Exhibit 10.24
INDEMNIFICATION AGREEMENT
THIS INDEMNIFICATION AGREEMENT is made and entered into as of the ______
____________, 20__ ("Agreement"), by and between Provident Senior Living
Trust, a Maryland real estate investment trust (the "Company"), and
("Indemnitee").
WHEREAS, at the request of the Company, Indemnitee currently serves as a
[trustee] [officer] of the Company and may, therefore, be subjected to claims,
suits or proceedings arising as a result of his service; and
WHEREAS, as an inducement to Indemnitee to continue to serve as such
[trustee] [officer], the Company has agreed to indemnify and to advance
expenses and costs incurred by Indemnitee in connection with any such claims,
suits or proceedings, to the maximum extent permitted by law; and
WHEREAS, the parties by this Agreement desire to set forth their
agreement regarding indemnification and advance of expenses;
NOW, THEREFORE, in consideration of the premises and the covenants
contained herein, the Company and Indemnitee do hereby covenant and agree as
follows:
Section 1. Definitions. For purposes of this Agreement:
(a) "Change in Control" shall be defined as set forth in Attachment A
annexed hereto and made a part hereof.
(b) "Corporate Status" means the status of a person who is or was a
director, trustee, officer, employee or agent of the Company or of any other
corporation, partnership, joint venture, trust, employee benefit plan or other
enterprise for which such person is or was serving at the request of the
Company.
(c) "Disinterested Trustee" means a trustee of the Company who is not
and was not a party to the Proceeding in respect of which indemnification is
sought by Indemnitee.
(d) "Effective Date" means the date set forth in the first paragraph of
this Agreement.
(e) "Expenses" shall include all reasonable and out-of-pocket attorneys'
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.
(f) "Independent Counsel" means a law firm, or a member of a law firm,
that is experienced in matters of corporation law as applicable to Maryland
real estate investment trusts and neither is, nor in the past five years has
been, retained to represent: (i) the Company or Indemnitee in any matter
material to either such party, or (ii) any other party to or witness in the
Proceeding giving rise to a claim for indemnification hereunder.
Notwithstanding the foregoing, the term "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
Company or Indemnitee in an action to determine Indemnitee's rights under this
Agreement. If a Change in Control has not occurred, Independent Counsel shall
be selected by the Board of Trustees, with the approval of Indemnitee, which
approval will not be unreasonably withheld. If a Change in Control has
occurred, Independent Counsel shall be selected by Indemnitee, with the
approval of the Board of Trustees, which approval will not be unreasonably
withheld.
(g) "Proceeding" includes any threatened, pending or completed action,
suit, arbitration, alternate dispute resolution mechanism, investigation,
administrative hearing or any other proceeding, whether civil, criminal,
administrative or investigative (including on appeal), except one pending or
completed on or before the Effective Date, unless otherwise specifically
agreed in writing by the Company and Indemnitee.
Section 2. Services by Indemnitee. Indemnitee will serve as a [trustee]
[officer] of the Company. However, this Agreement shall not impose any
obligation on Indemnitee or the Company to continue Indemnitee's service to
the Company beyond any period otherwise required by law or by other agreements
or commitments of the parties, if any.
Section 3. Indemnification - General. The Company shall indemnify, and
advance Expenses to, Indemnitee (a) as provided in this Agreement and (b)
otherwise to the maximum extent permitted by Maryland law in effect on the
date hereof and as amended from time to time; 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. The rights of Indemnitee provided in this Section 3 shall
include, without limitation, the rights set forth in the other sections of
this Agreement, including any additional indemnification permitted by Section
2-418(g) of the Maryland General Corporation Law ("MGCL"), as applicable to a
Maryland real estate investment trust by virtue of Section 8-301(15) of the
Maryland REIT Law.
