INDEMNIFICATION AGREEMENT
THIS
INDEMNIFICATION AGREEMENT
(this
“Agreement”) is entered into as of the 30th day of August, 2006 by and among
AMERICAN COMMUNITY PROPERTIES TRUST, a Maryland real estate investment trust
(the “Company”), and Xxxxxx X. Xxxxxx (the “Indemnitee”).
WHEREAS,
the
Indemnitee is an officer or a member of the Board of Trustees of the Company
and
in such capacity is performing a valuable service for the Company;
WHEREAS,
Maryland law permits the Company to enter into contracts with its officers
or
members of its Board of Trustees with respect to indemnification of, and
advancement of expenses to, such persons;
WHEREAS,
the
Restated Declaration of Trust of the Company (the “Declaration of Trust”)
authorizes the Company to indemnify and advance expenses to its officers and
trustees to the maximum extent permitted by Maryland law in effect from time
to
time;
WHEREAS,
the
Bylaws of the Company (the “Bylaws”) provide that each officer and trustee of
the Company shall be indemnified by the Company to the maximum extent permitted
by Maryland law in effect from time to time and shall be entitled to advancement
of expenses consistent with Maryland law; and
WHEREAS,
to
induce the Indemnitee to provide services to the Company as an officer or a
member of the Board of Trustees, and to provide the Indemnitee with specific
contractual assurance that indemnification will be available to the Indemnitee
regardless of, among other things, any amendment to or revocation of the
Declaration of Trust, the Bylaws, or any acquisition transaction relating to
the
Company, the Company desires to provide the Indemnitee with protection against
personal liability as set forth herein;
NOW,
THEREFORE,
in
consideration of the premises and the covenants contained herein, the Company
and the Indemnitee hereby agree as follows:
1. DEFINITIONS.
For
purposes of this Agreement:
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(A)
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“Change
in Control” shall mean
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i.
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the
dissolution or liquidation of the
Company;
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ii.
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the
merger, consolidation, or reorganization of the Company with one
or more
other entities in which the Company is not the surviving entity or
immediately following which the persons or entities who were beneficial
owners (as determined pursuant to Rule 13d-3 under the Securities
Exchange
Act of 1934, as amended (the “Exchange Act”)) of voting securities of the
Company immediately prior thereto cease to beneficially own more
than
fifty percent (50%) of the voting securities of the surviving entity
immediately thereafter;
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iii.
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a
sale of all or substantially all of the assets of the Company to
another
person or entity other than an affiliate of the
Company;
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iv.
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any
transaction (including without limitation a merger or reorganization
in
which the Company is the surviving entity) that results in any person
or
entity or “group” (within the meaning of Section 13(d)(3) or 14(d)(2) of
the Exchange Act) (other than persons who are shareholders or affiliates
immediately prior to the transaction) owning thirty percent (30%)
or more
of the combined voting power of all classes of shares of the
Company;
or
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v.
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individuals
who, as of the date hereof, constitute the Board of Trustees (the
“Incumbent Board”) cease for any reason to constitute at least a majority
of the Board of Trustees; provided, however, that any individual
becoming
a trustee subsequent to the date hereof whose election, or nomination
for
election by the Company’s shareholders, was approved by a vote of at least
a majority of the trustees then comprising the Incumbent Board (either
by
a specific vote or by approval of the proxy statement of the Company
in
which such person is named as a nominee for trustee, without written
objection to such nomination) shall be considered as though such
individual were a member of the Incumbent Board, but excluding, for
this
purpose, any such individual whose initial assumption of office occurs
as
a result of an actual or threatened election contest with respect
to the
election or removal of trustees or other actual or threatened solicitation
of proxies or contests by or on behalf of a person other than the
Board of
Trustees.
