Exhibit 10(nn)
INDEMNIFICATION
AGREEMENT
THIS INDEMNIFICATION
AGREEMENT (this
“Agreement”) is entered into as of
,
2009, by and among Washington Real Estate Investment Trust, a
Maryland real estate investment trust (the “Company”),
and
(the
“Indemnitee”).
WHEREAS , the Indemnitee is an officer or a member of
the Board of Trustees of the Company and in such capacity is
performing a valuable service for the Company;
WHEREAS , Maryland law permits the Company to enter into
contracts with its officers or members of its Board of Trustees
with respect to indemnification of, and advancement of expenses to,
such persons;
WHEREAS, the Declaration of Trust of the Company (the
“Declaration of Trust”) provides that each officer and
trustee of the Company shall be indemnified by the Company to the
maximum extent permitted by Maryland law in effect from time to
time and shall be entitled to advancement of expenses consistent
with Maryland law; and
WHEREAS , to induce the Indemnitee to provide services
to the Company as an officer or a member of the Board of Trustees,
and to provide the Indemnitee with specific contractual assurance
that indemnification will be available to the Indemnitee regardless
of, among other things, any amendment to or revocation of the
Declaration of Trust or the Bylaws of the Company
(“Bylaws”), the Company desires to provide the
Indemnitee with protection against personal liability as set forth
herein.
NOW, THEREFORE
, in consideration of the premises
and the covenants contained herein, the Company and the Indemnitee
hereby agree as follows:
For purposes of this
Agreement:
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(A)
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“Change
in Control” shall mean
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i.
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the dissolution
or liquidation of the Company;
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ii.
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the merger,
consolidation, or reorganization of the Company with one or more
other entities in which the Company is not the surviving entity or
immediately following which the persons or entities who were
beneficial owners (as determined pursuant to Rule 13d-3 under the
Securities Exchange Act of 1934, as amended (the “Exchange
Act”)) of voting securities of the Company immediately prior
thereto cease to beneficially own more than fifty percent
(50%) of the voting securities of the surviving entity
immediately thereafter;
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iii.
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a sale of all
or substantially all of the assets of the Company to another person
or entity;
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iv.
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any transaction
(including without limitation a merger or reorganization in which
the Company is the surviving entity) that results in any person or
entity or “group” (within the meaning of
Section 13(d)(3) or 14(d)(2) of the Exchange Act) (other than
persons who are shareholders or affiliates immediately prior to the
transaction) owning thirty percent (30%) or more of the
combined voting power of all classes of shares of the Company;
or
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v.
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individuals who, as of the date
hereof, constitute the Board of Trustees (the “Incumbent
Board”) cease for any reason to constitute at least a
majority of the Board of Trustees; provided, however, that any
individual becoming a trustee
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subsequent to the date hereof
whose election, or nomination for election by the Company’s
shareholders, was approved by a vote of at least a majority of the
trustees then comprising the Incumbent Board (either by a specific
vote or by approval of the proxy statement of the Company in which
such person is named as a nominee for trustee, without written
objection to such nomination) shall be considered as though such
individual were a member of the Incumbent Board, but excluding, for
this purpose, any such individual whose initial assumption of
office occurs as a result of an actual or threatened election
contest with respect to the election or removal of trustees or
other actual or threatened solicitation of proxies or contests by
or on behalf of a person other than the Board of
Trustees.
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(B)
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“Corporate Status” describes the
status of a person who is or was a trustee or officer of the
Company (or of any domestic or foreign predecessor entity of the
Company in a merger, consolidation or other transaction in which
the predecessor’s interest ceased upon consummation of the
transaction) or is or was serving at the request of the Company (or
any such predecessor entity) as a director, officer, partner
(limited or general), member, manager, trustee, employee or agent
of any other foreign or domestic corporation, partnership, joint
venture, limited liability company, trust, other enterprise
(whether conducted for profit or not for profit) or employee
benefit plan. The Company (and any domestic or foreign predecessor
entity of the Company in a merger, consolidation or other
transaction in which the predecessor’s existence ceased upon
consummation of the transaction) shall be deemed to have requested
the Indemnitee to serve an employee benefit plan where the
performance of the Indemnitee’s duties to the Company (or any
such predecessor entity) also imposes or imposed duties on, or
otherwise involves or involved services by, the Indemnitee to the
plan or participants or beneficiaries of the plan.
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(C)
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“Expenses” shall include all
attorneys’ and paralegals’ fees, retainers, court
costs, transcript costs, fees of experts, 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.
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(D)
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“Proceeding” includes any action,
suit, arbitration, alternate dispute resolution mechanism,
investigation, administrative hearing, or any other proceeding,
including appeals therefrom, whether civil, criminal,
administrative, or investigative, except one initiated by the
Indemnitee pursuant to paragraph 8 of this Agreement to enforce
such Indemnitee’s rights under this Agreement.
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(E)
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“Special
Legal Counsel” means a law firm, or a member of a law firm,
that is experienced in matters of corporation law and neither
presently is, or in the past two years has been, retained to
represent (i) the Company or the Indemnitee in any matter
material to either such party, or (ii) any other party to the
Proceeding giving rise to a claim for indemnification
hereunder.
