Exhibit 10.1
Execution Version
DIRECTORS AND OFFICERS
INDEMNIFICATION AGREEMENT
This INDEMNIFICATION AGREEMENT, (this “Agreement”), is made and entered into by and between Omega Healthcare Investors, Inc., a Maryland corporation (the “Company”) and __________________ (“Indemnitee”) as of , 20___ (the “Effective Date”).
RECITALS
A. It is essential to the Company to retain and attract as directors and officers the most capable persons available;
B. Indemnitee is a director and/or officer of the Company;
C. Both the Company and Indemnitee recognize the increased risk of litigation and other claims being asserted against directors and officers of companies in today’s environment;
D. The Company’s Articles of Restatement, as amended, (the “Articles”) and Amended and Restated Bylaws (the “Bylaws”) provide that the Company may indemnify its directors and officers and may advance expenses in connection therewith, and Indemnitee’s willingness to serve as a director and/or officer of the Company is based in part on Indemnitee’s reliance on such provisions; and
E. In recognition of Indemnitee’s need for substantial protection against personal liability in order to enhance Indemnitee’s continued service to the Company in an effective manner, and Indemnitee’s reliance on the aforesaid provisions of the Articles and Bylaws, 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 Company’s Board of Directors or any acquisition or business combination transaction relating to the Company), the Company wishes to provide in this Agreement for the indemnification of and the advancement of expenses to Indemnitee as set forth in this Agreement, and for the coverage of Indemnitee under directors’ and officers’ liability insurance policies.
NOW, THEREFORE, in consideration of the mutual agreements herein set forth, the parties hereto hereby agree as follows:
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1. Definitions.
1.1 “Change in Control” means a change in control of theCompanyoccurring after theEffective Dateof a nature that would be required to be reported in response to Item 6(e) of Schedule 14A of Regulation 14A (or in response to any similar item on any similar schedule or form) promulgated under theSecurities Exchange Act of 1934, as amended (the “Exchange Act”), whether or not theCompanyis then subject to such reporting requirement; provided, however, that, without limitation, such aChange in Controlshall be deemed to have occurred if, after theEffective Date(i) any “person” (as such term is used in Sections 13(d) and 14(d) of theExchange Act) is or becomes the “beneficial owner” (as defined in Rule 13d-3 under theExchange Act), directly or indirectly, of securities of theCompanyrepresenting 15% or more of the combined voting power of all of theCompany’s then-outstanding securities entitled to vote generally in the election of directors without the prior approval ofat least two-thirds of the members of the Board of Directorsin office immediately prior to such person’s attaining such percentage interest; (ii) theCompanyis a party to a merger, consolidation, sale of assets, plan of liquidation or other reorganization not approved byat least two-thirds of the members of the Board of Directorsthen in office, as a consequenceof which members of the Board of Directorsin office immediately prior to such transaction or event constitute less than a majority of theBoard of Directorsthereafter; or (iii) at any time, a majorityof the members of the Board of Directorsare not individuals (A) who were directors as of theEffective Dateor (B) whose election by theBoard of Directorsor nomination for election by theCompany’s stockholders was approved by the affirmative vote ofat least two-thirdsof the directors then in office who were directors as of theEffective Dateor whose election for nomination for election was previously so approved.
1.2 “Claim” means(i)any threatened, pending, or completed action, suit, arbitration, mediation hearing or proceeding (including any appeal therefrom), whether civil, criminal or administrative, or any inquiry or investigation, whether formal or informal, and in each case, whether instituted, made, or conducted by or on behalf of theCompanyor any other party, or (ii) any other circumstances thatIndemniteein good faith believes might lead to or culminate in any of the above described in subsection(i).
1.3 “Expenses” means any and all costs and expensesactually and reasonably incurred by Indemniteein connection with aClaimbased upon or arising out of any IndemnifiableEvent. As used hereunder,Expensesincludes reasonable attorneys’ fees and costs, retainers, court costs, transcript costs, expert fees, witness fees, necessary and reasonable travel expenses, and all other reasonable costs, expenses, and obligations paid or incurred in connection with investigating, defending, being a witness in, or participating in (including on appeal), or preparing to defend, be a witness in, or participate in, anyClaimarising from or relating to anyIndemnifiable Event.
