Exhibit 10.1
FORM OF INDEMNIFICATION AGREEMENT
This Indemnification Agreement (“Agreement”) by and between Broad Street Realty, Inc., a Delaware corporation (“Broad Street”), and [ ] (“Indemnitee”) is entered into as of , 20 (the “Effective Date”).
Recitals
Agreement
NOW, THEREFORE, in consideration of the mutual covenants and promises contained in this Agreement, and for other good and valuable consideration, the receipt and sufficiency of which is acknowledged, the parties, intending to be legally bound, agree as follows:
2
For the avoidance of doubt, an action by Indemnitee to enforce Indemnitee’s rights to indemnification under this Agreement will be a “Proceeding” for purposes of this Agreement.
Indemnitee will serve, at the will of Broad Street or under separate contract, if any such contract exists, as a director or officer of Broad Street or of an affiliate of Broad Street (including, but not limited to, any employee benefit plan of Broad Street) faithfully and to the best of Indemnitee’s ability so long as Indemnitee: (a) remains an officer or director of Broad Street or an affiliate of Broad Street; and (b) if an employee of Broad Street or an affiliate of Broad Street, remains employed by Broad Street or such affiliate. Indemnitee may at any time and for any reason resign from such position (subject to any contractual obligation that Indemnitee may be subject to apart from this Agreement), and Broad Street or any affiliate of Broad Street will have no obligation under this Agreement to continue Indemnitee in any such position.
Broad Street will hold harmless and indemnify Indemnitee to the fullest extent authorized or permitted by the Code, as the same may be amended from time to time (but only to the extent that such amendment permits Broad Street to provide broader indemnification rights than the Bylaws, the Certificate or the Code permitted prior to adoption of such amendment). These obligations and the other obligations of Broad Street in this Agreement apply regardless of whether the conduct giving rise to the obligations occurred before or occur after the date this Agreement is executed. Notwithstanding any other provision of this Agreement, to the extent that Indemnitee has been successful on the merits or otherwise in defense of any Proceeding or in defense of any issue or matter therein, Indemnitee will be indemnified against all Expenses incurred in connection therewith. For these purposes, Indemnitee will be deemed to have been “successful on the merits” upon termination of any Proceeding or of any claim, issue or matter therein, by the winning of a motion to dismiss (with or without prejudice), motion for summary judgment, or settlement (with or without court approval).
3
Indemnitee will be entitled under this Agreement to indemnification by Broad Street for a portion of the Expenses that Indemnitee becomes legally obligated to pay in connection with any Proceeding even if not entitled hereunder to indemnification for the total amount thereof, and Broad Street will indemnify Indemnitee for the portion thereof to which Indemnitee is entitled.
As promptly as practicable, but in any event not later than thirty (30) days after receipt by Indemnitee of notice of the commencement of any Proceeding, Indemnitee will, if a claim in respect thereof is to be made against Broad Street under this Agreement, notify Broad Street of the commencement thereof, provided that the failure so to notify Broad Street will not relieve Broad Street from any liability which it may have to Indemnitee under this Agreement or otherwise. With respect to any such Proceeding as to which Indemnitee notifies Broad Street of the commencement thereof:
4
Promptly following a request by Indemnitee for the advancement of Expenses, Broad Street will advance, prior to the final disposition of any Proceeding, all Expenses incurred by Indemnitee in connection with such Proceeding (through the final disposition of any such Proceeding from which all rights of appeal have either been exhausted or have lapsed). Indemnitee will qualify for advances upon the execution and delivery to Broad Street of this Agreement, which will constitute an undertaking providing that Indemnitee undertakes to the fullest extent permitted by law to repay the advance (without interest) if and to the extent that Indemnitee is ultimately determined by a court of competent jurisdiction in a final judgment, not subject to appeal, that Indemnitee is not entitled to be indemnified by Broad Street. No other form of undertaking will be required other than the execution of this Agreement. Any advances and undertakings to repay under this Section will be unsecured and interest free. Prior to an ultimate determination by a court of competent jurisdiction in a final judgment, not subject to appeal, that Indemnitee is not entitled to be indemnified by Broad Street, Broad Street may not refuse to advance Expenses to Indemnitee under this Agreement on the grounds that Indemnitee has not satisfied any applicable standard of conduct or is not ultimately entitled to be indemnified, held harmless or exonerated under the other provisions of this Agreement. Advances will be made without regard to Indemnitee’s ability to repay. Such advances are intended to be an obligation of Broad Street to Indemnitee hereunder and will in no event be deemed to be a personal loan. Without limiting the generality or effect of the foregoing, within thirty days after any request by Indemnitee, Broad Street will, in accordance with such request (but without duplication), (a) pay such Expenses on behalf of Indemnitee, (b) advance to Indemnitee funds in an amount sufficient to pay such Expenses, or (c) reimburse Indemnitee for such Expenses.