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(B)
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“Corporate
Status” describes the status of a person who is or was a trustee or
officer of the Company (or of any domestic or foreign predecessor
entity
of the Company in a merger, consolidation or other transaction in
which
the predecessor's interest ceased upon consummation of the transaction)
or
is or was serving at the request of the Company (or any such predecessor
entity) as a director, officer, partner (limited or general), member,
trustee, employee or agent of any other foreign or domestic corporation,
partnership, joint venture, limited liability company, trust, other
enterprise (whether conducted for profit or not for profit) or employee
benefit plan. The Company (and any domestic or foreign predecessor
entity
of the Company in a merger, consolidation or other transaction in
which
the predecessor's existence ceased upon consummation of the transaction)
shall be deemed to have requested the Indemnitee to serve an employee
benefit plan where the performance of the Indemnitee's duties to
the
Company (or any such predecessor entity) also imposes or imposed
duties
on, or otherwise involves or involved services by, the Indemnitee
to the
plan or participants or beneficiaries of the
plan.
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(C)
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“Expenses”
shall include all attorneys' and paralegals' 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.
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(D)
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“Proceeding”
includes any action, suit, arbitration, alternate dispute resolution
mechanism, investigation, administrative hearing, or any other proceeding,
including appeals therefrom, whether civil, criminal, administrative,
or
investigative, except one initiated by the Indemnitee pursuant to
paragraph 8 of this Agreement to enforce such Indemnitee's rights
under
this Agreement.
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“Special
Legal Counsel” means a law firm, or a member of a law firm, that is
experienced in matters of corporation law and neither presently is,
or in
the past two (2) years has been, retained to represent (i) the Company
or
the Indemnitee in any matter material to either such party, or (ii)
any
other party to the Proceeding giving rise to a claim for indemnification
hereunder.
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2. INDEMNIFICATION
The
Indemnitee shall be entitled to the rights of indemnification provided in this
paragraph 2 and under applicable law, the Declaration of Trust, the Bylaws,
any other agreement, a vote of shareholders or resolution of the Board of
Trustees or otherwise if, by reason of such Indemnitee's Corporate Status or
any
act, omission or event which occurs prior to the date of the commencement of
such Indemnitee’s Corporate Status, such Indemnitee is, or is threatened to be
made, a party to any threatened, pending, or completed Proceeding, including
a
Proceeding by or in the right of the Company or any Proceeding brought by the
Indemnitee against the Company. Subject to the other provisions of this
Agreement, the Indemnitee shall be indemnified hereunder, to the maximum extent
provided by Maryland law in effect from time to time, against judgments,
penalties, fines, and settlements and reasonable Expenses actually incurred
by
or on behalf of such Indemnitee in connection with such Proceeding or any claim,
issue or matter therein; provided, however, that if such Proceeding was one
by
or in the right of the Company, indemnification may not be made in respect
of
such Proceeding if the Indemnitee shall have been adjudged to be liable to
the
Company. For purposes of this paragraph 2, excise taxes assessed on the
Indemnitee with respect to an employee benefit plan pursuant to applicable
law
shall be deemed fines.
3. EXPENSES
OF A SUCCESSFUL PARTY
Without
limiting the effect of any other provision of this Agreement and without regard
to the provisions of paragraph 6 hereof, to the extent that the Indemnitee
is,
by reason of such Indemnitee's Corporate Status or any act, omission or event
which occurs prior to the date of the commencement of such Indemnitee’s
Corporate Status, a party to and is successful, on the merits or otherwise,
in
any Proceeding pursuant to a final non-appealable order, such Indemnitee shall
be indemnified against all reasonable Expenses actually incurred by such
Indemnitee in connection therewith. If the Indemnitee is not wholly successful
in such Proceeding pursuant to a final non-appealable order but is successful,
on the merits or otherwise, as to one or more but less than all claims, issues,
or matters in such Proceeding pursuant to a final non-appealable order, the
Company shall indemnify the Indemnitee against all reasonable Expenses actually
incurred by such Indemnitee in connection with each successfully resolved claim,
issue or matter. For purposes of this paragraph and without limitation, the
termination of any claim, issue or matter in such Proceeding by dismissal,
with
or without prejudice, shall be deemed to be a successful result as to such
claim, issue or matter.
