Exhibit 10.1
INDEMNIFICATION
AGREEMENT
This AGREEMENT is made and entered
into as of July 30, 2009, between LTC
Properties, Inc. , a corporation organized and existing
under the laws of the State of Maryland, (the
“Corporation”), and «Indemnitee»
(“Indemnitee”).
WHEREAS, it is essential to the
Corporation to retain and attract as officers and directors of the
Corporation the most capable persons available; and
WHEREAS, the Corporation has
requested that Indemnitee become or remain an officer and/or
director of the Corporation; and
WHEREAS, both the Corporation and
Indemnitee recognize the increased risk of litigation and other
claims being asserted against officers and directors of companies
in today’s environment; and
WHEREAS, the Corporation’s
Amended and Restated Articles of Incorporation (the
“Articles”) provide that the Corporation will
indemnify its officers and directors to the fullest extent
permitted by law and will advance expenses in connection therewith,
and Indemnitee’s willingness to serve as an officer and/or
director of the Corporation is based in part on Indemnitee’s
reliance on such provisions; and
WHEREAS, in recognition of
Indemnitee’s need for substantial protection against personal
liability in order to enhance Indemnitee’s service to the
Corporation in an effective manner, and Indemnitee’s reliance
on the aforesaid provisions of the Articles, and in part to provide
Indemnitee with specific contractual assurance that the protection
promised by such provisions will be available to Indemnitee
regardless of, among other things, any amendment to or revocation
of such provisions or any change in the composition of the
Corporation’s Board of Directors or any acquisition or
business combination transaction relating to the Corporation, the
Corporation wishes to provide in this Agreement for the
indemnification and advancement of expenses to Indemnitee as set
forth in this Agreement.
NOW, THEREFORE, in consideration of
the mutual agreements herein set forth, the parties hereto hereby
agree as follows:
1 .
Indemnity
.
(a) To the fullest extent
permitted by law (and regardless of any future provision of the
Articles or any By-Law to the contrary), the Corporation shall
indemnify Indemnitee in the event Indemnitee is made, or threatened
to be made, a party or a witness, or is otherwise a participant in
or to, an action, investigation or proceeding, whether civil,
administrative or criminal (including but not limited to an action,
investigation or proceeding by or in the right of the Corporation
or by or in the right of any other corporation or business entity
of any type or kind, domestic or foreign, which any officer and/or
director of the Corporation served in any capacity at the request
of the Corporation), by reason of the fact that Indemnitee is or
was an officer and/or director of the Corporation (or served any
other corporation or business entity of any type or kind, domestic
or foreign, in any capacity at the request of the
Corporation). The foregoing indemnification shall be
from and against all judgments, fines, penalties, amounts paid in
settlement and reasonable expenses, including attorneys’
fees, actually and reasonably incurred by Indemnitee or on
Indemnitee’s behalf in connection with such action, suit,
investigation or proceeding, or any appeal therein. The
Corporation shall pay, in advance of final disposition of any such
action, suit, investigation or proceeding, expenses (including
attorneys’ fees) incurred
by Indemnitee in defending or
otherwise responding to such action or proceeding upon receipt of
(1) a written affirmation by the Indemnitee of the
Indemnitee’s good faith belief that Indemnitee has met the
standard of conduct necessary for indemnification by the
Corporation, and (2) a written undertaking by or on
behalf of Indemnitee to repay the amounts advanced if it is
determined in a final order issued by a court of competent
jurisdiction from which no appeal may be taken that the Indemnitee
did not meet the required standard of conduct. The aforesaid
written affirmation and undertaking shall be consistent with
provisions of applicable law, including but not limited to the
Maryland Code Annotated, Corporations and Associations,
Section 2-418(f) as amended. For purposes of
this Agreement, references to “serving at the request of the
Corporation” shall include any service as an officer and/or
director of the Corporation which imposes duties on, or involves
services by, such an officer and/or director with respect to an
employee benefit plan or its participants or beneficiaries,
including but not limited to service as a trustee or administrator
of any such benefit plan.
(b) Notwithstanding anything to
the contrary in Section 1(a), the Corporation shall indemnify
Indemnitee in any action, suit or proceeding initiated by
Indemnitee only if Indemnitee acted with the authorization of the
Corporation in initiating that action, suit investigation or
proceeding; provided, however, that any action or proceeding
brought under Section 9 shall not be subject to this
Section 1(b), and it is expressly agreed that the Corporation
shall bear any and all fees and expenses incurred by Indemnitee in
seeking to enforce this agreement.
(c) Indemnitee shall be
presumed to be entitled to indemnification for matters covered in
this Agreement. The burden of proof of establishing that Indemnitee
is not entitled to indemnification shall be on the
Corporation.
(d) Neither the Corporation nor
Indemnitee shall unreasonably withhold their consent to any
proposed settlement of an indemnified claim, provided, however,
that no party shall be required to admit liability in connection
with any proposed settlement and Indemnitee shall not be required
to bear any cost or expense in connection with any proposed
settlement of an indemnifiable claim.
2 . Partial Indemnity;
Successful Defense.
(a) If Indemnitee is entitled
under any provisions of this Agreement to indemnification by the
Corporation for some or a portion of the expenses, judgments,
fines, taxes, penalties and amounts paid in settlement but not for
the total amount thereof, the Corporation shall indemnify
Indemnitee for the portion thereof to which Indemnitee is
entitled.
(b) To the extent that
Indemnitee has been successful on the merits or otherwise in
defense or settlement of any action, suit, investigation or
proceeding or in defense of any issue or matter therein, including,
without limitation, dismissal without prejudice, Indemnitee shall
be indemnified against any and all expenses (including but not
limited to attorneys’ fees), judgments, fines, taxes,
penalties and amounts paid in settlement with respect to such
action, suit or proceeding. Moreover, to the extent that Indemnitee
has been successful on the merits or otherwise in defense of any or
all claims relating in whole or in part to an indemnifiable event
or in defense of any issue or matter therein, including, without
limitation, dismissal without prejudice, Indemnitee shall be
indemnified against all costs, charges and expenses, including,
without limitation, attorneys’ fees and other fees and
expenses, incurred in connection therewith without further action
or determination.
2
(c) For purposes of this
Agreement, the termination of any action, suit, investigation or
proceeding, by judgment, order, settlement (whether with or without
court approval), shall not create a presumption that Indemnitee did
not meet any particular standard of conduct or have any particular
belief or that a court has determined that indemnification is not
permitted by applicable law or this Agreement.
3 .
Notice by Indemnitee
.
Indemnitee shall notify the
Corporation in writing of any matter with respect to which
Indemnitee intends to seek indemnification hereunder as soon as
reasonably practicable following the receipt by Indemnitee of
written threat thereof; provided, however, that failure to
so notify the Corporation shall not constitute a waiver by
Indemnitee of his rights hereunder.
4 .
Advancement of
Expenses.
In the event of any action, suit,
investigation or proceeding against Indemnitee which may give rise
to a right of indemnification from the Corporation pursuant to this
Agreement, following written request to the Corporation by
Indemnitee, the Corporation shall advance to Indemnitee (or, at the
request of the Indemnitee, to such parties as are conducting the
defense of any indemnified claim) amounts to cover expenses
incurred by Indemnitee in defending or otherwise responding to or
participating in any such action, suit, investigation or proceeding
in advance of the final disposition thereof upon receipt of
(a) an Undertaking by or on behalf of Indemnitee substantially
in the form annexed hereto as Exhibit A to repay the amount
advanced in the event it shall ultimately be determined by a court
of competent jurisdiction from which no appeal can be taken that
Indem
