Exhibit 10.1
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INDEMNIFICATION AGREEMENT
This Agreement is made effective as of the 7th day of December 2005, by and
between U.S. Gold Corporation, a Colorado Corporation ("the Company"), and the
undersigned director and/or officer of the Company (the "Indemnitee") with
reference to the following facts:
The Indemnitee is currently serving as a director and/or officer of the Company
and the Company wishes the Indemnitee to continue in such capacity, and, if
requested in the future, to serve in such other positions with the Company and
its subsidiaries as the Company may determine. The Indemnitee is willing, under
certain circumstances, to continue serving as a director and/or officer of the
Company.
The Indemnitee does not regard the indemnities available under the Company's
Articles of Incorporation (the "Articles of Incorporation") and Bylaws (the
"Bylaws") as adequate to protect the Indemnitee against the risks of personal
liability associated with the Indemnitee's service to the Company. In this
connection the Company and the Indemnitee now agree they should enter into this
Indemnification Agreement in order to provide greater protection to Indemnitee
against such risks of service to the Company.
In order to induce the Indemnitee to continue to serve as a director and/or
officer of the Company and in consideration of the Indemnitee's continued
service, the Company hereby agrees to indemnify the Indemnitee as follows:
1. Indemnity. The Company will indemnify the Indemnitee, his executors,
administrators or assigns, for any Expenses (as defined below) which the
Indemnitee is or becomes legally obligated to pay in connection with any
Proceeding. As used in this Agreement the term "Proceeding" includes any
threatened, pending or completed claim, action, suit or proceeding, whether
brought by or in the right of the Company or otherwise and whether of a civil,
criminal, administrative or investigative nature, in which the Indemnitee may be
or may have been 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
actual or alleged error or misstatement or misleading statement made or suffered
by the Indemnitee, by reason of any action taken by him or of any inaction on
his part while acting as such director or officer, or by reason of the fact that
he was serving at the request of the Company as a director, trustee, officer,
fiduciary, employee or agent of another corporation, partnership, joint venture,
trust or other enterprise; provided, that in each such case Indemnitee acted in
good faith and in a manner which he reasonably believed to be in or not opposed
to the best interests of the Company, and, in the case of a criminal proceeding,
had no reasonable cause to believe that his conduct was unlawful. As used in
this Agreement, the term "other enterprise" includes (without limitation)
employee benefit plans and administrative committees thereof, and the term
"fines" includes (without limitations) any excise tax assessed with respect to
any employee benefit plan.
2. Expenses. As used in this Agreement, the term "Expenses" includes,
without limitation, damages, judgments, fines, penalties, settlements and costs,
reasonable attorneys' fees and disbursements and costs of attachment or similar
bonds, and investigations in connection with investigating, defending, being a
witness or participating in any Proceeding, and any expenses of establishing a
right to indemnification under this Agreement.
3. Enforcement. If a claim or request under this Agreement is not paid by
the Company, or on its behalf, within thirty days after a written claim or
request has been received by the Company, the Indemnitee may at any time
thereafter bring suit against the Company to recover the unpaid amount of the
claim or request and if successful in whole or in part, the Indemnitee shall be
entitled to be paid also the Expenses of prosecuting such suit.
4. Subrogation. In the event of payment under this Agreement, the Company
shall be subrogated to the extent of such payment to all of the rights of
recovery of the Indemnitee, who shall execute all papers required and shall do
everything that may be necessary to secure such rights, including the execution
of such documents necessary to enable the Company effectively to bring suit to
enforce such rights; provided, however, that neither this right of subrogation
nor the exclusion set forth in Section 5(b) below shall apply to any right of
recovery of the Indemnitee or any payment received by the Indemnitee from an
entity that is the primary employer of the Indemnitee or on whose behalf the
Indemnitee serves as a director and/or officer of the Company or an affiliate of
any such entity.
