FORM OF INDEMNIFICATION AGREEMENT
Exhibit 10.3
FORM OF
THIS INDEMNIFICATION AGREEMENT (the “Agreement”) is entered into as of May 2, 2006 (“Effective
Date”), by and between United Dominion Realty Trust, Inc., a Maryland corporation (the “Company”),
and (the “Indemnitee”).
WHEREAS,
the Indemnitee, at the request of the Company, is serving as an [officer or a member
of the Board of Directors (“Board”)] of the Company and in such capacity is performing a valuable
service for the Company;
WHEREAS, the law of the State of Maryland, the Company’s state of formation, permits the
Company to enter into contracts with its officers or members of its Board with respect to
indemnification of such persons; and
WHEREAS, to induce the Indemnitee to continue to provide services to the Company as an officer
or a member of the Board, and to provide the Indemnitee with specific contractual assurance that
indemnification will be available to the Indemnitee regardless of, among other things, any
amendment to or revocation of the Company’s Articles of Restatement or Amended and Restated Bylaws
(as amended collectively the “Charter Documents”), or any acquisition transaction relating to the
Company, the Company desires to provide the Indemnitee with protection against personal liability
to the fullest extent permitted by law.
NOW, THEREFORE, in consideration of the premises and the covenants contained herein, the
Company and the Indemnitee hereby agree as follows:
1. Definitions. For purposes of this Agreement:
(a) “Change in Control” shall mean a change in control of the Company occurring after the
Effective Date of a nature that would be required to be reported in response to Item 6(e) of
Schedule 14A of Regulation 14A (or in response to any similar item on any similar schedule or form)
promulgated under the Securities Exchange Act of 1934 (the “Exchange Act”), whether or not the
Company is then subject to such reporting requirement; provided, however, that, without limitation,
a Change in Control shall be deemed to have occurred if, after the Effective Date, any of the
following events shall occur:
(I) An acquisition (other than directly from the Company) of any voting securities of the
Company (the “Voting Securities”) by any “Person” (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), directly or
indirectly, of 30% or more of the combined voting power of the Company’s then outstanding Voting
Securities; provided, however, that in determining whether a Change in Control has occurred, 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 (x) the Company or (y) any corporation or other Person of which a majority of its voting power
or its equity securities or equity interest is owned directly or indirectly by the Company (a
“Subsidiary”), (ii) the Company or any Subsidiary or (iii) any Person in connection with a
“Non-Control Transaction” (as hereinafter defined);
(II) Approval by stockholders of the Company of:
(A) A merger, consolidation or reorganization involving the Company unless:
(1) the stockholders of the Company, immediately before such merger, consolidation or
reorganization, own, directly or indirectly, immediately following such merger, consolidation or
reorganization, at least seventy percent (70%) of the combined voting power of the outstanding
Voting Securities of the corporation or other entity resulting from such merger or consolidation or
reorganization (the “Surviving Corporation”) in substantially the same proportion as among
themselves as their ownership of the Voting Securities immediately before such merger,
consolidation or reorganization; and
(2) the individuals who were members of the incumbent Board immediately prior to the execution
of the agreement providing for such merger, consolidation or reorganization constitute at least a
majority of the members of the board of directors or board of trustees of the Surviving Corporation
or a corporation or other entity beneficially owning, directly or indirectly, a majority of the
Voting Securities of the Surviving Corporation;
(A transaction meeting the conditions described in clauses (1) and (2) of Section 1(a)(II)(A) shall
herein be referred to as a “Non-Control Transaction);
(B) A complete liquidation or dissolution of the Company; or
(C) An agreement for the sale or other disposition of all or substantially all of the assets
of the Company to any Person (other than to an entity of which the Company directly or indirectly
owns at least 70% of the Voting Securities).
(III) There occurs a proxy contest, as a consequence of which members of the Board in office
immediately prior thereto constitute less than a majority of the Board thereafter; or
(IV) During any period of two consecutive years, individuals who at the beginning of such
period constituted the Board (including for this purpose any new director whose election or
nomination for election by the Company’s stockholders was approved by a vote of at least two-thirds
of the directors then still in office who were directors at the beginning of such period) cease for
any reason to constitute at least a majority of the Board.
