Exhibit 10.18
INDEMNIFICATION AGREEMENT
THIS AGREEMENT is made and entered into as of the 13th day of November,
2003 (this "Agreement"), by and between APOLLO GOLD CORPORATION, incorporated
under the laws of the Yukon Territory, Canada (the "Company"), and
________________ ("Indemnitee").
RECITALS:
WHEREAS officers and directors of publicly traded corporations are being
increasingly subjected to expensive and time-consuming litigation relating to,
among other things, matters that traditionally would have been brought only
against the corporation or business enterprise itself; and
WHEREAS, highly competent persons have become more reluctant to serve
publicly-traded corporations as directors or officers or in other capacities
unless they are provided with adequate protection through insurance and
indemnification against the risks of claims and actions against them arising out
of their service to, and activities on behalf of, such corporations; and
WHEREAS, the Board of Directors of the Company (the "Board") has determined
that, to attract and retain qualified individuals, the Company will attempt to
maintain on an ongoing basis, at its sole expense, liability insurance to
protect persons serving the Company and its subsidiaries from certain
liabilities; and
WHEREAS, it is reasonable, prudent and necessary for the Company
contractually to obligate itself to indemnify, and to advance expenses on behalf
of, such persons to the fullest extent permitted by applicable law so that they
will serve or continue to serve the Company free from undue concern that they
will not be so indemnified; and
WHEREAS, this Agreement is a supplement to and in furtherance of the Bylaws
of the Company and any resolutions adopted pursuant thereto, and shall not be
deemed a substitute therefore, nor to diminish or abrogate any rights of
Indemnitee thereunder; and
WHEREAS, Indemnitee is willing to serve, continue to serve and to take on
additional service for or on behalf of the Company on the condition that he be
so indemnified;
WHEREAS, the Board has determined that it is in the best interests of the
Company to provide such director and officer insurance and contractual
indemnification as set forth herein.
AGREEMENT
NOW, THEREFORE, in consideration of the premises and the covenants
contained herein, the Company and Indemnitee hereby covenant and agree as
follows:
SECTION 1. SERVICES BY INDEMNITEE. Indemnitee agrees to continue to serve
as a director or officer of the Company. Indemnitee may at any time and for any
reason resign from such position (subject to any other contractual obligation or
any obligation imposed by operation of law). This Agreement shall not be deemed
an employment contract between the Company (or any of its subsidiaries) and
Indemnitee. This Agreement shall continue in force after Indemnitee has ceased
for any reason whatsoever to serve as a director or officer of the Company.
SECTION 2. INDEMNIFICATION-GENERAL. The Company shall indemnify, and
advance Expenses (as hereinafter defined) to, Indemnitee (a) as provided in this
Agreement and (b) to the fullest extent permitted by applicable law in effect on
the date hereof and as amended from time to time. The rights of Indemnitee
provided under the preceding sentence shall include, but shall not be limited
to, the rights set forth in the other Sections of this Agreement.
SECTION 3. PROCEEDINGS. Except in respect of an action by or on behalf of
the Company to procure a judgment in its favor, Indemnitee shall be indemnified
under this Section 3 if, by reason of his Corporate Status (as hereinafter
defined), he is, or is threatened to be made, a party to or a participant in any
threatened, pending, or completed Proceeding (as hereinafter defined). Pursuant
to this Section 3, Indemnitee shall be indemnified against all Expenses,
judgments, penalties, fines and amounts paid in settlement actually and
reasonably incurred by him or on his behalf in connection with such Proceeding
or any claim, issue or matter therein, if he acted in Good Faith and, with
respect to any criminal or administrative Proceeding that is enforced by
monetary penalty, had reasonable cause to believe his conduct was lawful.
