EXHIBIT 10.5
FORM OF INDEMNIFICATION AGREEMENT
THIS
AGREEMENT is made and entered into, effective as of ___________, 2007, by and between,
MONMOUTH REAL ESTATE INVESTMENT CORPORATION, a Maryland corporation (the
“Corporation”), and ____________________, (“Indemnitee”), a director
and/or officer of the Corporation.
WHEREAS,
it is essential to the Corporation to retain and attract as directors and officers the
most capable persons available; and
WHEREAS,
the substantial increase in corporate litigation subjects directors and officers of the
Corporation to expensive litigation risks; and
WHEREAS,
in recognition of Indemnitee’s need for protection against personal liability in
order to enhance Indemnitee’s continued effective service to the Corporation, and in
order to induce Indemnitee to provide services to the Corporation as a director and/or
officer, the Corporation agrees to provide for the indemnification of and the advancing of
expenses to Indemnitee to the fullest extent (whether partial or complete) permitted by
Maryland law and as set forth in this Agreement. It is the intent of the Corporation to
provide for indemnification as of the date each indemnified party assumed his/her office
and to continue so long as Indemnitee shall be subject to any proceeding. Furthermore, it
is the intent of the Corporation to provide for the fullest possible indemnification,
notwithstanding any change of place of business or change of state of incorporation.
NOW,
THEREFORE, in consideration of the above premises and the mutual promises contained
herein, the Corporation and Indemnitee hereby agree as follows:
|
1. |
Agreement to Serve. Indemnitee agrees to serve or continue to serve as a
director or officer of the Corporation for so long as he is duly elected or
appointed or until such time as he tenders his resignation in writing. |
|
2. |
Definitions. For purposes of this Agreement: |
|
(a) |
Board: the Board of Directors of the Corporation. |
|
(b) |
Change in Control: shall be deemed to have occurred if (i) any
“person” (as such term is used in Sections 13(d) and 14(d) of the
Securities and Exchange Act of 1934, as amended (the “Act”)), other
than a trustee or other fiduciary holding securities under an employee benefit
plan of the Corporation or a corporation owned directly or indirectly by the
stockholders of the Corporation in substantially the same proportions as their
ownership of stock of the Corporation, is or becomes the “Beneficial
Owner” (as defined in Rule 13d-3 under the Act), directly or indirectly, of
securities of the Corporation representing 20% or more of the total voting power
represented by the Corporation’s then outstanding Voting Securities, or
(ii) during any period of two consecutive years, individuals who at the
beginning of such period constitute the Board and any new director whose
election by the Board or nomination for election by the Corporation’s
stockholders was approved by a vote of at least two-thirds of the directors then
still in office who either were directors at the beginning of the period or
whose election or nomination for election was previously so approved cease for
any reason to constitute a majority of the Board, or (iii) the stockholders of
the Corporation approve a merger or consolidation of the Corporation with any
other corporation, other than a merger or consolidation that would result in the
Voting Securities of the Corporation outstanding immediately prior thereto
continuing to represent (either by remaining outstanding or by being converted
into Voting Securities of the surviving entity) at least 80% of the total voting
power represented by the Voting Securities of such surviving entity outstanding
immediately after such merger or consolidation, or (iv) the stockholders of the
Corporation approve a plan of complete liquidation of the Corporation or an
agreement for the sale or disposition by the Corporation (in one transaction or
a series of transactions) of all or substantially all of the Corporation’s
assets. |
|
(c) |
Expenses: any expense, liability, or loss, including attorney’s fees,
judgments, fines, ERISA, excise taxes and penalties, amounts paid or to be paid
in settlement, any interest, assessments, or other charges imposed thereon, and
any federal, state, local, or foreign taxes imposed as a result of the actual or
deemed receipt of any payments under this Agreement, paid or incurred in
connection with investigating, defending, being a witness in, or participating
in (including on appeal), or preparing for any of the foregoing in, any
Proceeding relating to any Indemnifiable event. |
|
(d) |
Indemnifiable Event: any event or occurrence that takes place either prior to or
after the execution of this Agreement, related to the fact that Indemnitee is or
was a director or an officer of the Corporation, or while a director or officer
is or was serving at the request of the Corporation as a director, officer,
employee, trustee, agent, or fiduciary of another foreign or domestic
corporation that was a predecessor corporation of the Corporation or of another
enterprise at the request of such predecessor corporation, or related to
anything done or not done by Indemnitee in any such capacity, whether or not the
basis of the Proceeding is alleged action in an official capacity while serving
as a director, officer, employee, or agent of the Corporation described above.
