EXHIBIT 10.10
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FORM OF
VISTANA, INC.
INDEMNIFICATION AGREEMENT
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INDEMNIFICATION AGREEMENT (this "Agreement") dated as of February 10, 1997,
between VISTANA, INC., a Florida corporation (the "Company"), and
___________________ ("Indemnitee"):
W I T N E S S E T H:
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WHEREAS, Indemnitee is or has agreed to become an officer and/or director
of the Company and in such capacity performs or will perform a valuable service
for the Company;
WHEREAS, the Company's Articles of Incorporation (the "Articles of
Incorporation") authorize the Company to indemnify its officers and directors in
accordance with the Florida Business Corporation Act (the "Act");
WHEREAS, Section 607.0850 of the Act provides that the indemnification
provided under the Act is not exclusive of any other rights in respect to
indemnification or otherwise to which those seeking indemnification may be
entitled under the Company's Articles of Incorporation, an agreement, a vote of
shareholders or disinterested directors, or otherwise, to the extent the
provisions of such instruments or contract are consistent with the Act;
WHEREAS, the Act thus contemplates that agreements may be entered into
between the Company and the Company's directors and officers with respect to
indemnification of such individuals; and
WHEREAS, in order to encourage Indemnitee to begin or to continue to serve
as an officer or a member of the Board of Directors of the Company, and to
perform other designated services for the Company at its request, the Company
has determined and agreed to enter into this Agreement with Indemnitee;
NOW, THEREFORE, in consideration of Indemnitee's continued service as an
officer and/or director of the Company, and the performance of such other
services as requested by the Company, the parties hereby agree as follows:
1. Statutory Indemnity of Indemnitee. Except as expressly set forth
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herein and subject to the provisions of this Agreement, the Company shall
defend, hold harmless and indemnify Indemnitee to the full extent authorized or
permitted by the provisions of the Act, as currently in effect, or by any
amendment thereof or other statutory provision authorizing or permitting such
indemnification adopted after the date hereof.
2. General Indemnity. Except as expressly set forth herein and subject
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to the provisions of this Agreement, in addition to any other indemnification to
which Indemnitee may be entitled pursuant to the Act, the Company's Articles of
Incorporation or Bylaws, or otherwise, the Company shall defend, hold harmless
and indemnify Indemnitee in the event Indemnitee was, is, or is threatened to be
made a named defendant or respondent, in any threatened, pending or completed
dispute, action, suit or proceeding, whether civil, criminal, administrative or
investigative and whether formal or informal, by reason of the fact that
Indemnitee is or was an officer, director, employee or agent of the Company, or
is or was serving at the request of the Company as an officer, director,
partner, trustee, employee or agent of another foreign or domestic corporation,
partnership, limited liability company, joint venture, trust, employee benefit
plan or other enterprise, against any obligation to pay a judgment, settlement,
penalty, fine (including an excise tax assessed with respect to an employment
benefit plan), expenses (including attorneys' fees), and amounts paid in
settlement actually and reasonably incurred by Indemnitee in connection with
such dispute, action, suit or proceeding. For purposes of this Section 2,
Indemnitee shall be considered to be serving an employee benefit plan at the
request of the Company if Indemnitee's duties to the Company also impose duties
on, or otherwise involve services by, Indemnitee to the plan or to participants
in or beneficiaries of the plan.
3. Limitations on General Indemnity.
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(a) The Company shall not be liable under this Agreement to make any
payment of amounts otherwise subject to indemnification hereunder if and to the
extent Indemnitee has otherwise actually received such payment under directors'
and officers' liability insurance carried by the Company, or pursuant to any
other insurance policy, contract, agreement or otherwise.
