**EXHIBIT 10.2**

 

**INDEMNIFICATION AGREEMENT**

 

This INDEMNIFICATION AGREEMENT (the “Agreement”) is made and enteredinto as of the ––– day of –––––––––––– ,  ––––, by and betweenTrammell Crow Company, a Delaware corporation (the “Company”), and ––––––––––– (“Indemnitee”).

 

**RECITALS:**

 

A.                                   Competentand experienced persons are reluctant to serve or to continue to servecorporations as directors, officers, or in other capacities unless they areprovided with adequate protection through insurance or indemnification (orboth) against claims and actions against them arising out of their service toand activities on behalf of those corporations.

 

B.                                     Thecurrent uncertainties relating to the availability of adequate insurance fordirectors and officers have increased the difficulty for corporations toattract and retain competent and experienced persons.

 

C.                                     TheBoard of Directors of the Company has determined that the continuation ofpresent trends in litigation will make it more difficult to attract and retaincompetent and experienced persons, that this situation is detrimental to thebest interests of the Company’s stockholders, and that the Company should actto assure its directors and officers that there will be increased certainty ofadequate protection in the future.

 

D.                                    Itis reasonable, prudent, and necessary for the Company to obligate itselfcontractually to indemnify its directors and officers to the fullest extentpermitted by applicable law in order to induce them to serve or continue toserve the Company.

 

E.                                      Indemniteeis willing to serve and continue to serve the Company on the condition that hebe indemnified to the fullest extent permitted by law.

 

F.                                      Concurrentlywith the execution of this Agreement, Indemnitee is agreeing to serve or tocontinue to serve as a director or officer of the Company.

 

**AGREEMENTS:**

 

NOW, THEREFORE, in consideration of the foregoing premises, Indemnitee’sagreement to serve or continue to serve as a director or officer of theCompany, and the covenants contained in this Agreement, the Company andIndemnitee hereby covenant and agree as follows:

 

1.*                                       CertainDefinitions:*

 

For purposes of this Agreement:

 

(a)*                                  AcquiringPerson:*  shall mean any Person otherthan (i) the Company, (ii) any of the Company’s Subsidiaries,(iii) any employee benefit plan of the Company or of a Subsidiary of theCompany or of a corporation owned directly or indirectly by the stockholders ofthe Company in substantially the same proportions as their ownership of stockof the Company, or (iv) any trustee or other fiduciary holding securitiesunder an employee benefit plan of the Company or of a Subsidiary of the Companyor of a corporation owned directly or indirectly by the stockholders of theCompany in substantially the same proportions as their ownership of stock ofthe Company.

 

(b)*                                 Changein Control:*  shall be deemed to haveoccurred if:

 

(i)                                     anyAcquiring Person is or becomes the “beneficial owner” (as defined inRule 13d-3 under the Securities Exchange Act of 1934 (the “Exchange Act”)),directly or indirectly, of securities of the Company representing fifty percentor more of the combined voting power of the then outstanding Voting Securitiesof the Company; or

 

(ii)                                  membersof the Incumbent Board cease for any reason to constitute at least a majorityof the Board of Directors of the Company; or

 

----

 

(iii)                               theCompany merges or consolidates with any other corporation or entity, or theCompany or the stockholders of the Company and holders of voting securities insuch other corporation or entity participate in a securities exchange, otherthan a merger or consolidation that would result in the Voting Securities ofthe Company outstanding immediately before the completion thereof continuing torepresent a majority of the combined voting power of the Voting Securities ofthe surviving entity (or its parent) outstanding immediately after that merger,consolidation or securities exchange; or

 

(iv)                              theCompany liquidates, sells or disposes of all or substantially all the Company’sassets in one transaction or series of transactions other than a liquidation,sale or disposition of all or substantially all the Company’s assets in onetransaction or a series of related transactions to an entity owned directly orindirectly by the stockholders of the Company in substantially the sameproportions as their ownership of stock of the Company.

 

(c)*                                  Claim:*  shall mean any threatened, pending orcompleted action, suit or proceeding (including, without limitation, securitieslaws actions, suits and proceedings and also any crossclaim or counterclaim inany action, suit or proceeding), whether civil, criminal, arbitral,administrative or investigative in nature, or any inquiry or investigation(including discovery), whether conducted by the Company or any other Person,that Indemnitee in good faith believes might lead to the institution of anyaction, suit or proceeding.

