Exhibit
10.1
THIS
INDEMNIFICATION AGREEMENT (the “Agreement”) dated as of
______________, 20__, is made by and between Royal Gold, Inc., a Delaware
corporation (the “Corporation”), and the
undersigned member of the Board of Directors or officer, manager, employee,
agent or fiduciary of the Corporation (“Indemnitee”).
WHEREAS,
the Corporation is aware that competent and experienced persons are increasingly
reluctant to serve as directors, officers, managers, employees, agents or
fiduciaries of corporations unless they are protected by comprehensive liability
insurance and indemnification, due to increased exposure to litigation costs and
risks resulting from their service to such corporations, and due to the fact
that the exposure frequently bears no reasonable relationship to the
compensation of such directors, officers, managers, employees and other agents
or fiduciaries;
WHEREAS,
the Corporation's Amended and Restated Bylaws (as amended from time to time, the
“Bylaws”), the
Corporation’s Amended Certificate of Incorporation (as amended from time to
time, the “Certificate”)
and the Delaware General Corporation Law (the “DGCL”), under which the
Corporation is organized, empower the Corporation to indemnify its directors,
officers, employees, agents and fiduciaries by agreement and to indemnify
persons who serve, at the request of the Corporation, as the directors,
officers, employees, agents or fiduciaries of other corporations, partnerships,
joint ventures, trusts or other or enterprises, and expressly provides that the
indemnification provided by the Certificate, the Bylaws and the DGCL are not
exclusive;
(a) Change in
Control. The term “Change in Control” shall mean
a change in the possession, directly or indirectly, of the power to direct or
cause the direction of the management and policies of the Corporation or any
successor in interest to the Corporation, whether through the ownership of
voting securities, by contract or otherwise. A Change in Control
shall be deemed to have occurred if any of the following occur after the date of
this Agreement: (i) any “person” (as such term is used
in Sections 13(d)(3) and 14(d)(2) of the Securities Exchange Act of 1934, as
amended (the “Exchange
Act”)) other than the Corporation, a trustee or other fiduciary holding
securities under an employee benefit plan of the Corporation or a corporation
owned directly or indirectly by the stockholders of the Corporation in
substantially the same proportions as their ownership of stock of the
Corporation, becomes the “beneficial owner” (as defined
in Rule 13d-3 promulgated under the Exchange Act), directly or indirectly, of
securities of the Corporation representing 15% or more of the total voting power
represented by the Corporation's then outstanding Voting Securities,
(ii) during any period of two consecutive years, Continuing Directors cease
for any reason to constitute a majority of the members of the Board of
Directors, (iii) the death, removal or resignation of [three] or more Continuing
Directors during any 12 month period, (iv) the stockholders of the
Corporation approve (A) a merger or consolidation of the Corporation with any
other entity 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 60% of the total voting
power represented by the Voting Securities of the Corporation or such surviving
entity outstanding immediately after such merger or consolidation, or (B) a plan
of dissolution or liquidation of the Corporation or an agreement for the sale,
lease, conveyance, disposition or other transfer by the Corporation of (in one
transaction or a series of transactions) all or substantially all of the
Corporation's assets, or (v) there occurs any other event of a nature that would
be required to be reported in response to Item 6(e) of Schedule 14A of
Regulation 14A (or a response to any similar item on any similar schedule or
form) promulgated under the Exchange Act, whether or not the Corporation is then
subject to such reporting requirement.
(d) Corporation. References
to the “Corporation”
shall include, in addition to the Corporation, any constituent corporation
(including any constituent of a constituent) absorbed in a consolidation or
merger to which the Corporation (or any of its wholly owned subsidiaries) is or
was a party which, if its separate existence had continued, would have had power
and authority to indemnify its directors, officers, managers, employees, agents
or fiduciaries, so that if Indemnitee is or was a director, manager, officer,
employee, agent, control person, or fiduciary of such constituent corporation,
or is or was serving at the request of such constituent corporation as a
director, officer, manager, employee, control person, agent or fiduciary of
another corporation, partnership, joint venture, employee benefit plan, trust or
other enterprise, Indemnitee shall stand in the same position under the
provisions of this Agreement with respect to the resulting or surviving
corporation as Indemnitee would have with respect to such constituent
corporation if its separate existence had continued.
