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EXHIBIT 10.1
INDEMNIFICATION AGREEMENT
This Indemnification Agreement (this "Agreement") is made as of the
24th day of August, 1998 between Starwood Hotels & Resorts Worldwide, Inc. a
Maryland corporation (the "Corporation") and Xxxxxx X. Xxxxxx, Xx.
("Indemnitee"), with reference to the following facts and objectives:
A. Indemnitee is a Director or officer of the Corporation or one or
more of its subsidiaries or has been elected or appointed a Director or officer
of the Corporation or one or more of its subsidiaries to take effect on a later
date.
B. Article Tenth of the Amended and Restated Articles of Incorporation
of the Corporation (the "Corporation Articles") provides for the indemnification
of directors ("Directors"), officers, employees and other agents of the
Corporation to the fullest extent required or permitted under the Maryland
General Corporation Law (the "MGCL").
C. Each of Section 2-418 of the MGCL and Article Tenth of the
Corporation Articles specifically provides that the indemnification provided for
therein is not exclusive, and thereby contemplates that agreements or other
financial arrangements may be entered into between the Corporation, on the one
hand, and the Corporation's Directors and officers, on the other hand, with
respect to the indemnification of and advancement of expenses to such persons.
D. In recognition of Indemnitee's need for substantial protection
against personal liability in order to maintain Indemnitee's continued service
to the Corporation in an effective manner and Indemnitee's reliance on the
Corporation Articles, and in part to provide Indemnitee with specific
contractual assurance that the protection promised by the Corporation Articles
will be available to Indemnitee (regardless of, among other things, any
limitation or other amendment or revocation of Article Tenth of the Corporation
Articles or any change in the composition of the Corporation's Board of
Directors (the "Board of Directors")), the Corporation desires to provide in
this Agreement for the indemnification of and the advancing of expenses to
Indemnitee to the full extent (whether partial or complete) permitted by law, as
set forth in this Agreement, and, to the extent directors' and officers'
insurance is maintained by the Corporation, for the continued coverage of
Indemnitee under such policy or policies.
NOW, THEREFORE, in consideration of the premises and of
Indemnitee's continuing to serve the Corporation directly or, at its request,
another enterprise, the Corporation and Indemnitee hereby agree as follows:
1. D&O Liability Insurance.
(a) Subject only to the provisions of Section 1(b) hereof, so
long as Indemnitee shall continue to serve as a Director and/or officer of the
Corporation (or shall continue at the request of the Corporation to serve as a
director, trustee, officer, partner, employee or agent of another business
trust, corporation, partnership, joint venture or other enterprise or an
employee benefit plan), and thereafter so long as Indemnitee shall be subject to
any possible claim or threatened, pending or completed action, suit or
proceeding, whether
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civil, criminal, administrative or investigative, by reason of the fact that
Indemnitee was a Director and/or officer of the Corporation or served in any of
said other capacities, the Corporation shall purchase and maintain in effect,
including through the obtaining or exercise of appropriate "tail" coverage, one
or more valid, binding and enforceable insurance policies issued by a reputable
insurer or insurers protecting Directors and Corporation officers (subject to
customary limitations and exceptions) against losses, costs and expenses arising
out of any such claim, action, suit or proceeding ("D&O Insurance"), which D&O
Insurance shall provide coverage in all respects at least comparable to that
presently provided, and shall cause Indemnitee to be covered by such policy or
policies.
The Corporation shall not be required to maintain in effect the
policy or policies of D&O Insurance contemplated by the first paragraph of this
Section 1(a) at any time at which (i) said insurance is not generally available,
or (ii) in the reasonable business judgment of the persons then constituting the
Board of Directors, either (I) the premium cost for such insurance is
substantially disproportionate to the amount of coverage afforded, or (II) the
coverage provided by such insurance is so limited and/or subject to such
exclusions that there is insufficient benefit to the Corporation from such
insurance; provided, however, that to the extent that the Corporation maintains
any D&O Insurance, Indemnitee shall be covered by such policy or policies, in
accordance with its or their terms, to the maximum extent of the coverage
available for any Director or Corporation officer under such policy or policies,
and, further, that in the event the Corporation does not purchase and maintain
in effect the policy or policies of D&O Insurance contemplated by this Section
1(a), the Corporation shall indemnify Indemnitee to the full extent of the
coverage that would otherwise have been provided for the benefit of Indemnitee
pursuant to such D&O Insurance.
