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Exhibit 10.7
OFFICER AND TRUSTEE INDEMNIFICATION AGREEMENT
This Agreement is made as of the _____ day of __________, 1997, by and
between CCA Prison Realty Trust, a Maryland real estate investment trust (the
"Company"), and the undersigned Officer or Trustee of the Company (the
"Indemnitee").
WHEREAS, Indemnitee is currently serving as an Officer or Trustee of the
Company and the Company wishes the Indemnitee to continue in such capacity. The
Indemnitee is willing, under certain circumstances, to continue serving as an
Officer Trustee of the Company;
WHEREAS, Maryland Code Annotated, Courts of Judicial Proceeding, Article
5-350, provides that a real estate investment trust's Declaration of Trust may
include any provision limiting the liability of its officers or trustees to the
trust or its shareholders for money damages except for liability resulting from
(a) actual receipt of an improper benefit or profit in money, property or
services or (b) active and deliberate dishonesty established by a final judgment
as being material to the cause of action;
WHEREAS, the Company's Declaration of Trust provides that to the fullest
extent allowed by Maryland law, no officer trustee of the Company shall be
liable to the Company or its shareholders for money damages;
WHEREAS, in addition, the Bylaws of the Company provide that the officer
trustees of the Company shall be entitled to indemnification on the terms and
conditions set forth therein; and
WHEREAS, Indemnitee has indicated that he does not regard the foregoing
provisions of the Company's Declaration of Trust and Bylaws as adequate to
protect him against the risks associated with his service to the Company and has
noted that the Company's directors' and officers' liability insurance policy has
numerous exclusions and a deductible and thus does not adequately protect
Indemnitee. In this connection the Company and the Indemnitee now agree they
should enter into this Indemnification Agreement in order to provide greater
protection to Indemnitee against such risks of service to the Company.
NOW, THEREFORE, in order to induce the Indemnitee to continue to serve as a
Trustee of the Company and in consideration of his continued service, the
Company hereby agrees to indemnify the Indemnitee as follows:
1. Indemnity. The Company will indemnify the Indemnitee, his
executors, administrators or assigns, for any Expenses (as
defined below) which the Indemnitee is or becomes legally
obligated to pay in connection with any Proceeding. As used in
this Agreement the term "Proceeding" shall include any
threatened, pending or completed claim, action, suit or
proceeding, whether brought by or in the right of the Company or
otherwise and whether of a civil, criminal, administrative or
investigative nature, in which the Indemnitee may be or may have
been involved as a party or otherwise, by
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reason of the fact that Indemnitee is or was a director or
officer of the Company, by reason of any actual or alleged error
or misstatement or misleading statement made or suffered by the
Indemnitee, by reason of any action taken by him or of any
inaction on his part while acting as such director or officer, or
by reason of the fact that he was serving at the request of the
Company as a director, trustee, officer, employee or agent of
another corporation, partnership, joint venture, trust or other
enterprise; provided, that in each such case Indemnitee acted in
good faith and in a manner which he reasonably believed to be in
or not opposed to the best interests of the Company, and, in the
case of a criminal proceeding, in addition had no reasonable
cause to believe that his conduct was unlawful. As used in this
Agreement, the term "other enterprise" shall include (without
limitation) employee benefit plans and administrative committees
thereof, and the term "fines" shall include (without limitations)
any excise tax assessed with respect to any employee benefit
plan.
2. Expenses. As used in this Agreement, the term "Expenses" shall
include, without limitation, damages, judgments, fines,
penalties, settlements and costs, attorneys' fees and
disbursements and costs of attachment or similar bonds,
investigations, and any expenses of establishing a right to
indemnification under this Agreement.
3. Enforcement. If a claim or request under this Agreement is not
paid by the Company, or on its behalf, within thirty days after a
written claim or request has been received by the Company, the
Indemnitee may at any time thereafter bring suit against the
Company to recover the unpaid amount of the claim or request and
if successful in whole or in part, the Indemnitee shall be
entitled to be paid also the Expenses of prosecuting such suit.
The Company shall have the right to recoup from the Indemnitee
the amount of any item or items of Expenses theretofore paid by
the Company pursuant to this Agreement, to the extent such
Expenses are not reasonable in nature or amounts; provided,
however, that the Company shall have the burden of proving such
Expenses to be unreasonable. The burden of proving that the
Indemnitee is not entitled to indemnification for any other
reason shall be upon the Company.
4. Subrogation. In the event of payment under this Agreement, the
Company shall be subrogated to the extent of such payment to all
of the rights of recovery of the Indemnitee, who shall execute
all papers required and 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.