5. Exclusions. The Company shall not be liable under the Agreement to make
any payment in connection with any claim made against the Indemnitee:
(a) to the extent that payment is actually made to the Indemnitee under
a valid, enforceable and collectible insurance policy;
(b) to the extent that the Indemnitee is indemnified and actually paid
otherwise than pursuant to this Agreement, subject to Section 4;
(c) in connection with a judicial action by or in the right of the
Company, in respect of any claim, issue or matter as to which the Indemnitee
shall have been adjudged to be liable for negligence or misconduct in the
performance of his duty to the Company unless, and only to the extent that, any
court in which such action was brought 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 as such court shall deem proper;
(d) if it is proved by final judgment in a court of law or other final
adjudication to have been based upon or attributable to the Indemnitee's having
gained any personal profit or advantage to which he was not legally entitled;
(e) for a disgorgement of profits made from the purchase and sale by
the Indemnitee of securities pursuant to Section 16(b) of the Securities
Exchange Act of 1934 and amendments thereto or similar provisions of any state
statutory law or common law;
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(f) brought about or contributed to by the dishonesty of the
Indemnitee; provided, however, notwithstanding the foregoing, the Indemnitee
shall be protected under this Agreement as to any claims upon which suit may be
brought against him by reason of any alleged dishonesty on his part, unless a
judgment or other final adjudication thereof adverse to the Indemnitee shall
establish that he committed (i) acts of active and deliberate dishonesty, (ii)
with actual dishonest purpose and intent, (iii) which acts were material to the
cause of action so adjudicated; or
(g) for any judgment, fine or penalty which the Company is prohibited
by applicable law from paying as indemnity or for any other reason.
6. Indemnification of Expenses of Successful Party. Notwithstanding any
other provision of this Agreement, to the extent that the Indemnitee has been
successful on the merits or otherwise in defense of any Proceeding or in defense
of any claim, issue or matter therein, including dismissal without prejudice,
Indemnitee shall be indemnified against any and all Expenses incurred in
connection therewith.
7. Partial Indemnification. If the Indemnitee is entitled under any
provision of this Agreement to indemnification by the Company for a portion of
any Expenses, but not for the total amount thereof, the Company shall indemnify
the Indemnitee for the portion of such Expenses to which the Indemnitee is
entitled.
8. Advance of Expenses. Expenses reasonably and necessarily incurred by the
Indemnitee in connection with any Proceeding, except the amount of any
settlement, shall be paid by the Company in advance upon request of the
Indemnitee that the Company pay such Expenses. The Indemnitee hereby undertakes
to repay to the Company the amount of any Expenses theretofore paid by the
Company to the extent that it is ultimately determined that such Expenses were
not reasonable or that the Indemnitee is not entitled to indemnification in
respect thereof.
Such advances shall be made by the Company unless: (a) the Board of
Directors determines, by a majority vote of a quorum of disinterested directors
based on clear and convincing evidence known to the Board of Directors at the
time such determination is made, that the Indemnitee would not be entitled to
indemnification under applicable law, or (b) if such a quorum is not obtainable
or a quorum of disinterested directors so directs, independent legal counsel
determines, based on clear and convincing evidence known to the counsel at the
time such determination is made, that Indemnitee would not be entitled to
indemnification under applicable law.
9. Notice and Defense of Claim. The Indemnitee, as a condition precedent to
his right to be indemnified under this Agreement, shall give to the Company
notice in writing as soon as practicable of any claim made against him for which
indemnity will or could be sought under this Agreement. Notice to the Company
shall be given at its principal office, shall be directed to the Corporate
Secretary (or such other address as the Company shall designate in writing to
the Indemnitee) and shall be effective only upon actual receipt. In addition,
the Indemnitee shall give the Company such information and cooperation as it may
reasonably require and as shall be within the Indemnitee's power.
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With respect to any such Proceeding: (a) the Company will be entitled to
participate therein at its own expense; and (b) except as otherwise provided
below, to the extent that it may wish, the Company jointly with any other
indemnifying party similarly notified will be entitled to assume the defense
thereof, with counsel reasonably satisfactory to Indemnitee. After notice from
the Company to Indemnitee, given within a reasonable time, of its election so to
assume the defense thereof, the Company will not be liable to Indemnitee under
this Agreement for any legal or other expenses subsequently incurred by
Indemnitee in connection with the defense of such Proceeding except as otherwise
provided below. Indemnitee shall have the right to employ his own counsel in
such Proceeding but the fees and expenses of such counsel incurred after notice
from the Company of its assumption of the defense thereof shall be at the
expense of Indemnitee unless (i) the employment of counsel by Indemnitee has
been authorized by the Company, or (ii) Indemnitee shall have obtained the
written opinion of reputable counsel with expertise in such matters (such
counsel to be reasonably satisfactory to a majority of disinterested directors)
that there may be one or more defenses available to Indemnitee that could
reasonably be expected to result in a conflict of interest between the Company
and Indemnitee in the conduct of the defense of such action, in each of which
cases the reasonable fees and expenses of Indemnitee's counsel shall be at the
expense of the Company. The Company shall not be entitled to assume the defense
of any Proceeding brought by or on behalf of the Company or that is the subject
of the opinion provided by Indemnitee under clause (ii) above.
