INDEMNIFICATION AGREEMENT
Exhibit 10.5
THIS INDEMNIFICATION
AGREEMENT is made and entered into this ___ day of , 2009
(“Agreement”), by and between Aviv REIT, Inc., a Maryland corporation (the “Company”), and (“Indemnitee”).
WHEREAS, at the request of the Company, Indemnitee has agreed to serve as a [director]
[officer] of the Company and may, therefore, be subjected to claims, suits or proceedings arising
as a result of his service or employment; and
WHEREAS, as an inducement to Indemnitee to serve as such [director] [officer], the Company has
agreed to indemnify and to advance expenses and costs incurred by Indemnitee in connection with any
such claims, suits or proceedings, to the maximum extent permitted by law; and
WHEREAS, the parties by this Agreement desire to set forth their agreement regarding
indemnification and advance of expenses;
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. For purposes of this Agreement:
(a) “Change in Control” means the occurrence of a “change in the ownership,” a “change in the
effective control” or a “change in the ownership of a substantial portion of the assets” of the
Company occurring after the Effective Date, as determined in accordance with this Section 1(a). In
determining whether an event shall be considered a “change in the ownership,” a “change in the
effective control” or a “change in the ownership of a substantial portion of the assets” of the
Company, the following provisions shall apply:
(i) A “change in the ownership” of the Company shall occur on the date on which any one
person, or more than one person acting as a group, acquires ownership of stock of the
Company that, together with stock held by such person or group, constitutes more than 50% of
the total fair market value or total voting power of the stock of the Company, as determined
in accordance with Treasury Regulation § 1.409A-3(i)(5)(v). If a person or group is
considered either to own more than 50% of the total fair market value or total voting power
of the stock of the Company, or to have effective control of the Company within the meaning
of clause (ii) of this Section 1(a), and such person or group acquires additional stock of
the Company, the acquisition of additional stock by such person or group shall not be
considered to cause a “change in the ownership” of the Company.
(ii) A “change in the effective control” of the Company shall occur on either of the
following dates:
(A) The date on which any one person, or more than one person acting as a
group, acquires (or has acquired during the 12-month period ending on the
date of the most recent acquisition by such person or persons) ownership of stock of the
Company possessing 30% or more of the total voting power of the stock of the
Company, as determined in accordance with Treasury Regulation § 1.409A-3(i)(5)(vi).
If a person or group is considered to possess 30% or more of the total voting power
of the stock of the Company, and such person or group acquires additional stock of
the Company, the acquisition of additional stock by such person or group shall not
be considered to cause a “change in the effective control” of the Company; or
(B) The date on which a majority of the members of the Board is replaced during
any 12-month period by directors whose appointment or election is not endorsed by a
majority of the members of the Board before the date of the appointment or election,
as determined in accordance with Treasury Regulation § 1.409A-3(i)(5)(vi).
(iii) A “change in the ownership of a substantial portion of the assets” of the Company
shall occur on the date on which any one person, or more than one person acting as a group,
acquires (or has acquired during the 12-month period ending on the date of the most recent
acquisition by such person or persons) assets from the Company that have a total gross fair
market value equal to or more than 40% of the total gross fair market value of all of the
assets of the Company immediately before such acquisition or acquisitions, as determined in
accordance with Treasury Regulation § 1.409A-3(i)(5)(vii). A transfer of assets shall not be
treated as a “change in the ownership of a substantial portion of the assets” when such
transfer is made to an entity that is controlled by the shareholders of the Company, as
determined in accordance with Treasury Regulation § 1.409A-3(i)(5)(vii)(B).
(b) “Corporate Status” means the status of a person who is or was a director, trustee,
officer, employee or agent of the Company or of any other corporation, partnership, limited
liability company, joint venture, trust, employee benefit plan or other enterprise for which such
person is or was serving at the request of the Company.
(c) “Disinterested Director” means a director of the Company who is not and was not a party to
the Proceeding in respect of which indemnification is sought by Indemnitee.
(d) “Effective Date” means the date set forth in the first paragraph of this Agreement.
(e) “Expenses” shall include all reasonable and out-of-pocket attorneys’ fees, retainers,
court costs, transcript costs, fees of experts, witness fees, travel expenses, duplicating costs,
printing and binding costs, telephone 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, or being or preparing to be a witness
in a Proceeding.
(f) “Independent Counsel” means a law firm, or a member of a law firm, that is experienced in
matters of corporation law and neither 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,
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or (ii) any
other party to or witness in the Proceeding giving rise to a claim for indemnification hereunder.
Notwithstanding the foregoing, 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. If a Change in Control has not occurred, Independent Counsel shall be
selected by the Board of Directors, with the approval of Indemnitee, which approval will not be
unreasonably withheld. If a Change in Control has occurred, Independent Counsel shall be selected
by Indemnitee, with the approval of the Board of Directors, which approval will not be unreasonably
withheld.