|
|
(e) |
Independent Counsel: the person or body appointed in connection with Section 4.
|
|
(f) |
Proceeding: (i) any threatened, pending, or completed action, suit, or
proceeding, whether brought by or in the right of the Corporation or otherwise
and whether civil, criminal, administrative, investigative or other, in which
Indemnitee may be or may have been involved as a party or otherwise, by reason
of the fact that Indemnitee is or was a director or officer of the Corporation,
by reason of any action taken by him or of any inaction on his part while acting
in his capacity as such a director or officer, or by reason of the fact that he
is or was serving at the request of the Corporation as a director, officer,
employee, or agent of another corporation, partnership, joint venture, trust or
other enterprise; or (ii) any inquiry, hearing, or investigation, whether
conducted by the Corporation or any other party, that Indemnitee in good faith
believes might lead to the institution of any such action, suit, or proceeding;
in each case whether or not his is acting or serving in any such capacity at the
time any liability or expense is incurred for which indemnification or
reimbursement can be provided under this Agreement. |
|
(g) |
Reviewing Party: the person or body appointed in accordance with Section 4.
|
|
(h) |
Voting Securities: any securities of the Corporation that vote generally in the
election of officers. |
|
3. |
Agreement to Indemnify. |
|
(a) |
General Agreement. In the event the Indemnitee was, is, or becomes a party to or
witness or other participant in, a Proceeding by reason of (or arising in part
out of) an Indemnifiable Event, the Corporation shall indemnify Indemnitee from
and against any and all Expenses to the fullest extent permitted by law, as the
same exists or may hereafter be amended or interpreted (but in the case of any
such amendment or interpretation, only to the extent that such amendment or
interpretation permits the Corporation to provide broader indemnification rights
that were permitted prior thereto). |
|
(b) |
Initiation of proceeding. Notwithstanding anything in this Agreement to the
contrary, Indemnitee shall not be entitled to indemnification pursuant to this
Agreement in connection with any Proceeding initiated by Indemnitee against the
Corporation or any director or officer of the Corporation unless (i) the
Corporation has joined in or the Board has consented to the initiation of such
Proceeding; (ii) the Proceeding is one to enforce indemnification rights under
Section 6; or (iii) the Proceeding is instituted after a Change in Control and
Independent Counsel has approved its initiation. |
|
(c) |
Expense Advances. If so requested by Indemnitee, the Corporation shall advance
(within ten business days of such request) any and all Expenses to Indemnitee
(an “Expense Advance”); provided that, if an to the extent that the
Reviewing Party determines that Indemnitee would not be permitted to be so
indemnified under applicable law, the Corporation shall be entitled to be
reimbursed by Indemnitee (who hereby agrees to reimburse the Corporation) for
all such amounts theretofore paid. If Indemnitee has commenced legal proceedings
in a court of competent jurisdiction to secure a determination that Indemnitee
should be indemnified under applicable law, as provided in Section 5, any
determination made by the Reviewing Party that Indemnitee would not be permitted
to be indemnified under applicable law shall not be binding and Indemnitee shall
not be required to reimburse the Corporation for any Expense Advance until a
final judicial determination is made with respect thereto (as to which all
rights of appeal therefrom have been exhausted or have lapsed).
Indemnitee’s obligation to reimburse the Corporation for Expense Advances
shall be unsecured and no interest shall be charged thereon. |
|
(d) |
Mandatory Indemnification. Notwithstanding any other provision of the Agreement
(other than Section 3(f) below), to the extent that Indemnitee has been
successful on the merits in defense of any issue or matter therein, Indemnitee
shall be indemnified against all Expenses incurred in connection therewith.
