Exhibit
10.5


 


 


INDEMNIFICATION AGREEMENT


 


THIS INDEMNIFICATION
AGREEMENT (the “Agreement”) is made as of the [·] day of [    ], 2010 by and
between The Howard Hughes Corporation, a Delaware corporation (the “Company”),
and [·] (the “Indemnitee”).


 


WHEREAS, directors,
officers, and other persons in service to corporations or business enterprises
are being increasingly subjected to expensive and time-consuming litigation
relating to, among other things, matters that traditionally would have been
brought only against the Company or business enterprise itself;


 


WHEREAS, highly competent
persons have become more reluctant to serve corporations as directors, officers
or in other capacities unless they are provided with adequate protection
through insurance or adequate indemnification against risks of claims and
actions against them arising out of their service to and activities on behalf
of the corporation;


 


WHEREAS, the Board of
Directors of the Company (the “Board of Directors”) has determined that
the increased difficulty in attracting and retaining such persons is
detrimental to the best interests of the Company’s stockholders and that the
Company should act to assure such persons that there will be increased
certainty of such protection in the future;


 


WHEREAS, it is reasonable,
prudent and necessary for the Company contractually to obligate itself to
indemnify, and to advance expenses on behalf of, such persons to the fullest
extent permitted by applicable law so that they will serve or continue to serve
the Company free from undue concern that they will not be so indemnified;


 


WHEREAS, although the
[Amended and Restated] Certificate of Incorporation of the Company (the “Certificate”)
and the [Amended and Restated] Bylaws of the Company (the “Bylaws”)
require indemnification of the officers and directors of the Company under the
circumstances specified therein, and Indemnitee may also be entitled to
indemnification pursuant to the General Corporation Law of the State of
Delaware (“DGCL”), the Certificate, the Bylaws and the DGCL expressly
provide that the indemnification provisions set forth therein are not
exclusive, and authorize the Company to enter into contracts between the
Company and members of the board of directors, officers and other persons with
respect to indemnification; and


 


WHEREAS, this Agreement is a
supplement to and in furtherance of the Certificate and the Bylaws and any
resolutions adopted pursuant thereto, and shall not be deemed a substitute
therefor, nor to diminish or abrogate any rights of Indemnitee thereunder.


 


NOW, THEREFORE, in
consideration of Indemnitee’s agreement to serve or continue serving as a
director or officer, or both, of the Company after the date hereof, the parties
hereto agree as follows:


 

















 


1.                                      Definitions.  For purposes of this Agreement:


 


(a)                                 “Change in
Control” shall mean a change in control of the Company occurring after the
date hereof of a nature that would be required to be reported in response to
Item 6(e) on Schedule 14A of Regulation 14A (or in response to any similar
item on any similar schedule or form) promulgated under the Securities Exchange
Act of 1934, as amended (the “Act”), whether or not the Company is then
subject to such reporting requirement; provided, however, that,
without limitation, a Change in Control shall include: (i) the acquisition
(other than acquisition by or from the Company) after the date hereof by any
person, entity or “group,” within the meaning of Section 13(d)(3) or
14(d)(2) of the Act (excluding, for this purpose, the Company or its
subsidiaries, any employee benefit plan of the Company or its subsidiaries that
acquires beneficial ownership of voting securities of the Company, and any
qualified institutional investor that meets the requirements of Rule 13d-1(b)(1) promulgated
under the Act) of beneficial ownership (within the meaning of Rule 13d-3
promulgated under the Act), of 50% or more of either the then-outstanding
shares of common stock or the combined voting power of the Company’s
then-outstanding capital stock entitled to vote generally in the election of
directors; (ii) individuals who, as of the date hereof, constitute the
Board of Directors (the “Incumbent Board”) ceasing for any reason to
constitute at least a majority of the Board of Directors, provided that any
person becoming a director subsequent to the date hereof whose election, or
nomination for election by the Company’s stockholders was approved by a vote of
at least a majority of the directors then comprising the Incumbent Board (other
than an election or nomination of an individual whose initial assumption of
office is in connection with an actual or threatened election contest relating
to the election of the directors of the Company) shall be, for purposes of this
Agreement, considered as though such person were a member of the Incumbent
Board; or (iii) approval by the stockholders of the Company of (A) a
reorganization, merger or consolidation, in each case, with respect to which
persons who were the stockholders of the Company immediately prior to such
reorganization, merger or consolidation do not, immediately thereafter, own
more than 50% of the combined voting power entitled to vote generally in the
election of directors of the reorganized, merged, consolidated or other
surviving corporation’s then-outstanding voting securities, (B) a
liquidation or dissolution of the Company, or (C) the sale of all or
substantially all of the assets of the Company.


 


(b)                                 “Corporate
Status” describes the status of a person who is or was a director, officer,
employee, agent or fiduciary of the Company or of any other corporation,
partnership, limited liability company, joint venture, trust, employee benefit
plan or other enterprise that such person is or was serving in a similar
capacity at the written request of the Company.


 


(c)                                  “Disinterested
Director” means a director of the Company who is not and was not a party to
the Proceeding in respect of which indemnification or advancement is sought by
Indemnitee.


 


(d)                                 “Enterprise”
shall mean the Company and any other corporation, partnership, limited
liability company, joint venture, trust, employee benefit plan or other
enterprise that Indemnitee is or was serving at the written request of the
Company as a director, officer, employee, agent or fiduciary.


 


2

















 


(e)                                  “Expenses”
shall include all reasonable attorneys’ fees, retainers, disbursements of
counsel, court costs, filing fees, transcript costs, fees and expenses of
experts, witness fees and expenses, travel expenses, duplicating and imaging
costs, printing and binding costs, telephone charges, facsimile transmission
charges, computer legal research costs, postage, delivery service fees and all
other disbursements or expenses of the types customarily incurred in connection
with prosecuting, defending, preparing to prosecute or defend, investigating,
participating, or being or preparing to be a witness in a Proceeding, as well
as all other “expenses” within the meaning of that term as used in Section 145
of the General Corporation Law of the State of Delaware and all other
disbursements or expenses of types customarily and reasonably incurred in
connection with prosecuting, defending, preparing to prosecute or defend,
investigating, being or preparing to be a witness in, or otherwise participating
in, actions, suits, or proceedings similar to or of the same type as the
Proceeding with respect to which such disbursements or expenses were incurred;
but, notwithstanding anything in the foregoing to the contrary, “Expenses”
shall not include amounts of judgments, penalties, or fines actually levied
against the Indemnitee in connection with any Proceeding.  Expenses also shall include the foregoing
incurred in connection with any appeal resulting from any Proceeding, including
without limitation the premium, security for, and other costs relating to any
cost bond, supersedeas bond, or other appeal bond or its equivalent.