Section 4. Proceedings Other Than Proceedings by or in the Right of the
Company. Indemnitee shall be entitled to the rights of indemnification
provided in this Section 4 if, by reason of his Corporate Status, he is, or is
threatened to be, made a party to or a witness in any Proceeding, other than a
Proceeding by or in the right of the Company. Pursuant to this Section 4,
Indemnitee shall be indemnified against all judgments, penalties, fines and
amounts paid in settlement and all Expenses actually and reasonably incurred
by him or on his behalf in connection with a Proceeding by reason of his
Corporate Status unless it is established that (i) the act or omission of
Indemnitee was material to the matter giving rise to the Proceeding and (a)
was committed in bad faith or (b) was the result of active and deliberate
dishonesty, (ii) Indemnitee actually received an improper personal benefit in
money, property or services, or (iii) in the case of any criminal Proceeding,
Indemnitee had reasonable cause to believe that his conduct was unlawful.
Section 5. Proceedings by or in the Right of the Company. Indemnitee
shall be entitled to the rights of indemnification provided in this Section 5
if, by reason of his Corporate Status, he is, or is threatened to be, made a
party to or a witness in any Proceeding brought by or in the right of the
Company to procure a judgment in its favor. Pursuant to this Section 5,
2
Indemnitee shall be indemnified against all amounts paid in settlement and all
Expenses actually and reasonably incurred by him or on his behalf in
connection with such Proceeding unless it is established that (i) the act or
omission of Indemnitee was material to the matter giving rise to such a
Proceeding and (a) was committed in bad faith or (b) was the result of active
and deliberate dishonesty or (ii) Indemnitee actually received an improper
personal benefit in money, property or services.
Section 6. Court-Ordered Indemnification. Notwithstanding any other
provision of this Agreement, a court of appropriate jurisdiction, upon
application of Indemnitee and such notice as the court shall require, may
order indemnification in the following circumstances:
(a) if it determines Indemnitee is entitled to reimbursement under
Section 2-418(d)(1) of the MGCL, the court shall order indemnification, in
which case Indemnitee shall be entitled to recover the expenses of securing
such reimbursement; or
(b) if it determines that Indemnitee is fairly and reasonably entitled
to indemnification in view of all the relevant circumstances, whether or not
Indemnitee (i) has met the standards of conduct set forth in Section 2-418(b)
of the MGCL or (ii) has been adjudged liable for receipt of an improper
personal benefit under Section 2-418(c) of the MGCL, the court may order such
indemnification as the court shall deem proper. However, indemnification with
respect to any Proceeding by or in the right of the Company or in which
liability shall have been adjudged in the circumstances described in Section
2-418(c) of the MGCL shall be limited to Expenses actually and reasonably
incurred by him or on his behalf in connection with a Proceeding.
Section 7. Indemnification for Expenses of a Party Who is Wholly or
Partly Successful. Notwithstanding any other provision of this Agreement, and
without limiting any such provision, to the extent that Indemnitee is, by
reason of his Corporate Status, made a party to and is successful, on the
merits or otherwise, in the defense of any Proceeding, he shall be indemnified
for all Expenses actually and reasonably incurred by him or on his behalf in
connection therewith. If Indemnitee is not wholly successful in such
Proceeding but is successful, on the merits or otherwise, as to one or more
but less than all claims, issues or matters in such Proceeding, the Company
shall indemnify Indemnitee under this Section 7 for all Expenses actually and
reasonably incurred by him or on his behalf in connection with each
successfully resolved claim, issue or matter, allocated on a reasonable and
proportionate basis. For purposes of this Section and without limitation, the
termination of any claim, issue or matter in such a Proceeding by dismissal,
with or without prejudice, shall be deemed to be a successful result as to
such claim, issue or matter.
