Common use of D&O Insurance; Indemnification Clause in Contracts

D&O Insurance; Indemnification. For a period of six years after the Merger Effective Time, Wyndham agrees that it shall maintain a directors' and officers' liability insurance policy ("D&O INSURANCE") covering those persons who, as of the date hereof or as of immediately prior to the Merger Effective Time, are covered by Wyndham's D&O Insurance (the "INSURED PARTIES") with respect to claims arising in whole or in part from facts or events that actually or allegedly occurred at or before the Merger Effective Time, including in connection with the approval of this Agreement and the transactions contemplated hereby, on terms no less favorable to the Insured Parties than those of Wyndham's present D&O Insurance; PROVIDED, HOWEVER, that in no event shall Wyndham be required to expend annually more than 200% of the annual premium currently paid by Wyndham for D&O Insurance (and if the cost for such D&O Insurance is in excess of such amount, Wyndham shall be required only to maintain such coverage as is available for such amount). In lieu of the foregoing, Wyndham may, with the consent of the Investors, elect to obtain prepaid policies prior to the Merger Effective Time, which policies shall provide the Insured Parties with D&O Insurance of an equivalent amount and at least as favorable terms as that provided by Wyndham's current D&O Insurance for an aggregate period of at least six years with respect to claims arising in whole or in part from facts or events that actually or allegedly occurred at or before the Merger Effective Time, including in connection with the approval of this Agreement and the transactions contemplated hereby; PROVIDED, HOWEVER, that the aggregate premium for such prepaid policies shall not exceed six times 200% of the annual premium currently paid by Wyndham for such D&O Insurance. In addition, for a period of six years after the Merger Effective Time, Wyndham agrees that it shall not amend or waive any provision of its Charter or By-Laws relating to indemnification, advancement or exculpation rights in a manner which would adversely affect those entitled to the benefits of such provisions (the "COVERED PARTIES"). The covenants contained in this Section 5.11 are intended to be for the benefit of, and shall be enforceable by, each of the Insured Parties and the Covered Parties and their respective heirs and legal representatives and shall not be deemed exclusive of any other rights to which an Insured Party or Covered Party is entitled, whether pursuant to law, contract or otherwise. In the event that Wyndham or any of its successors or assigns (i) consolidates with or merges into any other person and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers or conveys all or substantially all of its properties and assets to any person, then, and in each such case, proper provision shall be made so that the successors or assigns of Wyndham shall succeed to the obligations set forth in this Section 5.11.

D&O Insurance; Indemnification. For a period of six years after The Company shall procure and keep in effect Director’s and Officer’s (“D&O”) Liability insurance coverage (“D&O Coverage”) throughout the Merger Effective TimeTerm and any Renewal Term(s), Wyndham agrees that it and Jxxxx will be eligible to receive all benefits provided thereunder, with the policy listing Jxxxx as an insured. Such D&O insurance shall maintain a directors' and officers' liability insurance policy ("D&O INSURANCE") covering those persons who, be procured in an amount not less than the current coverage amount in effect as of the date hereof or as execution of immediately prior this Agreement, and in any event no less advantageous than that which is in effect for other directors and officers of the Company. The Company further agrees to indemnify and hold harmless Jxxxx (which shall include any of his legal representatives) to the Merger Effective Timefullest extent authorized by law, are covered from and against any expenses (including reasonable fees and costs of counsel, accountants and other experts), judgments, fines, liabilities, losses and amounts reasonably incurred by Wyndham's D&O Insurance Jxxxx in connection with any threatened, pending or completed action, suit, claim or proceeding (hereinafter, a “Proceeding”), whether civil, criminal, administrative or investigative, by reason of the "INSURED PARTIES") fact that Jxxxx is or was a director or officer of the Company, or is or was serving at the request of the Company as a director, officer, employee, fiduciary or agent of another corporation, partnership, joint venture, trust or other enterprise, and whether or not the cause of such Proceeding occurred before or after the date of this Agreement. Jxxxx shall not settle any matter for which Jxxxx has sought or intends to seek indemnification hereunder without first attempting to obtain any approval required with respect to claims arising in whole or in part such settlement by the insurance carrier of any applicable D&O Coverage. If Jxxxx seeks such approval, but such approval is not granted by such insurance carrier, Jxxxx shall be entitled to indemnification from facts or events that actually or allegedly occurred at or before the Merger Effective Time, including in connection with the approval of this Agreement and the transactions contemplated hereby, on terms no less favorable Company to the Insured Parties than those fullest extent provided by such D&O Coverage or to the fullest extent otherwise provided by this Agreement, whichever shall be greater. The provision of Wyndham's present D&O Insurance; PROVIDED, HOWEVER, that Coverage by an insurance carrier at the expense of the Company or the failure to so provide D&O Coverage shall in no event shall Wyndham be required to expend annually more than 200% way limit or diminish the obligation of the annual premium currently paid by Wyndham for D&O Insurance (and if the cost for such D&O Insurance is in excess of such amountCompany to indemnify Jxxxx, Wyndham which obligation shall be required only to maintain such coverage as is available for such amount). In lieu absolute, provided that any amounts actually recovered by Jxxxx