 

(d)*                                 Expenses:*  shall mean all costs, expenses (includingattorneys’ and expert witnesses’ fees), and obligations paid or incurred inconnection with investigating, defending (including affirmative defenses andcounterclaims), being a witness in, or participating in (including on appeal),or preparing to defend, be a witness in, or participate in, any Claim relatingto any Indemnifiable Event.

 

(e)*                                  IncumbentBoard:*  shall mean individuals who,as of August 21, 1997, constitute the Board of Directors of the Companyand any other individual who becomes a director of the Company after that dateand whose election or appointment by the Board of Directors or nomination forelection by the Company’s stockholders was approved by a vote of at least amajority of the directors then comprising the Incumbent Board.

 

(f)*                                    IndemnifiableEvent:*  shall mean any actual oralleged act, omission, statement, misstatement, event or occurrence related tothe fact that Indemnitee is or was a director, officer, agent or fiduciary ofthe Company, or is or was serving at the request of the Company as a director,officer, trustee, agent or fiduciary of another corporation, partnership, jointventure, employee benefit plan, trust or other enterprise, or by reason of anyactual or alleged thing done or not done by Indemnitee in any such capacity.For purposes of this Agreement, the Company agrees that Indemnitee’s service onbehalf of or with respect to any Subsidiary or employee benefits plan of theCompany or any Subsidiary of the Company shall be deemed to be at the requestof the Company.

 

(g)*                                 IndemnifiableLiabilities:*  shall mean all Expensesand all other liabilities, damages (including, without limitation, punitive,exemplary, and the multiplied portion of any damages), judgments, payments,fines, penalties, amounts paid in settlement and awards paid or incurred thatarise out of, or in any way relate to, any Indemnifiable Event.

 

(h)*                                 Person:* shall mean any person or entity of anynature whatsoever, specifically including an individual, a firm, a company, acorporation, a partnership, a trust or other entity. A Person, together withthat Person’s Affiliates and Associates (as those terms are defined inRule 12b-2 under the Exchange Act), and any Persons acting as apartnership, limited partnership, joint venture, association, syndicate orother group (whether or not formally organized), or otherwise acting jointly orin concert or in a coordinated or consciously parallel manner (whether or notpursuant to any express agreement), for the purpose of acquiring, holding,voting or disposing of securities of the Company with such Person, shall bedeemed a single “Person.”

 

(i)*                                     PotentialChange in Control:*  shall be deemedto have occurred if (i) the Company enters into an agreement, theconsummation of which would result in the occurrence of a Change in Control;(ii) any Person (including the Company) publicly announces an intention totake or to consider taking actions that, if consummated, would constitute aChange in Control; or (iii) the Board of Directors of the Company adopts aresolution to the effect that, for purposes of this Agreement, a PotentialChange in Control has occurred.

 

(j)*                                     ReviewingParty:*  shall mean any appropriateperson or body consisting of a member or members of the Company’s Board ofDirectors or any other person or body appointed by the Board (including SpecialCounsel referred to in Section 3) who is not a party to the particularClaim for which Indemnitee is seeking indemnification.

 

----

 

(k)*                                  SpecialCounsel:*  shall mean special,independent counsel selected by Indemnitee and approved by the Company (whichapproval shall not be unreasonably withheld), and who has not otherwiseperformed services for the Company or for Indemnitee within the last threeyears (other than as Special Counsel under this Agreement or similaragreements).

 

(l)*                                     Subsidiary:*  shall mean, with respect to any Person, anycorporation or other entity of which a majority of the voting power of thevoting equity securities or equity interest is owned, directly or indirectly,by that Person.

 

(m)*                               VotingSecurities:*  shall mean anysecurities that vote generally in the election of directors, in the admissionof general partners, or in the selection of any other similar governing body.

