SCHOTTENSTEIN REALTY TRUST, INC. INDEMNIFICATION AGREEMENT
EXHIBIT 10.7
THIS INDEMNIFICATION AGREEMENT (“Agreement”) is made and entered into as of the _____ day of
__________, 2011, by and between Schottenstein Realty Trust, Inc., a Maryland corporation (the
“Company”), and ________________________ (“Indemnitee”).
WHEREAS, at the request of the Company, Indemnitee currently serves as [a director] [and] [an
officer] of the Company and may, therefore, be subjected to claims, suits or proceedings arising as
a result of [his][her] service; and
WHEREAS, as an inducement to Indemnitee to serve or continue to serve as [a director] [and]
[an officer], 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:
Section 1. 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 “Exchange 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 Exchange Act) is or becomes the
“beneficial owner” (as defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of
securities of the Company representing 15% or more of the combined voting power of all of the
Company’s then-outstanding securities entitled to vote generally in the election of directors
without the prior approval of at least two-thirds of the members of the Board of Directors in
office immediately prior to such person’s 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) at any time, a majority of the members of the Board of Directors are
not individuals (A) who were directors as of the Effective Date or (B) whose election by the Board
of Directors or nomination for election by the Company’s stockholders was approved by the
affirmative vote of at least two-thirds of the
directors then in office who were directors as of the Effective Date or whose election for
nomination for election was previously so approved.
(b) “Corporate Status” means the status of a person as a present or former director, trustee,
officer, employee or agent of the Company or as a director, trustee, officer, partner, manager,
managing member, fiduciary, employee or agent of any other foreign or domestic corporation,
partnership, limited liability company, joint venture, trust, employee benefit plan or other
enterprise for which such person is or was serving in such capacity at the request of the Company,
regardless of the manner in which such person becomes a party to any Proceeding.
(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 and/or advance of Expenses is sought by
Indemnitee.
(d) “Effective Date” means the date set forth in the first paragraph of this Agreement.
(e) “Expenses” shall include any and all reasonable and out-of-pocket attorneys’ fees and
costs, retainers, court costs, transcript costs, fees of experts, witness fees, travel expenses,
duplicating costs, printing and binding costs, telephone charges, postage, delivery service fees,
federal, state, local or foreign taxes imposed on Indemnitee as a result of the actual or deemed
receipt of any payments under this Agreement, ERISA excise taxes and penalties and any and all
other disbursements or expenses incurred in connection with prosecuting, defending, preparing to
prosecute or defend, investigating, or being or preparing to be a witness in or otherwise
participating in a Proceeding. Expenses shall also include Expenses 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, or a member of a law firm, that is experienced in
the subject matter of the Proceeding 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 (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 or participant or witness in
the Proceeding giving rise to a claim for indemnification or advance of Expenses 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) “MGCL” means the Maryland General Corporation Law.
(h) “Proceeding” includes any threatened, pending or completed action, suit, arbitration,
alternate dispute resolution mechanism, investigation (including an internal investigation),
inquiry, administrative hearing or any other proceeding, whether brought by or in the right of the
Company or otherwise and whether of a civil (including intentional or unintentional tort claims),
criminal, administrative or investigative (formal or informal) nature, including any appeal
therefrom, except one pending or completed on or before the Effective
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Date, unless otherwise specifically agreed in writing by the Company and Indemnitee. If
Indemnitee reasonably believes that a given situation may lead to or culminate in the institution
of a Proceeding, such situation shall also be considered a Proceeding.
Section 2. Services by Indemnitee. Indemnitee [will serve][serves] as [a director]
[and] [an officer] of the Company. However, this Agreement shall not impose any obligation on
Indemnitee or the Company to continue Indemnitee’s service to the Company. This Agreement shall
not be deemed an employment contract between the Company (or any other entity) and Indemnitee.
Section 3. 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 Effective Date 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 Effective Date. 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 MGCL.
