MEXORO MINERALS, LTD. INDEMNIFICATION AGREEMENT
Exhibit 10.7
MEXORO MINERALS, LTD.
This Indemnification Agreement, dated as of September _, 2009, is made by and between Mexoro
Minerals Ltd., a Colorado corporation (the “Company”), and (the
“Indemnitee”).
RECITALS
A. The Company and Indemnitee recognize the difficulties associated with obtaining liability
insurance for the Company’s directors, officers, employees and other agents, including the rising
cost of such insurance and the general reductions in the coverage of such insurance;
B. The Company and Indemnitee recognize the substantial increase in corporate litigation in
general, subjecting directors, officers, employees and other agents to expensive litigation risks
at the same time as the availability and coverage of liability insurance has been severely limited;
C. The Company desires to attract and retain the services of talented and experienced
individuals, such as Indemnitee, to serve as directors, officers, employees and agents of the
Company and its subsidiaries and wishes to provide the indemnification of, and the advancement of
expenses to, Indemnitee, its directors, officers, employees and other agents to the maximum extent
permitted by law;
D. The Company will benefit from the service of the Indemnitee;
E. Article 7-109 of the Revised Statutes of the State of Colorado, under which the Company is
organized (“Article 7-109”), empowers the Company to indemnify its directors, officers, employees
and agents by agreement and to indemnify persons who serve, at the request of the Company, as the
directors, officers, employees or agents of other corporations or enterprises; and
F. In order to induce Indemnitee to serve or continue to serve as a director, officer,
employee or agent of the Company and/or one or more subsidiaries of the Company free from undue
concern for claims for damages arising out of or related to such services to the Company and/or one
or more subsidiaries of the Company, the Company has determined and agreed to enter into this
Agreement with Indemnitee.
AGREEMENT
Accordingly, the Company and Indemnitee agree as follows:
1. Certain Definitions. As used in this Agreement:
(a) A “Change in Control” shall be deemed to have occurred if, on or after the date of this
Agreement, (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 Company, is or becomes the “beneficial owner” (as defined in Rule
13d-3 under such Act), directly or indirectly, of securities of the Company representing 35% or
more of the total voting power represented by the Company’s then outstanding Voting Securities, or
(ii) during any period of two consecutive years, individuals who at the beginning of that two-year
period constitute the Board of Directors of the Company and any new director whose election by the
Board of Directors or nomination for election by the Company’s shareholders was approved by a vote
of at least a majority of the directors then still in office who either were directors at the
beginning of the two-year period or whose election or nomination for election was previously so
approved, cease for any reason to constitute a majority of the Board of Directors, or (iii) the
shareholders of the Company approve a merger or consolidation of the Company with any other entity,
other than a merger or consolidation which would result in the Voting Securities of the Company
outstanding immediately prior thereto continuing to represent (either by remaining outstanding or
by being converted into Voting Securities of the surviving entity) at least 50% of the total voting
power represented by the Voting Securities of the Company or such surviving entity outstanding
immediately after such merger or consolidation, or the shareholders of the Company approve a plan
of complete liquidation of the Company or an agreement for the sale or disposition by the Company
in one transaction or a series of transactions of all or substantially all the Company’s assets.
(b) “Charter Documents” means the articles of incorporation of the Company and the bylaws of
the Company.
(c) “Claim” shall mean with respect to an Indemnifiable Event (as defined below): any
threatened, pending or completed action, suit, proceeding or alternative dispute resolution
mechanism, or any hearing, inquiry or investigation that leads to the institution of any such
action, suit, proceeding or alternative dispute resolution mechanism, whether civil, criminal,
administrative, investigative or other.
(d) “Disinterested Director” means a director of the Company who is not a party to a
Proceeding in respect of which indemnification or advancement of Expenses is sought by Indemnitee.
(e) “Expenses” means all costs and expenses, including attorneys’ fees, paid or incurred in
connection with investigating, defending, being a witness in or participating in (including on
appeal), or preparing for an investigation or preparing to defend, be a witness in or participate
in any Proceeding relating to any Indemnifiable Event and any federal, state, local or foreign
taxes imposed as a result of the actual or deemed receipt of any payments under the Agreement.
