EXHIBIT 10.5 FORM OF
INDEMNIFICATION AGREEMENT BETWEEN THE COMPANY AND ITS
DIRECTORS.
INDEMNIFICATION AGREEMENT
AGREEMENT,
effective as of January 30, 1998 between GETTY REALTY CORP., a
Maryland corporation (the “Company”), and
______________________ (the “Director”), a director of
the Company;
WHEREAS,
in recognition of Director’s need for substantial protection
against personal liability in order to enhance Director’s
continued service to the Company in an effective manner and
Director’s reliance on the provisions of the By-Laws
requiring indemnification of the Director under certain
circumstances, and in part to provide Director with specific
contractual assurance that the protection promised by such By-Laws
will be available to Director (regardless of, among other things,
any amendment to or revocation of such By-Laws or any change in the
composition of the Company’s Board of Directors or
acquisition transaction relating to the Company), the Company
wishes to provide in this Agreement for the indemnification of and
the advancing of expenses to Director to the full extent (whether
partial or complete) permitted by law and as set forth in this
Agreement, and, to the extent insurance is maintained, for the
continued coverage of Director under the Company’s
directors’ and officers’ liability insurance
policies.
NOW,
THEREFORE, in consideration of the premises and of Director
agreeing to serve or continuing to serve the Company directly or,
at its request, with another enterprise, and intending to be
legally bound hereby, the parties hereto agree as
follows:
1.
Basic Indemnification Agreement.
(a)
In the event Director was, is or becomes a party to or witness or
other participant in, or is threatened to be made a party to or
witness or other participant in, a Claim (as hereinafter defined)
by reason of (or arising in part out of) an Indemnifiable Event (as
hereinafter defined), the Company shall indemnify Director to the
fullest extent permitted by law as soon as practicable but in any
event no later than 30 days after written demand is presented to
the Company, against any and all Expenses (as hereinafter defined),
judgment, fines, penalties and amounts paid in settlement of such
Claim. If so requested by Director, the Company shall advance
(within ten business days of such written request) any and all
Expenses to Director (an “Expense Advance”).
Notwithstanding anything in this Agreement to the contrary, and
except as provided in Section 3, prior to a Change in Control (as
hereinafter defined) Director shall not be entitled to
indemnification pursuant to this Agreement in connection with any
Claim initiated by Director against the Company or any director or
officer of the Company unless the Company has joined in or
consented to the initiation of such Claim.
(b)
Notwithstanding the foregoing, (i) the obligations of the Company
under Section 1(a) shall be subject to the condition that the
Reviewing Party (as hereinafter defined) shall not have determined
(in a written opinion, in any case in which the special independent
counsel referred to in Section 2 is involved) that Director would
not be permitted to be indemnified under applicable law, and (ii)
the obligation of the Company to make an Expense Advance pursuant
to Section 1(a) shall be subject to the condition that, if, when
and to the extent that the Reviewing Party determines that Director
would not be permitted to be so indemnified under applicable law,
the Company shall be entitled to be reimbursed by Director (who
hereby agrees to reimburse the
1
Company) for all such amounts
theretofore paid; provided, however, that if Director has commenced
legal proceedings in a court of competent jurisdiction to secure a
determination that Director should be indemnified under applicable
law, any determination made by the Reviewing Party that Director
would not be permitted to be indemnified under applicable law shall
not be binding and Director shall not be required to reimburse the
Company for any Expense Advance until a final judicial
determination that Director shall reimburse the Company for any
Expense Advance is made with respect thereto (as to which all
rights of appeal therefrom have been exhausted or lapsed). If there
has not been a Change in Control, the Reviewing Party shall be
selected by the Board of Directors, and if there has been such a
Change in Control, the Reviewing Party shall be the special
independent counsel referred to in Section 2. The Board of
Directors will appoint the Reviewing Party no later than 10 days
after receipt of a demand for indemnification (including, without
limitation, a demand for Expense Advance). The Reviewing Party
shall make his determination no later than 20 days after his
appointment. If after 30 days there has been no determination by
the Reviewing Party or if the Reviewing Party determines that
Director substantively would not be permitted to be indemnified in
whole or in part under applicable law, Director shall have the
right to commence litigation in any court in the states of New York
or Maryland having subject matter jurisdiction thereof and in which
venue is proper seeking an initial determination by the court or
challenging any such determination by the Reviewing Party of any
aspect thereof, and the Company hereby consents to service of
process and to appear in any such proceeding. Any determination by
the Reviewing Party otherwise shall be conclusive and binding on
the Company and Director.
2.
Change in Control. The Company agrees that, if there is a Change in
Control of the Company (other than a Change in Control which has
been approved by a majority of the Company’s Board of
Directors who were directors immediately prior to such Change in
Control) then with respect to all matters thereafter arising
concerning the rights of Director to indemnity payments and Expense
Advances under this Agreement or any other agreement or Company
By-Law now or hereafter in effect relating to Claims for
Indemnifiable Events, the Company shall seek legal advice only from
special independent counsel selected by Director and approved by
the Company (which approval shall not be unreasonably withheld),
and who has not otherwise performed services for the Company within
the last five years (other than in connection with such matters) or
for Director. Such counsel, among other things, shall render a
written opinion to the Company and Director as to whether and to
what extent Director would be permitted to be indemnified under
applicable law. The Company agrees to pay the reasonable
fe
