EXHIBIT 10.4
INDEMNIFICATION AGREEMENT
THIS INDEMNIFICATION AGREEMENT is made and entered into this ____ day
of __________, 2004 (this "Agreement"), by and between BioMed Realty Trust,
Inc., a Maryland corporation (the "Company"), and
________________________________ ("Indemnitee").
WHEREAS, at the request of the Company, Indemnitee currently serves as
a director or officer of the Company and may, therefore, be subjected to claims,
suits or proceedings arising as a result of his or her service; and
WHEREAS, as an inducement to Indemnitee to continue to serve as such
director or 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 fullest 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" means 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, as amended (the "Act"), whether or not the
Company is then subject to such reporting requirement; provided, however, that,
without limitation, such a Change in Control shall be deemed to have occurred if
after the Effective Date (i) any "person" (as such term is used in Sections
13(d) and 14(d) of the Act) is or becomes the "beneficial owner" (as defined in
Rule 13d-3 under the Act), directly or indirectly, of securities of the Company
representing 15% or more of the combined voting power of the Company's then
outstanding securities without the prior approval of at least two-thirds of the
members of the Board of Directors in office immediately prior to such person
attaining such percentage interest; (ii) there occurs a proxy contest, or the
Company is a party to a merger, consolidation, sale of assets, plan of
liquidation or other reorganization not approved by at least two-thirds of the
members of the Board of Directors then in office, as a consequence of which
members of the Board of Directors in office immediately prior to such
transaction or event constitute less than a majority of the Board of Directors
thereafter; or (iii) during any period of two consecutive years, other than as a
result of an event described in clause (a)(ii) of this Section 1, individuals
who at the beginning of such period constituted the Board of Directors
(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 of Directors.
(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 Director" means a director 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 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 Directors, 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 Directors, 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 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.
Section 3. Indemnification - General. The Company shall indemnify, and
advance Expenses to, Indemnitee (a) as 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 3 shall include, without
limitation, the rights set
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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").
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 or her Corporate Status, he or she is, or
is threatened to be, made a party to or a witness in 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 against all
judgments, penalties, fines and amounts paid in settlement and all Expenses
actually and reasonably incurred by him or her or on his or her behalf in
connection with a Proceeding by reason of his or her 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 or her 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 or her Corporate Status, he or she is, or is threatened to
be, made a party to or a witness in 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 Expenses actually and reasonably incurred
by him or her or on his or her 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;
provided, however, that no indemnification against such Expenses shall be made
in respect of any Proceeding in which Indemnitee shall have been finally
adjudged to be liable to the Company.
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 her or on his or her behalf in connection with a Proceeding.
Section 7. Partial Indemnification. If Indemnitee is entitled under
any provision of this Agreement to indemnification by the Company for a portion
of the Expenses, judgments, penalties, fines and amounts paid in settlement,
but not, however, for the total amount thereof, the Company shall nevertheless
indemnify Indemnitee for the portion thereof to which Indemnitee is entitled.
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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 Charter or
Bylaws of the Company, any agreement or a resolution of the stockholders
entitled to vote generally in the election of directors or of the Board of
Directors) 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 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 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
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 Directors 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
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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 Directors, 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 Directors (or a duly authorized committee thereof) by a majority vote
of a quorum consisting of Disinterested Directors (as herein defined), or (B) if
a quorum of the Board of Directors consisting of Disinterested Directors is not
obtainable or, even if obtainable, such quorum of Disinterested Directors so
directs, by Independent Counsel in a written opinion to the Board of Directors,
a copy of which shall be delivered to Indemnitee, or (C) if so directed by a
majority of the members of the Board of Directors, by the stockholders 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
Directors or Independent Counsel if retained pursuant to clause (ii)(B) of this
Section 9. 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 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 30 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
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Maryland, or in any other court of competent jurisdiction, of his or her
entitlement to such indemnification or advance of Expenses. Alternatively,
Indemnitee, at his or her 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 or her
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.
(d) In the event that Indemnitee, pursuant to this Section 11,
seeks a judicial adjudication of or an award in arbitration to enforce his or
her 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 or her 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
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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 or she 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
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 Charter
or Bylaws of the Company, any agreement or a resolution of the stockholders
entitled to vote generally in the election of directors or of the Board of
Directors, 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 or her 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
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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 directors and officers liability insurance, on terms and conditions
deemed appropriate by the Board of Directors of the Company, with the advice of
counsel, covering Indemnitee or any claim made against 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 Indemnitee for any
claims made against 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 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 or her 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 testify, he or
she shall be advanced all reasonable Expenses and indemnified against all
Expenses actually and reasonably incurred by him or her or on his or her behalf
in connection therewith.
Section 16. Duration of Agreement; Binding Effect.
(a) This Agreement shall continue until and terminate upon the
expiration of the applicable statute of limitations for claims against
Indemnitee which are subject to indemnification pursuant to this Agreement;
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, and of any Proceeding commenced after the expiration of the
applicable statute of limitations and subsequently dismissed as a result
thereof.
(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 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 Indemnitee,
expressly to assume and agree to perform this Agreement in the same manner and
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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 Charter, a
resolution of the stockholders entitled to vote generally in the election of
directors or of the Board of Directors or an agreement approved by the Board of
Directors 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.
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(b) If to the Company to:
BioMed Realty Trust, Inc.
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
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]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
the day and year first above written.
ATTEST: BIOMED REALTY TRUST, INC.
_________________________ By: ___________________________ (SEAL)
Name:
Title:
WITNESS: INDEMNITEE
_________________________ ______________________________________
Name:
Address:
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EXHIBIT A
FORM OF UNDERTAKING TO REPAY EXPENSES ADVANCED
The Board of Directors of BioMed 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 ___ day of __________, 2004, by and between
BioMed 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 or 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)