INDEMNIFICATION AGREEMENT
This Indemnification Agreement (the "Agreement) is made as of ____________,
1998 by and between Hospitality Marketing Concepts Inc. a Delaware corporation
(the "Corporation"), and _________________ (the "Indemnitee"),
_________________________________________ _________________ of the Corporation.
R E C I T A L S
A. The Corporation and the Indemnitee recognize that the
interpretation of statutes, regulations, court opinions and the Corporation's
Certificate of Incorporation, as amended, and bylaws in certain circumstances
may not provide the Corporation's officers and directors with adequate
guidance with respect to the legal risks and potential liabilities to which
they may become personally exposed as a result of performing their duties in
good faith for the Corporation.
B. The Corporation and the Indemnitee are aware of the substantial
increase in the number of lawsuits filed against corporate officers and
directors.
C. The Corporation and the Indemnitee recognize that the cost of
defending against such lawsuits, whether or not meritorious, may impose
substantial economic hardship upon the Corporation's officers and directors.
D. The Corporation and the Indemnitee recognize that the legal risks,
potential liabilities and expenses of defense associated with litigation against
officers and directors arising or alleged to arise from the conduct of the
affairs of the Corporation are frequently excessive in view of the amount of
compensation received by the Corporation's officers and directors, and thus may
act as a significant deterrent to the ability of the Corporation to obtain
experienced and capable officers and directors.
E. Section 145 of the General Corporation Law of the State of Delaware,
which sets forth certain provisions relating to the indemnification of officers
and directors (among others) of a Delaware corporation by such corporation, is
specifically not exclusive of other rights to which those indemnified thereunder
may be entitled under any bylaw, agreement, vote of stockholders or
disinterested directors, or otherwise.
F. In order to induce capable persons such as the Indemnitee to serve or
continue to serve as officers or directors of the Corporation and to enable them
to perform their duties to the Corporation secure in the knowledge that certain
expenses and liabilities that may be incurred by them will be borne by the
Corporation, the Board of Directors of the Corporation has determined, after due
consideration and investigation of the terms and provisions of this Agreement
and the various other options available to the Corporation and the Indemnitee in
lieu of this Agreement, that the following Agreement is in the best interests of
the Corporation and its stockholders.
G. The Corporation desires to have the Indemnitee serve or continue to
serve as an officer and/or director of the Corporation, and the Indemnitee
desires to serve or continue to serve as an officer and/or director of the
Corporation provided, and on the express condition, that he is furnished with
the indemnity set forth below.
A G R E E M E N T
NOW, THEREFORE, in consideration of the mutual covenants and agreements set
forth below, the Corporation and the Indemnitee agree as follows:
1. CONTINUED SERVICE. Subject to the terms of any written employment
agreement between the Indemnitee and the Company, the Indemnitee agrees to serve
or continue to serve as a director and/or officer of the Corporation for so long
as he is duly elected or appointed or until such time as he resigns in writing.
2. DEFINITIONS.
(a) The term "Proceeding" shall include any threatened, pending or
completed action, suit or proceeding, whether brought in the name of the
Corporation or otherwise and whether of a civil, criminal or administrative or
investigative nature, including, but not limited to, actions, suits or
proceedings brought under or predicated upon the Securities Act of 1933, as
amended, the Securities Exchange Act of 1934, as amended, their respective state
counterparts or any rule or regulation promulgated thereunder, in which the
Indemnitee may be or may have been involved as a party or otherwise by reason of
the fact that the Indemnitee is or was a director and/or officer of the
Corporation, by reason of any action taken by him or of any inaction on his part
while acting as such director and/or officer, or by reason of the fact that he
is or was serving at the request of the Corporation as a director, officer,
employee or agent of another corporation, partnership, joint venture, trust or
other enterprise, whether or not he is serving in such capacity at the time any
indemnified liability or reimbursable expense is incurred.
