EXHIBIT 10.4
XXXXXXX PROPERTIES, INC.
FORM OF INDEMNIFICATION AGREEMENT
This INDEMNIFICATION AGREEMENT (the "Agreement") made and entered into
this __ day of _________, 2002, by and between Xxxxxxx Properties, Inc., a
Maryland corporation (the "Company"), and _______________ (the "Indemnitee").
WHEREAS, it is essential that the Company be able to retain and attract
as directors and officers the most capable persons available;
WHEREAS, the Company's Bylaws permit it to enter into indemnification
arrangements and agreements;
WHEREAS, the Company desires to provide the Indemnitee with specific
contractual assurances of the Indemnitee's rights to full indemnification
against litigation risks and expenses (regardless, among other things, of any
amendment to or revocation of the Company's Bylaws or any change in the
ownership of the Company or the composition of its Board of Directors) and, to
the extent insurance is available, the coverage of the Indemnitee under the
Company's directors and officers liability insurance policies; and
WHEREAS, the Indemnitee is relying upon the rights afforded under this
Agreement in accepting Indemnitee's position as a director or officer of the
Company.
NOW, THEREFORE, in consideration of the mutual promises and covenants
contained herein, the Company and Indemnitee do hereby covenant and agree as
follows:
1. Definitions.
(a) "Corporate Status" describes the status of a person who is
serving or has served (i) as a director, officer or employee of the Company,
(ii) in any capacity with respect to any employee benefit plan of the Company,
or (iii) as a director, partner, member, trustee, officer, employee, or agent of
any other Entity at the request of the Company.
(b) "Entity" shall mean any corporation, partnership, limited
liability company, joint venture, trust, foundation, association, organization
or other legal entity and any group or division of the Company or any of its
subsidiaries.
(c) "Expenses" shall mean all reasonable fees, costs and expenses
actually and reasonably incurred by the Indemnitee in connection with any
Proceeding (as defined below), including, without limitation, attorneys' fees,
disbursements and retainers (including, without limitation, any such fees,
disbursements and retainers incurred by Indemnitee pursuant to Section 10 of
this Agreement), fees and disbursements of expert witnesses, private
investigators and professional advisors (including, without limitation,
accountants), court costs, transcript costs, fees of experts, travel expenses,
duplicating, printing and binding costs,
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telephone and fax transmission charges, postage, delivery services, secretarial
services, and other disbursements and expenses.
(d) "Indemnifiable Expenses," "Indemnifiable Liabilities" and
"Indemnifiable Amounts" shall have the meanings ascribed to those terms in
Section 4 below.
(e) "Liabilities" shall mean judgments, damages, liabilities,
losses, penalties, excise taxes, fines and amounts paid in settlement.
(f) "Proceeding" shall mean any threatened, pending or completed
claim, action, suit, arbitration, alternate dispute resolution process,
investigation, administrative hearing, appeal, or any other proceeding, whether
civil, criminal, administrative or investigative, whether formal or informal,
including a proceeding initiated by Indemnitee pursuant to Section 10 of this
Agreement to enforce Indemnitee's rights hereunder.
2. Services of Indemnitee. In consideration of the Company's covenants
and commitments hereunder, Indemnitee agrees to serve as a director or 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.
3. Agreement to Indemnify
The Company shall indemnify Indemnitee, and advance Indemnifiable
Expenses to, Indemnitee (a) as specifically provided in this Agreement and (b)
otherwise to the fullest 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 shall include, but shall not be
limited to, 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 (the "MGCL").
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 any threatened, pending, or completed Proceeding, other than a
Proceeding by or in the right of the Company. Pursuant to this Section 4,
Indemnitee shall be indemnified by the Company against all Expenses and
Liabilities actually and reasonably incurred by him or on his behalf in
connection with a Proceeding by reason of his Corporate Status (referred to
herein as "Indemnifiable Expenses" and "Indemnifiable Liabilities,"
respectively, and collectively as "Indemnifiable Amounts") unless it is
established that (i) the act or omission of the 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) the Indemnitee actually
received an improper personal benefit in money, property or services, or (iii)
in the case of any criminal Proceeding, the Indemnitee had reasonable cause to
believe that his conduct was unlawful.