1.4 “Indemnifiable Event” means any actual, alleged, asserted or suspectedact or failure to actbyIndemniteein his or her capacity as adirector, officer, employee, member, manager, fiduciary, trustee or agent of theCompanyor as adirector, officer, employee, member, manager, fiduciary, trustee or agent of any other corporation, limited liabilitycompany, partnership,joint venture, trust, plan or other entity or enterprise, whether or not for profit, as to whichIndemniteeis or was serving at the request of theCompany(such capacity, his or her “Corporate Status”), any actual, alleged, asserted or suspectedact or failure to actbyIndemniteein respect of any business, transaction, communication, filing, disclosure or other activity of theCompanyor any other corporation, limited liabilitycompany, partnership,joint venture, trust, plan or other entity or enterprise, whether or not for profit, as to whichIndemniteeis or was serving at the request of theCompany, or any event or occurrence related to the fact ofIndemnitee’sCorporate Status. “Indemnifiable Event” will not include any event or occurrence to the extent that indemnificationis not permitted under applicable law.
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1.5 “Independent Counsel” means a law firm, or a member of a law firm, that is experienced in matters of corporation law and neither is, nor in the past five years has been, retained to represent: (i) theCompanyorIndemniteein any matter material to either such party, or (ii) any other party to or participant or witness in theClaimgiving rise to aclaimfor indemnification or advance ofExpenseshereunder. Notwithstanding the foregoing, the term “Independent Counsel” shall not include any person who, under the applicable standards of professional conduct then prevailing, would have a conflict of interest in representing either theCompanyorIndemniteein an action to determineIndemnitee’s rights under thisAgreement.
2. Standards and Procedures for Indemnification.
2.1 TheCompanyshall indemnifyIndemniteeagainst allExpenses actually and reasonably incurred by Indemniteein connection with anyClaimbased upon or arising out of anIndemnifiable Eventto whichIndemniteewas, is or becomes a party to the extent thatIndemniteehas been successful, on the merits or otherwise, in the defense of suchClaim.
2.2 TheCompanyshall indemnify and hold harmlessIndemniteefrom anyExpenses, judgments, fines, penalties, andamounts paid in settlement(including all interest, assessments, and other charges paid or payable in connection with or in respect of suchExpenses, judgments, fines, penalties, oramounts paid in settlement) in the eventIndemniteewas, is, or becomes a party to or other participant in, or is threatened to be made a party to or other participant in, aClaimby reason of (or arising in whole or in part out of) anIndemnifiable Eventunless (but only to the extent that)(a)theClaimis one by or in the right of theCompanyandIndemniteehas been adjudged in suchClaimby a final adjudication not subject to further appeal to be liable to theCompany,(b)theClaimis one charging improper personal benefit to theIndemnitee, whether or not involving action in theIndemnitee’s official capacity, in which theIndemniteehas been adjudged in suchClaimby a final adjudication not subject to further appeal to be liable on the basis that personal benefit was improperly received, or(c)it is establishedby clear and convincing evidencethat (i) an act or omission ofIndemniteewas material to the matter giving rise to theClaimand (1) was committed in bad faith or (2) was the result active and deliberate dishonesty, (ii)Indemniteeactually received an improper personal benefit in money, property or services, or (iii) in the case of any criminalClaim,Indemniteehadreasonable cause to believe thathis or her conduct was unlawful.
2.3 To obtain indemnification under thisAgreement,Indemniteeshall submit to theCompanya written request, including therein or therewith such documentation and information as is reasonably available toIndemniteeand is reasonably necessary to determine whether and to what extentIndemniteeis entitled to indemnification.Indemniteemay submit one or more such requests from time to time and at such time(s) asIndemniteedeems appropriate inIndemnitee’s sole discretion. The officer of theCompanyreceiving any such request fromIndemniteeshall, promptly upon receipt of such a request for indemnification, advise theBoard of Directorsin writing thatIndemniteehas requested indemnification. TheCompanyshall indemnifyIndemnitee for all amounts indemnifiable hereunder as soon as practicable but in any event no later than 60calendar days aftersuch written request is presented to theCompanyin accordance with the terms of thisAgreement.
