Exhibit 10.1





Exhibit 10.1




INDEMNIFICATION AGREEMENT




THIS INDEMNIFICATION AGREEMENT (“Agreement”) is made and entered into as of the                     
day of                     , 20              , by and among DiamondRock Hospitality Company, a Maryland corporation
(“DiamondRock,” which term shall include any corporation, partnership, limited liability company, joint venture, trust,
foundation, association, organization or other legal entity controlled directly or
indirectly by DiamondRock), DiamondRock Hospitality Limited Partnership, a Delaware limited
partnership (the “Operating Partnership”), and                      (“Indemnitee”). The term
“Company” as used in this Agreement is intended to refer to both or either of DiamondRock and/or
the Operating Partnership, as the context requires so as to interpret the relevant provision in
such a manner as to permit the broadest scope of allowable indemnification for Indemnitee hereunder
permitted by applicable law and regulations.



WHEREAS, at the request of the Company, Indemnitee currently serves as a [director] [and]
[officer] of the Company and may, therefore, be subjected to claims, suits or proceedings arising
as a result of Indemnitee’s service; and



WHEREAS, as an inducement to Indemnitee to continue to serve as such [director] [and]
[officer], the Company has agreed to indemnify and to advance expenses and costs incurred by
Indemnitee in connection with any such claims, suits or proceedings, as set forth herein; and



WHEREAS, the parties by this Agreement desire to set forth their agreement regarding
indemnification and advance of expenses;



NOW, THEREFORE, in consideration of the premises and the covenants contained herein, the
Company and Indemnitee do hereby covenant and agree as follows:




Section 1. Definitions. For purposes of this Agreement:




(a) “Change in Control” means any of the following events:




(1) The conclusion of the acquisition (whether by a merger or otherwise) by any
Person (other than a Qualified Affiliate), in a single transaction or a series of
related transactions, of Beneficial Ownership of more than 50 % of (1) the Company’s
outstanding common stock (the “Common Stock”) or (2) the combined voting
power of the Company’s outstanding securities entitled to vote generally in the
election of directors (the “Outstanding Voting Securities”);




(2) The merger or consolidation of the Company with or into any other Person
other than a Qualified Affiliate, if the directors immediately prior to the merger
or consolidation cease to be the majority of the Board of Directors at anytime
within 12 months of the completion of the merger or consolidation;




(3) Any one or a series of related sales or conveyances to any Person or
Persons (including a liquidation or dissolution) other than to any one or more
Qualified Affiliates of all or substantially all of the assets of the Company or
DiamondRock Hospitality Limited Partnership (the “Operating
Partnership”); or


 


 









 






(4) Incumbent Directors cease, for any reason, to be a majority of the members
of the Board of Directors, where an “Incumbent Director” is (1) an
individual who is a member of the Board of Directors on the effective date of this
Agreement or (2) any new director whose election by the Board of Directors or whose
nomination for election by the stockholders was approved by a majority of the
persons who were already Incumbent Directors at the time of such election or
approval, other than any individual who assumes office initially as a result of an
actual or threatened election contest with respect to the election or removal of
directors or other actual or threatened solicitation of proxies or consents by or on
behalf of a Person other than the Board of Directors or as a result of an agreement
to avoid or settle such a contest or solicitation.




(5) The completion of a tender offer for the Company’s securities representing
more than 50% of the Outstanding Voting Securities, other than a tender offer by a
Qualified Affiliate.



For purposes of this definition of Change in Control, the following definitions shall apply: (A)
“Beneficial Ownership,” “Beneficially Owned” and “Beneficially Owns” shall
have the meanings provided in Exchange Act Rule 13d-3; (B) “Exchange Act” shall mean the
Securities Exchange Act of 1934, as amended; (C) “Person” shall mean any individual,
entity, or group (within the meaning of Section 13(d)(3) or 14(d)(2) of the Exchange Act),
including any natural person, corporation, trust, association, company, partnership, joint venture,
limited liability company, legal entity of any kind, government, or political subdivision, agency
or instrumentality of a government, as well as two or more Persons acting as a partnership, limited
partnership, syndicate or other group for the purpose of acquiring, holding or disposing of the
Company’s securities; and (D) “Qualified Affiliate” shall mean (I) any directly or
indirectly wholly owned subsidiary of the Company or the Operating Partnership; or (II) any
employee benefit plan (or related trust) sponsored or maintained by the Company or the Operating
Partnership or by any entity controlled by the Company or the Operating Partnership.