(e) Expenses. The
term “Expenses” shall
include, without limitation, any judgments, fines and penalties against
Indemnitee in connection with a Proceeding; amounts paid by Indemnitee in
settlement of a Proceeding; and all attorneys' fees and disbursements,
accountants' fees, private investigation fees and disbursements, retainers,
court costs, transcript costs, fees of experts, fees and expenses of witnesses,
travel expenses, duplicating costs, printing and binding costs, telephone
charges, postage, delivery service fees, and all other disbursements, or
expenses, reasonably incurred by or for Indemnitee in connection with
prosecuting, defending, preparing to prosecute or defend, investigating, being
or preparing to be a witness in a Proceeding or establishing Indemnitee's right
of entitlement to indemnification for any of the foregoing. Expenses
also shall include Expenses incurred in connection with any appeal resulting
from any Proceeding, including without limitation, the premium, security for,
and other costs relating to any cost bond, supersedeas bond or other bond or its
equivalent.
(i) Proceeding. The
term “Proceeding” shall
include any threatened, pending or completed action, suit, inquiry, proceeding,
arbitration or alternative dispute resolution mechanism, investigation (whether
designated by the investigative agency as a formal investigation or otherwise),
administrative hearing or any other actual, threatened or completed proceeding,
whether brought by or in the right of the Corporation or otherwise and whether
of a civil, criminal, administrative, regulatory or investigative nature, in
which Indemnitee was, is or will be involved as a party, as a witness or
otherwise, by reason of the fact that Indemnitee is or was a director, officer,
manager, employee, agent or fiduciary of the Corporation, by reason of any
action taken by Indemnitee or of any inaction on Indemnitee's part while acting
as a director, officer, manager, employee, agent or fiduciary or by reason of
the fact that Indemnitee is or was serving at the request of the Corporation as
a director, officer, manager, employee, agent or fiduciary of another
corporation, partnership, joint venture, trust, limited liability company or
other enterprise; in each case whether or not Indemnitee is acting or serving in
any such capacity at the time any liability or expense is incurred for which
indemnification or reimbursement can be provided under this Agreement; provided
that any such action, suit or proceeding which is brought by Indemnitee against
the Corporation or directors, officers, managers, employees, agents or
fiduciaries of the Corporation shall not be deemed a Proceeding, except
(i) with respect to actions or proceedings to establish or enforce a right
to indemnity under this Agreement or any other agreement or insurance policy or
under the Certificate or Bylaws now or hereafter in effect, (ii) in
specific cases if the Board of Directors has approved the initiation or bringing
of such Proceeding, or (iii) as otherwise required under the DGCL,
regardless of whether Indemnitee ultimately is determined to be entitled to such
indemnification, advance expense payment or insurance recovery, as the case may
be.
(k) Serving at the Request of
the Corporation. References to “serving at the request of the
Corporation” shall include any service as a director, officer, manager,
employee, controlling person, agent or fiduciary of the Corporation that imposes
duties on, or involves services by, such director, officer, manager, employee,
controlling person, agent or fiduciary with respect service as a director,
officer, manager, employee, control person, agent or fiduciary of the
Corporation or of another corporation, partnership, joint venture, employee
benefit plan, trust or other enterprise.
(n) To the Fullest Extent
Authorized or Permitted by Law. The phrase “to the fullest extent authorized or
permitted by law” shall include, but not be limited to: (i) to the
fullest extent authorized or permitted by law, even if such indemnification is
not specifically authorized by the other provisions of this Agreement, the
Certificate or Bylaws or by statute; (ii) to the fullest extent authorized or
permitted by the provision of the DGCL that authorizes or contemplates
additional indemnification by agreement, or the corresponding provision of any
amendment to or replacement of the DGCL or such provision thereof; (iii) to the
fullest extent authorized or permitted by any amendments to or replacements of
the DGCL or any other applicable law, statute or rule adopted after the date of
this Agreement that expands the right of a corporation to indemnify a member of
its Board of Directors or an officer, employee, controlling person, agent or
fiduciary; and (iv) in the event of any amendments to or replacements of the
DGCL or any applicable law, statute or rule that narrows the right of a
corporation to indemnify a member of its Board of Directors or an officer,
employee, agent or fiduciary, and to the extent such amendments and/or
replacements are not otherwise required by such law, statute or rule to be
applied to this Agreement, to the fullest extent permitted pursuant to this
Agreement as of the date hereof.