 

2.*                                       Indemnificationand Expense Advancement.*

 

(a)                                  TheCompany shall indemnify Indemnitee and hold Indemnitee harmless to the fullestextent permitted by law, as soon as practicable but in any event no later than30 days after written demand is presented to the Company, from and againstany and all Indemnifiable Liabilities. Notwithstanding the foregoing, theobligations of the Company under this Section 2(a) shall be subject to thecondition that the Reviewing Party shall not have determined (in a writtenopinion, in any case in which Special Counsel is involved) that Indemnitee isnot permitted to be indemnified under applicable law. Nothing contained in thisAgreement shall require any determination under this Section 2(a) to bemade by the Reviewing Party prior to the disposition or conclusion of the Claimagainst the Indemnitee.

 

(b)                                 Ifso requested in writing by Indemnitee, the Company shall advance to Indemniteeall Expenses incurred by Indemnitee (or, if applicable, reimburse Indemniteefor any and all Expenses incurred by Indemnitee and previously paid byIndemnitee) (an “Expense Advance”) within ten business days after such requestand delivery by Indemnitee of an undertaking to repay Expense Advances if andto the extent such undertaking is required by applicable law prior to theCompany’s payment of Expense Advances. The Company shall be obligated from timeto time at the request of Indemnitee to make or pay an Expense Advance inadvance of the final disposition or conclusion of any Claim. In connection withany request for an Expense Advance, if requested by the Company, Indemnitee orIndemnitee’s counsel shall submit an affidavit stating that the Expenses towhich the Expense Advances relate are reasonable. Any dispute as to thereasonableness of any Expense shall not delay an Expense Advance by theCompany. If, when, and to the extent that the Reviewing Party determines thatIndemnitee would not be permitted to be indemnified with respect to a Claimunder applicable law, the Company shall be entitled to be reimbursed byIndemnitee and Indemnitee hereby agrees to reimburse the Company withoutinterest (which agreement shall be an unsecured obligation of Indemnitee) forall related Expense Advances theretofore made or paid by the Company; provided,however, that if Indemnitee has commenced legal proceedings in a court ofcompetent jurisdiction to secure a determination that Indemnitee could beindemnified under applicable law, any determination made by the Reviewing Partythat Indemnitee would not be permitted to be indemnified under applicable lawshall not be binding, and Indemnitee shall not be required to reimburse theCompany for any Expense Advance, and the Company shall be obligated to continueto make Expense Advances, until a final judicial determination is made withrespect thereto (as to which all rights of appeal therefrom have been exhaustedor lapsed). If there has not been a Potential Change in Control or a Change in Control,the Reviewing Party shall be selected by the Board of Directors of the Company.If there has been a Potential Change in Control or a Change in Control, theReviewing Party shall be advised by or shall be Special Counsel referred to in Section 3hereof, if and as Indemnitee so requests. If there has been no determination bythe Reviewing Party or if the Reviewing Party determines that Indemniteesubstantively would not be permitted to be indemnified in whole or part underapplicable law, Indemnitee shall have the right to commence litigation in anycourt in the states of Texas or Delaware having subject matter jurisdictionthereof and in which venue is proper seeking an initial determination by thecourt or challenging any such determination by the Reviewing Party or anyaspect thereof, and the Company hereby consents to service of process and toappear in any such proceeding. Any determination by the Reviewing Partyotherwise shall be conclusive and binding on the Company and Indemnitee.

 

3.*                                       Changein Control.*  The Company agrees that,if there is a Potential Change in Control or a Change in Control and ifIndemnitee requests in writing that Special Counsel advise the Reviewing Partyor be the Reviewing Party, then the Company shall not (i) deny any indemnificationpayments (and Expense Advances shall continue to be paid by the Companypursuant to Section 2(b)) that Indemnitee requests or demands under thisAgreement or any other agreement or law now or hereafter in effect relating toClaims for Indemnifiable Events, or (ii) request or seek reimbursementfrom Indemnitee of any indemnification payment or Expense Advances unless, ineither case, Special Counsel has rendered its written opinion to the Companyand Indemnitee that the Company was not or is not permitted under applicablelaw to pay Indemnitee and to allow Indemnitee to retain such indemnificationpayment or Expense Advances. However, if Indemnitee has commenced legalproceedings in a court of competent jurisdiction to secure a determination thatIndemnitee could be indemnified under applicable law, any determination made bySpecial Counsel that Indemnitee would not be permitted to be indemnified underapplicable law

 

----

 

shall not be binding, and Indemnitee shall not be required to reimbursethe Company for any Expense Advance, and the Company shall be obligated tocontinue to make Expense Advances, until a final judicial determination is madewith respect thereto (as to which all rights of appeal therefore have beenexhausted or lapsed). The Company agrees to pay the reasonable fees of SpecialCounsel and to indemnify Special Counsel against any and all expenses(including attorneys’ fees), claims, liabilities and damages arising out of orrelating to this Agreement or Special Counsel’s engagement pursuant hereto.

