Exhibit 10-1
FORM OF INDEMNIFICATION AGREEMENT
INDEMNIFICATION AGREEMENT (this "Agreement"), made as of this day of _____,
2005, by and between The Goldfield Corporation, a Delaware corporation (the
"Company"), and ___________ (the "Indemnitee"), an Agent (as defined below) of
the Company.
RECITALS
A. The Company seeks to attract and retain competent and experienced
persons to serve as directors and officers and wishes to protect such
individuals by providing comprehensive liability insurance and indemnification,
due to exposure to litigation costs and risks resulting from their service to
the Company;
B. The statutes and judicial decisions regarding the duties of directors
and officers are often difficult to apply, ambiguous, or conflicting, and
therefore fail to provide such directors and officers with adequate, reliable
knowledge of legal risks to which they are exposed or information regarding the
proper course of action to take;
C. Plaintiffs may seek damages in amounts which, coupled with the costs of
litigation (whether or not the case is meritorious), cause the defense and/or
settlement of such litigation to exceed the personal resources of officers and
directors;
D. The Company believes that it is unfair for its directors and officers to
assume the risk of large judgments and other expenses which may occur in cases
in which the directors or officers received no personal profit and in cases
where the directors or officers were not culpable;
E. The Company recognizes that the issues in controversy in litigation
against a director or officer of a corporation such as the Company are often
related to the knowledge, motives and intent of such directors or officers, that
he is usually the only witness with knowledge of the essential facts and
exculpating circumstances regarding such matters and that the long period of
time which usually elapses before the trial or other disposition of such
litigation often extends beyond the normal time that the director or officer can
reasonably recall such matters; and may extend beyond the normal time for
retirement for such director or officer with the result that he, after
retirement or in the event of his death, his spouse, heirs, executors or
administrators, may be faced with limited ability and undue hardship in
maintaining an adequate defense, which may discourage such a director or officer
from serving in that position;
F. Based upon their experience as business managers, the Board of Directors
of the Company (the "Board") has concluded that, to retain and attract talented
and experienced individuals to serve as directors and officers of the Company
and to encourage such individuals to take the business risks necessary for the
success of the Company, it is necessary for the Company to contractually
indemnify its directors and officers, and to assume for itself maximum liability
for expenses and damages in connection with claims against such directors and
officers in connection with their service to the Company, and has further
concluded that the failure to provide such contractual indemnification could be
detrimental to the Company and the
Company's stockholders;
G. Section 145 of the General Corporation Law of Delaware, under which the
Company is organized ("Section 145") empowers the Compay to indemnify its
directors, officers, employees by agreement and to indemnify persons who serve,
at the request of the Company, as the directors, officers, employees or
directors of other corporations or enterprises, and expressly provides that the
indemnification provided by Section 145 is not exclusive;
H. The Company, after reasonable investigation prior to the date hereof,
has determined that it is advisable to supplement the existing directors and
officers' liability insurance coverage as of the date hereof by adopting this
Agreement;
I. The Company desires and has requested the Indemnitee to serve or
continue to serve as an Agent of the Company free from undue concern for claims
for damages arising out of or related to such services to the Company; and
J. The Indemnitee is willing to serve, or to continue to serve, the
Company, provided that he is furnished the indemnity provided for herein.
1. Definitions. As used in this Agreement:
(a) The terms "Affiliate" and "Associate" shall have the respective
meanings ascribed to such terms in Rule 12b-2 of the General Rules and
Regulations under the Securities Exchange Act of 1934, as amended (the
"Act"), as in effect on the date of this Agreement.
(b) The term "Agent" for the purposes of this Agreement, "agent" of the
Company means any person who is or was a director, officer, employee
or other agent of the Company; or is or was serving at the request of,
for the convenience of, or to represent the interests of the Company
or a subsidiary of the Company as a director, officer, employee or
agent of another foreign or domestic corporation, partnership, joint
venture, trust or other enterprise; or was a director, officer,
employee or agent of a foreign or domestic corporation which was a
predecessor corporation of the Company or a subsidiary of the Company,
or was a director, officer, employee or agent of another enterprise at
the request of, for the convenience of, or to represent the interests
of such predecessor corporation.
