EXHIBIT 10.1
INDEMNIFICATION AGREEMENT
THIS INDEMNIFICATION AGREEMENT (the "Agreement") dated as of July __, 1998
is by and between ResortQuest International, Inc., a Delaware corporation (the
"Company"), and ______________ ("Indemnitee").
RECITALS
A. Indemnitee is a member of the Board of Directors of the Company and in
such capacity is performing a valuable service to the Company.
B. The Company's Bylaws (the "Bylaws") provide for the indemnification of
directors, officers, employees and agents of the Company.
C. The Amended and Restated Certificate of Incorporation of the Company
(the "Certificate") provides that the Company shall, to the fullest extent
permitted by Section 145 of the General Corporation Law of the State of
Delaware, as amended from time to time (the "Corporation Law") indemnify the
directors, officers, employees and agents of the Company.
D. The Corporation Law specifically provides that indemnification and
advancement of expenses provided in such statute shall not be exclusive of any
other rights under any agreement, and thereby contemplates that agreements may
be entered into between the Company and members of the Board of Directors or
officers of the Company with respect to the indemnification of such directors or
officers.
E. In accordance with the authorization provided in the Corporation Law,
the Company has purchased and presently maintains a policy or policies of
directors' and officers' liabilities insurance (the "Insurance") covering
certain liabilities which may be incurred by the Company's directors and
officers in the performance of their services to the Company.
F. The general availability of directors' and officers' liability insurance
covering certain liabilities which may be incurred by the Company's directors
and officers in the performance of their services to the Company and the
applicability, amendment and enforcement of statutory and bylaw provisions have
raised questions concerning the adequacy and reliability of the protection
afforded to directors and officers.
G. In order to induce Indemnitee to serve as a member of the Board of
Directors of the Company for the current term and for any subsequent term to
which he is elected or nominated, the Company has deemed it to be in its best
interest to enter into this Agreement with Indemnitee.
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NOW, THEREFORE, in consideration of Indemnitee's agreement to serve as a
member of the Board of Directors of the Company after the date hereof, the
parties hereto agree as follows:
1. Definitions.
As used in this Agreement, the following terms shall have the following
meanings:
(a) Change in Control. A "Change in Control" shall be deemed to have
occurred if any of the following shall have occurred unless the transaction
or event shall have been approved by at least two-thirds (2/3) of the Board
of Directors of RQI:
(i) any person or entity, other than RQI or an employee benefit
plan of RQI, acquires directly or indirectly the Beneficial Ownership
(as defined in Section 13(d) of the Securities Exchange Act of 1934,
as amended) of any voting security of RQI and immediately after such
acquisition such person or entity is, directly or indirectly, the
Beneficial Owner of voting securities representing 50% or more of the
total voting power of all of the then-outstanding voting securities of
RQI;
(ii) the following individuals no longer constitute a majority of
the members of the Board of Directors of RQI: (A) the individuals who,
as of the closing date of RQI's initial public offering, constitute
the Board of Directors of RQI (the "Original Directors"); (B) the
individuals who thereafter are elected to the Board of Directors of
RQI and whose election, or nomination for election, to the Board of
Directors of RQI was approved by a vote of at least two-thirds (2/3)
of the Original Directors then still in office (such directors
becoming "Additional Original Directors" immediately following their
election); and (C) the individuals who are elected to the Board of
Directors of RQI and whose election, or nomination for election, to
the Board of Directors of RQI was approved by a vote of at least
two-thirds (2/3) of the Original Directors and Additional Original
Directors then still in office (such directors also becoming
"Additional Original Directors" immediately following their election);
(iii) the stockholders of RQI shall approve a merger,
consolidation, recapitalization or reorganization of RQI, a reverse
stock split of outstanding voting securities, or consummation of any
such transaction if stockholder approval is not obtained, other than
any such transaction which would result in at least 75% of the total
voting power represented by the voting securities of the surviving
entity outstanding immediately after such transaction being
Beneficially Owned by at least 75% of the holders of outstanding
voting securities of RQI immediately prior to the transaction, with
the voting power of each such continuing holder relative to other such
continuing holders not substantially altered in the transaction; or
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(iv) the stockholders of RQI shall approve a plan of complete
liquidation of RQI or an agreement for the sale or disposition by RQI
of all or a substantial portion of RQI's assets (i.e., 50% or more of
the total assets of RQI).