(b) “Corporate Status” means the status of a person as a present or former director,
officer, employee or agent of the Company or as a director, trustee, officer, partner, manager,
managing member, fiduciary, employee or agent of any other foreign or domestic corporation,
partnership, limited liability company, joint venture, trust, employee benefit plan or other
enterprise that such person is or was serving in such capacity at the request of the Company. As a
clarification and without limiting the circumstances in which Indemnitee may be serving at the
request of the Company, service by Indemnitee shall be deemed to be at the request of the Company
if Indemnitee serves or served as a director, trustee, officer, partner, manager, managing member,
fiduciary, employee or agent of any corporation, partnership, limited liability company, joint
venture, trust, employee benefit plan or other enterprise (i) of which a majority of the voting
power or equity interest is owned directly or indirectly by the Company or (ii) the management of
which is controlled directly or indirectly by the Company.


 


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(c) “Disinterested Director” means a director of the Company who is not and was not a
party to the Proceeding in respect of which indemnification and/or advance of Expenses is sought by
Indemnitee.



(d) “Effective Date” means the date set forth in the first paragraph of this
Agreement.



(e) “Expenses” means any and all out-of-pocket attorneys’ fees and costs, retainers,
court costs, transcript costs, fees of experts, witness fees, travel expenses, duplicating costs,
printing and binding costs, telephone charges, postage, delivery service fees, federal, state,
local or foreign taxes imposed on Indemnitee as a result of the actual or deemed receipt of any
payments under this Agreement, ERISA excise taxes and penalties and any other disbursements or
expenses incurred, but only to the extent such fees, costs, disbursements or expenses were
reasonably incurred in connection with prosecuting, defending, preparing to prosecute or defend,
investigating, being or preparing to be a witness in or otherwise participating in a Proceeding.
Expenses shall also include Expenses incurred in connection with any appeal resulting from any
Proceeding including, without limitation, the premium, security for and other costs relating to any
cost bond supersedeas bond or other appeal bond or its equivalent.



(f) “Independent Counsel” means a law firm, or a member of a law firm, that is
experienced in matters of corporation law and neither is, nor in the past five years has been,
retained to represent: (i) the Company or Indemnitee in any matter material to either such party
(other than with respect to matters concerning Indemnitee under this Agreement or of other
indemnitees under similar indemnification agreements), or (ii) any other party to or participant or
witness in the Proceeding giving rise to a claim for indemnification or advance of Expenses
hereunder. Notwithstanding the foregoing, the term “Independent Counsel” shall not include any
person who, under the applicable standards of professional conduct then prevailing, would have a
conflict of interest in representing either the Company or Indemnitee in an action to determine
Indemnitee’s rights under this Agreement.



(g) “Proceeding” means any threatened, pending or completed action, suit, arbitration,
alternate dispute resolution mechanism, investigation, inquiry, administrative hearing or any other
proceeding, whether brought by or in the right of the Company or otherwise and whether of a civil
(including intentional or unintentional tort claims), criminal, administrative or investigative
(formal or informal) nature, including any appeal therefrom, except one pending or completed on or
before the Effective Date, unless otherwise specifically agreed in writing by the Company and
Indemnitee. If Indemnitee reasonably believes that a given situation may lead to or culminate in
the institution of a Proceeding, such situation shall also be considered a Proceeding.



Section 2. Services by Indemnitee. Indemnitee will serve as a [director] [and]
[officer] of the Company. However, this Agreement shall not impose any independent obligation on
Indemnitee or the Company to continue Indemnitee’s service to the Company. This Agreement shall
not be deemed an employment contract between the Company (or any other entity) and Indemnitee.


 


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Section 3. General. If, by reason of Indemnitee’s Corporate Status, Indemnitee is, or
is threatened to be, made a party to any Proceeding, Indemnitee shall be indemnified against all
judgments, penalties, fines and amounts paid in settlement and all Expenses actually and reasonably
incurred by Indemnitee or on Indemnitee’s behalf in connection with any such Proceeding.
Notwithstanding anything contained or implied herein, in no event shall such indemnification or
advancement of Expenses be greater than the maximum extent permitted by Maryland law in effect on
the Effective Date and as amended from time to time; provided, however, that no change in Maryland
law shall have the effect of reducing the benefits available to Indemnitee hereunder based on
Maryland law as in effect on the Effective Date. The rights of Indemnitee provided in this Section
3 shall include, without limitation, the rights set forth in the other sections of this Agreement,
including any additional indemnification permitted by Section 2-418(g) of the Maryland General
Corporation Law (the “MGCL”).



Section 4. Certain Limits on Indemnification. Notwithstanding any other provision of
this Agreement (other than Section 5), Indemnitee shall not be entitled to:



(a) indemnification hereunder if the Proceeding was one by or in the right of the Company and
Indemnitee is adjudged to be liable to the Company;



(b) indemnification hereunder if it is established that (a) the act or omission of Indemnitee
was material to the matter giving rise to the Proceeding and (i) was committed in bad faith or
(ii) was the result of active and deliberate dishonesty, (b) Indemnitee actually received an
improper personal benefit in money, property or services or (c) in the case of any criminal
Proceeding, Indemnitee had reasonable cause to believe that Indemnitee’s conduct was unlawful; or



