Exhibit 10.4
INDEMNIFICATION AGREEMENT
DIRECTORS AND OFFICERS
THIS AGREEMENT made and entered into this 14th day of December 2004, by and
between HECLA MINING COMPANY, a Delaware corporation (the "Corporation"), and
XXXXXX XXXXX (the "Indemnitee").
WHEREAS, it is essential for the Corporation to attract and retain
competent and experienced persons as directors or officers of publicly held
corporations, which is difficult to do unless they are provided with adequate
protection against claims and actions against them for their activities on
behalf of such corporations, generally through insurance and indemnification;
and
WHEREAS, uncertainties in the interpretation of the statutes, regulations,
case law and public policies relating to indemnification of corporate directors
and officers are such as to make adequate, reliable assessment of the risks to
which directors and officers of publicly held corporations may be exposed
difficult, particularly in light of the proliferation of lawsuits against
directors and officers; and
WHEREAS, the adoption of new statutes, such as the Xxxxxxxx-Xxxxx Act and
related rules of the New York Stock Exchange have imposed new duties on
corporate directors and officers of public companies; and
WHEREAS, both the Corporation and the Indemnitee recognize the increased
risk of litigation and other claims being asserted against directors and
officers of public companies in today's environment; and
WHEREAS, basic protection against undue risk of personal liability of
directors and officers heretofore has been provided through insurance coverage
and the Indemnitee has relied on the availability of such coverage; but as a
result of substantial changes in the marketplace for such insurance, it has
become increasingly more difficult to obtain such insurance on terms providing
reasonable protection at reasonable cost; and
WHEREAS, the Certificate of Incorporation and By-laws of the Corporation
require the Corporation to indemnify and advance expenses to its directors and
officers to the fullest extent permitted by the Delaware General Corporation Law
and authorizes the Corporation to enter into contracts of indemnification, and
the Indemnitee has been serving and is willing to continue to serve as a
director or officer, or both, of the Corporation in part in reliance thereon;
and
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WHEREAS, in recognition of the Indemnitee's need for substantial protection
against personal liability in order to enhance the Indemnitee's continued
service to the Corporation in an effective manner and any inadequacy of the
Corporation's director and officer liability insurance coverage, and to provide
the Indemnitee with the additional assurance resulting from a specific
indemnification contract as authorized by the Certificate of Incorporation and
By-laws (including the additional assurance that the promised protection will be
available to the Indemnitee regardless of, among other things, any change in the
composition of the Corporation's Board of Directors or any acquisition
transaction relating to the Corporation), the Corporation wishes to provide in
this Agreement specific provisions for the indemnification of, and the advancing
of expenses to, the Indemnitee to the full extent permitted by law and as set
forth in this Agreement and, to the extent insurance is maintained, for the
continued coverage of the Indemnitee under the Corporation's directors' and
officers' liability insurance policies;
NOW, THEREFORE, in consideration of the premises and of the Indemnitee's
continuing to serve the Corporation directly, or, at its request, with another
enterprise, and intending to be legally bound hereby, the parties hereto agree
as follows:
1. Certain Definitions:
(a) Change in Control: shall be deemed to have occurred if: (i) any
"person" (as such term is used in Sections 13(d) and 14(d) of the Securities
Exchange Act of 1934, as amended), other than a trustee or other fiduciary
holding securities under an employee benefit plan of the Corporation or a
corporation, owned directly or indirectly, by the shareholders of the
Corporation in substantially the same proportions as their ownership of stock of
the Corporation, is or becomes the "beneficial owner" (as defined in Rule 13d-3
under said Act), directly or indirectly, or securities of the Corporation
representing 20% or more of the combined voting power of the Corporation's then
outstanding Voting Securities; or (ii) during any period of two consecutive
years, individuals who at the beginning of such period constitute the Board of
Directors of the Corporation and any new director whose election by the Board of
Directors or nomination for election by the Corporation's shareholders was
approved by a vote of at least two-thirds (2/3) of the directors then still in
office who either were directors at the beginning of the period or whose
election or nomination for election was previously so approved cease for any
reason to constitute a majority thereof; or (iii) the shareholders of the
Corporation approve a merger or consolidation of the Corporation with any other
corporation, other than a merger or consolidation which would result in the
Voting Securities of the Corporation outstanding immediately prior thereto
continuing to represent (either by remaining outstanding or by being converted
into Voting Securities of the surviving entity) at least 80% of the combined
voting power of the Voting
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Securities of the Corporation or such surviving entity outstanding immediately
after such merger or consolidation, or (iv) the shareholders of the Corporation
approve a plan of complete liquidation of the Corporation or an agreement for
the sale or disposition by the Corporation of all or substantially all the
Corporation's assets.