(b) Reviewing Party. A "Reviewing Party" means (i) the Board of
Directors or a committee of directors of the Company, who are not officers,
appointed by the Board of Directors, provided that a majority of such
directors are not parties to the claim, or (ii) special, independent
counsel selected and appointed by the Board of Directors or by a committee
of directors of the Company who are not officers.
2. Indemnification of Indemnitee.
The Company hereby agrees that it shall hold harmless and indemnify
Indemnitee to the fullest extent authorized and permitted by the provisions of
the Certificate and Bylaws and the provisions of the Corporation Law, or by any
amendment thereof, but in the case of any such amendment, only to the extent
that such amendment permits the Company to provide broader indemnification
rights than the Certificate, Bylaws or Corporation Law permitted the Company to
provide prior to such amendment, or other statutory provisions authorizing or
permitting such indemnification which is adopted after the date hereof.
3. Insurance.
3.1 Insurance Policies. So long as Indemnitee may be subject to any
possible claim or threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative, by reason of the fact
that Indemnitee is or was a director or officer, to the extent that the Company
maintains one or more insurance policy or policies providing directors' and
officers' liability insurance, Indemnitee shall be covered by such policy or
policies in accordance with its or their terms, to the maximum extent of the
coverage applicable to any director or officer then serving the Company.
3.2 Maintenance of Insurance. The Company shall not be required to maintain
the Insurance or any policy or policies of comparable insurance, as the case may
be, if such insurance is not reasonably available or if, in the reasonable
business judgment of the Board of Directors of the Company which shall be
conclusively established by such determination by the Board of Directors, or any
appropriate committee thereof, either (i) the premium cost for such insurance is
substantially disproportionate to the amount of coverage thereunder, or (ii) the
coverage provided by such insurance is so limited by exclusions that there is
insufficient benefit from such insurance.
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3.3 Self-Insurance. To the extent Indemnitee is not indemnified under
other Sections of this Agreement and is not fully, by reason of deductible or
otherwise, covered by directors' and officers' liability insurance, the Company
shall maintain self-insurance for, and thereby indemnify and hold harmless,
Indemnitee from and against any and all expenses, including attorneys' fees,
judgments, fines and amounts paid in settlement actually and reasonably incurred
by Indemnitee in connection with any possible claim or threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative or
investigative, in which Indemnitee was or is made party or was or is involved by
reason of the fact that Indemnitee is or was a director or officer of the
Company. Notwithstanding the foregoing, payments of self-insurance under this
Section to Indemnitee by the Company shall be limited in accordance with Section
5 hereof. An "event" as used in the preceding sentence in reference to a
limitation on self-insurance shall include the same acts or omissions by
Indemnitee and interrelated, repeated or continuous acts or omissions.
4. Additional Indemnification.
Subject only to the exclusions set forth in Section 5 hereof, the Company
hereby agrees that it shall hold harmless and indemnify Indemnitee:
(a) against any and all expenses, including attorneys' fees,
judgments, fines and amounts paid in settlement actually and reasonably
incurred by Indemnitee in connection with any threatened, pending or
completed action, suit or proceeding, whether civil, criminal,
administrative or investigative, including an action by or on behalf of
stockholders of the Company or by or in the right of the Company, to which
Indemnitee is, was or at any time becomes a party, or is threatened to be
made a party, by reason of the fact that Indemnitee is, was or at any time
becomes a director, advisory director, officer, employee or agent of the
Company, or is or was serving or at any time serves at the request of the
Company as a director, advisory director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise;
and
(b) otherwise to the fullest extent as may be provided to Indemnitee
by the Company under the non-exclusivity provisions of the Corporation Law.
5. Limitations on Additional Indemnification.
No indemnification pursuant to this Agreement shall be paid by the Company:
(a) in respect to any transaction if it shall be determined by the
Reviewing Party, or by final judgment or other final adjudication, that
Indemnitee derived an improper personal benefit;
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(b) on account of Indemnitee's conduct which is determined by the
Reviewing Party, or by final judgment or other final adjudication, to have
involved acts or omissions not in good faith, intentional misconduct or a
knowing violation of law; or
(c) if the Reviewing Party or a court having jurisdiction in the
matter shall determine that such indemnification is in violation of the
Certificate, the Bylaws or the law.
