EXHIBIT 10.2
FORM OF INDEMNIFICATION AGREEMENT
AGREEMENT, made and entered into as of __________, 199_, between Cabot
Industrial Trust, a Maryland real estate investment trust (the "Trust"), and
_________ ("Indemnitee").
WHEREAS, the Trust is a Maryland real estate investment trust;
WHEREAS, at the request of the Trust, Indemnitee has agreed to serve as an
officer of the Trust (an "Officer") and may, therefore, be subjected to claims,
suits or proceedings arising as a result of his service in such capacity;
WHEREAS, Title 8 of the Corporations and Associations Article of the
Annotated Code of Maryland authorizes the Trust to indemnify and advance
expenses to trustees and officers of Maryland real estate investment trusts to
the same extent as is permitted for directors and officers of a Maryland
corporation under Section 2-418 of the Maryland General Corporation Law (the
"MGCL"); and
WHEREAS, as an inducement to Indemnitee to serve as an Officer of the
Trust, the Trust has agreed to indemnify Indemnitee against such expenses and
costs as may be incurred by Indemnitee in connection with any such claims, suits
or proceedings, to the fullest extent permitted by Maryland; and
WHEREAS, the parties by this Agreement desire to set forth their agreement
regarding such indemnification;
NOW, THEREFORE, the parties hereto agree as follows:
1. Acts or Omissions Covered by This Agreement. This Agreement shall cover
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any act or omission by Indemnitee after the date of his commencement of service
as an Officer of the Trust, regardless of whether said act or omission occurred
prior to the date of this Agreement, which act or omission (i) occurs or is
alleged to have occurred by reason of his being or having been an Officer, (ii)
occurs or is alleged to have occurred, during or after the time when Indemnitee
served as an Officer or (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 an
Officer.
2. Indemnity.
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(a) The Trust shall indemnify the Indemnitee to the fullest extent
permitted by Maryland law (including, without limitation, indemnification
permitted under Section 2-418(g) of the MGCL), in connection with any
threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative (each a "Proceeding"), by reason of
the fact that he is or was an Officer of the Trust or is or was serving at the
request of the Trust 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 Trust or such 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 paragraph (a), the Trust
shall indemnify Indemnitee in a Proceeding initiated by Indemnitee only if
Indemnitee acted with the authorization of the Trust in initiating that
Proceeding, except that any Proceeding brought by the Indemnitee to enforce his
rights under this Agreement shall not be subject to this paragraph (b).
(c) Indemnification under this Agreement shall be provided upon
Indemnitee's written request to the Board of Trustees of the Trust (the "Board
of Trustee"), setting forth the grounds and lawfulness of such indemnification.
(d) 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 Trust" shall
include any service as a trustee, director, officer, employee or agent of any
other partnership, joint venture, trust or corporation which imposes duties on,
or involves services by, Indemnitee which are requested in writing by the
trustees of, 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
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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 or advancement of expenses because of a failure to fulfill a
requirement of Maryland law, the Trust's Declaration of Trust, as the same may
be amended from time to time (the "Declaration of Trust"), or by-laws as in
effect from time to time or this Agreement, shall be on the Trust. In any
Proceeding brought by or on behalf of or in the right of Indemnitee to obtain
benefits provided to Indemnitee by this Agreement, it shall not be a defense to
such proceeding that the Board of Trustees has previously determined that
Indemnitee is not entitled to such benefits hereunder, it being the intention of
the parties hereto that any such determination shall be required to be made de
novo by the court or other trier of fact in such Proceeding.
4. Notice by Indemnitee. Indemnitee shall notify the Secretary of the Trust
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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 Secretary of
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the Trust shall not constitute a waiver by Indemnitee of his rights hereunder,
except to the extent that the Trust is materially prejudiced thereby.
5. Advancement of Expenses. In the event of any Proceeding involving
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Indemnitee which may give rise to a right of indemnification from the Trust
pursuant to this Agreement, the Trust shall advance to Indemnitee such amounts
as shall be sufficient to cover expenses
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(including fees and disbursements of counsel) incurred by Indemnitee in
connection with any Proceeding as incurred and in advance of final disposition
within five business days after receipt by the Trust of (i) an undertaking by or
on behalf of the Indemnitee to repay the amounts advanced in the event that it
ultimately shall be determined in accordance with this Agreement that he is not
entitled to indemnification by the Trust, (ii) a written affirmation by the
Indemnitee of his or her good faith belief that the standard of conduct
necessary for indemnification by the Trust 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.
6. Defense of Claim. The Indemnitee shall have the absolute right to employ
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his own counsel in respect of any Proceeding; provided, that in the event that
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more than one Officer is entitled to indemnification under this Agreement or a
similar agreement arising out of the same Proceeding, all such Officers,
including Indemnitee, shall, to the extent practicable, endeavor to use the same
counsel; and further provided, that, prior to selection by the Indemnitee, the
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counsel selected by the Indemnitee would not be precluded as a matter of
professional ethics from representing the Trust or a person adverse to the
Trust.
7. Non-Exclusivity of Right of Indemnification. The indemnification rights
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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 Declaration of Trust, as amended, or by-laws of the Trust, any other
agreement, vote of shareholders or Trustees or otherwise.
8. Termination of Agreement and Survival of Right of Indemnification. The
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rights granted to Indemnitee hereunder shall continue after termination of this
Agreement 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 Trust, its successors and assigns.
9. Legal Fees and Expenses. The Trust shall pay all legal fees and
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expenses which Indemnitee may incur to collect money due under this Agreement or
as a result of the Trust's contesting the validity or enforceability of this
Agreement.
10. Governing Law. This Agreement shall be governed by the laws of the
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State of Maryland.
11. Severability. If any provision of this Agreement is determined to be
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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.
12. Changes in Law. This Agreement is intended to provide to Indemnitee, to
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the fullest lawful extent permitted by Maryland law as in effect from time to
time, indemnification
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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.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first above stated.
CABOT INDUSTRIAL TRUST
By:
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Name:
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Title:
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INDEMNITEE
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Name:
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