(c) A Person shall be deemed the "Beneficial Owner" of and shall be deemed
to beneficially own, any securities:
i. which such Person or any of such Person's Affiliates or
Associates, directly or indirectly, has the right or
obligation to acquire (whether such right is exercisable
immediately or only after the passage of time) pursuant to
any agreement, arrangement or understanding (whether or not
in writing) or upon the exercise of conversion rights,
exchange rights, rights warrants or options, or otherwise;
provided, however, that a person shall not be deemed the
"Beneficial Owner" of or to "beneficially own" securities
2
tendered pursuant to a tender or exchange offer made by such
Person or any of such Person's Affiliates or Associates
until such tendered securities are accepted for purchase or
exchange;
ii. which such Person or any of such Person's Affiliates or
Associates, directly or indirectly, has the right to vote or
dispose of or has "beneficial ownership" of (as determined
pursuant to Rule 13d-3 of the General Rules and Regulations
under the Act and any successor provision thereof),
including pursuant to any agreement, arrangement or
understanding, whether or not in writing; provided, however,
that a Person shall not be deemed the "Beneficial Owner" of
or to "beneficially own", any security under this
subparagraph (ii) as a result of an agreement, arrangement
or understanding to vote such security if such agreement,
arrangement or understanding: (A) arises solely from a
revocable proxy given in response to a public proxy or
consent solicitation made pursuant to, and in accordance
with, the applicable provisions of the General Rules and
Regulations under the Exchange Act, and (B) is not also then
reportable by such Person on Schedule 13D under the Exchange
Act (or any comparable or successor report); or
iii. which are beneficially owned, directly or indirectly, by any
other Person (or any Affiliate or Associate thereof) with
which such Person (or any of such Person's Affiliates or
Associates) has any agreement, arrangement or understanding
(whether or not in writing), but excluding customary
agreements with and between underwriters and selling group
members with respect to a bona fide public offering of
securities until the expiration of forty (40) days after the
date of such acquisition, for the purpose of acquiring,
holding, voting (except pursuant to a revocable proxy as
described in the proviso to subparagraph (ii) of this
paragraph (c)) or disposing of any voting securities of the
Company.
(d) The term "Change in Control" means (i) any transaction pursuant to
which any Person (other than (A) the Company, (B) any Subsidiary of
the Company, (C) any employee benefit plan or employee stock plan of
the Company or of any Subsidiary of the Company, (D) any dividend
reinvestment plan of the Company or (E) any Person or entity
organized, appointed or established by the Company for or pursuant to
the terms of any such plan), together with all Affiliates and
Associates of such Person, becomes the Beneficial Owner of 20% or more
of the shares of Common Stock then outstanding without the prior
approval of a majority of the directors who are not officers of the
Company or representatives, nominees, Affiliates or Associates of such
Person (ii) any merger, consolidation, sale of assets or other
reorganization, or a proxy contest, as a consequence of which
Continuing Directors (as defined below) in office immediately prior to
such transaction or event constitute less than a majority of the Board
(or any successor entity) thereafter; or (iii) during any period of
two consecutive years,
3
individuals who at the beginning of such period constituted the Board
(including for this purpose any new director whose election or
nomination for election by the Company's stockholders was approved by
a vote of at least two-thirds of the directors then still in office
who were directors at the beginning of such period) (such directors
being referred to herein as "Continuing Directors") cease for any
reason to constitute at least a majority of the Board. Notwithstanding
the foregoing, no Change in Control shall have occured as the result
of an acquisition of Common Stock by the Company which, by reducing
the number of shares outstanding, increases the proportionate number
of shares beneficially owned by the Person acquiring such shares to
20% or more of the Common Stock of the Company then outstanding;
provided, however, that if a Person shall become the Beneficial Owner
of 20% or more of the Common Stock of the Company then outstanding by
reason of such an acquisition and shall, after such acquisition,
become the Beneficial Owner of any additional shares of Common Stock,
then a Change in Control shall be deemed to have occured.
