Exhibit 10.4
INDEMNITY AGREEMENT
AGREEMENT, as of March 13, 1998 (the "Agreement"), between Beacon Capital
Partners, Inc., a Maryland corporation (the "Company") and Alan M. Leventhal
(the "Indemnitee").
WHEREAS, it is essential to the success of the Company to retain and
attract as directors and officers the most capable persons available;
WHEREAS, Indemnitee has agreed to serve as a director of the Company;
WHEREAS, both the Company and Indemnitee recognize the increased risk of
litigation and other claims being asserted against directors and officers of
public companies in today's environment;
WHEREAS, the Bylaws (the "Bylaws") and the Articles of Incorporation (the
"Articles") of the Company require the Company to indemnify and advance expenses
to its directors and officers to the fullest extent provided by law, and the
Indemnitee has agreed to serve as a director of the Company in part in reliance
on such provisions in the Bylaws and Articles;
WHEREAS, 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 foregoing
provisions in the Bylaws and Articles, and in part to provide Indemnitee with
specific contractual protections in addition to those protections promised
Indemnitee in the Bylaws and Articles and with specific contractual assurance
that the protection promised by such provisions in the Bylaws and Articles will
be available to Indemnitee (regardless of, among other things, any amendment to
or revocation of such provisions in the Bylaws or Articles or any change in the
composition of the Company's Board of Directors or any acquisition transaction
relating to the Company), the Company wishes to provide in this Agreement for
the indemnification of and the advancing of expenses to Indemnitee to the
fullest extent permitted by law, in addition to any other right to
indemnification to which Indemnitee may be entitled, and as set forth in this
Agreement and, to the extent insurance is maintained, for the continued coverage
of Indemnitee under the Company's directors' and officers' liability insurance
policies;
NOW THEREFORE, in consideration of the premises and of the Indemnitee
agreeing to serve as a director of the Company and intending to be legally bound
hereby, the parties agree as follows:
1. Certain Definitions:
(a) Change in Control: shall be deemed to have occurred upon any of
the following events:
(i) The acquisition in one or more transactions by any "Person" (as
the term person is used for purposes of Section 13(d) or 14(d) of
the Securities Exchange Act of 1934, as amended (the "1934 Act")) of
"Beneficial Ownership" (within the meaning of Rule 13d-3 promulgated
under the 1934 Act) of twenty percent (20%) or more of the combined
voting power of the Company's then outstanding voting securities
(the "Voting Securities"), provided, however, that for purposes of
this Section l(a)(i), the Voting Securities acquired directly from
the Company by any Person shall be excluded from the determination
of such Person's Beneficial Ownership of voting securities (but such
Voting Securities shall be included in the calculation of the total
number of Voting Securities then outstanding); or
(ii) The individuals who, as of March 20, 1998, are members of the
Board (the "Incumbent Board"), cease for any reason to constitute at
least two-thirds of the Board; provided, however, that if the
election, or nomination for election by the Company's shareholders,
of any new director was approved by a vote of at least two-thirds of
the Incumbent Board, such new director shall, for purposes of this
Agreement, be considered as a member of the Incumbent Board; or
(iii) Approval by shareholders of the Company of (A) a merger or
consolidation involving the Company if the shareholders of the
Company immediately before such merger or consolidation do not own,
directly or indirectly immediately following such merger or
consolidation, more than eighty percent (80%) of the combined voting
power of the outstanding voting securities of the corporation
resulting from such merger or consolidation in substantially the
same proportion as their ownership of the Voting Securities
immediately before such merger or consolidation or (B) a complete
liquidation or dissolution of the Company or an agreement for the
sale or other disposition of all or substantially all of the assets
of the Company.