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2.4 Upon written request byIndemniteefor indemnification pursuant to Sections2.2and 2.3 above, a determination with respect toIndemnitee’s entitlement thereto shall promptly be made in the specific case:(i)if aChange in Controlshall have occurred, by IndependentCounsel, in a written opinion to theBoard of Directors, a copy of which shall be delivered toIndemnitee, which Independent Counsel shall be selected byIndemniteeand approved in writing by theBoard of Directors in accordance with Section 2-418(e)(2)(ii) of the MGCL, which approval shall not be unreasonably conditioned, delayed or withheld; or(ii)if aChange in Controlshall not have occurred (A) by theBoard of Directorsby a majority vote of a quorum consisting of Disinterested Directors or, if such a quorum cannot be obtained, then by a majority vote of a duly authorized committee of theBoard of Directorsconsisting solely of one or more Disinterested Directors, or, if no committee meeting the requirements of (A) can be convened, either (B) byIndependent Counselselected by theBoard of Directors in accordance with Section 2-418(e)(2)(ii) of the MGCL and approved in writing byIndemnitee, which approval shall not be unreasonably conditioned, delayed or withheld, in a written opinion to theBoard of Directors, a copy of which shall be delivered toIndemnitee, or (C) if so directed by a majorityof the members of the Board of Directors, by the stockholders of theCompany, at the discretion of theBoard of Directors. If it is so determined thatIndemniteeis entitled to indemnification, payment toIndemniteeshall be made within ten (10) days after such determination.Indemniteeshall cooperate with the person, persons or entity making such determination with respect toIndemnitee’s entitlement to indemnification, including providing to such person, persons or entity upon reasonable advance request any documentation or information which is not privileged or otherwise protected from disclosure and which is reasonably available toIndemniteeand reasonably necessary to such determination in the discretion of theBoard of Directorsor Independent Counsel if retained pursuant to clause (ii)(B) of this Section 2.4. AnyExpensesincurred byIndemniteein so cooperating with the person, persons or entity making such determination shall be borne by theCompany(irrespective of the determination as toIndemnitee’s entitlement to indemnification) and theCompanyshall indemnify and holdIndemniteeharmless therefrom.
3. Advance ofExpensesfor anIndemnitee. TheCompanyshall advance toIndemniteeamounts to reimburseIndemniteeforExpensesactually and reasonably incurred in connection with aClaimbased upon or arising out of anIndemnifiable Eventwithin ten (10) days after the receipt by theCompanyof a statement or statements requesting such advance or advances from time to time, whether prior to or after final disposition of suchClaim.Such statement or statements shall reasonably evidence theExpensesincurred byIndemniteeand shall include or be preceded or accompanied by(i)a written affirmation byIndemniteeofIndemnitee’s good faith belief that the standard of conduct necessary for indemnification by theCompanyas authorized by law and by thisAgreementhas been met and(ii)a written undertaking by or on behalf ofIndemnitee, in substantially the form attached hereto as Exhibit A or in such form as may be required under applicable law as in effect at the time of the execution thereof, to reimburse the portion of anyExpensesadvanced toIndemnitee, relating to claims, issues or matters in theClaimas to which it shall ultimately be established,by clear and convincing evidence, that the standard of conduct has not been met byIndemniteeor as to which indemnificationis not permitted under applicable law. The undertaking required by this Section3shall be an unlimited general obligation by or on behalf ofIndemniteeand shall be accepted without reference toIndemnitee’s financial ability to repay such advancedExpensesand without any requirement to post security therefor.
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4. Indemnification for Additional Expenses.
4.1 To the extent thatIndemniteeis or may be, by reason ofIndemnitee’sCorporate Status, made a witness, served with a subpoena for production of documents, or otherwise asked to participate in anyClaim, whether instituted by theCompanyor any other party, and to whichIndemniteeis not a party,Indemniteeshall be advanced all reasonableExpensesand indemnified against allExpenses actually and reasonably incurred by Indemniteeor onIndemnitee’s behalf in connection therewith within ten (10) days after the receipt by theCompanyof a statement or statements requesting any such advance or indemnification from time to time, whether prior to or after final disposition of suchClaim. Such statement or statements shall reasonably evidence theExpensesincurred byIndemnitee.
4.2 TheCompanywill indemnifyIndemniteeagainst, and, if requested byIndemnitee, will (within ten (10) business days of such request) advance toIndemnitee, any and all reasonable attorneys’ fees and other costs,expenses, and obligations paid or incurred byIndemniteein connection with anyclaim, action, suit, or proceeding asserted or brought byIndemniteefor(i)indemnification or advance payment ofExpensesby theCompanyunder thisAgreementor any otheragreementor under any provision of theArticlesorBylawsnow or hereafter in effect relating toClaimsforIndemnifiableEvents and/or(ii)recovery under anydirectors’ and officers’ liability insurancepolicies maintained by theCompany, regardless of whetherIndemniteeultimately is determined to be entitled to such indemnification, advance Expense payment, or insurance recovery, as the case may be.