(b) The Corporation's obligation under this Section 1 shall
terminate as of the fifth anniversary of the date on which Indemnitee ceases to
render any service or to act in any capacity specified in Section 3 hereof.
2. Basic Indemnity. The Corporation hereby indemnifies Indemnitee,
whether or not he is then an officer, to the fullest extent permitted by the
provisions of Section 2-418 of the MGCL or any amendment thereof or by any other
statute permitting such indemnification that is adopted after the date hereof.
3. Additional Indemnity. Subject only to the limitations and
exclusions set forth in Section 5 hereof, and without limiting the provisions of
the foregoing Section 2, the Corporation hereby also expressly agrees that in
the event Indemnitee is or becomes a party to or witness or other participant
in, or is threatened to be made a party to or witness or other participant in,
any action, suit or proceeding, whether pending, threatened or completed,
whether civil, criminal or administrative, and whether instituted by or in the
name of the Corporation or any other party, or any investigation or inquiry or
investigation that Indemnitee in good faith believes might lead to the
institution of any such action, suit or proceeding, by reason of (or arising in
part out of) the fact that Indemnitee is or was a Director, officer, employee or
agent of the Corporation or is or was serving at the request of the Corporation
as a director, trustee, officer, partner, employee, agent or fiduciary of
another business trust,
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corporation, partnership, joint venture or other enterprise or an employee
benefit plan, or by reason of anything done or not done by Indemnitee in any
such capacity (any such threatened, pending or completed action, suit or
proceeding, or any such inquiry or investigation, a "Claim"), the Corporation
shall indemnify Indemnitee against any and all judgments, fines, 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), and any and all reasonable
expenses, actually paid or incurred by Indemnitee in connection with or in
respect of such Claim.
4. Advancing of Expenses. If so requested by Indemnitee, and
subject only to the limitations and exclusions of Section 5 hereof, the
Corporation shall pay to Indemnitee or reimburse Indemnitee for any and all
expenses actually and reasonably incurred by Indemnitee in connection with or in
respect of any Claim (an "Expense Advance") in advance of the final
determination thereof, in the manner provided in Section 11(a) hereof.
For purposes of this Agreement, "expenses" shall include attorneys'
fees and all other costs, charges and obligations paid or incurred in connection
with investigating, defending, being a witness in or participating in (including
an appeal), or preparing to defend, be a witness in or participate in, any
Claim.
5. Limitation on Additional Indemnity and Advance Payment of
Expense Advances. No indemnity pursuant to Section 3 hereof shall be paid by the
Corporation, nor shall the Corporation be required to make Expense Advances
under Section 4 hereof:
(a) For which and to the extent that payment or reimbursement
of such amount is made to Indemnitee under any D&O Insurance;
(b) For which and to the extent that Indemnitee is
indemnified, receives a recovery or is reimbursed other than pursuant to a
policy of insurance or this Agreement;
(c) On account of any action, suit or proceeding for which and
to the extent that judgment is rendered against Indemnitee (i) for an accounting
of profits made from the purchase or sale by Indemnitee of securities of the
Corporation pursuant to the provisions of Section 16(b) of the Securities
Exchange Act of 1934, as amended (the "Securities Exchange Act"), or any similar
provisions of any Federal, state or local statutory law, or (ii) for a violation
of any provision of the Securities Act of 1933, as amended, in connection with
the offer or sale of securities of the Corporation pursuant to a registration
statement under said statute, unless either (I) in the opinion of counsel for
the Corporation, Indemnitee is entitled to such indemnification by controlling
precedent, or (II) a final adjudication by a court of competent jurisdiction
holds that such indemnification is not against public policy as expressed in
such statute;
(d) On account of any action, suit or proceeding in which a
court of competent jurisdiction shall enter a final judgment that:
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(i) 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 that result of active and deliberate dishonesty; or
(ii) Indemnitee actually received an improper personal
benefit in money, property or services; or
(iii) In the case of any criminal proceeding, Indemnitee
had reasonable cause to believe that the act or omission was unlawful;
(e) On account of any action, suit or proceeding in which a
court of competent jurisdiction shall enter a final judgment in a proceeding by
or in the right of the Corporation that Indemnitee is liable to the Corporation;
or
(f) If such payment by the Corporation under this Agreement is
not otherwise permitted by applicable law.