Section 8. Advance of Expenses. The Company shall advance all reasonable
Expenses actually and reasonably incurred by or on behalf of Indemnitee in
connection with any Proceeding (other than a Proceeding brought to enforce
indemnification under this Agreement, applicable law, the Declaration of Trust
or Bylaws of the Company any agreement or a resolution of the shareholders
entitled to vote generally in the election of trustees or of the Board of
Trustees) to which Indemnitee is, or is threatened to be, made a party or a
witness, within ten days after the receipt by the Company of a statement or
statements from Indemnitee requesting such advance or advances from time to
time, whether prior to or after final disposition of such
3
Proceeding. Such statement or statements shall reasonably evidence the
Expenses incurred by Indemnitee and shall include or be preceded or
accompanied by a written affirmation by Indemnitee of Indemnitee's good faith
belief that the standard of conduct necessary for indemnification by the
Company as authorized by law and by this Agreement has been met and a written
undertaking by or on behalf of Indemnitee, in substantially the form attached
hereto as Attachment B or in such form as may be required under applicable law
as in effect at the time of the execution thereof, to reimburse the portion of
any Expenses advanced to Indemnitee relating to claims, issues or matters in
the Proceeding as to which it shall ultimately be established that the
standard of conduct has not been met and which have not been successfully
resolved as described in Section 7. To the extent that Expenses advanced to
Indemnitee do not relate to a specific claim, issue or matter in the
Proceeding, such Expenses shall be allocated on a reasonable and proportionate
basis. The undertaking required by this Section 8 shall be an unlimited
general obligation by or on behalf of Indemnitee and shall be accepted without
reference to Indemnitee's financial ability to repay such advanced Expenses
and without any requirement to post security therefor.
Section 9. Procedure for Determination of Entitlement to
Indemnification.
(a) To obtain indemnification under this Agreement, Indemnitee shall
submit to the Company a written request, including therein or therewith such
documentation and information as is reasonably available to Indemnitee and is
reasonably necessary to determine whether and to what extent Indemnitee is
entitled to indemnification. The Secretary of the Company shall, promptly upon
receipt of such a request for indemnification, advise the Board of Trustees in
writing that Indemnitee has requested indemnification.
(b) Upon written request by Indemnitee for indemnification pursuant to
the first sentence of Section 9(a) hereof, a determination, if required by
applicable law, with respect to Indemnitee's entitlement thereto shall
promptly be made in the specific case: (i) if a Change in Control shall have
occurred, by Independent Counsel in a written opinion to the Board of
Trustees, a copy of which shall be delivered to Indemnitee; or (ii) if a
Change in Control shall not have occurred, (A) by the Board of Trustees (or a
duly authorized committee thereof) by a majority vote of a quorum consisting
of Disinterested Trustees (as herein defined), or (B) if a quorum of the Board
of Trustees consisting of Disinterested Trustees is not obtainable or, even if
obtainable, such quorum of Disinterested Trustees so directs, by Independent
Counsel in a written opinion to the Board of Trustees, a copy of which shall
be delivered to Indemnitee, or (C) if so directed by a majority of the members
of the Board of Trustees, by the shareholders of the Company. If it is so
determined that Indemnitee is entitled to indemnification, payment to
Indemnitee shall be made within ten days after such determination. Indemnitee
shall cooperate with the person, persons or entity making such determination
with respect to Indemnitee's entitlement to indemnification, including
providing to such person, persons or entity upon reasonable advance request
any documentation or information which is not privileged or otherwise
protected from disclosure and which is reasonably available to Indemnitee and
reasonably necessary to such determination in the discretion of the Board of
Trustees or Independent Counsel if retained pursuant to clause (ii)(B) of this
Section 9(b). Any Expenses actually and reasonably incurred by Indemnitee in
so cooperating with the person, persons or entity making such determination
shall be borne by the Company (irrespective of the
4
determination as to Indemnitee's entitlement to indemnification) and the
Company shall indemnify and hold Indemnitee harmless therefrom.
Section 10. Presumptions and Effect of Certain Proceedings.
(a) In making a determination with respect to entitlement to
indemnification hereunder, the person or persons or entity making such
determination shall presume that Indemnitee is entitled to indemnification
under this Agreement if Indemnitee has submitted a request for indemnification
in accordance with Section 9(a) of this Agreement, and the Company shall have
the burden of proof to overcome that presumption in connection with the making
of any determination contrary to that presumption.
(b) The termination of any Proceeding by judgment, order, settlement,
conviction, a plea of nolo contendere or its equivalent, or an entry of an
order of probation prior to judgment, does not create a presumption that
Indemnitee did not meet the requisite standard of conduct described herein for
indemnification.