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
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made a party to any threatened, pending or completed Proceeding brought by or in
the right of the Company to procure a judgment in its favor. Pursuant to this
Section 5, Indemnitee shall be indemnified against all amounts paid in
settlement and all Indemnifiable 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 the 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) the Indemnitee actually
received an improper personal benefit in money, property or services; provided,
however, that no indemnification against such Indemnifiable Expenses shall be
made in respect of any Proceeding in which Indemnitee shall have been adjudged
to be liable to the Company.
6. Court-Ordered Indemnification. A court of appropriate jurisdiction,
upon application of a director or officer and such notice as the court shall
require, may order indemnification in the following circumstances:
(a) if it determines a director or officer is entitled to
Indemnifiable Amounts under Section 2-418(d)(1) of the MGCL, the court shall
order indemnification, in which case the director or officer shall be entitled
to recover the expenses of securing such Indemnifiable Amounts; or
(b) if it determines that the director or officer is fairly and
reasonably entitled to indemnification in view of all the relevant
circumstances, whether or not the director or officer (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 2-148(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 Indemnifiable
Expenses.
7. Procedure for Payment of Indemnifiable Amounts. Indemnitee shall
submit to the Company a written request specifying the applicable Indemnifiable
Amounts for which Indemnitee seeks payment under this Agreement and the basis
for the claim. Subject to the exceptions set forth in Sections 4 and 5, the
Company shall pay such applicable Indemnifiable Amounts to Indemnitee within
twenty (20) calendar days of receipt of the request. At the request of the
Company, Indemnitee shall furnish such documentation and information as are
reasonably available to Indemnitee and necessary to establish that Indemnitee is
entitled to indemnification hereunder.
8. 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
Indemnitee's Corporate Status, a party to and is successful, on the merits or
otherwise, in any Proceeding, Indemnitee shall be indemnified for all
Indemnifiable Expenses reasonably incurred by Indemnitee or on Indemnitee's
behalf in connection therewith. Without limiting any other rights of Indemnitee
in this Agreement, 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 for all Indemnifiable Expenses reasonably incurred by
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Indemnitee or on Indemnitee's behalf in connection with each successfully
resolved claim, issue or matter. For purposes of this Agreement, 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.
9. Effect of Certain Resolutions. Neither the settlement nor termination
of any Proceeding nor the failure of the Company to award indemnification or to
determine that indemnification is payable shall create an adverse presumption
that Indemnitee is not entitled to indemnification hereunder. In addition, the
termination of any Proceeding by judgment, order or settlement shall not create
a presumption that the act or omission of the Indemnitee 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 or the Indemnitee actually received
an improper personal benefit in money, property or services or with respect to
any criminal action or proceeding, had reasonable cause to believe that
Indemnitee's action was unlawful. 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. In addition, the
termination of or resignation by Indemnitee shall not create an adverse
presumption that Indemnitee is not entitled to indemnification hereunder.
10. Agreement to Advance Interim Expenses. The Company shall pay to
Indemnitee all Indemnifiable Expenses incurred by Indemnitee in connection with
any Proceeding, including a Proceeding by or in the right of the Company, in
advance of the final disposition of such Proceeding, if Indemnitee furnishes the
Company with a written affirmation by the Indemnitee of the Indemnitee's good
faith belief that the standard of conduct necessary for indemnification by the
Company has been met and a written undertaking by or on behalf of the Indemnitee
to repay the amount of such Indemnifiable Expenses advanced to Indemnitee if it
is finally determined by a court of competent jurisdiction that Indemnitee is
not entitled under this Agreement to indemnification with respect to such
Indemnifiable Expenses. The terms and conditions of such undertaking shall be
determined by a quorum of the disinterested members of the Board of Directors,
if any, acting in good faith and as required by the proper exercise of their
duties or, if not available, then by the written opinion of independent legal
counsel or by the Company's stockholders.
11. Procedure for Payment of Interim Expenses. Indemnitee shall submit
to the Company a written request specifying the Indemnifiable Expenses for which
Indemnitee seeks an advancement under Section 8 of this Agreement, together with
documentation evidencing that Indemnitee has incurred such Indemnifiable
Expenses. Payment of Indemnifiable Expenses under Section 8 shall be made no
later than twenty (20) calendar days after the Company's receipt of such request
and the affirmation and undertaking required by Section 8.