The
Corporation hereby agrees to hold harmless and indemnify Indemnitee to the
fullest extent authorized or permitted by law. In furtherance of the
foregoing indemnification, and without limiting the generality
thereof:
(a) Proceedings Other Than
Proceedings by or in the Right of the Corporation. Indemnitee
shall be entitled to the rights of indemnification provided in this Section 2(a) if, by
reason of his Corporate Status, he is, or is threatened to be made, a party to
or participant in any Proceeding other than a Proceeding by or in the right of
the Corporation. Pursuant to this Section 2(a),
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 in a manner he reasonably believed to be
in or not opposed to the best interests of the Corporation and, with respect to
any criminal Proceeding, had no reasonable cause to believe his conduct was
unlawful.
(b) Proceedings by or in the
Right of the Corporation. Indemnitee shall be entitled to the
rights of indemnification provided in this Section 2(b) if, by
reason of his Corporate Status, he is, or is threatened to be made, a party to
or participant in any Proceeding brought by or in the right of the Corporation
to procure a judgment in its favor. Pursuant to this Section 2(b),
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 and in a manner he reasonably believed to be in or not opposed to
the best interests of the Corporation; provided, however, 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 finally adjudged to be liable to the Corporation unless and to
the extent that the Court of Chancery of the State of Delaware shall determine,
upon application that, despite the adjudication of liability but in view of all
the circumstances of the case, the Indemnitee is fairly and reasonably entitled
to indemnity for such Expenses which the Delaware Court of Chancery or such
other court shall deem proper.
(c) Corporation Jointly Liable;
Shared Payment. Without diminishing or impairing the
obligations of the Corporation set forth in the preceding subparagraph, if, for
any reason, Indemnitee shall elect or be required to pay all or any portion of
any Expenses in any threatened, pending or completed Proceeding in which
Corporation is jointly liable with Indemnitee (or would be if joined in such
Proceeding), the Corporation shall contribute to the amount of Expenses actually
incurred and paid or payable by Indemnitee in proportion to the relative
benefits received by the Corporation and all officers, directors or employees of
the Corporation other than Indemnitee who are jointly liable with him (or would
be if joined in such Proceeding), on the one hand, and Indemnitee, on the other
hand, from the transaction from which such Proceeding arose; provided, however,
that the proportion determined on the basis of relative benefit may, to the
extent necessary to conform to law, be further adjusted by reference to the
relative fault of the Corporation and all officers, directors or employees of
the Corporation other than Indemnitee who are jointly liable with Indemnitee (or
would be if joined in such Proceeding), on the one hand, and Indemnitee, on the
other hand, in connection with the events that resulted in such Expenses,
judgments, penalties, fines or settlement amounts, as well as any other
equitable considerations which the law may require to be
considered. The relative fault of the Corporation and all officers,
directors or employees of the Corporation other than Indemnitee who are jointly
liable with him (or would be if joined in such Proceeding), on the one hand, and
Indemnitee, on the other hand, shall be determined by reference to, among other
things, the degree to which their actions were motivated by intent to gain
personal profit or advantage, the degree to which their liability is primary or
secondary, and the degree to which their conduct is active or
passive.
The
Corporation hereby covenants and agrees that, so long as the Indemnitee shall
continue to serve as a member of its Board of Directors or an officer, employee,
controlling person, agent or fiduciary of the Corporation and thereafter so long
as the Indemnitee shall be subject to any possible Proceeding by reason of the
fact that the Indemnitee was a member of its Board of Directors or an officer,
employee, controlling person, agent or fiduciary of the Corporation, the
Corporation shall promptly maintain in full force and effect directors’ and
officers’ liability insurance (“D&O Insurance”) in
reasonable amounts from established and reputable insurers, provided that D&O
Insurance is available to the Corporation on commercially reasonable
terms. In all policies of D&O Insurance, the Indemnitee shall be
named as an insured in such a manner as to provide the Indemnitee the same
rights and benefits as are accorded to the most favorably insured of the
Corporation’s directors, if the Indemnitee is a director; or of the
Corporation’s officers, if the Indemnitee is not a director of the corporation
but is an officer; or of the Corporation’s key employees, if the Indemnitee is
not a director or officer of the Corporation. If the Corporation
decides to allow D&O Insurance coverage to lapse because D&O Insurance
is not available to the Corporation on commercially reasonable terms, the
Corporation shall so notify Indemnitee as soon as reasonably
practicable. Upon any Change in Control, the Corporation shall obtain
continuation and/or “tail” coverage for Indemnitee for a period of no less than
six years following the date of such Change in Control.