(e) The term "Common Stock" means the common stock, $0.10 par value, of
the Company, except that "Common Stock" when used with reference to
any Person other than the Company shall mean the capital shares of
such Person with the greatest voting power, or the equity securities
or other equity interest having power to control or direct the
management, of such Person.
(f) The term "Disinterested Director" with respect to any request by the
Indemnitee for indemnification or advancement of expenses hereunder
means a director of the Company who neither is nor was a party to the
Proceeding (as defined below) in respect of which indemnification or
advancement is being sought by the Indemnitee.
(g) The term "Expenses" means, without limitation, expenses of
Proceedings, including attorneys' fees, disbursements and retainers,
accounting and witness fees, expenses related to the preparation or
service as a witness, travel and deposition costs, expenses of
investigations, judicial or administrative proceedings and appeals,
amounts paid in settlement of a Proceeding by or on behalf of the
Indemnitee, costs of attachment or similar bonds, any expenses of
attempting to establish or establishing a right to indemnification or
advancement of expenses under this Agreement, the Company's
Certificate of Incorporation or By-laws, applicable law or otherwise,
and reasonable compensation for time spent by the Indemnitee in
connection with the investigation, defense or appeal of a Proceeding
or action for indemnification for which the Indemnitee is not
otherwise compensated by the Company or any third party. The term
"Expenses" shall not include the amount of judgments, fines, interest
or penalties, or excise taxes assessed with respect to any employee
benefit or welfare plan, which are actually levied against or
sustained by the Indemnitee to the extent sustained after final
adjudication.
(h) The term "Independent Legal Counsel" means any firm of attorneys
selected by the Board (and is reasonably acceptable to Indeminittee)
from a list consisting of
4
firms which meet reasonable criteria established by the Board, so long
as such firm has not represented the Company, the Indemnitee, any
entity controlled by the Indemnitee, or any party adverse to the
Company, within the preceding five years. Notwithstanding the
foregoing, the term "Independent Legal Counsel" shall not include any
person who, under applicable standards of professional conduct then
prevailing, would have a conflict of interest in representing either
the Company or the Indemnitee in an action to determine the
Indemnitee's right to indemnification or advancement of expenses under
this Agreement, the Company's Certificate of Incorporation or Bylaws,
applicable law or otherwise.
(i) The term "Person" means any individual, firm, corporation, partnership
or other entity.
(j) The term "Proceeding" means any threatened, pending or completed
action, suit, arbitration, alternate dispute resolution mechanism, or
any other proceeding (including, without limitation, an appeal
therefrom), formal or informal, whether brought in the name of the
Company or otherwise, whether of a civil, criminal, administrative or
investigative nature, and whether by, in or involving a court or an
administrative, other governmental or private entity or body
(including, without limitation, an investigation by the Company or its
Board), by reason of (i) the fact that the Indemnitee is or was a
director of the Company, or is or was serving at the request of the
Company as an Agent of another enterprise, whether or not the
Indemnitee is serving in such capacity at the time any liability or
expense is incurred for which indemnification or reimbursement is to
be provided under this Agreement, (ii) any actual or alleged act or
omission or neglect or breach of duty, including, without limitation,
any actual or alleged error or misstatement or misleading statement,
which the Indemnitee commits or suffers while acting in any such
capacity, or (iii) the Indemnitee attempting to establish or
establishing a right to indemnification or advancement of expenses
pursuant to this Agreement, the Company's Certificate of Incorporation
or By-laws, applicable law or otherwise.
(k) The term "Subsidiary" means, with reference to any other Person, any
corporation or other entity of which securities or other ownership
interests having ordinary voting power, in the absence of
contingencies, to elect at least a majority of the directors or other
persons performing similar functions is beneficially owned, directly
or indirectly, by such Person, or which is otherwise controlled by
such Person.
