Exhibit 10.56
FORM OF INDEMNITY AGREEMENT
THIS INDEMNITY AGREEMENT (the "Agreement") is made as of this _____ day
of __________, 200__ by and between Public Storage, Inc., a California
corporation (the "Company") and __________________________, an executive officer
of the Company ("Indemnitee").
RECITALS
A. Both the Company and Indemnitee recognize the increased risk of
litigation and other claims currently being asserted against directors and
officers of corporations.
B. In recognition of Indemnitee's need for substantial protection
against personal liability in order to enhance Indemnitee's continued and
effective service to the Company, and in order to induce Indemnitee to provide
services to the Company as a director and officer, the Company wishes to provide
in this Agreement for the indemnification of and the advancing of expenses to
Indemnitee to the fullest extent (whether partial or complete) permitted by law
and as set forth in this Agreement, and, to the extent insurance is maintained,
for the coverage of Indemnitee under the Company's directors' and officers'
liability insurance policies.
AGREEMENT
In consideration of the foregoing recitals and of Indemnitee's
continuing to serve the Company and intending to be legally bound hereby, the
parties agree as follows:
1. CERTAIN DEFINITIONS.
As used in this Agreement the following terms shall have the
meanings set forth in this section:
(a) Expenses: any expense, liability, or loss,
including attorneys' fees, judgments, fines, ERISA excise taxes
and penalties, amounts paid or to be paid in settlement, any
interest, assessments, or other charges imposed thereon, and any
federal, state, local, or foreign taxes imposed as a result of the
actual or deemed receipt of any payments under this Agreement,
paid or incurred in connection with investigating, defending,
being a witness in, or participating in (including on appeal), or
preparing for any of the foregoing in, any Proceeding relating to
any Indemnifiable Event.
(b) Indemnifiable Event: any event or occurrence that
takes place either prior to or after the execution of this
Agreement, related to Indemnitee's service as a director and
officer of the Company or an affiliate, or, at the request of the
Company, as a director, officer, employee, trustee, agent, or
fiduciary of another foreign or domestic corporation, partnership,
joint venture, employee benefit plan, trust, or other enterprise,
or as a director, officer, employee, or agent of a foreign or
domestic corporation that was a predecessor corporation of the
Company or of another enterprise at the request of such
predecessor corporation, or related to anything done or not done
by Indemnitee in any such capacity, whether or not the basis of
the Proceeding is alleged action in an official capacity as a
director, officer, employee, or agent or in any other capacity
while serving as a director, officer, employee, or agent of the
Company, as described above.
(c) Proceeding: (i) any threatened, pending, or
completed action, suit, or proceedings, whether civil, criminal,
administrative, investigative or other, or (ii) any inquiry,
hearing, or investigation, whether conducted by the Company or any
other party, that Indemnitee in good faith believes might lead to
the institution of any such action, suit or proceeding.
2. AGREEMENT TO INDEMNIFY.
(a) General Agreement. If Indemnitee becomes a party
to or witness or other participant in, or is threatened to be made
a party to or witness or other participant in any Proceeding by
reason of (or arising in part out of) an Indemnifiable Event,
Indemnitee shall be indemnified and held harmless by the Company
from and against any and all Expenses actually or reasonably
incurred or suffered by Indemnitee in connection with such
Proceeding to the fullest extent permitted by law, as the same
exists or may hereafter be amended or interpreted (but in the case
of any such amendment or interpretation, only to the extent that
such amendment or interpretation permits the Company to provide
broader indemnification rights than were permitted prior thereto).
The Company shall also cooperate fully with Indemnitee and render
such assistance as Indemnitee may reasonably require in the
defense of any Proceeding in which Indemnitee was or is a party or
is threatened to be made a party, and shall make available to
Indemnitee and his counsel all information and documents
reasonably available to it which relate to the subject of any such
Proceeding. The parties hereto intend that this Agreement shall
provide for indemnification in excess of that expressly permitted
by statute, including, without limitation, any indemnification
provided by the Company's Articles of Incorporation, its Bylaws,
or vote of its shareholders or disinterested directors.
