EXHIBIT 10.6
FORM OF
INDEMNIFICATION
AGREEMENT
THIS INDEMNIFICATION AGREEMENT
(“Agreement”) is made and entered into as of the
day of
, 2009 by and among Industrial Income Trust Inc., a Maryland
corporation (the “Company”), and
, a director and/or officer of the Company (the
“Indemnitee”).
RECITALS
WHEREAS, the interpretation of
statutes, regulations and charter and Bylaw provisions regarding
indemnification of directors and officers may be too uncertain to
provide such directors and officers with adequate notice of the
legal, financial and other risks to which they may be exposed by
virtue of their service as such; and
WHEREAS, damages sought against
directors and officers in shareholder or similar litigation may be
substantial, and the costs of defending such actions and of
judgments in favor of plaintiffs or of settlement therewith may be
prohibitive for individual directors and officers, without regard
to the merits of a particular action and without regard to the
culpability of, or the receipt of improper personal benefit by, any
named director or officer; and
WHEREAS, the long period of time
which may elapse before final disposition of such litigation may
impose undue hardship and burden on a director or officer or his
estate in maintaining a proper and adequate defense of himself or
his estate against claims for damages; and
WHEREAS, the Company is organized
under the Maryland General Corporation Law (the
“MGCL”), and Section 2-418 of the MGCL empowers
corporations to indemnify and advance expenses of litigation to a
person serving as a director, officer, employee or agent of a
corporation and to persons serving at the request of the
corporation, while a director of a corporation, as a director,
officer, partner, trustee, employee or agent of another foreign or
domestic corporation, partnership, joint venture, trust, other
enterprise or employee benefit plan, and further provides that the
indemnification and advancement of expenses set forth in the MGCL
are not “exclusive of any other rights, by indemnification or
otherwise, to which a director may be entitled under the charter,
the bylaws, a resolution of stockholders or directors, an agreement
or otherwise, both as to action in an official capacity and as to
action in another capacity while holding such office”;
and
WHEREAS, the charter of the Company,
as it may be amended or amended and restated from time to time (the
“Charter”), provides that the Company shall indemnify
and hold harmless directors, advisors, or affiliates, as such terms
are defined in the Charter; and
WHEREAS, the Board of Directors of
the Company (the “Board”) has concluded that it is
advisable and in the best interests of the Company to enter into an
agreement to indemnify in a reasonable and adequate manner the
Indemnitee and to assume for itself maximum liability
for
expenses and damages in connection with claims
lodged against him for his decisions and actions as a director
and/or officer of the Company;
NOW, THEREFORE, in consideration of
the foregoing, and of other good and valuable consideration, the
receipt and sufficiency of which is acknowledged by each of the
parties hereto, the parties agree as follows:
ARTICLE I
DEFINITIONS
For purposes of this Agreement, the
following terms shall have the meanings set forth below:
Section 1.1. “Change
in Control” shall mean a change in the ownership of or power
to direct the Voting Securities of the Company or the acquisition
by a person not affiliated with the Company of the ability to
direct the management of the Company.
Section 1.2. “Corporate
Status” shall mean the status of a person who is or was a
director or officer of the Company, or a member of any committee of
the Board, and the status of a person who, while a director or
officer of the Company, is or was serving at the request of the
Company as a director, officer, partner (including service as a
general partner of any limited partnership), trustee, employee, or
agent of another foreign or domestic corporation, partnership,
joint venture, trust, other incorporated or unincorporated entity
or enterprise or employee benefit plan.
Section 1.3. “Disinterested
Director” shall mean a director of the Company who neither is
nor was a party to the Proceeding in respect of which
indemnification is being sought by the Indemnitee.
Section 1.4. “Expenses”
shall mean without limitation expenses of Proceedings including all
attorneys’ fees, retainers, court costs, transcript costs,
fees of experts, investigation fees and expenses, accounting and
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.
Section 1.5. “Good
Faith Act or Omission” shall mean an act or omission of the
Indemnitee reasonably believed by the Indemnitee to be in or not
opposed to the best interests of the Company and other than
(i) one involving negligence or misconduct, or, if the
Indemnitee is an independent director, one involving gross
negligence or willful misconduct; (ii) one that was material
to the loss or liability and that was committed in bad faith or
that was the result of active and deliberate dishonesty;
(iii) one from which the Indemnitee actually received an
improper personal benefit in money, property or services; or
(iv) in the case of a criminal Proceeding, one as to which the
Indemnitee had cause to believe his conduct was
unlawful.
