EXHIBIT 10.5 FORM OF INDEMNIFICATION
AGREEMENT BETWEEN THE COMPANY AND ITS DIRECTORS.

 

INDEMNIFICATION AGREEMENT


          AGREEMENT,
effective as of January 30, 1998 between GETTY REALTY CORP., a Maryland
corporation (the “Company”), and ______________________ (the “Director”), a
director of the Company;


          WHEREAS,
in recognition of Director’s need for substantial protection against personal
liability in order to enhance Director’s continued service to the Company in an
effective manner and Director’s reliance on the provisions of the By-Laws
requiring indemnification of the Director under certain circumstances, and in
part to provide Director with specific contractual assurance that the
protection promised by such By-Laws will be available to Director (regardless
of, among other things, any amendment to or revocation of such By-Laws or any
change in the composition of the Company’s Board of Directors or acquisition
transaction relating to the Company), the Company wishes to provide in this
Agreement for the indemnification of and the advancing of expenses to Director
to the full extent (whether partial or complete) permitted by law and as set
forth in this Agreement, and, to the extent insurance is maintained, for the
continued coverage of Director under the Company’s directors’ and officers’
liability insurance policies.


          NOW,
THEREFORE, in consideration of the premises and of Director agreeing to serve
or continuing to serve the Company directly or, at its request, with another
enterprise, and intending to be legally bound hereby, the parties hereto agree
as follows:


          1.
Basic Indemnification Agreement.


                    (a)
In the event Director 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 (as hereinafter defined) by reason of (or arising in
part out of) an Indemnifiable Event (as hereinafter defined), the Company shall
indemnify Director to the fullest extent permitted by law as soon as
practicable but in any event no later than 30 days after written demand is
presented to the Company, against any and all Expenses (as hereinafter defined),
judgment, fines, penalties and amounts paid in settlement of such Claim. If so
requested by Director, the Company shall advance (within ten business days of
such written request) any and all Expenses to Director (an “Expense Advance”).
Notwithstanding anything in this Agreement to the contrary, and except as
provided in Section 3, prior to a Change in Control (as hereinafter defined)
Director shall not be entitled to indemnification pursuant to this Agreement in
connection with any Claim initiated by Director against the Company or any
director or officer of the Company unless the Company has joined in or
consented to the initiation of such Claim.


                    (b)
Notwithstanding the foregoing, (i) the obligations of the Company under Section
1(a) shall be subject to the condition that the Reviewing Party (as hereinafter
defined) shall not have determined (in a written opinion, in any case in which
the special independent counsel referred to in Section 2 is involved) that
Director would not be permitted to be indemnified under applicable law, and
(ii) the obligation of the Company to make an Expense Advance pursuant to
Section 1(a) shall be subject to the condition that, if, when and to the extent
that the Reviewing Party determines that Director would not be permitted to be
so indemnified under applicable law, the Company shall be entitled to be
reimbursed by Director (who hereby agrees to reimburse the


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Company)
for all such amounts theretofore paid; provided, however, that if Director has
commenced legal proceedings in a court of competent jurisdiction to secure a
determination that Director should be indemnified under applicable law, any
determination made by the Reviewing Party that Director would not be permitted
to be indemnified under applicable law shall not be binding and Director shall
not be required to reimburse the Company for any Expense Advance until a final
judicial determination that Director shall reimburse the Company for any
Expense Advance is made with respect thereto (as to which all rights of appeal
therefrom have been exhausted or lapsed). If there has not been a Change in
Control, the Reviewing Party shall be selected by the Board of Directors, and
if there has been such a Change in Control, the Reviewing Party shall be the
special independent counsel referred to in Section 2. The Board of Directors
will appoint the Reviewing Party no later than 10 days after receipt of a
demand for indemnification (including, without limitation, a demand for Expense
Advance). The Reviewing Party shall make his determination no later than 20
days after his appointment. If after 30 days there has been no determination by
the Reviewing Party or if the Reviewing Party determines that Director
substantively would not be permitted to be indemnified in whole or in part
under applicable law, Director shall have the right to commence litigation in
any court in the states of New York or Maryland having subject matter
jurisdiction thereof and in which venue is proper seeking an initial
determination by the court or challenging any such determination by the
Reviewing Party of any aspect thereof, and the Company hereby consents to
service of process and to appear in any such proceeding. Any determination by
the Reviewing Party otherwise shall be conclusive and binding on the Company
and Director.


