Unassociated Document


    Exhibit
10.4

     

    FORM OF
INDEMNIFICATION AGREEMENT

     

    This
Indemnification Agreement (this “Agreement”) is made
as of the     
day of                     ,
2005, by and among [    ]
(the “Indemnitee”), David
Lichtenstein and Lightstone Value Plus Real Estate Trust, Inc., a Maryland
corporation (the “Company” and,
together with David Lichtenstein, the “Indemnitors”).

     

    WHEREAS,
David Lichtenstein indirectly owns and controls, and acts as Chairman of the
Board of Directors, Chief Executive Officer and President of, the
Company;

     

    WHEREAS,
the Indemnitee has been elected to serve as a member of the Board (each
individual serving in such capacity, a “Director”);

     

    WHEREAS,
the Company intends to obtain and provide directors’ and officers’ liability
insurance (the “D&O Policy”) to
each Director, including the Indemnitee;

     

    WHEREAS,
to the fullest extent permitted by applicable law, the Amended and Restated
Articles of Incorporation (the “Charter”) and the
Bylaws of the Company (together with the Charter, the “Organizational
Documents”), the Indemnitors desire to provide the Indemnitee with
indemnification from and exculpation for liability that he incurs in his service
as a Director but which the D&O Policy does not satisfy, as an inducement to
procure and retain the service of the Indemnitee as a Director;

     

    WHEREAS,
the Organizational Documents permit the Company to indemnify and exculpate each
Director to the fullest extent permitted by Maryland and other applicable
law;

     

    WHEREAS,
the Company does not have any significant assets to apply against operational
expenses, including indemnification and exculpation liabilities, and will depend
upon proceeds from its forthcoming public offering of up to 30,000,000 shares of
common stock (the “Offering”) for a
period of one year (the “Offering
Period”);

     

    NOW,
THEREFORE, in consideration of the foregoing and the mutual premises, covenants
and agreements contained herein, the parties hereto, intending to be legally
bound hereby, agree as follows:

     

    
      	
               
      

            	
              1.
      Indemnification.

            


    

     

    1.1
During the Offering Period, to the maximum extent permitted by Maryland law,
other applicable law and the Organizational Documents, as in effect from time to
time, and to the extent that the D&O Policy does not satisfy such claim or
liability, David Lichtenstein shall save, defend, indemnify, hold harmless and,
without requiring a preliminary determination of the ultimate entitlement to
indemnification, shall pay or reimburse reasonable expenses in advance of final
disposition of a proceeding to the Indemnitee, from and against any claim or
liability to which Indemnitee may become subject or which the Indemnitee may
incur by reason of service in his capacity as a director of the
Company.

    
      
         

      

      
         

        
          

        

      

      
         

      

    

    1.2 After
the Offering Period and provided that the Company
receives Offering proceeds of at least $100,000,000, to the maximum extent
permitted by Maryland law, other applicable law and the Organizational
Documents, as in effect from time to time, and to the extent that the D&O
Policy does not satisfy such claim or liability, the Company shall save, defend,
indemnify, hold harmless and, without requiring a preliminary determination of
the ultimate entitlement to indemnification, shall pay or reimburse reasonable
expenses in advance of final disposition of a proceeding to the Indemnitee, from
and against any claim or liability to which Indemnitee may become subject or
which the Indemnitee may incur by reason of service in his capacity as a
director of the Company.

     

    2. Claims. If any
action, suit, proceeding or investigation is commenced as to which the
Indemnitee proposes to demand indemnification or exculpation, he shall promptly
notify the Indemnitors; provided, however, that failure to give prompt notice to
the Indemnitors shall not affect the indemnification obligations of the
Indemnitors hereunder. The Indemnitee shall have the right to retain counsel of
its own choice to represent it and, so long as all Indemnitees retain the same
counsel with respect to a particular claim or count, the Indemnitors shall pay
the fees at standard hourly rates, expenses and disbursements of such counsel as
and when incurred; and such counsel shall, to the extent consistent with its
professional responsibilities, cooperate with the Indemnitors and any counsel
designated by the Indemnitors. The Indemnitors shall be liable for any
settlement of any claim against an Indemnitee made with the Indemnitors’ written
consent, which consent shall not be unreasonably withheld. The Indemnitors shall
not, without the prior written consent of an Indemnitee, settle or compromise
any claim, or permit a default or consent to the entry of any judgment in
respect thereof, unless such settlement, compromise or consent includes, as an
unconditional term thereof, the giving by the claimant to such Indemnitee of an
unconditional release from all liability in respect of such claim.

     

    
      	
               
      

            	
              3.
      Miscellaneous.

            


    

     

    3.1 This
agreement may be amended only by written instrument duly executed by the parties
hereto.

     

    3.2 This
Agreement will be governed by, and construed and enforced in accordance with,
the laws of the State of New York, without regard to its choice of law
rules.

     

    3.3 This
Agreement may be executed in counterparts, each of which shall be deemed to be
an original, but all of which, taken together, shall constitute one and the same
instrument.

     

    3.4
Nothing in this Agreement, express or im plied, is intended to confer upon any
person other than the Indemnitee any rights or remedies of any nature whatsoever
under or by reason of this Agreement.

     

    3.5 If
any term, provision, covenant or restriction of this Agreement is held by a
court of competent jurisdiction or a federal or state regulatory agency to be
invalid, void or unenforceable, the remainder of the terms, provisions,
covenants and restrictions of this Agreement shall remain in full force and
effect and shall in no way be affected, impaired or invalidated.

     

    
      
         

      

      
         

        
          

        

      

      
         

      

    

     

    IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed as of the date first written above.

     

    
      
        	 	 	 	 	 
	
              	 	 	
              	 
	
                 

              	 	 	
                      
                  David
      Lichtenstein

                

              	 
	
                 

              	 	 	
                 

              	 


      

    

     

    
      
        	 	 	 	      
                LIGHTSTONE
      VALUE PLUS
      
                  REAL
      ESTATE INVESTMENT TRUST, INC.,


                  a
      Maryland corporation

                

              	 
	 	 	 	 	 
	
              	 	
                By:

              	
              	 
	
                 

              	 	 	
                      
                  Name:

                

              	 
	
                 

              	 	 	
                      
                  Title:

                

              	 


      

    

     

    
       

      
        
          	 	 	 	 	 
	
                	 	 	
                	 
	
                   

                	 	 	
                  
                    Indemnitee