Exhibit 10.3
FORM OF INDEMNIFICATION
AGREEMENT
This INDEMNIFICATION AGREEMENT (this
“Agreement”) is made and entered into as of this
day of October, 2006, by and
between DCT Industrial Trust Inc., a Maryland corporation (the
“Company”), and
(“Indemnitee”).
WHEREAS, Indemnitee is [[ delete
the following for non-directors :] [a member of the
Company’s Board of Directors (the “Board of
Directors”),] [[ delete the following for independent
directors and officers who are not directors :] [and is also]]
[[ delete the following for independent directors :] [a
member of the Company’s management and an officer of the
Company]], and is entitled to indemnification in such [[ for
independent directors :] [capacity]] [[ for non-independent
directors and officers :] [capacities]] and may be reimbursed
for certain expenses pursuant to (and subject to the limitations
provided in) the Company’s charter (the
“Charter”) and applicable law;
WHEREAS, Indemnitee wishes to
(i) be assured to the greatest extent reasonably practicable
that Indemnitee is protected against the risks of claims and
litigation which may result from Indemnitee’s acts or
omissions made on behalf of the Company or its affiliates, and
(ii) clarify the procedures and presumptions which will apply
if Indemnitee seeks such protection;
WHEREAS, the Board of Directors [[
delete the following for directors :] of the Company (the
“Board of Directors”)] has determined that it is
appropriate and in the best interests of the Company and the
Company’s stockholders that the Company should act to assure
Indemnitee that there will be increased certainty of such
protection and that such assurance should be provided prior to any
actions taken or omissions made by Indemnitee on behalf of the
Company or its affiliates; and
WHEREAS, Indemnitee is willing to
continue to serve the Company on the condition that Indemnitee be
so indemnified;
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. Indemnification
— General . The Company shall indemnify and advance
Expenses (as hereinafter defined) to Indemnitee as provided in this
Agreement and to the fullest extent permitted by applicable law and
the Company’s Charter in effect on the date hereof or to such
extent as applicable law and the Charter thereafter from time to
time may permit; provided , however , that no change
in Maryland law or the Charter shall have the effect of reducing
the benefits available to Indemnitee hereunder based on Maryland
law and the Charter as in effect on the date hereof. The rights of
Indemnitee provided in this Section 1 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. This
Agreement shall be effective with respect to any Proceeding (as
hereinafter defined) including, without limitation, any Proceeding
which relates to acts or omissions occurring or allegedly occurring
at any time prior to the date of this Agreement. The rights of
Indemnitee provided under the preceding sentences of this Section 1
shall include, but shall not be limited to, the rights set forth in
the other Sections of this Agreement.
SECTION 2. Rights to
Indemnification . Except as otherwise provided by Section 14,
Indemnitee shall be entitled to the rights of indemnification
provided in this Section 2 if, by reason of Indemnitee’s
Corporate Status (as hereinafter defined), Indemnitee is, or is
threatened to be made, a party to any threatened, pending or
completed Proceeding. Pursuant to this Section 2, Indemnitee shall
be indemnified against Expenses (as hereinafter defined),
judgments, penalties, fines and amounts paid in settlement actually
and reasonably incurred by Indemnitee or on Indemnitee’s
behalf in connection with such Proceeding or any other issue or
matter therein by reason of his Corporate Status, unless it is
established by a preponderance of the evidence, as reflected in a
final determination of a court of
competent jurisdiction that is not subject to
further appeal, that (i) the act or omission of Indemnitee was
material to the matter(s) 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 the act or omission
was unlawful (clauses (i), (ii) and (iii) are hereinafter
collectively referred to as “Bad Conduct”).
Notwithstanding the foregoing, if the Proceeding was one by or in
the right of the Company, no indemnification shall be made in
respect of any claim, issue or matter in such Proceeding as to
which Indemnitee shall have been adjudged to be liable to the
Company if applicable law prohibits such indemnification;
provided, however, that , if applicable law so permits,
indemnification shall nevertheless be made by the Company in such
event if and only to the extent that the court in which such
Proceeding shall have been brought or is pending, shall so
determine.
SECTION 3. Indemnification for
Expenses of a Party Who is Wholly or Partly Successful .
Notwithstanding any other provision of this Agreement, to the
extent that Indemnitee is, by reason of Indemnitee’s
Corporate Status, a party to and is successful, on the merits or
otherwise, in defense of any Proceeding, Indemnitee shall be
indemnified against all Expenses actually and reasonably incurred
by Indemnitee or on Indemnitee’s behalf in connection
therewith. If Indemnitee is not wholly successful in the defense of
such Proceeding but is successful on the merits or otherwise, as to
one or more but less than all claims, issues or matters in such
Proceeding, the Company shall indemnify Indemnitee against all
Expenses actually and reasonably incurred by Indemnitee or on
Indemnitee’s behalf in connection with each successfully
resolved claim, issue or matter, allocated on a reasonable and
proportionate basis. For purposes of this Section 3, and without
limitation, the termination of any claim, issue or matter in such a
Proceeding by dismissal, with or without prejudice, shall be deemed
to be a successful result as to such claim, issue or
matter.
SECTION 4. Indemnification of
Expenses of a Witness . Notwithstanding any other provision of
this Agreement, to the extent that Indemnitee is, by reason of
Indemnitee’s Corporate Status, a witness in any Proceeding,
Indemnitee shall be indemnified against all Expenses actually and
reasonably incurred by Indemnitee on Indemnitee’s or the
Company’s behalf in connection therewith.
