INDEMNIFICATION AGREEMENT
Exhibit
10.115
THIS
INDEMNIFICATION AGREEMENT (“Agreement”) is made and entered into as of the 13th
day of May, 2005, by and among CNL Hotels & Resorts, Inc., a Maryland
corporation (the “Company”) and ________________________, a director of the
Company (the “Indemnitee”).
WITNESSETH:
WHEREAS,
the interpretation of ambiguous statutes, regulations, articles of incorporation
and bylaws regarding indemnification of directors and officers may be too
uncertain to provide such directors and officers with adequate notice of the
legal, financial and other risks to which they may be exposed by virtue of their
service as such; and
WHEREAS,
damages sought against directors and officers in shareholder or similar
litigation by class action plaintiffs may be substantial, and the costs of
defending such actions and of judgments in favor of’ plaintiffs or of settlement
therewith may be prohibitive for individual directors and officers, without
regard to the merits of a particular action and without regard to the
culpability of, or the receipt of improper personal benefit by, any named
director or officer to the detriment of the corporation; and
WHEREAS,
the issues in controversy in such litigation usually relate to the knowledge,
motives and intent of the director or officer, who may be the only person with
firsthand knowledge of essential facts or exculpating circumstances who is
qualified to testify in his defense regarding matters of such a subjective
nature, and the long period of time which may elapse before final disposition of
such litigation may impose undue hardship and burden on a director or officer or
his estate in launching and maintaining a proper and adequate defense of himself
or his estate against claims for damages; and
WHEREAS,
the Company is organized under the Maryland General Corporation Law (the “MGCL”)
and Section 2-418 of the MGCL empowers corporations to indemnify and advance
expenses of litigation to a person serving as a director, officer, employee or
agent of a corporation and to persons serving at the request of the corporation,
while a director of a corporation, as a director, officer, partner, trustee,
employee or agent of another foreign or domestic corporation, partnership, joint
venture, trust, other enterprise or employee benefit plan, and further provides
that the indemnification and advancement of expenses set forth in said section,
subject to certain limitations are not “exclusive of any other rights, by
indemnification or otherwise, to which a director may be entitled under the
charter, the bylaws, a resolution of stockholders or directors, an agreement or
otherwise, both as to action in an official capacity and as to action in another
capacity while holding such office”; and
WHEREAS,
the Articles of Incorporation of the Company, as they may be amended or amended
and restated from time to time (the “Articles of Incorporation”), provide that
the Company shall indemnify and hold harmless directors, advisors, or
affiliates, as such terms are defined in the Articles of Incorporation;
and
WHEREAS,
the Board of Directors of the Company (the “Board”) has concluded that it is
reasonable and prudent for the Company contractually to obligate itself to
indemnify in a reasonable and adequate manner the Indemnitee and to assume for
itself maximum liability for expenses and damages in connection with claims
lodged against Indemnitee for Indemnitee’s decisions and actions as a director
of the Company and any of its subsidiaries or affiliates (collectively,
“Affiliates”) .
NOW,
THEREFORE, in consideration of the foregoing, and of other good and valuable
consideration, the receipt and sufficiency of which is acknowledged by each of
the parties hereto, the parties agree as follows:
I.
DEFINITIONS
For
purposes of this Agreement, the following terms shall have the meanings set
forth below:
A. “Board” shall
mean the Board of Directors of the Company.
B. “Change
in Control” shall
mean a change in the ownership or power to direct the Voting Securities of the
Company or the acquisition by a person not affiliated with the Company of the
ability to direct the management of the Company.
C. “Corporate
Status” shall
mean the status of a person who is or was a director or officer of the Company
or any of the Affiliates, or a member of any committee of the Board, and the
status of a person who, while a director or officer of the Company, is or was
serving at the request of the Company as a director, officer, partner (including
service as a general partner of any limited partnership), trustee, employee, or
agent of another foreign or domestic corporation, partnership, joint venture,
trust, other incorporated or unincorporated entity or enterprise or employee
benefit plan.
D. “Disinterested
Director” shall
mean a director of the Company who neither is nor was a party to the Proceeding
in respect of which indemnification is being sought by the
Indemnitee.