6. Advancement of Expenses.
In the event of any threatened or pending action, suit or proceeding in
which Indemnitee is a party or is involved and which may give rise to a right of
indemnification under this Agreement, following written request to the Company
by Indemnitee the Company shall promptly pay to Indemnitee amounts to cover
expenses incurred by Indemnitee in such proceeding in advance of its final
disposition upon the receipt by the Company of (i) a written undertaking
executed by or on behalf of Indemnitee to repay the advance if it shall
ultimately be determined that Indemnitee is not entitled to be indemnified by
the Company as provided in this Agreement, and (ii) satisfactory evidence as to
the amount of such expenses.
7. Repayment of Expenses.
Indemnitee agrees that Indemnitee shall reimburse the Company for all
reasonable expenses paid by the Company in defending any civil, criminal,
administrative or investigative action, suit or proceeding against Indemnitee in
the event and only to the extent that it shall be determined by final judgment
or other final adjudication that Indemnitee is not entitled to be indemnified by
the Company for such expenses under the provisions of the Corporation Law or any
applicable law.
8. Determination of Indemnification; Burden of Proof.
With respect to all matters concerning the rights of Indemnitee to
indemnification and payment of expenses under this Agreement or under the
provisions of the Certificate and Bylaws now or hereafter in effect, the Company
shall appoint a Reviewing Party and any determination by the Reviewing Party
shall be conclusive and binding on the Company and Indemnitee. If under
applicable law, the entitlement of Indemnitee to be indemnified under this
Agreement depends on whether a standard of conduct has been met, the burden of
proof of establishing that Indemnitee did not act in accordance with such
standard of conduct shall rest with the Company. Indemnitee shall be presumed to
have acted in accordance with such standard and entitled to indemnification or
advancement of expenses hereunder, as the case may be, unless, based upon a
preponderance of the evidence, it shall be determined by the Reviewing Party
that Indemnitee did not meet such standard. For purposes of this Agreement,
unless otherwise expressly stated herein, the termination of any action, suit or
proceeding by judgment, order, settlement, whether with or without court
approval, or conviction, or upon a plea of nolo contendere or its
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equivalent shall not create a presumption that Indemnitee did not meet any
particular standard of conduct or have any particular belief or that a court has
determined that indemnification is not permitted by applicable law.
9. Effect of Change in Control.
If there has not been a Change in Control after the date of this Agreement,
the determination of (i) the rights of Indemnitee to indemnification and payment
of expenses under this Agreement or under the provisions of the Certificate and
the Bylaws, (ii) standard of conduct, and (iii) evaluation of the reasonableness
of amounts claimed by Indemnitee shall be made by the Reviewing Party or such
other body or persons as may be permitted by the Corporation Law. If there has
been a Change in Control after the date of this Agreement, such determination
and evaluation shall be made by a special, independent counsel who is selected
by Indemnitee and approved by the Company, which approval shall not be
unreasonably withheld, and who has not otherwise performed services for
Indemnitee or the Company.
10. Continuation of Indemnification.
All agreements and obligations of the Company contained herein shall
continue during the period that Indemnitee is a director, advisory director,
officer, employee or agent of the Company, or is or was serving at the request
of the Company as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise, and shall continue
thereafter so long as Indemnitee shall be subject to any possible claim or
threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative, by reason of the fact that Indemnitee
was a director, advisory director or officer of the Company or serving in any
other capacity referred to herein.