In addition, if Maryland law in effect at the time so requires, (i)
the obligations of the Corporation under Sections 3 and 4 hereof shall be
subject to the condition that any "Determining Party" (as hereinafter defined)
shall not have determined (in a written opinion in any case in which the
"Independent Legal Counsel" (as defined in Section 6 hereof) is involved) that
indemnification of Indemnitee is not permitted under applicable law or the
expenses as to which Indemnitee requests payment or reimbursement are not
reasonable, and (ii) the obligation of the Corporation to make an Expense
Advance pursuant to Section 4 hereof shall be subject to the condition that if,
when and to the extent that any Determining Party determines that Indemnitee
would not be permitted to be so indemnified under applicable law, Indemnitee
shall reimburse the Corporation for all expenses paid; provided, however, that
if as of the time any determination is made by the Determining Party that
Indemnitee is under certain circumstances not permitted to be indemnified and/or
that certain expenses are not reasonable, Indemnitee has commenced or thereafter
commences legal proceedings in a court of competent jurisdiction to secure a
final determination that Indemnitee should or may be indemnified under
applicable law and/or that any expenses are not reasonable shall not be binding,
and Indemnitee shall not be required to reimburse the Corporation for any such
expense until a final judicial determination is made with respect thereto (as to
which all rights of appeal therefrom have been exhausted or lapsed).
If there has not been a Change in Control (as hereinafter defined),
or if such Change in Control was approved by a majority of the Board of
Directors who were Directors immediately prior to such Change in Control, the
"Determining Party" shall be such members of the Board of Trustees, such
Independent Legal Counsel (other than with respect to the reasonableness of
expenses), or such other person or persons as MGCL Section 2-418 (or any
successor provisions) shall require. If, on the other hand, there has been a
Change in Control not approved by such majority of the Board, the Determining
Party shall be (i) as to whether indemnification is permitted under applicable
law, the Independent Legal Counsel referred to in Section 6 hereof, and (ii) as
to the reasonableness of expenses, such members of the Board
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of Directors or such other person(s) as MGCL Section 2-418 (or any successor
provision) shall require.
For purposes of this Agreement, a "Change in Control" shall be
deemed to have occurred if (i) any "person" (as such term is used in Sections
13(d) and 14(d) of the Securities Exchange Act, other than a director or other
fiduciary holding securities under an employee benefit plan of the Corporation
or another business trust or corporation owned directly or indirectly by the
shareholders of the Corporation in substantially in the same proportions as
their ownership shares of beneficial interest of the Corporation, becomes,
directly or indirectly, the "beneficial owner" (as defined in Rule 13(d)-3 under
the Securities Exchange Act) of securities of the Corporation evidencing 8% or
more of the total voting power evidenced by the Corporation's then outstanding
securities that vote generally in the election of Directors ("Voting
Securities"), or (ii) during any period of two consecutive years, individuals
who at the beginning of such period constitute the Board of Directors and any
new Director whose election by the Board of Directors or nomination for election
by the Corporation's stockholders was approved by the vote of at least
two-thirds of the Directors then still in office who were either Directors at
the beginning of the period or whose election or nomination for election was
previously so approved, cease for any reason to constitute a majority of the
Board of Directors, or (iii) the stockholders of the Corporation approve a
merger or consolidation of the Corporation with any other business corporation,
trust or other entity, other than a merger or consolidation that would result in
the holders of Voting Securities outstanding immediately prior to such merger or
consolidation continuing to have (by virtue of such Voting Securities either
remaining outstanding or being converted into securities entitled to vote
generally in the election of directors or trustees of the surviving entity) at
least 80% of the total voting power evidenced by the Voting Securities or the
voting securities of such surviving entity outstanding immediately after such
merger or consolidation, or (iv) the stockholders of the Corporation approve a
plan of complete liquidation of the Corporation or an agreement for the sale or
disposition by the Corporation of (in one transaction or a series of affiliated
transactions) all or substantially all of the Corporation's assets.