(a) Security. To
the extent requested by Indemnitee and (i) approved by the Board or (ii) in the
event of a Threatened Change in Control or a Change in Control, the Corporation
shall at any time and from time to time provide security to Indemnitee for the
Corporation’s obligations hereunder through an irrevocable bank line of credit,
funded trust, letter of credit or other collateral or financing arrangement
(each such security arrangement, the “Security”). The
Security, once provided to Indemnitee, may not be revoked or released without
the prior written consent of Indemnitee. The Security shall be in an
amount sufficient to satisfy any and all Expenses reasonably anticipated at the
time of each such request to be incurred in connection with investigating,
preparing for, participating in or defending any Proceedings, and any and all
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 judgments, fines penalties and amounts paid in settlement) in
connection with any and all Proceedings from time to time actually paid or
claimed, reasonably anticipated or proposed to be paid. The amount or
amounts of such Security shall be determined by mutual agreement of the
Indemnitee and the Corporation or, if the Corporation and the Indemnitee are
unable to reach such an agreement, by Independent Legal Counsel selected in
accordance with Section 9(c)
hereof.
(b) Establishment of a
Trust. To the extent the Corporation provides the Security
pursuant to Section 6(a) in the form of a funded trust (the “Trust”), the Corporation may,
in its discretion, establish one collective trust for the benefit of
all persons who may have rights similar to those of the Indemnitee and the Trust
shall form part of such single collective trust. The trustee of the
Trust (the “Trustee”)
shall be a bank or trust company or other individual or entity chosen by the
Corporation and reasonably acceptable to the Indemnitee. Nothing in
this Section
6(b) shall relieve the Corporation of any of its obligations under this
Agreement. The terms of the Trust shall provide that, except upon the
consent of both the Indemnitee and the Corporation, upon a Change in Control (i)
the Trust shall not be revoked or the principal thereof invaded, without the
written consent of the Indemnitee, (ii) the Trustee shall advance, within two
(2) business days of a request by the Indemnitee and upon the execution and
delivery to the Corporation of an undertaking providing that the Indemnitee
undertakes to repay the advance to the extent that it is ultimately determined
that Indemnitee is not entitled to be indemnified by the Corporation, any and
all Expenses to the Indemnitee, (iii) the Trust shall continue to be funded by
the Corporation in accordance with the funding obligations 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 mutual agreement by the Indemnitee and the Corporation or, if
the Indemnitee and the Corporation are unable to reach such an agreement, by
Independent Legal Counsel selected in accordance with Section 9(c) hereof,
that the Indemnitee has been fully indemnified under the terms of this
Agreement. The Trust shall be governed by Delaware law (without
regard to its conflicts of laws rules) and the Trustee shall consent to the
exclusive jurisdiction of the Delaware Court.
The
Corporation shall have the right to approve Indemnitee’s selection of counsel
with respect to any Proceeding (which approval shall not be unreasonably
withheld and shall only be withheld where there is a conflict of interest with
respect to such counsel and the Corporation under applicable ethical rules or
where such counsel is not experienced in matters of the kind
presented). Where it is feasible to do so without impairing the
Indemnitee’s ability to defend himself or herself in a Proceeding, Indemnitee
agrees to cooperate with the Corporation to reduce expenses and maximize the
insurance coverage applicable to a particular Proceeding, including without
limitation, by agreeing to be jointly represented by legal counsel with other
directors, officers, employees, agents or fiduciaries of the Corporation who are
also involved with the Proceeding; provided, however, that
nothing in this sentence shall be construed to prevent Indemnitee from retaining
his or her separate counsel, at the expense of the Corporation, where there
would be a conflict of interest, as determined by counsel for Indemnitee, as a
result of any such joint representation.
(b) Undertaking. The
obligation of the Corporation to make an advance payment of Expenses to
Indemnitee pursuant to Section 8(a) (an
“Expense Advance”) shall
be subject to the condition that, if, when and to the extent that a Reviewing
Party determines that Indemnitee would not be permitted to be so indemnified
under applicable law, this Agreement, the Certificate or the Bylaws, the
Corporation shall be entitled to be reimbursed by Indemnitee (who hereby
undertakes and agrees to reimburse the Corporation) for all such amounts
theretofore paid; provided, however, that if Indemnitee has commenced or
thereafter commences legal proceedings in a court of competent jurisdiction to
secure a determination that Indemnitee should be indemnified under applicable
law, this Agreement, the Certificate or the Bylaws, any determination made by
the Reviewing Party that Indemnitee would not be permitted to be indemnified
under applicable law shall not be binding and 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). Indemnitee’s obligation to
reimburse the Corporation for any Expense Advance shall be unsecured and no
interest shall be charged by the Corporation in connection with any such amounts
determined to be owed by Indemnitee.