4. ADVANCEMENT
OF EXPENSES
The
Company shall advance all reasonable Expenses incurred by the Indemnitee in
connection with any Proceeding within ten (10) days after the receipt by the
Company of a statement from the Indemnitee requesting such advance from time
to
time, whether prior to or after final disposition of such Proceeding. Such
statement shall reasonably evidence the Expenses incurred or to be incurred
by
the Indemnitee and shall include or be preceded or accompanied by (i) a written
affirmation by the Indemnitee of the Indemnitee's good faith belief that the
standard of conduct necessary for indemnification by the Company as authorized
by this Agreement has been met and (ii) a written undertaking by or on behalf
of
the Indemnitee to repay the amounts advanced if it should ultimately be
determined that the standard of conduct has not been met. The undertaking
required by clause (ii) of the immediately preceding sentence shall be an
unlimited general obligation of the Indemnitee but need not be secured and
may
be accepted without reference to financial ability to make the
repayment.
5. WITNESS
EXPENSES
Notwithstanding
any other provision of this Agreement, to the extent that the Indemnitee is,
by
reason of such Indemnitee's Corporate Status or any act, omission or event
which
occurs prior to the date of the commencement of such Indemnitee’s Corporate
Status, a witness for any reason in any Proceeding to which such Indemnitee
is
not a named defendant or respondent, such Indemnitee shall be indemnified by
the
Company against all Expenses actually incurred by or on behalf of such
Indemnitee in connection therewith.
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6. DETERMINATION
OF ENTITLEMENT TO AND AUTHORIZATION OF INDEMNIFICATION
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(A)
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To
obtain indemnification under this Agreement, the Indemnitee shall
submit
to the Company a written request, including therewith such documentation
and information reasonably necessary to determine whether and to
what
extent the Indemnitee is entitled to
indemnification.
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| (B) |
Indemnification
under this Agreement may not be made unless authorized for a specific
Proceeding after a determination has been made in accordance with
this
Section 6(B) that indemnification of the Indemnitee is permissible
in the
circumstances because the Indemnitee has met the following standard
of
conduct: the Company shall indemnify the Indemnitee in accordance
with the
provisions of paragraph 2 hereof, unless it
is established that: (a) the act or omission of the Indemnitee was
material to the matter giving rise to the Proceeding and (x) was
committed
in bad faith or (y) was the result of active and deliberate dishonesty;
(b) the Indemnitee actually received an improper personal benefit
in
money, property or services; or (c) in the case of any criminal
proceeding, the Indemnitee had reasonable cause to believe that the
act or
omission was unlawful. Upon receipt by the Company of the Indemnitee's
written request for indemnification pursuant to subparagraph 6(A),
a
determination as to whether the applicable standard of conduct has
been
met shall be made within the period specified in paragraph 6(E):
(i) if a
Change in Control shall have occurred, by Special Legal Counsel in
a
written opinion to the Board of Trustees, a copy of which shall be
delivered to the Indemnitee, with Special Legal Counsel selected
by the
Indemnitee (unless the Indemnitee shall request that such determination
be
made by the person or persons and in the manner provided in clause
(ii) of
this paragraph 6(B), in which event the provisions of such clause
(ii)
shall apply) (if the Indemnitee selects Special Legal Counsel to
make the
determination under this clause (i), the Indemnitee shall give prompt
written notice to the Company advising them of the identity of the
Special
Legal Counsel so selected); or (ii) if a Change in Control shall
not have
occurred, (A) by the Board of Trustees by a majority vote of a quorum
consisting of trustees not, at the time, parties to the Proceeding,
or, if
such quorum cannot be obtained, then by a majority vote of a committee
of
the Board of Trustees consisting solely of two or more trustees not,
at
the time, parties to such Proceeding and who were duly designated
to act
in the matter by a majority vote of the full Board of Trustees in
which
the designated trustees who are parties may participate, (B) by Special
Legal Counsel in a written opinion to the Board of Trustees, a copy
of
which shall be delivered to the Indemnitee, with Special Legal Counsel
selected by the Board of Trustees or a committee of the Board of
Trustees
by vote as set forth in subparagraph (ii)(A) of this paragraph 6(B),
or,
if the requisite quorum of the full Board of Trustees cannot be obtained
therefor and the committee cannot be established, by a majority of
the
full Board of Trustees in which trustees who are parties to the Proceeding
may participate (if the Company selects Special Legal Counsel to
make the
determination under this clause (ii), the Company shall give prompt
written notice to the Indemnitee advising him or her of the identity
of
the Special Legal Counsel so selected) or (C) by the shareholders
of the
Company. If it is so determined that the Indemnitee is entitled to
indemnification, payment to the Indemnitee shall be made within ten
(10)
days after such determination. Authorization of indemnification and
determination as to reasonableness of Expenses shall be made in the
same
manner as the determination that indemnification is permissible.