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 30% of the outstanding
Voting Securities as a result of the acquisition of Voting Securities by the Company which, by
reducing the number of Voting Securities outstanding, increases the proportionate number of shares
Beneficially Owned by the Subject Person, provided that if a Change in Control would occur (but for
the operation of this sentence) as a result of the acquisition of Voting Securities by the Company,
and after such share acquisition by the Company, the Subject Person becomes the Beneficial Owner of
any additional Voting Securities which increases the percentage of the then outstanding Voting
Securities Beneficially Owned by the Subject Person, then a Change in Control shall occur.
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(b) “Corporate Status” means the status of a person who is or was a director, officer,
employee, agent or fiduciary of the Company or of any other corporation, partnership, joint
venture, trust, employee benefit plan or other enterprise (whether conducted for profit or not for
profit) which such person is or was serving at the request of the Company.
(c) “Disinterested Director” means a director of the Company who is not and was not a party to
the Proceeding (as hereinafter defined) in respect of which indemnification is sought by the
Indemnitee.
(d) “Exchange Act” means the Securities Exchange Act of 1934, as amended from time to time.
(e) “Expenses” shall include all reasonable attorneys and paralegals’ fees, retainers, court
costs, transcript costs, fees of experts, witness fees, travel expenses, duplicating costs,
printing and binding costs, telephone charges, postage, delivery service fees, and all other
disbursements or expenses of the types customarily incurred in connection with prosecuting,
defending, preparing to prosecute or defend, investigating, or being or preparing to be a witness
in a Proceeding.
(f) “Independent Counsel” means a law firm, or a member of a law firm, selected by the Board
by the vote required for determination of the Indemnitee’s entitlement to indemnification as
provided in clause (ii) of Section 9(b) hereof, that (i) is experienced in matters of corporation
law and (ii) has not, and, as to such law firm, no member presently is, or in the past five years
has been, retained to represent (x) the Company or the Indemnitee in any matter material to either
such party, or (y) any other party to 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 the Indemnitee in an action to determine
the Indemnitee’s rights under this Agreement, unless such conflict of interest is waived by both
the Company and the Indemnitee.
(g) “Liabilities” means all liabilities, and losses (including judgments, fines, ERISA excise
taxes or penalties, and amounts paid or to be paid in settlement, and any interest, assessments, or
other charges imposed thereon, and any federal, state, local, or foreign taxes imposed on any
director or officer as a result of the actual or deemed receipt of any payments under this
Agreement).
(h) “Proceeding” includes any threatened, pending or completed action, suit, arbitration,
alternate dispute resolution mechanism, investigation, administrative hearing, or any other
proceeding, including appeals therefrom, whether civil, criminal, administrative, or investigative,
except one (i) initiated by the Indemnitee pursuant to Section 12 of this Agreement to enforce such
Indemnitee’s rights under this Agreement or (ii) pending or completed on or before the Effective
Date, unless otherwise specifically agreed in writing by the Company and the Indemnitee.
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2. Indemnification — General. The Company shall indemnify, and advance Expenses to, the
Indemnitee (i) as provided in this Agreement and (ii) 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 the Indemnitee hereunder based on Maryland law as in effect on the date hereof). The
rights of the Indemnitee provided in this Section 2 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”).
3. Proceedings Other than Proceedings by or in the Right of the Company. The Indemnitee shall
be entitled to the rights of indemnification provided in this Section 3 if, by reason of
Indemnitee’s Corporate Status, Indemnitee 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. The Company shall
also indemnify Indemnitee’s spouse (whether by statute or at common law and without regard to the
location of the governing jurisdiction) and children to the same extent and subject to the same
limitations applicable to Indemnitee hereunder for claims arising out of the status of such person
as a spouse or child of Indemnitee, including claims seeking damages from marital property
(including community property) or property held by such Indemnitee and such spouse or child or
property transferred to such spouse or child, but such indemnity shall not otherwise extend to
protect the spouse or child against liabilities caused by the spouse’s or child’s own acts.