(b) The term "Expenses" shall include, but shall not be limited to,
damages, judgments, fines, settlements and charges, costs, expenses of
investigation and expenses of defense of legal actions, suits, proceedings or
claims and appeals therefrom, and expenses of appeal, attachment or similar
bonds. "Expenses" shall not include any judgments, fines or penalties actually
levied against the Indemnitee which the Corporation is prohibited by applicable
law from paying.
3. INDEMNIFICATION IN THIRD-PARTY PROCEEDINGS. Subject to Paragraph 8,
the Corporation shall indemnify the Indemnitee in accordance with the provisions
of this Paragraph 3 if the Indemnitee is a party to, threatened to be made a
party to or otherwise involved in, any Proceeding (other than a Proceeding by
the Corporation itself to procure a judgment in its favor), by reason of the
fact that the Indemnitee is or was a director and/or officer of the Corporation
or is or was serving at the request of the Corporation as a director, officer,
employee or agent of another corporation, partnership, joint venture, trust or
other enterprise, against all Expenses actually and reasonably incurred by the
Indemnitee in connection with the defense or settlement of such Proceeding,
provided it is determined, pursuant to Paragraph 7 or by the court before which
such action was brought, that
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the Indemnitee acted in good faith and in a manner that he reasonably
believed to be in or not opposed to the best interests of the Corporation
and, in the case of a criminal proceeding, had no reasonable cause to believe
that his conduct was unlawful. The termination of any such Proceeding by
judgment, order of court, settlement, conviction or upon a plea of NOLO
CONTENDERE or its equivalent shall not, of itself, create a presumption that
the Indemnitee did not act in good faith or in a manner that he reasonably
believed to be in or not opposed to the best interests of the Corporation,
and with respect to any criminal proceeding, that such person had reasonable
cause to believe that his conduct was unlawful.
4. INDEMNIFICATION IN PROCEEDINGS BY OR IN THE NAME OF THE CORPORATION.
Subject to Paragraph 8, the Corporation shall indemnify the Indemnitee against
all Expenses actually and reasonably incurred by the Indemnitee in connection
with the defense or settlement of any Proceeding by or in the name of the
Corporation to procure a judgment in its favor by reason of the fact that the
Indemnitee was or is a director and/or officer of the Corporation or is or was
serving at the request of the Corporation as a director, officer, employee or
agent of another corporation, partnership, joint venture, trust or other
enterprise, but only if he acted in good faith and in a manner that he
reasonably believed to be in or not opposed to the best interests of the
Corporation; provided, however, that no indemnification for Expenses shall be
made under this Paragraph 4 with respect to any claim, issue or matter as to
which the Indemnitee shall have been adjudged to be liable to the Corporation,
unless and only to the extent that the Court of Chancery or the court in which
such Proceeding is 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.
5. INDEMNIFICATION OF EXPENSES OF SUCCESSFUL PARTY. Notwithstanding any
other provisions 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 the dismissal of an action
without prejudice, the Indemnitee shall be indemnified against all Expenses
incurred in connection therewith.
6. ADVANCES OF EXPENSES. Expenses incurred by the Indemnitee pursuant to
Paragraphs 3 and 4 in any Proceeding shall be paid by the Corporation in advance
of the determination of such Proceeding at the written request of the
Indemnitee, if the Indemnitee shall undertake to repay such amount to the extent
that it is ultimately determined that the Indemnitee is not entitled to
indemnification and shall agree that the Corporation shall be entitled to the
right to offset, subject to applicable law, such amounts owed to the Corporation
against any salary or other compensation that the Corporation is obligated to
pay Indemnitee.
7. RIGHT OF INDEMNITEE TO INDEMNIFICATION UPON APPLICATION; PROCEDURE
UPON APPLICATION. Any indemnification or advance under Paragraph 3, 4 or 6
shall be made no later than 30 days after receipt of the written request of the
Indemnitee therefor, unless a determination is made within said 30-day period by
(a) the Board of Directors of the Corporation by a majority vote of a quorum
thereof consisting of directors who were not parties to such Proceedings, (b)
independent legal counsel in a written opinion (which counsel shall be appointed
if such a quorum is not
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obtainable), or (c) the stockholders of the Corporation, that the Indemnitee
has not met the relevant standards for indemnification set forth in
Paragraphs 3 and 4.
