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EXHIBIT 10.560
INDEMNIFICATION AGREEMENT
THIS INDEMNIFICATION AGREEMENT is made and entered into this 1
st day of
January, 2008 ("Agreement"), by and between INLAND WESTERN RETAIL
REAL ESTATE TRUST, INC., a placeStateMaryland corporation (the
"Company"), and Richard P. Imperiale ("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:
SnplaceSnSection 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 9(a) hereof, a determination, if
require
