INDEMNIFICATION AGREEMENT (NOVEMBER 2006)
Exhibit 10.1
(NOVEMBER 2006)
THIS INDEMNIFICATION AGREEMENT (the “Agreement") dated as of ___, 200_, is made by
and between Royal Gold, Inc., a Delaware corporation (the “Corporation"), and the undersigned
member of the Board of Directors or officer of the Corporation (“Indemnitee").
WHEREAS, the Corporation’s Amended Certificate of Incorporation (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 and agents by agreement and to
indemnify persons who serve, at the request of the Corporation, as the directors, officers,
employees or agents of other corporations or enterprises, and expressly provides that the
indemnification provided by the Certificate and the DGCL are not exclusive;
WHEREAS, such Certificate and the DGCL contemplate that contracts, insurance policies and
other financial arrangements may be entered into with respect to indemnification of directors,
officers, employees or agents;
WHEREAS, the applicability, amendment and enforcement of statutory provisions and provisions
of the Certificate and the Corporation’s bylaws (the “Bylaws") have raised questions concerning the
adequacy and reliability of the protection afforded directors and officers;
WHEREAS, it is reasonable, prudent and necessary for the Corporation to obligate itself
contractually to indemnify Indemnitee so that Indemnitee will serve or continue to serve the
Corporation free from undue concern that Indemnitee will not be adequately protected; and
WHEREAS, Indemnitee is willing to serve, continue to serve and to take on additional service
for or on behalf of the Corporation on condition that Indemnitee be so indemnified;
NOW, THEREFORE, in consideration of the premises and the covenants contained herein, the
Corporation and Indemnitee do hereby covenant and agree as follows:
1. Definitions. As used in this Agreement,
(a) The term “Proceeding” shall include any threatened, pending or completed action, suit,
inquiry or proceeding, whether brought by or in the right of the Corporation or otherwise and
whether of a civil, criminal, administrative 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, employee or agent 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, employee or
agent or by reason of the fact that Indemnitee is or was serving at the request of the Corporation
as a director, officer, employee or agent 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, employees or agents of the Corporation shall not be deemed a Proceeding,
except (i) with respect to actions or proceedings to establish or enforce a right to indemnify
under this Agreement or any other agreement or insurance policy or under the Corporation’s
Certificate or Bylaws now or hereafter in effect relating to Proceedings for Indemnifiable Events
(as defined below), (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.
(b) 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.
(c) 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 Corporation” shall include any service as a director, officer,
employee, controlling person, agent or fiduciary of the Corporation which imposes duties on, or
involves services by, such director, officer, employee, controlling person, agent or fiduciary with
respect to an employee benefit plan, its participants or beneficiaries.
(d) The term “substantiating documentation” shall mean, as applicable (A) copies of bills or
invoices for costs incurred by or for Indemnitee, or copies of court or agency orders or decrees or
settlement agreements, as the case may be, accompanied by a sworn statement from Indemnitee that
such bills, invoices, court or agency orders or decrees or settlement agreements, represent costs
or liabilities meeting the definition of “Expenses” herein and/or (B) 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.
(e) For purposes of this Agreement, references to the “Corporation” shall include, in addition
to the resulting corporation, any constituent corporation (including any constituent of a
constituent) absorbed in a consolidation or merger which, if its separate existence had continued,
would have had power and authority to indemnify its directors, officers, employees, agents or
fiduciaries, so that if Indemnitee is or was a director, 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, 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.