Section 4. Standard for Indemnification. If, by reason of Indemnitee’s Corporate
Status, Indemnitee is, or is threatened to be, made a party or a witness to any Proceeding, the
Company shall indemnify Indemnitee against all judgments, penalties, fines and amounts paid in
settlement and all Expenses actually and reasonably incurred by Indemnitee or on Indemnitee’s
behalf in connection with any such Proceeding unless it is established that (a) the act or omission
of Indemnitee was material to the matter giving rise to the Proceeding and (i) was committed in bad
faith or (ii) was the result of active and deliberate dishonesty, (b) Indemnitee actually received
an improper personal benefit in money, property or services or (c) in the case of any criminal
Proceeding, Indemnitee had reasonable cause to believe that [his][her] conduct was unlawful.
Section 5. Certain Limits on Indemnification. Notwithstanding any other
provision of this Agreement (other than Section 6), Indemnitee shall not be entitled to:
(a) indemnification hereunder if the Proceeding was one by or in the right of the Company and
Indemnitee is adjudged to be liable to the Company;
(b) indemnification hereunder if Indemnitee is adjudged to be liable on the basis that
personal benefit was improperly received in any Proceeding charging improper personal benefit to
Indemnitee, whether or not involving action in the Indemnitee’s Corporate Status; or
(c) indemnification or advance of Expenses hereunder if the Proceeding was brought by
Indemnitee, unless: (i) the Proceeding was brought to enforce indemnification under this Agreement,
and then only to the extent in accordance with and as authorized by Section 12 of this Agreement,
or (ii) the Company’s charter or Bylaws, a resolution of the stockholders entitled to vote
generally in the election of directors or of the Board of Directors or an agreement approved by the
Board of Directors to which the Company is a party expressly provide otherwise.
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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 of Indemnitee by the Company in the following
circumstances:
(a) if such court determines that 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 such court 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.
Section 7. Indemnification for Expenses of an Indemnitee Who is Wholly or Partially
Successful. Notwithstanding any other provision of this Agreement, and without limiting any
such provision, to the extent that Indemnitee was or is, by reason of [his][her] Corporate Status,
made a party to (or otherwise becomes a participant in) any Proceeding and is successful, on the
merits or otherwise, in the defense of such Proceeding, Indemnitee shall be indemnified for 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 under this Section 7 for all judgments,
penalties, fines and amounts paid in settlement and all Expenses actually and reasonably incurred
by Indemnitee or on Indemnitee’s behalf in connection with each such claim, issue or matter in
which Indemnitee is successful, allocated on a reasonable and proportionate basis. For purposes of
this Section 7 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 for Indemnitee. If, by reason of Indemnitee’s
Corporate Status, Indemnitee is, or is threatened to be, made a party to any Proceeding, the
Company shall, without requiring a preliminary determination of Indemnitee’s entitlement to
indemnification hereunder, advance all reasonable Expenses incurred by or on behalf of Indemnitee
in connection with such Proceeding to which Indemnitee is, or is threatened to be, made a party or
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
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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 by
Indemnitee and which have not been successfully resolved as described in Section 7 of this
Agreement. 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. Indemnification and Advance of Expenses as a Witness or Other Participant.
Notwithstanding any other provision of this Agreement, to the extent that Indemnitee is or may be,
by reason of Indemnitee’s Corporate Status, made a witness or otherwise asked to participate in any
Proceeding, whether instituted by the Company or any other party, and to which Indemnitee is not a
party, Indemnitee shall be advanced all reasonable Expenses and indemnified against all Expenses
actually and reasonably incurred by Indemnitee or on Indemnitee’s behalf in connection therewith
within ten days after the receipt by the Company of a statement or statements requesting any such
advance or indemnification 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.