5. Exclusions. The Company shall not be liable under this Agreement
to pay any Expenses in connection with any claim made against the
Indemnitee:
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(a) to the extent that payment is actually made to the
Indemnitee under a valid, enforceable and collectible
insurance policy;
(b) to the extent that the Indemnitee is indemnified and
actually paid otherwise than pursuant to this Agreement;
(c) in connection with a judicial action by or in the right of
the Company, in respect of any claim, issue or matter as to
which the Indemnitee shall have been adjudged to be liable
for gross negligence or intentional misconduct in the
performance of his duty to the Company unless and only to
the extent that any court in which such action was brought
shall determine upon application that, despite the
adjudication of liability but in view of all the
circumstances of the case, the Indemnitee is fairly and
reasonably entitled to indemnity for such expenses as such
court shall deem proper;
(d) if it is proved by final judgment in a court of law or other
final adjudication to have been based upon or attributable
to the Indemnitee's in fact having gained any personal
profit or advantage to which he was not legally entitled;
(e) for a disgorgement of profits made from the purchase and
sale by the Indemnitee of securities pursuant to Section
16(b) of the Securities Exchange Act of 1934 and amendments
thereto or similar provisions of any state statutory law or
common law;
(f) brought about or contributed to by the dishonesty of the
Indemnitee seeking payment hereunder; however,
notwithstanding the foregoing, the Indemnitee shall be
protected under this Agreement as to any claims upon which
suit may be brought against him by reason of any alleged
dishonesty on his part, unless a judgment or other final
adjudication thereof adverse to the Indemnitee shall
establish that he committed (i) acts of active and
deliberate dishonesty, (ii) with actual dishonest purpose
and intent, (iii) which acts were material to the cause of
action so adjudicated; or
(g) for any judgment, fine or penalty which the Company is
prohibited by applicable law from paying as indemnity or for
any other reason.
6. Indemnification of Expenses or Successful Party. Notwithstanding
any other provision of this Agreement, to the extent that the
Indemnitee has been
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successful on the merits or otherwise in defense of any
Proceeding or in defense of any claim, issue or matter therein,
including dismissal without prejudice, Indemnitee shall be
indemnified against any and all Expenses incurred in connection
therewith.
7. Partial Indemnification. If the Indemnitee is entitled under any
provision of this Agreement to indemnification by the Company for
some or a portion of Expenses, but not for the total amount
thereof, the Company shall nevertheless indemnify the Indemnitee
for the portion of such Expenses to which the Indemnitee is
entitled.
8. Advance of Expenses. Expenses incurred by the Indemnitee in
connection with any Proceeding, except the amount of any
settlement, shall be paid by the Company in advance upon request
of the Indemnitee that the Company pay such Expenses. The
Indemnitee hereby undertakes to repay to the Company the amount
of any Expenses theretofore paid by the Company to the extent
that it is ultimately determined that such Expenses were not
reasonable or that the Indemnitee is not entitled to
indemnification.
9. Approval of Expenses. No Expenses for which indemnity shall be
sought under this Agreement, other than those in respect of
judgments and verdicts actually rendered, shall be incurred
without the prior consent of the Company, which consent shall not
be unreasonably withheld.
10. Notice of Claim. The Indemnitee, as a condition precedent to his
right to be indemnified under this Agreement, shall give to the
Company notice in writing as soon as practicable of any claim
made against him for which indemnity will or could be sought
under this Agreement. Notice to the Company shall be given at its
principal office and shall be directed to the Secretary (or such
other address as the Company shall designate in writing to the
Indemnitee); notice shall be deemed received if sent by prepaid
mail properly addressed, the date of such notice being the date
postmarked. In addition, the Indemnitee shall give the Company
such information and cooperation as it may reasonable require and
as shall be within the Indemnitee's power.
11. Counterparts. This Agreement may be executed in any number of
counterparts, all of which taken together shall constitute one
instrument.
12. Indemnification Hereunder Not Exclusive. Nothing herein shall be
deemed to diminish or otherwise restrict the Indemnitee's right
to indemnification under any provision of the Declaration of
Trust or Bylaws of the Company and amendments thereto or under
law.
13. Governing Law. This Agreement shall be governed by and construed
in accordance with the internal laws of the State of Maryland.
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14. Saving Clause. Wherever there is conflict between any provision
of this Agreement and any applicable present or future statute,
law or regulations contrary to which the Company and the
Indemnitee have no legal right to contract, the latter shall
prevail, but in such event the affected provisions of this
Agreement shall be curtailed and restricted only to the extent
necessary to bring them within applicable legal requirements.
15. Coverage. The provisions of this Agreement shall apply with
respect to the Indemnitee's service as an Officer or Trustee of
the Company prior to the date of this Agreement and with respect
to all periods of such service after the date of this Agreement,
even though the Indemnitee may have ceased to be an Officer or
Trustee of the Company.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and signed as of the day and year first above written.
CCA PRISON REALTY TRUST
By:____________________________________
Its:___________________________________
OFFICER OR TRUSTEE
_______________________________________
