EXHIBIT 10.6
FIRST AMENDMENT TO
INDEMNIFICATION AGREEMENT
THIS AGREEMENT (the "First Amendment") is the first amendment to the
INDEMNIFICATION AGREEMENT dated as of ______ (the "Indemnification Agreement")
by and between Xxxxxx Properties Corporation ("TPC"), a Maryland corporation,
and [name of director] (the "Indemnitee").
WHEREAS, TPC has entered into that certain Agreement and Plan of Merger dated
October __, 1995 (the "Merger Agreement") with Xxxxxxx Real Estate, Inc.
("Xxxxxxx"), a Maryland corporation, pursuant to which TPC will merge with and
into Xxxxxxx at the Effective Time (the "Merger," and the surviving corporation
of such merger being the "Surviving Corporation");
WHEREAS, TPC and Xxxxxxx have agreed that, subject to the consummation of the
Merger, the Surviving Corporation shall have the obligation to indemnify certain
individuals, and be subject to the rights of those individuals to be
indemnified, as set forth in Section 7.12 of the Merger Agreement;
WHEREAS, TPC and Xxxxxxx xxxx it desirable that the Indemnification Agreement be
amended by this First Amendment, effective as of the Effective Time, to reflect
those indemnification rights and obligations set forth in Section 7.12 of the
Merger Agreement;
NOW, THEREFORE, in consideration of the premises and covenants contained herein
and in the Merger Agreement, and subject to the consummation of the Merger, TPC
and the Indemnitee hereby agree that the Indemnification Agreement is hereby
amended as follows:
1. Indemnification Agreement Remains in Effect. Except as expressly set
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forth herein, the Indemnification Agreement shall remain in full force and
effect.
2. Certain Provisions of the Merger Agreement. The provisions of Section
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7.12 of the Merger Agreement are hereby incorporated by reference and made a
part of this First Amendment and the Indemnification Agreement, as amended. If
there is a conflict between the provisions of Section 7.12 of the Merger
Agreement, and either the First Amendment or the Indemnification Agreement, the
provisions of such Section 7.12 shall be given precedence but only to the extent
that such provisions expressly provide the treatment to be given to any matter
in which there is a conflict.
3. References to TPC. All references to TPC in the Indemnification
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Agreement shall hereafter be deemed to refer to the Surviving Corporation.
4. Deletion of the Definition of Change in Control. Paragraph 1(A) of
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the Indemnification Agreement is hereby deleted in its entirety.
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5. Deletion of the Definition of Independent Counsel. Paragraph 1(F) of
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the Indemnification Agreement is hereby deleted in its entirety.
6. Determination of Entitlement to Indemnification. Paragraph 6(B) of
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the Indemnification Agreement is hereby amended by deleting the paragraph in its
entirety and substituting therefor the following:
(B) Upon such written request pursuant to subparagraph 6(A), a
determination with respect to the Indemnitee's entitlement thereto
shall be made by (x) Sidley & Austin or (y) in the event Sidley &
Austin shall not be available to make such determination, then Xxxxxxx
Xxxx Slate Xxxxxxx & Xxxx; or (z) in the event that neither Sidley &
Austin nor Xxxxxxx Xxxx Slate Xxxxxxx & Xxxx shall be available to
make such determination, then Xxxxxxxx & Xxxxx; or (aa) in the event
that none of Sidley & Austin, Xxxxxxx Xxxx Slate Xxxxxxx & Xxxx or
Xxxxxxxx & Xxxxx shall be available to make such determination, then
O'Melveny & Xxxxx.
7. Deletion of Procedures for Selection of Independent Counsel.
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Paragraph 6(D) of the Indemnification Agreement is hereby deleted in its
entirety.
8. Deletion of Sixty Day Limit for Determining Entitlement to be
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Indemnified. Paragraph 7(B) is hereby deleted in its entirety.
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9. Deletion of Obligation to Establish a Trust Upon a Change in Control.
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As long as Xxxxxxx has complied with Section 7.12(c) of the Merger Agreement as
of the Effective Time, Paragraph 9 is hereby deleted in its entirety and shall
be null and void and have no effect.
10. Deletion of Provision Regarding Effect of Insurance. Paragraph 10(B)
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is hereby deleted in its entirety.
11. Amendment of Provision Regarding Notices. Paragraph 17 of the
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Indemnification Agreement is hereby amended by deleting the provision with
respect to notices to be sent to the Indemnitee, and the provision with respect
to notices to be sent to TPC and substituting therefor the following:
If to the Indemnitee, to:
[Name of Director]
[Address]
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With copies to:
Xxxxx X. Xxxxxxxx, Esq.
Xxxxxxx & Xxxxx
000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, XX 00000
Xxxxxx X. Xxxxxxxxxx, Esq.
Xxxxx, Xxxxx & Xxxxx
000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, XX 00000
If to Xxxxxxx, to:
Xxxxxxx Real Estate, Inc.
000 Xxxxxxxx Xxxxxx
Xxxxxx, XX 00000
With a copy to:
Xxxxxx X. Xxxxxxx III, Esq.
Xxxxxxx, Procter & Xxxx
Exchange Place
Boston, MA 02116
12. Defined Terms. Capitalized terms used but not defined herein shall
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have the meaning set forth in the Merger Agreement.
13. Effective Date of this First Amendment. This First Amendment shall
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become effective on and as of the Effective Time. If for any reason the Merger
Agreement is terminated or the Merger is not consummated as contemplated in the
Merger Agreement, this First Amendment shall be null and void ab initio.
14. Governing Law. The parties agree and acknowledge that this First
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Amendment shall be governed by, and construed and enforced in accordance with,
the laws of the State of Maryland.
15. Counterparts. This First Amendment may be executed in one or more
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counterparts all of which shall be considered one and the same amendment and
each of which shall be deemed to be an original.
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IN WITNESS WHEREOF, the parties hereto have executed this First Amendment as of
____________________, 1995.
XXXXXX PROPERTIES CORPORATION
By: ___________________________________
Xxxxxxx X. Xxxxxx
Chairman of the Board and President
INDEMNITEE
____________________________________
[NAME]
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