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(f) For purposes of this Agreement a “Change in Control” shall be deemed to have occurred if
(i) any “person” (as such term is used in Sections 13(d)(3) and 14(d)(2) of the Securities Exchange
Act of 1934) other than a trustee or other fiduciary holding securities under an employee benefit
plan of the Corporation or a corporation owned directly or indirectly by the stockholders of the
Corporation in substantially the same proportions as their ownership of stock of the Corporation,
(A) who is or becomes the beneficial owner, directly or indirectly, of securities of the
Corporation representing 10% or more of the combined voting power of the Corporation’s then
outstanding Voting Securities, increases his or her beneficial ownership of such securities by 5%
or more over the percentage so owned by such person, or (B) becomes the “beneficial owner” (as
defined in Rule 13d-3 under said Exchange Act), directly or indirectly, of securities of the
Corporation representing more than 15% of the total voting power represented by the Corporation’s
then outstanding Voting Securities, (ii) during any period of two consecutive years, individuals
who at the beginning of such period constitute the Board of Directors of the Corporation and any
new director whose election by the Board of Directors or nomination for election by the
Corporation’s stockholders was approved by a vote of at least two-thirds of the directors then
still in office who either were directors at the beginning of the period or whose election or
nomination for election was previously so approved, cease for any reason to constitute a majority
thereof, or (iii) the stockholders of the Corporation approve a merger or consolidation of the
Corporation with any other corporation other than a merger or consolidation which would result in
the Voting Securities of the Corporation outstanding immediately prior thereto continuing to
represent (either by remaining outstanding or by being converted into Voting Securities of the
surviving entity) at least 80% of the total voting power represented by the Voting Securities of
the Corporation or such surviving entity outstanding immediately after such merger or
consolidation, or the stockholders of the Corporation approve a plan of complete liquidation of the
Corporation or an agreement for the sale or disposition by the Corporation of (in one transaction
or a series of transactions) all or substantially all of the Corporation’s assets.
(g) For purposes of this Agreement, “Independent Legal Counsel” shall mean a law firm, or a
member of a law firm, that is experienced in the matters of corporation law and neither presently
is, nor in the past three years has been, retained to represent (i) the Corporation or the
Indemnitee in any matter material to either such party or (ii) any other party to the Proceeding
giving rise to a claim for indemnification hereunder. Notwithstanding the foregoing, the term
“Independent Legal Counsel” shall not include any person who, under the applicable standards of
professional conduct then prevailing, would have a conflict of interest in representing either the
Corporation or an Indemnitee in any action to determine the Indemnitee’s rights pursuant to this
agreement.
(h) For purposes of this Agreement, a “Reviewing Party” shall mean the party elected pursuant
to Section 2(c) of this Agreement.
(i) For purposes of this Agreement, “Voting Securities” shall mean any securities of the
Corporation that vote generally in the election of directors.
2. Indemnity of Indemnitee.
(a) Agreement to Indemnify. The Corporation hereby agrees to hold harmless and
indemnify Indemnitee to the fullest extent authorized or permitted by law, even if such
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indemnification is not specifically authorized by the other provisions of this Agreement, the
Certificate of Incorporation, the Corporation’s Bylaws or by statute. In the event of any change
after the date of this Agreement in any applicable law, statute or rule which expands the right of
a Delaware corporation to indemnify a member of its Board of Directors or an officer, employee,
controlling person, agent or fiduciary, it is the intent of the parties hereto that Indemnitee
shall enjoy by this Agreement the greater benefits afforded by such change. In the event of any
change in any applicable law, statute or rule which narrows the right of a Delaware corporation 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.
(b) Additional Indemnification.