 

4.*                                       Establishmentof Trust.*  In the event of aPotential Change in Control or a Change in Control, the Company shall, uponwritten request by Indemnitee, create a trust for the benefit of Indemnitee(the “Trust”) and from time to time upon written request of Indemnitee shallfund the Trust in an amount equal to all Indemnifiable Liabilities reasonablyanticipated at the time to be incurred in connection with any Claim. The amountto be deposited in the Trust pursuant to the foregoing funding obligation shallbe determined by the Reviewing Party. The terms of the Trust shall providethat, upon a Change in Control, (i) the Trust shall not be revoked or theprincipal thereof invaded, without the written consent of Indemnitee; (ii) thetrustee of the Trust shall advance, within ten business days of a request byIndemnitee, any and all Expenses to Indemnitee (and Indemnitee hereby agrees toreimburse the Trust under the circumstances in which Indemnitee would berequired to reimburse the Company for Expense Advances under this Agreement);(iii) the Trust shall continue to be funded by the Company in accordancewith the funding obligation set forth above; (iv) the trustee of the Trustshall promptly pay to Indemnitee all amounts for which Indemnitee shall beentitled to indemnification pursuant to this Agreement or otherwise; and(v) all unexpended funds in that Trust shall revert to the Company upon afinal determination by the Reviewing Party or a court of competentjurisdiction, as the case may be, that Indemnitee has received amounts, if any,which fully satisfy the Company’s obligation to indemnify Indemnitee under theterms of this Agreement. The trustee of the Trust shall be chosen byIndemnitee. Nothing in this Section 4 shall relieve the Company of any ofits obligations under this Agreement.

 

5.*                                       Indemnificationfor Additional Expenses.*  The Companyshall indemnify Indemnitee against any and all costs and expenses (includingattorneys’ and expert witnesses’ fees) and, if requested by Indemnitee, shall(within two business days of that request) advance those costs and expenses toIndemnitee, that are incurred by Indemnitee if Indemnitee, whether by formalproceedings or through demand and negotiation without formal proceedings:(a) seeks to enforce Indemnitee’s rights under this Agreement,(b) seeks to enforce Indemnitee’s rights to expense advancement orindemnification under any other agreement or provision of the Company’sCertificate of Incorporation (the “Certificate of Incorporation”), or Bylaws(the “Bylaws”), now or hereafter in effect relating to Claims for IndemnifiableEvents, or (c) seeks recovery under any directors’ and officers’ liabilityinsurance policies maintained by the Company, in each case regardless ofwhether Indemnitee ultimately prevails. To the fullest extent permitted by law,the Company waives any and all rights that it may have to recover its costs andexpenses from Indemnitee.

 

6.*                                       PartialIndemnity.*  If Indemnitee is entitledunder any provision of this Agreement to indemnification by the Company forsome, but not all, of Indemnitee’s Indemnifiable Liabilities, the Company shallindemnify Indemnitee for the portion thereof to which Indemnitee is entitled.

 

7.*                                       Contribution.*

 

(a)*                                  ContributionPayment.*  To the extent theindemnification provided for under any provision of this Agreement isdetermined (in the manner hereinabove provided) not to be permitted underapplicable law, the Company, in lieu of indemnifying Indemnitee, shall, to theextent permitted by law, contribute to the amount of any and all IndemnifiableLiabilities incurred or paid by Indemnitee for which such indemnification isnot permitted. The amount the Company contributes shall be in such proportionas is appropriate to reflect the relative fault of Indemnitee, on the one hand,and of the Company and any and all other parties (including officers anddirectors of the Company other than Indemnitee) who may be at fault(collectively, including the Company, the “Third Parties”), on the other hand.