E. “Expenses” shall
mean without limitation expenses of Proceedings including all attorneys’ fees,
retainers, court costs, transcript costs, fees of experts, investigation fees
and expenses, accounting and 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.
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F. “Good
Faith Act or Omission” shall
mean an act or omission of the Indemnitee reasonably believed by the Indemnitee
to be in or not opposed to the best interests of the Company or the Affiliates
and other than (i) one involving negligence or misconduct, or, if the Indemnitee
is an independent director, one involving gross negligence or willful
misconduct; (ii) one that was material to the loss or liability and that was
committed in bad faith or that was the result of active or deliberate
dishonesty; (iii) one from which the Indemnitee actually received an improper
personal benefit in money, property or services; or (iv) in the case of a
criminal Proceeding, one as to which the Indemnitee had cause to believe his
conduct was unlawful.
G. “Liabilities” shall
mean liabilities of any type whatsoever, including, without limitation, any
judgments, fines, excise taxes and penalties under the Employee Retirement
Income Security Act of 1974, as amended, penalties and amounts paid in
settlement (including all interest, assessments and other charges paid or
payable in connection with or in respect of such judgments, fines, penalties or
amounts paid in settlement) in connection with the investigation, defense,
settlement or appeal of any Proceeding or any claim, issue or matter
therein.
H. “Proceeding” shall
mean any threatened, pending or completed action, suit, arbitration, alternate
dispute resolution mechanism, investigation, administrative hearing or any other
actual, threatened or completed proceeding whether civil, criminal,
administrative or investigative, or any appeal therefrom.
I. “Voting
Securities” shall
mean any securities of the Company that are entitled to vote generally in the
election of directors.
II.
TERMINATION
OF AGREEMENT
This
Agreement shall be retroactive to Indemnitee’s first date of service as a
director of the Company and any of its Affiliates, and shall continue until, and
terminate upon the later to occur of (i) the death of the Indemnitee; (ii) the
final termination of all Proceedings (including possible Proceedings) in respect
of which the Indemnitee is granted rights of indemnification or advancement of
Expenses hereunder and of any proceeding commenced by the Indemnitee regarding
the interpretation or enforcement of this Agreement; or (iii) the amendment of
the Articles of Incorporation of the Company to expressly include an indemnity
of its officers to the extent herein provided.
III.
SERVICE
BY INDEMNITEE, NOTICE OF
PROCEEDINGS,
DEFENSE OF CLAIMS
A. Notice
of Proceedings. The
Indemnitee agrees to notify the Company promptly in writing upon being served
with any summons, citation, subpoena, complaint, indictment, information or
other document relating to any Proceeding or matter which may be subject to
indemnification or advancement of Expenses covered hereunder, but the
Indemnitee’s omission
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to so
notify the Company shall not relieve the Company from any liability which it may
have to the Indemnitee under this Agreement.
B. Defense
of Claims. The
Company will be entitled to participate, at its own expense, in any Proceeding
of which it has notice. The Company jointly with any other indemnifying party
similarly notified of any Proceeding will be entitled to assume the defense of
the Indemnitee therein, with counsel reasonably satisfactory to the Indemnitee;
provided, however, that the Company shall not be entitled to assume the defense
of the Indemnitee in any Proceeding if there has been a Change in Control or if
the Indemnitee has reasonably concluded that there may be a conflict of interest
between the Company and the Indemnitee with respect to such Proceeding. The
Company will not be liable to the Indemnitee under this Agreement for any
Expenses incurred by the Indemnitee in connection with the defense of any
Proceeding, other than reasonable costs of investigation or as otherwise
provided below, after notice from the Company to the Indemnitee of its election
to assume the defense of the Indemnitee therein. The Indemnitee shall have the
right to employ his own counsel in any such Proceeding, but the fees and
expenses of such counsel incurred after notice from the Company of its
assumption of the defense thereof shall be at the expense of the Indemnitee
unless (i) the employment of counsel by the Indemnitee has been authorized by
the Company; (ii) the Indemnitee shall have reasonably concluded that counsel
employed by the Company may not adequately represent the Indemnitee and shall
have so informed the Company; or (iii) the Company shall not in fact have
employed counsel to assume the defense of the Indemnitee in such Proceeding or
such counsel shall not, in fact, have assumed such defense or such counsel shall
not be acting, in connection therewith, with reasonable diligence; and in each
such case the fees and expenses of the Indemnitee’s counsel shall be advanced by
the Company in accordance with this Agreement.
