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EXHIBIT 10.15(h)
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/ JAMES D. CARREKER
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"INDEMNITEE" /s/ ROBERT A. WHITMAN
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Robert A. Whitman
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