(c) Limitation on Expense
Advance. Notwithstanding any of the foregoing provisions in
this Section 8,
the Corporation shall not be obligated to make an Expense Advance to Indemnitee
in connection with a lawsuit filed directly by the Corporation against
Indemnitee if an absolute majority of the members of the Board of Directors
reasonably determines in good faith, within ten (10) days of Indemnitee’s
request for an Expense Advance, that the facts known to them at the time such
determination is made demonstrate clearly and convincingly that Indemnitee acted
in bad faith after Indemnitee has had an opportunity, with counsel, to present
his case to the Board. If such a determination is made, Indemnitee
may have such decision reviewed by another forum, in the manner set forth in
Section 10,
with all references therein to “indemnification” being deemed to refer to
“Expense Advance” and the burden of proof shall be on the Corporation to
demonstrate clearly and convincingly that, based on the facts known at the time,
Indemnitee acted in bad faith. The Corporation may not avail itself
of this Section
8(c) as to a given lawsuit if, at any time after the occurrence of the
activities or omissions that are the primary focus of the lawsuit, the
Corporation has undergone a Change in Control.
(b) Reviewing Party/Cooperation
by Indemnitee. Upon written request by Indemnitee for
indemnification pursuant to the first sentence of Section 9(a) hereof,
a determination, if required by applicable law, with respect to Indemnitee’s
entitlement thereto shall be made in the specific case by one of the following
three methods, which shall be at the election of the Indemnittee, (i) by a
majority of the disinterested directors, even though less than a quorum, (ii) by
Independent Legal Counsel or (iii) by the stockholders. Indemnitee
shall cooperate with the Reviewing Party and provide to the Reviewing Party upon
reasonable advance request any documentation or information which is reasonably
available to Indemnitee and reasonably necessary to such
determination. Nothing in this Agreement shall require Indemnitee to
waive any of his rights under the United States Constitution or to provide
information which is privileged or otherwise protected from
disclosure. Any Independent Legal Counsel, member of the Board, or
stockholder of the Corporation shall act reasonably and in good faith in making
a determination under the Agreement of Indemnitee's entitlement to
indemnification. Any costs or expenses (including attorneys’ fees and
disbursements) incurred by Indemnitee in so cooperating with the Reviewing Party
shall be borne by the Corporation (irrespective of the determination as to
Indemnitee’s entitlement to indemnification) and the Corporation hereby
indemnifies and agrees to hold Indemnitee harmless therefrom. If the
Reviewing Party shall not have made a determination within thirty (30) days
after receipt by the Corporation of the request therefor, the requisite
determination of entitlement to indemnification shall be deemed to have been
made and Indemnitee shall be entitled to such indemnification, thereto;
provided, however, that the foregoing provisions of this Section 9(b) shall
not apply if the determination of entitlement to indemnification is to be made
by the stockholders and if within fifteen (15) days after receipt by the
Corporation of the request for such determination the Board resolves to submit
such determination to the stockholders for their consideration at the next
annual meeting thereof and such determination is made thereat.
(c) Independent Legal
Counsel. If the determination of entitlement to
indemnification is to be made by Independent Legal Counsel pursuant to Section 9(b) hereof,
the Independent Legal Counsel shall be selected as provided in this Section
9(c). The Independent Legal Counsel shall be selected by
Indemnitee (unless Indemnitee shall request that such selection be made by the
Board). Indemnitee or the Corporation, as the case may be, may,
within ten (10) days after such written notice of selection shall have been
given, deliver to the Corporation or to Indemnitee, as the case may be, a
written objection to such selection; provided, however, that such objection may
be asserted only on the ground that the Independent Legal Counsel so selected
does not meet the requirements of “Independent Legal Counsel” as defined in
Section 1(g)
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 Legal Counsel. If a written
objection is made and substantiated, the Independent Legal Counsel selected may
not serve as Independent Legal Counsel unless and until such objection is
withdrawn or a court has determined that such objection is without
merit. If, within thirty (30) days after submission by Indemnitee of
a written request for indemnification pursuant to Section 9(a) hereof,
no Independent Legal Counsel shall have been selected and not objected to,
either the Corporation or Indemnitee may seek judicial resolution of any
objection which shall have been made by the Corporation or Indemnitee to the
other’s selection of Independent Legal Counsel and/or for the appointment as
Independent Legal Counsel of a person selected by the court or by such other
person as the court shall designate, and the person with respect to whom all
objections are so resolved or the person so appointed shall act as Independent
Legal Counsel under Section 9(b)
hereof. The Corporation shall pay any and all reasonable fees and
expenses of Independent Legal Counsel incurred by such Independent Legal Counsel
in connection with acting pursuant to Section 9(b) hereof,
and the Corporation shall pay all reasonable fees and expenses incident to the
procedures of this Section 9(c),
regardless of the manner in which such Independent Legal Counsel was selected or
appointed.