Section 11. Remedies of Indemnitee.
(a) If (i) a determination is made pursuant to Section 9 of this
Agreement that Indemnitee is not entitled to indemnification under this
Agreement, (ii) advance of Expenses is not timely made pursuant to Section 8
of this Agreement, (iii) no determination of entitlement to indemnification
shall have been made pursuant to Section 9(b) of this Agreement within 45 days
after receipt by the Company of the request for indemnification, (iv) payment
of indemnification is not made pursuant to Section 7 of this Agreement within
ten days after receipt by the Company of a written request therefor, or (v)
payment of indemnification is not made within ten days after a determination
has been made that Indemnitee is entitled to indemnification, Indemnitee shall
be entitled to an adjudication in an appropriate court located in the State of
Maryland, or in any other court of competent jurisdiction, of his entitlement
to such indemnification or advance of Expenses. Alternatively, Indemnitee, at
his option, may seek an award in arbitration to be conducted by a single
arbitrator pursuant to the commercial Arbitration Rules of the American
Arbitration Association. Indemnitee shall commence such proceeding seeking an
adjudication or an award in arbitration within 180 days following the date on
which Indemnitee first has the right to commence such proceeding pursuant to
this Section 11(a); provided, however, that the foregoing clause shall not
apply to a proceeding brought by Indemnitee to enforce his rights under
Section 7 of this Agreement.
(b) In any judicial proceeding or arbitration commenced pursuant to this
Section 11, the Company shall have the burden of proving that Indemnitee is
not entitled to indemnification or advance of Expenses, as the case may be.
(c) If a determination shall have been made pursuant to Section 9(b) of
this Agreement that Indemnitee is entitled to indemnification, the Company
shall be bound by such determination in any judicial proceeding or arbitration
commenced pursuant to this Section 11, absent a misstatement by Indemnitee of
a material fact, or an omission of a material fact necessary to make
Indemnitee's statement not materially misleading, in connection with the
request for indemnification.
5
(d) In the event that Indemnitee, pursuant to this Section 11, seeks a
judicial adjudication of or an award in arbitration to enforce his rights
under, or to recover damages for breach of, this Agreement, Indemnitee shall
be entitled to recover from the Company, and shall be indemnified by the
Company for, any and all Expenses actually and reasonably incurred by him in
such judicial adjudication or arbitration. If it shall be determined in such
judicial adjudication or arbitration that Indemnitee is entitled to receive
part but not all of the indemnification or advance of Expenses sought, the
Expenses incurred by Indemnitee in connection with such judicial adjudication
or arbitration shall be appropriately prorated.
Section 12. Defense of the Underlying Proceeding.
(a) Indemnitee shall notify the Company promptly upon being served with
or receiving any summons, citation, subpoena, complaint, indictment,
information, notice, request or other document relating to any Proceeding
which may result in the right to indemnification or the advance of Expenses
hereunder; provided, however, that the failure to give any such notice shall
not disqualify Indemnitee from the right, or otherwise affect in any manner
any right of Indemnitee, to indemnification or the advance of Expenses under
this Agreement unless the Company's ability to defend in such Proceeding or to
obtain proceeds under any insurance policy is materially and adversely
prejudiced thereby, and then only to the extent the Company is thereby
actually so prejudiced.
(b) Subject to the provisions of the last sentence of this Section 12(b)
and of Section 12(c) below, the Company shall have the right to defend
Indemnitee in any Proceeding which may give rise to indemnification hereunder;
provided, however, that the Company shall notify Indemnitee of any such
decision to defend within 15 calendar days following receipt of notice of any
such Proceeding under Section 12(a) above. The Company shall not, without the
prior written consent of Indemnitee, which shall not be unreasonably withheld
or delayed, consent to the entry of any judgment against Indemnitee or enter
into any settlement or compromise which (i) includes an admission of fault of
Indemnitee or (ii) does not include, as an unconditional term thereof, the
full release of Indemnitee from all liability in respect of such Proceeding,
which release shall be in form and substance reasonably satisfactory to
Indemnitee. This Section 12(b) shall not apply to a Proceeding brought by
Indemnitee under Section 11 above or Section 18 below.