Section 10. 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
necessary to determine whether and to what extent Indemnitee is entitled to indemnification and is
reasonably available to Indemnitee. Indemnitee may submit one or more such requests from time to
time and at such time(s) as Indemnitee deems appropriate in Indemnitee’s sole discretion. The
officer of the Company receiving any such request from Indemnitee 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 Section 10(a) above, a
determination, if required by applicable law, with respect to Indemnitee’s entitlement thereto
shall promptly be made in the specific case: (i) if a Change in Control shall have occurred, by
Independent Counsel, in a written opinion to the Board of Directors, a copy of which shall be
delivered to Indemnitee, which Independent Counsel shall be selected by the Indemnitee and approved
by the Board of Directors in accordance with Section 2-418(e)(2)(ii) of the MGCL, which approval
shall not be unreasonably withheld; or (ii) if a Change in Control shall not have occurred, (A) by
the Board of Directors by a majority vote of a quorum consisting of Disinterested Directors or, if
such a quorum cannot be obtained, then by a majority vote of a duly authorized committee of the
Board of Directors consisting solely of one or more Disinterested Directors, (B) if Independent
Counsel has been selected by the Board of Directors in accordance with Section 2-418(e)(2)(ii) of
the MGCL and approved by the Indemnitee, which approval shall not be unreasonably withheld, by
Independent Counsel, in a written opinion to the Board of Directors, a copy of which shall be
delivered to Indemnitee or (C) if so directed by a
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majority of the members of the Board of Directors, by the stockholders of the Company. If it
is so determined that Indemnitee is entitled to indemnification, payment to Indemnitee shall be
made within ten days after such determination. 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 in the
discretion of the Board of Directors or Independent Counsel if retained pursuant to clause (ii)(B)
of this Section 10(b). Any Expenses incurred by 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 shall indemnify
and hold Indemnitee harmless therefrom.
(c) The Company shall pay the reasonable fees and expenses of Independent Counsel, if one is
appointed.
Section 11. Presumptions and Effect of Certain Proceedings.
(a) In making any determination with respect to entitlement to indemnification hereunder, the
person or persons or entity making such determination shall presume that Indemnitee is entitled to
indemnification under this Agreement if Indemnitee has submitted a request for indemnification in
accordance with Section 10(a) of this Agreement, and the Company shall have the burden of proof to
overcome that presumption in connection with the making of any determination contrary to that
presumption.
(b) The termination of any Proceeding or of any claim, issue or matter therein, by judgment,
order, settlement or conviction, upon a plea of nolo contendere or its equivalent, or entry of an
order of probation prior to judgment, does not create a presumption that Indemnitee did not meet
the requisite standard of conduct described herein for indemnification.
(c) The knowledge and/or actions, or failure to act, of any other director, officer, employee
or agent of the Company or any other director, trustee, officer, partner, manager, managing member,
fiduciary, employee or agent of any other foreign or domestic corporation, partnership, limited
liability company, joint venture, trust, employee benefit plan or other enterprise shall not be
imputed to Indemnitee for purposes of determining any other right to indemnification under this
Agreement.
Section 12. Remedies of Indemnitee.
(a) If (i) a determination is made pursuant to Section 10(b) of this Agreement that Indemnitee
is not entitled to indemnification under this Agreement, (ii) advance of Expenses is not timely
made pursuant to Sections 8 or 9 of this Agreement, (iii) no determination of entitlement to
indemnification shall have been made pursuant to Section 10(b) of this Agreement within 60 days
after receipt by the Company of the request for indemnification, (iv) payment of indemnification is
not made pursuant to Sections 7 or 9 of this Agreement within ten days after receipt by the Company
of a written request therefor, or (v) payment of indemnification pursuant to any other section of
this Agreement or the charter or Bylaws of the Company is not made
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within ten days after a determination has been made that Indemnitee is entitled to
indemnification, Indemnitee shall be entitled to an adjudication in an appropriate court located in
the State of Maryland, or in any other court of competent jurisdiction, of Indemnitee’s entitlement
to such indemnification or advance of Expenses. Alternatively, Indemnitee, at Indemnitee’s option,
may seek an award in arbitration to be conducted by a single arbitrator pursuant to the Commercial
Arbitration Rules of the American Arbitration Association. Indemnitee shall commence a proceeding
seeking an adjudication or an award in arbitration within 180 days following the date on which
Indemnitee first has the right to commence such proceeding pursuant to this Section 12(a);
provided, however, that the foregoing clause shall not apply to a proceeding brought by Indemnitee
to enforce [his][her] rights under Section 7 of this Agreement. Except as set forth herein, the
provisions of Maryland law (without regard to its conflicts of laws rules) shall apply to any such
arbitration. The Company shall not oppose Indemnitee’s right to seek any such adjudication or
award in arbitration.