 


(f)                                   “Independent
Counsel” means a law firm, a member of a law firm or an independent
practitioner that is experienced in matters of corporation law and
indemnification issues and neither presently is, nor in the past five years has
been, retained to represent:  (i) the
Company or Indemnitee in any matter material to either such party (other than
with respect to matters concerning Indemnitee under this Agreement, or of other
indemnitees under similar indemnification agreements), or (ii) any other
party to the Proceeding giving rise to a claim for indemnification
hereunder.  Notwithstanding the
foregoing, the term “Independent Counsel” shall not include any person who,
under the applicable standards of professional conduct then prevailing, would
have a conflict of interest in representing either the Company or Indemnitee in
an action to determine Indemnitee’s rights under this Agreement.


 


(g)                                  “Proceeding”
includes any threatened, pending or completed action, suit, arbitration,
alternate dispute resolution mechanism, investigation (including any internal
investigation), inquiry, administrative hearing or any other actual, threatened
or completed proceeding, whether brought by or in the right of the Company or
otherwise and whether civil, criminal, administrative or investigative, in
which Indemnitee was, is or will be involved as a party or otherwise, by reason
of the fact that Indemnitee is or was an officer or director of the Company, by
reason of any action taken by Indemnitee or of any inaction on such Indemnitee’s
part while acting as an officer or director of the Company, or by reason of the
fact that such Indemnitee is or was serving at the request of the Company as a
director, officer, employee, agent or fiduciary of another corporation,
partnership, joint venture, trust or other Enterprise; in each case whether or
not he is acting or serving in any such capacity at the time any liability or
expense is incurred for which indemnification can be provided under this
Agreement; including one pending on or before the date of this Agreement, but
excluding one initiated by an Indemnitee pursuant to Section 8 of
this Agreement to enforce such Indemnitee’s rights under this Agreement.


 


3

















 


(h)                                 References
herein to “fines” shall not include any excise tax assessed with respect to any
employee benefit plan.


 


(i)                                     References
herein to a director of another Enterprise or a director of an other Enterprise
shall include, in the case of any entity that is not managed by a board of
directors, such other position, such as manager or trustee or member of the
governing body of such entity, that entails responsibility for the management
and direction of such entity’s affairs, including, without limitation, the
general partner of any partnership (general or limited) and the manager or
managing member of any limited liability company.


 


(j)                                    (i) References
herein to serving at the request of the Company as a director, officer,
employee, agent, or fiduciary of another Enterprise shall include any service
as a director, officer, employee, or agent of the Company that imposes duties
on, or involves services by, such director or officer with respect to an
employee benefit plan of the Company or any of its affiliates, other than
solely as a participant or beneficiary of such a plan; and (ii) if the
Indemnitee has acted in good faith and in a manner the Indemnitee reasonably
believed to be in the interest of the participants and beneficiaries of an
employee benefit plan, the Indemnitee shall be deemed to have acted in a manner
not opposed to the best interests of the Company for purposes of this
Agreement.


 


2.                                      Indemnity of Indemnitee.  The Company hereby agrees to hold harmless
and indemnify Indemnitee to the fullest extent permitted by applicable law, as
such may be amended from time to time. 
In furtherance of the foregoing indemnification, and without limiting
the generality thereof:


 


(a)                                 Proceedings
Other Than Proceedings by or in the Right of the Company.  Except as provided in Section 10
hereof, Indemnitee shall be entitled to the rights of indemnification
provided in this Section 2(a) if, by reason of Indemnitee’s
Corporate Status, the Indemnitee is or was, or is or was threatened to be made,
a party to or is otherwise involved in any Proceeding other than a Proceeding
by or in the right of the Company to procure a judgment in its favor.  Pursuant to this Section 2(a), Indemnitee
shall be indemnified against all Expenses, judgments, penalties, fines,
liabilities and amounts paid in settlement actually and reasonably incurred by
Indemnitee, or on Indemnitee’s behalf, in connection with such Proceeding or
any claim, issue or matter therein, but only if the Indemnitee acted in good
faith and in a manner the Indemnitee reasonably believed to be in or not
opposed to the best interests of the Company, and with respect to any criminal
Proceeding, had no reasonable cause to believe the Indemnitee’s conduct was
unlawful.


 


(b)                                 Proceedings by
or in the Right of the Company.  Except as provided in Section 10
hereof,  Indemnitee shall be entitled to
the rights of indemnification provided in this Section 2(b) if,
by reason of Indemnitee’s Corporate Status, the Indemnitee is or was, or is or
was threatened to be made, a party to or is or was otherwise involved in any
Proceeding brought by or in the right of the Company to procure a judgment in
its favor.  Pursuant to this Section 2(b), Indemnitee
shall be indemnified against all Expenses actually and reasonably incurred by
the Indemnitee, or on the Indemnitee’s behalf, in connection with such
Proceeding or any claim, issue or matter therein, but only if the Indemnitee
acted in good faith and in a manner the Indemnitee reasonably believed to be in
or not opposed to the best interests of the Company; 


 


4

















 


provided, however,
if applicable law so provides, no indemnification for such Expenses shall be
made in respect of any claim, issue or matter in such Proceeding as to which
the Indemnitee shall have been adjudged liable to the Company unless (and only
to the extent that) the Court of Chancery of the State of Delaware or the court
in which such Proceeding was brought shall determine upon application that,
despite the adjudication of liability but in view of all the circumstances of
the case, the Indemnitee is fairly and reasonably entitled to indemnity for
such Expenses that the Court of Chancery or such other court shall deem proper.