(c) Notwithstanding the provisions of Section 12(b) above, if in a
Proceeding to which Indemnitee is a party by reason of Indemnitee's Corporate
Status, (i) Indemnitee reasonably concludes, based upon an opinion of counsel
approved by the Company, which approval shall not be unreasonably withheld,
that he may have separate defenses or counterclaims to assert with respect to
any issue which may not be consistent with other defendants in such
Proceeding, (ii) Indemnitee reasonably concludes, based upon an opinion of
counsel approved by the Company, which approval shall not be unreasonably
withheld, that an actual or apparent conflict of interest or potential
conflict of interest exists between Indemnitee and the Company, or (iii) if
the Company fails to assume the defense of such Proceeding in a timely manner,
Indemnitee shall be entitled to be represented by separate legal counsel of
Indemnitee's choice, subject to the prior approval of the Company, which shall
not be unreasonably withheld, at the expense of the Company. In addition, if
the Company fails to comply with any of its obligations under this Agreement
or in the event that the Company or any
6
other person takes any action to declare this Agreement void or unenforceable,
or institutes any Proceeding to deny or to recover from Indemnitee the
benefits intended to be provided to Indemnitee hereunder, Indemnitee shall
have the right to retain counsel of Indemnitee's choice, subject to the prior
approval of the Company, which shall not be unreasonably withheld, at the
expense of the Company (subject to Section 11(d)), to represent Indemnitee in
connection with any such matter.
Section 13. Non-Exclusivity; Survival of Rights; Subrogation; Insurance.
(a) The rights of indemnification and advance of Expenses as provided by
this Agreement shall not be deemed exclusive of any other rights to which
Indemnitee may at any time be entitled under applicable law, the Declaration
of Trust or Bylaws of the Company, any agreement or a resolution of the
shareholders entitled to vote generally in the election of trustees or of the
Board of Trustees, or otherwise. No amendment, alteration or repeal of this
Agreement or of any provision hereof shall limit or restrict any right of
Indemnitee under this Agreement in respect of any action taken or omitted by
such Indemnitee in his Corporate Status prior to such amendment, alteration or
repeal.
(b) 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 Indemnitee, who shall execute all papers required and take all action
necessary to secure such rights, including execution of such documents as are
necessary to enable the Company to bring suit to enforce such rights.
(c) The Company shall not be liable under this Agreement to make any
payment of amounts otherwise indemnifiable or payable or reimbursable as
Expenses hereunder if and to the extent that Indemnitee has otherwise actually
received such payment under any insurance policy, contract, agreement or
otherwise.
Section 14. Insurance. The Company will use its reasonable best efforts
to acquire trustees and officers liability insurance, on terms and conditions
deemed appropriate by the Board of Trustees of the Company, with the advice of
counsel, covering Indemnitee or any claim made against Indemnitee for service
as a trustee or officer of the Company and covering the Company for any
indemnification or advance of Expenses made by the Company to Indemnitee for
any claims made against Indemnitee for service as a trustee or officer of the
Company. Without in any way limiting any other obligation under this
Agreement, the Company shall indemnify Indemnitee for any payment by
Indemnitee arising out of the amount of any deductible or retention and the
amount of any excess of the aggregate of all judgments, penalties, fines,
settlements and reasonable Expenses actually and reasonably incurred by
Indemnitee in connection with a Proceeding over the coverage of any insurance
referred to in the previous sentence.
Section 15. Indemnification for Expenses of a Witness. Notwithstanding
any other provision of this Agreement, to the extent that Indemnitee is or may
be, by reason of his Corporate Status, a witness in any Proceeding, whether
instituted by the Company or any other party, and to which Indemnitee is not a
party but in which the Indemnitee receives a subpoena to
7
testify, he shall be advanced all reasonable Expenses and indemnified against
all Expenses actually and reasonably incurred by him or on his behalf in
connection therewith.