However,
if the determination that indemnification is permissible is made
by
Special Legal Counsel under clause (B) above, authorization of
indemnification and determination as to reasonableness of Expenses
shall
be made in the manner specified under clause (B) above for the selection
of such Special Legal Counsel.
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(C)
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The
Indemnitee shall cooperate with the person or entity making such
determination with respect to the Indemnitee's entitlement to
indemnification, including providing upon reasonable advance request
any
documentation or information which is not privileged or otherwise
protected from disclosure and which is reasonably available to the
Indemnitee and reasonably necessary to such determination. Any reasonable
costs or expenses (including reasonable attorneys' fees and disbursements)
incurred by the Indemnitee in so cooperating shall be borne by the
Company
(irrespective of the determination as to the Indemnitee's entitlement
to
indemnification) and the Company hereby indemnifies and agrees to
hold the
Indemnitee harmless therefrom.
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(D)
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The
knowledge and/or actions, or failure to act, of any trustee, officer,
agent or employee of the Company shall not be imputed to the Indemnitee
for purposes of determining entitlement to indemnification under
this
Agreement.
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(E) In
the
event the determination of entitlement to indemnification is to be made by
Special Legal Counsel pursuant to paragraph 6(B) hereof, the Indemnitee, or
the
Company, as the case may be, may, within seven (7) days after such written
notice of selection shall have been given, deliver to the Company or to the
Indemnitee, as the case may be, a written objection to such selection. Such
objection may be asserted only on the grounds that the Special Legal Counsel
so
selected does not meet the requirements of “Special Legal Counsel” as defined in
paragraph 1 of this Agreement. If such written objection is made, the Special
Legal Counsel so selected may not serve as Special Legal Counsel until a court
has determined that such objection is without merit. If, within twenty (20)
days
after submission by the Indemnitee of a written request for indemnification
pursuant to paragraph 6(A) hereof, no Special Legal Counsel shall have been
selected or, if selected, shall have been objected to, either the Company or
the
Indemnitee may petition a court for resolution of any objection which shall
have
been made by the Company or the Indemnitee to the other's selection of Special
Legal Counsel and/or for the appointment as Special Legal Counsel of a person
selected by the court or by such other person as the court shall designate,
and
the person with respect to whom an objection is so resolved or the person so
appointed shall act as Special Legal Counsel under paragraph 6(B) hereof. The
Company shall pay all reasonable fees and expenses of Special Legal Counsel
incurred in connection with acting pursuant to paragraph 6(B) hereof, and all
reasonable fees and expenses incident to the selection of such Special Legal
Counsel pursuant to this paragraph 6(D). In the event that a determination
of
entitlement to indemnification is to be made by Special Legal Counsel and such
determination shall not have been made and delivered in a written opinion within
ninety (90) days after the receipt by the Company of the Indemnitee's request
in
accordance with paragraph 6(A), upon the due commencement of any judicial
proceeding in accordance with paragraph 8(A) of this Agreement, Special Legal
Counsel shall be discharged and relieved of any further responsibility in such
capacity.