(f) “Expense Advance” shall mean a payment to Indemnitee pursuant to Section 3 of Expenses in
advance of the settlement of or final judgment in any Proceeding or Claim.
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(g) “Indemnifiable Event” means any event or occurrence related to the fact that Indemnitee is
or was a director, officer, employee, agent or fiduciary of the Company, or any subsidiary of the
Company, or is or was serving at the request of the Company as a director, officer, partner,
manager, member, employee, trustee, agent or fiduciary of another corporation, partnership, limited
liability company, joint venture, employee benefit plan, trust or other enterprise, or by reason of
anything done or not done by Indemnitee in any such capacity.
(h) “Independent Counsel” means an attorney or firm of attorneys, selected in accordance with
the provisions of Section 6(c), who shall not have otherwise performed services for the Company or
Indemnitee within the last three years (other than with respect to matters concerning the rights of
indemnity under this Agreement, or of other indemnitees under similar indemnification agreements or
under the Charter Documents).
(i) “Liabilities” means the obligation incurred with respect to a Proceeding to pay any
judgment, settlement, penalty, fine or reasonable Expense, including any excise taxes assessed with
respect to any employee benefit plan, and including all interest, assessments and other charges
paid or payable in connection with or in respect of any such amounts.
(j) “Proceeding” means any threatened, pending or completed action, suit or proceeding,
including any alternative dispute resolution mechanism, whether civil, criminal, administrative or
investigative, and whether formal or informal.
(k) “Representation” shall mean any officer, director, employee, manager, advisor, protector,
agent, grantor, trustee, affiliates or associates of an Indemnitee or the Estate of an Indemnitee.
(l) “Section” refers to a section of this Agreement unless otherwise indicated.
(m) “Voting Securities” means any securities of the Company which are entitled to vote
generally in the election of directors.
2. Indemnification.
(a) The Company shall indemnify Indemnitee to the fullest extent permitted by law against any
and all Liabilities and Expenses arising out of or in connection with any Proceeding to which
Indemnitee was, is or becomes a party, or is threatened to be made a party, by reason of, or
arising in whole or part out of, an Indemnifiable Event.
(b) To the extent that Indemnitee has been successful, on the merits or otherwise, including,
without limitation, the dismissal of an action without prejudice, in defense of any Proceeding,
Indemnitee shall be indemnified against all Expenses incurred by Indemnitee in connection
therewith. If Indemnitee is successful, on the merits or otherwise, as to one or more but less
than all claims, issues or matters in any Proceeding, the Company shall indemnify Indemnitee
against all Expenses incurred by Indemnitee in connection with each successfully resolved claim,
issue or matter.
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(c) To the extent that Indemnitee is, by reason of an Indemnifiable Event, a witness in any
Proceeding to which Indemnitee is not a party, Indemnitee shall be indemnified against all Expenses
actually and reasonably incurred by or on behalf of Indemnitee in connection therewith.
(d) The Company shall indemnify and hold Indemnitee harmless from any Expenses incurred by or
on behalf of Indemnitee to recover under any liability insurance policy maintained by any person
for the benefit of Indemnitee in connection with the performance of Indemnitee’s duties for or on
behalf of the Company.
3. Expense Advances.
(a) Obligation to Make Expense Advances. Unless otherwise prohibited by any statute,
law or regulation applicable to the Company and subject the terms of this Agreement (including
Section 3(b) below), the Company shall make Expense Advances to Indemnitee upon written request by
Indemnitee.
(b) Form of Undertaking. The initial request for payment of Expenses (including any
Expense Advances) in connection with any Proceeding or Claim shall include, or be accompanied or
preceded by, (i) a written affirmation of Indemnitee of Indemnitee’s good faith belief that
Indemnitee has met any applicable standard of conduct required under the Act and (ii) an
undertaking by Indemnitee to reimburse the Company for all amounts advanced by the Company pursuant
to this Section 3 if it is ultimately determined that Indemnitee is not entitled to be indemnified
by the Company for such Expenses. Any such advances shall be made on an unsecured basis and shall
be interest free. Notwithstanding the foregoing, if Indemnitee seeks a judicial adjudication or an
arbitration pursuant to Section 10, Indemnitee shall not be required to reimburse the Company
pursuant to the undertaking described above until a final determination (as to which all rights of
appeal have been exhausted or lapsed) has been made. Any written undertaking by the Indemnitee to
repay any Expenses (including Expense Advances) hereunder shall be unsecured and no interest shall
be charged thereon.