          2.
Change in Control. The Company agrees that, if there is a Change in Control of
the Company (other than a Change in Control which has been approved by a
majority of the Company’s Board of Directors who were directors immediately
prior to such Change in Control) then with respect to all matters thereafter
arising concerning the rights of Director to indemnity payments and Expense
Advances under this Agreement or any other agreement or Company By-Law now or
hereafter in effect relating to Claims for Indemnifiable Events, the Company
shall seek legal advice only from special independent counsel selected by
Director and approved by the Company (which approval shall not be unreasonably
withheld), and who has not otherwise performed services for the Company within
the last five years (other than in connection with such matters) or for
Director. Such counsel, among other things, shall render a written opinion to
the Company and Director as to whether and to what extent Director would be
permitted to be indemnified under applicable law. The Company agrees to pay the
reasonable fees of the special, independent counsel referred to above and to
fully indemnify such counsel against any and all expenses (including attorneys’
fees), claims, liabilities and damages arising out of or relating to this
Agreement or its engagement pursuant hereto.


          3.
Indemnification for Additional Expenses. The Company shall indemnify Director
against any and all expenses (including attorneys’ fees) and, if requested by
Director, shall (within ten business days of such written request) advance such
expenses to Director, which are incurred by Director in connection with any
claim asserted against or action brought by Director for (i) indemnification or
advance payment of Expenses by the Company under this Agreement or any other
agreement or Company By-Law 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 the Company, regardless of whether
Director ultimately is determined to


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be
entitled to such indemnification, advance expense payment or insurance
recovery, as the case may be.


          4.
Partial Indemnity, Etc. If Director is entitled under any provision of this
Agreement to indemnification by the Company of some or a portion of the
Expenses, judgments, fines, penalties and amounts paid in settlement of a Claim
but not, however, for all of the total amount thereof, the Company shall
nevertheless indemnify Director for the portion thereof to which Director is
entitled. Moreover, notwithstanding any other provision of this Agreement, to
the extent that Director has been successful on the merits or otherwise in
defense of any or all Claims relating in whole or in part to an Indemniflable
Event or in defense of any issue or matter therein, including dismissal without
prejudice, Director shall be indemnified against all Expenses incurred in
connection therewith. In connection with any determination by the Reviewing
Party or otherwise as to whether Director is entitled to be indemnified
hereunder the burden of proof shall be on the Company to establish that
Director is not so entitled.


          5.
No Presumption. For purposes of this Agreement, the termination of any action,
suit or proceeding by judgment, order, settlement (whether with or without
court approval) or conviction, shall not create a presumption that Director 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.


          6.
Non-exclusivity, Etc. The rights of Director hereunder shall be in addition to
any other rights Director may have under the Company’s By-Laws or the Maryland
General Corporation Law or otherwise. To the extent that a change in the
Maryland General Corporation Law (whether by statute or judicial decision), or
the Company’s By-Laws, permits greater indemnification by agreement than would
be afforded currently under the Company’s By-Laws and this Agreement, it is the
intent of the parties hereto that Director shall enjoy by this Agreement the
greater benefits so afforded by such change.


          7.
Liability Insurance. To the extent the Company maintains an insurance policy or
policies providing directors’ and officers’ liability insurance, Director shall
be covered by such policy or policies, in accordance with its or their terms,
to the maximum extent of the coverage reasonably and economically available (as
solely determined by the Board of Directors) for any Company director.