C. Settlement
of Claims. The
Company shall not settle any Proceeding in any manner which would impose any
liability, penalty or limitation on the Indemnitee without the written consent
of the Indemnitee; provided, however, that the Indemnitee will not unreasonably
withhold or delay consent to any proposed settlement. The Company shall not be
liable to indemnify the Indemnitee under this Agreement or otherwise for any
amounts paid in settlement of any Proceeding effected by the Indemnitee without
the Company’s written consent, which consent shall not be unreasonably withheld
or delayed.
IV.
INDEMNIFICATION
A. In
General. Upon
the terms and subject to the conditions set forth in this Agreement, the Company
shall hold harmless and indemnify the Indemnitee against any and all Liabilities
actually incurred by or for him in connection with any Proceeding (whether the
Indemnitee is or becomes a party, a witness or otherwise is a participant in any
role) to the fullest extent required or permitted by the Articles of
Incorporation and by applicable law in effect on the date hereof and to such
greater extent as applicable law may hereafter from time to time permit. For all
matters for which the Indemnitee is entitled to indemnification under this
Article IV, the Indemnitee shall be entitled to advancement of Expenses in
accordance with Article V hereof.
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B. Proceeding
Other Than a Proceeding by or in the Right of the Company. If the
Indemnitee was or is a party or is threatened to be made a party to any
Proceeding (whether the Indemnitee is or becomes a party, a witness or otherwise
is a participant in any role) (other than a Proceeding by or in the right of the
Company or any Affiliate) by reason of Indemnitee’s Corporate Status, or by
reason of alleged action or inaction by Indemnitee in any such capacity, the
Company shall, subject to the limitations set forth in Section IV.F. below, hold
harmless and indemnify Indemnitee against any and all Expenses and Liabilities
actually and reasonably incurred by or for the Indemnitee in connection with the
Proceeding if the act(s) or omission(s) of the Indemnitee giving rise thereto
were Good Faith Act(s) or Omission(s).
C. Proceedings
by or in the Right of the Company. If the
Indemnitee was or is a party or is threatened to be made a party to any
Proceeding (whether the Indemnitee is or becomes a party, a witness or otherwise
is a participant in any role) by or in the right of the Company or any Affiliate
to procure a judgment in its favor by reason of Indemnitee’s Corporate Status,
or by reason of any action or inaction by Indemnitee in any such capacity, the
Company shall, subject to the limitations set forth in Section IV.F. below, hold
harmless and indemnify Indemnitee against any and all Expenses actually incurred
by or for Indemnitee in connection with the investigation, defense, settlement
or appeal of such Proceeding if the act(s) or omission(s) of the Indemnitee
giving rise to the Proceeding were Good Faith Act(s) or Omission(s); except that
no indemnification under this Section IV.C. shall be made in respect of any
claim, issue or matter as to which the Indemnitee shall have been finally
adjudged to be liable to the Company or any Affiliate, unless a court of
appropriate jurisdiction (including, but not limited to, the court in which such
Proceeding was brought) shall determine upon application that, despite the
adjudication of liability but in view of all the circumstances of the case,
regardless of whether the Indemnitee’s act(s) or omission(s) were found to be a
Good Faith Act(s) or Omission(s), the Indemnitee is fairly and reasonably
entitled to indemnification for such Expenses which such court shall deem
proper.
D. Indemnification
of a Party Who is Wholly or Partly Successful.