2. Agreement to Serve. The Indemnitee agrees to serve and/or continue to serve
as an Agent of the Company, at its will (or under separate agreement, if
such agreement exists), in the capacity Indemnitee currently serves as an
Agent of the Company, so long as he is duly appointed or elected and
qualified in accordance with the applicable provisions of the By-laws of
the Company or until such time as he tenders his resignation in writing,
provided, however, that nothing contained in this Agreement is intended to
create any right to continued employment by Indemnitee.
5
3. Proceeding Other Than a Proceeding By or In the Right of the Company. The
Company shall indemnify the Indemnitee if the Indemnitee is a party to or
threatened to be made a party to or is otherwise involved in any Proceeding
(other than a Proceeding by or in the right of the Company to procure a
judgment in its favor), by reason of the fact that the Indemnitee is or was
an Agent of the Company, against all Expenses, judgments, fines, interest
or penalties, and excise taxes assessed with respect to any employee
benefit or welfare plan, which are actually and reasonably incurred by the
Indemnitee in connection with such a Proceeding, to the fullest extent
permitted by applicable law as it presently exists or may hereafter be
amended; provided, however, that any settlement of a Proceeding must be
approved in advance in writing by the Company.
4. Proceedings By or In the Right of the Company. The Company shall indemnify
the Indemnitee if the Indemnitee is a party to or threatened to be made a
party to or is otherwise involved in any Proceeding by or in the right of
the Company to procure a judgment in its favor by reason of the fact that
the Indemnitee is or was an Agent of the Company, against all Expenses,
judgments, fines, interest or penalties, and excise taxes assessed with
respect to any employee benefit or welfare plan, which are actually and
reasonably incurred by the Indemnitee in connection with the defense or
settlement of such a Proceeding, to the fullest extent permitted by
applicable law as it presently exists or may hereafter be amended.
5. Indemnification for Costs, Charges and Expenses of Witness or Successful
Party. Notwithstanding any other provision of this Agreement (except as set
forth in paragraph 9 hereof), and without a requirement for determination
as required by Paragraph 8 hereof, to the extent that the Indemnitee (a)
has prepared to serve or has served as a witness in any Proceeding in any
way relating to the Company or (b) has been successful in defense of any
Proceeding or in defense of any claim, issue or matter therein, on the
merits or otherwise, including the dismissal of a Proceeding without
prejudice or the settlement of a Proceeding without an admission of
liability, the Indemnitee shall be indemnified against all Expenses
actually and reasonably incurred by the Indemnitee in connection therewith
to the fullest extent permitted by applicable law.
6. Partial Indemnification. If the Indemnitee is entitled under any provision
of this Agreement to indemnification by the Company for a portion of the
Expenses, judgments, fines, interest or penalties, or excise taxes assessed
with respect to any employee benefit or welfare plan, which are actually
and reasonably incurred by the Indemnitee in the investigation, defense,
appeal or settlement of any Proceeding, but not, however, for the total
amount of the Indemnitee's Expenses, judgments, fines, interest or
penalties, or excise taxes assessed with respect to any employee benefit or
welfare plan, then the Company shall nevertheless indemnify the Indemnitee
for the portion of such Expenses, judgments, fines, interest penalties or
excise taxes to which the Indemnitee is entitled.
7. Advancement of Expenses. The Expenses incurred by the Indemnitee in any
Proceeding shall be paid promptly by the Company in advance of the final
disposition of the Proceeding at the written request of the Indemnitee to
the fullest extent permitted by applicable law as it presently exists or as
it may hereinafter be amended; provided,
6
however, that the Indemnitee shall set forth in such request reasonable
evidence that such Expenses have been incurred by the Indemnitee in
connection with such Proceeding, a statement that such Expenses do not
relate to any matter described in paragraph 9 of this Agreement, and an
undertaking in writing to repay any advances if it is ultimately determined
as provided in subparagraph 8(b) of this Agreement that the Indemnitee is
not entitled to indemnification under this Agreement. Advances of Expenses
shall be made without regard to Indemnitee's ability to repay the advances.
Indemnitee's obligation to repay the Company for advances shall be
unsecured and no interst shall be charged thereon.
