Exhibit 4.18
INDEMNIFICATION AGREEMENT
This Indemnification Agreement (this "Agreement") is made as of
_________, 200_, at Cleveland, Ohio, between Developers Diversified Realty
Corporation, an Ohio corporation (the "Company"), and ___________________ (the
"Director").
Background Information
A. The Director is a member of the Company's Board of Directors (the "Board")
and, in that capacity, is performing valuable services for the Company.
B. The shareholders of the Company have adopted a Code of Regulations, as
amended (the "Regulations"), providing for indemnification of the directors of
the Company in accordance with Section 1701.13 of the Ohio Revised Code (the
"Statute"). The Regulations and the Statute specifically provide that they are
not exclusive, and contemplate that contracts may be entered into between the
Company and directors with respect to indemnification of directors.
C. The Company and Director recognize the substantial cost of carrying directors
and officers liability insurance ("D&O Insurance") and that the Company may
elect not to carry D&O Insurance from time to time.
D. The Company and Director further recognize that officers and directors may be
exposed to certain risks including the increased risk of litigation and other
claims being asserted against directors of public companies in today's
environment.
E. These factors with respect to the coverage and cost to the Company of D&O
Insurance and issues concerning the scope of indemnity under the Statute and
Regulations generally have raised questions concerning the adequacy and
reliability of the protection presently afforded to directors.
F. In order to address such issues and induce the Director to serve and continue
to serve as a member of the Board, the Company has determined to enter into this
Agreement with the Director.
Statement of Agreement
In consideration of the Director's continued service as a member of the
Board after the date of this Agreement, the Company and the Director hereby
agree as follows:
Section 1. INDEMNITY OF DIRECTOR. Subject only to the limitations set forth in
Section 2 below, the Company shall indemnify the Director to the full extent not
otherwise prohibited by the Statute or other applicable law, including without
limitation indemnity:
(a) Against any and all costs and expenses (including legal, expert,
and other professional fees and expenses), judgments, damages, fines
(including excise taxes with respect to employee benefit plans),
penalties, and amounts paid in settlement actually and
reasonably incurred by the Director (collectively, "Expenses"), in
connection with any threatened, pending, or completed action, suit or
proceeding, or arbitration or other alternative dispute resolution
mechanism (whether civil, criminal, administrative, or investigative
and including without limitation an action by or in the right of the
Company) (each a "Proceeding") to which the Director is or at any time
becomes a party or witness, or is threatened to be made a party or
witness as a result, directly or indirectly, of serving at any time:
(i) as a director, officer, employee, or agent of the Company; or (ii)
at the request of the Company as a director, officer, employee,
trustee, fiduciary, manager, member, or agent of a corporation,
partnership, trust, limited liability company, employee benefit plan,
or other enterprise or entity; and (b) Otherwise to the fullest extent
that the Director may be indemnified by the Company under the
Regulations and the Statute, including without limitation the
non-exclusivity provisions thereof.
Section 2. LIMITATIONS ON INDEMNITY. No indemnity pursuant to Section 1 shall be
paid by the Company:
(a) Except to the extent that the aggregate amount of losses to be
indemnified exceed the aggregate amount of such losses for which the
Director is actually paid or reimbursed pursuant to D&O Insurance, if
any, which may be purchased and maintained by the Company or any of its
subsidiaries;
(b) On account of any Proceeding in which judgment is rendered against
the Director for an accounting of profits made from the purchase or
sale of securities of the Company pursuant to the provisions of Section
16(b) of the Securities Exchange Act of 1934, as amended;
(c) On account of the Director's conduct which is determined (pursuant
to the Statute) to have been knowingly fraudulent, deliberately
dishonest, or willful misconduct, except to the extent such indemnity
is otherwise permitted under the Statute;
(d) With respect to any remuneration paid to the Director determined,
by a court having jurisdiction in the matter in a final adjudication
from which there is no further right of appeal, to have been in
violation of law;
(e) If it shall have been determined by a court having jurisdiction in
the matter, in a final adjudication from which there is no further
right of appeal, that indemnification is not lawful;
(f) On account of the Director's conduct to the extent it relates to
any matter that occurred prior to the time such individual became a
director of the Company; provided, however, that this limitation shall
not apply to the extent such matter occurred while the Director was a
director, officer, employee or agent of the Company or its subsidiaries
(other than prior to the time such entity became a subsidiary of the
Company); or
(g) With respect to Proceedings initiated or brought voluntarily by the
Director and not by way of defense, except pursuant to Section 8 with
respect to proceedings brought
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to enforce rights or to collect money due under this Agreement;
provided however that indemnity may be provided by the Company in
specific cases if the Board finds it to be appropriate.