Pursuant to this Section 3, the Indemnitee shall be indemnified against all Liabilities and all
Expenses actually and reasonably incurred by Indemnitee or on Indemnitee’s behalf in connection
with a Proceeding by reason of his Corporate Status 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.
4. Proceedings by or in the Right of the Company. The Indemnitee shall be entitled to the
rights of indemnification provided in this Section 4 if, by reason of his Corporate Status,
Indemnitee 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 4, the
Indemnitee shall be indemnified against all amounts paid in settlement and all Expenses actually
and reasonably incurred by Indemnitee or on Indemnitee’s 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.
5. Court-Ordered Indemnification. Notwithstanding any other provision of this Agreement, a
court of appropriate jurisdiction, upon application of the Indemnitee and such notice as the court
shall require, may order indemnification in the following circumstances:
(a) if it determines that the Indemnitee is entitled to reimbursement under Section
2-418(d)(1) of the MGCL, the court shall order indemnification, in which case the Indemnitee shall
be entitled to recover the Expenses of securing such reimbursement; or
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(b) if it determines that the Indemnitee is fairly and reasonably entitled to indemnification
in view of all the relevant circumstances, whether or not the 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.
6. Expenses of a Successful Party. Notwithstanding any other provision of this Agreement and
without limiting the effect of any such provision, to the extent that the Indemnitee is, by reason
of such Indemnitee’s Corporate Status, made a party to and is successful, on the merits or
otherwise, in the defense of any Proceeding, such Indemnitee shall be indemnified against all
Expenses actually and reasonably incurred by or on behalf of such Indemnitee in connection
therewith. If the 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 the Indemnitee under this Section 6 against all Expenses
actually and reasonably incurred by or on behalf of such Indemnitee in connection with each
successfully resolved claim, issue or matter. For purposes of this Section 6, the term “successful
on the merits or otherwise” shall include, but not be limited to, (i) any termination, withdrawal
or dismissal (with our without prejudice) of any Proceeding against Indemnitee without any express
finding of liability or guilt against him, (ii) the expiration of 180 days after the making of any
claim or threat of a Proceeding without the institution of the same and without any promise of
payment or payment made to induce a settlement or (iii) the settlement of any Proceeding, pursuant
to which Indemnitee pays less than $10,000.
7. Witness Expenses. Notwithstanding any other provision of this Agreement, to the extent
that the Indemnitee is, by reason of such Indemnitee’s Corporate Status, a witness for any reason
in any Proceeding to which such Indemnitee is not a party, such Indemnitee shall be indemnified
against all Expenses actually and reasonably incurred by or on behalf of such Indemnitee in
connection therewith.
8. Advancement of Expenses. The Company shall advance all reasonable Expenses actually and
reasonably incurred by or on behalf of the Indemnitee in connection with any Proceeding (other than
a proceeding brought to enforce indemnification under this Agreement, applicable law, the Charter
Documents, any agreement or a resolution of the stockholders entitled to vote in the election of
directors) within 20 days after the receipt by the Company of a statement from the Indemnitee
requesting such advance from time to time, whether prior to, during or after final disposition of
such Proceeding. Such statement shall reasonably evidence the Expenses incurred by the Indemnitee
and shall include or be preceded or accompanied by a written affirmation by the Indemnitee of the
Indemnitee’s good faith belief that the standard of conduct necessary for indemnification by the
Company as authorized by law and by this Agreement has been met and a written undertaking by or on
behalf of the Indemnitee, in substantially the form attached hereto as Exhibit A 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 the 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
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have not been successfully resolved as described in Section 6. To the extent that Expenses
advanced to the 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 the Indemnitee and
shall be accepted without reference to the Indemnitee’s financial ability to repay such advanced
Expenses and without any requirement to post security therefor.
9. Determination of Entitlement to Indemnification.
(a) To obtain indemnification under this Agreement, the Indemnitee shall submit to the Company
a written request, including therewith such documentation and information as is reasonably
available to the Indemnitee and is reasonably necessary to determine whether and to what extent the
Indemnitee is entitled to indemnification. The Secretary of the Company shall, promptly upon
receipt of such a request for indemnification, advise the Board in writing that the Indemnitee has
requested indemnification.