(b) Claim: any threatened, pending, or completed action, suit, or
proceeding or any inquiry or investigation, whether conducted by the Corporation
or any other party, that the Indemnitee in good faith believes might lead to the
institution of any such action, suit, or proceeding, whether civil, criminal
administrative, investigative, or other.
(c) Expenses: include attorneys' fees and all other costs, expenses, and
obligations paid or incurred in connection with investigating, defending, being
a witness in, or participating in (including on appeal) or preparing to defend,
or participate in, any Claim relating to any Indemnifiable Event.
(d) Indemnifiable Event: any event or occurrence related to the fact that
the Indemnitee is or was a director, officer, employee, agent, or fiduciary of
the Corporation or is or was serving at the request of the Corporation as a
director, officer, employee, trustee, agent, or fiduciary of another
corporation, company, partnership, joint venture, employee benefit plan, trust,
or other enterprise or by reason of anything done or not done by the Indemnitee
in any such capacity.
(e) Potential Change in Control: shall be deemed to have occurred if (i)
the Corporation enters into an agreement, the consummation of which would result
in the occurrence of a Change in Control; (ii) any person (including the
Corporation) publicly announces an intention to take or to consider taking
actions, which if consummated, would constitute a Change in Control; (iii) any
person, other than a trustee or other fiduciary holding securities under an
employee benefit plan of the Corporation or a corporation owned, directly or
indirectly, by the shareholders of the Corporation in substantially the same
proportions as their ownership of stock of the Corporation, who is or becomes
the beneficial owner, directly or indirectly, of securities of the Corporation
representing 9.5% or more of the combined voting power of the Corporation's then
outstanding Voting Securities increases his or her beneficial ownership of such
securities by 5% or more over the percentage so owned by such person on the date
hereof; or (iv) the Board adopts a resolution to the effect that, for purposes
of this Agreement, a Potential Change in Control has occurred.
(f) Reviewing Party: any appropriate person or body consisting of a member
or members of the Corporation's Board of Directors or any other person or body
appointed by the Board (including the special, independent counsel referred to
in Section 3) who is not a party to the particular Claim for which the
Indemnitee is seeking indemnification.
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(g) Voting Securities: any securities of the Corporation which vote
generally in the election of directors.
2. Basic Indemnification Arrangement.
(a) In the event the Indemnitee was, is, or becomes a party to or witness
or other participant in, or is threatened to be made a party to or witness or
other participant in, a Claim by reason of (or arising in part out of) an
Indemnifiable Event, the Corporation shall indemnify the Indemnitee to the
fullest extent permitted by law as soon as practicable, but in any event no
later than 30 days after written demand is presented to the Corporation, against
any and all Expenses, judgments, fines, penalties, and amounts paid in
settlement (including all interest, assessments, and other charges paid or
payable in connection with or in respect of such Expenses, judgments, fines,
penalties, or amounts paid in settlement) of such Claim. Notwithstanding
anything in this Agreement to the contrary, prior to a Change in Control, the
Indemnitee shall not be entitled to indemnification pursuant to this Agreement
in connection with any Claim initiated by the Indemnitee against the Corporation
or any director or officer of the Corporation unless the Corporation has joined
in or consented to the initiation of such Claim. If so requested by the
Indemnitee, the Corporation shall advance (within two business days of such
request) any and all Expenses to the Indemnitee (an "Expense Advance").
