Exhibit 10.6H
INDEMNIFICATION
AGREEMENT
THIS INDEMNIFICATION AGREEMENT is made
and entered into this 14th day of
February, 2007 ("Agreement"), by and
between INLAND WESTERN RETAIL REAL ESTATE TRUST, INC., a
StateplaceMaryland corporation (the "Company"), and Barbara A.
Murphy ("Indemnitee").
WHEREAS, at the request of the Company,
Indemnitee currently serves as a director of the Company and may,
therefore, be subjected to claims, suits or proceedings arising as
a result of his service; and
WHEREAS, as an inducement to Indemnitee
to continue to serve as such director, the Company has agreed to
indemnify and to advance expenses and costs incurred by Indemnitee
in connection with any such claims, suits or proceedings, to the
maximum extent permitted by law; and
WHEREAS, the parties by this Agreement
desire to set forth their agreement regarding indemnification and
advance of expenses;
NOW, THEREFORE, in consideration of the
premises and the covenants contained herein, the Company and
Indemnitee do hereby covenant and agree as follows:
SnplaceSection SnI.
Definitions. For purposes of this Agreement:
(a)
"Change in Control" means a change in
control of the Company occurring after
the Effective Date of a nature that would be required to be
reported in response to Item 6(e) of 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, such a Change in Control shall be deemed to have
occurred if after the Effective Date (i) any "person" (as such term
is used in Sections 13(d) and 14(d) of the Act) is or becomes the
"beneficial owner" (as defined in Rule 13d-3 under the Act),
directly or indirectly, of securities of the Company representing
15% or more of the combined voting power of the Company's then
outstanding securities without the prior approval of at least
two-thirds of the members of the Board of Directors in office
immediately prior to such person attaining such percentage
interest; (ii) there occurs a proxy contest, or the Company is a
party to a merger, consolidation, sale of assets, plan of
liquidation or other reorganization not approved by at least
two-thirds of the members of the Board of Directors then in office,
as a consequence of which members of the Board of Directors in
office immediately prior to such transaction or event constitute
less than a majority of the Board of Directors thereafter; or (iii)
during any period of two consecutive years, other than as a result
of an event described in clause (a)(ii) of this Section 1,
individuals who at the beginning of such period constituted the
Board of Directors (including for this purpose any new director
whose election or nomination for election by the Company's
stockholders was approved by a vote of at least two-thirds of the
directors then still in office who were directors at the beginning
of such period) cease for any reason to constitute at least a
majority of the Board of Directors.
(b)
"Corporate Status" means the status of a
person who is or was a director, trustee, officer, employee or
agent of the Company or of any other corporation, partnership,
joint venture, trust, employee benefit plan or other enterprise for
which such person is or was serving at the 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 is sought by
Indemnitee.
(d)
"Effective Date" means the date set forth
in the first paragraph of this Agreement.
(e)
"Expenses" shall include all reasonable
and out-of-pocket attorneys' fees, retainers, court costs,
transcript costs, fees of experts, witness fees, travel expenses,
duplicating costs, printing and binding costs, telephone charges,
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, or being or preparing to be a witness in a
Proceeding.
(f)
"Independent Counsel" means a law firm,
or a member of a law firm, that is experienced in matters of
corporation law and neither 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, or (ii) any other party to or
witness in 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. If a Change of Control has not occurred, Independent
Counsel shall be selected by the Board of Directors, with the
approval of Indemnitee, which approval will not be unreasonably
withheld. If a Change of Control has occurred, Independent Counsel
shall be selected by Indemnitee, with the approval of the Board of
Directors, which approval will not be unreasonably
withheld.
(g)
"Proceeding" includes any threatened,
pending or completed action, suit, arbitration, alternate dispute
resolution mechanism, investigation, administrative hearing or any
other proceeding, whether civil, criminal, administrative or
investigative (including on appeal), except one pending or
completed on or before the Effective Date, unless otherwise
specifically agreed in writing by the Company and
Indemnitee.
Section 2.
Services by Indemnitee.
Indemnitee will serve as a director of
the Company. However, this Agreement shall not impose any
obligation on Indemnitee or the Company to continue Indemnitee's
service to the Company beyond any period otherwise required by law
or by other agreements or commitments of the parties, if
any.
Section 3.
Indemnification - General.
The Company shall indemnify, and advance
Expenses to, Indemnitee (a) as provided in this Agreement and (b)
otherwise to the maximum extent permitted by Maryland law in effect
on the date hereof and as amended from time to time; provided,
however, that no change in Maryland law shall have the effect of
reducing the benefits available to Indemnitee hereunder based on
Maryland law as in effect on the date hereof. The rights of
Indemnitee provided in this Section 3 shall include, without
limitation, the rights set
forth in the
other sections of this Agreement, including any additional
indemnification permitted by Section 2-418(g) of the Maryland
General Corporation Law ("MGCL").
Section 4.