5
Any right to indemnification or advances granted by this Agreement to Indemnitee will be enforceable by or on behalf of Indemnitee in any court of competent jurisdiction if (a) the claim for indemnification or advances is denied, in whole or in part, or (b) no disposition of such claim is made within ninety (90) days of request therefor. Indemnitee, in such enforcement action, if successful in whole or in part, also will be entitled to be paid the Expense of prosecuting Indemnitee’s claim. Neither the failure of Broad Street (including its Board of Directors or its stockholders) to have made a determination prior to the commencement of such enforcement action that indemnification of Indemnitee is proper in the circumstances, nor an actual determination by Broad Street (including its Board of Directors or its stockholders) that such indemnification is improper will be a defense to the action or create a presumption that Indemnitee is not entitled to indemnification under this Agreement or otherwise.
6
In the event of payment under this Agreement, Broad Street will be subrogated to the extent of such payment to all of the rights of recovery of Indemnitee, who will execute all documents required and will do all acts that may be reasonably necessary to secure such rights, including the execution of such documents necessary to enable Broad Street effectively to bring suit to enforce such rights.
Broad Street’s obligation to indemnify, hold harmless, exonerate or advance Expenses hereunder to Indemnitee who is or was serving at the request of Broad Street as a director, officer, trustee, partner, managing member, fiduciary, employee or agent of any other enterprise will be reduced by any amount Indemnitee has actually received as indemnification, hold harmless or exoneration payments or advancement of expenses from such enterprise. Notwithstanding any other provision of this Agreement to the contrary, (i) Indemnitee will have no obligation to reduce, offset, allocate, pursue or apportion any indemnification, hold harmless, exoneration, advancement, contribution or insurance coverage among multiple parties possessing such duties to Indemnitee prior to Broad Street’s satisfaction and performance of all its obligations under this Agreement, and (ii) Broad Street will perform fully its obligations under this Agreement without regard to whether Indemnitee holds, may pursue or has pursued any indemnification, advancement, hold harmless, exoneration, contribution or insurance coverage rights against any person or entity other than Broad Street.
To the fullest extent permissible under applicable law, if the indemnification provided for in this Agreement is unavailable to the Indemnitee, Broad Street, in lieu of indemnifying the Indemnitee, will contribute to Indemnitee’s Expenses in connection with any claim relating to any Proceeding, in such proportion as is deemed fair and reasonable in light of all of the circumstances of such proceeding in order to reflect:
7
Each of the provisions of this Agreement is a separate and distinct agreement and independent of the others, so that if any provision is held to be invalid for any reason, such invalidity or unenforceability will not affect the validity or enforceability of the other provisions. Furthermore, if this Agreement is invalidated in its entirety on any ground, then Broad Street nevertheless will indemnify Indemnitee to the fullest extent provided by the Certificate, the Bylaws, the Code or any other applicable law.
This Agreement will be governed exclusively by and construed according to the laws of the State of Delaware, as applied to contracts between Delaware residents entered into and to be performed entirely within Delaware.
No amendment, modification, termination or cancellation of this Agreement will be effective unless signed in writing by both parties hereto; provided, however, that Broad Street will have the right to amend, modify, terminate or replace this Agreement if Broad Street amends, modifies, terminates or replaces its form of Indemnification Agreement for directors, officers, employees and other agents of Broad Street; provided, further, that such amended or modified agreement or such new agreement does not diminish in any material respect the rights of Indemnitee hereunder. No waiver of any of the provisions of this Agreement will be deemed or will constitute a waiver of any other provision hereof (whether or not similar) nor will such waiver constitute a continuing waiver.