8. Indemnification Procedure; Determination of Right to Indemnification.
(a) Promptly after receipt by the Indemnitee of notice of the commencement
of any Proceeding, the Indemnitee shall, if a claim for
indemnification or advancement of Expenses in respect thereof is to be
made against the Company under this Agreement, notify the Company of
the commencement thereof in writing as provided in paragraph 19. The
omission to so notify the Company will not relieve the Company from
any liability which the Company may have to the Indemnitee under this
Agreement unless the Company shall have lost significant substantive
or procedural rights with respect to the defense of any Proceeding as
a result of such omission to so notify.
(b) The Indemnitee shall be presumed to have met the relevant standards of
conduct, if any, as defined by applicable law, for indemnification
pursuant to this Agreement provided that Indemnitee and has provided
notice in accordance with paragaraph 8(a) and shall be entitled to
such indemnification, unless a determination is made that the
Indemnitee has not met such standards by either (i) the Board by a
majority vote of a quorum of Disinterested Directors (even if it is
less than a quorom of the Board), (ii) Independent Legal Counsel as
set forth in a written opinion (it being understood that such
Independent Legal Counsel shall make such determination only if the
quorum of Disinterested Directors referred to in clause (i) of this
subparagraph 8(b) is not obtainable or if the Board by a majority vote
of a quorum of Disinterested Directors so directs), or (iii) a court
of competent jurisdiction; provided, however, that if a Change in
Control shall have occurred and the Indemnitee so requests in writing,
such determination shall be made only by a court of competent
jurisdiction. The Company shall be responsible to pay the fees and
expenses of Independent Legal Counsel.
(c) If a claim for indemnification or advancement of Expenses under this
Agreement is not paid by the Company within 30 days after receipt by
the Company of written notice thereof, the rights provided by this
Agreement shall be enforceable by the Indemnitee in any court of
competent jurisdiction. Such judicial proceeding shall be made de
novo. The burden of proving that indemnification or advances are not
appropriate shall be on the Company. Neither the failure of the Board
or Independent Legal Counsel to have made a determination prior to the
commencement of such action that indemnification or advancement of
Expenses is proper in the circumstances because the Indemnitee has met
the applicable
7
standard of conduct, if any, nor an actual determination by the Board
or Independent Legal Counsel that the Indemnitee has not met the
applicable standard of conduct shall be a defense to an action by the
Indemnitee or create a presumption for the purpose of such an action
that the Indemnitee has not met the applicable standard of conduct.
The termination of any Proceeding by judgment, order, settlement or
conviction, or upon a plea of nolo contendere or its equivalent, shall
not, of itself (i) create a presumption that the Indemnitee did not
act in good faith and in a manner which he reasonably believed to be
in the best interests of the Company and/or its stockholders, and,
with respect to any criminal Proceeding, that the Indemnitee had
reasonable cause to believe that his conduct was unlawful or (ii)
otherwise adversely affect the rights of the Indemnitee to
indemnification or advancement of Expenses under this Agreement,
except as may be provided herein.
(d) If a court of competent jurisdiction shall determine that the
Indemnitee is entitled to any indemnification or advancement of
Expenses hereunder, the Company shall pay all Expenses actually and
reasonably incurred by the Indemnitee in connection with such
adjudication (including, but not limited to, any appellate
proceedings).
(e) With respect to any Proceeding for which indemnification or
advancement of Expenses is requested, the Company will be entitled to
participate therein at its own expense and, except as otherwise
provided below, to the extent that it may wish, the Company may assume
the defense thereof, with counsel reasonably satisfactory to the
Indemnitee. After notice from the Company to the Indemnitee of its
election to assume the defense of a Proceeding, the Company will not
be liable to the Indemnitee under this Agreement for any Expenses
subsequently incurred by the Indemnitee in connection with the defense
thereof, other than as provided below. The Company shall not settle
any Proceeding in any manner which would impose any penalty or
limitation on the Indemnitee without the Indemnitee's written consent.
