EXHIBIT 10.3
DIRECTORS AND OFFICERS' INDEMNIFICATION AGREEMENT
This Indemnification Agreement (the "Agreement") dated as of the 4th
day of May, 2006.
B E T W E E N:
*
of the City of *, in the
Province of *
(hereinafter referred to as the "Indemnified Party"),
OF THE FIRST PART,
- and -
KINROSS GOLD CORPORATION
a corporation existing under the laws
of Ontario
(hereinafter referred to as the "Corporation"),
OF THE SECOND PART
WHEREAS:
(a) the Corporation desires to attract and retain the services of highly
qualified individuals such as the Indemnified Party to serve as
directors and/or officers of the Corporation;
(b) in order to attract such individuals the Corporation desires to provide
them with the maximum protection permitted by applicable law against
liabilities they may incur in their capacities as directors and/or
officers of the Corporation or in any other capacity in which they may
act at the request of the Corporation;
(c) the Corporation desires to provide the Indemnified Party with such
maximum protection.
NOW THEREFORE in consideration of the premises, the payment by each
party to the other of the sum of $1.00 in lawful money of Canada (receipt of
which is hereby acknowledged), the respective covenants of each party set forth
in this Agreement and other good and valuable consideration (the sufficiency of
which is acknowledged), the parties hereby agree as follows:
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SECTION 1 DEFINITIONS
In this Agreement:
"ACT" means the Business Corporations Act (Ontario), as in force from
time to time during the term of this Agreement;
"AGENT" means any person who is or was a director, officer, employee or
other agent 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, body corporate,
employee benefit plan or other entity or enterprise (the Corporation
and such other corporation, partnership, joint venture, trust, body
corporate, employee benefit plan or other entity or enterprise being
hereinafter referred to as the "Subject Entity");
"BOARD" means the board of directors of the Corporation;
"EXPENSES" means, without limitation, lawyers' fees and disbursements
and any expenses of establishing a right to indemnification under this
Agreement, the Act or otherwise; and
"PROCEEDING" means any threatened, pending, contemplated or completed
action, suit or proceeding, whether a civil, criminal, administrative,
investigative or other proceeding, including any appeal therefrom, to
which the Indemnified Party is or was a party or is threatened to be
made a party by reason of the fact that the Indemnified Party is or was
an Agent of the Corporation or by reason of anything done or not done
by him in such capacity.
SECTION 2 AGREEMENT TO SERVE
In consideration of the protection afforded by this agreement, the
Indemnified Party agrees to serve as a director and/or an officer of the
Corporation, provided that nothing in this Agreement shall prohibit the
Indemnified Party from resigning as such at any time. If the Indemnified Party
is an employee or agent of the Corporation, nothing contained in this Agreement
is intended to create, and shall not create, in the Indemnified Party any right
to continued employment.
SECTION 3 INDEMNIFICATION
(1) INDEMNITY. The Corporation shall indemnify the Indemnified Party,
effective from the date the Indemnified Party was first elected to the
Board or appointed an officer of the Corporation, against any and all
Expenses, judgments, fines, penalties, settlements and any other
amounts actually and reasonably incurred by the Indemnified Party in
connection with any Proceeding to the full extent permitted by the Act
if,
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(a) the Indemnified Party acted honestly and in good
faith with a view to the best interests of the
Subject Entity; and
(b) in the case of a criminal or administrative action or
proceeding that is enforced by a monetary penalty,
the Indemnified Party had reasonable grounds for
believing that his or her conduct was lawful (such
sections 3(1)(a) and (b) being herein collectively
referred to as the "Conditions").
No determination in any Proceeding against the Indemnified Party by
judgment, order, settlement (with or without court approval) or
conviction shall, of itself, create a presumption that the Indemnified
Party did not meet the Conditions.
Notwithstanding any other provision of this Agreement to the contrary,
to the extent that the Indemnified Party is, by reason of the
Indemnified Party's corporate status with respect to the Corporation or
Agent, a witness or otherwise participates in any action, suit or
proceeding at a time when the Indemnified Party is not a party in the
action, suit or proceeding, the Corporation shall indemnify the
Indemnified Party against all expenses (including Expenses) actually
and reasonably incurred by the Indemnified Party or on the Indemnified
Party's behalf in connection therewith.