(b) In any judicial proceeding or arbitration commenced pursuant to this Section 12,
Indemnitee shall be presumed to be entitled to indemnification or advance of Expenses, as the case
may be, under this Agreement and the Company shall have the burden of proving that Indemnitee is
not entitled to indemnification or advance of Expenses, as the case may be. If Indemnitee
commences a judicial proceeding or arbitration pursuant to this Section 12, Indemnitee shall not be
required to reimburse the Company for any advances pursuant to Section 8 of this Agreement until a
final determination is made with respect to Indemnitee’s entitlement to indemnification (as to
which all rights of appeal have been exhausted or lapsed). The Company shall, to the fullest
extent not prohibited by law, be precluded from asserting in any judicial proceeding or arbitration
commenced pursuant to this Section 12 that the procedures and presumptions of this Agreement are
not valid, binding and enforceable and shall stipulate in any such court or before any such
arbitrator that the Company is bound by all of the provisions of this Agreement.
(c) If a determination shall have been made pursuant to Section 10(b) of this Agreement that
Indemnitee is entitled to indemnification, the Company shall be bound by such determination in any
judicial proceeding or arbitration commenced pursuant to this Section 12, absent 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.
(d) In the event that Indemnitee is successful in seeking, pursuant to this Section 12, a
judicial adjudication of or an award in arbitration to enforce Indemnitee’s rights under, or to
recover damages for breach of, this Agreement, Indemnitee shall be entitled to recover from the
Company, and shall be indemnified by the Company for, any and all Expenses actually and reasonably
incurred by him in such judicial adjudication or arbitration. If it shall be determined in such
judicial adjudication or arbitration that Indemnitee is entitled to receive part but not all of the
indemnification or advance of Expenses sought, the Expenses incurred by Indemnitee in connection
with such judicial adjudication or arbitration shall be appropriately prorated.
(e) Interest shall be paid by the Company to Indemnitee at the maximum rate allowed to be
charged for judgments under the Courts and Judicial Proceedings Article of the Annotated Code of
Maryland for amounts which the Company pays or is obligated to pay for the period (i)
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commencing with either the tenth day after the date on which the Company was requested to
advance Expenses in accordance with Sections 8 or 9 of this Agreement or the 60th day
after the date on which the Company was requested to make the determination of entitlement to
indemnification under Section 10(b) of this Agreement, as applicable, and (ii) ending on the date
such payment is made to Indemnitee by the Company.
Section 13. Defense of the Underlying Proceeding.
(a) Indemnitee shall notify the Company promptly in writing upon being served with or
receiving any summons, citation, subpoena, complaint, indictment, information notice, request or
other document relating to any Proceeding which may result in the right to indemnification or the
advance of Expenses hereunder and shall include with such notice a description of the nature of the
Proceeding and a summary of the facts underlying the Proceeding. The failure to give any such
notice shall not disqualify Indemnitee from the right, or otherwise affect in any manner any right
of Indemnitee, to indemnification or the advance of Expenses under this Agreement unless the
Company’s ability to defend in such Proceeding or to obtain proceeds under any insurance policy is
materially and adversely prejudiced thereby, and then only to the extent the Company is thereby
actually so prejudiced.
(b) Subject to the provisions of the last sentence of this Section 13(b) and of Section 13(c)
below, the Company shall have the right to defend Indemnitee in any Proceeding which may give rise
to indemnification hereunder; provided, however, that the Company shall notify Indemnitee of any
such decision to defend within 15 calendar days following receipt of notice of any such Proceeding
under Section 13(a) above. The Company shall not, without the prior written consent of Indemnitee,
which shall not be unreasonably withheld or delayed, consent to the entry of any judgment against
Indemnitee or enter into any settlement or compromise which (i) includes an admission of fault of
Indemnitee, (ii) does not include, as an unconditional term thereof, the full release of Indemnitee
from all liability in respect of such Proceeding, which release shall be in form and substance
reasonably satisfactory to Indemnitee or (iii) would impose any Expense, judgment, fine, penalty or
limitation on Indemnitee. This Section 13(b) shall not apply to a Proceeding brought by Indemnitee
under Section 12 of this Agreement.