Section 1.6. “Liabilities”
shall mean liabilities of any type whatsoever, including, without
limitation, any judgments, fines, excise taxes and penalties under
the Employee Retirement Income Security Act of 1974, as amended,
penalties and amounts paid in settlement
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(including all interest, assessments and other
charges paid or payable in connection with or in respect of such
judgments, fines, penalties or amounts paid in settlement) in
connection with the investigation, defense, settlement or appeal of
any Proceeding or any claim, issue or matter therein.
Section 1.7. “Proceeding”
shall mean any threatened, pending or completed action, suit,
arbitration, alternate dispute resolution mechanism, investigation,
administrative hearing or any other actual, threatened or completed
proceeding whether civil, criminal, administrative or
investigative, or any appeal therefrom.
Section 1.8. “Voting
Securities” shall mean any securities of the Company that are
entitled to vote generally in the election of directors.
ARTICLE II
TERMINATION OF
AGREEMENT
This Agreement shall continue until,
and terminate upon the later to occur of (i) the death of the
Indemnitee; or (ii) the final termination of all Proceedings
(including possible Proceedings) in respect of which the Indemnitee
is granted rights of indemnification or advancement of Expenses
hereunder and of any proceeding commenced by the Indemnitee
regarding the interpretation or enforcement of this
Agreement.
ARTICLE III
SERVICE BY INDEMNITEE, NOTICE OF
PROCEEDINGS
AND DEFENSE OF
CLAIMS
Section 3.1.
Notice of Proceedings . The Indemnitee agrees to notify the
Company promptly in writing upon being served with any summons,
citation, subpoena, complaint, indictment, information or other
document relating to any Proceeding or matter which may be subject
to indemnification or advancement of Expenses covered hereunder,
but the Indemnitee’s failure to so notify the Company shall
not relieve the Company from any liability which it may have to the
Indemnitee 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
prejudiced.
Section 3.2.
Defense of Claims . The Company will be entitled to
participate, at its own expense, in any Proceeding of which it has
notice. The Company jointly with any other indemnifying party
similarly notified of any Proceeding will be entitled to assume the
defense of the Indemnitee therein, with counsel reasonably
satisfactory to the Indemnitee; provided, however, that the Company
shall not be entitled to assume the defense of the Indemnitee in
any Proceeding if there has been a Change in Control or if the
Indemnitee has reasonably concluded that there may be a conflict of
interest between the Company and the Indemnitee with respect to
such Proceeding. The Company will not be liable to the Indemnitee
under this Agreement for any Expenses incurred by the Indemnitee in
connection with the defense of any Proceeding, other than
reasonable costs of investigation or as otherwise provided below,
after notice from the Company to the Indemnitee of its election to
assume the defense of the Indemnitee therein. The Indemnitee shall
have the right to employ his own counsel in any such Proceeding,
but the fees
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and expenses of such counsel incurred after
notice from the Company of its assumption of the defense thereof
shall be at the expense of the Indemnitee unless (i) the
employment of counsel by the Indemnitee has been authorized by the
Company; (ii) the Indemnitee shall have reasonably concluded
that counsel employed by the Company may not adequately represent
the Indemnitee and shall have so informed the Company; or
(iii) the Company shall not in fact have employed counsel to
assume the defense of the Indemnitee in such Proceeding or the
counsel employed by the Company shall not, in fact, have assumed
such defense or such counsel shall not be acting, in connection
therewith, with reasonable diligence; and in each such case the
fees and expenses of the Indemnitee’s counsel shall be
advanced by the Company in accordance with this
Agreement.
Section 3.3.
Settlement of Claims . The Company shall not settle any
Proceeding in any manner which would impose any liability, penalty
or limitation on the Indemnitee without the written consent of the
Indemnitee; provided, however, that the Indemnitee will not
unreasonably withhold or delay consent to any proposed settlement.