The Indemnified Party shall be presumed to be entitled to
indemnification under this Agreement upon notice pursuant to Section
3(2), and the Corporation shall have the burden of proof in overcoming
that presumption in reaching a determination contrary to that
presumption. Such presumption shall be used as a basis for a
determination of entitlement to indemnification unless the Corporation
overcomes such presumption by clear and convincing evidence.
(2) NOTICE AND CO-OPERATION BY THE INDEMNIFIED PARTY. The Indemnified Party
shall, as a condition precedent to his or her right to be indemnified
under this Agreement, give the Corporation notice in writing as soon as
practicable of the commencement or the threatened commencement of any
Proceeding against the Indemnified Party for which indemnification will
or could be sought under this Agreement, including with such notice
such documentation and information as is reasonably available to the
Indemnified Party and is reasonably necessary to determine whether and
to what extent the Indemnified Party is entitled to indemnification. In
addition, the Indemnified Party shall co-operate with the Corporation
regarding such Proceeding as the Corporation may reasonably require and
as shall be within the Indemnified Party's power. The Corporation
shall, promptly upon receipt of such a request for indemnification,
advise the Board in writing that the Indemnified Party has requested
indemnification. Notice to the Corporation shall be directed to the
Chairman of the Board of the Corporation or if the Indemnified Party is
the Chairman of the Board, to the Chief Executive Officer of the
Corporation, at the address set-out below (or such other address as the
Corporation
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shall designate in writing to the Indemnified Party). The failure to
promptly notify the Corporation of the commencement of the Proceeding,
or the Indemnified Party's request for indemnification, will not
relieve the Corporation from any liability that it may have to the
Indemnified Party hereunder, except to the extent the Corporation is
prejudiced in its defense of such Proceeding as a result of such
failure.
(3) PROCEDURE. Subject to the provisions of section 4 as to the advancement
of Expenses, any indemnification provided for in this section 3 shall
be paid no later than 45 days after receipt of written request of the
Indemnified Party. If a claim under this Agreement, the Act, or any
other statute, or any provision of the Corporation's articles or
by-laws providing for indemnification is not paid in full by the
Corporation within 45 days after a written request for payment thereof
has first been received by the Corporation, the Indemnified Party may,
but need not, at any time thereafter bring an action against the
Corporation to recover the unpaid amount of the claim and, subject to
section 14 of this Agreement, the Indemnified Party shall also be
entitled to be paid the Expenses of bringing such action. The
Corporation shall have as a defense to any such action (other than an
action brought to enforce a claim for Expenses incurred in connection
with any action, suit or proceeding in advance of its final
disposition) that the Indemnified Party has not satisfied the
Conditions. The burden of proving such defence shall be on the
Corporation and the Indemnified Party shall be entitled to receive
advances of Expenses pursuant to section 4 hereof unless and until it
shall be finally adjudicated by court order or judgment from which no
further right of appeal exists that such defence is available to the
Corporation. It is the parties' intention that if the Corporation
contests the Indemnified Party's right to indemnification, the question
of the Indemnified Party's right to indemnification shall be for the
court to decide, and neither the failure of the Corporation (including
the Board, any committee or subgroup of the Board, independent legal
counsel or the Corporation's shareholders) to have made a determination
that indemnification of the Indemnified Party is proper in the
circumstances because the Indemnified Party has met the Conditions, nor
an actual determination by the Corporation (including the Board, any
committee or subgroup of the Board, independent legal counsel, or the
Corporations shareholders) that the Indemnified Party has not met the
Conditions, shall create a presumption that the Indemnified Party has
or has not met the Conditions.
(4) NOTICE TO INSURERS. If, at the time of the receipt of a notice of a
claim pursuant to section 3(2) hereof, the Corporation has directors',
officers', employees' and/or agents' liability insurance in effect, the
Corporation shall give prompt notice of such Proceeding to the insurers
in accordance with the procedures set forth in the respective policies.
The Corporation shall thereafter take all necessary or desirable action
to cause such insurers to pay, on behalf of the Indemnified Party, all
amounts payable as a result of such Proceeding in accordance with the
terms of such policies.