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(F)
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If
the person or entity making the determination whether the Indemnitee
is
entitled to indemnification shall not have made a determination within
sixty (60) days after receipt by the Company of the request therefor,
the
requisite determination of entitlement to indemnification shall be
deemed
to have been made and the Indemnitee shall be entitled to such
indemnification, absent: (i) a misstatement by the Indemnitee of
a
material fact, or an omission of a material fact necessary to make
the
Indemnitee's statement not materially misleading, in connection with
the
request for indemnification, or (ii) a prohibition of such indemnification
under applicable law. Such sixty (60) day period may be extended
for a
reasonable time, not to exceed an additional thirty (30) days, if
the
person or entity making said determination in good faith requires
additional time for the obtaining or evaluating of documentation
and/or
information relating thereto. The foregoing provisions of this paragraph
6(E) shall not apply: (i) if the determination of entitlement to
indemnification is to be made by the shareholders and if within fifteen
(15) days after receipt by the Company of the request for such
determination the Board of Trustees resolves to submit such determination
to the shareholders for consideration at an annual or special meeting
thereof to be held within seventy-five (75) days after such receipt
and
such determination is made at such meeting, or (ii) if the determination
of entitlement to indemnification is to be made by Special Legal
Counsel
pursuant to paragraph 6(B) of this
Agreement.
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7. PRESUMPTIONS
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(A)
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In
making a determination with respect to entitlement or authorization
of
indemnification hereunder, the person or entity making such determination
shall presume that the Indemnitee is entitled to indemnification
under
this Agreement and the Company shall have the burden of proof to
overcome
such presumption.
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| (B) |
The
termination of any Proceeding by conviction, or upon a plea of nolo
contendere or its equivalent, or an entry of an order of probation
prior
to judgment, creates a rebuttable presumption that the Indemnitee
did not
meet the requisite standard of conduct described herein for
indemnification.
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8. REMEDIES
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(A)
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In
the event that: (i) a determination is made in accordance with the
provisions of paragraph 6 that the Indemnitee is not entitled to
indemnification under this Agreement, or (ii) advancement of reasonable
Expenses is not timely made pursuant to this Agreement, or (iii)
payment
of indemnification due the Indemnitee under this Agreement is not
timely
made, the Indemnitee shall be entitled to an adjudication in an
appropriate court of competent jurisdiction of such Indemnitee's
entitlement to such indemnification or advancement of
Expenses.
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(B)
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In
the event that a determination shall have been made pursuant to paragraph
6 of this Agreement that the Indemnitee is not entitled to
indemnification, any judicial proceeding commenced pursuant to this
paragraph 8 shall be conducted in all respects as a de novo trial
on the
merits. The fact that a determination had been made earlier pursuant
to
paragraph 6 of this Agreement that the Indemnitee was not entitled
to
indemnification shall not be taken into account in any judicial proceeding
commenced pursuant to this paragraph 8 and the Indemnitee shall not
be
prejudiced in any way by reason of that adverse determination. In
any
judicial proceeding commenced pursuant to this paragraph 8, the Company
shall have the burden of proving that the Indemnitee is not entitled
to
indemnification or advancement of Expenses, as the case may
be.
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(C)
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If
a determination shall have been made or deemed to have been made
pursuant
to this Agreement that the Indemnitee is entitled to indemnification,
the
Company shall be bound by such determination in any judicial proceeding
commenced pursuant to this paragraph 8, absent: (i) a misstatement
by the
Indemnitee of a material fact, or an omission of a material fact
necessary
to make the Indemnitee's statement not materially misleading, in
connection with the request for indemnification, or (ii) a prohibition
of
such indemnification under applicable
law.
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(D)
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The
Company shall be precluded from asserting in any judicial proceeding
commenced pursuant to this paragraph 8 that the procedures and
presumptions of this Agreement are not valid, binding and enforceable
and
shall stipulate in any such court that the Company is bound by all
the
provisions of this Agreement.
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(E)
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In
the event that the Indemnitee, pursuant to this paragraph 8, seeks
a
judicial adjudication of such Indemnitee's rights under, or to recover
damages for breach of, this Agreement, if successful on the merits
or
otherwise as to all or less than all claims, issues or matters in
such
judicial adjudication, the Indemnitee shall be entitled to recover
from
the Company, and shall be indemnified by the Company against, any
and all
reasonable Expenses actually incurred by such Indemnitee in connection
with each successfully resolved claim, issue or
matter.