Notwithstanding any other provision of this Agreement, to the extent that the
Indemnitee is, by reason of the Indemnitee’s Corporate Status, a party to and is
successful, on the merits or otherwise, in any Proceeding, the Indemnitee shall
be indemnified by the Company to the maximum extent consistent with applicable
law, against all Expenses and Liabilities actually incurred by or for him in
connection therewith. If the 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
hold harmless and indemnify the Indemnitee to the maximum extent consistent with
applicable law, against all Expenses and Liabilities actually and reasonably
incurred by or for Indemnitee in connection with each successfully resolved
claim, issue or matter in such Proceeding. Resolution of a claim, issue or
matter by dismissal, with or without prejudice, except as provided in subsection
F hereof, shall be deemed a successful result as to such claim, issue or matter,
so long as there has been no finding (either adjudicated or pursuant to Article
VI hereof) that the act(s) or omission(s) of the Indemnitee giving rise thereto
were not a Good Faith Act(s) or Omission(s).
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E. Indemnification
for Expenses of Witness.
Notwithstanding any other provision of this Agreement, to the extent that the
Indemnitee, by reason of the Indemnitee’s Corporate Status, has prepared to
serve or has served as a witness in any Proceeding, or has participated in
discovery proceedings or other trial preparation, the Indemnitee shall be held
harmless and indemnified against all Expenses actually and reasonably incurred
by or for him in connection therewith.
F. Specific
Limitations on Indemnification. In
addition to the other limitations set forth in this Article IV, and
notwithstanding anything in this Agreement to the contrary, the Company shall
not be obligated under this Agreement to make any payment to the Indemnitee for
indemnification with respect to any Proceeding:
1. To the
extent that payment is actually made to the Indemnitee under any insurance
policy or is made on behalf of the Indemnitee by or on behalf of the Company
otherwise than pursuant to this Agreement.
2. If a
court in such Proceeding has entered a judgment or other adjudication which is
final and has become nonappealable and establishes that a claim of the
Indemnitee for such indemnification arose from: (i) a breach by the Indemnitee
of the Indemnitee’s duty of loyalty to the Company or its shareholders; (ii)
acts or omissions of the Indemnitee that are not Good Faith Acts or Omissions or
which are the result of active and deliberate dishonesty; (iii) acts or
omissions of the Indemnitee which the Indemnitee had reasonable cause to believe
were unlawful; or (iv) a transaction in which the Indemnitee actually received
an improper personal benefit in money, property or services.
3. If there
has been no Change in Control, for Liabilities in connection with Proceedings
settled without the consent of the Company which consent, however, shall not be
unreasonably withheld.
4. For any
loss or liability arising from an alleged violation of federal or state
securities laws unless one or more of the following conditions are met: (i)
there has been a successful adjudication on the merits of each count involving
alleged securities law violations as to the Indemnitee, (ii) such claims have
been dismissed with prejudice on the merits by a court of competent jurisdiction
as to the Indemnitee; or (iii) a court of competent jurisdiction approves a
settlement of the claims against the Indemnitee and finds that indemnification
of the settlement and the related costs should be made, and the court
considering the request for indemnification has been advised of the position of
the Securities and Exchange Commission and of the published position of any
state securities regulatory authority in which securities of the Company were
offered or sold as to indemnification for violations of securities
laws.
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V.
ADVANCEMENT
OF EXPENSES
Notwithstanding
any provision to the contrary in Article VI hereof, the Company shall advance to
the Indemnitee all Expenses which, by reason of the Indemnitee’s Corporate
Status, were incurred by or for Indemnitee in connection with any Proceeding for
which the Indemnitee is entitled to indemnification pursuant to Article IV
hereof, in advance of the final disposition of such Proceeding, provided that
all of the following are satisfied: (i) the Indemnitee was made a party to the
proceeding by reason of Indemnitee’s service as a director or officer of the
Company, (ii) the Indemnitee provides the Company with written affirmation of
Indemnitee’s good faith belief that Indemnitee has met the standard of conduct
necessary for indemnification by the Company pursuant to Article IV hereof,
(iii) the Indemnitee provides the Company with a written agreement (the
“Undertaking”) to repay the amount paid or reimbursed by the Company, together
with the applicable legal rate of interest thereon, if it is ultimately
determined that the Indemnitee did not comply with the requisite standard of
conduct, and (iv) the legal proceeding was initiated by a third party who is not
a stockholder of the Company or, if by a stockholder of the Company acting in
his or her capacity as such, a court of competent jurisdiction approves such
advancement. The Indemnitee shall be required to execute and submit the
Undertaking to repay Expenses advanced in the form of Exhibit A attached hereto
or in such form as may be required under applicable law as in effect at the time
of execution thereof. The Undertaking shall reasonably evidence the Expenses
incurred by or for the Indemnitee and shall contain the written affirmation by
the Indemnitee, described above, of Indemnitee’s good faith belief that the
standard of conduct necessary for indemnification has been met. The Company
shall advance such expenses within five (5) business days after the receipt by
the Company of the Undertaking. The Indemnitee hereby agrees to repay any
Expenses advanced hereunder if it shall ultimately be determined that the
Indemnitee is not entitled to be indemnified against such Expenses. Any advances
and the undertaking to repay pursuant to this Article V shall be
unsecured.