(b) Notwithstanding the foregoing, (i) the obligations of the Corporation
under Section 2(a) hereof shall be subject to the condition that the Reviewing
Party shall not have determined (in a written opinion, in any case in which the
special, independent counsel referred to in Section 3 hereof is involved) that
the Indemnitee would not be permitted to be indemnified under applicable law;
and (ii) the obligation of the Corporation to make an Expense Advance pursuant
to Section 2(a) hereof shall be subject to the condition that, if, when, and to
the extent that the Reviewing Party determines that the Indemnitee would not be
permitted to be so indemnified under applicable law, the Corporation shall be
entitled to be reimbursed by the Indemnitee (who hereby agrees to reimburse the
Corporation) for all such amounts theretofore paid, provided, however, that if
the Indemnitee has commenced legal proceedings in a court of competent
jurisdiction to secure a determination that the Indemnitee should be indemnified
under applicable law, any determination made by the Reviewing Party that the
Indemnitee would not be permitted to be indemnified under applicable law shall
not be binding and the Indemnitee shall not be required to reimburse the
Corporation for any Expense Advance until a final judicial determination is made
with respect thereto (as to which all rights of appeal therefrom have been
exhausted or lapsed); provided, however, that the entry of a guilty plea by an
Indemnitee shall be deemed to be a final judicial determination, regardless of
whether a sentence has been imposed. If there has not been a Change in
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Control, the Reviewing Party shall be selected by the Board of Directors, and if
there has been such a Change in Control, the Reviewing Party shall be the
special, independent counsel referred to in Section 3 hereof. If there has been
no determination by the Reviewing Party or if the Reviewing Party determines
that the Indemnitee substantively would not be permitted to be indemnified in
whole or in part under applicable law, the Indemnitee shall have the right to
commence litigation in any court in the states of Idaho or Delaware having
subject matter jurisdiction thereof and in which venue is proper seeking an
initial determination by the court or challenging any such determination by the
Reviewing Party or any aspect thereof, and the Corporation hereby consents to
service of process and to appear in any such proceeding. Any determination by
the Reviewing Party otherwise shall be conclusive and binding on the Corporation
and the Indemnitee.
3. Change in Control. The Corporation agrees that if there is a Change in
Control of the Corporation (other than a Change in Control which has been
approved by a majority of the Corporation's Board of Directors who were
directors immediately prior to such Change in Control), then with respect
to all matters thereafter rising concerning the rights of the Indemnitee to
indemnity payments and Expense Advances under this agreement or any other
agreement or Corporation By-Law now or hereafter in effect relating to
Claims for Indemnifiable Events, the Corporation shall seek legal advice
only from special, independent counsel selected by the Indemnitee and
approved by the Corporation (which approval shall not be unreasonably
withheld) ("Approved Counsel"). The Approved Counsel shall (i) be located
in Chicago, Illinois or New York City; (ii) consist of 100 or more
attorneys; (iii) be rated "a v" by Xxxxxxxxxx-Xxxxxxx Law Directory; and
(iv) shall not otherwise have performed services for the Corporation within
the last ten years (other than in connection with such matters) or the
Indemnitee. The Approved Counsel may consult with counsel admitted to the
bar in the state of Delaware in connection with all matters arising
hereunder. Such Approved Counsel, among other things, shall render its
written opinion to the Corporation and the Indemnitee as to whether and to
what extent the Indemnitee would be permitted to be indemnified under
applicable law. The Corporation agrees to pay the reasonable fees of the
Approved Counsel referred to above and to fully indemnify such counsel
against any and all expenses (including attorneys' fees), claims,
liabilities, and damages arising out of or relating to this Agreement or
its engagement pursuant hereto.