(b) Upon such written request pursuant to Section 9(a) hereof, a determination, if required by
applicable law, with respect to the Indemnitee’s entitlement thereto shall 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, a copy of which shall be delivered to the Indemnitee (unless the Indemnitee shall
request that such determination be made by the Board, in which case by the person or persons or in
the manner provided in clause (ii) of this Section 9(b)); or (ii) if a Change in Control shall not
have occurred, (a) by the Board (or a duly authorized committee thereof) by a majority vote of a
quorum consisting of Disinterested Directors (if obtainable), or (b) if a quorum of the Board
consisting of Disinterested Directors is not obtainable, or, even if obtainable, if such quorum of
Disinterested Directors so directs, by Independent Counsel in a written opinion to the Board, a
copy of which shall be delivered to the Indemnitee; and, if it is so determined that the Indemnitee
is entitled to indemnification, payment to the Indemnitee shall be made within ten days after such
determination.
(c) The Indemnitee shall cooperate with the person or entity making such determination with
respect to the Indemnitee’s entitlement to indemnification, including providing upon reasonable
advance request any documentation or information which is not privileged or otherwise protected
from disclosure and which is reasonably available to the Indemnitee and reasonably necessary to
such determination. Any Expenses incurred by the Indemnitee in so cooperating shall be borne by
the Company (irrespective of the determination as to the Indemnitee’s entitlement to
indemnification) and the Company hereby indemnifies and agrees to hold the Indemnitee harmless
therefrom.
10. Presumptions.
(a) In making a determination with respect to entitlement to indemnification hereunder, the
person or entity making such determination shall presume that the Indemnitee is entitled to
indemnification under this Agreement if the Indemnitee has submitted a request for indemnification
in accordance with Section 9(a) hereof, and the Company shall have the burden of proof to overcome
such presumption.
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(b) The termination of any Proceeding or of any claim, issue or matter therein, by judgment,
order, settlement, or conviction, or upon a plea of nolo contendere or its equivalent, or an entry
of an order of probation prior to judgment, shall not create a presumption that the Indemnitee did
not meet the requisite standard of conduct described herein for indemnification.
(c) For purposes of any determination hereunder, Indemnitee shall be deemed to have acted in
good faith and in a manner Indemnitee reasonable believed to be in or not opposed to the best
interests of the Company and its stockholders, or, with respect to any criminal action or
proceeding, to have had no reasonable cause to believe Indemnitee’s conduct was unlawful, if
Indemnitee’s action was based on (i) the records or books of account of the Company or another
person, including financial statements, (ii) information supplied to him by the officers of the
Company or another person in the course of their duties, (iii) the advice of legal counsel for the
Company or another person, or (iv) information or records given or reports made to the Company or
another person by an independent certified public accountant or by an appraiser or other expert
selected with reasonable care by the Company or another person.
11. Limitation on Indemnification. Notwithstanding any other provision herein to the
contrary, the Company shall not be obligated pursuant to this Agreement:
(a) Claims Initiated by Indemnitee. To indemnify or advance Expenses to Indemnitee under this
Agreement with respect to any Proceeding brought by the Indemnitee, unless (a) the Proceeding is
brought to enforce indemnification under this Agreement or otherwise or (b) the Charter Documents,
a resolution of the stockholders entitled to vote generally in the election of directors or of the
Board or an agreement approved by the Board to which the Company is a party expressly provide
otherwise.
(b) Section 16 Violations. To indemnify Indemnitee on account of any proceeding with respect
to which final judgment is rendered against Indemnitee for payment or an accounting of its profits
arising from the purchase or sale by Indemnitee of securities in violation of Section 16(b) of the
Exchange Act, or any similar successor statute.
(c) Non-compete and Non-disclosure. To indemnify Indemnitee in connection with proceedings or
claims involving the enforcement of non-compete and/or non-disclosure agreements or the non-compete
and/or non-disclosure provisions of employment, consulting or similar agreements the Indemnitee may
be a party to with the Company, or any subsidiary of the Company or any other applicable foreign or
domestic corporation, partnership, joint venture or other enterprise, if any.
