MAGUIRE PROPERTIES,
INC.
INDEMNIFICATION
AGREEMENT
This INDEMNIFICATION AGREEMENT (the
“Agreement”) is made and entered into as of [EXECUTION
DATE], by and between Maguire Properties, Inc., a Maryland
corporation (the “Company”), and [NAME OF INDEMNITEE]
(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.
(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/her] Corporate Status, [he/she] 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/her] or on [his/her]
behalf in connection with a Proceeding by reason of [his/her]
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/her] 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/her] Corporate Status, [he/she] 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/her] or on [his/her] 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
6. indemnification against such Indemnifiable Expenses
shall be made in respect of any Proceeding in which Indemnitee
shall have been adjudged to be liable to the
Company.
7. 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.
8. 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.
9. 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
Indemn
