FORM OF INDEMNITY AGREEMENT
_____ __, 199_
TO:
Dear:
In consideration of your service as an officer or director of WMS Hotel
Corporation (the "Company"), the Company will, to the extent provided herein,
indemnify you and hold you harmless from and against any and all "Losses" (as
defined below) which you may incur by reason of your election or service as an
officer, director, employee, agent, fiduciary or representative of the Company
or any "Related Entity" (as defined below) to the fullest extent permitted by
law.
1. (a) "Losses" mean all liabilities, "Costs and Expense" (as defined
below), amounts of judgments, fines, penalties or excise taxes (or other amounts
assessed, surcharged or levied under the Employee Retirement Income Security Act
of 1974, as amended) and amounts paid in settlement of or incurred in defense of
any settlement in connection with any threatened, pending or completed claim,
action, suit or proceeding, whether civil, criminal, administrative or
investigative, and whether brought by or in the right of the Company or
otherwise, and appeals in which you may become involved, as a party or
otherwise, by reason of acts or omissions or in your capacity as and while
serving as an officer, director, employee, agent, fiduciary or representative of
the Company or any Related Entity.
(b) A "Related Entity" means any corporation, limited liability
company, partnership, joint venture, trust or other entity or enterprise in
which the Company is in any way interested, or in or as to which you are serving
at the Company's request or on its behalf, as an officer, director, employee,
agent, fiduciary or representative including, but not limited to, any employee
benefit plan or any corporation of which the Company or any Related Entity is,
directly or indirectly, a stockholder or creditor.
(c) "Costs and Expenses" means all reasonable costs and expenses
incurred by you in investigating, defending or appealing any threatened, pending
or completed claim, action, suit or proceeding including, without limitation,
counsel fees and disbursements.
2. Costs and Expenses will be paid promptly by the Company as they are
incurred or, at your request, advanced on your behalf against delivery of
invoices therefor (prior to an ultimate determination as to whether you are
entitled to be indemnified by the Company on account thereof); provided,
however, that if it shall ultimately be determined by final decision of a court
of competent jurisdiction that you are not entitled to be indemnified on account
of any Costs or Expenses for which you have theretofore received payment or
reimbursement, you shall promptly repay such amount to the Company.
3. The Company shall indemnify you and hold you harmless from and
against any and all Losses which you may incur if you are a party to or
threatened to be made a party to or otherwise involved in any proceeding or
action (other than a proceeding or action by or in the right of the Company to
procure a judgment in its favor), unless it is determined that you did not act
in good faith and in a manner reasonably believed by you to be in, or not
opposed to, the best interest of the Company and, in the case of a criminal
proceeding or action, in addition, that you had reasonable cause to believe that
your conduct was unlawful.
4. The Company shall indemnify you and hold you harmless from and
against any and all Losses which you may incur if you are a party to or
threatened to be made a party to any proceeding or action by or in the right of
the Company to procure a judgment in its favor, unless it is determined that you
did not act in good faith, and in a manner reasonably believed by you to be in,
or not opposed to, the best interest of the Company, except that no
indemnification for Losses shall be made under this Paragraph 4 in respect of
any claim, issue or matter as to which you shall have been adjudged to be liable
to the Company, unless and only to the extent that any court in which such
action or proceeding was brought shall determine upon application that, despite
the adjudication of liability, but in view of all the circumstances of the
matter, you are fairly and reasonably entitled to indemnity for such expenses as
such court shall deem proper.
5. Anything hereinabove to the contrary notwithstanding, "Losses" shall
not include, and you shall not be entitled to indemnification under this
agreement for (i) amounts payable by you to the Company or any Related Entity in
satisfaction of any judgment or settlement in the Company's or such Related
Entity's favor (except amounts for which you shall be entitled to
indemnification pursuant to Paragraph 4), (ii) any amount payable on account of
profits realized by you in the purchase or sale of securities of the Company or
any Related Entity within the meaning of Section 16(b) of the Securities
Exchange Act of 1934, as amended, or similar provisions of state law; (iii)
Losses in connection with which you are not entitled to indemnification as a
matter of law or public policy; or (iv) Losses to the extent you are indemnified
by the Company otherwise than pursuant to this agreement, including any Losses
for which payment is made to you under an insurance policy.
6. Termination of any action, suit or proceeding by judgment, order,
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settlement or conviction, upon a plea of nolo contendere or its equivalent will
not, of itself create any presumption that you did not act in good faith and in
a manner which you reasonably believed to be in or not opposed to the best
interest of the Company or a Related Entity and, with respect to any criminal
action or proceeding, had no reasonable cause to believe that your conduct was
unlawful.