VI.
PROCEDURE
FOR PAYMENT OF LIABILITIES;
DETERMINATION
OF RIGHT TO INDEMNIFICATION
A. Procedure
for Payment. To
obtain indemnification for Liabilities under this Agreement, the Indemnitee
shall submit to the Company a written request for payment, including with such
request such documentation as is reasonably available to the Indemnitee and
reasonably necessary to determine whether, and to what extent, the Indemnitee is
entitled to indemnification and payment hereunder. The Secretary of the Company,
or such other person as shall be designated by the Board of Directors, promptly
upon receipt of a request for indemnification shall advise the Board of
Directors, in writing, of such request. Any indemnification payment due
hereunder shall be paid by the Company no later than five (5) business days
following the determination, pursuant to this Article VI, that such
indemnification payment is proper hereunder.
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B. No
Determination Necessary when the Indemnitee was Successful. To the
extent the Indemnitee has been successful, on the merits or otherwise, in
defense of any Proceeding referred to in Sections IV.B. or IV.C. above or in the
defense of any claim, issue or matter described therein, the Company shall
indemnify the Indemnitee against Expenses actually and reasonably incurred by or
for Indemnitee in connection with the investigation, defense or appeal of such
Proceeding.
C. Determination
of Good Faith Act or Omission. In the
event that Section VI.B. is inapplicable, the Company also shall hold harmless
and indemnify the Indemnitee unless the Company shall prove by clear and
convincing evidence to a forum listed in Section VI.D. below that the act(s) or
omission(s) of the Indemnitee giving rise to the Proceeding were not Good Faith
Act(s) or Omission(s).
D. Forum
for Determination. The
Indemnitee shall be entitled to select from among the following the forums, in
which the validity of the Company’s claim under Section VI.C., above, that the
Indemnitee is not entitled to indemnification will be heard:
1. A quorum
of the Board consisting of Disinterested Directors;
2. The
shareholders of the Company;
3. Legal
counsel selected by the Indemnitee, subject to the approval of the Board, which
approval shall not be unreasonably delayed or denied, which counsel shall make
such determination in a written opinion; or
4. A panel
of three arbitrators, one of whom is selected by the Company, another of whom is
selected by the Indemnitee and the last of whom is selected jointly by the first
two arbitrators so selected.
As soon
as practicable, and in no event later than thirty (30) days after written notice
of the Indemnitee’s choice of forum pursuant to this Section VI.D., the Company
shall, at its own expense, submit to the selected forum in such manner as the
Indemnitee or the Indemnitee’s counsel may reasonably request, its claim that
the Indemnitee is not entitled to indemnification, and the Company shall act in
the utmost good faith to assure the Indemnitee a complete opportunity to defend
against such claim. The fees and expenses of the selected forum in connection
with making the determination contemplated hereunder shall be paid by the
Company. If the Company shall fail to submit the matter to the selected forum
within thirty (30) days after the Indemnitee’s written notice or if the forum so
empowered to make the determination shall have failed to make the requested
determination within thirty (30) days after the matter has been submitted to it
by the Company, the requisite determination that the Indemnitee has the right to
indemnification shall be deemed to have been made.
E. Right
to Appeal.
Notwithstanding a determination by any forum listed in Section VI.D. above that
the Indemnitee is not entitled to indemnification with respect to a specific
Proceeding, the Indemnitee shall have the right to apply to the court in which
that Proceeding is
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or was
pending, or to any other court of competent jurisdiction, for the purpose of
enforcing the Indemnitee’s right to indemnification pursuant to this Agreement.