(c) Timing of Payments. All payments of Expenses (including without limitation
Expense Advances) by the Company and the Indemnitors to an Indemnitee pursuant to this Agreement
shall be made to the fullest extent permitted by law as soon as practicable after written demand by
Indemnitee therefor is presented to the Company, but in no event later than twenty (20) days after
such written demand by Indemnitee is presented to the Company.
(d) Notice to Insurers. If, at the time of the receipt by the Company of a notice of
a Proceeding or Claim pursuant to Section 6(a) hereof, the Company has liability insurance in
effect which may cover such Proceeding or Claim, the Company shall give prompt notice of the
commencement of such Proceeding or Claim to the insurers in accordance with the procedures set
forth in the respective policies. The Company shall thereafter take all necessary or desirable
action to cause such insurers to pay, on behalf of the Indemnitee, all amounts payable as a result
of such Proceeding or Claim in accordance with
the terms of such policies. However, the Company shall be liable for any amount in excess of
those not paid by an insurance carrier or that are not promptly paid by the insurers.
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(e) Selection of Counsel. In the event the Company shall be obligated hereunder to
provide indemnification for or make any Expense Advances with respect to the Expenses of any
Proceeding or Claim, the Company, if appropriate, shall be entitled to assume the defense of such
Proceeding or Claim with counsel approved by Indemnitee (which approval shall not be unreasonably
withheld, conditioned or delayed) upon the delivery to Indemnitee a written notice of the Company’s
election to do so. After delivery of such notice, approval of such counsel by Indemnitee and the
retention of such counsel by the Company, the Company will not be liable to Indemnitee under this
Agreement for any fees or expenses of separate counsel subsequently employed by or on behalf of
Indemnitee with respect to the same Proceeding or Claim; provided, however, that (i) Indemnitee
shall have the right to employ Indemnitee’s separate counsel in any such Proceeding or Claim at
Indemnitee’s expense and (ii) if (A) the employment of separate counsel by Indemnitee has been
previously authorized by the Company, (B) Indemnitee shall have reasonably concluded (based on
legal advice) that there may be a conflict of interest between the Company and Indemnitee in the
conduct of any such defense, or (C) the Company shall not continue to retain such counsel to defend
such Claim, then the fees and expenses of Indemnitee’s separate counsel shall be Expenses for which
Indemnitee may receive indemnification or Expense Advances hereunder.
5. Exceptions. Notwithstanding any other provision of this Agreement, the Company
shall not be obligated pursuant to the terms of this Agreement:
(a) To indemnify or advance Expenses to Indemnitee with respect to Proceedings or Claims
arising out of acts, omissions or transactions for which Indemnitee is prohibited from receiving
indemnification under applicable law.
(b) To indemnify or advance Expenses to Indemnitee with respect to Proceedings or Claims
initiated or brought voluntarily by Indemnitee and not by way of defense, counterclaim or
crossclaim, except (i) with respect to actions or proceedings brought to establish or enforce a
right to indemnification under this Agreement or any other agreement or insurance policy or under
the Charter Documents now or hereafter in effect relating to Proceedings or Claims for
Indemnifiable Events, or (ii) in specific cases if the Board of Directors of the Company has
approved the initiation or bringing of such Proceeding or Claims by a majority vote of the
Disinterested Directors.
(c) To indemnify Indemnitee for any Expenses incurred by Indemnitee with respect to any action
instituted (i) by Indemnitee to enforce or interpret this Agreement, if a court having jurisdiction
over such action determines that each of the material assertions made by Indemnitee as a basis for
such action was not made in good faith or was frivolous, or (ii) by or in the name of the Company
to enforce or interpret this Agreement, if a court having jurisdiction over such action determines
that each of the material defenses asserted by Indemnitee in such action was made in bad faith or
was frivolous.