12. Remedies.
(a) If (i) a determination is made pursuant to Section 9 of this Agreement that the Indemnitee
is not entitled to indemnification under this Agreement, (ii) advancement 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 30 days
after receipt by the Company of the request for indemnification, (iv) payment of indemnification is
not made pursuant to Section 6 of this Agreement within twenty days after receipt by the Company of
a written request therefor, or (v) payment of indemnification is not
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made within twenty days after a determination has been made that the Indemnitee is entitled to
indemnification, the Indemnitee shall be entitled to an adjudication in an appropriate court of the
State of Maryland, or in any other court of competent jurisdiction, of his entitlement to such
indemnification or advance of Expenses. The Indemnitee shall commence such proceeding seeking an
adjudication within 180 days following the date on which the Indemnitee first has the right to
commence such proceeding pursuant to this Section 12(a); provided, however, that the foregoing
clause shall not apply in respect of a proceeding brought by the Indemnitee to enforce Indemnitee’s
rights under Section 6 of this Agreement.
(b) In the event that a determination shall have been made pursuant to this Agreement that the
Indemnitee is not entitled to indemnification, any judicial proceeding commenced pursuant to this
Section 12 shall be conducted in all respects as a de novo trial, on the merits and the Indemnitee
shall not be prejudiced by reason of that adverse determination. In any judicial proceeding or
arbitration commenced pursuant to this Section 12, the Company shall have the burden of proving
that the Indemnitee is not entitled to indemnification or advancement of Expenses, as the case may
be.
(c) If a determination shall have been made or deemed to have been made pursuant to this
Agreement that the Indemnitee is entitled to indemnification, the Company shall be bound by such
determination in any judicial proceeding commenced pursuant to this Section 12, absent: (i) a
misstatement by the Indemnitee of a material fact, or an omission of a material fact necessary to
make the Indemnitee’s statement not materially misleading, in connection with the request for
indemnification, or (ii) a prohibition of such indemnification under applicable law.
(d) The Company shall be precluded from asserting in any judicial proceeding commenced
pursuant to this Section 12 that the procedures and presumptions of this Agreement are not valid,
binding and enforceable and shall stipulate in any such court that the Company is bound by all the
provisions of this Agreement.
(e) In the event that the Indemnitee, pursuant to this Section 12, seeks a judicial
adjudication of such Indemnitee’s rights under, or to recover damages for breach of, this
Agreement, if successful in whole or in part, the Indemnitee shall be entitled to recover from the
Company, and shall be indemnified by the Company against, any and all Expenses actually and
reasonably incurred by such Indemnitee in such judicial adjudication.
13. Defense of the Underlying Proceeding.
(a) The 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 the Indemnitee from the right, or otherwise affect in any manner any right of the
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.
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(b) Subject to the provisions of the last sentence of this Section 13(b) and of Section 13(c)
below, the Company shall have the right to defend the Indemnitee in any Proceeding which may give
rise to indemnification hereunder; provided, however, that the Company shall notify the Indemnitee
of any such decision to defend within 15 calendar days following receipt of notice of any such
Proceeding under Section 13(a) above. The Company shall not, without the prior written consent of
the Indemnitee, which shall not be unreasonably withheld or delayed, consent to the entry of any
judgment against the Indemnitee or enter into any settlement or compromise which (i) includes an
admission of fault of the Indemnitee or (ii) does not include, as an unconditional term thereof,
the full release of the Indemnitee from all liability in respect of such Proceeding, which release
shall be in form and substance reasonably satisfactory to the Indemnitee. This Section 13(b) shall
not apply to a Proceeding brought by the Indemnitee under Section 11 or Section 12 above.
