AMENDED AND RESTATED INDEMNIFICATION AGREEMENT
Exhibit
10.20
AMENDED
AND RESTATED INDEMNIFICATION
AGREEMENT
THIS
AMENDED AND RESTATED INDEMNIFICATION AGREEMENT is made and entered into as
of
November 18, 2005 (“Agreement”), by and among APOLLO
GOLD, INC.,
a
Delaware corporation, APOLLO
GOLD FINANCE, INC.,
a
Delaware corporation, and MONTANA TUNNELS MINING, INC.,
a
Delaware corporation, (any one or more of which are collectively referred to
herein as the “Subsidiaries” and individually as a “Subsidiary”),
and _____________ (“Indemnitee”).
RECITALS:
WHEREAS
officers
and directors of publicly traded corporations
and their subsidiaries 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 or their subsidiaries 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 (the “Board”) of APOLLO GOLD CORPORATION, a publicly held
Yukon Territory corporation which owns, directly or indirectly, 100% of the
capital stock of each of the Subsidiaries (the “Company”), has determined that,
to attract and retain qualified individuals, the Company and the Subsidiaries
will attempt to maintain on an ongoing basis, at their sole expense, liability
insurance to protect persons directly and indirectly serving the Company and/or
the Subsidiaries from certain liabilities; and
WHEREAS,
such
persons will directly or indirectly serve the Company and/or the Subsidiaries
at
the specific request of the Company and each of the Subsidiaries;
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 or any Subsidiary free from undue concern that they will
not be so indemnified, and the Company has done so through execution and
delivery of an indemnity agreement of even date herewith between Company and
Indemnitee under the laws of the Yukon Territory; and
WHEREAS,
it is
reasonable, prudent and necessary for the Company to cause the Subsidiaries
contractually to obligate themselves to indemnify, and to advance expenses
on
behalf of, such persons to the fullest extent permitted by applicable law as
provided in this Agreement so that they will serve or continue to serve the
Company or any Subsidiary free from undue concern that they will not be so
indemnified; and
WHEREAS,
this
Agreement is a supplement to and in furtherance of the By-laws of the Company
and each of the Subsidiaries and any resolutions adopted pursuant thereto,
and
shall not be deemed a substitute therefore, nor to diminish or to 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 or any Subsidiary on the condition
that
he or she be so indemnified; and
WHEREAS,
the
Board has determined that it is in the best interests of the Company and the
Subsidiaries to provide such director and officer insurance and contractual
indemnification as set forth herein; and
WHEREAS,
Apollo
Gold Inc. and the Company are selling Florida Canyon Mining, Inc., a Delaware
corporation, Apollo Gold Exploration, Inc., a Delaware corporation, and Standard
Gold Mining, Inc., a Delaware corporation (collectively the “Sold Subsidiaries”)
pursuant to a Stock Purchase Agreement dated October 17, 2005, by and among
Apollo Gold, Inc. and the Company on the one hand and Jipangu Inc. and Jipangu
International Inc. on the other hand (the “Stock Purchase Agreement”);
and
WHEREAS,
the
Stock
Purchase Agreement requires that this Agreement be amended and restated to
provide that the Sold Subsidiaries have no further obligation under this
Agreement and are no longer parties hereto.
AGREEMENT
NOW,
THEREFORE,
in
consideration of the premises and the covenants contained herein, the
Subsidiaries 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 or any
Subsidiary. 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), in which event the Subsidiaries shall have no obligation
under this Agreement to continue Indemnitee in such position. This Agreement
shall not be deemed an employment contract between the Company (or any
Subsidiary) and Indemnitee. This Agreement shall continue in force after
Indemnitee has ceased to serve as a director or officer of the Company or any
Subsidiary.
