Exhibit 10.19
INDEMNIFICATION
AGREEMENT
THIS INDEMNIFICATION AGREEMENT is
made and entered into as of the
day of
,
20
(“Agreement”), by and between The Macerich Company, a
Maryland corporation (the “Company”), and
(“Indemnitee”).
WHEREAS, at the request of the
Company, Indemnitee currently serves as a [director]
[and] [officer] of the Company and may, therefore, be
subjected to claims, suits or proceedings arising as a result of
his service; and
WHEREAS, as an inducement to
Indemnitee to continue to serve as such [director] [and]
[officer] , the Company has agreed to indemnify and to advance
expenses and costs incurred by Indemnitee in connection with any
such claims, suits or proceedings, to the maximum extent permitted
by law; and
WHEREAS, the parties by this
Agreement desire to set forth their agreement regarding
indemnification and advance of expenses;
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.
Definitions
. For purposes of this
Agreement:
(a)
“Change in
Control” shall have the same meaning as the term
“Change in Control Event” under the Company’s
2003 Equity Incentive Plan, as that term may be revised from time
to time.
(b)
“Corporate
Status” means the status of a person as a present or former
director, officer, employee or agent of the Company or as a
director, trustee, officer, partner, manager, managing member,
fiduciary, employee or agent of any other foreign or domestic
corporation, partnership, limited liability company, joint venture,
trust, employee benefit plan or other enterprise that such person
is or was serving in such capacity at the request of the
Company. As a clarification and without limiting the
circumstances in which Indemnitee may be serving at the request of
the Company, service by Indemnitee shall be deemed to be at the
request of the Company if Indemnitee serves or served as a
director, trustee, officer, partner, manager, managing member,
fiduciary, employee or agent of any corporation, partnership,
limited liability company, joint venture, trust, employee benefit
plan or other enterprise of which (i) a majority of the voting
power or equity interest is owned directly or indirectly by the
Company or (ii) the management is controlled directly or
indirectly by the Company.
(c)
“Disinterested
Director” means a director of the Company who is not and was
not a party to the Proceeding in respect of which indemnification
and/or advance of Expenses is sought by Indemnitee.
(d)
“Effective
Date” means the date set forth in the first paragraph of this
Agreement.
(e)
“Expenses” shall
include any and all reasonable and out-of-pocket attorneys’
fees and costs, retainers, court costs, transcript costs, fees of
experts, witness fees, travel expenses, duplicating costs, printing
and binding costs, telephone charges, postage, delivery service
fees, federal, state, local or foreign taxes imposed on Indemnitee
as a result of the actual or deemed receipt of any payments under
this Agreement, ERISA excise taxes and penalties and other
disbursements or expenses incurred in connection with prosecuting,
defending, preparing to prosecute or defend, investigating, being
or preparing to be a witness in or otherwise participating in a
Proceeding. Expenses shall also include Expenses incurred in
connection with any appeal resulting from any Proceeding including,
without limitation, the premium, security for and other costs
relating to any cost bond supersedeas bond or other appeal bond or
its equivalent.
(f)
“Independent
Counsel” means a law firm, or a member of a law firm, that is
experienced in matters of corporation law and neither is, nor in
the past five years has been, retained to represent:
(i) the Company or Indemnitee in any matter material to either
such party (other than with respect to matters concerning
Indemnitee under this Agreement or of other indemnitees under
similar indemnification agreements), or (ii) any other party
to or participant or witness in the Proceeding giving rise to a
claim for indemnification or advance of expenses hereunder.
Notwithstanding the foregoing, the term “Independent
Counsel” shall not include any person who, under the
applicable standards of professional conduct then prevailing, would
have a conflict of interest in representing either the Company or
Indemnitee in an action to determine Indemnitee’s rights
under this Agreement.
(g)
“Proceeding”
includes any threatened, pending or completed action, suit,
arbitration, alternate dispute resolution mechanism, investigation,
inquiry, administrative hearing or any other proceeding, whether
brought by or in the right of the Company or otherwise and whether
of a civil (including intentional or unintentional tort claims),
criminal, administrative or investigative (formal or informal)
nature, including any appeal therefrom, except one pending or
completed on or before the Effective Date, unless otherwise
specifically agreed in writing by the Company and Indemnitee.