12. Remedies of Indemnitee.
(a) Right to Petition Court. In the event that Indemnitee makes a
request for payment of Indemnifiable Amounts under Sections 3 and 5 above or a
request for an advancement of Indemnifiable Expenses under Sections 8 and 9
above and the Company fails to make such payment or advancement in a timely
manner pursuant to the terms of this Agreement,
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Indemnitee may petition the appropriate judicial authority to enforce the
Company's obligations under this Agreement.
(b) Burden of Proof. In any judicial proceeding brought under
Section 10(a) above, the Company shall have the burden of proving that
Indemnitee is not entitled to payment of Indemnifiable Amounts hereunder.
(c) Expenses. The Company agrees to reimburse Indemnitee in full
for any Expenses incurred by Indemnitee in connection with investigating,
preparing for, litigating, defending or settling any action brought by
Indemnitee under Section 10(a) above, or in connection with any claim or
counterclaim brought by the Company in connection therewith.
(d) Validity of Agreement. The Company shall be precluded from
asserting in any Proceeding, including, without limitation, an action under
Section 10(a) above, that the provisions of this Agreement are not valid,
binding and enforceable or that there is insufficient consideration for this
Agreement and shall stipulate in court that the Company is bound by all the
provisions of this Agreement.
(e) Failure to Act Not a Defense. The failure of the Company
(including its Board of Directors or any committee thereof, independent legal
counsel, or stockholders) to make a determination concerning the permissibility
of the payment of Indemnifiable Amounts or the advancement of Indemnifiable
Expenses under this Agreement shall not be a defense in any action brought under
Section 10(a) above, and shall not create a presumption that such payment or
advancement is not permissible.
13. Representations and Warranties of the Company. The Company hereby
represents and warrants to Indemnitee as follows:
(a) Authority. The Company has all necessary corporate power and
authority to enter into, and be bound by the terms of, this Agreement, and the
execution, delivery and performance of the undertakings contemplated by this
Agreement have been duly authorized by the Company.
(b) Enforceability. This Agreement, when executed and delivered
by the Company in accordance with the provisions hereof, shall be a legal, valid
and binding obligation of the Company, enforceable against the Company in
accordance with its terms, except as such enforceability may be limited by
applicable bankruptcy, insolvency, moratorium, reorganization or similar laws
affecting the enforcement of creditors' rights generally or general equitable
principles, and to the extent limited by applicable federal or state securities
laws.
14. Insurance. The Company will use commercially reasonable efforts to
obtain and maintain a policy or policies of insurance with reputable insurance
companies providing the members of the Board of Directors with coverage for
losses from wrongful acts, and to ensure the Company's performance of its
indemnification obligations under this Agreement. In all policies of director
and officer liability insurance, Indemnitee shall be named as an insured in such
a manner as to provide Indemnitee at least the same rights and benefits as are
accorded to the most favorably insured of the Company's officers and directors.
Notwithstanding the foregoing, if the Company, after employing commercially
reasonable efforts as provided in this
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Section, determines in good faith that such insurance is not reasonably
available, if the premium costs for such insurance are disproportionate to the
amount of coverage provided, or if the coverage provided by such insurance is
limited by exclusions so as to provide an insufficient benefit, the Company
shall use its commercially reasonable efforts to obtain and maintain a policy or
policies of insurance with coverage having features as similar as practicable to
those described above.
15. Fees and Expenses. During the term of the Indemnitee's service as a
director or officer, the Company shall promptly reimburse the Indemnitee for all
expenses incurred by him in connection with his service as a director or officer
or member of any board committee or otherwise in connection with the Company's
business.
16. Contract Rights Not Exclusive. The rights to payment of
Indemnifiable Amounts and advancement of Indemnifiable Expenses provided by this
Agreement shall be in addition to, but not exclusive of, any other rights which
Indemnitee may have at any time under applicable law, the Company's Bylaws, as
amended, Charter, or any other agreement, vote of stockholders or directors, or
otherwise, both as to action in Indemnitee's official capacity and as to action
in any other capacity as a result of Indemnitees's serving as a director or
officer of the Company.
