EXHIBIT 10.7
INDEMNIFICATION AGREEMENT
THIS INDEMNIFICATION AGREEMENT (the "Agreement"), dated as of ____________,
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1997, is entered into by and among Xxxxxx Realty Corporation, a Maryland
corporation (the "Company"), Xxxxxx Realty, L.P., a Delaware limited partnership
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(the "Operating Partnership") and the undersigned Director and/or Officer of the
Company (the "Indemnitee").
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RECITALS
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WHEREAS, the Indemnitee has agreed to serve as a Director and/or Officer 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 a
Director and Officer of the Company;
WHEREAS, Section 2-418 of the General Corporation Law of the State of
Maryland, under which law the Company is organized, empowers corporations to
indemnify any person who is or was serving as a director, officer, employee or
agent of the corporation or any person who, while a director of the corporation,
is or was serving at the request of the corporation as a director, officer,
partner, trustee, employee or agent of another corporation, partnership, limited
liability company, association, joint venture, trust or other enterprise. As
used in this Agreement, the term "other enterprise" shall include, without
limitation, employee benefit plans and administrative committees thereof. In
addition, the Company includes 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; and
WHEREAS, said Section 2-418 and the Bylaws of the Company specify that the
indemnification set forth in said Section 2-418 and in the Bylaws, respectively,
shall not be deemed to limit the right of the Corporation to indemnify any other
person against any liability and expenses to the fullest extent permitted by
law, nor shall it be deemed exclusive of any other rights to which those seeking
indemnification may be entitled under any agreement, the Articles or Bylaws of
the Company, a vote of stockholders or disinterested directors or otherwise,
both as to action in such person's official capacity as an officer or director
and as to action in another capacity, as the request of the Corporation, while
acting as an officer or director of the Corporation;
NOW, THEREFORE, in order to induce the Indemnitee to serve as a
Director and/or Officer of the Company and in consideration of his continued
service, the Company hereby agrees to indemnify the Indemnitee as follows:
AGREEMENT
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1. Indemnity. The Company will indemnify, save and hold harmless the
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Indemnitee, his executors, administrators or assigns, or, if the Indemnitee is
deceased, his estate, spouse, heirs, executors and administrators, for any
Expenses (as defined in Section 2 hereof) which the Indemnitee is or becomes
legally obligated to pay in connection with any Proceeding. As used in this
Agreement, the term "Proceeding" shall mean any threatened, pending or completed
claim, action, suit or proceeding, including any appeals, 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, (i) by reason of the fact that the
Indemnitee is or was a director or officer of the Company, (ii) by reason of any
actual or alleged error or misstatement or misleading statement made or suffered
by the Indemnitee, (iii) by reason of any action taken by the Indemnitee or of
any inaction on the Indemnitee's part while acting as such director or officer,
or (iv) by reason of the fact that the Indemnitee was serving at the request of
the Company as a director, trustee, officer, employee or agent of another
corporation, partnership, limited liability company, association, joint venture,
trust or other enterprise (the "Proceeding"); provided that in each such case
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the Indemnitee acted in good faith within the course and scope of the
Indemnitee's duties and in a manner which the Indemnitee 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 the Indemnitee had no reasonable cause to
believe that his act or omission was unlawful.
2. Expenses. As used in this Agreement, the term "Expenses" shall mean
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all reasonable expenses incurred by the Indemnitee in connection with the
Proceeding which shall include, without limitation, damages, judgments, fines,
penalties, settlements, costs, attorneys' fees, disbursements and costs of
attachment or similar bonds, investigations, and any such expenses of
establishing a right to indemnification under this Agreement (the "Expenses").
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"Fines" shall include, without limitation, any excise tax assessed with respect
to any employee benefit plan. Any such Expenses may be paid by the Company in
advance of the final disposition of such action, suit or proceeding.
3. Exclusions. The Company shall not be liable under this Agreement to
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pay any Expenses in connection with any claim made against the Indemnitee:
(a) to the extent that payment is actually made to the Indemnitee
under a valid, enforceable and collectible insurance policy;
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(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 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 established by final judgment in a court of law or other
final adjudication that the act or omission of the Indemnitee that (i) the act
or omission of the director or officer was material to the matter giving rise to
the proceeding and was committed in bad faith or was the result of active and
deliberate dishonesty, (ii) the director or officer actually received an
improper personal benefit in money, property or services, or (iii) in the case
of any criminal proceeding, the director or officer had reasonable cause to
believe that the act or omission was unlawful;
(e) 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 having
gained any personal profit or advantage to which he was not legally entitled;
(f) 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; 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.