 


(c)                                  Overriding
Right to Indemnification if Successful on the Merits.  Notwithstanding any other provision of this
Agreement, to the extent that Indemnitee is or was, by reason of Indemnitee’s
Corporate Status or otherwise, a party to and is or was successful, on the
merits or otherwise, in any Proceeding, he shall be indemnified to the maximum
extent permitted by applicable law, as such may be amended from time to time,
against all Expenses actually and reasonably incurred by Indemnitee or on
Indemnitee’s behalf in connection therewith. 
If Indemnitee is not wholly successful in such Proceeding but is
successful, on the merits or otherwise, as to one or more but less than all
claims, issues or matters in such Proceeding, the Company shall indemnify
Indemnitee to the maximum extent permitted by applicable law, as such may be
amended from time to time, against all Expenses actually and reasonably
incurred by Indemnitee or on Indemnitee’s behalf in connection with each successfully
resolved claim, issue or matter.  For
purposes of this Section and without limitation, the termination of any
claim, issue or matter in such a Proceeding by dismissal, with or without
prejudice, shall be deemed to be a successful result as to such claim, issue or
matter.


 


3.                                      Additional
Indemnity.  In addition
to, and without regard to any limitations on, the indemnification provided for
in Section 2 of this Agreement, the Company shall and hereby does,
to the fullest extent permissible under applicable law, indemnify and hold
harmless Indemnitee against all Expenses, judgments, penalties, fines,
liabilities and amounts paid in settlement actually and reasonably incurred by
Indemnitee or on Indemnitee’s behalf if, by reason of Indemnitee’s Corporate Status,
he is, or is threatened to be made, a party to or participant in any Proceeding
(including a Proceeding by or in the right of the Company), including, without
limitation, all liability arising out of the negligence or active or passive
wrongdoing of Indemnitee.  The only
limitation that shall exist upon the Company’s obligations pursuant to this
Agreement shall be that the Company shall not be obligated to make any payment
to Indemnitee that is finally determined (under the procedures, and subject to
the presumptions, set forth in Section 7 and Section 8
hereof) to be unlawful.


 


4.                                      Contribution.


 


(a)                                 To the fullest
extent permissible under applicable law, whether or not the indemnification
provided in Section 2 and Section 3 hereof is
available, in respect of any threatened, pending or completed action, suit or
proceeding in which the Company is jointly liable with Indemnitee (or would be
if joined in such action, suit or proceeding), the Company shall pay, in the
first instance, the entire amount of any judgment or settlement of such action,
suit or proceeding without requiring Indemnitee to contribute to such payment,
and the Company hereby waives and relinquishes any right of contribution it may
have against Indemnitee.  The Company
shall not enter into any settlement of any action, suit or proceeding in which
the Company is jointly liable with Indemnitee (or would be if joined in such
action, suit or 


 


5

















 


proceeding) unless such
settlement provides for a full and final release of all claims asserted against
Indemnitee.


 


(b)                                 To the fullest
extent permissible under applicable law, without diminishing or impairing the
obligations of the Company set forth in the preceding subparagraph, if, for any
reason, Indemnitee shall elect or be required to pay all or any portion of
any judgment or settlement in any threatened, pending or completed action, suit
or proceeding in which the Company is jointly liable with Indemnitee (or would
be if joined in such action, suit or proceeding), the Company shall contribute
to the amount of Expenses, judgments, fines, liabilities and amounts paid in
settlement actually and reasonably incurred and paid or payable by Indemnitee
in proportion to the relative benefits received by the Company and all
officers, directors or employees of the Company, other than Indemnitee, who are
jointly liable with Indemnitee (or would be if joined in such action, suit or
proceeding), on the one hand, and Indemnitee, on the other hand, from the transaction
from which such action, suit or proceeding arose; provided, however,
that the proportion determined on the basis of relative benefit may, to the
extent necessary to conform to law, be further adjusted by reference to the
relative fault of the Company and all officers, directors or employees of the
Company, other than Indemnitee, who are jointly liable with Indemnitee (or
would be if joined in such action, suit or proceeding), on the one hand, and
Indemnitee, on the other hand, in connection with the events that resulted in
such Expenses, judgments, fines, liabilities or settlement amounts, as well as
any other equitable considerations which the law may require to be
considered.  The relative fault of the
Company and all officers, directors or employees of the Company, other than
Indemnitee, who are jointly liable with Indemnitee (or would be if joined in
such action, suit or proceeding), on the one hand, and Indemnitee, on the other
hand, shall be determined by reference to, among other things, the degree to
which their actions were motivated by intent to gain personal profit or
advantage, the degree to which their liability is primary or secondary and the
degree to which their conduct is active or passive.


 


(c)                                  The Company
hereby agrees to fully indemnify and hold Indemnitee harmless from any claim of
contribution brought by officers, directors or employees of the Company, other
than Indemnitee, who may be jointly liable with Indemnitee.


 


(d)                                 To the fullest
extent permissible under applicable law, if 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, liabilities, 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 under this
Agreement, in such proportion as the Board of Directors deems fair and
reasonable in light of all of the circumstances of such Proceeding in order to
reflect (i) the relative benefits received by the Company (together with
its directors, officers, employees and agents) and Indemnitee as a result of
the event(s) and/or transaction(s) giving cause to such Proceeding;
and/or (ii) the relative fault of the Company (and its directors,
officers, employees and agents) and Indemnitee in connection with such event(s) and/or
transaction(s).


 


5.                                      Indemnification
for Expenses of a Witness. 
Notwithstanding any other provision of this Agreement, to the extent
that Indemnitee is or was, by reason of Indemnitee’s Corporate Status or
otherwise, a witness, or is or was made (or asked) to respond to discovery
requests, in 


 


6

















 


any Proceeding to which
Indemnitee is not a party, he shall be indemnified to the fullest extent
permissible under applicable law against all Expenses actually and reasonably
incurred by Indemnitee or on Indemnitee’s behalf in connection therewith.