11. Notification and Defense of Claim.
Promptly after receipt by Indemnitee of notice of the commencement of any
action, suit or proceeding, Indemnitee shall, if a claim in respect hereof is to
be made against the Company under this Agreement, notify the Company of the
commencement thereof; provided, however, that delay in so notifying the Company
shall not constitute a waiver or release by Indemnitee of rights hereunder and
that omission by Indemnitee to so notify the Company shall not relieve the
Company from any liability which it may have to Indemnitee otherwise than under
this Agreement. With respect to any such action, suit or proceeding as to which
Indemnitee notifies the Company of the commencement thereof:
(a) The Company shall be entitled to participate therein at its own
expense; and
(b) Except as otherwise provided below, to the extent that it may wish, the
Company, jointly with any other indemnifying party similarly notified,
shall be entitled to assume the defense thereof and to employ counsel
reasonably satisfactory to Indemnitee. After notice from the Company to
Indemnitee of its election to so assume the defense thereof, the Company
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 reasonable costs of investigation or as
otherwise provided below. Indemnitee shall have the right to employ counsel
of his own choosing in such action, suit or proceeding but the fees and
expenses of such counsel incurred after notice from the Company of
assumption by the Company of the defense thereof shall be at the expense of
Indemnitee unless: (i) the employment of counsel by Indemnitee has been
specifically authorized by the Company, such authorization to be
conclusively established by action by disinterested members of the Board of
Directors though less than a quorum; (ii) representation by the same
counsel of both Indemnitee and the Company would, in the reasonable
judgment of Indemnitee and the Company, be inappropriate due to an actual
or potential conflict of interest between the Company and Indemnitee in the
conduct of the defense of such action, such conflict of interest to be
conclusively established by an opinion of counsel to the Company to such
effect; (iii) the counsel employed by the Company and reasonably
satisfactory to Indemnitee has advised Indemnitee in writing that such
counsel's representation of Indemnitee would likely involve such counsel in
representing differing interests which could adversely affect the judgment
or loyalty of such counsel to Indemnitee, whether it be a conflicting,
inconsistent, diverse or other interest; or (iv) the Company shall not in
fact have employed counsel to assume the defense of such action, in each of
which cases the fees and expenses of counsel shall be paid by the Company.
The Company shall not be entitled to assume the defense of any action, suit
or proceeding brought by or on behalf of the Company or as to which a
conflict of interest has been established as provided in (ii) hereof.
Notwithstanding the foregoing, if an insurance company has supplied
directors' and officers' liability insurance covering an action, suit or
proceeding, then such insurance company shall employ counsel to conduct the
defense of such action, suit or proceeding unless Indemnitee and the
Company reasonably concur in writing that such counsel is unacceptable.
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(c) The Company shall not be liable to indemnify Indemnitee under this
Agreement for any amounts paid in settlement of any action or claim
effected without its written consent. The Company shall not settle any
action or claim in any manner which would impose any liability or penalty
on Indemnitee without Indemnitee's written consent. Neither the Company nor
Indemnitee shall unreasonably withhold consent to any proposed settlement.
12. Enforcement.
(a) The Company expressly confirms and agrees that it has entered into this
Agreement and assumed the obligations imposed on the Company hereby in order to
induce Indemnitee to serve as a director, advisory director or officer of the
Company and acknowledges that Indemnitee is relying upon this Agreement in
continuing in such capacity.
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(b) If a claim for indemnification or advancement of expenses is not paid
in full by the Company within thirty (30) days after a written claim by
Indemnitee has been received by the Company, Indemnitee may at any time assert
the claim and bring suit against the Company to recover the unpaid amount of the
claim. In the event Indemnitee is required to bring any action to enforce rights
or to collect moneys due under this Agreement and is successful in such action,
the Company shall reimburse Indemnitee for all of Indemnitee's reasonable
attorneys' fees and expenses in bringing and pursuing such action.
13. Proceedings by Indemnitee.
The Company shall not be liable to make any payment under this Agreement in
connection with any action, suit or proceeding, or any part thereof, initiated
by Indemnitee unless such action, suit or proceeding, or part thereof, (i) was
authorized by the Company, such authorization to be conclusively established by
action by disinterested members of the Board of Directors though less than a
quorum, or (ii) was brought by Indemnitee pursuant to Section 12(b) hereof.
14. Effectiveness.
This Agreement is effective for, and shall apply to, (i) any claim which is
asserted or threatened before, on or after the date of this Agreement but for
which no action, suit or proceeding has been brought prior to the date hereof,
and (ii) any action, suit or proceeding which is threatened before, on or after
the date of this Agreement but which is not pending prior to the date hereof.
This Agreement shall not apply to any action, suit or proceeding which was
brought before the date of this Agreement. So long as the foregoing is
satisfied, this Agreement shall be effective for, and be applicable to, acts or
omissions occurring prior to, on or after the date hereof.
15. Non-exclusivity.
The rights of Indemnitee under this Agreement shall not be deemed
exclusive, or in limitation of, any rights to which Indemnitee may be entitled
under any applicable common or statutory law, or pursuant to the Certificate,
the Bylaws, a vote of the stockholders or otherwise.