SECTION 4. PROCEEDINGS BY OR IN THE RIGHT OF THE COMPANY. Indemnitee shall
be indemnified under this Section 4 if, by reason of his Corporate Status, he
is, or is threatened to be made, a party to or a participant in any threatened,
pending or completed Proceeding brought by or in the right of the Company to
procure a judgment in its favor. Pursuant to this Section 4, Indemnitee shall be
indemnified against all Expenses actually and reasonably incurred by him or on
his behalf in connection with such Proceeding if he acted in Good Faith provided
that if applicable law so provides, no indemnification against such Expenses
shall be made in respect of any claim, issue or matter in such Proceeding as to
which Indemnitee shall have been adjudged to be liable to the Company unless and
to the extent that the Supreme Court of the Yukon Territory or the court in
which such Proceeding shall have been brought or is pending, shall determine
that such indemnification may be made.
SECTION 5. INDEMNIFICATION FOR EXPENSES OF A WITNESS. Notwithstanding any
other provision of this Agreement, to the extent that Indemnitee is, by reason
of his Corporate Status, a witness in any Proceeding to which Indemnitee is not
a party, he shall be indemnified against all Expenses actually and reasonably
incurred by him or on his behalf in connection therewith, including being paid a
reasonable per diem fee for time spent as such.
SECTION 6. ADVANCEMENT OF EXPENSES. Notwithstanding any provision of this
Agreement to the contrary, the Company shall advance all reasonable Expenses
incurred by or on behalf of Indemnitee in connection with any Proceeding in
which Indemnitee is involved by reason of Indemnitee's Corporate Status within
10 days after the receipt by the Company of a statement or statements from
Indemnitee requesting such advance or advances from time to time, whether prior
to or after final disposition of such Proceeding. Indemnitee may forward to the
Company the invoices of Indemnitee's legal counsel which shall satisfy the above
requirement. Such statement or statements shall reasonably evidence the Expenses
incurred by Indemnitee. Indemnitee hereby undertakes to repay any Expenses
advanced if it shall ultimately be determined that Indemnitee is not entitled to
be indemnified against such Expenses. Any advances and undertakings to repay
pursuant to this Section 6 shall be unsecured and interest free.
SECTION 7. PROCEDURE FOR DETERMINATION OF ENTITLEMENT TO INDEMNIFICATION.
(a) Except in relation to a claim of indemnity under section 4 of this
Agreement, to obtain indemnification under this Agreement, Indemnitee shall
submit to the Company a written request, including therein or therewith
such documentation and information as is reasonably available to Indemnitee
and is reasonably necessary to determine whether and to what extent
Indemnitee is entitled to indemnification. The Secretary of the Company
shall, promptly upon receipt of such a request for indemnification, advise
the Board in writing that Indemnitee has requested indemnification. The
Indemnitee shall be conclusively presumed to have met the relevant
standards of conduct required under applicable law for indemnification
pursuant to this Agreement, unless a determination is made that the
Indemnitee has not met such standards by (i) the Board of Directors of the
Company by a majority vote of a quorum thereof consisting of members who
were not parties to such proceeding; (ii) the stockholders of the Company
by a majority vote; or (iii) by an order or decree of any court of
competent jurisdiction.
(b) The Company shall not be required to obtain the consent of Indemnitee to
the settlement of any Proceeding the Company has undertaken to defend if
the Company assumes full and sole
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responsibility for such settlement and the settlement grants Indemnitee a
complete and unqualified release in respect of the potential liability. The
Company shall not be liable for any amount paid by the Indemnitee in
settlement of any Proceeding that is not defended by the Company, unless
the Company has consented to such settlement, which consent shall not be
unreasonably withheld.
SECTION 8. PRESUMPTIONS; RELIANCE AND EFFECT OF CERTAIN PROCEEDINGS.
(a) 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 (except as otherwise expressly
provided in this Agreement) of itself adversely affect the right of
Indemnitee to indemnification or create a presumption that Indemnitee did
not act in Good Faith or, with respect to any criminal or administrative
Proceeding that is enforced by monetary penalty, had reasonable cause to
believe his conduct was lawful.
(b) 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 Enterprise, including financial statements, or
on the advice of legal counsel for the Enterprise or on information or
records given or reports made to the Enterprise by an independent certified
public accountant or by an appraiser, financial advisor or other expert or
professional selected with reasonable care by the Enterprise. The
provisions of this Section 8(b) shall not be deemed to be exclusive or to
limit in any way the other circumstances in which the Indemnitee may be
deemed to have met the applicable standard of conduct set forth in this
Agreement.