 

(b)*                                 RelativeFault.*  The relative fault of theThird Parties and the Indemnitee shall be determined (i) by reference tothe relative fault of Indemnitee as determined by the court or othergovernmental agency or (ii) to the extent such court or other governmentalagency does not apportion relative fault, by the Reviewing Party (which shallinclude Special Counsel) after giving effect to, among other things, therelative intent, knowledge, access to information and opportunity to prevent orcorrect the relevant events, of each party, and other relevant equitableconsiderations. The Company and Indemnitee agree that it would not be just andequitable if contribution were determined by pro rata allocation or by anyother method of allocation which does take account of the equitableconsiderations referred to in this Section 7(b).

 

8.*                                       Burdenof Proof.*  In connection with anydetermination by the Reviewing Party or otherwise as to whether Indemnitee isentitled to be indemnified under any provision of this Agreement or to receivecontribution pursuant to Section 7 of

 

----

 

this Agreement, to the extent permitted by law the burden of proofshall be on the Company to establish that Indemnitee is not so entitled.

 

9.*                                       NoPresumption.*  For purposes of thisAgreement, the termination of any Claim by judgment, order, settlement (whetherwith or without court approval), or conviction, or upon a plea of nolocontendere, or its equivalent, or an entry of an order of probation prior tojudgment shall not create a presumption (other than any presumption arising asa matter of law that the parties may not contractually agree to disregard) thatIndemnitee did not meet any particular standard of conduct or have anyparticular belief or that a court has determined that indemnification is not permittedby applicable law.

 

10.*                                 Non-Exclusivity.*  The rights of Indemnitee hereunder shall bein addition to any other rights Indemnitee may have under the Bylaws orCertificate of Incorporation or the Delaware General Corporation Law orotherwise. To the extent that a change in the Delaware General Corporation Law(whether by statute or judicial decision) permits greater indemnification byagreement than would be afforded currently under the Bylaws or Certificate ofIncorporation and this Agreement, it is the intent of the parties hereto thatIndemnitee shall enjoy by this Agreement the greater benefits so afforded bythat change. Indemnitee’s rights under this Agreement shall not be diminishedby any amendment to the Certificate of Incorporation or Bylaws, or of any otheragreement or instrument to which Indemnitee is not a party, and shall notdiminish any other rights which Indemnitee now or in the future has against theCompany.

 

11.*                                 LiabilityInsurance.*  Except as otherwiseagreed to by the Company and Indemnitee in a written agreement, to the extentthe Company maintains an insurance policy or policies providing directors’ andofficers’ liability insurance, Indemnitee shall be covered by that policy orthose policies, in accordance with its or their terms, to the maximum extent ofthe coverage available for any Company director or officer.

 

12.*                                 Periodof Limitations.*  No action, lawsuitor proceeding may be brought against Indemnitee or Indemnitee’s spouse, heirs,executors or personal or legal representatives, nor may any cause of action beasserted in any such action, lawsuit or proceeding, by or on behalf of theCompany, after the expiration of two years after the statute of limitationscommences with respect to Indemnitee’s act or omission which gave rise to theaction, lawsuit, proceeding or cause of action; provided, however, that, if anyshorter period of limitations is otherwise applicable to any such action,lawsuit, proceeding or cause of action, the shorter period shall govern.

 

13.*                                 Amendments.*  No supplement, modification, or amendment ofthis Agreement shall be binding unless executed in writing by both of theparties hereto. No waiver of any provision of this Agreement shall be effectiveunless in a writing signed by the party granting the waiver. No waiver of anyof the provisions of this Agreement shall be deemed or shall constitute awaiver of any other provisions hereof (whether or not similar) nor shall thatwaiver constitute a continuing waiver.

 

14.*                                 OtherSources.*  Indemnitee shall not berequired to exercise any rights that Indemnitee may have against any otherPerson (for example, under an insurance policy) or before Indemnitee enforceshis rights under this Agreement. However, to the extent the Company actuallyindemnifies Indemnitee or advances him Expenses, the Company shall besubrogated to the rights of Indemnitee and shall be entitled to enforce anysuch rights which Indemnitee may have against third parties. Indemnitee shallassist the Company in enforcing those rights if it pays his costs and expensesof doing so. If Indemnitee is actually indemnified or advanced Expenses by anythird party, then, for so long as Indemnitee is not required to disgorge theamounts so received, to that extent the Company shall be relieved of it obligationto indemnify Indemnitee or advance Indemnitee Expenses.