4. Establishment of Trust. In the event of a Potential Change in Control, the
Corporation shall, upon written request by the Indemnitee, create a Trust
for the benefit of the Indemnitee and from time to time upon written
request of the Indemnitee shall fund such Trust to the extent permitted by
law in an amount sufficient to satisfy any and all Expenses reasonably
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anticipated at the time of each such request to be incurred in connection
with investigating, preparing for, and defending any Claim relating to an
Indemnifiable Event, and any and all judgments, fines, penalties, and
settlement amounts of any and all Claims relating to an Indemnifiable Event
from time to time actually paid or claimed, reasonably anticipated, or
proposed to be paid. The amount or amounts to be deposited in the Trust
pursuant to the foregoing funding obligation shall be determined by the
Reviewing Party in any case in which the special, independent counsel
referred to above is involved. The terms of such Trust shall provide that
upon a Change in Control (i) the Trust shall not be revoked or the
principal thereof invaded, without written consent of the Indemnitee; (ii)
the Trustee shall advance, within two business days of a request by the
Indemnitee, any and all Expenses to the Indemnitee (and the Indemnitee
hereby agrees to reimburse the Corporation under Section 2(b) hereof);
(iii) the Trust shall continue to be funded by the Corporation in
accordance with the funding obligation set forth above; (iv) the Trustee
shall promptly pay to the Indemnitee all amounts for which the Indemnitee
shall be entitled to indemnification pursuant to this Agreement or
otherwise; and (v) all unexpended funds in such Trust shall revert to the
Corporation upon a final determination by the Reviewing Party or a court of
competent jurisdiction, as the case may be, that the Indemnitee has been
fully indemnified under the terms of this Agreement. The Trustee shall be
chosen by the Indemnitee. Nothing in this Section 4 shall relieve the
Corporation of any of its obligations under this Agreement.
5. Indemnification for Additional Expenses. The Corporation shall indemnify
the Indemnitee against any and all expenses (including attorneys' fees)
and, if requested by the Indemnitee, shall (within two business days of
such request) advance such expenses to the Indemnitee, which are incurred
by the Indemnitee in connection with any claim asserted against or action
brought by the Indemnitee for (i) indemnification or advance payment of
Expenses by the Corporation under this Agreement or any other agreement or
Corporation By-Law now or hereafter in effect relating to Claims for
Indemnifiable Events and/or (ii) recovery under any directors' and
officers' liability insurance policies maintained by the Corporation,
regardless of whether the Indemnitee ultimately is determined to be
entitled to such indemnification, advance expense payment, or insurance
recovery, as the case may be; provided, however, that the Corporation shall
have no obligation to indemnify the Indemnitee with respect to a claim or
action under subsections (i) or (ii) hereof if such claim or action relates
to a proceeding to which the Indemnitee has entered a guilty plea.
6. Partial Indemnity, Etc. If the Indemnitee is entitled under any provision
of this Agreement to indemnification by the Corporation for some or a
portion of the Expenses, judgments, fines, penalties, and amounts paid in
settlement of a Claim but not, however, for all of the total amount
thereof,
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the Corporation shall nevertheless indemnify the Indemnitee for the portion
thereof to which the Indemnitee is entitled. Moreover, notwithstanding any
other provision of this Agreement, to the extent that the Indemnitee has
been successful on the merits or otherwise in defense of any Claim relating
in whole or in part to an Indemnifiable Event or in defense of any issue or
matter therein, including dismissal without prejudice, the Indemnitee shall
be indemnified against all Expenses incurred in connection therewith. In
connection with any determination by the Reviewing Party or otherwise as to
whether the Indemnitee is entitled to be indemnified hereunder, the burden
of proof shall be on the Corporation to establish that the Indemnitee is
not so entitled.
7. No Presumption. For purposes of this Agreement, the termination of any
claim, action, suit, or proceeding, by judgment, order, settlement (whether
with or without court approval), or upon a plea of nolo contendere or its
equivalent, shall not create a presumption that the Indemnitee did not meet
any particular standard of conduct or have any particular belief or that a
court has determined that indemnification is not permitted by applicable
law. Notwithstanding the foregoing, the entry by the Indemnitee of a plea
of guilty shall indicate that the Indemnitee did not meet the standard of
conduct entitling the Indemnitee to indemnification hereunder.