Proceedings Other Than Proceedings by
or in the Right of the Company. Indemnitee shall be entitled to the rights of
indemnification provided in this Section 4 if, by reason of his
Corporate Status, he is, or is threatened to be, made a party to or
a witness in any threatened, pending, or completed Proceeding,
other than a Proceeding by or in the right of the Company. Pursuant
to this Section 4, Indemnitee shall be indemnified against all
judgments, penalties, fines and amounts paid in settlement and all
Expenses actually and reasonably incurred by him or on his behalf
in connection with a Proceeding by reason of his Corporate Status
unless it is established that (i) the act or omission of Indemnitee
was material to the matter giving rise to the Proceeding and (a)
was committed in bad faith or (b) was the result of active and
deliberate dishonesty, (ii) Indemnitee actually received an
improper personal benefit in money, property or services, or (iii)
in the case of any criminal Proceeding, Indemnitee had reasonable
cause to believe that his conduct was unlawful.
Section 5.
Proceedings by or in the Right of the
Company. Indemnitee shall be
entitled to the rights of indemnification provided in this Section
5 if, by reason of his Corporate Status, he is, or is threatened to
be, made a party to or a witness in any threatened, pending or
completed Proceeding brought by or in the right of the Company to
procure a judgment in its favor. Pursuant to this Section 5,
Indemnitee shall be indemnified against all amounts paid in
settlement and all Expenses actually and reasonably incurred by him
or on his behalf in connection with such Proceeding unless it is
established that (i) the act or omission of Indemnitee was material
to the matter giving rise to such a Proceeding and (a) was
committed in bad faith or (b) was the result of active and
deliberate dishonesty or (ii) Indemnitee actually received an
improper personal benefit in money, property or
services.
Section 6.
Court-Ordered
Indemnification. Notwithstanding any other provision of this
Agreement, a court of appropriate jurisdiction, upon application of
Indemnitee and such notice as the court shall require, may order
indemnification in the following circumstances:
(a)
if it determines Indemnitee is entitled
to reimbursement under Section 2-418(d)(1) of the MGCL, the court
shall order indemnification, in which case Indemnitee shall be
entitled to recover the expenses of securing such reimbursement;
or
(b)
if it determines that Indemnitee is
fairly and reasonably entitled to
indemnification in view of all the
relevant circumstances, whether or not Indemnitee (i) has met the
standards of conduct set forth in Section 2-418(b) of the MGCL or
(ii) has been adjudged liable for receipt of an improper personal
benefit under Section 2-418(c) of the MGCL, the court may order
such indemnification as the court shall deem proper. However,
indemnification with respect to any Proceeding by or in the right
of the Company or in which liability shall have been adjudged in
the circumstances described in Section 2-418(c) of the MGCL shall
be limited to Expenses actually and reasonably incurred by him or
on his behalf in connection with a Proceeding.
Section 7. Indemnification for
Expenses of a Party Who is Wholly or Partly Successful.
Notwithstanding any other provision of this Agreement, and without
limiting any
such provision, to the extent that
Indemnitee is, by reason of his Corporate Status, made a party to
and is successful, on the merits or otherwise, in the defense of
any Proceeding, he shall be indemnified for all Expenses actually
and reasonably incurred by him or on his 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 under this
Section 7 for all Expenses actually and reasonably incurred by him
or on his behalf in connection with each successfully resolved
claim, issue or matter, allocated on a reasonable and proportionate
basis. 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.
Section 8.
Advance of Expenses.
The Company shall advance all reasonable
Expenses actually and reasonably incurred by or on behalf of
Indemnitee in connection with any Proceeding (other than a
Proceeding brought to enforce indemnification under this Agreement,
applicable law, the Charter or Bylaws of the Company, any agreement
or a resolution of the stockholders entitled to vote generally in
the election of directors or of the Board of Directors)
to which Indemnitee is, or is threatened
to be, made a party or a witness, within ten 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 Indemnitee and shall include or be preceded or
accompanied by a written affirmation by Indemnitee of Indemnitee's
good faith belief that the standard of conduct necessary for
indemnification by the Company as authorized by law and by this
Agreement has been met and a written undertaking by or on behalf of
Indemnitee, in substantially the form attached hereto as
Exhibit A or in such form as may be required under
applicable law as in effect at the time of the execution thereof,
to reimburse the portion of any Expenses advanced to Indemnitee
relating to claims, issues or matters in the Proceeding as to which
it shall ultimately be established that the standard of conduct has
not been met and which have not been successfully resolved as
described in Section 7. To the extent that Expenses advanced to
Indemnitee do not relate to a specific claim, issue or matter in
the Proceeding, such Expenses shall be allocated on a reasonable
and proportionate basis. The undertaking required by this Section 8
shall be an unlimited general obligation by or on behalf of
Indemnitee and shall be accepted without reference to Indemnitee's
financial ability to repay such advanced Expenses and without any
requirement to post security therefor.
Section 9.
Procedure for Determination of
Entitlement to Indemnification.
(a)
To obtain indemnification under this
Agreement, Indemnitee shall submit to the Company a written
request, including therein or therewith such documentation and
information as is reasonably available to Indemnitee and is
reasonably necessary 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.
(b)
Upon written request by Indemnitee for
indemnification pursuant to the first sentence of
Section