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The Company shall indemnify the
Indemnitee (A) against any and all judgments, penalties,
fines, settlements and reasonable Expenses actually incurred by or
on behalf of the Indemnitee in connection with any threatened,
pending or completed Proceeding (or any claim, issue or matter
therein) to which the Indemnitee is, or is threatened to be made, a
party by reason of the Indemnitee’s Corporate Status, subject
to the terms and conditions of this Agreement, and
(B) otherwise to the fullest extent permitted by Maryland law
in effect on the date hereof 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 date hereof). The
Indemnitee shall not be entitled to
indemnification under clause (A) of the
preceding sentence if the Proceeding was one by or in the right of
the Company and the Indemnitee shall have been adjudged to be
liable to the Company. For purposes of clause (A) of the
preceding sentence, excise taxes assessed on the Indemnitee with
respect to an employee benefit plan pursuant to applicable law
shall be deemed fines.
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3.
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EXPENSES OF
A SUCCESSFUL PARTY
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Without limiting the effect of any
other provision of this Agreement and without regard to the
provisions of paragraph 6 hereof, to the extent that the Indemnitee
is, by reason of such Indemnitee’s Corporate Status, a party
to and is successful, on the merits or otherwise, in any Proceeding
pursuant to a final non-appealable order, the Company shall
indemnify the Indemnitee against all reasonable Expenses actually
incurred by or on behalf of such Indemnitee in connection
therewith. If the Indemnitee is not wholly successful in such
Proceeding pursuant to a final non-appealable order but is
successful, on the merits or otherwise, as to one or more but less
than all claims, issues, or matters in such Proceeding pursuant to
a final non-appealable order, the Company shall indemnify the
Indemnitee against all reasonable Expenses actually incurred by or
on behalf of such Indemnitee in connection with each successfully
resolved claim, issue or matter. For purposes of this
paragraph and without limitation, the termination of any claim,
issue or matter in such Proceeding by dismissal, with or without
prejudice, shall be deemed to be a successful result as to such
claim, issue or matter.
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4.
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ADVANCEMENT
OF EXPENSES
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The Company shall advance all
reasonable Expenses incurred by or on behalf of the Indemnitee in
connection with any Proceeding within 20 days after the receipt by
the Company of a statement from the Indemnitee requesting such
advance from time to time, whether prior to or after final
disposition of such Proceeding. Such statement shall
reasonably evidence the Expenses incurred or to be incurred by the
Indemnitee and shall include or be preceded or accompanied by
(i) a written affirmation by the Indemnitee of the
Indemnitee’s good faith belief that the standard of conduct
necessary for indemnification by the Company as authorized by this
Agreement has been met and (ii) a written undertaking by or on
behalf of the Indemnitee to repay the amounts advanced if it should
ultimately be determined that the standard of conduct has not been
met. The undertaking required by clause (ii) of the
immediately preceding sentence shall be an unlimited general
obligation of the Indemnitee but need not be secured and may be
accepted without reference to financial ability to make the
repayment.
Notwithstanding any other provision
of this Agreement, to the extent that the Indemnitee is, by reason
of such Indemnitee’s Corporate Status, a witness for any
reason in any Proceeding to which such Indemnitee is not a named
defendant or respondent, such Indemnitee shall be indemnified by
the Company against all Expenses actually incurred by or on behalf
of such Indemnitee in connection therewith.
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6.
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DETERMINATION OF ENTITLEMENT TO AND
AUTHORIZATION OF INDEMNIFICATION
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(A)
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To obtain
indemnification under this Agreement, the Indemnitee shall submit
to the Company a written request, including therewith such
documentation and information reasonably necessary to determine
whether and to what extent the Indemnitee is entitled to
indemnification.
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(B)
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Indemnification under this
Agreement may not be made unless authorized for a specific
Proceeding after a determination has been made in accordance with
this Section 6(B) that indemnification of the Indemnitee is
permissible in the circumstances because the Indemnitee has met the
following standard of conduct: the Company shall indemnify the
Indemnitee in accordance with the provisions of paragraph 2 hereof,
unless it is established that: (a) the act or omission of
the Indemnitee was material to the matter giving rise to the
Proceeding and (x) was committed in bad faith or (y) was
the result of
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active and deliberate dishonesty;
(b) the Indemnitee actually received an improper personal
benefit in money, property or services; or (c) in the case of
any criminal proceeding, the Indemnitee had reasonable cause to
believe that the act or omission was unlawful. Upon receipt by
the Company of the Indemnitee’s written request for
indemnification pursuant to subparagraph 6(A), a determination as
to whether the applicable standard of conduct has been met shall be
made within the period specified in paragraph
6(E): (i) if a Change in Control shall have occurred, by
Special Legal Counsel in a written opinion to the Board of
Trustees, a copy of which shall be delivered to the Indemnitee,
with Special Legal Counsel selected by the Indemnitee (unless the
Indemnitee shall request that such determination be made by the
person or persons and in the manner provided in clause (ii) of
this paragraph 6(B), in which event the provisions of such clause
(ii) shall apply) (If the Indemnitee selects Special Legal
Counsel to make the determination under this clause (i), the
Indemnitee shall give prompt written notice to the Company advising
them of the identity of the Special Legal Counsel so selected); or
(ii) if a Change in Control shall not have occurred,
(A) by the Board of Trustees by a majority vote of a quorum
consisting of trustees not, at the time, parties to the Proceeding,
or, if such quorum cannot be obtained, then by a majority vote of a
committee of the Board of Trustees consisting solely of two or more
trustees not, at the time, parties to such Proceeding and who were
duly designated to act in the matter by a majority vote of the full
Board of Trustees in which the designated trustees who are
parti
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