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(d) To indemnify Indemnitee for Expenses, judgments, fines, penalties and the payment of
profits arising from the purchase and sale by Indemnitee of securities in violation of Section
16(b) of the Securities Exchange Act of 1934, as amended, or any similar successor statute.
(e) To indemnify Indemnitee for Liabilities or Expenses arising from an administrative or
civil enforcement action commenced by a federal banking agency to the extent prohibited by the laws
or regulations of such agency.
6. Procedures for Notification and Determinations.
(a) Indemnitee shall notify the Company in writing as soon as reasonably practicable (i) after
being served with any summons, citation, subpoena, complaint, indictment, information or other
document relating to any Proceeding or Claim or (ii) if the Company has not been previously
notified, after receipt of written notice of any other matter with respect to which Indemnitee
intends to seek indemnification or advancement of Expenses under Section 2 and Section 3. The
failure by Indemnitee to so notify the Company will not relieve the Company from any liability
which it may have to Indemnitee (i) under this Agreement except and only to the extent the Company
can establish that such omission to notify resulted in actual material prejudice to the Company or
(ii) otherwise than under this Agreement. Indemnitee may thereafter deliver to the Company a
written request for indemnification pursuant to this Agreement at such time and from time to time
as Indemnitee deems appropriate, which request shall also be deemed a request for advancement of
Expenses under Section 3.
(b) Except as otherwise provided pursuant to Section 2(b) and Section 2(c), upon the final
disposition of the matter that is the subject of the request for indemnification delivered pursuant
to Section 6(a), a determination shall be made with respect to Indemnitee’s entitlement thereto in
the specific case. If a Change in Control shall not have occurred, such determination shall be
made (i) by a majority vote of Disinterested Directors or of a committee of Disinterested Directors
designated by a majority vote of the Disinterested Directors (in either case, even though less than
a quorum of the Board of Directors) or (ii) if there are no Disinterested Directors or the
Disinterested Directors so direct, by Independent Counsel. If a Change in Control shall have
occurred, such determination shall be made by Independent Counsel. Any determination made by
Independent Counsel pursuant to this Section 6(b) shall be in the form of a written opinion to the
Board of Directors, a copy of which shall be delivered to Indemnitee. Indemnitee shall reasonably
cooperate with the person or persons making such determination including providing to such person
or persons 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. Any costs or expenses (including fees and expenses of
counsel) incurred by Indemnitee in so cooperating with the person or persons making such
determination shall be borne by the Company (irrespective of the determination as to Indemnitee’s
entitlement to indemnification), and the Company hereby indemnifies and agrees to hold Indemnitee
harmless from such costs and expenses.
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(c) If the determination is to be made by Independent Counsel, such Independent Counsel shall
be selected as provided in this Section 6(c). If a Change in Control shall not have occurred, the
Independent Counsel shall be selected by the Board of Directors, and the Company shall give written
notice to Indemnitee advising Indemnitee of the identity of the Independent Counsel so selected. If
a Change in Control shall have occurred, the Independent Counsel shall be selected by Indemnitee
(unless Indemnitee shall request that such selection be made by the Board of Directors, in which
event the preceding sentence shall apply), and Indemnitee shall give written notice to the Company
advising it of the identity of the Independent Counsel so selected. In either case, the party
receiving the notice may, within 10 days after receipt thereof, deliver to the other a written
objection to such selection; provided that such objection may be asserted only on the ground that
the Independent Counsel so selected does not meet the requirements of “Independent Counsel” as
defined in Section 1, and the objection shall set forth with particularity the factual basis of
such assertion. Absent a proper and timely objection, the person so selected shall act as
Independent Counsel. If a proper and timely objection is made, the counsel selected may not serve
as Independent Counsel unless and until such objection is withdrawn or a court of competent
jurisdiction (or, at Indemnitee’s option pursuant to Section 10, an arbitration) has determined
that such objection is without merit. If, within 20 days after receipt by the Company of a request
for indemnification pursuant to Section 6(a), no Independent Counsel shall have been selected and
not objected to, either the Company or Indemnitee may petition a court of competent jurisdiction
(or, at Indemnitee’s option pursuant to Section 10, an arbitration) for resolution of any objection
which shall have been made to the selection of Independent Counsel and/or for the appointment of
another person as Independent Counsel, and the person with respect to whom all objections are so
resolved or the person so appointed shall act as Independent Counsel. The Company agrees to pay the
reasonable fees and expenses of any Independent Counsel appointed pursuant to this Section and to
indemnify such person against any and all expenses, claims, liabilities and damages arising out of
or relating to this Agreement or its engagement pursuant hereto except for those arising from the
Independent Counsel’s gross negligence or willful misconduct.
