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Exhibit 10.1
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 non-employee directors and officers who are not directors
:] [and is also]] [[ delete the following for non-employee
directors :] [a member of the Company’s management and an
officer of the Company]], and is entitled to indemnification in
such [[ for non-employee directors :] [capacity]] [[ for
directors who are also employees, 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"), its bylaws (the "Bylaws") 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 and
Bylaws in effect on the date hereof or to such extent as applicable
law and the Charter and Bylaws thereafter from time to time may
permit; provided , however , that no change in
Maryland law or the Charter or Bylaws shall have the effect of
reducing the benefits available to Indemnitee hereunder based on
Maryland law and the Charter and Bylaws 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 to which Indemnitee is, or is threatened to be made a
party, by reason of Indemnitee’s Corporate Status, 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, as reflected in a final
determination of a court of competent jurisdiction that is not
subject to further appeal, 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 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 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 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)
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