The Indemnitee shall have the right to employ his own counsel in any
Proceeding, but the fees and expenses of such counsel incurred after
notice from the Company of its assumption of the defense of the
Proceeding shall be at the expense of the Indemnitee, unless (i) the
employment of counsel by the Indemnitee has been authorized by the
Company, (ii) the Indemnitee shall have reasonably concluded that
there may be a conflict of interest between the Company and the
Indemnitee in the conduct of the defense of a Proceeding, or (iii) the
Company shall not in fact have employed counsel to assume the defense
of a proceeding, in each of which cases the fees and expenses of the
Indemnitee's counsel shall be advanced by the Company. The Company
shall not be entitled to assume the defense of any Proceeding brought
by or on behalf of the Company or as to which the Indemnitee has
concluded that there may be a conflict of interest between the Company
and the Indemnitee.
9. Limitations On Indemnity. No indemnity pursuant to this Agreement shall be
paid by the Company:
8
(a) on account of any claim against the Indemnitee for an accounting of
profits made from the purchase or sale by Indemnitee of securities of
the Corporation pursuant to the provisions of Section 16(b) of the Act
and amendments thereto or similar provisions of any federal, state or
local statutory law;
(b) on account of Indemnitee's conduct that was knowingly fraudulent or
deliberately dishonest or that constituted willful misconduct;
(c) on account of Indemnitee's conduct that constituted a breach of
Indemnitee's duty of loyalty to the Company or resulted in any
personal profit or advantage to which Indemnitee was not legally
entitled;
(d) for which payment is actually made to Indemnitee under a valid and
collectible insurance policy or under a valid and enforceable
indemnity clause, By-law or agreement, except in respect of any excess
beyond payment under such insurance, clause, By-law or agreement;
(e) if indemnification is not lawful (and, in this respect, both the
Company and Indemnitee have been advised that the Securities and
Exchange Commission believes that indemnification for liabilities
arising under the federal securities laws is against public policy and
is, therefore, unenforceable and that claims for indemnification
should be submitted to appropriate courts for adjudication);
(f) in connection with any Proceeding (or part thereof) initiated by
Indemnitee, or any Proceeding by Indemnitee against the Company or its
directors, officers, employees or other agents, unless (i) such
indemnification is expressly required to be made by law, (ii) the
proceeding was authorized by the Board, or (iii) such indemnification
is provided by the Company, in its sole discretion, pursuant to the
powers vested in the Company under Section 145.
10. Indemnification Hereunder Not Exclusive. The indemnification provided by
this Agreement shall not be deemed to be exclusive of any other rights to
which the Indemnitee may be entitled under the Company's Certificate of
Incorporation, as amended, the Company's By-laws, as amended, any
agreement, vote of stockholders or vote of Disinterested Directors,
provisions of applicable law, or otherwise, both as to action or omission
in the Indemnitee's official capacity and as to action or omission in
another capacity on behalf of the Company while holding such office.
11. Liability Insurance. The Company shall, from time to time, make the good
faith determination whether or not it is practicable for the Company to
obtain and maintain a policy or policies of insurance with reputable,
companies providing its Agents with coverage for losses from wrongful acts,
or to ensure the Company's performance of its indemnification obligations
under this Agreement. Among other considerations, the Company will weigh
the costs of obtaining such insurance coverage against the protection
afforded by such coverage. In all such policies of liability insurance,
Indemnitee shall be named as an insured in such a manner as to provide
Indemnitee the same rights and benefits as are accorded to the most
favorably insured of the Company's
9
Agents. Notwithstanding the foregoing, the Company shall have no obligation
to obtain or maintain such insurance if the Company determines in good
faith that such insurance is not reasonably available, if the premium costs
for such insurance are disproportionate to the amount of coverage provided
or if the coverage provided by such insurance is limited by exclusions so
as to provide an insufficient benefit.