(iv) Notwithstanding the foregoing, a Change in Control shall not be
deemed to occur solely because twenty percent (20%) or more of the
then outstanding Voting Securities is acquired by (i) a trustee or
other fiduciary holding securities under one or more employee
benefit plans maintained by the Company or any of its subsidiaries
or (ii) any corporation which, immediately prior to such
acquisition, is owned directly or indirectly by the shareholders of
the Company in the same proportion as their ownership of stock in
the Company immediately prior to such acquisition. Nor shall a
Change in Control be deemed to occur solely because any Person (the
"Subject Person") acquired Beneficial
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Ownership of 20% or more of the outstanding Voting Securities as a
result of the subsequent acquisition of Voting Securities by the
Company which, by reducing the number of Voting Securities
outstanding, increases the proportional number of shares
Beneficially Owned by the Subject Person, provided that if a Change
in Control would occur (but for the operation of this sentence) as a
result of the acquisition of Voting Securities by the Company, and
after such share acquisition by the Company, the Subject Person
becomes the Beneficial Owner of any additional Voting Securities
which increases the percentage of the then outstanding Voting
Securities Beneficially Owned by the Subject Person, then a Change
in Control shall occur.
(b) Claim: any threatened, pending or completed action, suit or
proceeding, or any inquiry or investigation, whether threatened, commenced
or 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, whether civil, criminal, administrative, investigative or
other.
(c) Expenses: consist of attorneys' fees and all other costs, charges and
expenses paid or incurred in connection with investigating, defending,
settling, being a witness in or participating in (including on appeal), or
preparing to defend, be a witness in or participate in any Claim relating
to any Indemnifiable Event.
(d) Indemnifiable Event: any event or occurrence related to the fact that
Indemnitee is, was or has agreed to become a director, officer, employee,
agent or fiduciary of the Company, or is, is deemed to be, or was serving
or has agreed to serve in any capacity, at the request of the Company, in
any other corporation, partnership, joint venture, employee benefit plan,
trust or other enterprise, or by reason of anything done or not done by
Indemnitee in any such capacity.
(e) Potential Change in Control: shall be deemed to have occurred if (i)
the Company enters into an agreement or arrangement, the consummation of
which would result in the occurrence of a Change in Control; (ii) any
person (including the Company) publicly announces an intention to take or
to begins taking actions which if completed would constitute a Change in
Control; or (iii) the Board adopts a resolution to the effect that, for
purposes of this Agreement, a Potential Change in Control has occurred.
(f) Voting Securities: any securities of the Company which vote generally
in the election of directors.
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2. Indemnification; Expenses; Procedure:
(a) Basic Indemnification Agreement. In the event Indemnitee was, is
or 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,
a Claim by reason of (or arising in part out of) an Indemnifiable
Event, the Company shall indemnify Indemnitee (without regard to the
negligence or other fault of the Indemnitee) to the fullest extent
permitted by applicable law, as soon as practicable but in no event
later than thirty days after written demand is presented to the
Company, against any and all Expenses, judgments, fines, penalties,
excise taxes and amounts paid or to be paid in settlement (including
all interest, assessments and other charges paid or payable in
connection with or in respect of such Expenses, judgments, fines,
penalties, excise taxes or amounts paid or to be paid in settlement)
of or in connection with such Claim, provided, however, that the
Company shall not be required to indemnify Indemnitee for amounts
paid or to be paid in settlement unless such settlement is approved
in advance by the Company, which approval shall not be unreasonably
withheld, or subsequently deemed reasonable by the Company, a court
of appropriate jurisdiction, or an independent legal counsel chosen
and approved by both the Company and Indemnitee. The Company's
obligation to indemnify Indemnitee under this paragraph shall be
deemed mandatory in all cases without regard to the fault or
negligence of Indemnitee unless it is determined, by final
adjudication, that the liability imposed upon Indemnitee was the
result of Indemnitee's active and deliberate dishonesty to the
Company, or of Indemnitee's actual improper receipt of a personal
benefit or profit, in which case the Company shall be relieved of
its obligation to indemnify Indemnitee only to the extent of the