Such enforcement action shall consider the Indemnitee’s entitlement to
indemnification de novo, and the Indemnitee shall not be prejudiced by reason of
a prior determination that the Indemnitee is not entitled to indemnification.
The Company shall be precluded from asserting that the procedures and
presumptions of this Agreement are not valid, binding and enforceable. The
Company further agrees to stipulate in any such judicial proceeding that the
Company is bound by all the provisions of this Agreement and is precluded from
making any assertion to the contrary.
F. Right
to Seek Judicial Determination.
Notwithstanding any other provision of this Agreement to the contrary, at any
time after sixty (60) days after a request for indemnification has been made to
the Company (or upon earlier receipt of written notice that a request for
indemnification has been rejected) and before the third (3rd) anniversary of the
making of such indemnification request, the Indemnitee may petition a court of
competent jurisdiction, whether or not the court has jurisdiction over, or is
the forum in which is pending, the Proceeding, to determine whether the
Indemnitee is entitled to indemnification hereunder, and such court thereupon
shall have the exclusive authority to make such determination, unless and until
such court dismisses or otherwise terminates the Indemnitee’s action without
having made such determination. The court, as petitioned, shall make an
independent determination of whether the Indemnitee is entitled to
indemnification hereunder, without regard to any prior determination in any
other forum as provided hereby.
G. Expenses
under this Agreement.
Notwithstanding any other provision in this Agreement to the contrary, the
Company shall indemnify the Indemnitee against all Expenses incurred by the
Indemnitee in connection with any hearing or proceeding under this Section Vi
involving the Indemnitee and against all Expenses incurred by the Indemnitee in
connection with any other action between the Company and the Indemnitee
involving the interpretation or enforcement of the rights of the Indemnitee
under this Agreement, even if it is finally determined that the Indemnitee is
not entitled to indemnification in whole or in part hereunder.
VII.
PRESUMPTIONS
AND EFFECT
OF
CERTAIN PROCEEDINGS
A. Burden
of Proof. In
making a determination with respect to entitlement to indemnification hereunder,
the person, persons, entity or entities making such determination shall presume
that the Indemnitee is entitled to indemnification under this Agreement and the
Company shall have the burden of proof to overcome that
presumption.
B. Effect
of Other Proceedings. The
termination of any Proceeding or of any claim, issue or matter therein, by
judgment, order or settlement shall not create a presumption that the act(s) or
omission(s) giving rise to the Proceeding were not Good Faith Act(s) or
Omission(s). The termination of any Proceeding by conviction, or upon a plea of
non contendere, or its equivalent, or an entry of an order of probation prior to
judgment, shall create a rebuttable presumption that the act(s) or omission(s)
of the Indemnitee giving rise to the Proceeding were not Good Faith Act(s) or
Omission(s).
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C. Reliance
as Safe Harbor. For
purposes of any determination of whether any act or omission of the Indemnitee
was a Good Faith Act or Omission, each act of the Indemnitee shall be deemed to
be a Good Faith Act or Omission if the indemnitee’s action is based on the
records or books of accounts of the Company, including financial statements, or
on information supplied to the Indemnitee by the officers of the Company in the
course of their duties, or on the advice of legal counsel for the Company or on
information or records given or reports made to the Company by an independent
certified public accountant or by an appraiser or other expert selected with
reasonable care by the Company. The provisions of this Section VII.C. shall not
be deemed to be exclusive or to limit in any way the other circumstances in
which the Indemnitee may be deemed to have met the applicable standard of
conduct set forth in this Agreement or under applicable law.
D. Actions
of Others. The
knowledge and/or actions, or failure to act, of any director, officer, agent or
employee of the Company shall not be imputed to the Indemnitee for purposes of
determining the right to indemnification under this Agreement.
VIII.
INSURANCE
In the
event that the Company maintains officers’ and directors’ or similar liability
insurance to protect itself and any director or officer of the Company against
any expense, liability or loss, such insurance shall cover the Indemnitee to at
least the same degree as each other director and/or officer of the
Company.