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(5) SELECTION OF COUNSEL. In the event the Corporation shall be obligated
under this Section 3 to indemnify the Indemnified Party, the
Corporation shall be entitled to assume the defence of such Proceeding
upon the delivery to the Indemnified Party of written notice of its
election so to do. After delivery of such notice and the retention of
counsel by the Corporation, the Corporation shall not be liable to the
Indemnified Party under this Agreement for any fees of counsel
subsequently incurred by the Indemnified Party with respect to the same
Proceeding, provided that (i) the Indemnified Party shall have the
right to employ his or her own counsel in any such Proceeding at the
Indemnified Party's expense; and (ii) if (A) the employment of counsel
by the Indemnified Party has been previously authorized by the
Corporation, (B) the Indemnified Party shall have been advised in a
written opinion of counsel acceptable to the Corporation, acting
reasonably, addressed to the Indemnified Party and to the Corporation
stating that there may be a conflict of interest between the
Corporation and the Indemnified Party in the conduct of any such
defence, or (C) the Corporation shall not, in fact, have employed
counsel to assume the defense of such Proceeding, then the fees and
expenses (including Expenses) of the Indemnified Party's counsel shall
be borne by the Corporation.
(6) INCOME TAX. Should any payment made to the Indemnified Party pursuant
to this Agreement be deemed by any taxation authority in any
jurisdiction to constitute a taxable benefit or otherwise be or become
subject to any tax or levy, then the Corporation shall pay such greater
amount as may be necessary to ensure that the amount received by or on
behalf of the Indemnified Party, after payment of or withholding for
such tax, is equal to the amount of the actual cost, expense or
liability incurred by or on behalf of the Indemnified Party, such that
this Agreement shall serve to indemnify the Indemnified Party against
all liability for any and all such taxes.
SECTION 4 ADVANCES OF EXPENSES
The Corporation shall advance all Expenses incurred by the Indemnified
Party in connection with the investigation, defence, settlement or appeal of any
Proceeding prior to the final disposition thereof upon receipt by the
Corporation of an undertaking by or on behalf of the Indemnified Party to repay
the Corporation such advanced amounts if it shall be determined ultimately that
the Indemnified Party is not entitled to be indemnified by the Corporation
hereunder and provided that the Indemnified Party offers reasonable proof of the
Indemnified Party's ability to repay such advanced amounts under such
circumstances and if it is not then contrary to applicable law for the
Corporation to do so. Notwithstanding the foregoing, however, such advances
shall not be made if it is determined (i) by a majority vote of a quorum of
disinterested directors of the Board (or by independent legal counsel, if such a
quorum is not obtainable); or (ii) by a court of competent jurisdiction that the
Indemnified Party acted in bad faith or deliberately breached his duty to the
Corporation and its shareholders and, as a result, it is more likely than not
that the Indemnified Party
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will not be entitled to indemnification under the terms of this Agreement. The
advances of Expenses to be made hereunder shall be paid by the Corporation to
the Indemnified Party within 30 days following delivery of a written request
therefor by the Indemnified Party to the Corporation.
SECTION 5 ADDITIONAL INDEMNIFICATION RIGHTS: NON-EXCLUSIVITY
(1) SCOPE. Notwithstanding any other provision of this Agreement, the
Corporation hereby agrees to indemnify the Indemnified Party to the
fullest extent permitted by law, notwithstanding that such
indemnification is not specifically authorized by other provisions of
this Agreement, the Act, the Corporation's articles, the Corporation's
by-laws or by other statute. In the event of any change after the date
of this Agreement in any applicable law, statute or rule which expands
the right of an Ontario corporation to indemnify an Agent, such changes
shall, without any formality, be within the purview of the Indemnified
Party's rights and the Corporation's obligations under this Agreement.
In the event of any change in applicable law, statute or rule which
narrows the right of an Ontario corporation to indemnify an Agent such
changes, to the extent not otherwise required by such law, statute or
rule to be applied to this Agreement shall have no effect on this
Agreement or the parties' rights and obligations hereunder.