actual value of the benefit or profit received. The Company shall
indemnify Indemnitee's spouse (whether by statute or at common law
and without regard to the location of the governing jurisdiction)
and children to the same extent and subject to the same limitations
applicable to Indemnitee hereunder for claims arising out of the
status of such person as a spouse or child of Indemnitee, including
claims seeking damages from marital property (including community
property) or property held by such Indemnitee and such spouse or
child or property transferred to such spouse or child but such
indemnity shall not otherwise extend to protect the spouse or child
against liabilities caused by the spouse's or child's own acts. If
Indemnitee makes a request to be indemnified under this Agreement
(which request need not be made prior to the incurrence of any
indemnifiable Expenses), the Board of Directors (acting by majority
vote of a quorum consisting of directors who are not parties to the
Claim with respect to the Indemnifiable Event or by majority vote of
a committee of two or more directors who are duly designated to act
on the matter by the full Board, or, if such a quorum is not
obtainable and no such committee has been designated, acting upon an
opinion in writing of special independent legal counsel selected by
majority vote of the full Board of Directors ("Board Action"))
shall, as soon
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as practicable but in no event later than thirty days after such
request, authorize such indemnification. Notwithstanding anything in
the Articles, the Bylaws or this Agreement to the contrary,
following a Change in Control, Indemnitee shall, unless prohibited
by law, be entitled to indemnification pursuant to this Agreement in
connection with any Claim initiated by Indemnitee.
(b) Advancement of Expenses. Notwithstanding anything in the
Articles, the Bylaws or this Agreement to the contrary, if so
requested by Indemnitee, the Company shall advance (within ten
business days of such request) any and all Expenses relating to a
Claim to Indemnitee (an "Expense Advance"), upon the receipt of a
written undertaking by or on behalf of Indemnitee to repay such
Expense Advance if a judgment or other final adjudication adverse to
Indemnitee establishes that Indemnitee, with respect to such Claim,
is not eligible for indemnification, without regard to any
determination of Indemnitee's financial ability to repay such
Expense Advance.
(c) Notice/Cooperation by Indemnitee. Indemnitee shall, as a
condition precedent to his right to be indemnified under this
Agreement, give the Company notice in writing as soon as practicable
of any Claim made against Indemnitee for which indemnification will
or could be sought under this Agreement. Such notice shall contain
the written affirmation of the Indemnitee that the standard of
conduct necessary for indemnification hereunder has been satisfied.
Notice to the Company shall be directed to the Secretary of the
Company in the manner provided in Section 19 hereof. Indemnitee
shall give the Company such information and cooperation as it may
reasonably require and as shall be within Indemnitee's power. A
delay or defect in the notice under this Section 2(c) shall not
invalidate the Indemnitee's right to indemnity under this Agreement
unless, and only to the extent that, such delay or defect materially
prejudices the defense of the claim or the availability to the
Company of insurance coverage for such claim. Failure to give notice
under this paragraph shall not be a defense if the Company has
actual notice of the Indemnitee's claim for indemnification.
(d) Notice to Insurers. If, at the time of the receipt of a notice
of a Claim pursuant to Section 2(c) hereof, the Company has director
and officer liability insurance in effect, the Company shall give
prompt notice of the commencement of such proceeding to the insurers
in accordance with the procedures set forth in the respective
policies. The Company shall thereafter take all necessary or
desirable action to cause such insurers to pay, on behalf of the
Indemnitee, all amounts payable as a result of such proceeding in
accordance with the terms of such policies.
(e) Selection of Counsel. In the event the Company shall be
obligated under Section 2(b) hereof to pay the Expenses of any
proceeding against Indemnitee,
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the Company, unless the Indemnitee determines that a conflict of
interest exists between the Indemnitee and the Company with respect
to a particular Claim, shall be entitled to assume the defense of
such proceeding, with counsel approved by Indemnitee, which approval
shall not be unreasonably withheld and which shall be granted to a
choice of counsel selected by the insurance company which provided
director and officer liability insurance for the Company, upon the
delivery to Indemnitee of written notice of its election to do so.