(c) indemnification or advance of Expenses hereunder if the Proceeding was brought by
Indemnitee unless: (i) the Proceeding was brought to enforce indemnification under this Agreement,
and then only to the extent in accordance with and as authorized by Section 11 of this Agreement,
or (ii) the Company’s charter or Bylaws, a resolution of the stockholders entitled to vote
generally in the election of directors or of the Board of Directors or an agreement approved by the
Board of Directors to which the Company is a party expressly provide otherwise; or



(d) indemnification or advancement of Expenses hereunder if Indemnitee fails to reasonably
cooperate with the Company (i) in the defense or prosecution of any claims or actions now in
existence or which may be brought in the future against or on behalf of the Company, (ii) in any
investigation or review of any federal, state or local regulatory authority, in either case to the
extent such defense, prosecution, investigation or review relates to events or occurrences that
transpired while Indemnitee was serving as a director of or employed by the Company;
notwithstanding the foregoing, such cooperation shall not be required if it, in the opinion of
counsel, would materially and adversely affect Indemnitee or expose Indemnitee to an increased
probability of civil or criminal litigation. Indemnitee’s cooperation in connection with such
claims or actions shall include, but not be limited to, being available to meet with counsel to
prepare for discovery or trial and to act as a witness on behalf of the Company at mutually
convenient times.


 


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Section 5. Court-Ordered Indemnification. Notwithstanding any other provision of this
Agreement, a court of appropriate jurisdiction, upon application of Indemnitee and such notice as
the court shall require, may order indemnification in the following circumstances:



(a) if it determines Indemnitee is entitled to reimbursement under Section 2-418(d)(1) of the
MGCL, the court shall order indemnification, in which case Indemnitee shall be entitled to recover
the Expenses of securing such reimbursement; or



(b) if it determines that Indemnitee is fairly and reasonably entitled to indemnification in
view of all the relevant circumstances, whether or not Indemnitee (i) has met the standards of
conduct set forth in Section 2-418(b) of the MGCL or (ii) has been adjudged liable for receipt of
an improper personal benefit under Section 2-418(c) of the MGCL, the court may order such
indemnification as the court shall deem proper. However, indemnification with respect to any
Proceeding by or in the right of the Company or in which liability shall have been adjudged in the
circumstances described in Section 2-418(c) of the MGCL shall be limited to Expenses.



Section 6. Indemnification for Expenses of a Party Who is Wholly or Partly Successful.
Notwithstanding any other provision of this Agreement, and without limiting any such provision, to
the extent that Indemnitee was or is, by reason of Indemnitee’s Corporate Status, made a party to
(or otherwise becomes a participant in) any Proceeding and is successful, on the merits or
otherwise, in the defense of such Proceeding, Indemnitee shall be indemnified for all Expenses
actually and reasonably incurred by Indemnitee or on Indemnitee’s behalf in connection therewith.
If Indemnitee is not wholly successful in such Proceeding but is successful, on the merits or
otherwise, as to one or more but less than all claims, issues or matters in such Proceeding, the
Company shall indemnify Indemnitee under this Section 6 for all Expenses actually and reasonably
incurred by Indemnitee or on Indemnitee’s behalf in connection with each such claim, issue or
matter, allocated on a reasonable and proportionate basis. For purposes of this Section 6 and,
without limitation, the termination of any claim, issue or matter in such a Proceeding by
dismissal, with or without prejudice, shall be deemed to be a successful result as to such claim,
issue or matter.




Section 7. Advance of Expenses for a Party.



(a) Subject to Section 7(b) below, if, by reason of Indemnitee’s Corporate Status, Indemnitee
is, or is threatened to be, made a party to any Proceeding, the Company shall, without requiring a
preliminary determination of Indemnitee’s ultimate entitlement to indemnification hereunder,
advance all reasonable Expenses incurred by or on behalf of Indemnitee in connection with such
Proceeding within ten days after the receipt by the Company of a statement or statements requesting
such advance or advances from time to time, whether prior to or after final disposition of such
Proceeding. Such statement or statements shall reasonably evidence the Expenses incurred by
Indemnitee and shall include or be preceded or accompanied by a written affirmation by Indemnitee
of Indemnitee’s good faith belief that the standard of conduct necessary for indemnification by the
Company as authorized by law and by
this Agreement has been met and a written undertaking by or on behalf of Indemnitee, in
substantially the form attached hereto as Exhibit A or in such form as may be required
under applicable law as in effect at the time of the execution thereof, to reimburse the portion of
any Expenses advanced to Indemnitee relating to claims, issues or matters in the Proceeding as to
which it shall ultimately be established that the standard of conduct has not been met by
Indemnitee and which have not been successfully resolved as described in Section 6 of this
Agreement. To the extent that Expenses advanced to Indemnitee do not relate to a specific claim,
issue or matter in the Proceeding, such Expenses shall be allocated on a reasonable and
proportionate basis. The undertaking required by this Section 7 shall be an unlimited general
obligation by or on behalf of Indemnitee and shall be accepted without reference to Indemnitee’s
financial ability to repay such advanced Expenses and without any requirement to post security
therefor.