Section 16. Duration of Agreement; Binding Effect.
(a) This Agreement shall continue until and terminate ten years after
the date that Indemnitee's Corporate Status shall have ceased; provided, that
the rights of Indemnitee hereunder shall continue until the final termination
of any Proceeding then pending in respect of which Indemnitee is granted
rights of indemnification or advance of Expenses hereunder and of any
proceeding commenced by Indemnitee pursuant to Section 11 of this Agreement
relating thereto.
(b) The indemnification and advance of Expenses provided by, or granted
pursuant to, this Agreement shall be binding upon and be enforceable by the
parties hereto and their respective successors and assigns (including any
direct or indirect successor by purchase, merger, consolidation or otherwise
to all or substantially all of the business or assets of the Company), shall
continue as to an Indemnitee who has ceased to be a director, trustee,
officer, employee or agent of the Company or of any other corporation,
partnership, joint venture, trust, employee benefit plan or other enterprise
which such person is or was serving at the written request of the Company, and
shall inure to the benefit of Indemnitee and his spouse, assigns, heirs,
devisees, executors and administrators and other legal representatives.
(c) 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 satisfactory to
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.
Section 17. Severability. If any provision or provisions of this
Agreement shall be held to be invalid, illegal or unenforceable for any reason
whatsoever: (a) the validity, legality and enforceability of the remaining
provisions of this Agreement (including, without limitation, each portion of
any section 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 (b)
to the fullest extent possible, the provisions of this Agreement (including,
without limitation, each portion of any section 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 thereby.
Section 18. Exception to Right of Indemnification or Advance of
Expenses. Notwithstanding any other provision of this Agreement, Indemnitee
shall not be entitled to indemnification or advance of Expenses under this
Agreement with respect to any Proceeding brought by Indemnitee, unless (a) the
Proceeding is brought to enforce indemnification under this Agreement, and
then only to the extent in accordance with and as authorized by Sections 8 and
11 of this Agreement, or (b) the Company's Bylaws, as amended, the Declaration
of Trust, a resolution of the shareholders entitled to vote generally in the
election of trustees or of the Board
8
of Trustees or an agreement approved by the Board of Trustees to which the
Company is a party expressly provide otherwise.
Section 19. Identical Counterparts. This Agreement may be executed in
one or more counterparts, each of which shall for all purposes be deemed to be
an original but all of which together shall constitute one and the same
Agreement. One such counterpart signed by the party against whom
enforceability is sought shall be sufficient to evidence the existence of this
Agreement.
Section 20. Headings. The headings of the paragraphs 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.
Section 21. Modification and Waiver. 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 be deemed or shall constitute a waiver of any other provisions
hereof (whether or not similar) nor shall such waiver constitute a continuing
waiver.
Section 22. 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:
(a) If to Indemnitee, to: The address set forth on the signature page
hereto.
(b) If to the Company to:
Provident Senior Living Trust
000 Xxxxxxx Xxxx Xxxx, Xxxxx 0000
Xxxxxxxxx, XX 00000
Attn: General Counsel
or to such other address as may have been furnished to Indemnitee by the
Company or to the Company by Indemnitee, as the case may be.
Section 23. 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 regard to its conflicts of laws rules.
Section 24. Miscellaneous. Use of the masculine pronoun shall be deemed
to include usage of the feminine pronoun where appropriate.
[SIGNATURE PAGE FOLLOWS]
9
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
the day and year first above written.