(d) If a determination as to Indemnitee’s entitlement to indemnification shall not have been
made pursuant to this Agreement within 60 days after the final disposition of the matter that is
the subject of the request for indemnification, the requisite determination of entitlement to
indemnification shall be deemed to have been made in favor of Indemnitee, and Indemnitee shall be
entitled to such indemnification, absent a misstatement of a material fact in the information
provided by Indemnitee pursuant to Section 6(a) and Section 6(b) or an omission of a material fact
necessary in order to make the information provided not misleading; provided that such 60-day
period may be extended for a reasonable time, not to exceed an additional 30 days, if the person or
persons making the determination in good faith requires such additional time to obtain or evaluate
any documentation or information relating thereto.
(e) If it is determined that Indemnitee is entitled to indemnification, payment to Indemnitee
shall be made within 10 days after such determination.
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7. Presumptions and Burdon of Proof.
(a) In making any determination as to Indemnitee’s entitlement to indemnification hereunder,
Indemnitee shall be entitled to a presumption that Indemnitee is entitled to indemnification under
this Agreement if Indemnitee has submitted a request for indemnification in accordance with Section
6(a), and the Company shall have the burdens of coming forward with evidence and of persuasion to
overcome that presumption.
(b) The termination of any Proceeding or of any Claim, issue or matter therein by judgment,
order, settlement or conviction, or upon a plea of nolo contendere or its equivalent, shall not of
itself create a presumption (i) that Indemnitee did not act in good faith and in a manner
reasonably believed to be in or not opposed to the best interests of the Company, (ii) that with
respect to any criminal Proceeding, Indemnitee had reasonable cause to believe that Indemnitee’s
conduct was unlawful or (iii) that Indemnitee did not otherwise satisfy the applicable standard of
conduct to be indemnified pursuant to this Agreement.
(c) For purposes of any determination of good faith, Indemnitee shall be deemed to have acted
in good faith if Indemnitee’s action is based on the records or books of account of the Company or
the other entity for which Indemnitee’s service gave rise to an Indemnifiable Event, including
financial statements, or on information supplied to Indemnitee by the officers of the Company or
such other entity in the course of their duties, or on the advice of legal counsel for the Company
or such other entity or on information or records given or reports made to the Company or such
other entity by an independent certified public accountant, appraiser or other expert selected by
the Company or such other entity. The provisions of this Section 7(c) shall not be deemed to be
exclusive or to limit in any way other circumstances in which Indemnitee may be deemed or found to
have met the applicable standard of conduct to be indemnified pursuant to this Agreement.
(d) The knowledge or actions or failure to act of any other director, officer, employee or
agent of the Company or other entity, as applicable, shall not be imputed to Indemnitee for
purposes of determining Indemnitee’s right to indemnification under this Agreement.
8. Nonexclusivity; Subsequent Change in Law. The rights of Indemnitee hereunder shall
be in addition to any other rights Indemnitee may have from time to time under the Charter
Documents or the laws of the State of Colorado or otherwise, and nothing contained in this
Agreement shall derogate or limit Indemnitee’s rights to indemnification as provided under the
Charter Documents or under applicable law. To the extent that a change in the laws of the State of
Colorado (whether by statute or judicial decision) permits greater indemnification by agreement
than would be afforded currently under the Charter Documents and this Agreement, it is the intent
of the parties hereto that Indemnitee shall enjoy by this Agreement the greater benefits so
afforded by such change. In the event of any change in any applicable law, statute or rule that
narrows the right of a corporation organized under the laws of the State of Colorado to indemnify a
member of its board of directors or an officer, employee, agent or fiduciary, such change, 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. If, and to the
extent that, the Company determines to change its domicile or jurisdiction of incorporation, the
Company shall take such actions, in connection therewith, to preserve, in all respects, the
indemnity protections and benefits
provided to Indemnitee hereunder to the fullest extent permitted under the laws of such new
domicile or jurisdiction of incorporation.