8. Nonexclusivity, Etc. The rights of the Indemnitee hereunder shall be in
addition to any other rights the Indemnitee may have under the
Corporation's Certificate of Incorporation or By-Laws or the Delaware
General Corporation Law or otherwise. To the extent that a change in the
Delaware General Corporation Law (whether by statute or judicial decision)
permits greater indemnification by agreement than would be afforded
currently under the Corporation's Certificate of Incorporation or By-Laws
of this Agreement, it is the intent of the parties hereto that the
Indemnitee shall enjoy by this Agreement the greater benefits so afforded
by such change.
9. Liability Insurance. To the extent the Corporation maintains an insurance
policy or policies providing directors' and officer's liability insurance,
the Indemnitee shall be covered by such policy or policies, in accordance
with its or their terms, to the maximum extent of the coverage available
for any Corporation director or officer.
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10. Period of Limitations. No legal action shall be brought, and no cause of
action shall be asserted by or on behalf of the Corporation or any
affiliate of the Corporation against the Indemnitee, the Indemnitee's
spouse, heirs, executors, or personal or legal representatives after the
expiration of two years from the date of accrual of such cause of action,
and any claim or cause of action of the Corporation or its affiliate shall
be extinguished and deemed released unless asserted by the timely filing of
a legal action within such two-year period, provided, however, that if any
shorter period of limitations is otherwise applicable to any such cause of
action, such shorter period shall govern.
11. Amendments, Etc. 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.
12. Subrogation. In the event of payment under this Agreement, the Corporation
shall be subrogated to the extent of such payment to all of the rights of
recovery of the Indemnitee against any third party and the Indemnitee shall
execute all papers required and shall do everything that may be necessary
to secure such rights, including the execution of such documents necessary
to enable the Corporation effectively to bring suit to enforce such rights.
13. No Duplication of Payments. The Corporation shall not be liable under this
Agreement to make any payment in connection with any claim made against the
Indemnitee to the extent the Indemnitee has otherwise actually received
payment (under any insurance policy, By-Law, or otherwise) of the amounts
otherwise indemnifiable hereunder.
14. Binding Effect, Etc. This Agreement shall be binding upon and inure to the
benefit of and be enforceable by the parties hereto and their respective
successors, assigns, including any direct or indirect successor by
purchase, merger, consolidation, or otherwise to all or substantially all
of the business and/or assets of the Corporation, spouses, heirs, and
personal and legal representatives. This Agreement shall continue in effect
regardless of whether the Indemnitee continues to serve as an officer or
director of the Corporation or of any other enterprise at the Corporation's
request.
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15. Severability. The provisions of this Agreement shall be severable in the
event that any of the provisions hereto (including any provision within a
single section, paragraph or sentence) are held by a court of competent
jurisdiction to be invalid, void or otherwise unenforceable, and the
remaining provisions shall remain enforceable to the fullest extent
permitted by law.
16. Notice to the Corporation by Indemnitee. The Indemnitee agrees to promptly
notify the Corporation in writing upon being served with any citation,
complaint, indictment or other document covered hereunder, either civil or
criminal.
17. Notices. All notices, requests, demand 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 if (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 the Indemnitee:
Xxxxxx Xxxxx
X.X. Xxx 0000
Xxxxxx Xxxx, XX 00000
(b) If to the Corporation:
Hecla Mining Company
0000 X. Xxxxxxx Xxxxx, Xxxxx 000
Xxxxx x'Xxxxx, Xxxxx 00000-0000
Attn: Corporate Secretary
18. Governing Law. This Agreement shall be governed by and construed and
enforced in accordance with the laws of the state of Delaware applicable to
contracts made and to be performed in such state without giving effect to
the principles of conflicts of laws.
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19. Entire Agreement. This Agreement constitutes the entire agreement between
the parties with respect to the subject matter hereof and supercedes all
prior agreements, whether written or oral, regarding the subject matter
hereof. Any prior written agreement is hereby cancelled and terminated.
ENTERED into as of the day and year first above written.
INDEMNITEE: HECLA MINING COMPANY
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XXXXXX XXXXX Xxxxxxxx X. Xxxxx, Xx.
Chairman of the Board President and CEO
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