In no event shall the Company be obligated to indemnify the Director
pursuant to this Agreement to the extent such indemnification is prohibited by
applicable law.
Section 3. ADVANCEMENT OF EXPENSES. Subject to Section 7 of this Agreement, the
Expenses incurred by the Director in connection with any Proceeding shall be
promptly reimbursed or paid by the Company as they become due; provided the
Director submits a written request to the Company for such payment together with
reasonable supporting documentation for such Expenses; and provided further that
the Director, at the request of the Company, submits to the Company an
undertaking to the effect stated in Section 7 below, and to reasonably cooperate
with the Company concerning such Proceeding.
Section 4. INSURANCE AND SELF INSURANCE. The Company shall not be required to
maintain D&O Insurance in effect if and to the extent that such insurance is not
reasonably available or if, in the reasonable business judgment of the Board,
either (a) the premium cost of such insurance is disproportionate to the amount
of coverage, or (b) the coverage provided by such insurance is so limited by
exclusions that there is insufficient benefit from such insurance. To the extent
the Company determines not to maintain D&O Insurance, the Company shall be
deemed to be self-insured within the meaning of Section 1701.13(E)(7) of the
Statute and shall, in addition to the Director's other rights hereunder, provide
protection to the Director similar to that which otherwise would have been
available to the Director under such insurance.
Section 5. CONTINUATION OF OBLIGATIONS. All obligations of the Company under
this Agreement shall apply retroactively beginning on the date the Director
commenced as, and shall continue during the period that the Director remains, a
director of the Company or is, as described above, a director, officer,
employee, trustee, fiduciary, manager, member, or agent of another corporation,
partnership, limited liability company, trust, employee benefit plan, or other
enterprise and shall continue thereafter as long as the Director may be subject
to any possible claim or any threatened, pending or completed Proceeding as a
result, directly or indirectly, of being such a director, officer, employee,
trustee, fiduciary, manager, member, or agent.
Section 6. NOTIFICATION AND DEFENSE OF CLAIM. Promptly after receipt by the
Director of notice of the commencement of any Proceeding, if a claim is to be
made against the Company under this Agreement, the Director shall notify the
Company of the commencement thereof, but the delay or omission to so notify the
Company shall not relieve the Company from any liability which it may have to
the Director under this Agreement, except to the extent the Company is
materially prejudiced by such delay or omission. With respect to any such
Proceeding of which the Director notifies the Company of the commencement:
(a) The Company shall be entitled to participate therein at its own
expense;
(b) The Company shall be entitled to assume the defense thereof,
jointly with any other indemnifying party similarly notified, with
counsel selected by the Company and
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approved by the Director, which approval shall not unreasonably be
withheld. After notice from the Company to the Director of the
Company's election to assume such defense, the Company shall not be
liable to the Director under this Agreement for any legal or other
Expenses subsequently incurred by the Director in connection with the
defense thereof except as otherwise provided below. The Director shall
have the right to employ his own counsel in such Proceeding, but the
fees and expenses of such counsel incurred after notice from the
Company of its assumption of such defense shall be the expenses of the
Director unless (i) the employment of such counsel by the Director has
been authorized by the Company, (ii) the Director, upon the advice of
counsel, shall have reasonably concluded that there may be a conflict
of interest between the Company and the Director in the conduct of such
defense, or (iii) the Company has not in fact employed counsel to
assume such defense, in any of which cases the fees and expenses of
such counsel shall be the expense of the Company. The Company shall not
be entitled to assume the defense of any Proceeding brought by or on
behalf of the Company or as to which the Director, upon the advice of
counsel, shall have made the conclusion described in (ii), above. In
the event the Company assumes the defense of any Proceeding as provided
in this Section 6(b), the Company may defend or settle such Proceeding
as it deems appropriate; provided, however, the Company shall not
settle any Proceeding in any manner which would impose any penalty or
limitation on the Director without the Director's written consent,
which consent shall not be unreasonably withheld.
(c) The Company shall not be required to indemnify the Director under
this Agreement for any amounts paid in settlement of any Proceeding
without the Company's written consent, which consent shall not be
unreasonably withheld.
(d) The Director shall cooperate with the Company in all ways
reasonably requested by it in connection with the Company fulfilling
its obligations under this Agreement.
Section 7. REPAYMENT OF EXPENSES. The Director shall reimburse the Company for
all Expenses paid by the Company pursuant to Section 3 of this Agreement or
otherwise in defending any Proceeding against the Director if and only to the
extent that a determination shall have been made by a court in a final
adjudication from which there is no further right of appeal that it has been
shown by clear and convincing evidence that the Director's action or failure to
act involved an act or omission undertaken with deliberate intent to cause
injury to the Company or undertaken with reckless disregard for the best
interests of the Company.