4.3 Notwithstanding anything in thisAgreementto the contrary,Indemniteewill not be entitled to indemnification pursuant to thisAgreementin connection with anyClaiminitiated byIndemniteeagainst theCompany(other than aClaimdescribed in Section4.2hereof) or any director or officer of theCompanyunless theCompanyhas joined in or consented in writing to the initiation of suchClaim.
5. Partial Indemnity. IfIndemniteeis entitled under any provision of thisAgreementto indemnification by theCompanyfor some or a portion of theExpenses, judgments, fines, penalties, andamounts paid in settlementof aClaimbut not, however, for all of the total amount thereof, theCompanyshall indemnifyIndemniteefor the portion thereof to whichIndemniteeis entitled.
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6. Presumptions.
6.1 In making any determination with respect to entitlement to indemnification hereunder, the person or persons or entity making such determination shall presume thatIndemniteeis entitled to indemnification under thisAgreementifIndemniteehas submitted a request for indemnificationin accordance with Section 2of thisAgreement, and theCompanyshall have the burden of overcoming that presumptionby clear and convincing evidencein connection with the making of any determination contrary to that presumption.
6.2 For purposes of thisAgreement, the termination of anyclaim, action, suit, or proceeding, by judgment, order, settlement (whether with or without court approval), or conviction, or upon a plea ofnolo contendere or its equivalent, will not in and of itself create a presumption thatIndemniteedid not meet any particular standard of conduct or have any particular belief or that a court has determined that indemnificationis not permitted by applicable law.
6.3 The knowledge and/or actions, or failure to act, of any otherdirector, officer, employeeor agent of theCompanyor any other director, trustee, officer, partner, manager, managing member, fiduciary, employee or agent of any other foreign or domestic corporation, partnership, limited liabilitycompany,joint venture, trust, employee benefit plan or other enterprise shall not be imputed toIndemniteefor purposes of determining any other right to indemnification under thisAgreement.
7. Non-Exclusivity. The rights ofIndemniteehereunder will be in addition to any other rightsIndemniteemay have under theArticles, theBylaws, orthe Maryland General Corporation Lawor otherwise;provided,however, that to the extent thatIndemniteeotherwise would have any greater right to indemnification under any provision of theArticlesorBylawsas in effect on the date hereof,Indemniteewill be deemed to have such greater right hereunder; and,provided further, that to the extent that any change is made tothe Maryland General Corporation Law(whether by legislative action or judicial decision), theArticles, and/or theBylawswhich permits any greater right to indemnification than that provided under thisAgreementas of the date hereof,Indemniteewill be deemed to have such greater right hereunder. TheCompanywill not adopt any amendment to theArticlesor theBylawsthe effect of which would be to deny, diminish, or encumberIndemnitee’s right to indemnification under theArticles, theBylaws,the Maryland General Corporation Law, or otherwise as applied to anyact or failure to actoccurring in whole or in part prior to the date upon which the amendment was approved by theCompany’sBoard of Directorsand/or its stockholders, as the case may be.
8. Liability Insurance and Funding. TheCompanywill maintain an insurance policy or policies providingdirectors’ and officers’ liability insuranceto the extent, in the judgment of theBoard of Directors, such insurance is available on reasonable terms and at reasonable premiums andIndemniteewill be covered by such policy or policies, in accordance with its or their terms, to the maximum extent of the coverage available for anyCompanydirector or officer. If, at the time theCompanyreceives notice from any source of aClaim to which Indemniteeis a party or a participant (as a witness or otherwise), theCompanyhas director and officer liability insurance in effect, theCompanyshall give prompt notice of suchClaimto the insurers in accordance with the procedures set forth in the respective policies. Copies of all correspondence between theCompanyand thecompanyor companies providing or administering such insurance that are reasonably related to the coverage available toIndemniteethereunder (whether for aClaim to which Indemniteeis party or otherwise) shall be promptly delivered toIndemniteeby theCompanyupon written request ofIndemnitee. TheCompanymay, but will not be required to, create a trust fund, grant a security interest or use other means (including without limitation a letter of credit) to ensure the payment of such amounts as may be necessary to satisfy its obligations to indemnify and advanceexpensespursuant to thisAgreement.