IX.
OBLIGATIONS
OF THE COMPANY
UPON
A CHANGE IN CONTROL
In the
event of a Change in Control, upon written request of the Indemnitee the Company
shall establish a trust for the benefit of the Indemnitee hereunder (a “Trust”)
and from time to time, upon written request from the Indemnitee, shall fund the
Trust in an amount sufficient to satisfy all amounts actually paid hereunder as
indemnification for Liabilities or Expenses (including those paid in advance) or
which the Indemnitee reasonably determines and demonstrates, from time to time,
may be payable by the Company hereunder. The amount or amounts to be deposited
in the Trust shall be determined by legal counsel selected by the Indemnitee and
approved by the Company, which approval shall not be unreasonably withheld. The
terms of the Trust shall provide that (i) the Trust shall not be dissolved or
the principal thereof invaded without the written consent of the Indemnitee;
(ii) the trustee of the Trust (the “Trustee”) shall be selected by the
Indemnitee; (iii) the Trustee shall make advances to the Indemnitee for Expenses
within ten (10) business days following receipt of a written request therefor
(and the Indemnitee hereby agrees to reimburse the Trust under the circumstances
under which the Indemnitee would be required to reimburse the Company under
Article V hereof; (iv) the Company shall continue to fund the Trust from time to
time in accordance with its funding obligations hereunder; (v) the Trustee
promptly shall pay to the Indemnitee all amounts as to
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which
indemnification is due under this Agreement; (vi) unless the Indemnitee agrees
otherwise in writing, the Trust for the Indemnitee shall be kept separate from
any other trust established for any other person to whom indemnification might
be due by the Company; and (vii) all unexpended funds in the Trust shall revert
to the Company upon final, nonappealable determination by a court of competent
jurisdiction that the Indemnitee has been indemnified to the full extent
required under this Agreement.
X.
NON-EXCLUSIVITY,
SUBROGATION
AND MISCELLANEOUS
A. Non-Exclusivity. The
rights of the Indemnitee hereunder shall not be deemed exclusive of any other
rights to which the Indemnitee may at any time be entitled under any provision
of law, the Articles of Incorporation, the Bylaws of the Company, as the same
may be in effect from time to time, any agreement, a vote of shareholders of the
Company or a resolution of directors of the Company or otherwise, and to the
extent that during the term of this Agreement the rights of the then-existing
directors and officers of the Company are more favorable to such directors or
officers than the rights currently provided to the Indemnitee under this
Agreement, the Indemnitee shall be entitled to the full benefits of such more
favorable rights.
No
amendment, alteration, rescission or replacement of this Agreement or any
provision hereof which would in any way limit the benefits and protections
afforded to an Indemnitee hereby shall be effective as to such Indemnitee with
respect to any action or inaction by such Indemnitee in the Indemnitee’s
Corporate Status prior to such amendment, alteration, rescission or
replacement.
B. Subrogation. 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 the Indemnitee,
who shall execute all documents 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.
C. Notices. All
notices, requests, demands and other communications hereunder shall be in
writing and shall be deemed to have been duly given (i) if delivered by hand, by
courier or by telegram and receipted for by the party to whom said notice or
other communication shall have been directed at the time indicated on such
receipt; (ii) if by facsimile at the time shown on the confirmation of such
facsimile transmission; or (iii) if by U.S. certified or registered mail, with
postage prepaid, on the third business day after the date on which it is so
mailed:
If to the
Indemnitee, as shown with the Indemnitee’s signature below.
If to the
Company to:
CNL
Hotels & Resorts, Inc.
000 Xxxxx
Xxxxxx Xxxxxx
Xxxxxxx,
XX 00000
Attention: President
Facsimile
No. (000)000-0000
11
or to
such other address as may have been furnished to the Indemnitee by the Company
or to the Company by the Indemnitee, as the case may be.
D. Governing
Law. The
parties agree that this Agreement shall be governed by, and construed and
enforced in accordance with, the substantive laws of the State of Maryland,
without application of the conflict of laws principles thereof.