          8.
Certain Definitions:


                    (a)
“Change in Control” shall be deemed to have occurred if (i) any “person (as
such term is used in Sections 13(d) and 14(d) of the Securities Exchange Act of
1934, as amended), other than a trustee or other fiduciary holding securities
under an employee benefit plan of the Company or a corporation owned directly
or indirectly by the stockholders of the Company in substantially the same
proportions as their ownership of stock of the Company, is or becomes the
“beneficial owner” (as defined in Rule 13d-3 under said Act), directly or
indirectly, of securities of the Company representing 20% or more of the total
voting power represented by the Company’s then outstanding Voting Securities,
or (ii) during any period of two consecutive years, individuals who at the
beginning of such two-year period constitute the Board of Directors of the


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Company
and any new director whose election by the Board of Directors or nomination for
election by the Company’s stockholders was approved by a vote of at least
two-thirds (2/3) of the directors then still in office who either were
directors at the beginning of such two-year period or whose election or
nomination for election was previously so approved, cease for any reason to
constitute a majority of the Board of Directors, or (iii) the stockholders of
the Company approve a merger or consolidation of the Company with any other corporation,
other than a merger or consolidation which would result in the Voting
Securities of the Company outstanding immediately prior thereto continuing to
represent (either by remaining outstanding or by being converted into Voting
Securities of the surviving entity) at least 80% of the total voting power
represented by the Voting Securities of the Company or such surviving entity
outstanding immediately after such merger or consolidation, or (iv) the
stockholders of the Company approve a plan of complete liquidation of the
Company or an agreement for the sale or disposition by the Company of all or
substantially all the Company’s assets.


                    (b)
Claim” shall mean any threatened, pending or completed action, suit or
proceeding, or any inquiry or investigation whether conducted by the Company or
any other party, whether civil, criminal, administrative or investigative.


                    (c)
“Expenses” include attorneys’ fees and all other costs, expenses and
obligations paid or incurred in connection with investigating, defending, 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” is any event or occurrence related to the fact that
Director is or was a director, officer, employee, agent or fiduciary of the
Company, or is or was serving at the request of the Company as a director,
officer, employee, trustee, agent or fiduciary of another corporation,
partnership, joint venture, employee benefit plan, trust or other enterprise,
or arising by reason of anything done or not done by Director in any such
capacity.


                    (e)
Reviewing Party” is any appropriate person or body consisting of a member or
members of the Company’s Board of Directors or any other person or body
appointed by the Board (including the special independent counsel referred to
in Section 2) who is not a party to the particular Claim for which Director is
seeking indemnification.


                    (f)
“Voting Securities” are any securities of the Company which vote generally in
the election of directors.


          9.
Amendments and Waiver. 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.


          10.
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 of
Director, who shall execute all papers required and shall do everything that
may be necessary to secure such rights,


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including
the execution of such documents necessary to enable the Company effectively to
bring suit to enforce such rights.


          11.
No Duplication of Payments. The Company shall not be liable under this
Agreement to make any payment in connection with any claim made against
Director to the extent Director has otherwise actually received payment (under
any insurance policy, By-Law or otherwise) of the amounts otherwise
indemnifiable hereunder.


          12.
Binding Effect, Etc. This Agreement shall be binding upon and inure to the
benefit of and be enforceable by the parties hereto and their respective
successors and assigns, including any (i) direct or indirect successor by
purchase, merger, consolidation or otherwise to all or substantially all of the
business and/or assets of the Company, and (ii) spouses, heirs, and personal
and legal representatives. This Agreement shall continue in effect regardless
of whether Director continues to serve as a director (or in one of the
capacities enumerated in Section 8(d) hereof) of the Company or of any other
enterprise at the Company’s request.


          13.Severabi1ity.
The provisions of this Agreement shall be severable in the event that any of
the provisions hereof (including any provisions 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.


          14.
Governing Law. This Agreement shall be governed by and construed and enforced
in accordance with the laws of the State of Maryland applicable to contracts
made and to be performed in such state without giving effect to the principles
of conflicts of laws.


          IN
WITNESS WHEREOF, the parties hereto have executed this Agreement on the day and
year first above written.


	
 

	
 

	
 

	
 


	
ATTEST:

	
 

	
GETTY
 REALTY CORP.


	
 

	
 

	
 

	
 


	
 

	
 

	
By: 

	
(SEAL)


	


	
 

	
 

	



	
Secretary

	
 

	
 

	
Leo
 Liebowitz, President


	
 

	
 

	
 

	
 


	
WITNESS

	
 

	
DIRECTOR


	
 

	
 

	
 

	
 


	


	
 

	
 

	



	
 

	
 

	
 

	
 


	
 

	
 

	
 

	






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