The Company shall not be liable to indemnify the Indemnitee under
this Agreement or otherwise for any amounts paid in settlement of
any Proceeding effected by the Indemnitee without the
Company’s written consent, which consent shall not be
unreasonably withheld or delayed.
ARTICLE IV
INDEMNIFICATION
Section 4.1.
General . Upon the terms and subject to the conditions set
forth in this Agreement, the Company shall hold harmless and
indemnify the Indemnitee against any and all Liabilities actually
incurred by or for him in connection with any Proceeding (whether
the Indemnitee is or becomes a party, a witness or otherwise is a
participant in any role) to the fullest extent required or
permitted by the Charter and by applicable law in effect on the
date hereof and to such greater extent as applicable law may
hereafter from time to time permit. For all matters for which the
Indemnitee is entitled to indemnification under this Article IV,
the Indemnitee shall be entitled to advancement of Expenses in
accordance with Article V hereof.
Section 4.2.
Proceeding Other Than a Proceeding By or In the Right of the
Company . If the Indemnitee was or is a party or is threatened
to be made a party to any Proceeding (whether the Indemnitee is or
becomes a party, a witness or otherwise is a participant in any
role) (other than a Proceeding by or in the right of the Company)
by reason of his Corporate Status, or by reason of alleged action
or inaction by him in any such capacity, the Company shall, subject
to the limitations set forth in Section 4.3 below, hold
harmless and indemnify him against any and all Expenses and
Liabilities actually and reasonably incurred by or for the
Indemnitee in connection with the Proceeding if the act(s) or
omission(s) of the Indemnitee giving rise thereto were Good Faith
Act(s) or Omission(s).
Section 4.3.
Proceedings by or in the Right of the Company . If the
Indemnitee, by reason of his Corporate Status, or by reason of
alleged action or inaction by him in such capacity, was or is a
party or is threatened to be made a party to any Proceeding
(whether the Indemnitee is or becomes a party, a witness or
otherwise is a participant in any role) by or in the right of the
Company, then the Company shall, subject to the limitations set
forth in Section 4.6 below, hold harmless and indemnify him
against any and all Expenses actually incurred by or for him in
connection with the investigation, defense, settlement or appeal of
such Proceeding if the act(s)
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or omission(s) of the Indemnitee giving rise to
the Proceeding were Good Faith Act(s) or Omission(s); except that
no indemnification under this Section 4.3 shall be made in
respect of any claim, issue or matter as to which the Indemnitee
shall have been finally adjudged to be liable to the Company,
unless a court of appropriate jurisdiction (including, but not
limited to, the court in which such Proceeding was brought) shall
determine upon application that, despite the adjudication of
liability but in view of all the circumstances of the case,
regardless of whether the Indemnitee’s act(s) or omission(s)
were found to be a Good Faith Act(s) or Omission(s), the Indemnitee
is fairly and reasonably entitled to indemnification for such
Expenses which such court shall deem proper.
Section 4.4.
Indemnification of a Party Who is Wholly or Partly
Successful . Notwithstanding any other provision of this
Agreement, to the extent that the Indemnitee is, by reason of the
Indemnitee’s Corporate Status, a party to and is successful,
on the merits or otherwise, in any Proceeding, the Indemnitee shall
be indemnified by the Company to the maximum extent consistent with
applicable law, against all Expenses and Liabilities actually
incurred by or for him in connection therewith. If the Indemnitee
is not wholly successful in 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
hold harmless and indemnify the Indemnitee to the maximum extent
consistent with applicable law, against all Expenses and
Liabilities actually and reasonably incurred by or for him in
connection with each successfully resolved claim, issue or matter
in such Proceeding. Resolution of a claim, issue or matter by
dismissal, with or without prejudice, except as provided in
Section 4.5 hereof, shall be deemed a successful result as to
such claim, issue or matter, so long as there has been no finding
(either adjudicated or pursuant to Article VI hereof) that the
act(s) or omission(s) of the Indemnitee giving rise thereto were
not a Good Faith Act(s) or Omission(s).
Section 4.5.
Indemnification for Expenses as Witness . Notwithstanding
any other provision of this Agreement, to the extent that the
Indemnitee, by reason of the Indemnitee’s Corporate Status,
has prepared to serve or has served as a witness in any Proceeding,
or has participated in d