E. Binding
Effect. Except
as otherwise provided in this Agreement, this Agreement shall be binding upon
and inure to the benefit of the parties hereto and their heirs, executors,
administrators, successors, legal representatives and permitted assigns. The
Company shall require any successor or assignee (whether direct or indirect, by
purchase, merger, consolidation or otherwise) to all or substantially all of its
respective assets or business, by written agreement in form and substance
reasonably satisfactory to the Indemnitee, expressly to assume and agree to be
bound by and to perform this Agreement in the same manner and to the same extent
as the Company would be required to perform absent such succession or
assignment.
F. Waiver. No
termination, cancellation, modification, amendment, deletion, addition or other
change in this Agreement, or any provision hereof, or waiver of any right or
remedy herein, shall be effective for any purpose unless specifically set forth
in a writing signed by the party or parties to be bound thereby. The waiver of
any right or remedy with respect to any occurrence on one occasion shall not be
deemed a waiver of such right or remedy with respect to such occurrence on any
other occasion.
G. Entire
Agreement. This
Agreement, constitutes the entire agreement and understanding among the parties
hereto in reference to the subject matter hereof; provided, however, that the
parties acknowledge and agree that the Amended and Restated Articles of
Incorporation of the Company contain provisions on the subject matter hereof and
that this Agreement is not intended to, and does not, limit the rights or
obligations of the parties hereto pursuant to such instruments.
H. Titles. The
titles to the articles and sections of this Agreement are inserted for
convenience of reference only and should not be deemed a part hereof or affect
the construction or interpretation of any provisions hereof.
I. Invalidity
of Provisions. Every
provision of this Agreement is severable, and the invalidity or unenforceability
of any term or provision shall not effect the validity or of the remainder of
this Agreement.
J. Pronouns
and Plurals.
Whenever the context may require, any pronoun used in this Agreement shall
include the corresponding masculine, feminine or neuter forms, and the singular
form of nouns, pronouns and verbs shall include the plural and vice
versa.
K. Counterparts. This
Agreement may be executed in two or more counterparts, each of which shall be
deemed an original, but all of which together constitute one agreement binding
on all the parties hereto.
12
IN
WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day
and year first above written.
|
CNL
HOTELS & RESORTS, INC.
By:
Name:
Xxxx
X. Xxxxxxxx
Title:
President
and Chief Operating Officer
________________________,
as INDEMNITEE
Name:
_______________________________
Title:
________________________________
Address:
_____________________________
Facsimile
No.:__________________________
|
13
EXHIBIT
A
FORM
OF UNDERTAKING TO REPAY EXPENSES ADVANCED
The Board
of Directors of CNL Hotels & Resorts, Inc.
Re: Undertaking
to Repay Expenses Advanced
Ladies
and Gentlemen:
This
undertaking is being provided pursuant to that certain Indemnification Agreement
dated the ____ day of May, 2005, by and among CNL Hotels & Resorts, Inc. and
the undersigned Indemnitee (the “Indemnification Agreement”), pursuant to which
I am entitled to advancement 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. During the period of time
to which the Proceeding relates I was — [name of office(s) held] of CNL Hotels
& Resorts, Inc. Pursuant to Section IV of the Indemnification Agreement, the
Company is obligated to reimburse me for Expenses that are actually and
reasonably incurred by or for me in connection with the Proceeding, provided
that I execute and submit to the Company an Undertaking in which I (i) undertake
to repay any Expenses paid by the Company on my behalf, together with the
applicable legal rate of interest thereon, if it shall be ultimately determined
that I am not entitled to be indemnified thereby against such Expenses; (ii)
affirm my good faith belief that I have met the standard of conduct necessary
for indemnification; and (iii) reasonably evidence the Expenses incurred by or
for me.
[Description
of expenses incurred by or for Indemnitee]
This
letter shall constitute my undertaking to repay to the Company any Expenses paid
by it on my behalf, together with the applicable legal rate of interest thereon,
in connection with the Proceeding if it is ultimately determined that I am not
entitled to be indemnified with respect to such Expenses as set forth above. I
hereby affirm my good faith belief that I have met the standard of conduct
necessary for indemnification and that I am entitled to such
indemnification.
__________________________
Signature
__________________________
Name
__________________________
Date
14