After delivery of such notice, approval of such counsel by
Indemnitee and the retention of such counsel by the Company, the
Company will be not be liable to Indemnitee under this Agreement for
any fees of counsel subsequently incurred by Indemnitee with respect
to the same proceeding, provided that (i) Indemnitee shall have the
right to employ his own separate counsel in any such proceeding in
addition to or in place of any counsel retained by the Company on
behalf of Indemnitee at Indemnitee's expense; and (ii) if (A) the
employment of counsel by Indemnitee has been previously authorized
by the Company, (B) Indemnitee shall have concluded that there may
be a conflict of interest between the Company and Indemnitee in the
conduct of any such defense or (C) the Company shall not, in fact,
have employed counsel to assume the defense of such proceeding, then
the fees and expenses of Indemnitee's counsel shall be at the
expense of the Company.
(f) Litigation Concerning Right to Indemnification. If there has
been no Board Action or Arbitration (as defined in Section 3), or if
Board Action determines that Indemnitee would not be permitted to be
indemnified, in any respect, in whole or in part, in accordance with
Section 2(a) of this Agreement, Indemnitee shall have the right to
commence litigation in the court which is hearing the action or
proceeding relating to the Claim for which indemnification is sought
or in any court having subject matter jurisdiction thereof and in
which venue is proper seeking an initial determination by the court
or challenging any Board Action or any aspect thereof, and the
Company hereby consents to service of process and to appear in any
such proceeding. Notwithstanding anything in the Articles, the
Bylaws or this Agreement to the contrary, if Indemnitee has
commenced legal proceedings in a court of competent jurisdiction or
Arbitration to secure a determination that Indemnitee should be
indemnified under this Agreement, the Articles, the Bylaws or
applicable law, any Board Action that Indemnitee would not be
permitted to be indemnified in accordance with Section 2(a) of this
Agreement shall not be binding in the event that such legal
proceedings are finally adjudicated. Any Board Action not followed
by such litigation or Arbitration shall be conclusive and binding on
the Company and Indemnitee.
3. Change in Control. The Company agrees that if there is a Change in
Control, Indemnitee, by giving written notice to the Company and the American
Arbitration Association (the "Notice"), may require that any controversy or
claim arising out of or relating to this
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Agreement, or the breach thereof, shall be settled by arbitration (the
"Arbitration") in Boston, Massachusetts in accordance with the Rules of the
American Arbitration Association (the "Rules"). The Arbitration shall be
conducted by a panel of three arbitrators selected in accordance with the Rules
within thirty days of delivery of the Notice. The decision of the panel shall be
made as soon as practicable after the panel has been selected, and the parties
agree to use their reasonable efforts to cause the panel to deliver its decision
within ninety days of its selection. The Company shall pay all fees and expenses
of the Arbitration. The Arbitration shall be conclusive and binding on the
Company and Indemnitee and the Company or Indemnitee may cause judgment upon the
award rendered by the arbitrators to be entered in any court having jurisdiction
thereof.
4. Establishment of Trust. In the event of a Potential Change in Control
or a Change in Control, the Company shall, promptly upon written request by
Indemnitee, create a Trust for the benefit of Indemnitee and from time to time,
upon written request of Indemnitee to the Company, shall fund such Trust in an
amount, as set forth in such request, sufficient to satisfy any and all Expenses
reasonably anticipated at the time of each such request to be incurred in
connection with investigating, preparing for and defending any Claim relating to
an Indemnifiable Event, and any and all judgments, fines, penalties and
settlement amounts of any and all Claims relating to an Indemnifiable Event from
time to time actually paid or claimed, reasonably anticipated or proposed to be
paid. The terms of the Trust shall provide that upon a Change in Control (i) the
Trust shall not be revoked or the principal thereof invaded, without the written
consent of Indemnitee; (ii) the Trustee shall advance, within ten business days
of a request by Indemnitee, any and all Expenses to Indemnitee, not advanced
directly by the Company to Indemnitee (and Indemnitee hereby agrees to reimburse
the Trust under the circumstances under which Indemnitee would be required to
reimburse the Company under Section 2 (b) of this Agreement); (iii) the Trust
shall continue to be funded by the Company in accordance with the funding
obligation set forth above; (iv) the Trustee shall promptly pay to Indemnitee
all amounts for which Indemnitee shall be entitled to indemnification pursuant
to this Agreement or otherwise; and (v) all unexpended funds in such Trust shall
revert to the Company upon a final determination by Board Action or Arbitration
or a court of competent jurisdiction, as the case may be, that Indemnitee has
been fully indemnified under the terms of this Agreement. The Trustee shall be
an independent third party chosen by Indemnitee. Nothing in this Section 4 shall
relieve the Company of any of its obligations under this Agreement.