(b) Statutory Limitation on Indemnification. The
parties intend to indemnify Indemnitee to the fullest extent
permitted by law. The General Corporation Law of California
presently prohibits indemnification in an action brought by or in
the right of the corporation for breach of a director's duties to
the corporation and its shareholders (i) for acts or omissions
that involve intentional misconduct or a knowing and culpable
violation of law, (ii) for acts or omissions that an Indemnitee
believes to be contrary to the best interests of the Company or
its shareholders or that involve the absence of good faith on the
part of the Indemnitee, (iii) for any transaction from which an
Indemnitee derived an improper personal benefit, (iv) for acts or
omissions that show a reckless disregard for the Indemnitee's duty
to the Company or its shareholders, (v) for acts or omissions that
constitute an unexcused pattern of inattention that amounts to an
abdication of the Indemnitee's duty to the Company or its
shareholders, (vi) under Section 310 of the General Corporation
Law of California or (vii) under Section 316 of the General
Corporation Law of California. The General Corporation Law of
California also presently prohibits indemnification in
circumstances in which indemnity is expressly prohibited by
Section 317 of the General Corporation Law of California. To the
extent that the General Corporation Law of California is amended
or interpreted to permit the Company to provide broader
indemnification rights than are now permitted, the parties
contemplate that this Agreement, without amendment or
modification, shall encompass such broadened powers to indemnify
and that Indemnitee shall be entitled hereunder to any such
broadened indemnification rights.
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(c) Initiation of Proceeding. Notwithstanding
anything in this Agreement to the contrary, Indemnitee shall not
be entitled to indemnification pursuant to this Agreement in
connection with any Proceeding initiated by Indemnitee against the
Company or any director or officer of the Company unless (i) the
Company has joined in or the Board of Directors has consented to
the initiation of such Proceeding, or (ii) the Proceeding is one
to enforce indemnification rights.
(d) Expense Advances. Expenses incurred by Indemnitee
in defending any Proceeding relating in whole or in part to an
Indemnifiable Event shall be advanced by the Company prior to the
final disposition of any such Proceeding upon receipt by the
Company of an undertaking by or on behalf of Indemnitee to repay
all amounts so advanced if it should be determined ultimately that
Indemnitee is not entitled to be indemnified under this Agreement
or otherwise.
(e) Mandatory Indemnification. Notwithstanding any
other provision of this Agreement, (i) to the extent that
Indemnitee has been successful on the merits in defense of any
Proceeding relating in whole or in part to an Indemnifiable Event
or in defense of any issue or matter therein, Indemnitee shall be
indemnified against all Expenses incurred in connection therewith
and (ii) if the monetary liability of Indemnitee in a Proceeding
brought by the Company or by a shareholder suing derivatively on
behalf of the Company may be eliminated pursuant to Section 204(a)
of the General Corporation Law of California, Indemnitee shall be
indemnified against all Expenses incurred in connection therewith.
(f) Partial Indemnification. If Indemnitee is
entitled under any provision of this Agreement to indemnification
by the Company for some or a portion of Expenses, but not,
however, for the total amount thereof, the Company shall
nevertheless indemnify Indemnitee for the portion thereof to which
Indemnitee is entitled.
3. NOTIFICATION AND DEFENSE OF PROCEEDING.
(a) Notice. Promptly 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 the Company under
this Agreement, notify the Company of the commencement thereof;
but the omission so to notify the Company will not relieve it from
any liability that it may have to Indemnitee.