(c) Notwithstanding the provisions of Section 13(b) above, if in a Proceeding to which
Indemnitee is a party by reason of Indemnitee’s Corporate Status, (i) Indemnitee reasonably
concludes, based upon an opinion of counsel approved by the Company, which approval shall not be
unreasonably withheld, that Indemnitee may have separate defenses or counterclaims to assert with
respect to any issue which may not be consistent with other defendants in such Proceeding, (ii)
Indemnitee reasonably concludes, based upon an opinion of counsel approved by the Company, which
approval shall not be unreasonably withheld, that an actual or apparent conflict of interest or
potential conflict of interest exists between Indemnitee and the Company, or (iii) if the Company
fails to assume the defense of such Proceeding in a timely manner, Indemnitee shall be entitled to
be represented by separate legal counsel of Indemnitee’s choice, subject to the prior approval of
the Company, which approval shall not be unreasonably withheld, at the expense of the Company. In
addition, if the Company fails to comply with any of its obligations under this Agreement or in the
event that the Company or any other person takes any action to declare this Agreement void or
unenforceable, or institutes any
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Proceeding to deny or to recover from Indemnitee the benefits
intended to be provided to
Indemnitee hereunder, Indemnitee shall have the right to retain counsel of Indemnitee’s
choice, subject to the prior approval of the Company, which approval shall not be unreasonably
withheld, at the expense of the Company (subject to Section 12(d) of this Agreement), to represent
Indemnitee in connection with any such matter.
Section 14. Non-Exclusivity; Survival of Rights; Subrogation.
(a) The rights of indemnification and advance of Expenses 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 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,
or otherwise. Unless consented to in writing by Indemnitee, 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 [his][her] Corporate
Status prior to such amendment, alteration or repeal, regardless of whether a claim with respect to
such action or inaction is raised prior or subsequent to such amendment, alteration or repeal. No
right or remedy herein conferred is intended to be exclusive of any other right or remedy, and
every other right or remedy shall be cumulative and in addition to every other right or remedy
given hereunder or now or hereafter existing at law or in equity or otherwise. The assertion of
any right or remedy hereunder, or otherwise, shall not prohibit the concurrent assertion or
employment of any other right or remedy.
(b) In the event of any payment 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
required and take all action necessary to secure such rights, including execution of such documents
as are necessary to enable the Company to bring suit to enforce such rights.
Section 15. Insurance. (a) The Company will use its reasonable best efforts to
acquire and maintain directors and officers liability insurance, on terms and conditions deemed
appropriate by the Board of Directors, with the advice of counsel, that includes coverage for the
Indemnitee or any claim made against Indemnitee by reason of [his][her] Corporate Status and
covering the Company for any indemnification or advance of Expenses made by the Company to
Indemnitee for any claims made against Indemnitee by reason of [his][her] Corporate Status.
Without in any way limiting any other obligation under this Agreement, the Company shall indemnify
Indemnitee for any payment by Indemnitee arising out of the amount of any deductible or retention
and the amount of any excess of the aggregate of all judgments, penalties, fines, settlements and
Expenses incurred by Indemnitee in connection with a Proceeding over the coverage of any insurance
referred to in the previous sentence. The purchase, establishment and maintenance of any such
insurance shall not in any way limit or affect the rights or obligations of the Company or
Indemnitee under this Agreement except as expressly provided herein, and the execution and delivery
of this Agreement by the Company and the Indemnitee shall not in any way limit or affect the rights
or obligations of the Company under any such insurance policies. If, at the time the Company
receives notice from any source of a Proceeding to which Indemnitee is a party or a participant (as
a witness or otherwise) the Company has director and officer
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liability insurance in effect, the
Company shall give prompt notice of such Proceeding to the insurers in accordance with the
procedures set forth in the respective policies.