5. Indemnification for Additional Expenses. The Company shall indemnify
Indemnitee against any and all expenses (including without limitation attorneys'
fees, subject to Section 20 hereof) and, if requested by Indemnitee, shall
(within ten business days of such request) advance such expenses to Indemnitee,
which are incurred by Indemnitee in connection with any claim asserted by or
action brought by Indemnitee for (i) indemnification or advance payment of
Expenses by the Company under law, this Agreement, or any other agreement or
Bylaw of the Company now or hereafter in effect relating to Claims for
Indemnifiable Events and/or (ii) recovery under any directors' and officers'
liability insurance policies maintained by
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the Company, regardless of whether Indemnitee ultimately is determined to be
entitled to such indemnification, advance expense payment or insurance recovery,
as the case may be.
6. Partial Indemnity, Etc. If Indemnitee is entitled under any provision
of this Agreement to indemnification by the Company for some or a portion of the
Expenses, judgments, fines, penalties, excise taxes and amounts paid or to be
paid in settlement of a Claim but not, however, for all of the total amount
thereof, the Company shall nevertheless indemnify Indemnitee for the portion
thereof to which Indemnitee is entitled. Moreover, notwithstanding any other
provision of this Agreement, to the extent that Indemnitee has been successful
on the merits or otherwise in defense of any or all Claims relating in whole or
in part to an Indemnifiable Event or in defense of any issue or matter therein,
including, without limitation, dismissal without prejudice, Indemnitee shall be
presumed to be entitled to indemnification against any and all Expenses,
judgments, fines, penalties, excise taxes and amounts paid or to be paid in
settlement of such Claim in connection with any determination by Board Action,
Arbitration or a court of competent jurisdiction that Indemnitee is not entitled
to be indemnified hereunder and the burden of proof shall be on the Company to
establish that Indemnitee is not so entitled.
7. No Presumption. For purposes of this Agreement, the termination of any
claim, action, suit or proceeding, by judgment, order, settlement (whether with
or without court approval) or conviction, or upon a plea of nolo contendere, or
its equivalent, shall not create a presumption that Indemnitee did not meet any
particular standard of conduct or have any particular belief or that a court has
determined that indemnification is not permitted by applicable law or this
Agreement.
8. Contribution. In the event that the indemnification provided for in
this Agreement is unavailable to Indemnitee for any reason whatsoever, the
Company, in lieu of indemnifying Indemnitee, shall contribute to the amount
incurred by Indemnitee, whether for judgments, fines, penalties, excise taxes,
amounts paid or to be paid in settlement and/or for Expenses, in connection with
any Claim relating to an Indemnifiable Event, in such proportion as is deemed
fair and reasonable in light of all of the circumstances of such action by Board
Action or Arbitration or by the court before which such action was brought in
order to reflect (i) the relative benefits received by the Company and
Indemnitee as a result of the event (s) and/or transaction (s) giving cause to
such action; and/or (ii) the relative fault of the Company (and its other
directors, officers, employees and agents) and Indemnitee in connection with
such event(s) and/or transaction(s). Indemnitee's right to contribution under
this Section 8 shall be determined in accordance with, pursuant to and in the
same manner as, the provisions in Sections 2 and 3 hereof relating to
Indemnitee's right to indemnification under this Agreement.