 


6.                                      Advancement of
Expenses. 
Notwithstanding any other provision of this Agreement, but subject to Section 9(e) hereof,
the Company shall advance all Expenses incurred by or on behalf of Indemnitee
in connection with any Proceeding by reason of Indemnitee’s Corporate Status or
otherwise within thirty (30) calendar days after the receipt by the Company of
a statement or statements from Indemnitee requesting such advance or advances
from time to time, whether prior to or after final disposition of such
Proceeding.  Such statement or statements
shall reasonably evidence the Expenses incurred by or on behalf of Indemnitee
and for which advancement is requested, and shall include or be preceded or
accompanied by an undertaking by or on behalf of Indemnitee to repay any
Expenses advanced if it shall finally be determined (under the procedures, and
subject to the presumptions, set forth in Section 7 and Section 8
hereof) that Indemnitee is not entitled to be indemnified against such
Expenses.  Such undertaking shall be sufficient
for purposes of this Section 6 if it is substantially in the form
attached hereto as Exhibit A. 
Any advances and undertakings to repay pursuant to this Section 6
shall be unsecured and interest-free.  The Indemnitee shall be entitled to
advancement of Expenses as provided in this Section 6 regardless of
any determination by or on behalf of the Company that the Indemnitee has not
met the standards of conduct set forth in Sections 2(a) and 2(b) hereof.


 


7.                                      Procedures and
Presumptions for Determination of Entitlement to Indemnification.  It is the intent of this Agreement to secure
for Indemnitee rights of indemnity that are as favorable as may be permitted
under the DGCL and public policy of the State of Delaware.  Accordingly, the parties agree that the
following procedures and presumptions shall apply in the event of any question
as to whether Indemnitee is entitled to indemnification under this Agreement:


 


(a)                                 Indemnitee
shall 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.  To obtain indemnification
under this Agreement, the Indemnitee shall submit to the Company a written
request for indemnification, including therein or therewith, except to the
extent previously provided to the Company in connection with a request or
requests for advancement pursuant to Section 6 hereof, a statement
or statements reasonably evidencing all Expenses incurred or paid by or on
behalf of the Indemnitee and for which indemnification is requested, together
with such documentation and information as is reasonably available to
Indemnitee and as is reasonably necessary for the Company to determine whether
and to what extent Indemnitee is entitled to indemnification.  The Secretary of the Company shall, promptly
upon receipt of such a request for indemnification, advise the Board of
Directors in writing that Indemnitee has requested indemnification.  Failure to provide any notice required hereby
shall not impair Indemnitee’s rights of indemnification and contribution under
this Agreement except to the extent that such failure to provide notice
actually and materially prejudices the rights of the Company to defend any
action or proceeding which is the basis of the claimed indemnification.


 


7

















 


(b)                                 Upon written request by Indemnitee for
indemnification pursuant to the second sentence of Section 7(a) hereof,
a determination with respect to Indemnitee’s entitlement thereto shall be made
by the following person or persons, who shall be empowered to make such
determination: (i) if a Change in Control shall have occurred, by
Independent Counsel (unless Indemnitee shall request in writing that such
determination be made by the Board of Directors (or a committee thereof) in the
manner provided for in clause (ii) of this Section 7(b)) in a
written opinion to the Board of Directors, a copy of which shall be delivered
to Indemnitee; or (ii) if a Change of Control shall not have occurred, (A)(1) by
Independent Counsel, if Indemnitee shall request in writing that such
determination be made by Independent Counsel upon making Indemnitee’s request
for indemnification pursuant to the second sentence of Section 7(a),
(2) by the Board
of Directors of the Company, by a majority vote of Disinterested Directors even
though less than a quorum, or (3) by a committee of Disinterested
Directors designated by majority vote of Disinterested Directors, even though
less than a quorum, or (B) if there are no such Disinterested Directors
or, even if there are such Disinterested Directors, if the Board of Directors,
by the majority vote of Disinterested Directors, so directs, by Independent
Counsel in a written opinion to the Board of Directors, a copy of which shall
be delivered to Indemnitee.


 


(c)                                  If the
determination of entitlement to indemnification is to be made by Independent
Counsel pursuant to Section 7(b) hereof, the Independent
Counsel shall be selected by the Board of Directors and approved by
Indemnitee.  Upon failure of the Board of
Directors to so select, or upon the failure of Indemnitee to so approve, such
Independent Counsel within 20 days after submission by Indemnitee of a written
request for indemnification pursuant to Section 7(a) hereof,
the Independent Counsel shall be selected by the Court of Chancery of the State
of Delaware or such other person or body as the Indemnitee and the Company may
agree in writing.  Such determination of
entitlement to indemnification shall be made not later than forty-five (45)
days after receipt by the Company of a written request for
indemnification.  If the person making
such determination shall determine that Indemnitee is entitled to
indemnification as to part (but not all) of the application for indemnification,
such person shall reasonably pro-rate such part of indemnification among such
claims, issues or matters.  If it is so
determined that Indemnitee is entitled to indemnification, payment to
Indemnitee shall be made within ten (10) days after such
determination.  The Company shall pay any
and all reasonable fees and expenses of Independent Counsel incurred by such
Independent Counsel in connection with acting pursuant to Section 7(b) hereof,
and the Company shall pay all reasonable fees and expenses incident to the
procedures of this Section 7(c), regardless of the manner in which
such Independent Counsel was selected or appointed.


 


(d)                                 In connection
with any determination (including a determination by the Court of Chancery of
the State of Delaware (or other court of competent jurisdiction)) with respect
to entitlement to indemnification hereunder, the burden of proof shall be on
the Company to establish that Indemnitee is not entitled to indemnification and
any decision that Indemnitee is not entitled to indemnification must be
supported by clear and convincing evidence. 
The failure of the Company (including by its directors or Independent
Counsel) to have made a determination prior to the commencement of any action
pursuant to this Agreement that indemnification is proper in the circumstances
because Indemnitee has met the applicable standard of conduct, or an actual
determination by the Company (including by its directors or Independent
Counsel) that Indemnitee has not met such applicable standard of conduct, shall
not 


 


8

















 


be a defense to the action
or create a presumption that Indemnitee has not met the applicable standard of
conduct.