(i) Subject only to the limitations set forth in Section 2(b)(ii), the Corporation
further agrees to indemnify and hold harmless Indemnitee, together with Indemnitee’s partners,
affiliates, employees, employers, agents and spouse and each person who controls any of them or who
may be liable within the meaning of Section 15 of the Securities Act of 1933, as amended (the
“Securities Act"), or Section 20 of the Securities Exchange Act of 1934, as amended (the “Exchange
Act"), to the fullest extent permitted by law if Indemnitee was, is, becomes or is threatened to be
made a party to a Proceeding against (A) any and all Expenses, including all interest, assessments
and other charges paid or payable in connection with or in respect of such Expenses, incurred by
Indemnitee by reason of (or arising in part out of) any event or occurrence related to the fact
that Indemnitee is or was a director, officer, employee, controlling person, agent or fiduciary of
the Corporation or any subsidiary 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 or other enterprise, or by reason of any action or
inaction on the part of Indemnitee while serving in such capacity including, without limitation,
any and all losses, claims, damages, expenses and liabilities, joint or several (including any
investigation, legal and other expenses incurred in connection with, and any amount paid in
settlement of, any action, suit, proceeding or any claim asserted) under the Securities Act, the
Exchange Act or other federal or state statutory law or regulation, at common law or otherwise,
which relate directly or indirectly to the registration, purchase, sale or ownership of any
securities of the Corporation or to any fiduciary obligation owed with respect thereto, in either
case if the Indemnitee acted in good faith and in a manner the Indemnitee 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 the conduct was unlawful and (B) otherwise to the
fullest extent as may be provided to Indemnitee by the Corporation under the non-exclusivity
provisions of the Corporation’s Bylaws and the DGCL.
(ii) Limitations on Additional Indemnity. No indemnity pursuant to Section
2(b) hereof shall be paid by the Corporation:
(A) with respect to remuneration paid to Indemnitee if it shall be determined by a
final judgment or other final adjudication that such remuneration was in violation of law;
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(B) on account of any suit in which judgment is rendered against Indenmnitee for an
accounting of profits made from the purchase or sale by Indemnitee of securities of
Corporation pursuant to the provisions of Section 16(b) of the Securities Exchange Act of
1934 and amendments thereto or similar provisions of any federal, state or local statutory
law;
(C) on account of Indemnitee’s conduct which is the subject of an action suit or
proceeding brought by or in the right of the Corporation and approved by the majority of the
Board which alleges willful misappropriation of corporate assets by Indemnitee, disclosure
of material confidential information in violation of Indemnitee’s fiduciary or contractual
obligations to Corporation or any other willful and deliberate breach in bad faith of
Indemnitee’s duty to Corporation or its stockholders;
(D) if applicable law so provides, if 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 that such indemnification may be made;
(E) on account of Indemnitee’s conduct which is finally adjudged in a final decision by
a court having jurisdiction in the matter to have been knowingly fraudulent or deliberately
dishonest, or to constitute willful misconduct;
(F) on account of any action, claim or proceeding (other than a proceeding referred to
in Sections 2(b), (2)(g) or 11 hereof) initiated by the Indemnitee against
the Corporation unless such action, claim or proceeding was authorized in the specific case
by action of the Board of Directors;
(G) if a final decision by a court having jurisdiction in the matter shall determine
that such indemnification is not lawful (and, in this respect, both Corporation and
Indemnitee have been advised that the Securities and Exchange Commission believes that
indemnification for liabilities arising under the federal securities laws is against public
policy and is, therefore, unenforceable and that claims for indemnification should be
submitted to appropriate courts for adjudication);
(H) subject to Section 2(c), if the Reviewing Party shall have determined (in a
written opinion, in any case in which the Independent Legal Counsel is involved) that
Indemnitee would not be permitted to be indemnified with respect to a specific matter under
applicable law; provided that any such finding shall not prejudice Indemnitee’s right to
indemnification with respect at any other matter; and
(I) unless Indemnitee acknowledges and agrees that the obligation of the Corporation to
make an advance payment of Expenses to Indemnitee pursuant to Section 4 (an “Expense
Advance") shall be subject to the condition that, if, when and to the extent that the
Reviewing Party determines that Indemnitee would not be permitted to be so indemnified under
applicable law, this agreement or the Corporation’s 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
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a court of competent jurisdiction to secure a determination that Indemnitee should be
indemnified under applicable law, this agreement or the Corporation’s 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) Reviewing Party. The Reviewing Party shall, at the election of the Indemnittee,
be (1) selected by a majority of the disinterested directors, even though less than a quorum or (2)
Independent Legal Counsel. If there has been no determination by the Reviewing Party, if the
Reviewing Party determines that Indemnitee substantively would not be permitted to be indemnified
in whole or in part under applicable law, this agreement or under the Corporation’s Bylaws or if
the Corporation has not timely advanced Expenses as set forth in Section 4 hereof, Indemnitee shall
have the right to commence litigation seeking an initial determination by the court or challenging
any such determination by the Reviewing Party or any aspect thereof, including the legal or factual
bases therefor, and the Corporation hereby consents to service of process and to appear in any such
proceeding.