(c) Notwithstanding the provisions of Section 13(b) above, if in a Proceeding to which the
Indemnitee is a party by reason of the Indemnitee’s Corporate Status, (i) the Indemnitee reasonably
concludes, based upon an opinion of counsel, 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) the Indemnitee reasonably concludes, based upon an opinion of counsel, that an
actual or apparent conflict of interest or potential conflict of interest exists between the
Indemnitee and the Company, or (iii) if the Company fails to assume the defense of such Proceeding
in a timely manner, the Indemnitee shall be entitled to be represented by separate legal counsel of
the 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 other
person takes any action to declare this Agreement void or unenforceable, or institutes any
Proceeding to deny or to recover from the Indemnitee the benefits intended to be provided to the
Indemnitee hereunder, the Indemnitee shall have the right to retain counsel of the Indemnitee’s
choice, subject to the prior approval of the Company, which shall not be unreasonably withheld, at
the expense of the Company, to represent the Indemnitee in connection with any such matter.
14. Non-Exclusivity. The rights of indemnification and to receive advancement of Expenses as
provided by this Agreement shall not be deemed exclusive of any other rights to which the
Indemnitee may at any time be entitled under applicable law, the Charter Documents, any agreement
or a resolution of the stockholders entitled to vote generally in the election of directors or of
the Board, or otherwise; provided, however the Company shall not be liable under this Agreement to
make any payment of amounts otherwise indemnifiable hereunder if and to the extent that the
Indemnitee has otherwise actually received such payment under any insurance policy, contract,
agreement, or otherwise.. No amendment, alteration or repeal of this Agreement or any provision
hereof shall be effective as to the Indemnitee with respect to any action taken or omitted by the
Indemnitee in Indemnitee’s Corporate Status prior to such amendment, alteration or repeal.
15. Subrogation. In the event of any payment under this Agreement, the Company shall be
subrogated to the extent of such payment to all of the rights of recovery of the Indemnitee, who
shall execute all papers required and take all actions necessary to secure such
rights, including execution of such documents as are necessary to enable the Company to bring
suit to enforce such rights.
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16. Maintenance of Liability Insurance.
(a) The Company will use its reasonable efforts to acquire directors and officers liability
insurance, on terms and conditions and in such amounts deemed appropriate by the Board, covering
the Indemnitee or any claim made against the Indemnitee for service as a director or officer of the
Company and covering the Company for any indemnification or advance of expenses made by the Company
to the Indemnitee for any claims made against the Indemnitee for service as a director or officer
of the Company. Without in any way limiting any other obligation under this Agreement, the Company
shall indemnify the Indemnitee for any payment by the 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 incurred by the Indemnitee in connection with a
Proceeding over the coverage of any insurance referred to in the previous sentence.
(b) If, at the time of the receipt of a notice of a claim pursuant to Section 9 hereof, the
Company has directors’ and officers’ liability insurance in effect, the Company shall give prompt
notice of the commencement of such proceeding to the insurers in accordance with the procedures set
forth in the respective policies. The Company shall thereafter take all necessary or desirable
action to cause such insurers to pay, on behalf of Indemnitee, all amounts payable as a result of
such proceeding in accordance with the terms of such policies.
(c) To the extent that the Company maintains an insurance policy or policies providing
liability insurance for directors or officers of the Company, the Indemnitee shall be covered by
such policy or policies in accordance with its or their terms to the maximum extent of the coverage
available, and upon any “Change in Control”, the Company shall obtain continuation and/or “tail”
coverage for the Indemnitee to the maximum amount obtainable at such time.
17. Continuation of Indemnity.
(a) All agreements and obligations of the Company contained herein shall continue during the
period the Indemnitee is an officer or a member of the Board of the Company and shall continue
thereafter so long as the Indemnitee shall be subject to any threatened, pending or completed
Proceeding by reason of such Indemnitee’s Corporate Status and during the period of any statute of
limitations for any act or omission occurring during the Indemnitee’s term of Corporate Status. No
legal action shall be brought and no cause of action shall be asserted by or on behalf of the
Company against the Indemnitee, the Indemnitee’s spouse, heirs, executors or personal or legal
representatives after the expiration of two (2) years from the date of accrual of such cause of
action, and any claim or cause of action of the Company shall be extinguished and deemed released
unless asserted by the timely filing of a legal action within such two (2) year period; provided,
however, that if any shorter period of limitations is otherwise applicable to any such cause of
action such shorter period shall govern. Notwithstanding the foregoing limitations on the period
within which such claim may be brought, to the extent that any applicable statute of limitations
provides for a tolling of the limitation period under certain circumstances, then the
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limitations provided for in this Section 17 shall also be tolled in the event such
circumstances exist with respect to any such claim or cause of action. This Agreement shall be
binding upon the Company and its successors and assigns and shall inure to the benefit of the
Indemnitee and such Indemnitee’s heirs, executors and administrators.