(g) “Proceeding” includes any threatened, pending or completed action, suit, arbitration,
alternate dispute resolution mechanism, investigation, administrative hearing or any other
proceeding, whether civil, criminal, administrative or investigative (including on appeal),
including those pending or completed on or before the Effective Date, unless otherwise specifically
agreed in writing by the Company and Indemnitee.
Section 2. Services by Indemnitee. In consideration of the Company’s covenants and
commitments hereunder, Indemnitee will serve as a [director] [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.
Section 3. Indemnification — 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 3 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 Maryland General Corporation Law (“MGCL”).
Section 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 or a witness in 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 against all judgments,
penalties, fines and amounts paid in settlement and all Expenses actually and reasonably incurred
by him or on his behalf in connection with a Proceeding by reason of his Corporate Status unless it
is established that (i) the act or omission of 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) Indemnitee actually received an improper personal benefit in money, property or
services, or (iii) in the case of any criminal Proceeding, Indemnitee had reasonable cause to
believe that his conduct was unlawful.
Section 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, or is threatened to be, made a party to or a witness in any threatened, pending or
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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 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 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) Indemnitee actually received an improper personal benefit
in money, property or services.
Section 6. 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 actually and
reasonably incurred by him or on his behalf in connection with a Proceeding.
Section 7. 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 his Corporate Status, made a party to and is
successful, on the merits or otherwise, in the defense of any Proceeding, he shall be indemnified
for all Expenses actually and reasonably incurred by him or on his behalf in connection therewith.
In addition to the rights of indemnification provided in Sections 4 and 5, 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 7 for all Expenses actually and reasonably incurred by him or on his
behalf in connection with each successfully resolved claim, issue or matter, allocated on a
reasonable and proportionate basis. For purposes of this Section 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 8. Advance of Expenses. The Company shall, without requiring a preliminary
determination of Indemnitee’s ultimate entitlement to indemnification hereunder, advance all
reasonable Expenses incurred by or on behalf of Indemnitee in connection with any
Proceeding to which Indemnitee is, or is threatened to be, made a party or a witness, within
ten days after the receipt by the Company of a statement or statements from Indemnitee requesting
such advance or advances from time to time, whether prior to or after final disposition of such
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Proceeding. 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, 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
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 has
not been met. To the extent that Expenses 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 8 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 9. Procedure for Determination of Entitlement to Indemnification.
(a) 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. The Secretary of the Company shall, promptly upon
receipt of such a request for indemnification, advise the Board of Directors in writing that
Indemnitee has requested indemnification.
(b) Upon written request by Indemnitee for indemnification pursuant to the first sentence of
Section 9(a) hereof, 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 of Directors, a copy of
which shall be delivered to Indemnitee; or (ii) if a Change in Control shall not have occurred, (A)
by the Board of Directors (or a duly authorized committee thereof) by a majority vote of a quorum
consisting of Disinterested Directors (as herein defined), or (B) if a quorum of the Board of
Directors consisting of Disinterested Directors is not obtainable or, even if obtainable, such
quorum of Disinterested Directors so directs, by Independent Counsel in a written opinion to the
Board of Directors, a copy of which shall be delivered to Indemnitee, or (C) if so directed by a
majority of the members of the Board of Directors, 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 of Directors or Independent Counsel if retained pursuant to clause (ii)(B)
of this Section 9. 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.
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Section 10. 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 presume that Indemnitee is entitled to
indemnification under this Agreement if Indemnitee has submitted a request for indemnification in
accordance with Section 9(a) of this Agreement, and the Company shall have the burden of proof to
overcome that presumption in connection with the making of any determination contrary to that
presumption.
(b) The termination of any Proceeding by judgment, order, settlement, conviction, a plea of
nolo contendere or its equivalent, or an entry of an order of probation prior to
judgment, does not create a presumption that Indemnitee did not meet the requisite standard of
conduct described herein for indemnification.
Section 11. Remedies of Indemnitee.
(a) If (i) a determination is made pursuant to Section 9 of this Agreement that Indemnitee is
not entitled to indemnification under this Agreement, (ii) advance of Expenses is not timely made
pursuant to Section 8 of this Agreement, (iii) no determination of entitlement to indemnification
shall have been made pursuant to Section 9(b) of this Agreement within 30 days after receipt by the
Company of the request for indemnification, (iv) payment of indemnification is not made pursuant to
Section 7 of this Agreement within ten days after receipt by the Company of a written request
therefor, or (v) payment of indemnification is not made within ten days after a determination has
been made that Indemnitee is entitled to indemnification, Indemnitee shall be entitled to an
adjudication in an appropriate court located in the State of Maryland, or in any other court of
competent jurisdiction, of his entitlement to such indemnification or advance of Expenses.