from the insurance carrier providing D&O Coverage shall be applied in reduction of amounts otherwise owing by the foregoing, Wyndham may, with the consent of the Investors, elect to obtain prepaid policies prior to the Merger Effective Time, which policies shall provide the Insured Parties with D&O Insurance of an equivalent amount and at least as favorable terms as that provided Company by Wyndham's current D&O Insurance for an aggregate period of at least six years with respect to claims arising in whole or in part from facts or events that actually or allegedly occurred at or before the Merger Effective Time, including in connection with the approval of this Agreement and the transactions contemplated hereby; PROVIDED, HOWEVER, that the aggregate premium for such prepaid policies shall not exceed six times 200% of the annual premium currently paid by Wyndham for such D&O Insurance. In addition, for a period of six years after the Merger Effective Time, Wyndham agrees that it shall not amend or waive any provision reason of its Charter or By-Laws relating to indemnification, advancement or exculpation rights in a manner which would adversely affect those entitled to the benefits of such provisions (the "COVERED PARTIES"). The covenants contained in indemnification under this Section 5.11 are intended to be for the benefit of, and shall be enforceable by, each of the Insured Parties and the Covered Parties and their respective heirs and legal representatives and shall not be deemed exclusive of any other rights to which an Insured Party or Covered Party is entitled, whether pursuant to law, contract or otherwise. In the event that Wyndham or any of its successors or assigns (i) consolidates with or merges into any other person and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers or conveys all or substantially all of its properties and assets to any person, then, and in each such case, proper provision shall be made so that the successors or assigns of Wyndham shall succeed to the obligations set forth in this Section 5.11Agreement.

D&O Insurance; Indemnification. For a period In addition to any indemnification rights that Executive may have under the Company’s bylaws, while employed by the Company and continuing until the later of six years after the Merger Effective Timesixth anniversary of the termination of Executive’s employment and the date on which all claims against Executive that would otherwise be covered by such policy (or policies) become fully time-barred, Wyndham the Company shall purchase and maintain, at its own expense, directors’ and officers’ liability insurance providing coverage to Executive on terms that are no less favorable than the coverage provided to directors and senior executives of the Company. The Company agrees that it shall maintain if Executive is made a directors' and officers' liability insurance policy party, or is threatened to be made a party, to any action, suit or proceeding, whether civil, criminal, administrative or investigative ("D&O INSURANCE") covering those persons whoeach, as a “Proceeding”), by reason of the date hereof fact that he is or was a director, officer or employee of the Company or is or was serving at the request of the Company as a director, officer, member, employee or agent of immediately prior to the Merger Effective Timeanother corporation, are covered by Wyndham's D&O Insurance (the "INSURED PARTIES") partnership, joint venture, trust or other enterprise, including service with respect to claims arising employee benefit plans, whether or not the basis of such Proceeding is Executive’s alleged action in whole an official capacity while serving as a director, officer, member, employee or agent, in part from facts each case, whether on, prior to, or events that actually following the Effective Date, Executive shall be indemnified and held harmless by the Company to the fullest extent permitted or allegedly occurred at authorized by applicable law and the Company’s bylaws, against all cost, expense, liability and loss reasonably incurred or before suffered by Executive in connection therewith, and such indemnification shall continue as to Executive even if he has ceased to be a director, member, employee or agent of the Merger Effective TimeCompany or other entity and shall inure to the benefit of Executive’s heirs, including executors and administrators. The Company may promptly advance to Executive all reasonable costs and expenses incurred by Executive in connection with any such action, suit or proceeding provided that Executive furnishes the approval of this Agreement and the transactions contemplated herebyCompany with a written undertaking, executed personally or on terms no less favorable Executive’s behalf, to the Insured Parties than those of Wyndham's present D&O Insurance; PROVIDED, HOWEVER, repay any advances if it is ultimately determined that in no event shall Wyndham be required to expend annually more than 200% of the annual premium currently paid by Wyndham for D&O Insurance (and if the cost for such D&O Insurance Executive is in excess of such amount, Wyndham shall be required only to maintain such coverage as is available for such amount). In lieu of the foregoing, Wyndham may, with the consent of the Investors, elect to obtain prepaid policies prior to the Merger Effective Time, which policies shall provide the Insured Parties with D&O Insurance of an equivalent amount and at least as favorable terms as that provided by Wyndham's current D&O Insurance for an aggregate period of at least six years with respect to claims arising in whole or in part from facts or events that actually or allegedly occurred at or before the Merger Effective Time, including in connection with the approval of this Agreement and the transactions contemplated hereby; PROVIDED, HOWEVER, that the aggregate premium for such prepaid policies shall not exceed six times 200% of the annual premium currently paid by Wyndham for such D&O Insurance. In addition, for a period of six years after the Merger Effective Time, Wyndham agrees that it shall not amend or waive any provision of its Charter or By-Laws relating to indemnification, advancement or exculpation rights in a manner which would