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9. NOTIFICATION
AND DEFENSE OF CLAIMS
The
Indemnitee agrees promptly to notify the Company in writing upon being served
with any summons, citation, subpoena, complaint, indictment, information, or
other document relating to any Proceeding or matter which may be subject to
indemnification or advancement of Expenses covered hereunder, but the failure
so
to notify the Company will not relieve the Company from any liability that
the
Company may have to Indemnitee under this Agreement unless the Company is
materially prejudiced thereby. With respect to any such Proceeding as to which
Indemnitee notifies the Company of the commencement thereof:
(A) The
Company will be entitled to participate therein at their own
expense.
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(B)
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Except
as otherwise provided below, the Company will be entitled to assume
the
defense thereof, with counsel reasonably satisfactory to Indemnitee.
After
notice from the Company to Indemnitee of the Company's election so
to
assume the defense thereof, the Company will not be liable to Indemnitee
under this Agreement for any legal or other expenses subsequently
incurred
by Indemnitee in connection with the defense thereof other than reasonable
costs of investigation or as otherwise provided below. Indemnitee
shall
have the right to employ Indemnitee's own counsel in such Proceeding,
but
the fees and disbursements of such counsel incurred after notice
from the
Company of the Company's assumption of the defense thereof shall
be at the
expense of Indemnitee unless (a) the employment of counsel by
Indemnitee has been authorized by the Company, (b) the Indemnitee
shall
have reasonably concluded that there may be a conflict of interest
between
the Company and the Indemnitee in the conduct of the defense of such
action, (c) such Proceeding seeks penalties or other relief against
the Indemnitee with respect to which the Company could not provide
monetary indemnification to the Indemnitee (such as injunctive relief
or
incarceration) or (d) the Company shall not in fact have employed
counsel
to assume the defense of such action, in each of which cases the
fees and
disbursements of counsel shall be at the expense of the Company.
The
Company shall not be entitled to assume the defense of any Proceeding
brought by or on behalf of the Company, or as to which Indemnitee
shall
have reached the conclusion specified in clause (b) above, or which
involves penalties or other relief against Indemnitee of the type
referred
to in clause (c) above.
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(C)
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The
Company shall not be liable to indemnify Indemnitee under this Agreement
for any amounts paid in settlement of any action or claim effected
without
the Company's written consent. The Company shall not settle any action
or
claim in any manner that would impose any penalty or limitation on
Indemnitee without Indemnitee's written consent. Neither the Company
nor
Indemnitee will unreasonably withhold or delay consent to any proposed
settlement.
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10. NON-EXCLUSIVITY;
SURVIVAL OF RIGHTS; INSURANCE SUBROGATION
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(A)
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The
rights of indemnification and to receive advancement of reasonable
Expenses as provided by this Agreement shall not be deemed exclusive
of
any other rights to which the Indemnitee may at any time be entitled
under
applicable law, the Declaration of Trust, the Bylaws, any other agreement,
a vote of shareholders, a resolution of the Board of Trustees or
otherwise, except that any payments otherwise required to be made
by the
Company hereunder shall be offset by any and all amounts received
by the
Indemnitee from any other indemnitor or under one or more liability
insurance policies maintained by an indemnitor or otherwise and shall
not
be duplicative of any other payments received by an Indemnitee from
the
Company in respect of the matter giving rise to the indemnity hereunder.
No amendment, alteration or repeal of this Agreement or any provision
hereof shall be effective as to the Indemnitee with respect to any
action
taken or omitted by the Indemnitee as a member of the Board of Trustees
prior to such amendment, alteration or
repeal.
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(B)
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In
addition to the indemnification protection provided to the Indemnitee
by
this Agreement, the Company shall also purchase and maintain Directors'
and Officers' Liability Insurance, at its expense, and in amounts
and
subject to such terms as shall be determined by the Board of Trustees.
The
Indemnitee shall be covered by such policy or policies in accordance
with
its or their terms to the maximum extent of the coverage available
and
upon any Change in Control the Company shall use commercially reasonable
efforts to obtain or arrange for continuation and/or “tail” coverage for
the Indemnitee on terms at least as favorable to the Indemnitee as
in
effect immediately prior to the consummation of the Change in
Control.