If within 15 business days after Indemnitee submits a request for
indemnification or for a payment or reimbursement of expenses hereunder, there
has been no determination by the Determining Party, or if the Determining Party
determines that Indemnitee is not permitted to be indemnified in whole or in
part under applicable law and/or that the expenses as to which payment or
reimbursement has been requested are not reasonable, Indemnitee shall have the
right to commence litigation in any court in the States of Maryland or Arizona
having subject matter jurisdiction thereof and in which venue is proper, seeking
an initial determination by the court or challenging any such determination by
the Determining Party or any aspect thereof, including the legal or factual
bases therefor, and the Corporation hereby consents to service of process and to
appear in any such proceeding.
6. Independent Legal Counsel. In the event that there is a Change
in Control (other than a Change in Control that has been approved by a majority
of the Board of Directors immediately prior to such Change in Control), the
Corporation shall seek legal advice with respect to any and all matters
thereafter arising concerning the rights of Indemnitee
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to indemnity payments and payment or reimbursement of expenses under this
Agreement or any other agreement or financial arrangement or the Corporation
Articles as now or hereafter in effect only from an attorney or firm of
attorneys (the "Independent Legal Counsel") proposed by Indemnitee and selected
by the Board of Directors (or a committee thereof), or such other person(s) as
MGCL Section 2-418 (or any successor provision) may require. Such Independent
Legal Counsel, among other things, shall render its written opinion to the
Corporation and Indemnitee as to whether and to what extent Indemnitee would be
permitted to be indemnified under applicable law. The Corporation shall pay the
reasonable fees and expenses of the Independent Legal Counsel and shall fully
indemnify such counsel against all expenses, claims, liabilities, losses and
damages arising out of or relating to this Agreement or such counsel's
engagement pursuant hereto.
7. Indemnification for Additional Expenses. To the full extent
permitted by law, the Corporation shall indemnify Indemnitee against any and all
expenses and, if requested by Indemnitee, shall (within 10 business days of such
request) advance such expenses to Indemnitee, that are incurred by Indemnitee in
connection with any Claim asserted against or action, suit or proceeding brought
by Indemnitee for (i) indemnification or payment or reimbursement of expenses by
the Corporation and this Agreement, or any other agreement or the Corporation
Articles each as now or hereafter in effect, relating to claims for
indemnification or advancement of expenses, and/or (ii) recovery under any D&O
Insurance policy or policies maintained by the Corporation, if Indemnitee
ultimately is determined to be entitled to such indemnification, advance expense
payment or insurance recovery, as the case may be.
8. Partial Indemnity. If Indemnitee is entitled under any provision
of this Agreement to indemnification by the Corporation for some or a portion of
the expenses, judgments, fines, penalties and amounts paid in settlement or
incurred by Indemnitee in respect of a Claim, but not, however, for all of such
amount, the Corporation nevertheless shall indemnify Indemnitee for the portion
thereof to which Indemnitee is entitled. Moreover, notwithstanding any other
provision of this Agreement, to the extent that Indemnitee has been successful
in the merits or otherwise in defense of any Claim, issue or matter, including
dismissal without prejudice, Indemnitee shall be indemnified against all
expenses incurred in connection with such defense.