adversely affect those entitled to be indemnified by the benefits of such provisions (the "COVERED PARTIES")Company. The covenants contained in this Section 5.11 are intended to be for the benefit of, and shall be enforceable by, each of the Insured Parties and the Covered Parties and their respective heirs and legal representatives and shall not be deemed exclusive of any other rights to which an Insured Party or Covered Party is entitled, whether pursuant to law, contract or otherwise. In the event that Wyndham or any of its successors or assigns (i) consolidates with or merges into any other person and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers or conveys all or substantially all of its properties and assets to any person, then, and in each such case, proper provision shall be made so that the successors or assigns of Wyndham shall succeed to the obligations set forth in this Section 5.11.EXECUTIVE EMPLOYMENT AGREEMENT

D&O Insurance; Indemnification. For a period of six years after The Company shall procure and keep in effect Director’s and Officer’s (“D&O”) Liability insurance coverage (“D&O Coverage”) throughout the Merger Effective TimeTerm and any Renewal Term(s), Wyndham agrees that it and Fxxxxx will be eligible to receive all benefits provided thereunder, with the policy listing Fxxxxx as an insured. Such D&O insurance shall maintain a directors' and officers' liability insurance policy ("D&O INSURANCE") covering those persons who, be procured in an amount not less than the current coverage amount in effect as of the date hereof or as execution of immediately prior this Agreement, and in any event no less advantageous than that which is in effect for other directors and officers of the Company. The Company further agrees to indemnify and hold harmless Fxxxxx (which shall include any of his legal representatives) to the Merger Effective Timefullest extent authorized by law, are covered from and against any expenses (including reasonable fees and costs of counsel, accountants and other experts), judgments, fines, liabilities, losses and amounts reasonably incurred by Wyndham's D&O Insurance Fxxxxx in connection with any threatened, pending or completed action, suit, claim or proceeding (hereinafter, a “Proceeding”), whether civil, criminal, administrative or investigative, by reason of the "INSURED PARTIES") fact that Fxxxxx is or was a director or officer of the Company, or is or was serving at the request of the Company as a director, officer, employee, fiduciary or agent of another corporation, partnership, joint venture, trust or other enterprise, and whether or not the cause of such Proceeding occurred before or after the date of this Agreement. Fxxxxx shall not settle any matter for which Fxxxxx has sought or intends to seek indemnification hereunder without first attempting to obtain any approval required with respect to claims arising in whole or in part such settlement by the insurance carrier of any applicable D&O Coverage. If Fxxxxx seeks such approval, but such approval is not granted by such insurance carrier, Fxxxxx shall be entitled to indemnification from facts or events that actually or allegedly occurred at or before the Merger Effective Time, including in connection with the approval of this Agreement and the transactions contemplated hereby, on terms no less favorable Company to the Insured Parties than those fullest extent provided by such D&O Coverage or to the fullest extent otherwise provided by this Agreement, whichever shall be greater. The provision of Wyndham's present D&O Insurance; PROVIDED, HOWEVER, that Coverage by an insurance carrier at the expense of the Company or the failure to so provide D&O Coverage shall in no event shall Wyndham be required to expend annually more than 200% way limit or diminish the obligation of the annual premium currently paid by Wyndham for D&O Insurance (and if the cost for such D&O Insurance is in excess of such amountCompany to indemnify Fxxxxx, Wyndham which obligation shall be required only to maintain such coverage as is available for such amount). In lieu absolute, provided that any amounts actually recovered by Fxxxxx from the insurance carrier providing D&O Coverage shall be applied in reduction of amounts otherwise owing by the foregoing, Wyndham may, with the consent of the Investors, elect to obtain prepaid policies prior to the Merger Effective Time, which policies shall provide the Insured Parties with D&O Insurance of an equivalent amount and at least as favorable terms as that provided Company by Wyndham's current D&O Insurance for an aggregate period of at least six years with respect to claims arising in whole or in part from facts or events that actually or allegedly occurred at or before the Merger Effective Time, including in connection with the approval of this Agreement and the transactions contemplated hereby; PROVIDED, HOWEVER, that the aggregate premium for such prepaid policies shall not exceed six times 200% of the annual premium currently paid by Wyndham for such D&O Insurance. In addition, for a period of six years after the Merger Effective Time, Wyndham agrees that it shall not amend or waive any provision reason of its Charter or By-Laws relating to indemnification, advancement or exculpation rights in a manner which would adversely affect those entitled to the benefits of such provisions (the "COVERED PARTIES"). The covenants contained in indemnification under this Section 5.11 are intended to be for the benefit of, and shall be enforceable by, each of the Insured Parties and the Covered Parties and their respective heirs and legal representatives and shall not be deemed exclusive of any other rights to which an Insured Party or Covered Party is entitled, whether pursuant to law, contract or otherwise. In the event that Wyndham or any of its successors or assigns (i) consolidates with or merges into any other person and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers or conveys all or substantially all of its properties and assets to any person, then, and in each such case, proper provision shall be made so that the successors or assigns of Wyndham shall succeed to the obligations set forth in this Section 5.11Agreement.