(b) For a period of six (6) years after a Change in Control, the Company shall maintain in
effect a “tail” directors’ and officers’ liability insurance policy with coverage in an amount and
scope at least as favorable as the Company’s existing coverage on the date of such Change in
Control; provided, that, in no event shall the Company be required to expend in the aggregate in
excess of 200% of the annual premium paid by the Company for such insurance in effect on the date
of such Change in Control. In the event that 200% of the annual premium paid by the Company for
such existing insurance is insufficient for such coverage, the Company shall spend up to that
amount to purchase such lesser coverage as may be obtained with such amount.
Section 16. Coordination of Payments. The Company shall not be liable under this
Agreement to make any payment of amounts otherwise indemnifiable or payable or reimbursable as
Expenses hereunder if and to the extent that Indemnitee has otherwise actually received such
payment under any insurance policy, contract, agreement or otherwise.
Section 17. Reports to Stockholders. To the extent required by the MGCL, the Company
shall report in writing to its stockholders the payment of any amounts for indemnification of, or
advance of Expenses to, Indemnitee under this Agreement arising out of a Proceeding by or in the
right of the Company with the notice of the meeting of stockholders of the Company next following
the date of the payment of any such indemnification or advance of Expenses or prior to such
meeting.
Section 18. Duration of Agreement; Binding Effect.
(a) This Agreement shall continue until and terminate on the later of (i) six years after the
date that Indemnitee shall have ceased to serve as a director, officer, employee or agent of the
Company or as a director, trustee, officer, partner, manager, managing member, fiduciary, employee
or agent of any other foreign or domestic corporation, real estate investment trust, partnership,
limited liability company, joint venture, trust, employee benefit plan or other enterprise that
such person is or was serving in such capacity at the request of the Company and (ii) the date that
Indemnitee is no longer subject to any actual or possible Proceeding (including any rights of
appeal thereto and any Proceeding commenced by Indemnitee pursuant to Section 12 of this
Agreement).
(b) The indemnification and advance of Expenses provided by, or granted pursuant to, this
Agreement shall be binding upon and be enforceable by the parties hereto and their respective
successors and assigns (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),
shall continue as to an Indemnitee who has ceased to be a director, officer, employee or agent of
the Company or a director, trustee, officer, partner, manager, managing member, fiduciary, employee
or agent of any other foreign or domestic corporation, partnership, limited liability company,
joint venture, trust, employee benefit plan or other enterprise that such person is or was serving
in such capacity at the request of the Company, and shall inure to the benefit of Indemnitee and
Indemnitee’s spouse, assigns, heirs, devisees, executors and administrators and other legal
representatives.
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(c) The Company shall require and cause any successor (whether direct or indirect by purchase,
merger, consolidation or otherwise) to all, substantially all or a substantial part, of the
business and/or assets of the Company, by written agreement in form and substance satisfactory
to Indemnitee, expressly to assume and agree to perform this Agreement in the same manner and to
the same extent that the Company would be required to perform if no such succession had taken
place.
(d) The Company and Indemnitee agree that a monetary remedy for breach of this Agreement, at
some later date, may be inadequate, impracticable and difficult of proof, and further agree that
such breach may cause Indemnitee irreparable harm. Accordingly, the parties hereto agree that
Indemnitee may enforce this Agreement by seeking injunctive relief and/or specific performance
hereof, without any necessity of showing actual damage or irreparable harm and that by seeking
injunctive relief and/or specific performance, Indemnitee shall not be precluded from seeking or
obtaining any other relief to which Indemnitee may be entitled. Indemnitee shall further be
entitled to such specific performance and injunctive relief, including temporary restraining
orders, preliminary injunctions and permanent injunctions, without the necessity of posting bonds
or other undertakings in connection therewith. The Company acknowledges that, in the absence of a
waiver, a bond or undertaking may be required of Indemnitee by a court, and the Company hereby
waives any such requirement of such a bond or undertaking.
