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Exhibit 10.10
INDEMNIFICATION AGREEMENT
INDEMNIFICATION AGREEMENT (the "Agreement") between Tower Realty Trust,
a Maryland corporation (the "Company"), and ___________________, a director
and/or an officer of the Company (the "Indemnitee"), dated as of September ,
1997.
R E C I T A L S:
1. It is essential that the Company retain as directors and officers
the most capable persons available.
2. Both the Company and Indemnitee recognize the increased risk of
litigation and other claims being asserted against directors/officers of public
companies in today's environment.
3. The Indemnitee has agreed to serve as a director and/or an officer
of the Company.
4. The charter (the "Charter") and the Bylaws of the Company (the
"Bylaws") provide for certain indemnification of the officers and directors of
the Company.
5. In recognition of Indemnitee's need for substantial protection
against personal liability and to provide Indemnitee with specific contractual
assurance that the protection provided by the Charter will be available to
Indemnitee (regardless of, among other things, any amendment to or revocation of
the Charter or Bylaws, or any Change in Control (as herein defined)), the
Company wishes to provide in this Agreement for the indemnification of and the
advancement of expenses to Indemnitee to the fullest extent permitted by
Maryland law and as set forth in this Agreement, and, to the extent insurance is
maintained, for the continued coverage of Indemnitee under the Company's
directors' and officers' liability insurance policies.
NOW, THEREFORE, in consideration of the premises and intending to be
legally bound hereby, the parties hereto agree as follows:
Section 1. INDEMNIFICATION.
In the event that the Indemnitee was or is made a party to or witness
or other participant in, or is threatened to be made a party to or witness or
other participant in, or is or was otherwise involved, in any threatened,
pending or completed action, suit, proceeding, arbitration, alternate dispute
resolution mechanism, or any inquiry or investigation, whether civil, criminal,
administrative or investigative (hereinafter a "Proceeding"), by reason of the
fact that the Indemnitee or a person of whom the Indemnitee is the legal
representative is or was a director, officer or employee of the Company or,
while a director or officer of the Company, is or was serving at the request of
the Company as a director, officer, partner, trustee, employee or agent of
another corporation or of a partnership, joint venture, trust or other
enterprise, including service with respect to employee benefit plans, whether
the basis of such actual or threatened proceeding is alleged action or omission
in an official capacity as a director, officer, employee or agent or in any
other capacity while serving as a director, officer, employee or agent, the
Indemnitee shall be indemnified and held harmless by the Company to the fullest
extent authorized by
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the Maryland General Corporation Law (the "MGCL"), the Charter and the Bylaws as
the same exist or may hereafter be amended (but, in the case of any such
amendment, only to the extent that such amendment permits the Company to provide
broader indemnification rights than said law permitted the Company to provide
prior to such amendment), against all reasonable expenses, liability and loss
(including, without limitation, attorneys' fees, judgments, fines, ERISA excise
taxes or penalties and amounts paid or to be paid in settlement) actually
incurred by the Indemnitee in connection therewith, and such indemnification
shall continue as to the Indemnitee if the Indemnitee ceases to be a director,
officer, employee or agent and shall inure to the benefit of the Indemnitee's
heirs, executors and administrators; provided, however, that, except as provided
in Section 2 with respect to proceedings seeking to enforce rights to
indemnification, the Company shall indemnify the Indemnitee in connection with a
proceeding (or part thereof) initiated by the Indemnitee only if such proceeding
(or part thereof) was authorized by the Board of Directors of the Company.
Section 2. SUIT TO RECOVER.
If a claim under Section 1 is not paid in full by the Company within
forty-five days after a written claim has been received by the Company, the
Indemnitee may at any time thereafter bring suit against the Company to recover
the unpaid amount of the claim and, if successful in whole or in part, the
Indemnitee shall be entitled to be paid also the expense of prosecuting such
claim. It shall be a defense to any such action (other than an action brought to
enforce a claim for expense incurred in defending any actual or threatened
proceeding in advance of its final disposition where the required undertaking,
if any is required, has been tendered to the Company) that the Indemnitee has
not met the standard of conduct which make it permissible under the MGCL for the
Company to indemnify the Indemnitee for the amount claimed, but the burden of
proving such defense shall be on the Company. Neither the failure of the Company
(including its Board of Directors, independent legal counsel or stockholders) to
have made a determination prior to the commencement of such action that
indemnification of the Indemnitee is proper in the circumstances because the
Indemnitee has met the applicable standard of conduct set forth in the MGCL, nor
an actual determination by the Company (including its Board of Directors,
independent legal counsel or stockholders) that the Indemnitee has not met such
applicable standard of conduct, shall be a defense to the action or create a
presumption that the Indemnitee has not met the applicable standard of conduct.
Section 3. "CHANGE IN CONTROL".
Following any "change in control" of the Company of the type required
to be reported under Item 1 of Form 8-K promulgated under the Securities
Exchange Act of 1934, as amended, any determination as to entitlement to
indemnification shall be made by Independent Legal Counsel selected by the
Indemnitee, such Independent Legal Counsel to be retained by the Board of
Directors on behalf of the Company, "Independent Legal Counsel" shall mean an
attorney or firm of attorneys who shall not have otherwise performed services
for the Company or Indemnitee within the last five years (other than with
respect to matters concerning the rights of Indemnitee under this Agreement, or
of other indemnitees under similar indemnity agreements).
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Section 4. INSURANCE.
In the event that the Company maintains insurance to protect itself and
any director or officer of the Company against any expense, liability or loss,
such insurance shall cover the Indemnitee to at least the same extent as any
other director or officer of the Company.
Section 5. ADVANCE OF EXPENSES.