 


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(b) Notwithstanding anything contained herein, the Company shall not be required to advance
any Expenses if either a duly appointed committee of one or more Disinterested Directors or an
Independent Counsel selected by the Board of Directors makes the following determinations in good
faith: (i) it is more likely than not that the Indemnitee will be obligated to reimburse such
advanced Expenses and the Indemnitee has not established, to the satisfaction of such committee or
Independent Counsel, that the Indemnitee has the financial ability to repay such advanced Expenses,
or (ii) Indemnitee has pled guilty to one or more charges brought in a criminal Proceeding that is
directly related to the request for indemnification.



Section 8. Indemnification and Advance of Expenses of a Witness. Notwithstanding any
other provision of this Agreement, to the extent that Indemnitee is or may be, by reason of
Indemnitee’s Corporate Status, made a witness or otherwise asked to participate in any Proceeding,
whether instituted by the Company or any other party, and to which Indemnitee is not a party,
Indemnitee shall be advanced all reasonable Expenses and indemnified against all Expenses actually
and reasonably incurred by Indemnitee or on Indemnitee’s behalf in connection therewith within ten
days after the receipt by the Company of a statement or statements requesting such advance or
advances from time to time, whether prior to or after final disposition of such Proceeding. Such
statement or statements shall reasonably evidence the Expenses incurred by Indemnitee.




Section 9. Procedure for Determination of Entitlement to Indemnification.



(a) To obtain indemnification under this Agreement, Indemnitee shall submit to the Company a
written request, including therein or therewith such documentation and information as is reasonably
available to Indemnitee and is reasonably necessary to determine whether and to what extent
Indemnitee is entitled to indemnification. Indemnitee may submit one or more such requests from
time to time and at such time(s) as Indemnitee deems appropriate in Indemnitee’s sole discretion.
The officer of the Company receiving any such request from Indemnitee shall, promptly upon receipt
of such a request for indemnification, advise the Board of Directors in writing that Indemnitee has
requested indemnification.


 


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(b) Upon written request by Indemnitee for indemnification pursuant to Section 9(a) above, a
determination, if required by applicable law, with respect to Indemnitee’s
entitlement thereto shall promptly be made in the specific case: (i) if a Change in Control
shall have occurred, by Independent Counsel, in a written opinion to the Board of Directors, a copy
of which shall be delivered to Indemnitee, which Independent Counsel shall be selected by the
Indemnitee and approved by the Board of Directors in accordance with Section 2-418(e)(2)(ii) of the
MGCL, which approval will not be unreasonably withheld; or (ii) if a Change in Control shall not
have occurred, (A) by the Board of Directors by a majority vote of a quorum consisting of
Disinterested Directors or, if such a quorum cannot be obtained, then by a majority vote of a duly
authorized committee of the Board of Directors consisting solely of one or more Disinterested
Directors, (B) if Independent Counsel has been selected by the Board of Directors in accordance
with Section 2-418(e)(2)(ii) of the MGCL and approved by the Indemnitee, which approval shall not
be unreasonably withheld, by Independent Counsel, in a written opinion to the Board of Directors, a
copy of which shall be delivered to Indemnitee or (C) if so directed by a majority of the members
of the Board of Directors, by the stockholders of the Company. If it is so determined that
Indemnitee is entitled to indemnification, payment to Indemnitee shall be made within ten days
after such determination. Indemnitee shall cooperate with the person, persons or entity making
such determination with respect to Indemnitee’s entitlement to indemnification, including providing
to such person, persons or entity upon reasonable advance request any documentation or information
which is not privileged or otherwise protected from disclosure and which is reasonably available to
Indemnitee and reasonably necessary to such determination in the discretion of the Board of
Directors or Independent Counsel if retained pursuant to clause (ii)(B) of this Section 9(b). Any
Expenses incurred by Indemnitee in so cooperating with the person, persons or entity making such
determination shall be borne by the Company (irrespective of the determination as to Indemnitee’s
entitlement to indemnification) and the Company shall indemnify and hold Indemnitee harmless
therefrom.



(c) The Company shall pay the reasonable fees and expenses of Independent Counsel, if one is
appointed.




Section 10. Presumptions and Effect of Certain Proceedings.



(a) In making any determination with respect to entitlement to indemnification hereunder, the
person or persons or entity making such determination shall presume that Indemnitee is entitled to
indemnification under this Agreement if Indemnitee has submitted a request for indemnification in
accordance with Section 9(a) of this Agreement, and the Company shall have the burden of proof to
overcome that presumption in connection with the making of any determination contrary to that
presumption.