16. Other Payments.
The Company shall not be liable to make any payment under this Agreement in
connection with any action, suit or proceeding against Indemnitee to the extent
Indemnitee has otherwise received payment of the amounts otherwise payable by
the Company hereunder.
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17. Subrogation.
In the event the Company makes any payment under this Agreement, the
Company shall be subrogated, to the extent of such payment, to all rights of
recovery of Indemnitee with respect thereto, and Indemnitee shall execute all
agreements, instruments, certificates or other documents and do or cause to be
done all things necessary or appropriate to secure such recovery rights to the
Company including, without limitation, executing such documents as shall enable
the Company to bring an action or suit to enforce such recovery rights.
18. Survival; Continuation.
The rights of Indemnitee under this Agreement shall inure to the benefit of
Indemnitee, his heirs, executors, administrators, personal representatives and
assigns, and this Agreement shall be binding upon the Company, its successors
and assigns. The rights of Indemnitee under this Agreement shall continue so
long as Indemnitee may be subject to any action, suit or proceeding because of
the fact that Indemnitee is or was a director, advisory director, officer,
employee or agent of the Company or is or was serving at the request of the
Company as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise. If the Company, in a
single transaction or series of related transactions, sells, leases, exchanges,
or otherwise disposes of all or substantially all of its property and assets,
the Company shall, as a condition precedent to any such transaction, cause
effective provision to be made so that the persons or entities acquiring such
property and assets shall become bound by and replace the Company under this
Agreement.
19. Amendment and Termination.
No amendment, modification, termination or cancellation of this Agreement
shall be effective unless made in writing signed by both parties hereto.
20. Headings.
Section headings of the sections and paragraphs of this Agreement have been
inserted for convenience of reference only and do not constitute a part of this
Agreement.
21. Notices.
All notices and other communications hereunder shall be in writing and
shall be deemed to have been duly given if delivered personally, mailed by
certified mail (return receipt requested) or sent by overnight delivery service,
cable, telegram, facsimile transmission or telex to the parties at the following
addresses or at such other addresses as shall be specified by the parties by
like notice:
(a) if to the Company:
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ResortQuest International, Inc.
1355-B Lynnfield Road
Suite 245
Memphis, TN 38119
Attn: Secretary
with a copy to:
Akin, Gump, Strauss, Hauer & Feld, L.L.P.
1333 New Hampshire Avenue, N.W.
Suite 400
Washington, D.C. 20036
Attn: Bruce S. Mendelsohn, Esq.
(b) if to the Indemnitee
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Notice so given shall, in the case of notice so given by mail, be deemed to be
given and received on the fourth calendar day after posting, in the case of
notice so given by overnight delivery service, on the date of actual delivery
and, in the case of notice so given by cable, telegram, facsimile transmission,
telex or personal delivery, on the date of actual transmission or, as the case
may be, personal delivery.
22. Severability.
If any provision of this Agreement shall be held to be illegal, invalid or
unenforceable under any applicable law, then such contravention or invalidity
shall not invalidate the entire Agreement. Such provision shall be deemed to be
modified to the extent necessary to render it legal, valid and enforceable, and
if no such modification shall render it legal, valid and enforceable, then this
Agreement shall be construed as if not containing the provision held to be
invalid, and the rights and obligations of the parties shall be construed and
enforced accordingly.
23. Complete Agreement.
This Agreement, those documents expressly referred to herein and other
documents of even date herewith embody the complete agreement and understanding
among the parties and supersede and preempt any prior understandings, agreements
or representations by or among the parties, written or oral, which may have
related to the subject matter hereof in any way.
24. Counterparts.
This Agreement may be executed in any number of counterparts and by
different parties hereto in separate counterparts, with the same effect as if
all parties had signed the same document. All such counterparts shall be deemed
an original, shall be construed together and shall constitute one and the same
instrument.
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25. Choice of Law.
This agreement will be governed by the internal law, and not the law of
conflicts, of the State of Delaware.
[Signature page follows]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed on the day and year first above written.
ResortQuest International, Inc.
By:
--------------------------------
John K. Lines
Senior Vice President
By:
--------------------------------
Indemnitee
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