governed by and in
accordance with the laws of, the State of Georgia (without regard to the
conflict of laws principles thereof).
13. Severability. The Company and Indemnitee agree that the
agreements and provisions contained in this Agreement are severable and
divisible, that each such agreement and provision does not depend upon any other
provision or agreement for its enforceability, and that each such agreement and
provision set forth herein constitutes an enforceable obligation between the
Company and Indemnitee. Consequently, the parties hereto agree that neither the
invalidity nor the unenforceability of any provision of this Agreement shall
affect the other provisions hereof, and this Agreement shall remain in full
force and effect and be construed in all respects as if such invalid or
unenforceable provision were omitted.
14. Certain Amendments. The Company may enter into any amendment
to this Agreement required by applicable law without shareholder approval of
such amendment, unless shareholder approval is required by applicable law.
8
IN WITNESS WHEREOF, the parties hereto have entered into this Agreement
as the date first above written.
INDEMNITEE
----------------------------------
Name:
POST PROPERTIES, INC.
Attest:
By: By:
------------------------ ------------------------------
Secretary Name:
Title:
9