(c) The knowledge and/or actions, or failure to act, of any director, officer,
agent or employee of the Enterprise shall not be imputed to Indemnitee for
purposes of determining the right to indemnification under this Agreement.
SECTION 9. NONEXCLUSIVITY; INSURANCE; SUBROGATION.
(a) The rights of indemnification and to receive advancement of Expenses as
provided by this Agreement shall not be deemed exclusive of any other
rights to which Indemnitee may at any time be entitled under applicable
law, the Company's Certificate of Incorporation, the Company's Bylaws, any
agreement, a vote of stockholders or a resolution of directors, or
otherwise. No amendment, alteration or repeal of this Agreement or of any
provision hereof shall limit or restrict any right of Indemnitee under this
Agreement in respect of any action taken or omitted by such Indemnitee in
his Corporate Status prior to such amendment, alteration or repeal. To the
extent that a change in the Business Corporations Act (Yukon), whether by
statute or judicial decision, permits greater indemnification or
advancement of Expenses than would be afforded currently under the
Company's Certificate of Incorporation, Bylaws and this Agreement, it is
the agreement and intent of the parties hereto that Indemnitee shall enjoy
by this Agreement the greater benefits so afforded by such change. No right
or remedy herein conferred is intended to be exclusive of any other right
or remedy, and every other right and remedy shall be cumulative and in
addition to every other right and remedy given hereunder or now or
hereafter existing at law or in equity or otherwise. The assertion or
employment of any right or remedy hereunder, or otherwise, shall not
prevent the concurrent assertion or employment of any other right or
remedy.
(b) To the extent that the Company maintains an insurance policy or policies
providing liability insurance for directors, officers, employees, or agents
of the Company or of any other corporation, partnership, joint venture,
trust, employee benefit plan or other enterprise such person serves at the
request of the Company, 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 such director, officer, employee or agent under
such policy or policies.
(c) In the event of any payment under this Agreement, the Company shall be
subrogated to the extent of such payment to all of the rights of recovery
of Indemnitee, who shall execute all
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documents required and take all action necessary to secure such rights,
including execution of such documents as are necessary to enable the
Company to bring suit to enforce such rights.
(d) The Company shall not be liable under this Agreement to make any payment of
amounts otherwise indemnifiable (or for which advancement is provided
hereunder) hereunder if and to the extent that Indemnitee has otherwise
theretofore actually received such payment under any insurance policy,
contract, agreement or otherwise.
(e) The Company's obligation to indemnify or advance Expenses hereunder to
Indemnitee who is or was serving at the request of the Company as a
director, officer, employee or agent of any other corporation, partnership,
joint venture, trust, employee benefit plan or other enterprise shall be
reduced by any amount Indemnitee has actually theretofore received as
indemnification or advancement of expenses from such other corporation,
partnership, joint venture, trust, employee benefit plan or other
enterprise.
SECTION 10. DURATION OF AGREEMENT. This Agreement shall continue until and
terminate upon the later of: (i) 10 years after the date that Indemnitee shall
have ceased to serve as a director or officer of the Company (or of any other
corporation, partnership, joint venture, trust, employee benefit plan or other
enterprise that Indemnitee served at the request of the Company); or (ii) the
final termination of any Proceeding then pending in respect of which Indemnitee
is granted rights of indemnification or advancement of Expenses hereunder. This
Agreement shall be binding upon the Company and its successors and assigns and
shall inure to the benefit of Indemnitee and his heirs, executors and
administrators.