 

15.*                                 BindingEffect.*  This Agreement shall bebinding upon and inure to the benefit of and be enforceable by the partieshereto and their respective successors, assigns (including any direct orindirect successor by purchase, merger, consolidation or otherwise to all orsubstantially all of the business or assets of the Company), spouses, heirs andpersonal and legal representatives. This Agreement shall continue in effectregardless of whether Indemnitee continues to serve as an officer or directorof the Company or another enterprise at the Company’s request.

 

16.*                                 Severability.*  If any provision of this Agreement is held tobe illegal, invalid or unenforceable under present or future laws effectiveduring the term hereof, that provision shall be fully severable; this Agreementshall be construed and enforced as if that illegal, invalid or unenforceableprovision had never comprised a part hereof; and the remaining provisions shallremain in full force and effect and shall not be affected by the illegal,invalid or unenforceable provision or by its severance from this Agreement.Furthermore, in lieu of that illegal, invalid or unenforceable provision, thereshall be added automatically as a part of this Agreement a provision as similarin terms to the illegal, invalid or unenforceable provision as may be possibleand be legal, valid and enforceable.

 

----

 

17.*                                 GoverningLaw.*  This Agreement shall begoverned by and construed and enforced in accordance with the laws of the Stateof Delaware applicable to contracts made and to be performed in that statewithout giving effect to the principles of conflicts of laws.

 

18.*                                 Headings.*  The headings contained in this Agreement arefor reference purposes only and shall not affect in any way the meaning orinterpretation of this Agreement.

 

19.*                                 Notices.*  Whenever this Agreement requires or permitsnotice to be given by one party to the other, such notice must be in writing tobe effective and shall be deemed delivered and received by the party to whom itis sent upon actual receipt (by any means) of such notice. Receipt of a noticeby the Secretary of the Company shall be deemed receipt of such notice by theCompany.

 

20.*                                 CompleteAgreement.*  This Agreement constitutesthe complete understanding and agreement among the parties with respect to thesubject matter hereof and supersedes all prior agreements and understandingsbetween the parties with respect to the subject matter hereof.

 

21.*                                 Counterparts.*  This Agreement may be executed in any numberof counterparts, each of which shall be deemed an original, but in making proofhereof it shall not be necessary to produce or account for more than one suchcounterpart.

 

[THE REMAINDER OF PAGE IS INTENTIONALLYBLANK]

 

----

 

EXECUTED as of the date first written above.

 
|   | **TRAMMELL CROW COMPANY,** |
|--------|----------------------------|
|   | ** **                 | ** ** |
|   | By:                        |   |   |
|   |                       |   |   |
|   |                       |   |   |
|   |                       |   |
|   |                       | * * |
|   | **INDEMNITEE**             |
|   |                       | ** ** |
|   | By:                        |   |   |
|   |                       |   |   |

 

----

 

**SCHEDULE**

**INDEMNIFICATION AGREEMENTS**

 

Following is a list of the officers and directors of the Company whohave entered into agreements substantially identical to the Indemnification Agreementfiled herewith.

 
| **Individual  Indemnitee** | ** ** | **Date of Agreement**   |
|----------------------------|------------|-------------------------|
| Robert  E. Sulentie        | ** ** | September 21, 1997      |
| William F. Concannon       |       | September 21, 1997      |
| J. McDonald Williams       |       | September 21, 1997      |
| James R. Erwin             |       | November 24, 1997  |
| Jeffrey M. Heller          |       | November 24, 1997  |
| Rowland T. Moriarty        |       | December 16, 1997  |
| Curtis Feeny               |       | May 25, 2001       |
| James R. Groch             |       | May 25, 2001       |
| Derek R. McClain           |       | May 25, 2001       |
| T. Christopher Roth        |       | May 25, 2001       |
| John A. Stirek             |       | May 25, 2001       |
| E.S. Belcher               |       | May 25, 2001       |
| Michael J. Lafitte    |       | August 27, 2002    |
| Diane S. Detering-Paddison |       | January 6, 2004    |
| Matthew S. Khourie         |       | July 28, 2004      |
| J. Christopher Kirk        |       | August 18, 2004    |
| Michael A. Moses           |       | September 28, 2004 |
| Arlin E. Gaffner           |       | November 5, 2004        |

 

----