The right to indemnification or advances as provided by this Agreement
shall be enforceable by the Indemnitee in any court of competent jurisdiction.
The Corporation shall bear the burden of proving that indemnification or
advances are not appropriate. The failure of the Corporation to have made a
determination that indemnification or advances are proper in the circumstances
shall not be a defense to the action or create a presumption that the Indemnitee
has not met the applicable standard of conduct. The Indemnitee's Expenses
incurred in connection with successfully establishing his right to
indemnification or advances, in whole or in part, in any such Proceeding shall
also be indemnified by the Corporation.
8. INDEMNIFICATION HEREUNDER NOT EXCLUSIVE. The right to indemnification
provided by this Agreement shall not be exclusive of any other rights to which
the Indemnitee may be entitled under the Corporation's Certificate of
Incorporation, as amended, bylaws, any agreement, any vote of stockholders or
disinterested directors, the General Corporation Law of the State of Delaware or
otherwise, both as to action in his official capacity and as to action in
another capacity while holding such office. The indemnification under this
Agreement shall continue as to the Indemnitee even though he may have ceased to
be a director or officer, and shall inure to the benefit of the heirs and
personal representatives of the Indemnitee.
9. PARTIAL INDEMNIFICATION. If the Indemnitee is entitled under any
provision of this Agreement to indemnification by the Corporation for a portion
of his Expenses actually and reasonably incurred by him in any Proceeding but
not, however, for the total amount thereof, the Corporation shall nevertheless
indemnify the Indemnitee for the portion of such Expenses to which the
Indemnitee is entitled.
10. NO DUPLICATION OF PAYMENTS. The Corporation shall not be liable under
this Agreement to make any payment in connection with any claim made against the
Indemnitee to the extent the Indemnitee has otherwise actually received payment
(under any insurance policy, the Corporation's Certificate of Incorporation, as
amended, bylaws or otherwise) of the amounts otherwise indemnifiable hereunder.
11. SETTLEMENT OF CLAIMS. The Corporation shall not be liable to
indemnify the Indemnitee under this Agreement for any amounts paid in settlement
of any action or claim effected without the Corporation's written consent. The
Corporation shall not settle any action or claim in any manner which would
impose any penalty or limitation on the Indemnitee without the Indemnitee's
written consent. Neither the Corporation nor the Indemnitee will unreasonably
withhold their consent to any proposed settlement. The Corporation shall not be
liable to indemnify the Indemnitee under this Agreement with regard to any
judicial award if the Corporation was not given a reasonable and timely
opportunity, at its expense, to participate in the defense of such action.
12. SEVERABILITY. If any provision of this Agreement or the application
of any provision hereof to any person or circumstance is held invalid,
unenforceable or otherwise illegal, the remainder of this Agreement and the
application of such provision to other persons or circumstances shall not
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be affected, and the provision so held to be invalid, unenforceable or
otherwise illegal shall be revised to the extent (and only to the extent)
necessary to make it enforceable, valid and legal.
13. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware, without giving effect to the
principles of conflict of laws thereof.
14. NOTICES. The Indemnitee shall, as a condition precedent to his right
to be indemnified under this Agreement, give to the Corporation written notice
as soon as practicable of any claim made against him for which indemnity will or
could be sought under this Agreement. Notice to the Corporation shall be
directed to15751 Rockfield Boulevard, Suite 200, Irvine, California 92718,
Attention: Chairman of the Board (or at such other address or to the attention
of such other person as the Corporation shall designate in writing to the
Indemnitee). Notices to the Indemnitee shall be sent to the Indemnitee at the
address set forth after his name on the signature page of this Agreement (or at
such other addresses the Indemnitee shall designate in writing to the
Corporation).
HOSPITALITY MARKETING CONCEPTS INC.
By:____________________________
Name:________________________
INDEMNITEE
_______________________________
______________________
INDEMNITEE'S ADDRESS:
_______________________________
_______________________________
_______________________________
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