SECTION 11. SEVERABILITY. If any provision or provisions of this Agreement
shall be held to be invalid, illegal or unenforceable for any reason whatsoever:
(i) the validity, legality and enforceability of the remaining provisions of
this Agreement (including without limitation each portion of any Section of this
Agreement containing any such provision held to be invalid, illegal or
unenforceable, that is not itself invalid, illegal or unenforceable) shall not
in any way be affected or impaired thereby and shall remain enforceable to the
fullest extent permitted by law; (ii) such provision or provisions shall be
deemed reformed to the extent necessary to conform to applicable law and to give
the maximum effect to the intent of the parties hereto; and (iii) to the fullest
extent possible, the provisions of this Agreement (including without limitation
each portion of any Section of this Agreement containing any such provision held
to be invalid, illegal or unenforceable, that is not itself invalid, illegal or
unenforceable) shall be construed so as to give effect to the intent manifested
thereby.
SECTION 12. EXCEPTION TO RIGHT OF INDEMNIFICATION OR ADVANCEMENT OF
EXPENSES. Notwithstanding any other provision of this Agreement, but subject to
Section 10, Indemnitee shall not be entitled to indemnification or advancement
of Expenses under this Agreement with respect to any Proceeding brought by
Indemnitee, or any claim therein, unless the bringing of such Proceeding or
making of such claim shall have been approved by the Board of Directors.
SECTION 13. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall for all purposes be deemed to be an original
but all of which together shall constitute one and the same Agreement. Only one
such counterpart signed by the party against whom enforceability is sought needs
to be produced to evidence the existence of this Agreement.
SECTION 14. HEADINGS. The headings of the paragraphs of this Agreement are
inserted for convenience only and shall not be deemed to constitute part of this
Agreement or to affect the construction thereof.
SECTION 15. DEFINITIONS. For purposes or this Agreement:
(a) "Corporate Status" describes the status of a person who is or was
a director, officer, employee or agent of the Company or of any other
corporation, partnership, joint venture, trust,
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employee benefit plan or other enterprise that such person is or was
serving at the request of the Company.
(b) "Effective Date" means the date first above written.
(c) "Enterprise" shall mean the Company and any other corporation,
partnership, joint venture, trust, employee benefit plan or other
enterprise of which Indemnitee is or was serving at the request of the
Company as a director, officer, employee, agent or fiduciary.
(d) "Expenses" shall include all reasonable attorneys' fees,
retainers, court costs, transcript costs, fees of experts, witness fees,
travel and lodging expenses, duplicating costs, printing and binding costs,
telephone charges, postage, delivery service fees, and all other
disbursements or expenses of the types customarily incurred in connection
with prosecuting, defending, preparing to prosecute or defend,
investigating, being or preparing to be a witness in, or otherwise
participating in, a Proceeding.
(e) "Good Faith" shall mean Indemnitee having acted in good faith with
a view to the best interests of the Company, and, with respect to any
criminal or administrative Proceeding that is enforced by monetary penalty,
had reasonable cause to believe his conduct was lawful.
(f) "Proceeding" includes any threatened, pending or completed action,
suit, arbitration, alternate dispute resolution mechanism, investigation,
inquiry, administrative hearing or any other actual, threatened or
completed proceeding, whether brought by or in the right of the Company or
otherwise and whether civil, criminal, administrative or investigative, in
which Indemnitee was, is or will be involved as a party or otherwise, by
reason of the fact that Indemnitee is or was a director or officer of the
Company, by reason of any action taken by him or of any inaction on his
part while acting as director or officer of the Company, or by reason of
the fact that he is or was serving at the request of the Company as a
director, officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise, in each case whether or not he is
acting or serving in any such capacity at the time any liability or expense
is incurred for which indemnification or advancement of expenses can be
provided under this Agreement.
(g) References to "other enterprise" shall include employee benefit
plans; references to "fines" shall include any excise tax assessed with
respect to any employee benefit plan; references to "serving at the request
of the Company" shall include any service as a director, officer, employee
or agent of the Company that imposes duties on, or involves services by,
such director, officer, employee or agent with respect to an employee
benefit plan, as participants or beneficiaries; and a person who acted in
good faith and in the manner he reasonably believed to be in the interests
of the participants and beneficiaries of an employee benefit plan shall not
be deemed to have acted in manner "not opposed to the best interests of the
Company" as referred to in this Agreement.