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9. Subrogation. In the event of payment under thisAgreement, theCompanywill be subrogated to the extent of such payment to all of the related rights of recovery ofIndemniteeagainst other persons or entities. TheIndemniteewill execute all papers reasonably required and will do everything that may be reasonably necessary to secure such rights and enable theCompanyeffectively to bring suit to enforce such rights (all ofIndemnitee’s reasonable costs andexpensesin connection therewith, including attorneys’ fees and disbursements, to be reimbursed by or, at the option ofIndemnitee, advanced by theCompany).
10. No Duplication of Payments. TheCompanywill not be liable under thisAgreementto make any payment in connection with anyclaimmade againstIndemniteeto the extentIndemniteehas otherwise actually received payment (under any insurance policy, theArticles, or theBylawsor otherwise) of the amounts otherwise indemnifiable hereunder.
11. Defense ofClaim.
11.1 Indemniteeshall notify theCompanypromptly in writing upon being served with any summons, citation, subpoena, complaint, indictment, request or other document relating to anyClaimwhich may result in the right to indemnification or the advance ofExpenseshereunder and shall include with such notice a description of the nature of theClaimand a summary of the facts underlying theClaim. The failure to give any such notice shall not disqualifyIndemniteefrom the right, or otherwise affect in any manner any right ofIndemnitee, to indemnification or the advance ofExpensesunder thisAgreementunless theCompany’s ability to defend in suchClaimor to obtain proceeds under any insurance policy is materially and adversely prejudiced thereby, and then only to the extent theCompanyis thereby actually so prejudiced.
11.2 Subject to the provisions of the last sentence of this Section 11.2 and of Section 11.3 below, the Company shall have the right to defend Indemnitee in any Claim which may give rise to indemnification hereunder; provided, however, that the Company shall notify Indemnitee of any such decision to defend within fifteen (15) calendar days following receipt of notice of any such Claim under Section 11.1 above. The Company shall not, without the prior written consent of Indemnitee, consent to the entry of any judgment against Indemnitee or enter into any settlement or compromise which (i) includes an admission of fault of Indemnitee, (ii) does not include, as an unconditional term thereof, the full release of Indemnitee from all liability in respect of such Claim, which release shall be in form and substance reasonably satisfactory to Indemnitee, or (iii) would impose any Expense, judgment, fine, penalty or limitation on Indemnitee.
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11.3 Notwithstanding the provisions of Section 11.2 above, if in a Claim to which Indemnitee is a party by reason of Indemnitee’s Corporate Status, (i) Indemnitee reasonably concludes, based upon an opinion of counsel approved by the Company, which approval shall not be unreasonably withheld or delayed, that Indemnitee may have separate defenses or counterclaims to assert with respect to any issue which may not be consistent with other defendants in such Claim, (ii) Indemnitee reasonably concludes, based upon an opinion of counsel approved by the Company, which approval shall not be unreasonably withheld or delayed, that an actual or apparent conflict of interest or potential conflict of interest exists between Indemnitee and the Company, or (iii) if the Company fails to assume the defense of such Claim in a timely manner, Indemnitee shall be entitled to be represented by separate legal counsel of Indemnitee’s choice, subject to the prior approval of the Company, which approval shall not be unreasonably withheld or delayed, at the expense of the Company. In addition, if the Company fails to comply with any of its obligations under this Agreement or in the event that the Company or any other person takes any action to declare this Agreement void or unenforceable, or institutes any Claim to deny or to recover from Indemnitee the benefits intended to be provided to Indemnitee hereunder, Indemnitee shall have the right to retain counsel of Indemnitee’s choice, subject to the prior approval of the Company, which approval shall not be unreasonably withheld or delayed, at the expense of the Company, to represent Indemnitee in connection with any such matter.