(b) Defense. With respect to any Proceeding as to
which Indemnitee notifies the Company of the commencement thereof,
the Company will be entitled to participate in the Proceeding to
the full extent permitted by law and at its own expense, when, and
only to the extent that the Company, in its sole discretion,
chooses to so participate. The Indemnitee shall cooperate fully
with the Company and render such assistance as the Company may
reasonably require in the Company's participation in any such
Proceeding and shall make available to the Company and its counsel
all information and documents reasonably available to Indemnitee
which relate to the subject of such Proceeding. The Company shall
not be liable to indemnify the Indemnitee under this Agreement
with regard to any judicial award if the Company was not given a
reasonable and timely opportunity, at its expense, to participate
in the defense of such action; the Company's liability hereunder
shall not be excused if participation in the Proceeding by the
Company was barred.
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(c) Settlement of Claims. The Company shall not be
liable to indemnify Indemnitee under this Agreement or otherwise
for any amounts paid in settlement of any Proceeding effected
without the Company's written consent; the Company will not
unreasonably withhold its consent to any proposed settlement.
4. REMEDY TO ENFORCE RIGHT TO INDEMNIFICATION. If a claim for indemnity
under Section 2 of this Agreement is not paid in full by the Company within
ninety days after a written claim has been received by the Company, Indemnitee
may at any time thereafter bring suit against the Company to recover the unpaid
amount of the claim, together with interest thereon, and if successful in whole
or in part, Indemnitee shall also be entitled to be paid the expense of
prosecuting such claim, including reasonable attorneys' fees incurred in
connection therewith. It shall be a defense to any such action (other than an
action brought to enforce a claim for Expenses incurred in defending any
Proceeding in advance of its final disposition where the required undertaking
has been tendered to the Company) that Indemnitee has not met the standards of
conduct which make it permissible under the General Corporation Law of
California for the Company to indemnify Indemnitee for the amount claimed, but
the burden of proving such a defense shall be on the Company. Neither the
failure of the Company (or of its full Board of Directors, its directors who are
not parties to the Proceeding with respect to which indemnification is claimed,
its shareholders, or independent legal counsel) to have made a determination
prior to the commencement of an action pursuant to this Section 4 that
indemnification of Indemnitee is proper in the circumstances because Indemnitee
has met the applicable standard of conduct set forth in the General Corporation
Law of California, nor an actual determination by any such person or persons
that Indemnitee has not met such applicable standard of conduct, shall be a
defense to such action or create a presumption that Indemnitee has not met the
applicable standard of conduct.
5. CONTRACT RIGHT NOT EXCLUSIVE. The rights conferred by this Agreement
shall not be exclusive of any other right which Indemnitee may have or hereafter
acquire under the General Corporation Law of California, the California Labor
Code or any other statute, or any provision contained in the Company's Articles
of Incorporation or Bylaws, or any agreement, or pursuant to a vote of
shareholders or disinterested directors, or otherwise.
6. INSURANCE. The Company may purchase and maintain insurance on behalf
of its directors and officers against any liability asserted against or incurred
by any of them by reason of the fact that such person is or was a director or
officer of the Company whether or not the Company would have the power to
indemnify such persons against such liability under the General Corporation Law
of California.
7. AMENDMENT OF THIS AGREEMENT. No supplement, modification, or
amendment of this Agreement shall be binding unless executed in writing by both
of the parties hereto. Unless otherwise consented to in writing by Indemnitee,
any amendment to this Agreement shall apply only to acts or omissions of
Indemnitee after such amendment is executed by Indemnitee but such amendment
shall not affect Indemnitee's rights hereunder with respect to acts or omissions
occurring prior thereto. No waiver of any of the provisions of this Agreement
shall operate as a waiver of any other provisions hereof (whether or not
similar), nor shall such waiver constitute a continuing waiver. Except as
specifically provided herein, no failure to exercise or any delay in exercising
any right or remedy hereunder shall constitute a waiver thereof.