(h) "Affiliate" means with respect to any person or entity, any other
person or entity that, directly or indirectly, through one or more
intermediaries, controls, is controlled by or is under common control with,
such person or entity.
SECTION 16. ENFORCEMENT.
(a) The Company expressly confirms and agrees that it has entered into
this Agreement and assumed the obligations imposed on it hereby in order to
induce Indemnitee to continue to serve as a director and/or officer of the
Company, and to serve upon any committee of the Board of Directors of the
Company as requested by such Board, and the Company acknowledges that
Indemnitee is relying upon this Agreement in serving as a director and/or
officer of the Company and a member of any such committee.
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(b) This Agreement constitutes the entire agreement between the
parties hereto with respect to the subject matter hereof and supersedes all
prior agreements and understandings, oral, written and implied, between the
parties hereto with respect to the subject matter hereof.
SECTION 17. MODIFICATION AND WAIVER. No supplement, modification or
amendment of this Agreement shall be binding unless executed in writing by both
of the parties hereto. No waiver of any of the provisions of this Agreement
shall be deemed or shall constitute a waiver of any other provisions hereof
(whether or not similar) nor shall such waiver constitute a continuing waiver.
SECTION 18. NOTICE BY INDEMNITEE. Indemnitee agrees promptly to notify the
Company in writing upon being served with any summons, citation, subpoena,
complaint, indictment, information or other document relating to any Proceeding
or matter that may be subject to indemnification or advancement of Expenses
covered hereunder. The failure of Indemnitee to so notify the Company shall not
relieve the Company of any obligation it may have to the Indemnitee under this
Agreement or otherwise, except to the extent the Company is materially
prejudiced by such failure.
SECTION 19. NOTICES. All notices, requests, demands and other
communications hereunder shall be in writing and shall be deemed to have been
duly given if (i) delivered by hand and receipted for by the party to whom the
notice or other communication shall have been directed, or (ii) mailed by
certified or registered mail with postage prepaid, on the third business day
after the date on which it is so mailed:
(a) If to Indemnitee, to:
(b) If to the Company, to:
Apollo Gold Corporation
0000 XXX Xxxxxxxxx, Xxxxx 000
Xxxxxx, XX 00000-0000
Attention: General Counsel
or to such other address as may have been furnished to Indemnitee by the Company
or to the Company by Indemnitee, as the case may be.
SECTION 20. CONTRIBUTION. To the fullest extent permissible under
applicable law, if the indemnification provided for in this Agreement is
unavailable to Indemnitee for any reason whatsoever, the Company, in lieu of
indemnifying Indemnitee, shall contribute to the amount incurred by Indemnitee,
whether for judgments, fines, penalties, excise taxes, amounts paid or to be
paid in settlement and/or for Expenses, in connection with any claim relating to
an indemnifiable event under this Agreement, in such proportion as is deemed
fair and reasonable in light of all of the circumstances of such Proceeding in
order to reflect (i) the relative benefits received by the Company and
Indemnitee as a result of the event(s) and/or transaction(s) giving cause to
such Proceeding; and/or (ii) the relative fault of the Company (and its
directors, officers, employees and agents) and Indemnitee in connection with
such event(s) and/or transaction(s).
SECTION 21. GOVERNING LAW; SUBMISSION TO JURISDICTION; APPOINTMENT OF AGENT
FOR SERVICE OF PROCESS. This Agreement and the legal relations among the parties
shall be governed by, and construed and enforced in accordance with, the laws of
the Yukon Territory and the laws of Canada applicable therein, without regard to
its conflict of laws rules.
SECTION 22. MISCELLANEOUS. Use of the masculine pronoun shall be deemed to
include usage of the feminine pronoun where appropriate. All references in this
Agreement to Sections shall be deemed to be references to Sections of this
Agreement unless the context indicates otherwise.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first above written.
COMPANY: APOLLO GOLD CORPORATION
By: _____________________________
R. Xxxxx Xxxxxxx, President
INDEMNITEE:
__________________________________
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