(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 request of the Company,
and shall inure to the benefit of the Indemnitee and his or her 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
the Indemnitee, expressly to assume and agree to perform this Agreement in the same manner and to
the same extent that the Company would be required to perform if no such succession had taken
place.
18. Change In Law. To the extent that a change in state law (whether by statute or judicial
decision) shall permit broader indemnification or advancement of expenses than is provided under
the terms of the organizational documents of the Company and this Agreement, Indemnitee shall be
entitled to such broader indemnification and advancements, and this Agreement shall bee deemed to
be amended to such extent.
19. 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 by the
provisions held invalid, illegal, or unenforceable.
20. Non-Disclosure of Payments. Except as expressly required by Federal securities laws or
other applicable laws or regulations or by judicial process, Indemnitee shall not disclose any
payments made under this Agreement, whether indemnification or advancement of expenses, without the
prior written approval of the Company.
21. Headings. The headings of the sections 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.
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22. Modification and Waiver. Except as provided in Section 18 above with respect to changes
in state 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. 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.
24. Notices. All notices, requests, demands, and other communications hereunder shall be in
writing and shall be deemed to have been duly given if (i) delivered by hand and receipted for by
the party to whom said notice or other communication shall have been directed, or (ii) mailed by
certified or registered mail with postage prepaid, on the third business day after the date on
which it is so mailed, if so delivered or mailed, as the case may be, to the following addresses:
If to the Indemnitee, to the address set forth in the records of the Company.
If to the Company, to:
|
United Dominion Realty Trust, Inc. | |
0000 Xxxx Xxxxxx Xxxxx, Xxxxx 000 | ||
Xxxxxxxxx Xxxxx, XX 00000 | ||
Attn.: Chief Executive Officer |
or to such other address as may have been furnished to the Indemnitee by the Company or to the
Company by the Indemnitee, as the case may be.
25. Entire Agreement. This Agreement contains the entire agreement of the parties with
respect to the subject matter hereof and supersedes any prior agreements, commitments, drafts,
communications, discussions and understandings, oral or written, with respect thereto.
26. Employment Rights. Nothing in this Agreement is intended to create in Indemnitee any
right to employment or continued employment.
27. 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.
28. Consent to Jurisdiction. Each party to this Agreement hereby (a) consents to the
jurisdiction of the United States District Court for the District of Colorado or, if such court
does not have jurisdiction over such matter, the applicable Colorado State or County Court that has
jurisdiction, (b) irrevocably agrees that all actions or proceedings arising out of or relating to
this Agreement shall be litigated in such court and (c) consents to personal jurisdiction within
Denver, Colorado. Each party to this Agreement accepts for itself and in connection with its
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properties, generally and unconditionally, the exclusive jurisdiction and venue of the
aforesaid courts and waives any defense of lack of personal jurisdiction or inconvenient forum or
any similar defense, and irrevocably agrees to be bound by any non-appealable judgment rendered
thereby in connection with this Agreement.
29. Counterparts. This Agreement may be executed in one or more counterparts, including
electronically transmitted counterparts, each of which shall constitute an original and all of
which together shall constitute a single agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year
first above written.
UNITED DOMINION REALTY TRUST, INC., a Maryland corporation | ||||||
By: | ||||||
Chief Executive Officer and President | ||||||
, an individual |
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EXHIBIT A
FORM OF UNDERTAKING TO REPAY EXPENSES ADVANCED
The Board of Directors of United Dominion Realty Trust, Inc.
Re: Undertaking to Repay Expenses Advanced
Ladies and Gentlemen:
This undertaking is being provided pursuant to that certain Indemnification Agreement dated
the 2nd day of May, 2006, by and between United Dominion Realty Trust, Inc. (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 director] [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 attorney’s 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 6 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___.
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