ATTEST: PROVIDENT SENIOR LIVING TRUST
By: ------------------------- (SEAL)
------------------------- Name:
Title:
WITNESS: INDEMNITEE
------------------------- ------------------------------------
Name:
Address:
10
ATTACHMENT A
A "Change in Control" shall mean the occurrence of any one of the
following events:
(a) An acquisition (other than directly from the Company) of any Common
Shares or other voting securities of the Company by any "Person" (for purposes
of this Section only, as the term "person" is used for purposes of Section
13(d) or 14(d) of the Exchange Act), immediately after which such Person has
"Beneficial Ownership" (within the meaning of Rule 13d-3 promulgated under the
Exchange Act) of twenty percent (20%) or more of either (i) the then
outstanding Common Shares or (ii) the combined voting power of the Company's
then outstanding voting securities entitled to vote for the election of
trustees or directors (the "Voting Securities"); provided, however, in
determining whether a Change in Control has occurred, Common Shares or Voting
Securities which are acquired in a "Non-Control Acquisition" (as hereinafter
defined) shall not constitute an acquisition which would cause a Change in
Control. A "Non-Control Acquisition" shall mean an acquisition by (i) an
employee benefit plan (or a trust forming a part thereof) maintained by (A)
the Company or (B) any corporation or other Person of which a majority of its
voting power or its voting equity securities or equity interest is owned,
directly or indirectly, by the Company (for purposes of this definition, a
"Related Entity"), (ii) the Company or any Related Entity, or (iii) any Person
in connection with a "Non-Control Transaction" (as hereinafter defined); or
(b) The individuals who, on the Effective Date, are members of the Board
of Trustees of the Company (the "Incumbent Board"), (i) cease for any reason
to constitute at least a majority of the members of the Board of Trustees of
the Company, or (ii) following a Merger (as hereinafter defined), do not
constitute at least a majority of the Board of Trustees of (x) the Surviving
Corporation (as hereinafter defined), if fifty percent (50%) or more of the
combined voting power of the then outstanding voting securities of the
Surviving Corporation is not Beneficially Owned, directly or indirectly by a
Parent Corporation, or (y) if there is one or more Parent Corporations, the
ultimate Parent Corporation (as hereinafter defined); provided, however, that
if the election, or nomination for election by the Company's common
shareholders, of any new trustee or director was approved by a vote of at
least a majority of the Incumbent Board, such new trustee or director shall,
for purposes of this Plan, be considered as a member of the Incumbent Board;
provided, further, however, that no individual shall be considered a member of
the Incumbent Board if such individual initially assumed office as a result of
an actual or threatened solicitation of proxies or consents by or on behalf of
a Person other than the Board of Trustees of the Company (a "Proxy Contest"),
including by reason of any agreement intended to avoid or settle any Proxy
Contest; or
(c) The consummation of:
(i) A merger, consolidation or reorganization with or into the
Company or a direct or indirect subsidiary of the Company or in which
securities of the Company are issued (a "Merger"), unless the Merger is a
"Non-Control Transaction." A "Non-Control Transaction" shall mean:
(A) the shareholders of the Company immediately before such
Merger own directly or indirectly immediately following the Merger at least
fifty percent (50%) of the outstanding common shares and the combined voting
power of the outstanding voting securities of (x) the corporation or other
legal entity resulting from such Merger (the "Surviving Corporation"), if
fifty percent (50%) or more of the combined voting power of the then
outstanding voting securities of the Surviving Corporation is not Beneficially
Owned, directly or indirectly by another corporation or other legal entity (a
"Parent Corporation"), or (y) if there is one or more Parent Corporations, the
ultimate Parent Corporation;
(B) the individuals who were members of the Incumbent Board
immediately prior to the execution of the agreement providing for the Merger,
constitute at least a majority of the members of the Board of Trustees of, (x)
the Surviving Corporation, if fifty percent (50%) or more of the combined
voting power of the then outstanding voting securities of the Surviving
Corporation is not Beneficially Owned, directly or indirectly by a Parent
Corporation, or (y) if there is one or more Parent Corporations, the ultimate
Parent Corporation; and
(C) no Person other than (1) the Company or another
corporation or other legal entity that is a party to the agreement of Merger,
(2) any Related Entity, or (3) any employee benefit plan (or any trust forming
a part thereof) that, immediately prior to the Merger, was maintained by the
Company or any Related Entity, or (4) any Person who, immediately prior to the
Merger had Beneficial Ownership of twenty percent (20%) or more of the then
outstanding Common Shares or Voting Securities, has Beneficial Ownership,
directly or indirectly, of twenty percent (20%) or more of the combined voting
power of the outstanding voting securities or common shares of (x) the
Surviving Corporation, if fifty percent (50%) or more of the combined voting
power of the then outstanding voting securities of the Surviving Corporation
is not Beneficially Owned, directly or indirectly by a Parent Corporation, or
(y) if there is one or more Parent Corporations, the ultimate Parent
Corporation.