SECTION 5. Advancement of
Expenses . The Company shall advance all Expenses reasonably
incurred by or on behalf of Indemnitee in connection with any
threatened, pending or completed Proceeding from time to time and
as incurred, within 30 days after the receipt by the Company of a
statement or statements from Indemnitee requesting such advance or
advances, 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 (i) a written affirmation by Indemnitee
of Indemnitee’s good-faith belief that he has not engaged in
Bad Conduct in connection with the matter(s) giving rise to, and is
entitled to indemnification in connection with, such Proceeding,
pursuant to and in accordance with the terms of this Agreement, and
(ii) an undertaking by or on behalf of Indemnitee to repay any
Expenses advanced if it shall ultimately be determined that
Indemnitee has engaged in Bad Conduct in connection with the
matter(s) giving rise to such Proceeding and is therefore not
entitled to be indemnified against such Expenses. To the extent
that Expenses advanced to Indemnitee do not relate 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 5 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.
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SECTION 6. 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 of the Company in
writing that Indemnitee has requested indemnification.
(b) Upon written request by
Indemnitee for indemnification pursuant to the first sentence of
Section 6(a), a determination, if required by applicable law,
with respect to Indemnitee’s entitlement thereto shall be
made in the specific case: (i) if a Change in Control (as
hereinafter defined) shall have occurred, by Independent Counsel
(as hereinafter defined) (unless Indemnitee shall request that such
determination be made by the Board of Directors, in which case such
determination shall be made by the person or persons provided for
in clause (ii)(A), or in the manner provided for in clause (ii)(B),
of this Section 6(b)) 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 a majority vote of all Disinterested Directors (as
hereinafter defined), even though less than a quorum of the Board
of Directors, or (B) if there are no Disinterested Directors,
by Independent Counsel in a written opinion to the Board of
Directors, a copy of which shall be delivered to Indemnitee; and if
it is so determined that Indemnitee is entitled to indemnification,
payment to Indemnitee shall be made in full 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. Any costs or expenses (including reasonable
attorneys’ fees and disbursements) incurred by Indemnitee in
so cooperating with the person, persons or entity making such
determination or otherwise in connection with Indemnitee’s
request for indemnification shall be borne by the Company
(irrespective of the determination as to Indemnitee’s
entitlement to indemnification) and the Company hereby indemnifies
and agrees to hold Indemnitee harmless therefrom.
(c) In the event the determination
of entitlement to indemnification is to be made by the Independent
Counsel pursuant to Section 6(b) hereof, the Independent
Counsel shall be determined as provided in this Section 6(c).
The Independent Counsel shall be selected by Indemnitee (unless
Indemnitee shall request that such selection be made by the Board
of Directors, in which event the Board of Directors shall so
select), and Indemnitee shall give written notice to the Company
advising it of the identity of the Independent Counsel so selected.
In either event, Indemnitee or the Company, as the case may be,
within seven days after such written notice of selection shall have
been given, may deliver to the other a written objection to such
selection. If such objection to Independent Counsel selected by
Indemnitee is made by the Company (or if such objection to
Independent Counsel selected by the Board of Directors at the
request of Indemnitee is made by Indemnitee), Indemnitee may
select, and give the Company written notice of selection of,
another Independent Counsel, in which event the Company may, within
seven days after such written notice of selection shall have been
given, deliver to Indemnitee a written objection to such selection.
Any objection hereunder to Independent Counsel may be asserted only
on the grounds that the Independent Counsel so selected does not
meet the requirements of “Independent Counsel” as
defined in Section 17 of this Agreement, and the objection
shall set forth with particularity the factual basis of such
assertion. If any such written objections are made under this
Section 6(c), the Independent Counsel so selected may not
serve as Independent Counsel unless and until a court has
determined that such objection is without merit. If, within 20 days
after submission by Indemnitee of a written request for
indemnification pursuant to Section 6(a) hereof, in a case in
which Independent Counsel is required to act pursuant to
Section 6(b), no Independent Counsel shall have been selected
and not objected to, Indemnitee may petition any court of competent
jurisdiction for resolution of any objection which shall have been
made by the Company or Indemnitee to the selection of
Independent
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Counsel and/or for the appointment of
Independent Counsel under Section 6(b) hereof. The Company
shall pay all fees and expenses (including reasonable
attorneys’ fees and disbursements) incurred by Indemnitee and
incident to the procedures of this Section 6(c), regardless of
the manner in which such Independent Counsel was selected or
appointed. Upon the due commencement of any judicial proceeding
pursuant to Section 8(a) of this Agreement, Independent
Counsel shall be discharged and relieved of any further
responsibility in such capacity (subject to the applicable
standards of professional conduct then prevailing).
SECTION 7. Presumption and Effect
of Proceedings .
(a) In making any determination with
respect to entitlement to indemnification hereunder, the person,
persons or entity making such determination shall in each case
presume that Indemnitee is entitled to indemnification under this
Agreement if Indemnitee has submitted a request for indemnification
in accordance with Section 6(a) of this Agreement, and the
Company shall in each case have the burden of proof to overcome
that presumption in connection with the making by any person,
persons or entity of any determination contrary to that
presumption.
(b) If the determination of whether
Indemnitee is entitled to indemnification is to be made (i) by
the Board of Directors in the manner provided by Section 6(b)
and no determination shall have been made within 45 days after
receipt by the Company of the request therefor, or (ii) by
Independent Counsel pursuant to Section 6(b) and no
determination shall have been made by Independent Counsel within 45
days after the appointment of Independent Counsel pursuant to
Section 6(c), then in either such case, if Indemnitee shall
have complied with Indemnitee’s obligation