8
This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior agreements, understandings and negotiations, written and oral, between the parties with respect to the subject matter of this Agreement; provided, however, that this Agreement is a supplement to and in furtherance of the Certificate, the Bylaws, the Code and any other applicable law, and will not be deemed a substitute therefore, nor to diminish or abrogate any rights of Indemnitee thereunder.
The parties agree that a monetary remedy for breach of this Agreement may be inadequate, impracticable, and difficult to prove and that such breach may cause Indemnitee irreparable harm. Indemnitee may therefore enforce this Agreement by seeking injunctive relief and specific performance, without any necessity of showing actual damage or irreparable harm (since actual and irreparable harm will result if Broad Street does not specifically perform its obligations under this Agreement). Seeking injunctive relief or specific performance does not preclude Indemnitee from seeking or obtaining any other relief to which Indemnitee may be entitled. Indemnitee is entitled to 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. Broad Street acknowledges that in the absence of a waiver, a bond or undertaking may be required of Indemnitee by the applicable court, and Broad Street hereby waives any such requirement of a bond or undertaking.
For purposes of any determination of “good faith,” to the extent permitted under the Code, Indemnitee will be presumed to have acted in good faith if Indemnitee’s action is based on reliance on the records or books of account of Broad Street and its affiliates, including financial statements, or on information supplied to Indemnitee by the officers of Broad Street or its affiliates in the course of their duties, or on the advice of legal counsel for Broad Street or its affiliates or for the Board or counsel selected by any committee of the Board or on information or records given or reports made to Broad Street or its affiliates by an independent certified public accountant or by an appraiser, investment banker, compensation consultant, or other expert selected with reasonable care by Broad Street or its affiliates or by the Board or any committee of the Board. The provisions of this Section will not be deemed to be exclusive or to limit in any way the other circumstances in which Indemnitee may be deemed to have met the applicable standard of conduct. Whether or not the foregoing provisions of this Section are satisfied, it will in any event be presumed that Indemnitee has at all times acted in good faith and in a manner he or she reasonably believed to be in ,or not opposed to, the best interests of Broad Street.
It is understood that the parties hereto intend this Agreement to be interpreted and enforced so as to provide indemnification to Indemnitee to the fullest extent now or hereafter permitted by law.
This Agreement may be executed in one or more counterparts, each of which will be deemed for all purposes to be an original but all of which together will constitute this Agreement.
9
The headings of the Sections of this Agreement are inserted for convenience only and are not part of this Agreement or intended to affect the interpretation of this Agreement.
All notices, requests, demands, and other communications hereunder shall be in writing and shall be deemed to have been duly given if (i) delivered by hand and receipted for by the party to whom said notice or other communication shall have been directed, or (ii) mailed by certified or registered mail with postage prepaid, on the third business day after the date on which it is so mailed, if so delivered or mailed, as the case may be, to the following addresses:
If to the Indemnitee, to the address set forth in the records of Broad Street.
If to the Indemnitor, to:
Broad Street Realty, Inc.
7250 Woodmont Ave #350
Bethesda, Maryland 20814
Attention: Chief Executive Officer
with a copy (which shall not constitute notice) to:
Morrison & Foerster LLP
2100 L Street, N.W.
Suite 900
Washington, D.C. 20037
Attention: David P. Slotkin
Phone: (202) 887-1554
Email: DSlotkin@mofo.com
or to such other address as may have been furnished to the Indemnitee by Broad Street or to Broad Street by the Indemnitee, as the case may be.
[Signatures on Next Page]
10
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year first above written.
BROAD STREET REALTY, INC.
By:____________________________
Name:
Title:
INDEMNITEE:
[NAME]
_____________________________
Signature Page to Indemnification Agreement
Exhibit A
Indemnitee | Date | |||
Michael Z. Jacoby | December 27, 2019 | |||
Thomas M. Yockey | December 27, 2019 | |||
Vineet P. Bedi | December 27, 2019 | |||
Joseph C. Bencivenga | December 27, 2019 | |||
Jeffrey H. Foster | December 27, 2019 | |||
Daniel J.W. Neal | December 27, 2019 | |||
Samuel M. Spiritos | December 27, 2019 | |||
Alexander Topchy | December 27, 2019 | |||
| Donna Brandin |
| January 18, 2022 |
|
| Noah Shore |
| November 22, 2022 |
|
| Jeffery C. Walraven |
| October 23, 2023 |
|