|
|
(e) |
Partial Indemnification. If Indemnitee is entitled under any provision of this
Agreement to indemnification by the Corporation for some or a portion of
Expense, but not, however, for the total amount thereof, the Corporation shall
nevertheless indemnify Indemnitee for the portion thereof to which Indemnitee is
entitled. |
|
(f) |
Prohibited Indemnification. No indemnification pursuant to this Agreement shall
be paid by the Corporation on account of any Proceeding (i) in which
Indemnitee’s act or omission was material to the cause of action
adjudicated and was committed in bad faith or with deliberate dishonesty; or
(ii) in which the Indemnitee actually received an improper personal benefit in
money, property, or services. |
|
4. |
Reviewing Party. Prior to any Change in Control, the Reviewing Party shall be
any appropriate person or body consisting of a member or members of the Board or
any other person or body appointed by the Board who is not a party to the
particular Proceeding with respect to which Indemnitee is seeking
indemnification; after a Change in Control, the Reviewing Party shall be the
Independent Counsel referred to below. With respect to all matters arising after
a Change in Control (other than a Change in Control approved by a majority of
the directors on the Board who were directors immediately prior to such Change
in Control) concerning the rights of Indemnitee to indemnity payments and
Expense Advances under this Agreement or any other agreement or under applicable
law or the Corporation’s Article’s of Incorporation or bylaws now or
hereafter in effect relating to indemnification for Indemnifiable Events, the
Corporation shall seek legal advice only from Independent Counsel selected by
Indemnitee and approved by the Corporation (which approval shall not be
unreasonably withheld), and who has not otherwise performed services for the
Corporation or the Indemnitee (other than in connection with indemnification
matters) within the last five years. The Independent Counsel shall not include
any person who, under the applicable standards of professional conduct then
prevailing, would have a conflict of interest in representing either the
Corporation or Indemnitee in an action to determine Indemnitee’s rights
under this Agreement. Such counsel, among other things, shall render its written
opinion to the Corporation and Indemnitee as to whether and to what extent the
Indemnitee should be indemnified under applicable law. The Corporation agrees to
pay the reasonable fees of the Independent Counsel and in to indemnify fully
such counsel against any and all expenses (including attorneys’ fees),
claims, liabilities, loss, and damages arising out of or relating to this
Agreement or the engagement of Independent Counsel pursuant hereto.
|
|
5. |
Indemnification Process and Appeal. |
|
(a) |
Indemnification Payment. Indemnitee shall be entitled to indemnification of
Expenses, and shall receive payment thereof, from the Corporation in accordance
with this Agreement no later than 45 days after receipt by the Corporation of a
written request therefore from Indemnitee, unless within said 45 day period (i)
the Reviewing Party or (ii) the Board, by a majority vote of a quorum consisting
of directors who were not parties to the proceeding in respect of which such
written request is made, has given a written opinion to the Corporation that
Indemnitee is not entitled to indemnification under applicable law; provided,
however, that notwithstanding the foregoing, following the occurrence of a
Change in Control of the Corporation, the determination as to whether or not
Indemnitee is entitled to indemnification shall in all events be made by the
Reviewing Party. |
|
(b) |
Suit to Enforce Rights. Indemnitee shall have the right to enforce its
indemnification rights under this Agreement by commencing litigation in any
court of competent jurisdiction and in which venue is proper seeking an initial
determination by the Reviewing Party or any aspect thereof. The Corporation
hereby consents to the service of process and to appear in such proceeding. Any
determination by the Reviewing Party not challenged by Indemnitee shall be
binding on the Corporation and Indemnitee. The remedy provided for in this
section shall be in addition to any other remedies available to Indemnitee in
law or equity. |
|
(c) |
Defense to Indemnification, Burden of Proof, and Presumptions. It shall be a
defense to any action brought by Indemnitee against the Corporation to enforce
this Agreement (other than an action brought to enforce claim for Expenses
incurred in defending a Proceeding in advance of its final disposition where the
required undertaking has been tendered to the Corporation) that it is not
permissible under applicable law for the company to indemnify Indemnitee for the
amount claimed. In connection with any such action or any determination by the
Reviewing Party or otherwise as to whether Indemnitee is entitled to be
indemnified hereunder, the burden of proving such a defense or determination
shall be on the Corporation. Neither the failure of the Reviewing Party or the
Corporation (including its Board, independent legal counsel, or its
stockholders) to have made a determination prior to the commencement of such
action by Indemnitee that indemnification of the claimant is proper under the
circumstances because Indemnitee has met the standard of conduct set forth in
applicable law, nor an actual determination by the Reviewing Party of the
Corporation (including its Board, independent counsel or its stockholders) that
the Indemnitee had not met such applicable standard of conduct, shall be a
defense to the action or create a presumption that the Indemnitee has not met