9. No Presumptions; Burden of Proof. For purposes of this
Agreement, the termination of any action, suit or proceeding by judgment, order
or settlement (with or without court approval) shall not, of itself, create a
presumption that Indemnitee's conduct was such that indemnity is not available
pursuant to Section 3 hereof; provided, however, that the termination of any
action, suit or proceeding by conviction, or upon a plea of nolo contendere or
its equivalent, or an entry of an order of probation prior to judgment, shall
create a rebuttable presumption, and that the termination of any action, suit or
proceeding by a settlement entered into by the Indemnitee at the request of the
Corporation shall create a rebuttable presumption that Indemnitee is entitled to
indemnity hereunder.
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Except as provided by the immediately preceding sentence, in
connection with any determination by the Determining Party or otherwise as to
whether Indemnitee is entitled to be indemnified hereunder, the burden of proof
shall be on the Corporation to establish that Indemnitee is not so entitled. In
addition, any attorneys' fees as to which Indemnitee requests indemnification or
advancement shall be rebuttably presumed reasonable if and to the extent that
such fees, if charged at an hourly rate, do not exceed the hourly rates then
regularly charged by such attorney or attorneys.
10. Notification and Defense of Claims. Promptly after receipt by
Indemnitee of notice of the commencement of any Claim, Indemnitee shall notify
the Corporation of the commencement thereof; provided, however, that the failure
so to notify the Corporation shall relieve the Corporation from any obligation
or liability that the Corporation may have to Indemnitee under this Agreement
only if and to the extent that the Corporation's rights hereunder are prejudiced
by such omission. If, at the time the Corporation receives such notice, the
Corporation has D&O Insurance in effect, the Corporation shall give prompt
notice of the commencement of Claim to the insurer(s) in accordance with the
procedures set forth in the policy or policies in favor of Indemnitee. The
Corporation thereafter shall take all necessary or desirable action to cause
such insurer(s) to pay, or advance, to or on behalf of Indemnitee, all losses,
costs and expenses payable as a result of such Claim in accordance with the
terms of such policy or policies. The provisions of this Agreement shall in no
way relieve or modify any obligation(s) or liability or liabilities of any
insurer under any D&O Insurance or other applicable insurance policy.
With respect to any Claim as to which Indemnitee notifies the
Corporation of the commencement thereof:
(a) The Corporation shall be entitled to participate therein
at its own expense.
(b) Except to the extent such Claim is brought by or in the
right of the Corporation and/or as otherwise provided below, to the extent that
it may wish, the Corporation jointly with any other indemnifying party similarly
notified, shall be entitled to assume the defense of Indemnitee in respect of
such Claim, at the Corporation's own expense, with counsel approved by
Indemnitee, whose approval shall not be unreasonably withheld. After notice from
the Corporation to Indemnitee of the Corporation's election to assume such
defense, the Corporation shall not be liable to Indemnitee under this Agreement
for any legal or other expenses subsequently incurred by Indemnitee in
connection with the defense thereof, other than as expressly provided to the
contrary below. Indemnitee shall have the right to employ his own counsel in
connection with such Claim, but the fees and expenses of such counsel incurred
after notice from the Corporation of its assumption of the defense thereof shall
be at the expense of Indemnitee unless:
(i) Such retention (or continued retention) of
counsel by Indemnitee has been authorized or consented to by Corporation;
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(ii) Counsel employed by Indemnitee shall have concluded
that there is or may be a conflict of interest between Indemnitee and the
Corporation with respect to such action, in which event counsel employed by
Indemnitee also shall be entitled to participate in the defense of Indemnitee in
connection with such Claim;
(iii) The counsel retained by the Corporation to assume
the defense of Indemnitee in such proceeding shall also be representing in such
action the Corporation and/or one or more other parties; such counsel shall have
concluded that there is an actual conflict of interest between Indemnitee and
the one or more of such other parties (including, if applicable, the
Corporation); and within 10 business days after the Corporation is notified of
such conflict, separate counsel shall have been retained by the Corporation to
represent either the party or parties with whom there is such conflict of
interest or Indemnitee (in which case such counsel shall be selected by
Indemnitee and approved by the Corporation, whose approval shall not be
unreasonably withheld); or
(iv) The Corporation shall not in fact have retained
counsel to assume the defense of Indemnitee in connection with such action.