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9. Notice to the Company by Indemnitee. Indemnitee agrees to promptly
notify the Company in writing upon being served with or having actual knowledge
of any citation, summons, compliant, indictment or any other similar document
relating to any action which may result in a claim of indemnification or
contribution hereunder.
10. Non-exclusivity, Etc. The rights of the Indemnitee hereunder shall be
in addition to any other rights Indemnitee may have under the Articles or Bylaws
or applicable law, and nothing herein shall be deemed to diminish or otherwise
restrict Indemnitee's right to indemnification under any such other provision.
To the extent applicable law or the Articles or the Bylaws of Company, as in
effect on the date hereof or at any time in the future, permit greater
indemnification than as provided for in this Agreement, the parties hereto agree
that Indemnitee shall enjoy by this Agreement the greater benefits so afforded
by such law or provision of the Articles or Bylaws and this Agreement shall be
deemed amended without any further action by the Company or Indemnitee to grant
such greater benefits. Indemnitee may elect to have Indemnitee's rights
hereunder interpreted on the basis of applicable law in affect at the time of
execution of this Agreement, at the time of the occurrence of the Indemnifiable
Event giving rise to a claim or at the time indemnification is sought.
11. Liability Insurance.
(a) To the extent the Company maintains at any time an insurance
policy or policies providing directors' and officers' liability insurance,
Indemnitee shall be covered by such policy or policies, in accordance with its
or their terms, to the maximum extent of the coverage available for any other
Company director or officer under such insurance policy. The purchase and
maintenance of such insurance shall not in any way limit or affect the rights
and obligations of the parties hereto, and the execution and delivery of this
Agreement shall not in any way be construed to limit or affect the rights and
obligations of the Company and/or of the other parties under any such insurance
policy.
(b) For seven years after the Indemnitee no longer serves as a
director or officer of the Company, the Company (or its successor or successors)
shall continue to provide directors' and officers' liability insurance for
events occurring during his service with the Company on terms no less favorable
in terms of coverage and amount than such insurance maintained by the Company at
the date of the Indemnitee's separation from the Company. In the event such
coverage is not available, the maximum available coverage shall be maintained
pursuant to this covenant.
12. Period of Limitations. No legal action shall be brought and no cause
of action shall be asserted by or on behalf of the Company or any affiliate of
the Company against Indemnitee, Indemnitee's spouse, heirs, executors or
personal or legal representatives after the expiration of two years from the
date of accrual of such cause of action, and any claim or cause of action of the
Company or its affiliate shall be extinguished and deemed released unless
asserted by the timely filing of a legal action within such two-year period;
provided, however,
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that if any shorter period of limitations is otherwise applicable to any such
cause of action such shorter period shall govern.
13. Amendments, Etc. Except as provided in Section 10 hereof, no
supplement, modification or amendment of this Agreement shall be binding unless
executed in writing by both of the parties hereto. No waiver of any of the
provisions of this Agreement shall be deemed or shall constitute a waiver of any
other provisions hereof (whether or not similar) nor shall such waiver
constitute a continuing waiver.
14. Subrogation. In the event of payment under this Agreement, the Company
shall be subrogated to the extent of such payment to all of the rights of
recovery with respect to such payment of Indemnitee, who shall execute all
papers required and shall do everything that may be necessary to secure such
rights, including the execution of such documents necessary to enable the
Company effectively to bring suit to enforce such rights.
15. 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 actually received payment
(under any insurance policy, Bylaw or otherwise) of the amounts otherwise
indemnifiable hereunder.
16. Binding Effect, Etc. This Agreement shall be binding upon and inure to
the benefit of and be enforceable against and by the parties hereto and their
respective successors, assigns (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, but the absence of any such writing shall not be a
defense to any claim for indemnity made hereunder. This Agreement shall continue
in effect regardless of whether Indemnitee continues to serve as a director
and/or officer of the Company or of any other enterprise at the Company's
request.