(b) No indemnity pursuant to Section 2 of this Agreement shall be paid
by the Company to the extent of any liability incurred in a proceeding in which
Indemnitee is adjudged liable to the Company or is subjected to injunctive
relief in favor of the Company:
(i) for any appropriation, in violation of Indemnitee's
duties, of any business opportunities of the Company;
(ii) for acts or omissions which involve intentional
misconduct or a knowing violation of law;
(iii) for the types of liability set forth in Section
607.0834 of the Act (relating to unlawful payment of dividends, etc.);
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(iv) for any transaction from which Indemnitee received
any improper personal benefit;
(v) for any action or inaction by Indemnitee, which
action or inaction is beyond the scope of his duties as an officer,
director, or agent of the Company, or which action or inaction is
beyond the scope of his duties, while serving at the request of the
Company, as an officer, director, partner, trustee, employee, or agent
of another foreign or domestic corporation, partnership, limited
liability company, joint venture, trust, employee benefit plan, or
other enterprise;
(vi) in connection with or as a result of any action, suit
or proceeding brought by the Company or any of its subsidiaries,
except a derivative proceeding commenced by any third party; or
(vii) for matters as to which indemnification would be in
contravention of the laws of the State of Florida or of the United
States of America, whether as a matter of policy or pursuant to
statutory provision.
4. Notification and Defense of Claim.
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(a) Promptly after receipt by Indemnitee of notice of the
commencement of any action, suit or proceeding, Indemnitee will, if a claim in
respect thereto is to be made against the Company under this Agreement, promptly
notify the Company of the commencement thereof, but the failure to so notify the
Company will not relieve the Company from any liability which it may have to
Indemnitee otherwise under this Agreement, unless such failure causes the rights
of the Company to be materially prejudiced.. With respect to any such action,
suit or proceeding as to which Indemnitee so notifies the Company:
(i) the Company will be entitled to participate therein at
its own expense; and
(ii) except as otherwise provided below, to the extent that
it may desire, the Company may assume the defense thereof.
(b) After notice from the Company to Indemnitee of the Company's
election to assume the defense thereof, the Company will 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
reasonable costs of investigation or as otherwise provided below. Indemnitee
shall have the right to employ counsel of Indemnitee's choosing in such action,
suit or proceeding but the fees and expenses of such counsel incurred after
notice from the Company of its assumption of
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the defense thereof shall be at the expense of Indemnitee unless (x) the
employment of counsel by Indemnitee has been authorized in writing by the
Company, (y) the Company and Indemnitee shall reasonably conclude that there may
be a conflict of interest between the Company and Indemnitee in the conduct of
the defense of such action, or (z) the Company shall not in fact have timely
employed counsel to assume the defense of such action, in each of which cases
the reasonable fees and expenses of Indemnitee's counsel shall be paid by the
Company.
(c) The Company shall not be liable to Indemnitee under this
Agreement for any amounts paid in settlement of any threatened or pending
action, suit or proceeding without the Company's prior written consent. The
Company shall not settle any such action, suit or proceeding in any manner which
would impose any penalty or limitation on Indemnitee without Indemnitee's prior
written consent. Neither the Company nor Indemnitee will unreasonably withhold
consent to any proposed settlement.
5. Prepayment Of Expenses. Unless Indemnitee otherwise elects, expenses
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incurred in defending any civil or criminal action, suit or proceeding will be
paid by the Company in advance of the final disposition of such action, suit or
proceeding if: (i) Indemnitee furnishes the Company a written affirmation of
Indemnitee's good faith belief that Indemnitee's conduct does not constitute
behavior of the kind described in Section 3(b) of this Agreement; and (ii)
Indemnitee furnishes the Company a written undertaking to repay any advances if
it is ultimately determined that Indemnitee is not entitled to be indemnified by
the Company under this Agreement (which written undertaking will provide that
the Company shall be entitled to collect its attorneys' fees and other out-of-
pocket costs incurred in connection with the enforcement of such undertaking).
6. Continuation Of Indemnity. Subject to Sections 2 and 3 hereof, all
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agreements and obligations of the Company contained in this Agreement shall
continue during the period Indemnitee is an officer or director of the Company
and shall continue thereafter so long as Indemnitee shall be subject to any
threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative, and whether formal or informal, by
reason of the fact that Indemnitee was an officer, employee or agent of the
Company, or is or was serving at the request of the Company as an officer,
director, employee or agent of another corporation, partnership, limited
liability company, joint venture, trust or other enterprise.
7. Enforcement.
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(a) The Company expressly confirms and agrees that it has entered
into this Agreement and assumed the obligations imposed on it hereby in order to
induce Indemnitee to serve or to continue
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to serve as a director and/or officer of the Company and/or a subsidiary or
other affiliate of the Company, and acknowledges that Indemnitee is relying upon
this Agreement in agreeing to serve or to continue to serve in such capacity.
(b) In the event Indemnitee is required to bring any action to
enforce Indemnitee's rights or to collect moneys due under this Agreement and is
successful in such action, the Company shall promptly reimburse Indemnitee for
all of Indemnitee's reasonable fees and expenses in bringing and pursuing such
action, including reasonable attorneys' fees, court costs and other related
expenses.
8. Severability; Reformation. Each of the provisions of this Agreement
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is a separate and distinct agreement and independent of the others, so that if
any provision hereof shall be held to be invalid or unenforceable in whole or in
part for any reason, such invalidity or unenforceability shall not affect the
validity or enforceability of the other provisions hereof. In the event that
all or any portion of this Agreement is ever held void or unenforceable by a
court of competent jurisdiction, then the parties hereto expressly authorize
such court to modify any provision(s) held void or unenforceable to the extent,
and only to the extent, necessary to render it valid and enforceable.
9. Notices. All notices, demands and other communications required or
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permitted hereunder ("Notices") shall be in writing and shall be deemed to have
been duly given (i) if delivered personally, upon receipt of delivery; or (ii)
if mailed by certified mail, return receipt requested, with proper postage
prepaid, on the fifth (5th) business day after mailing. All Notices shall be
delivered or addressed as follows:
If to the Company:
Vistana, Inc.
0000 Xxxxxxx Xxxxxx Xxxxx
Xxxxxxx, Xxxxxxx 00000
Attention: Chairman of the Board
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If to the Indemnitee:
____________________
____________________
____________________
Any party may change its address for Notices by giving a Notice hereunder
specifically setting forth such new address. If receipt of any Notice is
refused, such Notice shall be deemed to have been given on the date of such
refusal to accept receipt.
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10. Miscellaneous.
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(a) This Agreement shall be governed by and construed in accordance
with the laws of the State of Florida, without giving effect to the principles
of conflicts of law thereof.
(b) Neither this Agreement nor any rights or obligations hereunder
shall be assigned or transferred by Indemnitee and any such assignment shall
render this Agreement null and void for all purposes and in all respects.
(c) This Agreement shall be binding upon Indemnitee and upon the
Company, and their respective successors and assigns, including successors by
merger or consolidation, and shall inure to the benefit of Indemnitee, his or
her heirs and personal representatives, and to the benefit of the Company, its
successors and assigns.
(d) No amendment, modification or termination of this Agreement shall
be effective unless in writing signed by both parties hereto.
(e) Whenever the masculine, feminine or neuter gender is used in this
Agreement, it shall, where appropriate and the context so requires, include the
other genders as well, and the plural shall include the singular and the
singular the plural where appropriate and the context so requires.
(f) This Agreement may be executed in one or more counterparts, each
of which shall for all purposes be deemed to be an original but all of which
together shall constitute one and the same Agreement.
(g) The provisions of this Agreement shall cover claims, actions,
suits and proceedings, whether now pending or hereafter commenced, and shall be
retroactive to cover acts or omissions or alleged acts or omissions that
heretofore have taken place.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement on and as
of the day and year first above written.
THE COMPANY:
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VISTANA, INC., a Florida corporation
By:________________________________
Name:
Title:
INDEMNITEE:
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____________________________________
Print Name:
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