The right to indemnification conferred by this Agreement shall include
the right to be paid by the Company the reasonable expenses (including
attorney's fees) incurred in defending any actual or threatened proceeding in
advance of its final disposition; provided, however, that, if the MGCL requires,
the payment of such expenses incurred by the Indemnitee in advance of the final
disposition of any actual or threatened proceeding shall be made only upon
delivery to the Company of an undertaking, by or on behalf of the Indemnitee, to
repay all amounts so advanced if it shall ultimately be determined that the
Indemnitee is not entitled to be indemnified under this Agreement or otherwise.
Section 6. INDEMNIFICATION FOR ADDITIONAL EXPENSES.
The Company shall indemnify Indemnitee against any and all expenses
(including reasonable attorneys' fees) and, if requested by Indemnitee, shall
(within ten business days of such request) advance such expenses to Indemnitee,
which are incurred by Indemnitee in connection with any action brought by
Indemnitee for (i) indemnification or advance payment of expenses by the Company
under this Agreement, the Charter or any other agreement, certificate of
incorporation or Company by-law now or hereafter in effect relating to claims
and/or (ii) recovery under any directors' and officers' liability insurance
policies maintained by the Company; provided, however, that the payment of
expenses incurred by Indemnitee in advance of final disposition of such action
will be made only upon receipt by the Company of an undertaking by the
Indemnitee to repay all amounts advanced if it should be ultimately determined
that the Indemnitee is not entitled to be indemnified under this Agreement or
otherwise.
Section 7. PARTIAL INDEMNITY.
If Indemnitee is entitled under any provision of this Agreement to
indemnification by the Company for a portion of the expenses, judgments, fines,
penalties and amounts paid in settlement of a claim but not, however, for the
total amount thereof, the Company shall nevertheless indemnify Indemnitee for
the portion thereof to which Indemnitee is entitled. Moreover, notwithstanding
any other provision of this Agreement, to the extent that Indemnitee has been
successful on the merits or otherwise in defense of any or all claims or in
defense of any proceeding, including dismissal without prejudice, Indemnitee
shall be indemnified against all reasonable expenses incurred in connection
therewith.
Section 8. BURDEN OF PROOF.
In connection with any determination by the Reviewing Party or
otherwise as to whether Indemnitee is entitled to be indemnified hereunder, the
burden of proof shall be on the Company to establish that Indemnitee is not so
entitled.
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"Reviewing Party" shall mean, subject to any requirement set forth in
the MGCL, any person or group of persons consisting of a member or members of
the Company's Board of Directors or any other person or body appointed by the
Board of Directors who is not a party to the particular Proceeding for which
Indemnitee is seeking indemnification, or Independent Legal Counsel, who shall
determine whether Indemnitee is entitled to be indemnified hereunder.
Section 9. NO PRESUMPTIONS.
For purposes of this Agreement, the termination of any claim, action,
suit or proceeding, by judgment, order, settlement (whether with or without
court approval) or conviction, or upon a plea of nolo contendere, or its
equivalent, shall not create a presumption that Indemnitee did not meet any
particular standard of conduct or have any particular belief or that a court has
determined that indemnification is not permitted by applicable law. In addition,
neither the failure of a Reviewing Party to have made a determination as to
whether Indemnitee has met any particular standard of conduct or had any
particular belief,nor an actual determination by a Reviewing Party that
Indemnitee has not met such standard of conduct or did not have such belief,
prior to the commencement of legal proceedings by Indemnitee to secure a
judicial determination that Indemnitee should be indemnified under applicable
law, shall be a defense to Indemnitee's claim or create a presumption that
Indemnitee has not met any particular standard of conduct or did not have any
particular belief.
Section 10. NON-EXCLUSIVITY.
The rights conferred in this Agreement shall not be exclusive of any
other right which the Indemnitee may have or hereafter acquire under any
statute, provision of the Charter, Bylaws, agreement, vote of stockholders or of
disinterested directors or otherwise.
Section 11. SUBROGATION.
In the event of 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 shall do everything that
may be necessary to secure such rights, including the execution of such
documents necessary to enable the Company effectively to bring suit to enforce
such rights.
Section 12. NO DUPLICATION OF PAYMENTS.
The Company shall not be liable under this Agreement to make any
payment in connection with any claim made against Indemnitee to the extent
Indemnitee has otherwise actually received payment (under any insurance policy,
the Charter or otherwise) of the amounts otherwise indemnifiable hereunder.
Section 13. BINDING EFFECT.
This Agreement shall be binding upon and inure to the benefit of and be
enforceable by the parties hereto and their respective successors, assigns,
including any direct or indirect successor by purchase, merger, consolidation or
otherwise to all or substantially all of the business and/or assets of the
Company, spouses, heirs, executors and personal and legal representatives. This
Agreement shall
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continue in effect regardless of whether Indemnitee continues to serve as an
officer or director of the Company or of any other enterprise at the Company's
request.
Section 14. SEVERABILITY.
The provisions of this Agreement shall be severable in the event that
any of the provisions hereof (including any provision within a single section,
paragraph or sentence) is held by a court of competent jurisdiction to be
invalid, void or otherwise unenforceable in any respect, and the validity and
enforceability of any such provision in every other respect and of the remaining
provisions hereof shall not be in any way impaired and shall remain enforceable
to the fullest extent permitted by law.
Section 15. AMENDMENT.
This Agreement may not be changed, modified or amended except
in writing signed by the parties hereto.
IN WITNESS WHEREOF, the Company and the Indemnitee have executed this
Agreement as of the day and year first above written.
COMPANY:
TOWER REALTY TRUST
By:
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Name:
Title:
INDEMNITEE:
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Name:
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