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9. Contribution. If the indemnification provided for in this Agreement for any reason
is held by a court of competent jurisdiction to be unavailable to Indemnitee in respect of any
Expenses or Liabilities referred to herein, then the Company, in lieu of indemnifying Indemnitee,
shall contribute to the amount paid or payable by Indemnitee in respect of such Expenses or
Liabilities (a) in such proportion as is appropriate to reflect the relative benefits received by
the Company and Indemnitee from the action or inaction which resulted in such Expenses or
Liabilities, or (b) if the allocation provided by clause (a) is not permitted by applicable law, in
such proportion as is appropriate to reflect not only the relative benefits referred to in clause
(a) above but also the relative fault of the Company and Indemnitee in connection with the action
or inaction which resulted in such Expenses or Liabilities, as well as any other relevant equitable
considerations. The Company and Indemnitee agree that it would not be just and equitable if
contribution pursuant to this Section 9 were determined by pro rata allocation or by any other
method of allocation that does not take account of the equitable considerations referred to in this
Section 9.
10. Remedies of Indemnitee.
(a) Indemnitee shall be entitled to an adjudication (by a court of competent jurisdiction or,
at Indemnitee’s option, through an arbitration conducted by a single arbitrator pursuant to the
Commercial Arbitration Rules of the American Arbitration Association) of any determination pursuant
to Section 6(b) that Indemnitee is not entitled to indemnification under this Agreement. Any such
adjudication shall be conducted in all respects as a de novo trial or arbitration on the merits,
and any prior adverse determination shall not be referred to or introduced into evidence, create a
presumption that Indemnitee is not entitled to indemnification or advancement of expenses, be a
defense or otherwise adversely affect Indemnitee. In any such judicial proceeding or arbitration,
the provisions of Section 7 (including the presumption in favor of Indemnitee and the burdens on
the Company) shall apply.
(b) Indemnitee shall also be entitled to an adjudication (by a court of competent jurisdiction
or, at Indemnitee’s option, through an arbitration as described above) of any other disputes under
this Agreement.
(c) If a determination shall have been made pursuant to Section 6(b) 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 10, absent a misstatement of a
material fact in the information provided by Indemnitee pursuant to Section 6(a) or Section 6(b) or
an omission of a material fact necessary in order to make the information provided not misleading.
(d) In connection with any judicial proceeding or arbitration commenced pursuant to this
Section 10, the Company shall not oppose Indemnitee’s right to seek such adjudication, shall be
precluded from asserting that the procedures and presumptions of this Agreement are not valid,
binding or 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.
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11. Defense of Claims. The Company shall be entitled to participate in any Proceeding
or Claim at its own expense. The Company shall not settle any Proceeding or Claim in whole or in
part which would impose any Expense, Liability or limitation on Indemnitee without Indemnitee’s
prior written consent, such consent not to be unreasonably withheld. Indemnitee shall not settle
any Proceeding or Claim in whole or in part which would impose any Expense, Liability or limitation
on the Company without the Company’s prior written consent, such consent not to be unreasonably
withheld.
12. Attorney’s Fees. In addition to any other rights or remedies that Indemnitee may
have under this Agreement, the Company shall reimburse Indemnitee for all costs and expenses
(including fees and expenses of counsel) actually and reasonably incurred by Indemnitee or on his
behalf in seeking (whether through a judicial proceeding or arbitration or otherwise) to enforce
this Agreement.
13. No Duplication of Payments. The Company shall not be liable under this Agreement
to make any payment in connection with any Proceeding or Claim made against Indemnitee to the
extent Indemnitee has otherwise actually received payment (under any insurance policy, Charter
Document or otherwise) of the amounts otherwise indemnifiable hereunder.