Section 19. Severability. If any provision or provisions of this Agreement shall be
held to be invalid, illegal or unenforceable for any reason whatsoever: (a) the validity, legality
and enforceability of the remaining provisions of this Agreement (including, without limitation,
each portion of any Section, paragraph or sentence of this Agreement containing any such provision
held to be invalid, illegal or unenforceable that is not itself invalid, illegal or unenforceable)
shall not in any way be affected or impaired thereby and shall remain enforceable to the fullest
extent permitted by law; (b) such provision or provisions shall be deemed reformed to the extent
necessary to conform to applicable law and to give the maximum effect to the intent of the parties
hereto; and (c) to the fullest extent possible, the provisions of this Agreement (including,
without limitation, each portion of any Section, paragraph or sentence of this Agreement containing
any such provision held to be invalid, illegal or unenforceable, that is not itself invalid,
illegal or unenforceable) shall be construed so as to give effect to the intent manifested thereby.
Section 20. Identical Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall for all purposes be deemed to be an original but all of which
together shall constitute one and the same Agreement. One such counterpart signed by the party
against whom enforceability is sought shall be sufficient to evidence the existence of this
Agreement.
Section 21. Headings. The headings of the paragraphs 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.
Section 22. Modification and Waiver. No supplement, modification or amendment of this
Agreement shall be binding unless executed in writing by both of the parties hereto. No
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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.
Section 23. Notices. All notices, requests, demands and other communications
hereunder shall be in writing and shall be deemed to have been duly given if (i) delivered by hand
and receipted for by the party to whom said notice or other communication shall have been directed,
on the day of such delivery, or (ii) mailed by certified or registered mail with postage prepaid,
on the third business day after the date on which it is so mailed:
(a) If to Indemnitee, to the address set forth on the signature page hereto.
(b) If to the Company, to:
or to such other address as may have been furnished in writing to Indemnitee by the Company or to
the Company by Indemnitee, as the case may be.
Section 24. Governing Law. This Agreement shall be governed by, and construed and
enforced in accordance with, the laws of the State of Maryland, without regard to its conflicts of
laws rules.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year
first above written.
| SCHOTTENSTEIN REALTY TRUST, INC. | ||||||
| By: | ||||||
| Name: | ||||||
| Title: | ||||||
| INDEMNITEE | ||||||
| Name: | ||||||
| Address: | ||||||
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EXHIBIT A
AFFIRMATION AND UNDERTAKING TO REPAY EXPENSES ADVANCED
To: The Board of Directors of Schottenstein Realty Trust, Inc.
Re: Affirmation and Undertaking
Ladies and Gentlemen:
This Affirmation and Undertaking is being provided pursuant to that certain Indemnification
Agreement dated the _____ day of ______________, 20____, by and between Schottenstein Realty Trust,
Inc., a Maryland corporation (the “Company”), and the undersigned Indemnitee (the “Indemnification
Agreement”), pursuant to which I am entitled to advance of Expenses in connection with [Description
of Proceeding] (the “Proceeding”).
Terms used herein and not otherwise defined shall have the meanings specified in the
Indemnification Agreement.
I am subject to the Proceeding by reason of my Corporate Status or by reason of alleged
actions or omissions by me in such capacity. I hereby affirm my good faith belief that at all
times, insofar as I was involved as [a director] [an officer] of the Company, in any of the facts
or events giving rise to the Proceeding, I (1) did not act with bad faith or active or deliberate
dishonesty, (2) did not receive any improper personal benefit in money, property or services and
(3) in the case of any criminal proceeding, had no reasonable cause to believe that any act or
omission by me was unlawful.
In consideration of the advance of Expenses by the Company for reasonable attorneys’ fees and
related Expenses incurred by me in connection with the Proceeding (the “Advanced Expenses”), I
hereby agree that if, in connection with the Proceeding, it is established that (1) an act or
omission by me 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 or (2) I actually received an
improper personal benefit in money, property or services or (3) in the case of any criminal
proceeding, I had reasonable cause to believe that the act or omission was unlawful, then I shall
promptly reimburse the portion of the Advanced Expenses relating to the claims, issues or matters
in the Proceeding as to which the foregoing findings have been established.
IN WITNESS WHEREOF, I have executed this Affirmation and Undertaking on this ___ day of
____________________, 20___.
| Name: | ||||||