7. The determination on behalf of the Company that you are not entitled
to be indemnified for Losses hereunder by reason of the provisions of Paragraph
3 or 4 or clause (iii) of Paragraph 5 may be made either by the Company's Board
of Directors (by majority vote of disinterested directors or directors who are
not parties to or the subject of the same or any similar claim, action, suit or
proceeding) or by independent legal counsel (who may be the outside counsel
regularly employed by the Company), as the Company's Board of Directors shall
determine. Notwithstanding such determination, the right to indemnification or
advances of Costs and Expenses as provided in this agreement shall be
enforceable by you in any court of competent jurisdiction. The burden of proving
that indemnification is not appropriate shall be on the Company. Neither the
failure of the Company (including its Board of Directors or independent legal
counsel) to have made a determination prior to the commencement of such action
that indemnification is proper in the circumstances because you have met the
applicable standard of conduct, nor an actual determination by the Company
(including its Board of Directors or independent legal counsel) that you have
not met such applicable standard of conduct shall be a defense to the action or
create a presumption that you have not met the applicable standard of conduct.
Costs and expenses, including counsel fees, reasonably incurred by you in
connection with successfully establishing your right to indemnification, in
whole or in part, in any such action shall also be indemnified by the Company.
8. You agree to give prompt notice to the Company of any claim with
respect to which you seek indemnification and, unless a conflict of interest
shall exist between you and the Company with respect to such claim, you will
permit the Company to assume the defense of such claim with counsel of its
choice. Whether or not such defense is assumed by the Company, the Company will
not be subject to any liability for any settlement made without its consent. The
Company will not consent to entry of any judgment or enter into any settlement
that does not include as an unconditional term thereof the giving by the
claimant or plaintiff to you of a release from all liability with respect to
such claim or litigation. If the Company is not entitled to, or does not elect
to, assume the defense of a claim, the Company will not be obligated to pay the
fees and expenses of more than one counsel for you and any other directors or
officers of the Company who are indemnified pursuant to similar indemnity
agreements with respect to such claim, unless a conflict of interest shall exist
between such indemnified party and any other of such indemnified parties with
respect to such claim, in which event the Company will be obligated to pay the
fees and expenses of an additional counsel for each indemnified party or group
of indemnified parties with whom a conflict of interest exists.
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9. The Company's obligation to indemnify you under this agreement is in
addition to any other rights to which you may otherwise be entitled by operation
of law, vote of the Company's stockholders or directors or otherwise and will be
available to you whether or not the claim asserted against you is based upon
matters which occurred before the date of this agreement.
10. The obligation of the Company to indemnify you with respect to
Losses which you may incur by reason of your service as an officer, director,
employee, agent, fiduciary or representative of the Company or a Related Entity,
as provided under this agreement, shall survive the termination of your service
in such capacities and shall inure to the benefit of your heirs, executors and
administrators.
11. If you are entitled under this agreement or otherwise to
indemnification by the Company for some or a portion of the Losses actually and
reasonably incurred by you but not, however, for the total amount thereof, the
Company shall nevertheless indemnify you for the portion of the Losses to which
you are entitled.
12. It is the intention of the parties to this agreement to provide for
indemnification in all cases under all circumstances where to do so would not
violate applicable law (and notwithstanding any limitations permitted, but not
required by statute) and the terms and provisions of this agreement shall be
interpreted and construed consistent with that intention. Nonetheless, if any
provision of this agreement or any indemnification made under this agreement
shall for any reason be determined by any court of competent jurisdiction to be
invalid, unlawful or unenforceable under current or future laws, such provision
shall be fully severable and, the remaining provisions of this agreement shall
not otherwise be affected thereby, but will remain in full force and effect and,
to the fullest extent possible, shall be construed so as to give effect to the
intent manifested by the provision held invalid, illegal or unenforceable.
13. This agreement shall be governed by and interpreted and construed
in accordance with the laws of the State of Delaware applicable to contracts
executed and to be performed entirely within that State.
14. No amendment, modification, termination or cancellation of this
agreement shall be effective unless in writing signed by both the Company and
you.
15. Your signature below will evidence your agreement and acceptance
with respect to the foregoing.
Very truly yours,
WMS HOTEL CORPORATION
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By:
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Name:
Title:
AGREED TO AND ACCEPTED:
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