Alternatively, Indemnitee, at his 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. Indemnitee shall commence such proceeding seeking an adjudication or an award in
arbitration within 180 days following the date on which Indemnitee first has the right to commence
such proceeding pursuant to this Section 11(a); provided, however, that the foregoing clause shall
not apply to a proceeding brought by Indemnitee to enforce his rights under Section 7 of this
Agreement.
(b) In any judicial proceeding or arbitration commenced pursuant to this Section 11 the
Company shall have the burden of proving that Indemnitee is not entitled to indemnification or
advance of Expenses, as the case may be.
(c) If a determination shall have been made pursuant to Section 9(b) 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 11, absent a misstatement by
Indemnitee of a material fact, or an omission of a material fact
necessary to make Indemnitee’s statement not materially misleading, in connection with the
request for indemnification.
(d) In the event that Indemnitee, pursuant to this Section 11, seeks a judicial adjudication
of or an award in arbitration to enforce his rights under, or to recover damages for
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breach of,
this Agreement, 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.
Section 12. Defense of the Underlying Proceeding.
(a) Indemnitee shall notify the Company promptly upon being served with or receiving any
summons, citation, subpoena, complaint, indictment, information, notice, request or other document
relating to any Proceeding which may result in the right to indemnification or the advance of
Expenses hereunder; provided, however, that the failure to give any such notice shall not
disqualify Indemnitee from the right, or otherwise affect in any manner any right of Indemnitee, to
indemnification or the advance of Expenses 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.
(b) Subject to the provisions of the last sentence of this Section 12(b) and of Section 12(c)
below, the Company shall have the right to defend Indemnitee in any Proceeding which may give rise
to indemnification hereunder; provided, however, that the Company shall notify Indemnitee of any
such decision to defend within 15 calendar days following receipt of notice of any such Proceeding
under Section 12(a) above. The Company shall not, without the prior written consent of Indemnitee,
which shall not be unreasonably withheld or delayed, consent to the entry of any judgment against
Indemnitee or enter into any settlement or compromise which (i) includes an admission of fault of
Indemnitee or (ii) does not include, as an unconditional term thereof, the full release of
Indemnitee from all liability in respect of such Proceeding, which release shall be in form and
substance reasonably satisfactory to Indemnitee. This Section 12(b) shall not apply to a
Proceeding brought by Indemnitee under Section 11 above or Section 19 below.
(c) Notwithstanding the provisions of Section 12(b) above, if in a Proceeding to which
Indemnitee is a party by reason of Indemnitee’s Corporate Status, (i) Indemnitee reasonably
concludes, based upon an opinion of counsel approved by the Company, which approval shall not be
unreasonably withheld, that he may have separate defenses or counterclaims to assert with respect
to any issue which may not be consistent with other defendants in such Proceeding, (ii) Indemnitee
reasonably concludes, based upon an opinion of counsel approved by the Company, which approval
shall not be unreasonably withheld, that an actual or apparent conflict of interest or potential
conflict of interest exists between Indemnitee and the Company, or (iii) if the Company fails to
assume the defense of such Proceeding in a timely manner, Indemnitee shall be entitled to be
represented by separate legal counsel of
Indemnitee’s choice, subject to the prior approval of the Company, which shall not be
unreasonably withheld, at the expense of the Company. In addition, if the Company fails to comply
with any of its obligations under this Agreement or in the event that the Company or any other
person takes any action to declare this Agreement void or unenforceable, or institutes any
Proceeding to deny or to recover from Indemnitee the benefits intended to be provided to
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Indemnitee
hereunder, Indemnitee shall have the right to retain counsel of Indemnitee’s choice, subject to the
prior approval of the Company, which shall not be unreasonably withheld, at the expense of the
Company (subject to Section 11(d)), to represent Indemnitee in connection with any such matter.
Section 13. Non-Exclusivity; Survival of Rights; Subrogation.
(a) The rights of indemnification and advance 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 or Bylaws of the Company, any agreement (including any employment
agreement) or a resolution of the stockholders entitled to vote generally in the election of
directors or of the Board 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 his Corporate Status
prior to such amendment, alteration or repeal.
(b) In the event of any 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 execute all papers
required and take all action necessary to secure such rights, including execution of such documents
as are necessary to enable the Company to bring suit to enforce such rights.
Section 14. Insurance. The Company will use its reasonable best efforts to acquire
directors and officers liability insurance, on terms and conditions deemed appropriate by the Board
of Directors of the Company, with the advice of counsel, covering Indemnitee or any claim made
against Indemnitee for service as a director or officer of the Company and covering the Company for
any indemnification or advance of Expenses made by the Company to Indemnitee for any claims made
against Indemnitee for service as a director or officer of the Company. Without in any way
limiting any other obligation under this Agreement, the Company shall indemnify Indemnitee for any
payment by Indemnitee arising out of the amount of any deductible or retention and the amount of
any excess of the aggregate of all judgments, penalties, fines, settlements and Expenses incurred
by Indemnitee in connection with a Proceeding over the coverage of any insurance referred to in the
previous sentence.