12. Successors and Assigns.
(a) This Agreement shall be binding upon, and shall inure to the benefit
of, the Indemnitee and the Indemnitee's heirs, executors,
administrators and assigns, whether or not the Indemnitee has ceased
to be an Agent, and the Company and its successors and assigns. Upon
the sale of all or substantially all of the business, assets or
capital stock of the Company to, or upon the merger of the Company
into or with, any corporation, partnership, joint venture, trust or
other person, this Agreement shall inure to the benefit of and be
binding upon both the Indemnitee and such purchaser or successor
person. Subject to the foregoing, this Agreement may not be assigned
by either party without the prior written consent of the other party
hereto.
(b) If the Indemnitee is deceased and is entitled to indemnification under
any provision of this Agreement, the Company shall indemnify the
Indemnitee's estate and the Indemnitee's spouse, heirs, executors,
administrators and assigns against, and the Company shall, and does
hereby agree to assume, any and all Expenses actually and reasonably
incurred by or for the Indemnitee or the Indemnitee's estate, in
connection with the investigation, defense, appeal or settlement of
any Proceeding. Further, when requested in writing by the spouse of
the Indemnitee, and/or the Indemnitee's heirs, executors,
administrators and assigns, the Company shall provide appropriate
evidence of the Company's agreement set out herein to indemnify the
Indemnitee against and to itself assume such Expenses.
13. Subrogation. In the event of 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 execute all documents required and
shall do all acts that may be necessary to secure such rights and to enable
the Company effectively to bring suit to enforce such rights.
14. Severability. Each and every paragraph, sentence, term and provision of
this Agreement is separate and distinct so that if any paragraph, sentence,
term or provision thereof shall be held to be invalid, unlawful or
unenforceable for any reason, such invalidity, unlawfulness or
unenforceability shall not affect the validity, unlawfulness or
enforceability of any other paragraph, sentence, term or provision hereof.
To the extent required, any paragraph, sentence, term or provision of this
Agreement may be modified by a court of competent jurisdiction to preserve
its validity and to provide the Indemnitee with the broadest possible
indemnification permitted under applicable law.
10
15. Savings Clause. If this Agreement or any paragraph, sentence, term or
provision hereof is invalidated on any ground by any court of competent
jurisdiction, the Company shall nevertheless indemnify the Indemnitee as to
any Expenses, judgments, fines, interest or penalties, or excise taxes
assessed with respect to any employee benefit or welfare plan, which are
actually and reasonably incurred with respect to any Proceeding to the
fullest extent permitted by any (a) applicable paragraph, sentence, term or
provision of this Agreement that has not been invalidated or (b) applicable
provision of Delaware law.
16. Interpretation; Governing Law. This Agreement shall be construed as a whole
and in accordance with its fair meaning. Headings are for convenience only
and shall not be used in construing meaning. This Agreement shall be
governed and interpreted in accordance with the laws of the State of
Delaware without regard to the conflict of laws principles thereof.
17. Amendments. No amendment, waiver, modification, termination or cancellation
of this Agreement shall be effective unless in writing signed by the party
against whom enforcement is sought. The indemnification rights afforded to
the Indemnitee hereby are contract rights and may not be diminished,
eliminated or otherwise affected by amendments to the Certificate of
Incorporation, By-laws or by other agreements, including directors' and
officers' liability insurance policies, of the Company.
18. Counterparts. This Agreement may be executed in one or more counterparts,
all of which shall be considered one and the same agreement and shall
become effective when one or more counterparts have been signed by each
party and delivered to the other.
19. Notices. All notices, requests, demands and other communications under this
Agreement 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 (3rd)
business day after the date on which it is so mailed. Any notice required
to be given under this Agreement shall be directed to the Company at the
following address:
The Goldfield Corporation
0000 X. Xxxxxxxx Xxxx.
Xxxxxxxxx, XX 00000
Attn:
--------------------------
and to the Indemnitee at the following address:
-------------------------------
-------------------------------
-------------------------------
or at such other address as either shall designate to the other in writing.
11
IN WITNESS WHEREOF, the parties have executed this Indemnification
Agreement as of the date first written above.
THE GOLDFIELD CORPORATION
By:
__________________________________ ________________
Name: Date:
Title:
INDEMNITEE:
By:
__________________________________ ________________
Name: Date:
Title:
12