(ii) A complete liquidation or dissolution of the Company; or
(iii) The sale or other disposition of all or substantially all of
the assets of the Company and its subsidiaries taken as a whole to any Person
(other than a transfer to a Related Entity or under conditions that would
constitute a Non-Control Transaction with the disposition of assets being
regarded as a Merger for this purpose or the distribution to the Company's
shareholders of the stock of a Related Entity or any other assets).
Notwithstanding the foregoing, a Change in Control shall not be deemed to
occur solely because any Person (the "Subject Person") acquired Beneficial
Ownership of more than the permitted amount of the then outstanding Common
Shares or Voting Securities as a result of the acquisition of Common Shares or
Voting Securities by the Company which, by reducing the number of Common
Shares or Voting Securities then outstanding, increases the proportional
number of shares Beneficially Owned by the Subject Persons; provided, that if
a Change in Control would occur (but for the operation of this sentence) as a
result of the acquisition of Common Shares or Voting Securities by the
Company, and after such share acquisition by the Company, the Subject Person
becomes the Beneficial Owner of any additional Common Shares
2
or Voting Securities which increases the percentage of the then outstanding
Common Shares or Voting Securities Beneficially Owned by the Subject Person,
then a Change in Control shall occur.
Notwithstanding the foregoing, there shall not be a Change in Control if, in
advance of such event, the Executive agrees in writing that such event shall
not constitute a Change in Control for purposes of this Agreement.
3
ATTACHMENT B
FORM OF UNDERTAKING TO REPAY EXPENSES ADVANCED
The Board of Trustees of Provident Senior Living Trust
Re: Undertaking to Repay Expenses Advanced
Ladies and Gentlemen:
This undertaking is being provided pursuant to that certain
Indemnification Agreement dated as of the 14th day of December, 2004, by and
between Provident Senior Living Trust (the "Company") and the undersigned
Indemnitee (the "Indemnification Agreement"), pursuant to which I am entitled
to advance of expenses in connection with [Description of Proceeding] (the
"Proceeding").
Terms used herein and not otherwise defined shall have the meanings
specified in the Indemnification Agreement.
I am subject to the Proceeding by reason of my Corporate Status or by
reason of alleged actions or omissions by me in such capacity. I hereby affirm
that at all times, insofar as I was involved as [a trustee] [an officer] of
the Company, in any of the facts or events giving rise to the Proceeding, I
(1) acted in good faith and honestly, (2) did not receive any improper
personal benefit in money, property or services and (3) in the case of any
criminal proceeding, had no reasonable cause to believe that any act or
omission by me was unlawful.
In consideration of the advance of Expenses by the Company for
reasonable attorneys' fees and related expenses incurred by me in connection
with the Proceeding (the "Advanced Expenses"), I hereby agree that if, in
connection with the Proceeding, it is established that (1) an act or omission
by me was material to the matter giving rise to the Proceeding and (a) was
committed in bad faith or (b) was the result of active and deliberate
dishonesty or (2) I actually received an improper personal benefit in money,
property or services or (3) in the case of any criminal proceeding, I had
reasonable cause to believe that the act or omission was unlawful, then I
shall promptly reimburse the portion of the Advanced Expenses relating to the
claims, issues or matters in the Proceeding as to which the foregoing findings
have been established and which have not been successfully resolved as
described in Section 7 of the Indemnification Agreement. To the extent that
Advanced Expenses do not relate to a specific claim, issue or matter in the
Proceeding, I agree that such Expenses shall be allocated on a reasonable and
proportionate basis.
IN WITNESS WHEREOF, I have executed this Affirmation and Undertaking on
this ___ day of ____________________, 200__.
WITNESS:
____________________________ _____________________________(SEAL)