(b) The termination of any Proceeding or of any claim, issue or matter therein, by judgment,
order, settlement or conviction, upon a plea of nolo contendere or its equivalent, or entry of an
order of probation prior to judgment, does not create a presumption that Indemnitee did not meet
the requisite standard of conduct described herein for indemnification.



(c) The knowledge and/or actions, or failure to act, of any other director, officer, employee
or agent of the Company or any other director, trustee, officer, partner, manager, managing member,
fiduciary, employee or agent of any other foreign or domestic corporation, partnership, limited
liability company, joint venture, trust, employee benefit plan or
other enterprise shall not be imputed to Indemnitee for purposes of determining any other
right to indemnification under this Agreement.


 


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Section 11. Remedies of Indemnitee.



(a) If (i) a determination is made pursuant to Section 9(b) of this Agreement that Indemnitee
is not entitled to indemnification under this Agreement, (ii) advance of Expenses is not timely
made pursuant to Section 7 of this Agreement, (iii) no determination of entitlement to
indemnification shall have been made pursuant to Section 9(b) of this Agreement within 60 days
after receipt by the Company of the request for indemnification, (iv) payment of indemnification is
not made pursuant to Section 6 of this Agreement within ten days after receipt by the Company of a
written request therefor, or (v) payment of indemnification pursuant to any other section of this
Agreement or the charter or Bylaws of the Company is not made within ten days after a determination
has been made that Indemnitee is entitled to indemnification, Indemnitee shall be entitled to an
adjudication in an appropriate court located in the State of Maryland, or in any other court of
competent jurisdiction, of Indemnitee’s entitlement to such indemnification or advance of Expenses.
Alternatively, Indemnitee, at Indemnitee’s option, may seek an award in arbitration to be
conducted by a single arbitrator pursuant to the Commercial Arbitration Rules of the American
Arbitration Association. Indemnitee shall commence a proceeding seeking an adjudication or an
award in arbitration within 180 days following the date on which Indemnitee first has the right to
commence such proceeding pursuant to this Section 11(a); provided, however, that the foregoing
clause shall not apply to a proceeding brought by Indemnitee to enforce Indemnitee’s rights under
Section 6 of this Agreement. Except as set forth herein, the provisions of Maryland law (without
regard to its conflicts of laws rules) shall apply to any such arbitration. The Company shall not
oppose Indemnitee’s right to seek any such adjudication or award in arbitration.



(b) In any judicial proceeding or arbitration commenced pursuant to this Section 11,
Indemnitee shall be presumed to be entitled to indemnification or advance of Expenses, as the case
may be, under this Agreement and the Company shall have the burden of proving that Indemnitee is
not entitled to indemnification or advance of Expenses, as the case may be. If Indemnitee
commences a judicial proceeding or arbitration pursuant to this Section 11, Indemnitee shall not be
required to reimburse the Company for any advances pursuant to Section 7 of this Agreement until a
final determination is made with respect to Indemnitee’s entitlement to indemnification (as to
which all rights of appeal have been exhausted or lapsed). The Company shall, to the fullest
extent not prohibited by law, be precluded from asserting in any judicial proceeding or arbitration
commenced pursuant to this Section 11 that the procedures and presumptions of this Agreement are
not valid, binding and enforceable and shall stipulate in any such court or before any such
arbitrator that the Company is bound by all of the provisions of this Agreement.



(c) If a determination shall have been made pursuant to Section 9(b) of this Agreement that
Indemnitee is entitled to indemnification, the Company shall be bound by such determination in any
judicial proceeding or arbitration commenced pursuant to this Section 11, absent a misstatement by
Indemnitee of a material fact, or an omission of a material fact necessary to make Indemnitee’s
statement not materially misleading, in connection with the request for indemnification.


 


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(d) In the event that Indemnitee, pursuant to this Section 11, seeks a judicial adjudication
of or an award in arbitration to enforce Indemnitee’s rights under, or to recover damages for
breach of, this Agreement, Indemnitee shall be entitled to recover from the Company, and shall be
indemnified by the Company for, any and all Expenses actually and reasonably incurred by Indemnitee
in such judicial adjudication or arbitration. If it shall be determined in such judicial
adjudication or arbitration that Indemnitee is entitled to receive part but not all of the
indemnification or advance of Expenses sought, the Expenses incurred by Indemnitee in connection
with such judicial adjudication or arbitration shall be appropriately prorated.



(e) Interest shall be paid by the Company to Indemnitee at the maximum rate allowed to be
charged for judgments under the Courts and Judicial Proceedings Article of the Annotated Code of
Maryland for amounts which the Company pays or is obligated to pay hereunder for the period
commencing with the date on which Indemnitee requests indemnification, reimbursement or advance of
any Expenses and ending on the date such payment is made to Indemnitee by the Company.




Section 12. Defense of the Underlying Proceeding.