 


(e)                                  In making a
determination with respect to whether Indemnitee acted in good faith and in a
manner that Indemnitee reasonably believed to be in or not opposed to the best
interests of the Company, the person or persons or entity making such
determination shall presume that Indemnitee acted in good faith and in a manner
that Indemnitee reasonably believed to be in or not opposed to the best
interests of the Company.  Anyone seeking
to overcome this presumption shall have the burden of proof and any decision
that Indemnitee is not entitled to indemnification must be supported by clear
and convincing evidence.  In addition,
and in no way limiting the provisions of this Section 7, Indemnitee
shall be deemed to have acted in good faith and in a manner Indemnitee
reasonably believed to be in or not opposed to the best interests of the
Enterprise, or with respect to any criminal action or proceeding to have had no
reasonable cause to believe Indemnitee’s conduct was unlawful, if Indemnitee’s
action is based on (i) the records or books of account of the Enterprise, (ii) information
supplied to Indemnitee by the officers of the Enterprise in the course of their
duties, (iii) the advice of legal counsel for the Enterprise or (iv) information
or records given or reports made to the Enterprise by an independent certified
public accountant or by an appraiser or other expert selected with reasonable
care by the Enterprise; provided, however, that any failure by
Indemnitee to act on the advice of legal counsel for the Enterprise shall not,
in and of itself, constitute grounds for an adverse determination with respect
to whether Indemnitee acted in good faith and in a manner that Indemnitee
reasonably believed to be in or not opposed to the best interests of the
Company.  In addition, the knowledge
and/or actions, or failure to act, of any director, officer, agent or employee
of the Enterprise shall not be imputed to Indemnitee for purposes of
determining the right to indemnification under this Agreement.


 


(f)                                   If the person,
persons or entity empowered or selected under this Section 7 to determine
whether Indemnitee is entitled to indemnification shall not have made a
determination within sixty (60) days after receipt by the Company of the
request therefor, the requisite determination of entitlement to indemnification
shall be deemed to have been made and Indemnitee shall be entitled to such
indemnification absent (i) a misstatement by Indemnitee of a material
fact, or an omission of a material fact necessary to make Indemnitee’s
statement not materially misleading, in connection with the request for
indemnification, or (ii) a prohibition of such indemnification under
applicable law; provided, however, that such sixty (60) day
period may be extended for a reasonable time, not to exceed an additional
thirty (30) days, if the person, persons or entity making such determination
with respect to entitlement to indemnification in good faith requires such
additional time to obtain or evaluate documentation and/or information relating
thereto and so notifies the Indemnitee.


 


(g)                                  Indemnitee
shall cooperate with the person, persons or entity making such determination
with respect to Indemnitee’s entitlement to indemnification, including
providing to such person, persons or entity upon reasonable advance request any
documentation or information which is not privileged or otherwise protected
from disclosure and which is reasonably available to Indemnitee and reasonably
necessary to such determination.  Any
Independent Counsel or member of the Board of Directors shall act reasonably
and in good faith in making a determination regarding the Indemnitee’s
entitlement to indemnification under this Agreement.  Any costs or expenses (including attorneys’
fees and disbursements) incurred by 


 


9

















 


Indemnitee in so cooperating
with the person, persons or entity making such determination shall be borne by
the Company (irrespective of the determination as to Indemnitee’s entitlement
to indemnification) and the Company hereby agrees to indemnify and hold
Indemnitee harmless therefrom.


 


(h)                                 The Company
acknowledges that a settlement or other disposition short of final judgment may
be successful if it permits a party to avoid expense, delay, distraction,
disruption and uncertainty.  In the event
that any Proceeding to which Indemnitee is or becomes a party is resolved in
any manner other than by adverse judgment against Indemnitee (including,
without limitation, settlement of such action, claim or proceeding with or
without payment of money or other consideration) it shall be presumed that
Indemnitee has been successful on the merits or otherwise in such
Proceeding.  Anyone seeking to overcome
this presumption shall have the burden of proof and the burden of persuasion by
clear and convincing evidence.


 


(i)                                     The termination
of any Proceeding or of any claim, issue or matter therein, by judgment, order,
settlement or conviction, or upon a plea of nolo contendere or its equivalent,
shall not (except as otherwise expressly provided in this Agreement) of itself
adversely affect the right of Indemnitee to indemnification under this
Agreement or create a presumption that Indemnitee did not act in good faith and
in a manner which he reasonably believed to be in or not opposed to the best
interests of the Company or, with respect to any criminal Proceeding, that
Indemnitee had reasonable cause to believe that Indemnitee’s conduct was
unlawful.


 


8.                                      Remedies of
Indemnitee.


 


(a)                                 In the event
that (i) a determination is made pursuant to Section 7 of this
Agreement that Indemnitee is not entitled to indemnification under this
Agreement, (ii) advancement of Expenses is not timely made pursuant to Section 6
of this Agreement, (iii) no determination of entitlement to
indemnification is made pursuant to Section 7(b) of this
Agreement within ninety (90) days after receipt by the Company of the request
for indemnification, (iv) payment of indemnification is not made pursuant
to this Agreement within fifty-five (55) days after receipt by the Company of a
written request therefor or (v) payment of indemnification is not made
within ten (10) days after a determination has been made that Indemnitee
is entitled to indemnification or such determination is deemed to have been
made pursuant to Section 7 of this Agreement, Indemnitee shall
be entitled to an adjudication in an appropriate court of the State of
Delaware, or in any other court of competent jurisdiction, of Indemnitee’s
entitlement to such indemnification and/or advancement of Expenses.  The Company shall not oppose Indemnitee’s
right to seek any such adjudication.


 


(b)                                 In the event
that a determination shall have been made pursuant to Section 7(b) of
this Agreement that Indemnitee is not entitled to indemnification, any judicial
proceeding commenced pursuant to this Section 8 shall be conducted
in all respects as a de novo trial on the merits, and Indemnitee shall not be
prejudiced by reason of the adverse determination under Section 7(b).