If Indemnitee reasonably believes that a given situation may lead
to or culminate in the institution of a Proceeding, such situation
shall also be considered a Proceeding.
Section 2.
Services by Indemnitee
. Indemnitee will serve as a
[director] [and] [officer] of the
Company. However, this Agreement shall not impose any
obligation on Indemnitee or the Company to continue
Indemnitee’s service to the Company beyond any period
otherwise required by law or by other agreements or commitments of
the parties, if any. This Agreement shall not be deemed an
employment contract between the Company (or any other entity) and
Indemnitee. This Agreement shall continue in force after
Indemnitee has ceased to serve as a [director] [and]
[officer] of the Company in accordance with
Section 18(a) of this Agreement.
Section 3.
General . The Company shall indemnify, and advance
Expenses to, Indemnitee (a) as provided in this Agreement and
(b) otherwise to the maximum extent permitted by Maryland law
in effect on the Effective Date and as amended from time to time;
provided, however, that no change in Maryland law shall have the
effect of reducing the benefits available to Indemnitee hereunder
based on Maryland law as in effect on the Effective Date. The
rights of
2
Indemnitee provided in this Section 3 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 (the
“MGCL”).
Section 4.
Standard for
Indemnification .
If, by reason of Indemnitee’s Corporate Status, Indemnitee
is, or is threatened to be, made a party to any Proceeding,
Indemnitee shall be indemnified against all judgments, penalties,
fines and amounts paid in settlement and all Expenses actually and
reasonably incurred by him or on his behalf in connection with any
such Proceeding unless it is established that (a) the act or
omission of Indemnitee was material to the matter giving rise to
the Proceeding and (i) was committed in bad faith or
(ii) was the result of active and deliberate dishonesty,
(b) Indemnitee actually received an improper personal benefit
in money, property or services or (c) in the case of any
criminal Proceeding, Indemnitee had reasonable cause to believe
that his conduct was unlawful.
Section 5.
Certain Limits on
Indemnification. Notwithstanding any other provision of this
Agreement (other than Section 6), Indemnitee shall not be
entitled to:
(a)
indemnification
hereunder if the Proceeding was one by or in the right of the
Company and Indemnitee is adjudged to be liable to the
Company;
(b)
indemnification
hereunder if Indemnitee is adjudged to be liable on the basis that
personal benefit was improperly received in any Proceeding charging
improper personal benefit to Indemnitee, whether or not involving
action in the Indemnitee’s Corporate Status; or
(c)
indemnification
or advancement of expenses hereunder if the Proceeding was brought
by Indemnitee unless: (i) the Proceeding was brought to
enforce indemnification under this Agreement, and then only to the
extent in accordance with and as authorized by Section 12 of
this Agreement, or (ii) the Company’s charter or Bylaws,
a resolution of the stockholders entitled to vote generally in the
election of directors or of the Board of Directors or an agreement
approved by the Board of Directors to which the Company is a party
expressly provide otherwise.
Section 6.
Court-Ordered
Indemnification .
Notwithstanding any other provision of this Agreement, a court of
appropriate jurisdiction, upon application of Indemnitee and such
notice as the court shall require, may order indemnification in the
following circumstances:
(a)
if it determines
Indemnitee is entitled to reimbursement under
Section 2-418(d)(1) of the MGCL, the court shall order
indemnification, in which case Indemnitee shall be entitled to
recover the expenses of securing such reimbursement; or
(b)
if it determines
that Indemnitee is fairly and reasonably entitled to
indemnification in view of all the relevant circumstances, whether
or not Indemnitee (i) has met the standards of conduct set
forth in Section 2-418(b) of the MGCL or (ii) has
been adjudged liable for receipt of an improper personal benefit
under Section 2-418(c) of the MGCL, the court may order
such indemnification as the court shall deem proper. However,
indemnification with respect to any Proceeding by or in the right
of the Company or in which liability shall have been
3
adjudged in the
circumstances described in Section 2-418(c) of the MGCL
shall be limited to Expenses.