(a) Indemnitee shall notify the Company promptly in writing upon being served with any
summons, citation, subpoena, complaint, indictment, request or other document relating to any
Proceeding which may result in the right to indemnification or the advance of Expenses hereunder
and shall include with such notice a description of the nature of the Proceeding and a summary of
the facts underlying the Proceeding. The failure to give any such notice shall not disqualify
Indemnitee from the right, or otherwise affect in any manner any right of Indemnitee, to
indemnification or the advance of Expenses under this Agreement unless the Company’s ability to
defend in such Proceeding or to obtain proceeds under any insurance policy is materially and
adversely prejudiced thereby, and then only to the extent the Company is thereby actually so
prejudiced.



(b) Subject to the provisions of the last sentence of this Section 12(b) and of Section 12(c)
below, the Company shall have the right to defend Indemnitee in any Proceeding which may give rise
to indemnification hereunder; provided, however, that the Company shall notify Indemnitee of any
such decision to defend within 15 calendar days following receipt of notice of any such Proceeding
under Section 12(a) above. The Company shall not, without the prior written consent of Indemnitee,
which shall not be unreasonably withheld or delayed, consent to the entry of any judgment against
Indemnitee or enter into any settlement or compromise which (i) includes an admission of fault of
Indemnitee, (ii) does not include, as an unconditional term thereof, the full release of Indemnitee
from all liability in respect of such Proceeding, which release shall be in form and substance
reasonably satisfactory to Indemnitee or (iii) would impose any Expense, judgment, fine, penalty or
limitation on Indemnitee. This Section 12(b) shall not apply to a Proceeding brought by Indemnitee
under Section 11 of this Agreement.


 


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(c) Notwithstanding the provisions of Section 12(b) above, if in a Proceeding to which
Indemnitee is a party by reason of Indemnitee’s Corporate Status, (i) Indemnitee reasonably
concludes, based upon an opinion of counsel approved by the Company, which
approval shall not be unreasonably withheld, that Indemnitee may have separate defenses or
counterclaims to assert with respect to any issue which may not be consistent with other defendants
in such Proceeding, (ii) Indemnitee reasonably concludes, based upon an opinion of counsel approved
by the Company, which approval shall not be unreasonably withheld, that an actual or apparent
conflict of interest or potential conflict of interest exists between Indemnitee and the Company,
or (iii) if the Company fails to assume the defense of such Proceeding in a timely manner,
Indemnitee shall be entitled to be represented by separate legal counsel of Indemnitee’s choice,
subject to the prior approval of the Company, which shall not be unreasonably withheld, at the
expense of the Company. In addition, if the Company fails to comply with any of its obligations
under this Agreement or in the event that the Company or any other person takes any action to
declare this Agreement void or unenforceable, or institutes any Proceeding to deny or to recover
from Indemnitee the benefits intended to be provided to Indemnitee hereunder, Indemnitee shall have
the right to retain counsel of Indemnitee’s choice, subject to the prior approval of the Company,
which shall not be unreasonably withheld, at the expense of the Company (subject to Section 11(d)
of this Agreement), to represent Indemnitee in connection with any such matter.




Section 13. Non-Exclusivity; Survival of Rights; Subrogation.



(a) The rights of indemnification and advance of Expenses as provided by this Agreement shall
not be deemed exclusive of any other rights to which Indemnitee may at any time be entitled under
applicable law, the charter or Bylaws of the Company, any agreement or a resolution of the
stockholders entitled to vote generally in the election of directors or of the Board of Directors,
or otherwise. Unless consented to in writing by Indemnitee, no amendment, alteration or repeal of
this Agreement or of any provision hereof shall limit or restrict any right of Indemnitee under
this Agreement in respect of any action taken or omitted by such Indemnitee in Indemnitee’s
Corporate Status prior to such amendment, alteration or repeal, regardless of whether a claim with
respect to such action or inaction is raised prior or subsequent to such amendment, alteration or
repeal. No right or remedy herein conferred is intended to be exclusive of any other right or
remedy, and every other right or remedy shall be cumulative and in addition to every other right or
remedy given hereunder or now or hereafter existing at law or in equity or otherwise. The
assertion of any right or remedy hereunder, or otherwise, shall not prohibit the concurrent
assertion or employment of any other right or remedy.



(b) In the event of any payment under this Agreement, the Company shall be subrogated to the
extent of such payment to all of the rights of recovery of Indemnitee, who shall execute all papers
required and take all action necessary to secure such rights, including execution of such documents
as are necessary to enable the Company to bring suit to enforce such rights.