 


(c)                                  If a
determination shall have been made pursuant to Section 7(b) of
this Agreement that Indemnitee is entitled to indemnification, the Company
shall be bound by such determination in any judicial proceeding commenced
pursuant to this Section 8, absent (i) a 


 


10

















 


misstatement by Indemnitee
of a material fact, or an omission of a material fact necessary to make
Indemnitee’s misstatement not materially misleading in connection with the
application for indemnification, or (ii) a prohibition of such
indemnification under applicable law.


 


(d)                                 In the event that (a) the Indemnitee
commences a proceeding seeking (1) to establish or enforce the Indemnitee’s
entitlement to indemnification or advancement pursuant to this Agreement, (2) to
otherwise enforce Indemnitee’s rights under or to interpret the terms of this
Agreement, (3) to recover damages for breach of this Agreement, (4) to
establish or enforce Indemnitee’s entitlement to indemnification or advancement
pursuant to the Certificate or the Bylaws, or (5) to enforce or interpret
the terms of any liability insurance policy maintained by the Company (each
such proceeding an “Indemnitee Enforcement Proceeding”), or (b) the
Company commences a proceeding against the Indemnitee seeking (1) to
recover, pursuant to an undertaking or otherwise, amounts previously advanced
to Indemnitee, (2) to enforce the Company’s rights under or to interpret
the terms of this Agreement, or (3) to recover damages for breach of this
Agreement (each such proceeding a “Company Enforcement Proceeding” and
together with each form of Indemnitee Enforcement Proceeding, an “Enforcement
Proceeding”), then the Indemnitee shall be entitled to recover from the
Company, and shall be indemnified by the Company against, any and all Expenses
actually and reasonably incurred by or on behalf of such Indemnitee in connection
with such Enforcement Proceeding, provided, however, if
applicable law so provides, no indemnification against such Expenses shall be
made in respect of any claim, issue or matter in such Proceeding on which
Indemnitee does not prevail, unless (and only to the extent that) the Court of
Chancery of the State of Delaware or the court in which such Proceeding was
brought shall determine upon application that, despite the adjudication in
respect of such claim, issue or matter but in view of all the circumstances of
the case, the Indemnitee is fairly and reasonably entitled to indemnity for
such Expenses that the Court of Chancery or such other court shall deem
proper.  The Company also shall be
required to advance all Expenses actually and reasonably incurred by or on
behalf of the Indemnitee in connection with any Enforcement Proceeding in
advance of the final disposition of such Enforcement Proceeding within thirty
(30) days after the receipt by the Company of a written request for such
advance or advances from time to time, which request shall include or be
accompanied by a statement or statements reasonably evidencing the Expenses
incurred by or on behalf of the Indemnitee and for which advancement is
requested; provided, however, that any such advancement shall be
made only after the Company receives an undertaking by or on behalf of the
Indemnitee to repay any Expenses so advanced if it shall be finally determined
that Indemnitee is not entitled to be indemnified against such Expenses.


 


(e)                                  The Company
shall be precluded from asserting in any judicial proceeding commenced pursuant
to this Section 8 that the procedures and presumptions of this
Agreement are not valid, binding and enforceable and shall stipulate in any
such court that the Company is bound by all the provisions of this Agreement.


 


(f)                                   Notwithstanding
anything in this Agreement to the contrary, no determination as to entitlement
to indemnification under this Agreement shall be required to be made prior to
the final disposition of the Proceeding.


 


11














 


9.                                       Non-Exclusivity;
Survival of Rights; Insurance; Subrogation.


 


(a)                                  The rights of
indemnification as provided by this Agreement shall not be deemed exclusive of
any other rights to which Indemnitee may at any time be entitled under
applicable law, the Certificate, the Bylaws, any agreement, a vote of
stockholders, a resolution of directors or otherwise.  No amendment, alteration or repeal of this
Agreement or of any provision hereof shall limit or restrict any right of
Indemnitee under this Agreement in respect of any action taken or omitted by
such Indemnitee in Indemnitee’s Corporate Status or otherwise prior to such
amendment, alteration or repeal.  To the
extent that a change in the DGCL or applicable law, whether by statute or
judicial decision, permits greater indemnification or advancement than would be
afforded currently under the Certificate, the Bylaws and this Agreement, it is
the intent of the parties hereto that Indemnitee shall enjoy by this Agreement
the greater benefits so afforded by such change.  No right or remedy herein conferred is
intended to be exclusive of any other right or remedy, and every other right
and remedy shall be cumulative and in addition to every other right and remedy
given hereunder or now or hereafter existing at law or in equity or
otherwise.  The assertion or employment
of any right or remedy hereunder, or otherwise, shall not prevent the
concurrent assertion or employment of any other right or remedy.  Notwithstanding anything in this Agreement to
the contrary, the indemnification and contribution provided for in this
Agreement will remain in full force and effect regardless of any investigation
made by or on behalf of Indemnitee or any of Indemnitee’s agents.


 


(b)                                 To the extent
that the Company maintains an insurance policy or policies providing liability
insurance for directors, officers, employees, or agents or fiduciaries of the
Company or of any other corporation, partnership, limited liability company,
joint venture, trust, employee benefit plan or other Enterprise that such
person serves at the request of the Company, 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 director, officer, employee, agent or
fiduciary under such policy or policies. 
If, at the time of the receipt of a notice of a claim pursuant to the
terms hereof, the Company has director and officer liability or other
applicable 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.


 


(c)                                  Subject to Section 9(f),
except as otherwise agreed between the Company, on the one hand, and Indemnitee
or another indemnitor of Indemnitee, on the other, in the event of any payment
to or on behalf of the Indemnitee under this Agreement, the Company shall be
subrogated to the extent of such payment to all of the rights of recovery of
Indemnitee, who shall execute all papers reasonably required and take all
action reasonably necessary to secure such rights, including execution of such
documents as are necessary to enable the Company to bring suit to enforce such
rights.