the applicable standard of conduct. For purposes of this Agreement, the
termination of any claim, action, suit, or proceeding, by judgment, order,
settlement (with or without court approval), conviction, or upon a plea of nolo
contendere, or its equivalent, shall not create a presumption that Indemnitee
did not meet any particular standard of conduct or have any particular belief or
that a court has determined that indemnification is not permitted by applicable
law. |
|
6. |
Indemnification for Expenses Incurred in Enforcing Rights. The Corporation shall
indemnify Indemnitee against any and all Expenses and, if requested by
Indemnitee, shall (within ten business days of such request), advance such
Expenses to Indemnitee, that are incurred by Indemnitee in connection with any
claim asserted against or any action brought by Indemnitee for Indemnification
of Expenses or Expense Advances by the Corporation under this Agreement or any
other agreement or under applicable law or the Corporation’s Articles of
Incorporation or Bylaws now or hereafter in effect relating to Indemnifiable
Events. |
|
7. |
Notification and Defense of Proceeding. |
|
(a) |
Notice. Promptly after receipt by Indemnitee of notice of the commencement of
any Proceeding, Indemnitee shall, if a claim in respect thereof is to be made
against the Corporation under this Agreement, notify the Corporation of the
commencement thereof; but the omission to so notify the Corporation will not
relieve the Corporation from any liability that it may have to Indemnitee,
except as provided in Section 7(c). |
|
(b) |
Defense. With respect to any Proceeding as to which Indemnitee notifies the
Corporation of the commencement thereof, the Corporation shall be entitled to
participate in the Proceeding at its own expense and except as otherwise
provided below, to the extent the Corporation so wishes, it may assume the
defense thereof with counsel reasonably satisfactory to Indemnitee. After notice
from the Corporation to Indemnitee of its election to assume the defense of any
Proceeding, the Corporation shall not be liable to Indemnitee under this
Agreement or otherwise for any Expenses subsequently incurred by Indemnitee in
connection with the defense of such Proceeding other than reasonable costs of
investigation or as otherwise provided below. Indemnitee shall have the right to
employ his own legal counsel in such Proceeding, but all Expenses related
thereto incurred after notice from the Corporation of its assumption of the
defense shall be at Indemnitee’s expense unless: (i) the employment of
legal counsel by Indemnitee has been authorized by the Corporation, (ii)
Indemnitee has reasonably determined that there may be a conflict of interest
between Indemnitee and the Corporation in the defense of the Proceeding, (iii)
after a Change in Control, the employment of counsel by Indemnitee has been
approved by the Independent Counsel, or (iv) the Corporation shall not in fact
have employed counsel to assume the defense of such Proceeding, in each of which
case all Expenses of the Proceeding shall be borne by the Corporation. The
Corporation shall not be entitled to assume the defense of any Proceeding
brought by or on behalf of the Corporation or as to which Indemnitee shall have
made the determination provided for in (ii) above. |
|
(c) |
Settlement of Claims. The Corporation shall not be liable to indemnify
Indemnitee under this Agreement or otherwise for any amounts paid in settlement
of any Proceeding effected without the Corporation’s written consent,
provided, however, that if a Change in Control has occurred, the Corporation
shall be liable for indemnification of Indemnitee for amounts paid in settlement
if the Independent Counsel has approved the settlement. The Corporation shall
not settle any Proceeding in any manner that would impose any penalty or
limitation on Indemnitee without Indemnitee’s written consent. Neither the
Corporation nor the Indemnitee will unreasonably withhold their consent to any
proposed settlement. The Corporation shall not be liable to indemnify the
Indemnitee under this Agreement with regard to any judicial award if the
Corporation was not given a reasonable and timely opportunity, at its expense,
to participate in the defense of such action; the Corporation’s liability
hereunder shall not be excused if participation in the Proceeding by the
Corporation was barred by this Agreement. |
|
8. |
Non-Exclusivity. The rights of Indemnitee hereunder shall be in addition to any
other rights Indemnitee may have under the Corporation’s Articles of
Incorporation, Bylaws, applicable law, or otherwise. To the extent that a change
in applicable law (whether by statute or judicial decision) permits a greater
indemnification by agreement than would be afforded currently under the
Corporation’ Articles of Incorporation, Bylaws applicable law or this
Agreement, it is the intent of the parties that Indemnitee enjoy by this
Agreement the greater benefits so afforded by such change. |
|
9. |
Period of Limitations. No legal action shall be brought and no cause of action
shall be asserted by or on behalf of the Corporation or any affiliate of the
Corporation against Indemnitee, Indemnitee’s spouse, heirs, executors, or
personal or legal representatives after the expiration of two years from the
date of accrual of such cause of action, or such longer period as may be
required by state law under the circumstances. Any claim or cause of action of
the Corporation or its affiliate shall be extinguished and deemed released
unless asserted by the timely filing of a legal action within such period;
provided, however, that if any shorter period of limitations is otherwise
applicable to any such cause of action the shorter period shall govern.