 


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Section 14. Insurance. The Company will use its reasonable best efforts to acquire
directors and officers liability insurance, on terms and conditions deemed appropriate by the Board
of Directors, with the advice of counsel, covering Indemnitee or any claim made against Indemnitee
by reason of Indemnitee’s Corporate Status and covering the Company for any indemnification or
advance of Expenses made by the Company to Indemnitee for any claims made against Indemnitee by
reason of Indemnitee’s Corporate Status. Without in any way limiting any other obligation under
this Agreement, the Company shall indemnify Indemnitee for
any payment by Indemnitee arising out of the amount of any deductible or retention and the
amount of any excess of the aggregate of all judgments, penalties, fines, settlements and Expenses
incurred by Indemnitee in connection with a Proceeding over the coverage of any insurance referred
to in the previous sentence. The purchase, establishment and maintenance of any such insurance
shall not in any way limit or affect the rights or obligations of the Company or Indemnitee under
this Agreement except as expressly provided herein, and the execution and delivery of this
Agreement by the Company and the Indemnitee shall not in any way limit or affect the rights or
obligations of the Company under any such insurance policies. If, at the time the Company receives
notice from any source of a Proceeding to which Indemnitee is a party or a participant (as a
witness or otherwise) the Company has director and officer liability insurance in effect, the
Company shall give prompt notice of such Proceeding to the insurers in accordance with the
procedures set forth in the respective policies.



Section 15. Coordination of Payments. The Company shall not be liable under this
Agreement to make any payment of amounts otherwise indemnifiable or payable or reimbursable as
Expenses hereunder if and to the extent that Indemnitee has otherwise actually received such
payment under any insurance policy, contract, agreement or otherwise.



Section 16. Reports to Stockholders. To the extent required by the MGCL, the Company
shall report in writing to its stockholders the payment of any amounts for indemnification of, or
advance of Expenses to, Indemnitee under this Agreement arising out of a Proceeding by or in the
right of the Company with the notice of the meeting of stockholders of the Company next following
the date of the payment of any such indemnification or advance of Expenses or prior to such
meeting.




Section 17. Duration of Agreement; Binding Effect.



(a) This Agreement shall continue until and terminate on the later of (i) the date that
Indemnitee shall have ceased to serve as a director, officer, employee or agent of the Company or
as a director, trustee, officer, partner, manager, managing member, fiduciary, employee or agent of
any other foreign or domestic corporation, real estate investment trust, partnership, limited
liability company, joint venture, trust, employee benefit plan or other enterprise that such person
is or was serving in such capacity at the request of the Company and (ii) the date that Indemnitee
is no longer subject to any actual or possible Proceeding (including any rights of appeal thereto
and any Proceeding commenced by Indemnitee pursuant to Section 11 of this Agreement).



(b) The indemnification and advance of Expenses provided by, or granted pursuant to, this
Agreement shall be binding upon and be enforceable by the parties hereto and their respective
successors and assigns (including any direct or indirect successor by purchase, merger,
consolidation or otherwise to all or substantially all of the business or assets of the Company),
shall continue as to an Indemnitee who has ceased to be a director, officer, employee or agent of
the Company or a director, trustee, officer, partner, manager, managing member, fiduciary, employee
or agent of any other foreign or domestic corporation, partnership, limited liability company,
joint venture, trust, employee benefit plan or other enterprise that such person is or was serving
in such capacity at the request of the Company, and shall inure to the benefit of
Indemnitee and Indemnitee’s spouse, assigns, heirs, devisees, executors and administrators and
other legal representatives.


 


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(c) The Company shall require and cause any successor (whether direct or indirect by purchase,
merger, consolidation or otherwise) to all, substantially all or a substantial part, of the
business and/or assets of the Company, by written agreement in form and substance satisfactory to
Indemnitee, expressly to assume and agree to perform this Agreement in the same manner and to the
same extent that the Company would be required to perform if no such succession had taken place.



(d) The Company and Indemnitee agree herein that a monetary remedy for breach of this
Agreement, at some later date, may be inadequate, impracticable and difficult of proof, and further
agree that such breach may cause Indemnitee irreparable harm. Accordingly, the parties hereto
agree that Indemnitee may enforce this Agreement by seeking injunctive relief and/or specific
performance hereof, without any necessity of showing actual damage or irreparable harm and that by
seeking injunctive relief and/or specific performance, Indemnitee shall not be precluded from
seeking or obtaining any other relief to which Indemnitee may be entitled. Indemnitee shall
further be entitled to such specific performance and injunctive relief, including temporary
restraining orders, preliminary injunctions and permanent injunctions, without the necessity of
posting bonds or other undertakings in connection therewith. The Company acknowledges that, in the
absence of a waiver, a bond or undertaking may be required of Indemnitee by a court, and the
Company hereby waives any such requirement of such a bond or undertaking.



Section 18. Severability. If any provision or provisions of this Agreement shall be
held to be invalid, illegal or unenforceable for any reason whatsoever: (a) the validity, legality
and enforceability of the remaining provisions of this Agreement (including, without limitation,
each portion of any Section, paragraph or sentence of this Agreement containing any such provision
held to be invalid, illegal or unenforceable that is not itself invalid, illegal or unenforceable)
shall not in any way be affected or impaired thereby and shall remain enforceable to the fullest
extent permitted by law; (b) such provision or provisions shall be deemed reformed to the extent
necessary to conform to applicable law and to give the maximum effect to the intent of the parties
hereto; and (c) to the fullest extent possible, the provisions of this Agreement (including,
without limitation, each portion of any Section, paragraph or sentence of this Agreement containing
any such provision held to be invalid, illegal or unenforceable, that is not itself invalid,
illegal or unenforceable) shall be construed so as to give effect to the intent manifested thereby.