Section 7.
Indemnification for Expenses of a
Party Who is Wholly or Partly Successful . Notwithstanding any other provision of
this Agreement, and without limiting any such provision, to the
extent that Indemnitee is, by reason of his Corporate Status, made
a party to (or otherwise becomes a participant in) any Proceeding
and is successful, on the merits or otherwise, in the defense of
such Proceeding, Indemnitee shall be indemnified for all Expenses
actually and reasonably incurred by him or on his behalf in
connection therewith. If 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 indemnify Indemnitee under this
Section 7 for all Expenses actually and reasonably incurred by
him or on his behalf in connection with each such claim, issue or
matter, allocated on a reasonable and proportionate basis.
For purposes of this Section 7 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 8.
Indemnification for Expenses of a
Witness .
Notwithstanding any other provision of this Agreement, to the
extent that Indemnitee is or may be, by reason of his Corporate
Status, made a witness or otherwise asked to participate in any
Proceeding, whether instituted by the Company or any other party,
and to which Indemnitee is not a party, he shall be advanced all
reasonable Expenses and indemnified against all Expenses actually
and reasonably incurred by him or on his behalf in connection
therewith.
Section 9.
Advance of Expenses
. If, by reason of
Indemnitee’s Corporate Status, Indemnitee is, or is
threatened to be, made a party to or a witness or other participant
in any Proceeding, the Company shall, without requiring a
preliminary determination of Indemnitee’s ultimate
entitlement to indemnification hereunder, advance all reasonable
Expenses incurred by or on behalf of Indemnitee in connection with
such Proceeding within ten days after the receipt by the Company of
a statement or statements requesting such advance or advances from
time to time, 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 a written affirmation by Indemnitee
of Indemnitee’s good faith belief that the standard of
conduct necessary for indemnification by the Company as authorized
by law and by this Agreement has been met and a written undertaking
by or on behalf of Indemnitee, in substantially the form attached
hereto as Exhibit A or in such form as may be required
under applicable law as in effect at the time of the execution
thereof, to reimburse the portion of any Expenses advanced to
Indemnitee relating to claims, issues or matters in the Proceeding
as to which it shall ultimately be established that the standard of
conduct has not been met and which have not been successfully
resolved as described in Section 7 of this Agreement. 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 9 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.
4
Section 10.
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.
Indemnitee may submit one or more such requests from time to time
and at such time(s) as Indemnitee deems appropriate in his
sole discretion. The officer of the Company receiving any
such request from Indemnitee shall, promptly upon receipt of such a
request for indemnification, advise the Board of Directors in
writing that Indemnitee has requested indemnification.
(b)
Upon written
request by Indemnitee for indemnification pursuant to
Section 10(a) hereof, a determination, if required by
applicable law, with respect to Indemnitee’s entitlement
thereto shall promptly be made in the specific case: (i) if a
Change in Control shall have occurred, by Independent Counsel, in a
written opinion to the Board of Directors, a copy of which shall be
delivered to Indemnitee, which Independent Counsel shall be
selected by the Indemnitee and approved by the Board of Directors
in accordance with Section 2-418(e)(2)(ii) of the MGCL,
which approval will not be unreasonably withheld; or (ii) if a
Change in Control shall not have occurred, (A) by the Board of
Directors by a majority vote of a quorum consisting of
Disinterested Directors or, if such a quorum cannot be obtained,
then by a majority vote of a duly-authorized committee of the Board
of Directors consisting solely of one or more Disinterested
Directors, or (B) by Independent Counsel, in a written opinion
to the Board of Directors, a copy of which shall be delivered to
Indemnitee, which Independent Counsel shall be selected by the
Board of Directors in accordance with
Section 2-418(e)(2)(ii) of the MGCL and approved by the
Indemnitee, which approval shall not be unreasonably withheld, or
(C) if so directed by a majority of the members of the Board
of Directors, by the stockholders of the Company. If it is so
determined that Indemnitee is entitled to indemnification, payment
to
|