4. Termination of the Proceeding.
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(a) The termination of any Proceeding, which is covered by this
Agreement, by judgment, order or settlement, shall not of itself create a
presumption for the purposes of this Agreement that the Indemnitee did not act
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, with respect to any criminal
action or proceeding, had reasonable cause to believe that his conduct was
unlawful.
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(b) The termination of any proceeding by conviction, or by 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 director did not meet the
requisite standard of conduct for good faith or otherwise.
5. Enforcement. If a claim or request under this Agreement is not paid
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by the Company, or on its behalf, within thirty (30) 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 all of the Expenses of prosecuting such suit. The burden of
proving that the Indemnitee is not entitled to indemnification for any reason
shall be upon the Company.
6. Recoupment. The Company shall have the right to recoup from the
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Indemnitee the amount of any item or items of Expenses theretofore paid by the
Company pursuant to this Agreement, to the extent that such Expenses are not
reasonable in nature or amounts; provided, however, that the Company shall have
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the burden of proving such Expenses to be unreasonable.
7. Subrogation. In the event of payment under this Agreement, the
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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.
8. Indemnification of Expenses of Successful Party. Notwithstanding any
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other provision of this Agreement, to the extent that the Indemnitee has been
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,
the Indemnitee shall be indemnified against any and all Expenses incurred in
connection therewith.
9. Partial Indemnification. If the Indemnitee is entitled under any
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provision of this Agreement to indemnification by the Company for some or a
portion of Expenses, but not, however, for the total amount thereof, the Company
shall nevertheless indemnify the Indemnitee for the portion of such Expenses to
which the Indemnitee is entitled.
10. Indemnification Hereunder Not Exclusive. Nothing herein shall be
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deemed to diminish or otherwise restrict the Indemnitee's right to
indemnification under
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any provision of the Articles of Incorporation or Bylaws of the Company and
amendments thereto or under law.
11. Advance of Expenses. Expenses incurred by the Indemnitee in
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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.
12. Approval of Expenses. No Expenses for which indemnity shall be sought
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under this Agreement, other than those in respect of judgments and verdicts
actually rendered, shall be incurred without the prior written consent of the
Company, which consent shall not be unreasonably withheld.
13. Coverage. The provisions of this Agreement shall apply with respect
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to the Indemnitee's service as a Director and Officer 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 a
Director or Officer of the Company.
14. General Provisions
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14.1 Notice of Claim. The Indemnitee, as a condition precedent to his
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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 President
and CEO (or such other address as the Company shall designate in writing to the
Indemnitee). Notice shall be deemed duly given when addressed as follows and
(i) when personally delivered, (ii) when transmitted by telecopy, electronic or
digital transmission with receipt confirmed, (iii) one day after delivery to an
overnight air courier guaranteeing next day delivery, or (iv) upon receipt if
sent by certified or registered mail. In each case notice shall be sent to:
If to the Indemnitee: ______________________
If to the Company: Xxxxxx Realty Corporation
0000 Xxxx Xxxxxxxx Xxxxxxx
Xx Xxxxxxx, Xxxxxxxxxx 00000
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Attention: President and CEO
Facsimile: (000) 000-0000
14.2 Governing Law. This Agreement shall be governed by and construed
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in accordance with the laws of the State of California without giving effect to
the principles of conflict of laws thereof.
14.3 Assignment. This Agreement may not be assigned by the
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Indemnitee, but may be assigned by the Company to any successor to its business
and will inure to the benefit and be binding upon any such successor.
14.4 Counterparts. This Agreement may be executed in any number of
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counterparts, each of which shall be deemed to be an original but all of which
taken together shall constitute one and the same instrument.
14.5 Severability. The invalidity or unenforceability of any
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provision or provisions of this Agreement shall not affect the validity or
enforceability of any other provision of this Agreement, which shall remain in
full force and effect.
14.6 Entire Agreement. This Agreement contains the entire agreement
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and understanding between the Company and the Indemnitee with respect to the
indemnification of the Indemnitee by the Company as contemplated hereby, and no
representations, promises, agreements or understandings, written or oral, not
herein contained shall be of any force or effect. This Agreement shall not be
changed unless in writing and signed by both the Indemnitee and the Board of
Directors of the Company.
14.7 The Indemnitee's Acknowledgment. The Indemnitee acknowledges
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(a) that he has had the opportunity to consult with independent counsel of his
own choice concerning this Agreement, and (b) that he has read and understands
the Agreement, is fully aware of its legal effect, and has entered into it
freely based on his own judgment.
(Signature Page Follows)
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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 .
XXXXXX REALTY CORPORATION,
a Maryland corporation
By_______________________________________
Name:
Title:
XXXXXX REALTY, L.P.
a Delaware limited partnership
By_______________________________________
Name:
Title:
INDEMNITEE
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[NAME]
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