EXHIBIT 10.1
FORM OF AGREEMENT
This Agreement (this
“Agreement”), dated as of February 9, 2007, is made by
and between Behringer Harvard REIT I, Inc., a Maryland corporation
(the “Company” or “Indemnitor” as the case
may be), and the person executing this Agreement (the
“Director”). Capitalized terms used herein but
not otherwise defined herein shall have the meanings ascribed to
them in the Company’s Sixth Articles of Amendment and
Restatement (as amended or restated from time to time, the
“Charter”).
R E C I T A L
S
A.
The Company operates as a real estate investment trust (a
“REIT”) for federal and state income tax
purposes.
B.
The Company, from time to time, offers shares of its common stock
pursuant to the requirements imposed by federal and the various
state laws.
C.
In connection with complying with the various state laws known as
“Blue Sky” laws, the Company is required to comply with
the Statement of Policy applicable to REITs promulgated by the
North American Securities Administrators Association, Inc. on
September 29, 1993, referred to herein as the “NASAA
Guidelines.”
D.
The Charter authorizes the Company to limit the liability of, and
indemnify, its officers and Directors to the fullest extent
permitted by Maryland law.
E.
The NASAA Guidelines impose limits, greater than those imposed by
Maryland law, on a company’s power to hold its directors
harmless for loss or liability suffered by the directors or the
Company.
F.
The Company has filed a registration statement with, among others,
the Securities and Exchange Commission and the Pennsylvania
Securities Commission.
G.
The Securities and Exchange Commission has declared effective the
Company’s registration statement.
H.
The
Pennsylvania Securities Commission, as part of its review of the
registration statement, has requested that the Company amend the
Charter to provide that, to the extent that the provisions of the
Maryland General Corporation Law, as amended (the
“MGCL”), conflict with the provisions set forth in the
NASAA Guidelines, the NASAA Guidelines control to the extent any
provisions of the MGCL are not mandatory.
I.
The Pennsylvania Securities Commission has also requested that the
Company amend certain provisions of its Charter regarding conflicts
between the NASAA Guidelines and the MGCL.
J.
The Company is willing to submit the proposals to amend the Charter
to its Stockholders; provided , however , that until
the time that the amendments to the Charter are approved by the
Stockholders, and if the amendments are not approved by the
Stockholders, the Directors, including the undersigned, have
entered into the agreement set forth herein, establishing certain
rights and obligations.
NOW, THEREFORE, in consideration of
the mutual covenants and conditions hereinafter contained, and for
other good and valuable consideration, the receipt and sufficiency
of which is hereby acknowledged, the parties hereto agree as
follows:
1
Agreement to Hold Harmless and Indemnification .
(a)
Subject to paragraphs (b), (c) and (d) of this Section 1 ,
the Company shall hold harmless and indemnify the Director from and
against any liability or loss to which the Director may become
subject or which the Director may incur by reason of his or her
services as a Director, officer, employee or agent of the
Company.
(b)
The Company shall not indemnify the Director or hold the Director
harmless for any loss or liability suffered by the Company
unless:
(i)
the Directors have determined, in good faith, that the course of
conduct which caused the liability or loss was in the best interest
of the Company;
(ii)
the Director was acting on behalf of or performing services on the
part of the Company;
(iii)
the liability or loss was not the result of negligence or
misconduct on the part of the Director except that in the event the
Director is or was an Independent Director, the liability or loss
shall not have been the result of gross negligence or willful
misconduct of the Director;
(iv)
the indemnification is recoverable only out of the Net Assets of
the Company and not from the Stockholders; and
(v)
if required by the Charter or applicable law, the Directors, the
special legal counsel to the Company or the Stockholders have
determined that indemnification or reimbursement is
proper.
(c)
Notwithstanding anything to the contrary in paragraph (b) above,
the Company shall not indemnify the Director for liabilities or
losses arising from or out of an alleged violation o