 


(d)                                 Subject to Section 9(f),
except as otherwise agreed between the Company, on the one hand, and Indemnitee
or another indemnitor of Indemnitee, on the other, the Company shall not be
liable under this Agreement to make any payment of amounts otherwise indemnifiable
hereunder if and to the extent that Indemnitee has otherwise actually received
such 


 


12

















 


payment under any Company
insurance policy, Company contract, Company agreement or otherwise (except to
the extent that Indemnitee is required (by court order or otherwise) to return
such payment or to surrender it to the Company).


 


(e)                                  Subject to Section 9(f),
except as otherwise agreed between the Company, on the one hand, and Indemnitee
or another indemnitor of Indemnitee, on the other, the Company’s obligation to
indemnify or advance Expenses hereunder to Indemnitee who is or was serving at
the request of the Company as a director, officer, employee or agent of any
other corporation, partnership, limited liability company, joint venture,
trust, employee benefit plan or other Enterprise shall be reduced by any amount
Indemnitee has actually received as indemnification or advancement of expenses
from such other corporation, partnership, limited liability company, joint
venture, trust, employee benefit plan or other enterprise (except to the extent
that Indemnitee is required (by court order or otherwise) to return such
payment or to surrender it to the Company).


 


(f)                                    The Company
hereby acknowledges that Indemnitee is serving as a director or officer of the
Company at the request of the Company or its Board of Directors.  The Company hereby further acknowledges that
Indemnitee might have certain rights to indemnification, advancement of
Expenses and/or insurance coverage provided by one or more third parties other
than the Company and its insurers (collectively, the “Third Party
Indemnitors”).  The Company hereby
agrees that: (i) as between the Company and any Third Party Indemnitor,
the Company is the indemnitor of first resort (i.e., its obligations to
Indemnitee are primary and any obligation of any Third Party Indemnitor to
advance Expenses or to provide indemnification or insurance coverage for the
same Expenses or liabilities incurred by Indemnitee are secondary); (ii) it
shall be required to advance the full amount of Expenses incurred by or on
behalf of Indemnitee and shall be liable for the full amount of all judgments
or amounts paid in settlement to the extent legally permitted and as required
by the terms of this Agreement, the Certificate or the Bylaws (or any other
agreement between the Company and Indemnitee), without regard to any rights
Indemnitee may have against any Third Party Indemnitor; and (iii) it
hereby irrevocably and unconditionally waives, relinquishes and releases any
and all Third Party Indemnitors from any and all claims against the Third Party
Indemnitors (or any of them) for contribution, subrogation or any other
recovery of any kind in respect thereof. 
The Company further agrees that no advancement or payment by any Third
Party Indemnitor on behalf of Indemnitee with respect to any claim for which
Indemnitee has sought indemnification from the Company shall affect the
foregoing in any respect and the Third Party Indemnitors shall have a right of
contribution and/or be subrogated to the extent of such advancement or payment
to all of the rights of recovery of Indemnitee against the Company.  The Company and Indemnitee agree that the
Third Party Indemnitors are express third party beneficiaries of the terms of
this Section 9.


 


10.                                 Exception to
Right of Indemnification. 
Notwithstanding any provision in this Agreement, the Company shall not
be obligated under this Agreement to make any indemnity in connection with any
claim made against Indemnitee:


 


(a)                                  for which
payment has actually been made to or on behalf of Indemnitee under any insurance
policy, or other indemnity provision or otherwise, except with respect to any 


 


13

















 


excess beyond the amount so
paid, and except as may otherwise be agreed between the Company, on the one
hand, and Indemnitee or another indemnitor of Indemnitee, on the other;


 


(b)                                 for an
accounting of profits made from the purchase and sale (or sale and purchase) by
Indemnitee of securities of the Company within the meaning of Section 16(b) of
the Act, as amended, or similar provisions of state statutory law or common
law; or


 


(c)                                  in connection
with any Proceeding (or any part of any Proceeding) initiated by Indemnitee,
including any Proceeding (or any part of any Proceeding) initiated by
Indemnitee against the Company or any of its direct or indirect subsidiaries or
the directors, officers, employees or other indemnitees of the Company or its
direct or indirect subsidiaries (other than any Proceeding initiated by
Indemnitee pursuant to Section 8(d),  which shall be governed by the terms of such
section), unless (i) the Board of Directors of the Company authorized the
Proceeding (or any part of any Proceeding) prior to its initiation or (ii) the
Company provides the indemnification, in its sole discretion, pursuant to the
powers vested in the Company under applicable law.


 


11.                                 Successors.  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
or assets of the Company), assigns, spouses, heirs, executors and personal and
legal representatives.


 


12.                                 Security.  To the extent requested by Indemnitee and
approved by the Board of Directors of the Company, the Company may at any time
and from time to time provide security to Indemnitee for the Company’s
obligations hereunder through an irrevocable bank line of credit, funded trust
or other collateral.  Any such security,
once provided to Indemnitee, may not be revoked or released without the prior
written consent of the Indemnitee.


 


13.                                 Enforcement.


 


(a)                                  The Company
expressly confirms and agrees that it has entered into this Agreement and
assumes the obligations imposed on it hereby in order to induce Indemnitee to
serve or continue serving as an officer or director of the Company, and the
Company acknowledges that Indemnitee is relying upon this Agreement in serving
as an officer or director of the Company.


 


(b)                                 This Agreement
constitutes the entire agreement between the parties hereto with respect to the
subject matter hereof and supersedes all prior agreements and understandings,
oral, written and implied, between the parties hereto with respect to the
subject matter hereof.


 


(c)                                  The Company
represents that this Agreement has been approved by the Company’s Board of
Directors.


 


14.                                 Severability.  The invalidity or unenforceability of any
provision hereof shall in no way affect the validity or enforceability of any
other provision hereof.  Without limiting
the generality of the foregoing, this Agreement is intended to confer upon
Indemnitee 


 


14

















 


indemnification rights to
the fullest extent permitted by applicable laws.  In the event any provision hereof conflicts
with any applicable law, such provision shall be deemed modified, consistent
with the aforementioned intent, to the extent necessary to resolve such
conflict.


 


15.                                 Modification
and Waiver.  No
supplement, modification, termination 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.


