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EXHIBIT 10.6
INDEMNIFICATION AGREEMENT
THIS INDEMNIFICATION AGREEMENT (the "Agreement")
is made and entered into as of the 19th day of December, 2008, by
and among CNL Macquarie Global Growth Trust, Inc., a Maryland
corporation (the "Company") and James M. Seneff, Jr. , a
director and/or officer of the Company (the "Indemnitee").
WITNESSETH:
WHEREAS, damages sought against directors and
officers in shareholder or similar litigation by class action
plaintiffs 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 to the detriment of the
corporation; and
WHEREAS, the issues in controversy in such
litigation usually relate to the knowledge, motives and intent of
the director or officer, who may be the only person with firsthand
knowledge of essential facts or exculpating circumstances who is
qualified to testify in his defense regarding matters of such a
subjective nature, and 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
launching and 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 Articles of Incorporation of the
Company, as they may be amended or amended and restated from time
to time (the "Articles of Incorporation"), provide that the Company
may indemnify and hold harmless directors, advisors, or affiliates,
as such terms are defined in the Articles of Incorporation; 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 liability for expenses and damages in connection with claims
lodged against the Indemnitee for the Indemnitee’s decisions
and actions as a director and/or officer of the Company or any of
its Subsidiaries, or as an officer of CNL Macquarie Global Growth
Advisors, LLC, a Delaware limited liability
company and advisor to the Company (the
"Advisor", and collectively with such Subsidiaries, the
"Affiliates").
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:
I. DEFINITIONS
For purposes of this Agreement, the following
terms shall have the meanings set forth below:
A. "
Board " shall mean the Board of Directors of the
Company.
B. " Change
in Control " shall mean a change in the possession, directly or
indirectly, of the power to direct or cause the direction of the
management and policies of the Company, or any successor in
interest thereto, whether through the ownership of Voting
Securities, by contract or otherwise, including but not limited to
a change which would be required to be reported under
Item 6(e) of Schedule 14A of Regulation 14A
promulgated under the Securities Exchange Act of 1934 as in effect
on the date hereof (the "Exchange Act") or as may otherwise be
determined pursuant to a resolution of the Board.
C. "
Corporate Status " shall mean: (i) the status of a
person who is or was a director or officer of the Company or any of
the Affiliates, or a member of any committee of the Board; and
(ii) 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.
D. "
Disinterested Director " shall mean a director of the
Company who neither is nor was a party to the Proceeding with
respect to which indemnification is being sought by the
Indemnitee.
E. "
Expenses " shall mean expenses of Proceedings including,
without limitation, 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, being or preparing to
be a witness in or investigating a Proceeding.
F. " 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 or the Affiliates and
not: (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 or 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
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criminal Proceeding, one as to which the
Indemnitee had cause to believe his or her conduct was
unlawful.
G. "
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
(including all interest, assessments and other charges paid or
payable in connection with or with respect to 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.
H. "
MGCL " shall mean the Maryland General Corporation Law.
I. "
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.
J. "
Trust " shall have the meaning ascribed to it in Article IX
herein.
K. "
Trustee " shall have the meaning ascribed to it in Article
IX herein.
L. "
Subsidiary " shall mean any corporation, limited liability
company, partnership, business trust or other entity of which the
Company, directly or indirectly, owns or controls at least fifty
percent (50%) of the voting securities or economic
interests.
M. "
Undertakings " shall have the meaning ascribed to it in
Article V herein.
N. " Voting
Securities " shall mean any securities of the Company that are
entitled to vote generally in the election of directors.
II. TERMINATION OF AGREEMENT
This Agreement shall continue until, and
terminate upon the later to occur of: (i) the seventh
anniversary of the Indemnitee ceasing to be a director and/or
officer of the Company; or (ii) the final termination of all
Proceedings (including possible Proceedings) with respect to 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.
III. SERVICE BY INDEMNITEE, NOTICE OF
PROCEEDINGS, DEFENSE OF CLAIMS
A.
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. However, the Indemnitee’s failure to so notify the
Company shall not relieve the Company from any liability it may
have
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to the Indemnitee under this Agreement, except
to the extent that the Indemnitee’s failure to so notify the
Company materially prejudices the Company with respect to said
Proceeding or matter.
B.
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 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, such
counsel shall not in fact have assumed such defense or such counsel
shall not be acting, in connection therewith, with reasonable
diligence. In each such case the fees and expenses of the
Indemnitee’s counsel shall be advanced by the Company in
accordance with this Agreement.
C.
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, which consent shall not be unreasonably withheld
or delayed. 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.
IV. INDEMNIFICATION
A.
In
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 or her in connection
with any Proceeding (whether the Indemnitee is or becomes a party,
a witness or is otherwise a participant in any role) to the fullest
extent required or permitted by the Articles of Incorporation. 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.
B.
Proceeding Other Than a Proceeding by or in the Right of the
Company . If the Indemnitee, by reason
of his or her Corporate Status or alleged action or inaction in
such
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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 is otherwise a participant in any
role) (other than a Proceeding by or in the right of the Company or
any Affiliate), the Company shall, subject to the limitations set
forth in Section IV.F below, hold harmless and indemnify the
Indemnitee 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).
C.
Proceedings
by or in the Right of the Company . If
the Indemnitee, by reason of his or her Corporate Status or alleged
action or inaction 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 or any
Affiliate to procure a judgment in its favor, the Company shall,
subject to the limitations set forth in Section IV.F below, hold
harmless and indemnify the Indemnitee against any and all Expenses
actually incurred by or for the Indemnitee in connection with the
investigation, defense, settlement or appeal of such Proceeding, if
the act(s) or omission(s) of the Indemnitee giving rise to the
Proceeding were Good Faith Act(s) or Omission(s). However, no
indemnification under this Section IV.C shall be made with respect
to any claim, issue or matter as to which the Indemnitee shall have
been finally adjudged to be liable to the Company or any Affiliate,
unless a court of appropriate jurisdiction (including, but not
limited to, the court in which such Proceeding was brought)
determines 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.
D.
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 in, on the merits or otherwise, any Proceeding, the
Indemnitee shall be indemnified by the Company to the maximum
extent consistent with the Articles of Incorporation against all
Expenses and Liabilities actually incurred by or for him or her 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 the Articles of
Incorporation against all Expenses and Liabilities actually and
reasonably incurred by or for the Indemnitee 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, but except as provided in Section IV.F
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).
E.
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
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