|
|
10. |
Amendment of this Agreement. No supplement, modification, or amendment of this
Agreement shall be binding unless executed in writing by both of the parties
hereto. No waiver of any of the provisions of this Agreement shall operate as a
waiver of any other provisions hereof (whether or not similar), nor shall such
waiver constitute a continuing waiver. Except as specifically provided herein,
no failure to exercise or any delay in exercising any right or remedy hereunder
shall constitute a waiver hereof. |
|
11. |
Subrogation. In the event of payment under this Agreement, the Corporation shall
be subrogated to the extent of such payment to all of the rights of recovery of
Indemnitee, who shall execute all papers required and shall do everything that
may be necessary to enable the Corporation effectively to bring suits to enforce
such rights. |
|
12. |
No Duplication of Payments. The Corporation shall not be liable under this
Agreement to make any payment in connection with any claim made against
Indemnitee to the extent Indemnitee has otherwise received payment (under any
insurance policy, Bylaw, or otherwise) of the amounts otherwise Indemnifiable
hereunder. |
|
13. |
Binding Effect. This Agreement shall be binding upon and inure to the benefit of
and be enforceable by the parties hereto and their respective successors
(including any direct or indirect successor by purchase, merger, consolidation,
or otherwise to all or substantially all of the business and/or assets of the
Corporation), assigns, spouses, heirs, and personal and legal representatives.
The Corporation shall require and cause any successor (whether direct or
indirect by purchase, merger, consolidation, or otherwise) to all, substantially
all, or a substantial part, or the business and/or assets of the Corporation, by
written agreement in form and substance satisfactory to Indemnitee, expressly to
assume and agree to perform this Agreement in the same manner and to the same
extent that the Corporation would be required to perform if no such succession
had taken place. The indemnification provided under this Agreement shall
continue as to Indemnitee for any action taken or not taken while serving in an
indemnified capacity pertaining to an Indemnifiable Event even though he or she
may have ceased to serve in such capacity at the time of any Proceeding.
|
|
14. |
Severability. If any provision (or portion thereof) of this Agreement shall be
held by a court of competent jurisdiction to be invalid, void, or otherwise
unenforceable, the remaining provisions shall remain enforceable to the fullest
extent permitted by law. Furthermore, to the fullest extent possible, the
provisions of this Agreement (including, without limitation, each portion of
this Agreement containing any provision held to be invalid, void or otherwise
unenforceable, that is not itself invalid, void or unenforceable) shall be
construed so as to give effect to the intent manifested by the provision held
invalid, void, or unenforceable. |
|
15. |
Governing Law. This Agreement shall be governed and construed and enforced in
accordance with the laws of the State of Maryland applicable to contracts made
and to be performed in such State without giving effect to the principles of
conflicts of laws. |
|
16. |
Notices. Indemnitee shall, as a condition precedent to his right to be
indemnified under this Agreement, give to the Corporation notice in writing as
soon as practicable of any claim made against him for which indemnity will or
could be sought hereunder. All notices, demands, and other communications
required or permitted hereunder shall be made in writing and shall be deemed to
have been duly given if delivered by hand, against receipt, or mailed, postage
prepaid, certified or registered mail, return receipt requested, and addressed
to the Corporation at: |
and
to Indemnitee at:
|
|
Notice shall be deemed received three days after the date postmarked. In
addition, Indemnitee shall give the Corporation such information and cooperation
as it may reasonably require and shall be within Indemnitee’s power.
|
|
17. |
Counterparts. This Agreement may be executed in one or more counterparts, each
of which shall be deemed an original, but all of which together shall constitute
one and the same Agreement. |
|
|
IN WITNESS WHEREOF, the parties hereto have duly executed and delivered
this Agreement as of the date specified above. |
|
|
By:_______________________________________________________
Xxxxxx X. Xxxxx, President |
|
|
___________________________________________________________
|