In each of the above cases, the fees and expenses of counsel employed by
Indemnitee shall be at the expense of the Corporation.
(c) The Corporation shall not be required to indemnify
Indemnitee under this Agreement for any amounts paid in settlement of any Claim
effected without the Corporation's written consent. The Corporation shall not
settle any Claim in any manner that would impose any penalty or limitation on
Indemnitee without Indemnitee's written consent. Neither the Corporation nor
Indemnitee shall unreasonably withhold consent to any such proposed such
settlement.
11. Indemnification and Expense Advancement Requests.
(a) Advancement of Expenses.
(i) Indemnitee shall, in order to request payment or
reimbursement of expenses pursuant to Section 4 hereof, submit to the Board of
Directors a statement or request for advancement of expenses substantially in
the form of Exhibits 1 or 1A attached hereto and made a part hereof (the
"Expense Advancement Request").
(ii) Within 10 business days after receipt of a properly
completed Expense Advancement Request and an invoice or other statement of the
expenses to be advanced, the President, the Chief Executive Officer, a Vice
President or General Counsel of the Corporation shall authorize the
Corporation's payment or reimbursement of said expenses, whereupon such
payment(s) or reimbursement(s) shall immediately be made. No security shall be
required in connection with any Expense Advancement Request, and it shall be
accepted without reference to Indemnitee's financial ability to make repayment.
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(b) Indemnification.
(i) Indemnitee, in order to request indemnification
pursuant to Section 3 hereof, shall submit to the Board of Directors a statement
of request for indemnification substantially in the form of Exhibit 2 attached
hereto and made a party hereof (the "Indemnification Request").
(ii) Any and all payments on account of the
Corporation's indemnification obligations under Section 3 hereof shall be made
within 10 business days of the Trust's receipt of a duly completed
Indemnification Request with respect thereto.
12. Continuation of Indemnity; Indemnity Not Exclusive. All
agreements and obligations of the Corporation contained herein shall continue
during the period Indemnitee is a Director and/or officer of the Corporation (or
serves at the request of the Corporation as a director, trustee, officer,
partner, employee or agent of another business trust, corporation, partnership,
joint venture or other enterprise or an employee benefit plan) and shall
continue thereafter so long as Indemnitee shall be subject to any possible
Claim.
The rights and benefits of Indemnitee and the obligations of
the Corporation under this Agreement shall be in addition to, and shall not
supersede, limit or be in lieu of, the provisions, if any, relating to the
indemnification of Indemnitee by the Corporation in the Corporation Articles,
the Bylaws of the Corporation, any resolution or resolutions of the Board of
Directors, any other agreement or financing arrangement, the provisions of
policies of insurance of the Corporation, or other applicable law.
13. Subrogation. In the event of payment or reimbursement by
the Corporation under this Agreement, the Corporation shall be subrogated to the
extent of such payment or reimbursement to any and all rights of recovery of
Indemnitee, who shall execute all papers required and shall do everything that
may be necessary to secure such rights, including the execution of any and all
such documents as may be necessary to enable the Corporation effectively to
enforce such rights.
14. Notice. All notices 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 such notice or other
communication shall have been directed, or (ii) mailed by certified or
registered mail with postage prepaid, on the third business day after the date
on which so mailed:
If to Indemnitee, to: Xxxxxx X. Xxxxxx, Xx., Esq.
Skadden, Arps, Slate, Xxxxxxx & Xxxx
000 Xxxxx Xxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxx, XX 00000
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If to the Corporation, to: Starwood Hotels & Resorts Worldwide, Inc.