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(C)
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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 the Indemnitee, who shall execute all papers required and take
all
actions necessary to secure such rights, including execution of such
documents as are necessary to enable the Company to bring suit to
enforce
such rights.
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(D)
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The
Company shall not be liable under this Agreement to make any payment
of
amounts otherwise indemnifiable hereunder if and to the extent that
the
Indemnitee has otherwise actually received such payment under any
insurance policy, contract, agreement, or
otherwise.
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11. CONTINUATION
OF INDEMNITY
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(A)
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All
agreements and obligations of the Company contained herein shall
continue
during the period the Indemnitee is an officer or a member of the
Board of
Trustees of the Company and shall continue thereafter so long as
the
Indemnitee shall be subject to any threatened, pending or completed
Proceeding by reason of such Indemnitee's Corporate Status and during
the
period of statute of limitations for any act, omission or event occurring
during the Indemnitee's term of Corporate Status or prior to the
date of
the commencement of such Indemnitee’s Corporate Status. This Agreement
shall be binding upon the Company and their respective successors
and
assigns and shall inure to the benefit of the Indemnitee and such
Indemnitee's heirs, executors and
administrators.
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(B)
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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 reasonably satisfactory to
the
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.
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12. SEVERABILITY
If
any
provision or provisions of this Agreement shall be held to be invalid, illegal,
or unenforceable for any reason whatsoever, (i) the validity, legality, and
enforceability of the remaining provisions of this Agreement (including, without
limitation, each portion of any paragraph 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 (ii) to the fullest extent possible, the provisions of this
Agreement (including, without limitation, each portion of any paragraph 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 by the provisions held
invalid, illegal, or unenforceable.
13. NOTICE
TO THE COMPANY SHAREHOLDERS
Any
indemnification of, or advancement of reasonable Expenses, to an Indemnitee
in
accordance with this Agreement, if arising out of a Proceeding by or in the
right of the Company, shall be reported in writing to the shareholders of the
Company with the notice of the next Company shareholders' meeting or prior
to
the meeting.
14. HEADINGS
The
headings of the paragraph 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.
15. MODIFICATION
AND WAIVER
No
supplement, modification, or amendment of this Agreement shall be binding unless
executed in writing by each 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.
16. 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,
if
so delivered or mailed, as the case may be, to the following
addresses:
If
the to Indemnitee, addressed to the
Indemnitee at the address set forth in the records of the Company.
Attention:
Chief Financial Officer
000
Xxxxxxxxx Xxxxxxx Xxxxxx
Xx.
Xxxxxxx, Xxxxxxxx 00000
or
to
such other address as may have been furnished to the Indemnitee by the Company
or to the Company by the Indemnitee, as the case may be.
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17. 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
application of the conflict of laws principles thereof.
18. NO
ASSIGNMENTS
The
Indemnitee may not assign its rights or delegate obligations under this
Agreement without the prior written consent of the Company. Any assignment
or
delegation in violation of this Section 18 shall be null and void.
19. NO
THIRD PARTY RIGHTS
Nothing
expressed or referred to in this Agreement will be construed to give any person
other than the parties to this Agreement any legal or equitable right, remedy
or
claim under or with respect to this Agreement or any provision of this
Agreement. This Agreement and all of its provisions are for the sole and
exclusive benefit of the parties to this Agreement and their successors and
permitted assigns.
20. COUNTERPARTS
This
Agreement may be executed in two or more counterparts, each of which shall
be
deemed an original, but all of which together constitute an agreement binding
on
all of the parties hereto.
(Remainder
of page intentionally left blank.)
-6-
IN
WITNESS WHEREOF,
the
parties hereto have executed this Agreement as of the day and year first above
written.
By: /s/
Xxxxxxx X. Xxxxxxx
Name: Xxxxxxx
X. Xxxxxxx
Title: Executive
Vice President/Chief Financial Officer
INDEMNITEE:
/s/
Xxxxxx X. Xxxxxx
Xxxxxx
X.
Xxxxxx
-7-