(2) NON-EXCLUSIVITY. The indemnification provided by this Agreement shall
not be deemed exclusive of any rights to which the Indemnified Party
may be entitled under the Corporation's articles, its by-laws, any
other agreement by which the Corporation is bound, any vote of
shareholders or disinterested directors, the Act or otherwise.
(3) PARTIAL INDEMNIFICATION. If the Indemnified Party is entitled under any
provision of this Agreement to indemnification by the Corporation for
some or a portion of the Expenses, judgments, fines, penalties or
settlements actually or reasonably incurred by the Indemnified Party in
the investigation, defence, appeal or settlement of any Proceeding, but
not, however, for the total amount thereof, the Corporation shall
nevertheless indemnify the Indemnified Party for that portion for which
the Indemnified Party is entitled to indemnification.
SECTION 6 MUTUAL ACKNOWLEDGEMENT
Both the Corporation and the Indemnified Party acknowledge that in
certain instances applicable law or public policy may prohibit the Corporation
from indemnifying the Indemnified Party under this Agreement or otherwise. The
Indemnified Party understands and acknowledges that the Corporation has
undertaken or may be required in the future to undertake with the regulatory
authorities to submit the question of indemnification to a court in certain
circumstances for a determination of the Corporation's right under public policy
to indemnify the Indemnified Party.
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SECTION 7 SETTLEMENT
(1) DETERMINATION OF SETTLEMENT TERMS. The Corporation shall be entitled to
settle any Proceeding against the Indemnified Party for which indemnity
is sought by the Indemnified Party hereunder on terms and conditions
determined by the Corporation, provided that:
(i) the settlement does not involve any obligation or
liability of the Indemnified Party other than the
payment of a monetary amount;
(ii) the Indemnified Party is indemnified in full against
payment of such monetary amount together with all
related Expenses, whether or not such Expenses would
otherwise be payable hereunder;
(iii) the settlement is expressly stated to be made by the
Corporation on behalf of the Indemnified Party,
without any admission of liability by the Indemnified
Party; and
(iv) the Indemnified Party receives a full and complete
release in respect of the Proceeding.
(2) INDEMNIFIED PARTY CO-OPERATION. Provided that all of the conditions
referred to in section 7(1) are met, the Indemnified Party shall
execute all documents and do such other things as are reasonably
requested by the Corporation to give effect to a settlement referred to
in section 7(1).
SECTION 8 DIRECTORS' AND OFFICERS' LIABILITY INSURANCE AND SUBROGATION
The Corporation shall maintain a policy or policies of insurance with reputable
insurance companies providing the Agents of the Corporation with coverage from
losses from wrongful acts, or to insure the Corporation's performance of its
indemnification obligations under this Agreement. From time to time, the
Corporation may make a good faith determination whether or not it is practicable
for the Corporation to maintain such a policy or policies. Among other
considerations the Corporation will weigh the costs of monitoring or obtaining
such insurance coverage against the protection afforded by such coverage. In all
policies of Agents' liability insurance, the Indemnified Party shall be named as
an insured in such a manner as to provide the Indemnified Party the same rights
and benefits as are accorded to the most favourably insured of the Corporation's
directors, if the Indemnified Party is a director. Notwithstanding the
foregoing, the Corporation shall have no obligation to maintain (or obtain) such
insurance if the Corporation determines in good faith that such insurance is not
reasonably available, if the premium costs for such insurance are too high, if
the coverage provided by such insurance is limited by exclusions so as to
provide an insufficient benefit, or if the Indemnified Party is covered by
similar insurance maintained by a subsidiary or parent of the Corporation. In
the event the Corporation ceases to maintain the coverage contemplated in this
section, it
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shall forthwith provide a notice in writing to the Indemnified Party.
In the event of any payment by the Corporation under this Agreement, the
Corporation shall be subrogated to the extent of such payment to all of the
rights of recovery of the Indemnified Party with respect to any insurance
policy, 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 Corporation to bring suit to enforce such rights in accordance with
the terms of such insurance policy. The Corporation shall pay or reimburse all
expenses actually and reasonably incurred by the Indemnified Party in connection
with such subrogation.