Section 15. Coordination of Payments. The Company shall not be liable under this
Agreement to make any payment of amounts otherwise indemnifiable or 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.
Section 16. Indemnification for Expenses of a Witness. Notwithstanding any other
provision of this Agreement, to the extent that Indemnitee is or may be, by reason of his Corporate
Status, a witness in any Proceeding, whether instituted by the Company or any other
party, and to which Indemnitee is not a party but in which the Indemnitee receives a subpoena
to testify, he shall be advanced all reasonable Expenses and indemnified against all Expenses
actually and reasonably incurred by him or on his behalf in connection therewith.
Section 17. Duration of Agreement; Binding Effect.
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(a) This Agreement shall continue in effect and shall survive any termination of Indemnitee’s
service as a director, trustee, officer, employee, or agent of the Company or of any other
corporation, partnership, limited liability company, joint venture, trust, employee benefit plan or
other enterprise which Indemnitee served at the request of the Company.
(b) The indemnification and advance of Expenses provided by, or granted pursuant to, this
Agreement shall be binding upon and be enforceable by the parties hereto and their respective
successors and assigns (including any direct or indirect successor by purchase, merger,
consolidation or otherwise to all or substantially all of the business or assets of the Company),
shall continue and survive any termination of this Agreement and any termination of Indemnitee’s
service as a director, trustee, officer, employee or agent of the Company or of any other
corporation, partnership, limited liability company, joint venture, trust, employee benefit plan or
other enterprise which such person is or was serving at the written request of the Company, and
shall inure to the benefit of Indemnitee and his spouse, assigns, heirs, devisees, executors and
administrators and other legal representatives.
(c) The Company shall require and cause any successor (whether direct or indirect by purchase,
merger, consolidation or otherwise) to all, substantially all or a substantial part of the business
and/or assets of the Company, by written agreement in form and substance satisfactory to
Indemnitee, expressly to assume and agree to perform this Agreement in the same manner and to the
same extent that the Company would be required to perform if no such succession had taken place.
Section 18. 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 (b) 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 19. Exception to Right of Indemnification or Advance of Expenses.
Notwithstanding any other provision of this Agreement, Indemnitee shall not be entitled to
indemnification or advance of Expenses under this Agreement with respect to any Proceeding brought
by Indemnitee, unless (a) the Proceeding is brought to enforce indemnification under this
Agreement, and then only to the extent in accordance with and as authorized by Section 11 of this
Agreement, or (b) the Company’s Bylaws, as amended, the Charter, a resolution of the stockholders
entitled to vote generally in the election of directors or of the Board of Directors or
an agreement approved by the Board of Directors to which the Company is a party expressly
provide otherwise.
Section 20. Identical 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. One such counterpart signed by the party
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against whom enforceability is sought shall be sufficient to evidence the existence of this
Agreement.
Section 21. Headings. 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.
Section 22. Modification and Waiver. No supplement, modification or amendment of this
Agreement shall be binding unless executed in writing by both 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 hereof (whether or not similar) nor shall such waiver constitute a continuing waiver.
Section 23. Notices. All notices, requests, demands and other communications
hereunder shall be in writing and shall be deemed to have been duly given if (i) delivered by hand
and receipted for by the party to whom said notice or other communication shall have been directed,
or (ii) mailed by certified or registered mail with postage prepaid, on the third business day
after the date on which it is so mailed:
(a) If to Indemnitee, to: The address set forth on the signature page hereto.
(b) If to the Company to:
or to such other address as may have been furnished to Indemnitee by the Company or to the Company
by Indemnitee, as the case may be.
Section 24. Governing Law. The parties agree that this Agreement shall be governed
by, and construed and enforced in accordance with, the laws of the State of Maryland, without
regard to its conflicts of laws rules.
Section 25. Miscellaneous. Use of the masculine pronoun shall be deemed to include
usage of the feminine pronoun where appropriate.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the day and year first
above written.
| Aviv REIT, Inc. |
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| By: | ||||
| Name: | ||||
| Title: | ||||
| INDEMNITEE |
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| Name: | ||||
| Address: | ||||
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EXHIBIT A
FORM OF UNDERTAKING TO REPAY EXPENSES ADVANCED
The Board of Directors of Aviv REIT, Inc.
Re: Undertaking to Repay Expenses Advanced
Ladies and Gentlemen:
This undertaking
is being provided pursuant to that certain Indemnification Agreement dated
the ___ day of , 200___, by and between Aviv REIT, Inc., 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 status as a [a director] [an officer] of the
Company and 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], 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 (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
,
200___.
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