17. Successors. This Agreement shall be (a) binding upon all successors
and assigns of the Company (including any transferee of all or a substantial
portion of the business, stock and/or assets of the Company and any direct or
indirect successor by merger or consolidation or otherwise by operation of law)
and (b) binding on and shall inure to the benefit of the heirs, personal
representatives, executors and administrators of Indemnitee. This Agreement
shall continue for the benefit of Indemnitee and such heirs, personal
representatives, executors and administrators after Indemnitee has ceased to
have Corporate Status.
18. Subrogation. In the event of any payment of Indemnifiable Amounts
under this Agreement, the Company shall be subrogated to the extent of such
payment to all of the rights of contribution or recovery of Indemnitee against
other persons, and Indemnitee shall take, at the request of the Company, all
reasonable action necessary to secure such rights, including the execution of
such documents as are necessary to enable the Company to bring suit to enforce
such rights.
19. Change in Law. To the extent that a change in applicable law
(whether by statute or judicial decision) shall permit broader indemnification
than is provided under the terms of the Charter, as amended, or Bylaws of the
Company, as amended, and this Agreement, Indemnitee shall be entitled to such
broader indemnification and this Agreement shall be deemed to be amended to such
extent.
20. Severability. Whenever possible, each provision of this Agreement
shall be interpreted in such a manner as to be effective and valid under
applicable law, but if any provision of this Agreement, or any clause thereof,
shall be determined by a court of competent jurisdiction to be illegal, invalid
or unenforceable, in whole or in part, such provision or clause shall be limited
or modified in its application to the minimum extent necessary to make such
provision or clause valid, legal and enforceable, and the remaining provisions
and clauses of this Agreement shall remain fully enforceable and binding on the
parties.
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21. Indemnitee as Plaintiff. Except as provided in Section 10 of this
Agreement and in the next sentence, Indemnitee shall not be entitled to payment
of Indemnifiable Amounts or advancement of Indemnifiable Expenses with respect
to any Proceeding brought by Indemnitee against the Company, any Entity which it
controls, any director or officer thereof, or any third party, unless (a) the
Proceeding is brought to enforce indemnification under this Agreement or
otherwise or (b) the Company's Bylaws, as amended, the Charter, a resolution of
the Board of Directors or an agreement approved by the Board of Directors to
which the Company is party expressly provide otherwise. This Section shall not
apply to affirmative defenses asserted by Indemnitee in an action brought
against Indemnitee.
22. Modifications and Waiver. Except as provided in Section 17 above
with respect to changes in applicable law which broaden the right of Indemnitee
to be indemnified by the Company, 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 of this Agreement
(whether or not similar), nor shall such waiver constitute a continuing waiver.
23. General Notices. All notices, requests, demands and other
communications hereunder shall be in writing and shall be deemed to have been
duly given (a) when delivered by hand, (b) when transmitted by facsimile and
receipt is acknowledged, or (c) if mailed by certified or registered mail with
postage prepaid, on the third business day after the date on which it is so
mailed:
(i) If to Indemnitee, to: Name
Address
Address
Phone:
Facsimile:
(ii) If to the Company, to: Xxxxxxx Properties, Inc.
c/o Maguire Partners
000 Xxxx Xxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Phone: (000) 000-0000
Facsimile: (000) 000-0000
Attn: Xxxxxx X. Xxxxxxx III and Xxxx Lammas
or to such other address as may have been furnished in the same manner by any
party to the others.
24. Governing Law. This Agreement shall be governed by and construed and
enforced under the laws of Maryland without giving effect to the provisions
thereof relating to conflicts of law.
25. Agreement Governs. This Agreement is to be deemed consistent
wherever possible with relevant provisions of the Company's Bylaws, as amended,
and Charter; however,
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in the event of a conflict between this Agreement and such provisions, the
provisions of this Agreement shall control.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties hereto have executed this
Indemnification Agreement as of the day and year first above written.
COMPANY:
XXXXXXX PROPERTIES, INC.
By:
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Name: Xxxxxx X. Xxxxxxx III
Title: Chief Executive Officer
INDEMNITEE:
By:
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