Item 6. Indemnification of Directors
and Officers
Our charter and the partnership agreement of our
operating partnership provide for indemnification of our officers and directors against liabilities to the fullest extent permitted by
the MGCL, as amended from time to time.
The MGCL permits a corporation to indemnify a
director or officer who has been successful, on the merits or otherwise, in the defense of any proceeding to which he or she is made a
party by reason of his or her service in that capacity. The MGCL permits a corporation to indemnify its present and former directors and
officers, among others, against judgments, penalties, fines, settlements and reasonable expenses actually incurred by them in connection
with any proceeding to which they may be made a party by reason of their service in those or other capacities unless it is established
that:
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an act or omission of the director or officer was material to the matter giving rise to the proceeding
and:
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was committed in bad faith; or
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was the result of active and deliberate dishonesty;
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the director or officer actually received an improper personal benefit in money, property or services;
or
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in the case of any criminal proceeding, the director or officer had reasonable cause to believe that the
act or omission was unlawful.
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However, under the MGCL, a Maryland corporation
may not indemnify for an adverse judgment in a suit by or in the right of the corporation (other than for expenses incurred in a successful
defense of such an action) or for a judgment of liability on the basis that personal benefit was improperly received. In addition, the
MGCL permits a corporation to advance reasonable expenses to a director or officer upon the corporation’s receipt of:
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a written affirmation by the director or officer of his good faith belief that he has met the standard
of conduct necessary for indemnification by the corporation; and
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a written undertaking by the director or on the director’s behalf to repay the amount paid or reimbursed
by the corporation if it is ultimately determined that the director did not meet the standard of conduct.
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The MGCL permits a Maryland corporation to include
in its charter a provision limiting the liability of its directors and officers to the corporation and its stockholders for money damages
except for liability resulting from actual receipt of an improper benefit or profit in money, property or services or active and deliberate
dishonesty established by a final judgment as being material to the cause of action. Our charter contains such a provision which eliminates
such liability to the maximum extent permitted by Maryland law.
Our bylaws obligate us, to the fullest extent
permitted by Maryland law in effect from time to time, to indemnify and, without requiring a preliminary determination of the ultimate
entitlement to indemnification, pay or reimburse reasonable expenses in advance of final disposition of a proceeding to any present or
former director or officer who is made a party to the proceeding by reason of his or her service in that capacity; or any individual who,
while a director or officer of our company and at our request, serves or has served another corporation, real estate investment trust,
partnership, joint venture, trust, employee benefit plan or any other enterprise as a director, officer, partner or trustee and who is
made a party to the proceeding by reason of his or her service in that capacity. Our bylaws also obligate us to indemnify and advance
expenses to any person who served a predecessor of ours in any of the capacities described in preceding sentence and to any employee or
agent of our company or a predecessor of our company.
The partnership agreement of our operating partnership
provides that we, as general partner, and our officers and directors are to be indemnified to the fullest extent permitted by law. The
partnership agreement provides that neither the general partner, nor any of its directors and officers will be liable to the partnership
or to any of its partners as a result of errors in judgment or mistakes of fact or law or of any act or omission, if the general partner
acted in good faith.
In addition, the partnership agreement requires
our operating partnership to indemnify and hold the general partner and its directors, officers and any other person it designates, harmless
from and against any and all claims arising from operations of the operating partnership in which any such indemnitee may be involved,
or is threatened to be involved, as a party or otherwise, unless it is established that:
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the act or omission of the indemnitee was material to the matter giving rise to the proceeding and was
committed in bad faith or was the result of active and deliberate dishonesty;
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the indemnitee actually received an improper personal benefit in money, property or services; or
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in the case of any criminal proceeding, the indemnitee had reasonable cause to believe that the act or
omission was unlawful.
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No indemnitee may subject any partner of our operating
partnership to personal liability with respect to this indemnification obligation as this indemnification obligation will be satisfied
solely out of the assets of the partnership.
The 2021 Stock Incentive Plan also provides that
neither any member of our Board of Directors (or any committee thereof administering the Plan) nor any employee or agent of the Company
or its subsidiaries shall be liable for any action or omission taken, or determination made, with respect to the Plan or any award thereunder
(unless constituting fraud or a willful criminal act or omission). Each of the foregoing shall be indemnified and held harmless by the
Company against any losses, costs, liabilities or expenses (including attorneys’ fees) that may be imposed in connection with any
action, suit, or proceeding in which the foregoing may be involved by reason of any action or omission with respect to the Plan or an
award thereunder, including an advancement of such expenses (to be repaid by the applicable individual if it is ultimately determined
that such individual was not entitled to indemnification). The rights to indemnification under the 2021 Stock Incentive Plan are in addition
to, and not in lieu of, any other indemnification to which the foregoing may be entitled under our organizational documents, as a matter
of law, under an individual indemnification contract, or otherwise.
Insofar as the foregoing provisions permit indemnification
of directors, officers or persons controlling us for liability arising under the Securities Act, we have been informed that in the opinion
of the Commission, this indemnification is against public policy as expressed in the Securities Act and is therefore unenforceable.