14. Liability Insurance. To the extent the Company maintains an insurance policy or
policies providing directors’ and officers’ liability insurance, 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 Company director or officer.
15. Notices. All notices, requests, demands and other communications hereunder shall
be in writing and shall be deemed to have been duly given (a) upon delivery if delivered by hand to
the party to whom such communication was directed or sent via facsimile, with confirmation of
receipt, or (b) on the third business day after the date on which such communication was mailed if
mailed by certified or registered mail with postage prepaid.
If to Indemnitee, at the address indicated on the signature page hereof.
If to the Company, to:
Mexoro Minerals, Ltd.
C. General Xxxxxx #706
Col San Xxxxxx
Chihuahua, Chih. 31203
Mexico
C. General Xxxxxx #706
Col San Xxxxxx
Chihuahua, Chih. 31203
Mexico
Attention: President
Fax No. x00 (000) 000 0000 xxx 000
or to such other address as may have been furnished to Indemnitee by the Company.
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16. Amendments; 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.
17. 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 Indemnitee, who 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 Company effectively to bring suit
to enforce such rights, except that the Company shall not enforce any of such rights in any manner
or at any time as would prevent or delay payment to Indemnitee of all amounts owing to him or
prevent Indemnitee from making an assignment of such rights for the benefit of creditors of the
Company in connection with a bankruptcy filing.
18. Binding Effect. This Agreement shall be binding upon and inure to the benefit of
and be enforceable by the parties hereto and their respective successors (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), assigns, spouses, heirs, executors and personal and legal
representatives, and any such successor shall expressly assume, in written agreement in form and
substance reasonably satisfactory to Indemnitee, all of the Company’s obligations hereunder to the
same extent, and in substantially the same manner, as the Company prior to such succession. This
Agreement shall continue in effect regardless of whether Indemnitee continues to serve as a
director or officer of the Company or of any other enterprise at the Company’s request.
19. Severability. If any provision of this Agreement (including any provision within a
single Section, paragraph or sentence) is held by a court of competent jurisdiction to be invalid,
void or otherwise unenforceable in any respect: (a) the validity and enforceability of any such
provision in every other respect and of the remaining provisions hereof shall not be in any way
impaired and shall remain enforceable; (b) such provision or provisions shall be deemed to have
been reformed to the minimum extent necessary to conform to applicable law; and (c) to the fullest
extent possible, the provisions of this Agreement (including each portion of any Section, paragraph
or sentence of this Agreement containing any provision held to be invalid, illegal or unenforceable
that is not itself invalid, illegal or unenforceable) shall be construed to as to give effect to
the intent manifested thereby.
20. Effective Date. This Agreement shall be effective as of the date hereof and shall
apply to any claim for indemnification by Indemnitee on or after such date.
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21. Governing Law. This Agreement shall be governed by and construed and enforced in
accordance with the laws of the State of Colorado applicable to contracts made and to be performed
in such state without giving effect to the principles of conflicts of laws thereof. Except with
respect to any arbitration commenced by Indemnitee pursuant to Section
10, the Company and Indemnitee each hereby irrevocably consent to the jurisdiction of the
courts of the State of Colorado, City and County of Denver for all purposes in connection with any
action or proceeding which arises out of or relates to this Agreement.
22. Integration and Entire Agreement. This Agreement sets forth the entire
understanding between the parties hereto and supersedes and merges all previous written and oral
negotiations, commitments, understandings and agreements relating to the subject matter hereof
between the parties hereto, except that this Agreement in addition to, and not in limitation of,
the right of Indemnitee under any provisions on the subject matter hereof contained in the Charter
Documents.
23. No Construction as Employment Agreement. Nothing contained in this Agreement shall
be construed as giving Indemnitee any right to be retained in the employ of the Company or any of
its subsidiaries or affiliated entities.
[Signature page follows]
- 12 -
The Company and Indemnitee are signing this Agreement as of the date set forth above.
| Indemnitee: | The Company: | |||||||
| MEXORO MINERALS LTD. | ||||||||
| [Name of Indemnitee] | By: | |||||||
Address:
|
Title: | |||||||
| Address: | ||||||||