(d) Presumption in Favor of
Indemnification. In making a determination with respect to
entitlement to indemnification hereunder, the Reviewing Party shall presume that
Indemnitee is entitled to indemnification under this agreement if Indemnitee has
submitted a request for indemnification in accordance with Section
9(a). For purposes of this Agreement, the termination of any
Proceeding by judgment, order, settlement (whether with or without court
approval) or conviction, or upon a plea of nolo contendere, or its equivalent,
shall not create a presumption that 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. In addition,
neither the failure of the Reviewing Party to have made a determination as to
whether Indemnitee has met any particular standard of conduct or had any
particular belief, nor an actual determination by the Reviewing Party that
Indemnitee has not met such standard of conduct or did not have such belief,
prior to the commencement of legal proceedings by Indemnitee to secure a
judicial determination that Indemnitee should be indemnified under applicable
law, shall be a defense to Indemnitee's claim or create a presumption that
Indemnitee has not met any particular standard of conduct or did not have any
particular belief. In connection with any determination by the Reviewing Party
or otherwise as to whether Indemnitee is entitled to be indemnified hereunder,
the burden of proof and the burden of persuasion, by clear and convincing
evidence, shall be on the Corporation to establish that Indemnitee is not so
entitled.
(e) Presumption of Good
Faith. Indemnitee shall be presumed to have acted in good
faith if Indemnitee’s action is based on the records or books of account of the
Corporation, including financial statements, or on information supplied to
Indemnitee by the officers of the Corporation in the course of their duties, or
on the advice of legal counsel for the Corporation or on information or records
given or reports made to the Corporation by an independent certified public
accountant, by a financial advisor or by an appraiser or other expert selected
with reasonable care by the Corporation. In addition, the knowledge
and/or actions, or failure to act, of any other director, officer, manager,
trustee, partner, managing member, fiduciary, agent or employee of the
Corporation shall not be imputed to Indemnitee for purposes of determining the
right to indemnification under this Agreement. Whether or not the
foregoing provisions of this Section 9(e) are
satisfied, it shall in any event be presumed (unless there is clear and
convincing evidence to the contrary) that Indemnitee has at all times acted in
good faith and in a manner he reasonably believed to be in or not opposed to the
best interests of the Corporation. Anyone seeking to overcome this
presumption shall have the burden of proof and the burden of persuasion, by
clear and convincing evidence.
12. Continuation of
Indemnity. All agreements and obligations of the Corporation
contained herein shall continue during the period Indemnitee is a director,
officer, employee or agent of the Corporation (or is or was serving at the
request of the Corporation as a director, officer, employee, controlling person,
agent or fiduciary of another corporation, partnership, joint venture, trust,
limited liability company or other enterprise) and shall continue thereafter so
long as Indemnitee shall be subject to any possible Proceeding by reason of the
fact that Indemnitee was a member of its Board of Directors or an officer,
employee, controlling person, agent or fiduciary of the Corporation or serving
in any other capacity referred to herein.
(c) Binding Effect; Successors
and Assigns. This Agreement shall be binding upon the
Corporation, its successors and assigns, and shall inure to the benefit of
Indemnitee, Indemnitee’s heirs, personal representatives and assigns and to the
benefit of the Corporation, its successors and assigns. The
Corporation shall require and cause any successor (whether direct or indirect,
and whether by purchase, merger, consolidation or otherwise) to all,
substantially all, or a substantial part, of the business or assets of the
Corporation, by written agreement in form and substance satisfactory to
Indemnitee, expressly to assume and agree to perform this Agreement in the same
manner and to the same extent that the Corporation would be required to perform
if no such succession had taken effect.
[SIGNATURE
PAGE FOLLOWS]
COMPANY:
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ROYAL
GOLD, INC.
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a
Delaware corporation
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By:
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Name:
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Title:
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INDEMNITEE:
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Signature:
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Name:
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