(d) Contribution. If the indemnification provided for in this Section 2 for
any reason, other than statutory limitations set forth under applicable law, is held by a
court of competent jurisdiction to be unavailable to an Indemnitee in respect of any losses,
claims, damages, expenses or liabilities referred to herein and in connection with any Proceeding
in which the Corporation is jointly liable, then the Corporation, in lieu of indemnifying
Indemnitee thereunder, shall contribute to the amount paid or payable by Indemnitee as a result of
such losses, claims, damages, expenses or liabilities (i) in such proportion as is appropriate to
reflect the relative benefits received by the Corporation and Indemnitee, or (ii) if the allocation
provided by clause (i) above is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (i) above but also the
relative fault of the Corporation and Indemnitee in connection with the action or inaction which
resulted in such losses, claims, damages, expenses or liabilities, as well as any other relevant
equitable considerations. In connection with the registration of the Corporation’s securities, the
relative benefits received by the Corporation and Indemnitee shall be deemed to be in the same
respective proportions that the net proceeds from the offering (before deducting expenses) received
by the Corporation and the Indemnitee, in each case as set forth in the table on the cover page of
the applicable prospectus, bear to the aggregate public offering price of the securities so
offered. The relative fault of the Corporation and Indemnitee shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information supplied by the
Corporation or Indemnitee and the parties’ relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission.
The Corporation and Indemnitee agree that it would not be just and equitable if contribution
pursuant to this Section 2(d) were determined by pro rata or per capita allocation or by
any other method of allocation which does not take account of the equitable considerations referred
to in the immediately preceding paragraph. In connection with any registration of the
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Corporation’s securities, in no event and notwithstanding the other provisions of this
Section 2(d) shall an Indemnitee be required to contribute any amount hereunder in excess
of the lesser of (i) that proportion of the total of such losses, claims, damages or liabilities
indemnified against equal to the proportion of the total securities sold under such registration
statement that is being sold by Indemnitee or (ii) the proceeds received by Indemnitee from its
sale of securities under such registration statement. No person found guilty of fraudulent
misrepresentation (within the meaning of Section 10(f) of the Securities Act) shall be entitled to
contribution from any person who was not found guilty of such fraudulent misrepresentation.
(e) Survival Regardless of Investigation. The indemnification and contribution
provided for herein will remain in full force and effect regardless of any investigation made by or
on behalf of Indemnitee or any officer, director, employee, agent or controlling person of
Indemnitee.
(f) Independent Legal Counsel. If the Indemnitee elects to have Independent Legal
Counsel act as the Reviewing Party, Independent Legal Counsel shall be selected by Indemnitee and
approved by the Corporation (which approval shall not be unreasonably withheld and will be deemed
given if not expressly withheld within 10 days of the Indemnitee’s notice of selection). Such
counsel, among other things, shall render its written opinion to the Corporation and Indemnitee as
to whether and to what extent Indemnitee would be permitted to be indemnified under applicable law,
this agreement or the Corporation’s Bylaws. The Corporation agrees to abide by such opinion and to
pay the reasonable fees of the Independent Legal Counsel referred to above and to fully indemnify
such counsel against any and all reasonable expenses (including attorneys’ fees), claims,
liabilities and damages arising out of or relating to this Agreement or its engagement pursuant
hereto.