17. Severability. The provisions of this Agreement shall be severable in
the event that any of the provisions hereof (including any provision within a
single section, paragraph or sentence) are held by a court of competent
jurisdiction to be invalid, void or otherwise unenforceable, and the remaining
provisions shall remain enforceable to the fullest extent permitted by law.
18. Exceptions. Any other provision herein to the contrary
notwithstanding, the Company shall not be obligated pursuant to the terms of
this Agreement to indemnify the Indemnitee in the following circumstances:
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(a) Insured Claims. The Company shall not be obligated to indemnify
Indemnitee for expenses or liabilities of any type whatsoever (including,
but not limited to, judgments, fines, ERISA excise taxes or penalties and
amounts paid in settlement) to the extent that Indemnitee has otherwise
actually received payment, or payments have been made on behalf of
Indemnitee, with respect to such expense or liability (under any insurance
policy, provision of the Company's Amended and Restated Articles of
Incorporation or Amended and Restated Bylaws, or otherwise) of amounts
otherwise indemnifiable hereunder; or
(b) Claims Under Section 16(b). The Company shall not be obligated
to indemnify Indemnitee for expenses and the payment of profits arising
from the purchase and sale by Indemnitee of securities in violation of
Section 16(b) of the Securities Exchange Act of 1934, as amended, or any
similar successor statute.
19. Notices. All notices, requests, demands and other communications
required or permitted hereunder shall be in writing and shall be deemed to have
been duly given when delivered by hand or when mailed by certified registered
mail, return receipt requested, with postage prepaid:
A. If to Indemnitee, to:
Alan M. Leventhal
c/o Beacon Capital Partners, Inc.
50 Rowes Wharf
Boston, MA 20109
or to such other person or address which Indemnitee shall furnish to the Company
in writing pursuant to the above.
B. If to the Company, to:
Beacon Capital Partners, Inc.
50 Rowes Wharf
Boston, Massachusetts 02110
ATTN: Secretary
or to such person or address as the Company shall furnish to Indemnitee in
writing pursuant to the above.
20. Attorneys' Fees. In the event that any action is instituted by
Indemnitee under this Agreement to enforce or interpret any of the terms hereof,
Indemnitee shall be entitled to be paid all court costs and expenses, including
reasonable attorneys' fees, incurred by Indemnitee with respect to such action,
unless as a part of such action, a court of competent jurisdiction determines
that each of the material assertions made by Indemnitee as a basis for
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such action were not made in good faith or were frivolous. In the event of an
action instituted by or in the name of the Company under this Agreement or to
enforce or interpret any of the terms of this Agreement, Indemnitee shall be
entitled to be paid all court costs and expenses, including attorneys' fees,
incurred by Indemnitee in defense of such action (including with respect to
Indemnitee's counterclaims and cross-claims made in such action), unless as a
part of such action the court determines that each of Indemnitee's material
defenses to such action were made in bad faith or were frivolous.
21. Governing Law. This Agreement shall be governed by and construed and
enforced in accordance with the laws of the State of Maryland, which laws are
applicable to contracts made and to be performed in such state without giving
effect to the principles of conflicts of laws.
22. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall constitute an original and all of which
together shall constitute a single agreement.
23. Election to Proceed Under Prior Agreements. In the event that this
Agreement, or any portion thereof, is determined to be invalid or unenforceable
for any reason, Indemnitee may elect to enforce Indemnitee's rights to
indemnification either under the surviving portions of this Agreement or under
any prior agreement of indemnification between Indemnitee and the Company, but
not both agreements. Indemnitee's rights under this paragraph shall not be
deemed to limit Indemnitee's rights to indemnification under the Articles,
Bylaws or any applicable law.
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IN WITNESS WHEREOF, the parties hereto have duly executed and delivered
this Agreement as of the 13th day of March, 1998.
BEACON CAPITAL PARTNERS, INC.
By: /s/ William A. Bonn
--------------------------------
Name: William A. Bonn
Title: General Counsel
INDEMNITEE
/s/ Alan M. Leventhal
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Name: Alan M. Leventhal
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