11.4 Notwithstanding anything to the contrary herein contained, if (i) Indemnitee elects to retain counsel pursuant to Section 11.3 in connection with any Claim in respect of which indemnification may be sought by Indemnitee against the Company under this Agreement and (ii) any other director or officer of the Company may also be subject to liability arising out of such Claim and in connection with such Claim may seek indemnification against the Company pursuant to an agreement similar to this Agreement and also elects to retain counsel pursuant to a provision analogous to Subsection 11.3 of this Agreement, and (iii) Indemnitee is similarly situated and without a divergence of interests (e.g., where, as among Indemnitee and such persons with respect to the Claim, the provisions of Section 11.3 would not apply), Indemnitee shall cooperate with such indemnitees and other persons to employ counsel reasonably acceptable to all indemnitees and all such other persons to represent jointly Indemnitee and such other persons unless the Board, upon the written request of Indemnitee delivered to the Company (to the attention of the Secretary) setting forth in reasonable detail the basis for such request, determines that such joint representation would be precluded under the applicable standards of professional conduct then prevailing under the law of the State of Maryland, in which case Indemnitee will be entitled to be represented by separate counsel. In the event that the Board fails to act on such request within twenty (20) calendar days after receipt thereof by the Company, Indemnitee will be deemed to be entitled to be represented by separate counsel in connection with such Claim and the reasonable fees and expenses of such counsel shall be Expenses subject to this Agreement.
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12. Duration ofAgreement; Successors.
12.1 ThisAgreementshall continue until and terminate on the later of(i)the date thatIndemniteeis no longer subject to any actual or possibleClaim(including any rights of appeal thereto) for which indemnification may be sought byIndemniteehereunder, and(ii)such date as may be mutually agreed upon by the parties hereto in writing.
12.2 TheCompanywill require any successor (whether direct or indirect, by purchase, merger, consolidation, reorganization, or otherwise) to all or substantially all of the business or assets of theCompany, byagreementin form and substance satisfactory toIndemnitee, expressly to assume and agree to perform thisAgreementin the same manner and to the same extent theCompanywould be required to perform if no such succession had taken place. ThisAgreementwill be binding upon and inure to the benefit of theCompanyand any successor to theCompany, including without limitation any person acquiring directly or indirectly all or substantially all of the business or assets of theCompanywhether by purchase, merger, consolidation, reorganization, or otherwise (and such successor will thereafter be deemed the “Company” for purposes of thisAgreement), but will not otherwise be assignable, transferable, or delegable by theCompany.
12.3 ThisAgreementwill inure to the benefit of and be enforceable by theIndemnitee’s personal or legal representatives, executors, administrators, successors, heirs, distributees, and legatees.
12.4 ThisAgreementis personal in nature and neither of the parties hereto will, without the consent of the other, assign, transfer, or delegate thisAgreementor any rights or obligations hereunder except as expressly provided in Sections 12.1 and 12.2. Without limiting the generality or effect of the foregoing,Indemnitee’s right to receive payments hereunder will not be assignable, transferable, or delegable, whether by pledge, creation of a security interest, or otherwise, other than by a transfer by theIndemnitee’s will or by the laws of descent and distribution and, in the event of any attempted assignment or transfer contrary to this Section12.4, theCompanywill have no liability to pay any amount so attempted to be assigned, transferred, or delegated.
13. Remedies. TheCompanyandIndemniteeagree that a monetary remedy for breach of thisAgreement, at some later date, may be inadequate, impracticable and difficult of proof, and further agree that such breach may causeIndemniteeirreparable harm. Accordingly, the parties hereto agree thatIndemniteemay enforce thisAgreementby seeking injunctive relief and/or specific performance hereof, without any necessity of showing actual damage or irreparable harm and that by seeking injunctive relief and/or specific performance,Indemniteeshall not be precluded from seeking or obtaining any other relief to whichIndemniteemay be entitled.Indemniteeshall further be entitled to such specific performance and injunctive relief, including temporary restraining orders, preliminary injunctions and permanent injunctions, without the necessity of posting bonds or other undertakings in connection therewith. TheCompanyacknowledges that, in the absence of a waiver, a bond or undertaking may be required ofIndemniteeby a court, and theCompanyhereby waives any such requirement of such a bond or undertaking.
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14. Notices. For all purposes of thisAgreement, all communications, including without limitation notices, consents, requests, or approvals, required or permitted to be given hereunder will be in writing and will be deemed to have been duly given when hand delivered or dispatched by electronic facsimile transmission (with receipt thereof orally confirmed), or five(5) calendar days afterhaving been mailed by United States registered or certified mail, return receipt requested, postage prepaid, or one business day after having been sent for next-day delivery by a nationally recognized overnight courier service, addressed to theCompany(to the attention of the Secretary of theCompany) at its principal executive office and to theIndemniteeat theIndemnitee’s principal residence as shown in theCompany’s most current records, or to such other address as any party may have furnished to the other in writing and in accordance herewith, except that notices of changes of address will be effective only upon receipt.