(g) Mandatory Payment of Expenses. Notwithstanding any other provision of this
Agreement, to the extent that Indemnitee has been successful on the merits or otherwise, including,
without limitation, the dismissal of an action without prejudice, in the defense of any action,
suit, proceeding, inquiry or investigation referred to in Section 2 or in the defense of
any claim, issue or matter therein, Indemnitee shall be indemnified against all Expenses incurred
by Indemnitee in connection therewith.
(h) Security/Financial Arrangements. To the extent requested by the Indemnitee and
approved by the Corporation, or if, after the date hereof, the Corporation agrees that there is a
Change of Control of the Corporation, the Corporation shall at any time and from time to time
provide security or other financial arrangements to the Indemnitee for the Corporation’s
obligations hereunder through an irrevocable bank line of credit, funded trust, letter of credit,
other collateral or other financial arrangement. Any such security or other financial arrangement,
once provided to the Indemnitee, may not be revoked or released without the prior written consent
of the Indemnitee.
3. Choice of Counsel. If Indemnitee is not an officer of the Corporation, Indemnitee,
together with the other directors who are not officers of the Corporation (the “Outside
Directors"), shall be entitled to employ, and be reimbursed for the fees and disbursements of,
counsel separate from that chosen by Indemnitees who are officers of the Corporation. The
principal counsel for Outside Directors (“Principal Counsel") shall be determined by majority
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vote of the Outside Directors, and the Principal Counsel for the Indemnitees who are not
Outside Directors (“Separate Counsel") shall be determined by majority vote of such Indemnitees.
The obligation of the Corporation to reimburse Indemnitee for the fees and disbursements of counsel
hereunder shall not extend to the fees and disbursements of any counsel employed by Indemnitee
other than Principal Counsel or Separate Counsel, as the case may be, provided that (i) Indemnitee
shall have the right to employ Indemnitee’s counsel in any such Proceeding at Indemnitee’s expense
and (ii) if (A) the employment of counsel by Indemnitee has been previously authorized by the
Corporation, (B) Indemnitee shall have reasonably concluded with the advice of counsel that there
is a substantial possibility that Principal Counsel or Separate Counsel, as the case may be, will
have a conflict of interest in representing Indemnitee, or (C) the Corporation shall not continue
to retain Principal Counsel or Separate Counsel, as the case may be, to defend such Proceeding,
then the fees and expenses of Indemnitee’s counsel shall be at the expense of the Corporation.
4. Advances of Expenses. Expenses (other than judgments, penalties, fines and amounts paid in
settlement) incurred by Indemnitee shall be paid by the Corporation, in advance of the final
disposition of the Proceeding, as soon as practicable but in any event no later than 10 days after
receipt of Indemnitee’s written request accompanied by substantiating documentation and
Indemnitee’s undertaking to repay such amount to the extent it is ultimately determined that
Indemnitee is not entitled to indemnification in accordance with the provisions of this Agreement.
No objections based on or involving the question whether such charges meet the definition of
“Expenses,” including any question regarding the reasonableness of such Expenses, shall be grounds
for failure to advance to such Indemnitee, or to reimburse such Indemnitee for, the amount claimed
within such period; and the undertaking of Indemnitee set forth in Section 2(b)(ii)(h) to
repay any such amount to the extent it is ultimately determined that Indemnitee is not entitled to
indemnification shall be deemed to include an undertaking to repay any such amounts determined not
to have met such definition.
5. Right of Indemnitee to Indemnification Upon Application; Procedure Upon Application. Any
indemnification under this Agreement, other than pursuant to Section 4, shall be made no
later than 25 days after receipt by the Corporation of the written request of Indemnitee,
accompanied by substantiating documentation.
(a) Notice/Cooperation by Indemnitee. Indemnitee shall give the Corporation notice in
writing in accordance with Section 14 of this Agreement as soon as practicable of any
Proceeding made against Indemnitee for which indemnification will or could be sought under this
Agreement. Upon receipt of notice of a Proceeding, the Reviewing Party will make a determination,
if required under applicable law, with respect to Indemnitee’s entitlement to indemnification under
this agreement.
(b) No Presumptions; Burden of Proof. In making a determination with respect to
entitlement to indemnification hereunder, the Reviewing Party shall presume (unless there is clear
and convincing evidence to the contrary) that Indemnitee is entitled to indemnification under this
agreement if Indemnitee has submitted a request for indemnification in accordance with Section
5(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
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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 shall be on the
Corporation to establish that Indemnitee is not so entitled.
(c) Notice to Insurers. If, at the time of the receipt by the Corporation of a notice
of a Proceeding pursuant to Section 5(a) hereof, the Corporation has liability insurance in
effect which may cover such Proceeding, the Corporation shall give prompt notice of the
commencement of such Proceeding to the insurers in accordance with the procedures set forth in each
of the Corporation’s policies. The Corporation shall thereafter take all necessary or desirable
action to cause such insurers to pay, on behalf of Indemnitee, all amounts payable as a result of
such action, suit, proceeding, inquiry or investigation in accordance with the terms of such
policies.
6. Indemnification Hereunder Not Exclusive. The indemnification and advancement of expenses
provided by this Agreement shall not be deemed exclusive of any other rights to which Indemnitee
may be entitled under the Certificate, the DGCL, any policy or policies of directors’ and officers’
liabilities insurance, any agreement, or otherwise, both as to action in Indemnitee’s official
capacity and as to action in another capacity while holding such office. However, Indemnitee shall
reimburse the Corporation for amounts paid to Indemnitee pursuant to such other rights to the
extent such payments duplicate any payments received pursuant to this Agreement.
7. 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.
8. Partial Indemnification. If Indemnitee is entitled under any provision of this Agreement
to indemnification by the Corporation for some or a portion of Expenses, but not, however, for the
total amount thereof, the Corporation shall nevertheless indemnify Indemnitee for the portion of
such Expenses to which Indemnitee is entitled.
9. Mutual Acknowledgement. The Corporation and Indemnitee acknowledge that in certain
instances, Federal law or applicable public policy may prohibit the Corporation from indemnifying
its directors, officers, employees, controlling persons, agents or fiduciaries under this Agreement
or otherwise and that the Securities and Exchange Commission
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has taken the position that indemnification is not available for violations of federal
securities law. Indemnitee understands and acknowledges that the Corporation has undertaken or may
be required in the future to undertake with the Securities and Exchange Commission to submit the
question of indemnification to a court in certain circumstances for a determination of the
Corporation’s rights under public policy to indemnify Indemnitee.
10. Settlement of Claims. The Corporation shall not be liable to indemnify indemnitee under
this Agreement for any amounts paid in settlement of any Proceeding effected without the
Corporation’s prior written consent. The Corporation shall not settle any Proceeding in any manner
which would impose any penalty or limitation on Indemnitee without Indemnitee’s prior written
consent. Neither the Corporation nor Indemnitee will unreasonably withhold or delay their consent
to any proposed settlement. The Corporation shall not be liable to indemnify Indemnitee under this
Agreement with regard to any judicial award if the Corporation was not given a reasonable and
timely opportunity, at its expense, to participate in the defense of such action.
11. Enforcement. The Corporation expressly confirms and agrees that it has entered into this
Agreement and assumed the obligations imposed on the Corporation hereby in order to induce
Indemnitee to serve as a director, officer, employee or agent of the Corporation, and acknowledges
that Indemnitee is relying upon this Agreement in continuing as a director, officer, employee or
agent.
12. Governing Law; Venue; Binding Effect; Amendment and Termination.
(a) This Agreement shall be interpreted and enforced in accordance with the laws of the State
of Delaware.