Section 8. ENFORCEMENT. The Company expressly confirms that it has entered into
this Agreement and has assumed the obligations of this Agreement in order to
induce the Director to serve or continue to serve as a director of the Company
and acknowledges that the Director is relying upon this Agreement in continuing
in that capacity. If the Director is required to bring an action to enforce
rights or to collect money due under this Agreement, the Company shall reimburse
the Director for all of the Director's reasonable fees and expenses (including
legal, expert, and other professional fees and expenses) in bringing and
pursuing such action, unless the court determines that each of the material
assertions made by the Director as a basis for such action were not made in good
faith or were frivolous. The Company shall have the burden of proving that
indemnification is not required under this Agreement, unless a prior
determination
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has been made by the shareholders of the Company or a court of competent
jurisdiction that indemnification is not required hereunder.
Section 9. RIGHTS NOT EXCLUSIVE. The indemnification provided by this Agreement
shall not be deemed exclusive of any other rights to which the Director may be
entitled under the Company's articles of incorporation, Regulations, any vote of
the shareholders or disinterested directors of the Company, the Statute, the
Ohio General Corporation Law (whether by statute or judicial decision) or
otherwise, both as to action in his official capacity and as to action in
another capacity while holding such office.
Section 10. SUBROGATION. In the event of payment under this Agreement, the
Company shall be subrogated to the extent of such payment to all of the rights
of the recovery of the Director, who shall execute all papers required and shall
do everything that may be necessary to secure such rights, including the
execution of such documents necessary to enable the Company effectively to bring
suit to enforce such rights.
Section 11. NO CONSTRUCTION AS EMPLOYMENT AGREEMENT. Nothing contained herein
shall be construed as giving the Director, if an employee of the Company or any
of its related enterprises, any right to be retained in the employ of the
Company or any of its related enterprises.
Section 12. SEPARABILITY. Each of the provisions of this Agreement is a separate
and distinct Agreement and independent of the others so that, if any provisions
of this Agreement shall be held to be invalid and unenforceable for any reason,
such invalidity or unenforceability shall not affect the validity or
enforceability of the other provisions of this Agreement.
Section 13. MODIFICATION TO APPLICABLE LAW. In the event there is a change,
after the date of this Agreement, in any applicable law (including without
limitation the Statute or the Ohio General Corporation Law (whether by Statute
or judicial decision)) which: (a) expands the right of an Ohio corporation to
indemnify a member of its board of directors or an officer, such change shall be
automatically included within the scope of the Director's rights and Company's
obligations under this Agreement; or (b) narrows the right of an Ohio
corporation to indemnify a member of its board of directors or an officer, such
change, to the extent not otherwise required by such law, shall have no effect
on this Agreement or the parties' rights and obligations hereunder.
Section 14. PARTIAL INDEMNITY. If the Director is entitled under any provision
of this Agreement to indemnity by the Company for some or a portion of the
Expenses actually or reasonably incurred by him in the investigation, defense,
appeal, or settlement of any Proceeding, but not for the total amount thereof,
the Company shall nevertheless indemnify the Director for the portion of such
Expenses to which the Director is entitled.
Section 15. GOVERNING LAW. This Agreement shall be interpreted and enforced in
accordance with the laws of the State of Ohio, without regard to choice of law
principles.
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Section 16. SUCCESSORS. This Agreement shall be binding upon, inure to the
benefit of, and be enforceable by and against the Director and the Company and
their respective heirs, successors, and assigns. The Company shall require any
successor or assign (whether direct or indirect, by purchase, merger,
consolidation, or otherwise) to all or substantially all of the business and/or
assets of the Company, expressly, absolutely, and unconditionally 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 it if no such succession or assignment
had taken place.
Section 17. PRIOR AGREEMENTS. This Agreement shall supersede any other
agreements entered into prior to the date of this Agreement between the Company
and the Director concerning the subject matter of this Agreement.
Section 18. CONSENT TO JURISDICTION. The Company and the Director each hereby
irrevocably consents to the jurisdiction of the courts of the State of Ohio for
all purposes in connection with any action or proceeding which arises out of or
relates to this Agreement and hereby waives any objections or defenses relating
to jurisdiction with respect to any lawsuit or other legal proceeding initiated
in or transferred to such courts.
DEVELOPERS DIVERSIFIED REALTY CORPORATION
By:
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DIRECTOR:
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