 


16.                                 Notice By
Indemnitee.  Indemnitee
agrees to promptly notify the Company in writing upon being served with or
otherwise receiving any summons, citation, subpoena, complaint, indictment,
information or other document relating to any Proceeding or matter which may be
subject to indemnification covered hereunder. 
The failure to so notify the Company shall not relieve the Company of
any obligation which it may have to Indemnitee under this Agreement or
otherwise unless and only to the extent that such failure or delay materially
prejudices the Company.


 


17.                                 Disclosure of
Payments.  Except as
expressly required by any law, neither party shall publicly disclose any
payments under this Agreement unless prior approval of the other party is
obtained.


 


18.                                 Notices.  Unless otherwise provided herein, any notice
required or permitted under this Agreement shall be deemed effective upon the
earlier of (a) actual receipt, or (b) (i) one (1) business
day after the date of delivery by confirmed facsimile transmission, (ii) one
(1) business day after the business day of deposit with a nationally
recognized overnight courier service for next day delivery, freight prepaid, or
(iii) three (3) business days after deposit with the United States
Post Office for delivery by registered or certified mail, postage prepaid.  Any such notice shall be in writing and shall
be addressed to the party to be notified at the address indicated for such
party indicated on the signature pages or exhibits hereto, as otherwise
set forth in this Section 18, or at such other address as such
party may designate by ten (10) days’ advance written notice to the other
parties.  All communications shall be
sent:


 


(a)                                  To Indemnitee
at the address set forth below Indemnitee’s signature hereto;


 


(b)                                 To the Company
at:


 


The
Howard Hughes Corporation


13355
Noel Road, Suite 950


Dallas,
TX 75240


Attention:  General Counsel


Facsimile:  (214) 741-3021


 


or to such other address as
may have been furnished to Indemnitee by the Company or to the Company by
Indemnitee, as the case may be.


 


15

















 


19.                                 Counterparts.  This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same Agreement.  This Agreement may also be executed and
delivered by facsimile or electronic signature.


 


20.                                 Headings.  The headings of the sections and subsections
of this Agreement are inserted for convenience only and shall not be deemed to
constitute part of this Agreement or to affect the construction thereof.


 


21.                                 Governing Law
and Consent to Jurisdiction.  This Agreement and the legal relations among
the parties shall be governed by, and construed and enforced in accordance
with, the laws of the State of Delaware, without regard to its conflict of laws
rules.  The Company and Indemnitee hereby
irrevocably and unconditionally (i) agree that any action or proceeding
arising out of or in connection with this Agreement shall be brought only in
the Chancery Court of the State of Delaware (the “Delaware Court”), and
not in any other state or federal court in the United States of America or any
court in any other country, (ii) consent to submit to the exclusive
jurisdiction of the Delaware Court for purposes of any action or proceeding
arising out of or in connection with this Agreement, (iii) consent to
service of any summons and complaint and any other process that may be served
in any action, suit, or proceeding arising out of or relating to this Agreement
by mailing by certified or registered mail, with postage prepaid, copies of
such process to such party at its address for receiving notice pursuant to Section 18
hereof, (iv) waive any objection to the laying of venue of any such action
or proceeding in the Delaware Court, and (v) waive, and agree not to plead
or to make, any claim that any such action or proceeding brought in the
Delaware Court has been brought in an improper or inconvenient forum.  Nothing herein shall preclude service of
process by any other means permitted by applicable law.


 


22.                                 Assignment.  Neither party hereto may assign this
Agreement without the prior written consent of the other party; provided,
however, that the Company may assign this Agreement upon a Change in
Control.


 


23.                                 Construction.  The parties acknowledge that both parties
have contributed to the drafting of this Agreement and, therefore, waive the
application of any law, regulation, holding or rule of construction
providing that ambiguities in an agreement or other document will be construed
against the party drafting such agreement or document.


 


[signature page follows]


 


16

















 


IN WITNESS WHEREOF, the
parties have executed this Agreement as of the date first above written.


 


 


	
  INDEMNITEE:

  	
   

  
	
   

  	
   

  	
   

  
	
  Signature:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Name:

  	
  [·]

  	
   

  
	
   

  	
   

  	
   

  
	
  Address:

  	
  [·]

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  COMPANY:

  	
   

  
	
   

  	
   

  
	
  THE
  HOWARD HUGHES CORPORATION

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Name:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Title:

  	
  Authorized Officer

  	
   

  
	
   

  	
   

  	
   

  
	
  Address:

  	
   

  	
   

  
	
   

  	
   

  	
   

  



 


[Signature Page to Holdings Indemnification Agreement]


 

















 


Exhibit A


 


UNDERTAKING


 


Reference is hereby made to
that certain Indemnification Agreement, by and between The Howard Hughes Corporation,
a Delaware corporation (the “Company”), and the undersigned, dated as of
[·] (the “Indemnification
Agreement”).  All initially
capitalized terms used herein and not otherwise defined herein shall have the
meanings set forth in the Indemnification Agreement.


 


Pursuant to the
Indemnification Agreement, I,
                                                                                                      ,
agree to reimburse the Company for all Expenses paid to me or on my behalf by
the Company in connection with my involvement in [name or
description of proceeding or proceedings], in the event, and to the
extent, that it shall ultimately be determined (pursuant to the terms of the
Indemnification Agreement) that I am not entitled to be indemnified by the
Company for such Expenses.


 


 


	
   

  	
   

  	
  Signature

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Typed Name

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  ) ss:

  	
   

  	
   

  	
   

  
					



 


Before me                                             ,
on this day personally appeared                                       ,
known to me to be the person whose name is subscribed to the foregoing
instrument, and who, after being duly sworn, stated that the contents of said
instrument is to the best of his/her knowledge and belief true and correct and
who acknowledged that he/she executed the same for the purpose and
consideration therein expressed.


 


GIVEN under my hand and
official seal at
                ,
this               
day of                       ,
20    .


 


 


	
   

  	
   

  
	
   

  	
  Notary
  Public

  
	
   

  	
   

  
	
  My commission expires: