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EXHIBIT 10.15(d)
INDEMNIFICATION AGREEMENT
This Indemnification Agreement (this "Agreement") dated as of April 17,
1996, is between Wyndham Hotel Corporation, a Delaware corporation (the
"Company"), and the undersigned director of the Company (the "Indemnitee"),
with reference to the following facts:
The Indemnitee is currently serving as a director of the Company and the
Company desires that the Indemnitee continue in such capacity. The Indemnitee
is willing, under certain circumstances, to continue serving as a director of
the Company.
Section 145 of the General Corporation Law of the State of Delaware,
under which Law the Company is organized, empowers a corporation to indemnify a
person serving as a director, officer, employee or agent of the corporation and
a person who serves at the request of the corporation as a director, officer,
employee or agent of another corporation, partnership, joint venture, trust or
other enterprise, and such Section 145 and the bylaws of the Company specify
that the indemnification set forth in said Section 145 and in the bylaws,
respectively, shall not be deemed exclusive of any other rights to which those
seeking indemnification may be entitled under any bylaw, agreement, vote of
stockholders or disinterested directors or otherwise.
In order to induce the Indemnitee to continue to serve as a director of
the Company and in consideration of his or her continued service, the Company
hereby agrees to indemnify the Indemnitee as follows:
1. Indemnity. The Company shall indemnify the Indemnitee and
his or her executors, administrators or
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assigns, for any Expenses (as defined below) that the Indemnitee is or
becomes legally obligated to pay in connection with any Proceeding. As
used in this Agreement the term "Proceeding" shall include any
threatened, pending or completed claim, action, suit, investigation or
proceeding, whether brought by or in the right of the Company or
otherwise and whether of a civil, criminal, administrative or
investigative nature, in which the Indemnitee may be or may have been
involved as a party, witness or otherwise, by reason of the fact that
Indemnitee is or was a director or officer of the Company, by reason of
any actual or alleged error or misstatement or misleading statement made
or suffered by the Indemnitee, by reason of any action taken by him or
her or of any inaction on his or her part while acting as such director
or officer, or by reason of the fact that he or she was serving at the
request of the Company as a director, trustee, officer, employee or
agent of another corporation, partnership, joint venture, trust or other
enterprise; provided, however, that in each such case Indemnitee acted
in good faith and in a manner which he or she reasonably believed to be
in or not opposed to the best interests of the Company, and, in the case
of a criminal proceeding, in addition had no reasonable cause to believe
that his or her conduct was unlawful. As used in this Agreement, the
term "other enterprise" shall include (without limitation) employee
benefit plans and administrative committees thereof, and the term
"fines" shall include (without limitation) any excise tax
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assessed with respect to any employee benefit plan. Any corporation,
partnership, limited liability company or other entity on behalf of
which Indemnitee may be deemed to be acting in connection with his or
her service to the Company shall be entitled to the benefits of the
indemnity provided for by this Agreement to the same extent and under
the same conditions upon which Indemnitee is entitled to such indemnity.
2. Expenses. As used in this Agreement, the term "Expenses"
shall include, without limitation, damages, judgments, fines, penalties,
settlements and costs, attorneys' fees and disbursements and costs of
attachment or similar bonds, investigations, and any expenses of
establishing a right to indemnification under this Agreement.
3. Enforcement. If a claim or request under this Agreement
is not paid by the Company, or on its behalf, within 30 calendar days
after a written claim or request has been received by the Company, then
the Indemnitee may at any time thereafter bring suit against the Company
to recover the unpaid amount of the claim or request and if successful
in whole or in part, the Indemnitee shall be entitled to be paid also
the Expenses of prosecuting such suit. The burden of proving that the
Indemnitee is not entitled to indemnification for any reason shall be
upon the Company.
4. Subrogation. Upon 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
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execute all papers required and shall do everything that may be
necessary to secure such rights, including the execution of such
documents necessary to enable the Company effectively to bring suit to
enforce such rights.
5. Exclusions. The Company shall not be liable under this
Agreement to pay any Expenses in connection with any claim made against
the Indemnitee:
(a) to the extent that payment is actually made to the
Indemnitee under a valid, enforceable and collectible insurance
policy;
(b) to the extent that the Indemnitee is indemnified
and actually paid otherwise than pursuant to this Agreement;
(c) in connection with a judicial action by or in the
right of the Company, in respect of any claim, issue or matter as
to which the Indemnitee shall have been adjudged to be liable to
the Company unless and only to the extent that any court in which
such action was brought shall determine upon application that,
despite the adjudication of liability but in view of all the
circumstances of the case, the Indemnitee is fairly and
reasonably entitled to indemnity for such expenses as such court
shall deem proper;
(d) if it is proved by final judgment in a court of law
or other final adjudication to have been based upon or
attributable to the Indemnitee's in fact having gained
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any personal profit or advantage to which he or she was not
legally entitled;
(e) for a disgorgement of profits made from the
purchase and sale by the Indemnitee of securities pursuant to
Section 16(b) of the Securities Exchange Act of 1934, as amended,
and amendments thereto or similar provisions of any state
statutory law or common law; or
(f) for any judgment, fine or penalty which the Company
is prohibited by applicable law from paying.
6. Indemnification of Expenses of Successful Party.
Notwithstanding any other provision of this Agreement, to the extent
that the Indemnitee has been successful on the merits or otherwise in
defense of any Proceeding or in defense of any claim, issue or matter
therein, including dismissal without prejudice, Indemnitee shall be
indemnified against any and all Expenses incurred in connection
therewith.
7. Partial Indemnification. If the Indemnitee is entitled
under any provision of this Agreement to indemnification by the Company
for some or a portion of Expenses, but not, however, for the total
amount thereof, the Company shall nevertheless indemnify the Indemnitee
for the portion of such Expenses to which the Indemnitee is entitled.
8. Advance of Expenses. Expenses incurred by the Indemnitee
in connection with any Proceeding, except the amount of any settlement,
shall be paid by the Company in advance upon request of the Indemnitee
that the Company pay such expenses. The Indemnitee hereby undertakes to
repay to
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the Company the amount of any Expenses theretofore paid by the Company
to the extent that it is ultimately determined that such Expenses were
not reasonable or that the Indemnitee is not entitled to
indemnification.
9. Notice of Claim. The Indemnitee, as a condition precedent
to his or her right to be indemnified under this Agreement, shall give
to the Company notice in writing as soon as practicable of any claim
made against him or her for which indemnity will or could be sought
under this Agreement, but a failure to give such notice will affect the
obligations of the Company hereunder only to the extent that the Company
is actually and materially prejudiced thereby. Notice to the Company
shall be given at its corporate headquarters and shall be directed to
the corporate secretary (or such other addressee as the Company shall
designate in writing to the Indemnitee); notice shall be deemed received
if sent by prepaid mail properly addressed, the date of such notice
being the date postmarked. In addition, the Indemnitee shall give the
Company such information and cooperation as it may reasonably require in
connection with such claim.
10. Counterparts. This Agreement may be executed in any
number of counterparts, all of which taken together shall constitute one
instrument.
11. Indemnification Hereunder Not Exclusive. Nothing herein
shall be deemed to diminish or otherwise restrict the Indemnitee's right
to indemnification under any provision of
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the Certificate of Incorporation or bylaws of the Company and amendments
thereto or under law.
12. Governing Law. This Agreement shall be governed by and
construed in accordance with Delaware law, without giving effect to the
principles of conflict of laws thereof.
13. Saving Clause. Wherever there is conflict between any
provision of this Agreement and any applicable present or future
statute, law or regulation contrary to which the Company and the
Indemnitee have no legal right to contract, the latter shall prevail,
but in such event the affected provisions of this Agreement shall be
curtailed and restricted only to the extent necessary to bring them
within applicable legal requirements.
14. Coverage. The provisions of this Agreement shall apply
with respect to the Indemnitee's service as a [director and/or officer]
of the Company prior to the date of this Agreement and with respect to
all periods of such service after the date of this Agreement, even
though the Indemnitee may have ceased to be a director of the Company.
15. Successors and Assigns. This Agreement shall be binding
upon and inure to the benefit of the parties hereto and their respective
heirs, legatees, legal representatives, successors and permitted
assigns.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and signed as of the day and year first above written.
"COMPANY" WYNDHAM HOTEL CORPORATION
By /s/ XXXXX X. XXXXXXXX
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"INDEMNITEE" /s/ XXXXXX X. XXXXXX
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Xxxxxx X. Xxxxxx
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