SECTION 9 SEVERABILITY
If any section, paragraph, clause or other provision of this Agreement
is determined by a court of competent jurisdiction to be invalid, illegal or
unenforceable, in whole or in part, such determination shall not affect or
impair and shall not be deemed to affect or impair the validity, legality or
enforceability of any other section, paragraph, clause or other provision hereof
and each such section, paragraph, clause or other provision shall be interpreted
in such a manner as shall render them valid, legal and enforceable to the
greatest extent permitted by applicable law.
SECTION 10 EXCEPTIONS
Notwithstanding any other provision herein to the contrary, pursuant to
the terms of this Agreement the Corporation shall not be obligated:
(i) EXCLUDED ACTS. to indemnify the Indemnified Party for any acts
or omissions or transactions from which an officer may not be
relieved of liability as set forth in the Act; or
(ii) CLAIMS INITIATED BY THE INDEMNIFIED PARTY. to indemnify or
advance Expenses to the Indemnified Party with respect to
proceedings or claims initiated or brought voluntarily by the
Indemnified Party and not by way of defence, except with
respect to proceedings brought to establish or enforce a right
to indemnification under this Agreement, the Act or any other
statute or law unless such proceedings or claims were
authorized or consented to by the Board; or
(iii) LACK OF GOOD FAITH. to indemnify the Indemnified Party for any
Expenses incurred by the Indemnified Party with respect to any
Proceeding instituted to enforce or interpret this Agreement,
if a court of competent jurisdiction determines that any of
the material assertions made by the Indemnified Party in such
proceedings was not made in good faith or was frivolous; or
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(iv) INSURED CLAIMS. to indemnify the Indemnified Party for
expenses or liabilities of any type whatsoever which have been
paid directly to the Indemnified Party by an insurance carrier
under a policy of Agents' liability insurance maintained by
the Corporation; or
(v) XXXXXXX XXXXXXX/TIPPING VIOLATION(S). to indemnify the
Indemnified Party on account of any proceeding with respect to
which final judgment is rendered against the Indemnified Party
for, including, but not limited to, payment or an accounting
of profits arising from the purchase or sale by the
Indemnified Party of securities in violation of any laws
regulating xxxxxxx xxxxxxx or tipping; or
(vi) NON-COMPETE AND NON-DISCLOSURE. to indemnify the Indemnified
Party in connection with proceedings or claims involving the
enforcement of non-compete and/or non-disclosure agreements or
the non-compete and/or non-disclosure provisions of
employment, consulting or similar agreements the Indemnified
Party may be a party to with the Corporation, or any
subsidiary of the Corporation or any other applicable foreign
or domestic corporation, partnership, joint venture, trust or
other enterprise, if any; or
(vii) CERTAIN SETTLEMENT PROVISIONS. the Corporation shall have no
obligation to indemnify the Indemnified Party under this
Agreement for amounts paid in settlement of any Proceeding
without the Corporation's prior written consent, which shall
not be unreasonably withheld. The Corporation shall not settle
any Proceeding in any manner that would impose any fine or
other obligation on the Indemnified Party without the
Indemnified Party's prior written consent, which shall not be
unreasonably withheld; or
(viii) OTHER INDEMNIFICATION. to indemnify the Indemnified Party for
Expenses for which the Indemnified Party is indemnified by the
Corporation otherwise than pursuant to this Agreement.
SECTION 11 EFFECTIVENESS OF AGREEMENT; CONTINUATION OF INDEMNITY
(1) EFFECTIVENESS. Nothing in this Agreement is intended to require or
shall be construed as requiring the Corporation to do or fail to do any
act in violation of applicable law. The Corporation's inability,
pursuant to applicable law or court order, to perform its obligations
under this Agreement shall not constitute a breach of this Agreement.
(2) CONTINUATION. The indemnification and advancement of Expenses by the
Corporation to the Indemnified Party provided for under this Agreement
shall survive and continue after termination of the Indemnified Party
as an officer, director, employee or other agent as to any acts or
omissions by the Indemnified Party while serving in such capacity.
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SECTION 12 COUNTERPARTS
This Agreement may be executed in one or more counterparts, each of
which shall constitute an original and all of which together shall constitute
one and the same instrument.