15. Governing Law. The validity, interpretation, construction, and performance of this Agreement will be governed by and construed in accordance with the substantive laws of the State ofMaryland, without giving effect to the principles of conflict of laws of such State.
16. Entire Agreement; Severability. Except as otherwise expressly set forth in thisAgreement, thisAgreementembodies the completeagreementand understanding among the parties to thisAgreementwith respect to the subject matter of thisAgreement, and supersedes and preempts any prior understandings, agreements, or representations by or among the parties or their predecessors, written or oral, which may have related to the subject matter of thisAgreementin any way. If any provision of thisAgreementor the application of any provision hereof to any person or circumstance is held invalid, unenforceable, or otherwise illegal, the remainder of thisAgreementand the application of such provision to any other person or circumstance will not be affected, and the provision so held to be invalid, unenforceable, or otherwise illegal will be reformed to the extent (and only to the extent) necessary to make it enforceable, valid, or legal.
17. Miscellaneous. No provision of thisAgreementmay be waived, modified, or discharged unless such waiver, modification, or discharge is agreed to in writing signed byIndemniteeand theCompany. No waiver by either party hereto at any time of any breach by the other party hereto or compliance with any condition or provision of thisAgreementto be performed by such other party will be deemed a waiver of similar or dissimilar provisions or conditions at the same or at any prior or subsequent time. No agreements or representations, oral or otherwise, expressed or implied with respect to the subject matter hereof have been made by either party which are not set forth expressly in thisAgreement. Nothing contained in thisAgreementshall in any way modify the rights ofIndemniteeunder theEmployment Agreementbetween theCompanyandIndemnitee. References to Sections are to references to Sections of thisAgreement.
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18. Counterparts. ThisAgreementmay be executed in one or more counterparts, each of which will be deemed to be an original but all of which together will constitute one and the same agreement.
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IN WITNESS WHEREOF, the parties to this Agreement have executed this Agreement as of the date first above written.
| OMEGA HEALTHCARE INVESTORS, INC. | |
| By: | |
| Name: | |
| Title: | |
| Name: |
EXHIBIT A
AFFIRMATION AND UNDERTAKING TO REPAY ADVANCED EXPENSES
To: The Board of Directors of Omega Healthcare Investors, Inc.
Re: Affirmation and Undertaking to Repay Advanced Expenses
Ladies and Gentlemen:
This Affirmation and Undertaking is being provided pursuant to that certain Indemnification Agreement dated the ___ day of _____________, 20___, by and between Omega Healthcare Investors, Inc., a Maryland corporation (the “Company”), and the undersigned Indemnitee (the “Agreement”), pursuant to which I am entitled to advance of Expenses in connection with [Description of Proceeding] (the “Proceeding”). Terms used herein and not otherwise defined shall have the meanings specified in the Agreement.
I am subject to the Proceeding by reason of my Corporate Status or by reason of alleged actions or omissions by me in such capacity. I hereby affirm my good faith belief that at all times, insofar as I was involved in my Corporate Status in any of the facts or events giving rise to the Proceeding, I (1) did not act with bad faith or active or deliberate dishonesty, (2) did not receive any improper personal benefit in money, property or services and (3) in the case of any criminal proceeding, had no reasonable cause to believe that any act or omission by me was unlawful.
In consideration of the advance by the Company of Expenses incurred by me in connection with the Proceeding (the “Advanced Expenses”), I hereby agree that if, in connection with the Proceeding, it is established that (1) an act or omission by me 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, or (2) I actually received an improper personal benefit in money, property or services, or (3) in the case of any criminal proceeding, I had reasonable cause to believe that the act or omission was unlawful, or (4) that indemnification with respect to any Advanced Expenses is not permitted under applicable law, then I shall promptly reimburse the portion of the Advanced Expenses, together with the Applicable Legal Rate of interest thereon, relating to the claims, issues or matters in the Proceeding as to which the foregoing findings have been established.
IN WITNESS WHEREOF, I have executed this Affirmation and Undertaking on this _____ day of _______________, 20___.
| Name: |