The Company shall not be liable to indemnify Indemnitee under this
Agreement for any amounts paid in settlement of any Proceeding effected without
its prior written consent. Indemnitee shall execute and deliver such agreements,
releases and other documents as the Company may reasonably request to effect a
settlement of any Proceeding. Without Indemnitee's consent, the Company shall
not enter into any settlement that provides for any action by Indemnitee other
than the payment of amounts against which Indemnitee is entitled to
indemnification hereunder. In the event that the Company proposes to settle any
Proceeding by the payment of damages against which Indemnitee is entitled to
indemnification hereunder and in an amount that the plaintiff has indicated
would be acceptable, and the Indemnitee refuses to enter into a reasonable
settlement agreement, the Company shall not thereafter be responsible for any
costs of defense or the amount by which any judgment or settlement thereafter
paid exceeds the damages that the Company proposed to pay in settlement. Neither
the Company nor Indemnitee will unreasonably withhold their consent to any
proposed settlement.
10. No Employment Agreement. Nothing contained herein shall be deemed to
create a contract of employment between the Company and Indemnitee.
11. Counterparts. This Agreement may be executed in any number of
counterparts, all of which taken together shall constitute one instrument.
12. Indemnification Hereunder Not Exclusive. Nothing herein shall be deemed
to diminish or otherwise restrict the Indemnitee's right to indemnification
under any provision of the Articles of Incorporation or Bylaws of the Company
and amendments thereto or under law.
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13. Governing Law. This Agreement shall be governed by and construed in
accordance with Colorado law without giving effect to the principles of
conflicts of laws.
14. Coverage. The provisions of this Agreement shall apply with respect to
the Indemnitee's service in any of the capacities described in Section 1 above
prior to as well as after the date of this Agreement. The right of Indemnitee to
be indemnified hereunder shall continue after the termination of Indemnitee's
service as an officer and/or director of the Company with respect to all periods
prior to such termination.
15. Amendments; Waivers. 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 provision hereof (whether or not similar)
nor shall such waiver constitute a continuing waiver.
16. Binding Effect. This Agreement shall be binding upon and inure to the
benefit of and be enforceable by both of the parties hereto and their respective
successors, assignees (including any direct or indirect successor by purchase,
merger, consolidation or otherwise to all or substantially all of the business
and/or assets of the Company), heirs, executors and personal and legal
representatives.
17. Severability. If any provision of this Agreement (including any
provision within a single section, paragraph or sentence) is held by a court of
competent jurisdiction to be invalid. void or otherwise unenforceable in any
respect, the validity and enforceability of any such provision in every other
respect and of the remaining provisions of this Agreement shall not be in any
way impaired and shall remain enforceable to the full extent permitted by law.
18. Notices. All notices, requests, demands and other communications which
are required or may be given under this Agreement shall be in writing and shall
be deemed to have been duly given when delivered in person (by express courier
or otherwise), by telecopier or three days after being deposited in the United
States mail, certified mail, return receipt requested, first class postage
prepaid, as follows:
If to the Company: Name: U.S. Gold Corporation
Address: 0000 Xxxxxxx Xx., Xxxxx 000
Xxxxxxxx, Xxxxxxxx 00000
Tele No.: 000-000-0000
If to Indemnitee: Name:
Address:
Tele No.:
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and signed as of the day and year first above written.
COMPANY
By: /s/ Xxxxxxx X. Pass
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Xxxxxxx X. Pass, Vice President,
Chief Financial Officer and Secretary
INDEMNITEE
By:
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Printed Name:
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