(b) The Company and Indemnitee each hereby irrevocably consent to the jurisdiction of the
courts of the State of Colorado for all purposes in connection with any action or proceeding which
arises out of or relates to this Agreement and agree that any action instituted under this
Agreement shall be commenced, prosecuted and continued only in Denver, Colorado, and each party
hereto specifically waives the right to seek transfer of any action or proceeding out of the
designated forum pursuant to 28 U.S.C. Sections 1404 and 1406, any state forum non conveniens
statute or the common law doctrine of forum non conveniens.
(c) 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.
(d) No amendment, modification, termination or cancellation of this Agreement shall be
effective unless in writing signed by the Corporation and Indemnitee.
13. Severability. If any provision of this Agreement shall be held to be invalid, illegal or
unenforceable (a) the validity, legality and enforceability of the remaining provisions of this
Agreement shall not be in any way affected or impaired thereby, and (b) to the fullest extent
possible, the provisions of this Agreement shall be construed so as to give effect to the intent
manifested by the provision held invalid, illegal or unenforceable. Each section of this Agreement
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is a separate and independent portion of this Agreement. If the indemnification to which
Indemnitee is entitled with respect to any aspect of any claim varies between two or more sections
of this Agreement, that section providing the most comprehensive indemnification shall apply.
14. Notice. Notice to the Corporation shall be directed to Royal Gold, Inc., 0000 Xxxxxxx
Xxxxxx, Xxxxx 0000, Xxxxxx, Xxxxxxxx 00000, Attention: Chief Executive Officer. Notice to
Indemnitee shall be directed to the address set forth under Indemnitee’s signature hereto. The
foregoing addresses may be changed from time to time by the addressee upon notice to the other
parties. Notice shall be deemed received three days after the date postmarked if sent by prepaid
mail, properly addressed.
15. Counterparts. This Agreement may be executed in any number of counterparts and by
different parties on separate counterparts, each of which, when executed and delivered, shall be
deemed to be an original, and all of which, when taken together, shall constitute but one and the
same Agreement. Delivery of an executed counterpart of this Agreement by telefacsimile shall be
equally as effective as delivery of a manually executed counterpart of this Agreement. Any party
delivering an executed counterpart of this Agreement by telefacsimile also shall deliver a manually
executed counterpart of this Agreement but the failure to deliver a manually executed counterpart
shall not affect the validity, enforceability, and binding effect of this Agreement.
16. Attorneys’ Fees. In the event that any action is instituted by Indemnitee under this
Agreement or under any liability insurance policies maintained by the Corporation to enforce or
interpret any of the terms hereof or thereof, Indemnitee shall be entitled to be paid all Expenses
incurred by Indemnitee with respect to such action if Indemnitee is ultimately successful in such
action, and shall be entitled to the advancement of Expenses with respect to such action, unless,
as a part of such action, a court of competent jurisdiction over such action determines that the
material assertions made by Indemnitee as a basis for such action were not made in good faith or
were frivolous. In the event of an action instituted by or in the name of the Corporation under
this Agreement to enforce or interpret any of the terms of this Agreement, Indemnitee shall be
entitled to be paid all Expenses incurred by Indemnitee in defense of such action (including costs
and expenses incurred with respect to Indemnitee counterclaims and cross-claims made in such
action), and shall be entitled to the advancement of Expenses with respect to such action, unless,
as a part of such action, a court having jurisdiction over such action determines that the
Indemnitee’s material defenses to such action were made in bad faith or were frivolous.
17. No Construction as Employment Agreement. Nothing contained in this Agreement shall be
construed as giving the Indemnitee any right to be retained in the employ of the Corporation or any
of its subsidiaries.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement on and as of the day and
year first above written.
COMPANY: ROYAL GOLD, INC. a Delaware corporation |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
| INDEMNITEE: | ||||
| Signature: | ||||
| Name: | ||||
| Address: | ||||
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