000 Xxxxxxxxxxx Xxxxxx
Xxxxx Xxxxxx, XX 00000
Attention: Secretary
or to such other address as may have been furnished to Indemnitee by the
Corporation or to the Corporation by Indemnitee, as the case may be.
15. Severability. If any provision of this Agreement or the
application of any such provision to any person or circumstance is held by a
court of competent jurisdiction invalid, void or otherwise unenforceable, the
remainder of this Agreement and the application of such provision to other
persons or circumstances shall not be affected, and the provision so held to be
invalid, void or otherwise unenforceable shall be reformed to the extent (and
only to that extent) necessary to make it enforceable.
16. Counterparts. This Agreement may be executed in any number
of counterparts, all of which taken together shall constitute one document.
17. Captions. The captions of the Sections to this Agreement
have been included herein for convenience of reference only, and this Agreement
shall not be construed by reference thereto.
18. Governing Law; Binding Effect; Amendment and Termination.
(a) This Agreement is made and entered into pursuant to
Section 2-418 of the MGCL, and this Agreement shall be governed by and its
provisions interpreted and enforced in accordance with the laws of the State of
Maryland applicable to contracts made and to be performed in such State without
giving effect to the principles of conflicts of laws.
(b) This Agreement shall be binding upon and inure to
the benefit of (i) the Corporation and its successors and permitted assigns
(including any direct or indirect successor by purchase, merger, consolidation
or otherwise to all or substantially all of the business and/or assets of the
Corporation), and (ii) Indemnitee, his or her spouse, heirs, executors, personal
and legal representatives and other successors and permitted assigns. Neither
this Agreement nor any right or obligation hereunder may be assigned, delegated
or otherwise transferred by Indemnitee voluntarily during his lifetime or by the
Corporation, except that the Corporation shall require and cause any successor
to expressly assume and agree (by a writing in form and substance satisfactory
to Indemnitee, whose approval shall not be unreasonably withheld) to perform
this Agreement in the same manner and to the same extent that the Corporation
would have been required to perform if no such succession had taken place.
(c) No amendment, supplement or other modification,
or termination of this Agreement shall be effective unless executed in writing
by both of the parties hereto. No waiver of any provision or provisions of this
Agreement shall be deemed or shall constitute
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a waiver of any other provision or provisions hereof (whether or not similar),
nor shall any such waiver constitute a continuing waiver.
19. Other Indemnification Agreements.
(a) This Agreement supersedes and replaces any prior
indemnification agreement between the Corporation and Indemnitee which covers
similar rights and obligations between Indemnitee and the Corporation; provided
however that Indemnitee and the Corporation shall retain any and all rights and
obligations under any such prior agreement which may have accrued or be
applicable to any period prior to the date of this Agreement.
(b) If Indemnitee has entered into, or in the future
enters into, an indemnification agreement with Starwood Hotels & Resorts Trust,
a Maryland real estate investment trust, similar to this Agreement, then if and
to the extent that Indemnitee is entitled to indemnification against and/or
advancement of any judgement(s), fine(s), penalty(ies), amount(s) paid in
settlement, cost(s) and/or expense(s) both under this Agreement and such other
indemnification agreement, Indemnitee shall be entitled to seek such
indemnification and/or reimbursement under either or both said agreements, as
Indemnitee may elect, but any and all such requests for indemnification and/or
advancement or expenses shall be subject to the provisions of paragraph (b) of
Section 5 of this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed
this Agreement on and as of the day and year first above written.
STARWOOD HOTELS & RESORTS
WORLDWIDE, INC.
By: /s/ XXXXXX X. XXXXX
-------------------------------------
Its: EXECUTIVE VICE PRESIDENT AND
CHIEF FINANCIAL OFFICER
/S/ XXXXXX X. XXXXXX, XX.
-------------------------------------
Xxxxxx X. Xxxxxx, Xx., Indemnitee
EXHIBIT 1- Expense Advancement Request
EXHIBIT 1A- Expense Advancement Request
EXHIBIT 2- Indemnification Request
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