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8. AMENDMENT OF ARTICLES OF INCORPORATION, BYLAWS. The Company shall be
entitled to amend or repeal its Articles of Incorporation or Bylaws or both but
any amendment which reduces or eliminates Indemnitee's right to indemnification
shall apply only to acts or omissions of Indemnitee after such amendment is
effective and such amendment shall not affect Indemnitee's rights with respect
to acts or omissions occurring prior to the effectiveness of such amendment. If
the Company amends its Articles of Incorporation or Bylaws or both to permit the
Company to provide broader indemnification than currently permitted under the
Articles of Incorporation or Bylaws or both, Indemnitee shall be entitled to
such broadened indemnification rights to the fullest extent permitted by law.
9. TERMINATION. This Agreement may be terminated by a writing to that
effect executed by the Company and delivered to Indemnitee; such termination
shall apply only to acts or omissions of Indemnitee after such notice is
delivered to Indemnitee but such termination shall not affect Indemnitee's
rights hereunder with respect to acts or omissions occurring prior thereto.
Indemnitee shall not forfeit Indemnitee's status as a beneficiary under this
Agreement by the termination of Indemnitee's position with the Company.
10. NO DUPLICATION OF PAYMENTS. The Company shall not be liable under
this Agreement to make any payment in connection with any claim made against
Indemnitee to the extent Indemnitee has otherwise received payment (under any
insurance policy, Bylaw, or otherwise) of the amounts otherwise indemnifiable
hereunder.
11. BINDING EFFECT. This Agreement shall be binding upon and inure to
the benefit of and be enforceable by the parties hereto and their respective
successors (including any direct or indirect successor by purchase, merger,
consolidation, or otherwise to all or substantially all of the business and/or
assets of the Company), spouses, heirs, and personal and legal representatives.
The Company shall require and cause any successor (whether direct or indirect by
purchase, merger, consolidation, or otherwise) to all, substantially all, or a
substantial part, of the business and/or assets of the Company, by written
agreement in form and substance satisfactory to Indemnitee, expressly to assume
and agree to perform this Agreement in the same manner and to the same extent
that the Company would be required to perform if no such succession had taken
place. The indemnification provided under this Agreement shall continue as to
Indemnitee for any action taken or not taken while serving in an indemnified
capacity pertaining to an Indemnifiable Event even though he may have ceased to
serve in such capacity at the time of any Proceeding.
12. SEVERABILITY. If any provision (or portion thereof) of this
Agreement shall be held by a court of competent jurisdiction to be invalid,
void, or otherwise unenforceable, the remaining provisions shall remain
enforceable to the fullest extent permitted by law. Furthermore, to the fullest
extent possible, the provisions of this Agreement (including, without
limitation, each portion of this Agreement containing any provision held to be
invalid, void, or otherwise unenforceable, that is not itself invalid, void, or
unenforceable) shall be construed so as to give effect to the intent manifested
by the provision held invalid, void, or unenforceable.
13. GOVERNING LAW. This Agreement shall be governed by and construed
and enforced in accordance with the laws of the State of California applicable
to contracts made and to be performed in such State without giving effect to the
principles of conflicts of laws.
14. NOTICES. All notices, demands, and other communications required or
permitted hereunder shall be made in writing and shall be deemed to have been
duly given if delivered by hand, against receipt, or mailed, postage prepaid,
certified or registered mail, return receipt requested, and addressed to the
Company at:
Public Storage, Inc.
701 Western Avenue
Glendale, California 91201-2397
Attn:
and to Indemnitee at:
701 Western Avenue
Glendale, California 91201-2397
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Notice of change of address shall be effective only when done in
accordance with this Section. All notices complying with this Section shall be
deemed to have been received on the date of delivery or on the third business
day after mailing.
IN WITNESS WHEREOF, the parties hereto have duly executed and delivered
this Agreement as of the day specified above.
PUBLIC STORAGE, INC.
By: ____________________________________
Name: ____________________
Title: ___________________
INDEMNITEE
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Name: __________________________
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