Section 19. Identical Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall for all purposes be deemed to be an original but all of which
together shall constitute one and the same Agreement. One such counterpart signed by the party
against whom enforceability is sought shall be sufficient to evidence the existence of this
Agreement.



Section 20. Headings. The headings of the paragraphs of this Agreement are inserted
for convenience only and shall not be deemed to constitute part of this Agreement or to affect the
construction thereof.


 


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Section 21. Modification and Waiver. No supplement, modification or amendment of this
Agreement shall be binding unless executed in writing by both of the parties hereto. No waiver of
any of the provisions of this Agreement shall be deemed or shall constitute a waiver of any other
provisions hereof (whether or not similar) nor shall such waiver constitute a continuing waiver.



Section 22. Notices. All notices, requests, demands and other communications
hereunder shall be in writing and shall be deemed to have been duly given if (i) delivered by hand
and receipted for by the party to whom said notice or other communication shall have been directed
or (ii) mailed by certified or registered mail with postage prepaid, on the third business day
after the date on which it is so mailed:




(a) If to Indemnitee, to the address set forth on the signature page hereto.




(b) If to the Company, to its corporate headquarters, attention General Counsel.



or to such other address as may have been furnished in writing to Indemnitee by the Company or to
the Company by Indemnitee, as the case may be.



Section 23. Governing Law. The parties agree that this Agreement shall be governed
by, and construed and enforced in accordance with, the laws of the State of Maryland, without
regard to its conflicts of laws rules.



Section 24. Miscellaneous. Use of the masculine pronoun shall be deemed to include
usage of the feminine pronoun where appropriate.



Section 25. Termination of Prior Agreement. The parties agree that this Agreement
shall supersede any prior indemnification agreements and that the Indemnification Agreement, dated
as of June 1, 2005, is hereby terminated and of no further effect.



[SIGNATURE PAGE FOLLOWS]




 


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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year
first above written.



	 	 	 	 	 
	 	DIAMONDROCK HOSPITALITY COMPANY

 	 
	 	By:  	 	 
	 	 	Name:  	 
	 	 	Title:  	 
	 
	 	DIAMONDROCK HOSPITALITY LIMITED PARTNERSHIP

 	 
	 	By:  	DiamondRock Hospitality Company,
 	 
	 	 	its General Partner 	 
	 	 	 
	 	 	By:  	
 	 
	 	 	 	Name:  	 
	 	 	 	Title:  	 
	 
	 	INDEMNITEE

 	 
	 	 	 
	 	Name:  	 	 
	 	Address: 	 




 


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EXHIBIT A




FORM OF UNDERTAKING TO REPAY EXPENSES ADVANCED




The Board of Directors of                                         




Re: Undertaking to Repay Expenses Advanced




Ladies and Gentlemen:



This undertaking is being provided pursuant to that certain Indemnification Agreement dated
the                      day of                                         , 20         , by and between                                         , a Maryland
corporation (the “Company”), and the undersigned Indemnitee (the “Indemnification Agreement”),
pursuant to which I am entitled to advance of Expenses in connection with [Description of
Proceeding] (the “Proceeding”).



Terms used herein and not otherwise defined shall have the meanings specified in the
Indemnification Agreement.



I am subject to the Proceeding by reason of my Corporate Status or by reason of alleged
actions or omissions by me in such capacity. I hereby affirm my good faith belief that at all
times, insofar as I was involved as [a director] [an officer] of the Company, in any of the facts
or events giving rise to the Proceeding, I (1) did not act with bad faith or active or deliberate
dishonesty, (2) did not receive any improper personal benefit in money, property or services and
(3) in the case of any criminal proceeding, had no reasonable cause to believe that any act or
omission by me was unlawful.



In consideration of the advance of Expenses by the Company for reasonable attorneys’ fees and
related Expenses incurred by me in connection with the Proceeding (the “Advanced Expenses”), I
hereby agree that if, in connection with the Proceeding, it is established that (1) an act or
omission by me was material to the matter giving rise to the Proceeding and (a) was committed in
bad faith or (b) was the result of active and deliberate dishonesty or (2) I actually received an
improper personal benefit in money, property or services or (3) in the case of any criminal
proceeding, I had reasonable cause to believe that the act or omission was unlawful, then I shall
promptly reimburse the portion of the Advanced Expenses relating to the claims, issues or matters
in the Proceeding as to which the foregoing findings have been established.



IN WITNESS WHEREOF, I have executed this Affirmation and Undertaking on this                      day of
                    ,
20         .