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Exhibit
10.9
MAGUIRE PROPERTIES,
INC.
INDEMNIFICATION
AGREEMENT
This INDEMNIFICATION
AGREEMENT (the “Agreement”) made and entered into this
8 th
day of February 2006, by and
between Maguire Properties, Inc., a Maryland corporation (the
“Company”), and Peter K. Johnston (the
“Indemnitee”).
WHEREAS, it is essential that
the Company be able to retain and attract as directors and officers
the most capable persons available;
WHEREAS, the Company’s
Bylaws permit it to enter into indemnification arrangements and
agreements;
WHEREAS, the Company desires
to provide the Indemnitee with specific contractual assurances of
the Indemnitee’s rights to full indemnification against
litigation risks and expenses (regardless, among other things, of
any amendment to or revocation of the Company’s Bylaws or any
change in the ownership of the Company or the composition of its
Board of Directors) and, to the extent insurance is available, the
coverage of the Indemnitee under the Company’s directors and
officers liability insurance policies; and
WHEREAS, the Indemnitee is
relying upon the rights afforded under this Agreement in accepting
Indemnitee’s position as a director or officer of the
Company,
NOW, THEREFORE, in
consideration of the mutual promises and covenants contained
herein, the Company and Indemnitee do hereby covenant and agree as
follows:
1. Definitions
.
(a) “Corporate
Status” describes the status of a person who is serving or
has served (i) as a director, officer or employee of the
Company, (ii) in any capacity with respect to any employee
benefit plan of the Company, or (iii) as a director, partner,
member, trustee, officer, employee, or agent of any other Entity at
the request of the Company.
(b) “Entity”
shall mean any corporation, partnership, limited liability company,
joint venture, trust, foundation, association, organization or
other legal entity and any group or division of the Company or any
of its subsidiaries.
(c) “Expenses”
shall mean all reasonable fees, costs and expenses actually and
reasonably incurred by the Indemnitee in connection with any
Proceeding (as defined below), including, without limitation,
attorneys’ fees, disbursements and retainers (including,
without limitation, any such fees, disbursements and retainers
incurred by Indemnitee pursuant to Section 12 of this
Agreement), fees and disbursements of expert witnesses, private
investigators and professional advisors (including, without
limitation, accountants), court costs, transcript costs, fees of
experts, travel expenses, duplicating, printing and binding costs,
telephone and fax transmission charges, postage, delivery services,
secretarial services, and other disbursements and
expenses.
(d) “Indemnifiable
Expenses,” “Indemnifiable Liabilities” and
“Indemnifiable Amounts” shall have the meanings
ascribed to those terms in Section 4 below.
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(e) “Liabilities”
shall mean judgments, damages, liabilities, losses, penalties,
excise taxes, fines and amounts paid in settlement.
(f) “Proceeding”
shall mean any threatened, pending or completed claim, action,
suit, arbitration, alternate dispute resolution process,
investigation, administrative hearing, appeal, or any other
proceeding, whether civil, criminal, administrative or
investigative, whether formal or informal, including a proceeding
initiated by Indemnitee pursuant to Section 12 of this
Agreement to enforce Indemnitee’s rights
hereunder.
2. Services of
Indemnitee . In consideration of the Company’s covenants
and commitments hereunder, Indemnitee agrees to serve as a director
or 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.
3. Agreement to
Indemnify . The Company shall indemnify Indemnitee, and advance
Indemnifiable Expenses to, Indemnitee (a) as specifically
provided in 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 rights of Indemnitee provided in
this Section shall include, but shall not be limited to, 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”).
4. Proceedings Other Than
Proceedings by or in the Right of the Company . Indemnitee
shall be entitled to the rights of indemnification provided in this
Section 4 if, by reason of his Corporate Status, he is, or is
threatened to be, made a party to any threatened, pending, or
completed Proceeding, other than a Proceeding by or in the right of
the Company. Pursuant to this Section 4, Indemnitee shall be
indemnified by the Company against all Expenses and Liabilities
actually and reasonably incurred by him or on his behalf in
connection with a Proceeding by reason of his Corporate Status
(referred to herein as “Indemnifiable Expenses” and
“Indemnifiable Liabilities,” respectively, and
collectively as “Indemnifiable Amounts”) unless it is
established that (i) the act or omission of the Indemnitee was
material to the matter giving rise to the Proceeding and
(a) was committed in bad faith or (b) was the result of
active and deliberate dishonesty, (ii) the Indemnitee actually
received an improper personal benefit in money, property or
services, or (iii) in the case of any criminal Proceeding, the
Indemnitee had reasonable cause to believe that his conduct was
unlawful.
5. Proceedings by or in
the Right of the Company . Indemnitee shall be entitled to the
rights of indemnification provided in this Section 5 if, by
reason of his Corporate Status, he is made a party to any
threatened, pending or completed Proceeding brought by or in the
right of the Company to procure a judgment in its favor. Pursuant
to this Section 5, Indemnitee shall be indemnified against all
amounts paid in settlement and all Indemnifiable Expenses actually
and reasonably incurred by him or on his behalf in connection with
such Proceeding unless it is established that (i) the act or
omission of the Indemnitee was material to the matter giving rise
to such a Proceeding and (a) was committed in bad faith or
(b) was the result of active and deliberate dishonesty or
(ii) the Indemnitee actually received an improper personal
benefit in money, property or services; provided, however, that no
indemnification against such
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Indemnifiable Expenses shall be made in
respect of any Proceeding in which Indemnitee shall have been
adjudged to be liable to the Company.
6. Court-Ordered
Indemnification . A court of appropriate jurisdiction, upon
application of a director or officer and such notice as the court
shall require, may order indemnification in the following
circumstances:
(a) if it determines a
director or officer is entitled to Indemnifiable Amounts under
Section 2-418(d)(1) of the MGCL, the court shall order
indemnification, in which case the director or officer shall be
entitled to recover the expenses of securing such Indemnifiable
Amounts; or
(b) if it determines that the
director or officer is fairly and reasonably entitled to
indemnification in view of all the relevant circumstances, whether
or not the director or officer (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 2-148(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
adjudged in the circumstances described in Section 2-418(c) of
the MGCL shall be limited to Indemnifiable Expenses.
7. Procedure for Payment
of Indemnifiable Amounts . Indemnitee shall submit to the
Company a written request specifying the applicable Indemnifiable
Amounts for which Indemnitee seeks payment under this Agreement and
the basis for the claim. Subject to the exceptions set forth in
Sections 4 and 5, the Company shall pay such applicable
Indemnifiable Amounts to Indemnitee within twenty
(20) calendar days of receipt of the request. At the request
of the Company, Indemnitee shall furnish such documentation and
information as are reasonably available to Indemnitee and necessary
to establish that Indemnitee is entitled to indemnification
hereunder.
8. 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 Indemnitee’s Corporate Status, a party to and is
successful, on the merits or otherwise, in any Proceeding,
Indemnitee shall be indemnified for all Indemnifiable Expenses
reasonably incurred by Indemnitee or on Indemnitee’s behalf
in connection therewith. Without limiting any other rights of
Indemnitee in this Agreement, 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 Comp
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