SECTION 13 SUCCESSORS AND ASSIGNS
This Agreement shall be binding upon the Corporation and its successors
and assigns, and shall enure to the benefit of the Indemnified Party and the
Indemnified Party's estate, heirs, legal representatives and assigns.
SECTION 14 LEGAL EXPENSES
If any action is instituted by the Indemnified Party under this
Agreement to enforce or interpret any of the terms hereof, the Indemnified Party
shall be entitled to be paid all court costs and expenses, including the
reasonable fees of counsel, incurred by the Indemnified Party with respect to
such action, unless as a part of such action, the court of competent
jurisdiction determines that any of the material assertions made by the
Indemnified Party as a basis for such action were not made in good faith or were
frivolous.
SECTION 15 NOTICES
All notices, requests and other communications hereunder shall be in
writing, and shall be delivered by courier or other means of personal service,
or sent by telecopy or mailed first class, postage prepaid, by registered mail,
return receipt requested, in all cases, addressed to:
Indemnified Party: *
Corporation: Kinross Gold Corporation
52nd Floor, Scotia Plaza
00 Xxxx Xxxxxx Xxxx
Xxxxxxx, XX X0X 0X0
Attention: Xxxxxxxx X. Gold
Facsimile: (000) 000-0000
All notices, requests and other communications shall be deemed given on
the date of actual receipt or delivery as evidenced by written receipt,
acknowledgement or other evidence of actual receipt or delivery to the address.
SECTION 16 CONSENTS TO JURISDICTION
Any and all legal proceedings to enforce this Agreement, whether in
contract, tort, equity or otherwise, shall be brought in the appropriate court
in the Province of Ontario, and the parties hereto hereby agree to attorn to the
jurisdiction of the court in the Province of Ontario and waive any claim or
defence
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that such forum is not convenient or proper. The Corporation and the
Indemnified Party each hereby agrees that any court shall have IN PERSONAM
jurisdiction over it, consents to service of process in any manner prescribed in
section 15 or in any other manner authorized by Ontario law, and agrees that a
final judgment in any such action or proceeding shall be conclusive and may be
enforced in other jurisdictions by suit on the judgment or in any other manner
specified by law.
SECTION 17 ENTIRE AGREEMENT
This Agreement and the documents expressly referred to herein
constitute the entire agreement between the parties hereto with respect to the
matters covered hereby, and any other prior or contemporaneous oral or written
understandings or agreements with respect to the matters covered hereby are
expressly superceded by this Agreement.
SECTION 18 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 provision hereof (whether or not similar) nor shall such
waiver constitute a continuing waiver.
SECTION 19 ENFORCEMENT
The Corporation shall be precluded from asserting in any judicial
proceeding that the procedures and presumptions of this Agreement are not valid,
binding and enforceable. The Corporation agrees that its execution of this
Agreement shall constitute a stipulation by which it shall be irrevocably bound
in any court of competent jurisdiction in which a proceeding by the Indemnified
Party for enforcement of his rights hereunder shall have been commenced,
continued or appealed, that its obligations set forth in this Agreement are
unique and special, and that failure of the Corporation to comply with the
provisions of this Agreement will cause irreparable and irremediable injury to
the Indemnified Party, for which a remedy at law will be inadequate. As a
result, in addition to any other right or remedy the Indemnified Party may have
at law or in equity with respect to breach of this Agreement, the Indemnified
Party shall be entitled to injunctive or mandatory relief directing specific
performance by the Corporation of its obligations under this Agreement.
SECTION 20 GOVERNING LAW
This Agreement shall be governed by and construed in accordance with
the laws of the Province of Ontario as applied to contracts between Ontario
residents entered into and performed entirely within Ontario.
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SECTION 21 COUNTERPARTS
This Agreement may be executed in two or more counterparts, each of
which shall be deemed to be an original and all of which together shall be
deemed to be one and the same instrument, notwithstanding that both parties are
not signatories to the original or same counterpart.
IN WITNESS WHEREOF the parties hereto have executed this Agreement as
of the date first above written.
KINROSS GOLD CORPORATION
By: __________________________________
By: __________________________________
Signed, sealed and delivered )
in the presence of )
)
____________________________________ ) __________________________________
Witness ) *