Section
2. Indemnification—General. The
Subsidiaries 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 Other Than Proceedings by or in the Right
of the Company or any Subsidiary. Indemnitee
shall be indemnified under this Section 3 if, by reason of his or her Corporate
Status (as hereinafter defined), he or she is, or is threatened to be made,
a
party to or a participant in any threatened, pending, or completed Proceeding
(as hereinafter defined), other than a Proceeding by or in the right of the
Company or any Subsidiary. 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 her or on his or her
behalf in connection with such Proceeding or any claim, issue or matter therein,
if he or she acted in Good Faith (as hereinafter defined) and in a manner he
or
she reasonably believed to be in or not opposed to the best interests of the
Company or any Subsidiary and, with respect to any criminal Proceeding, had
no
reasonable cause to believe his or her conduct was unlawful.
Section
4. Proceedings by or in the Right of the Company or any
Subsidiary. Indemnitee
shall be indemnified under this Section 4 if, by reason of his or her Corporate
Status, he or she 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 or any Subsidiary 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 her or on his or her behalf in connection
with
such Proceeding if he or she acted in Good Faith and in a manner he or she
reasonably believed to be in or not opposed to the best interests of the Company
or any Subsidiary; 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 or any Subsidiary unless and to the extent
that the Court of Chancery of the State of Delaware, 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 Party Who is Wholly
or Partly Successful. Notwithstanding
any other provision of this Agreement, to the extent that Indemnitee is, by
reason of his or her Corporate Status, a party to (or a participant in) and
is
successful, on the merits or otherwise, in any Proceeding (including dismissal
without prejudice), he or she shall be indemnified to the maximum extent
permitted by law against all Expenses actually and reasonably incurred by him
or
her or on his or her behalf in connection therewith. If Indemnitee is not wholly
successful in such Proceeding but is successful, on the merits or otherwise,
as
to one or more but less than all claims, issues or matters in such Proceeding,
the Subsidiaries shall indemnify Indemnitee against all Expenses actually and
reasonably incurred by him or her or on his or her behalf in connection with
each successfully resolved claim, issue or matter. For purposes of this Section
and without limitation, the termination of any claim, issue or matter in such
a
Proceeding by dismissal, with or without prejudice, shall be deemed to be a
successful result as to such claim, issue or matter.
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Section
6. Indemnification for Expenses of a
Witness. Notwithstanding
any other provision of this Agreement, to the extent that Indemnitee is, by
reason of his or her Corporate Status, a witness in any Proceeding to which
Indemnitee is not a party, he or she shall be indemnified against all Expenses
actually and reasonably incurred by him or her or on his or her behalf in
connection therewith; provided that he or she shall not be paid for time spent
as such.
Section
7. Advancement of Expenses. Notwithstanding
any provision of this Agreement to the contrary, the Subsidiaries 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 any Subsidiary 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 any Subsidiary 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 7 shall be unsecured
and interest free.
Section
8. Procedure for Determination of Entitlement to
Indemnification.
(a) To
obtain indemnification under this Agreement, Indemnitee shall submit to any
Subsidiary 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 Subsidiary receiving the request shall,
promptly upon receipt of such a request for indemnification, advise the Boards
of all Subsidiaries 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 each Subsidiary by a majority vote of a quorum
thereof consisting of members who were not parties to such proceeding; (ii)
the
stockholder(s) of [each Subsidiary by a majority vote; or (iii) by an order
or
decree of any court of competent jurisdiction.
(b) No
Subsidiary shall be required to obtain the consent of Indemnitee to the
settlement of any Proceeding such Subsidiary has undertaken to defend if the
Company assumes full and sole responsibility for such settlement and the
settlement grants Indemnitee a complete and unqualified release in respect
of
the potential liability. Such Subsidiary shall not be liable for any amount
paid
by the Indemnitee in settlement of any Proceeding that is not defended by the
Subsidiary, unless the Subsidiary has consented to such settlement, which
consent shall not be unreasonably withheld.
Section
9. 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 and in a manner he
or
she reasonably believed to be in or not opposed to the best interests of any
Subsidiary or, with respect to any criminal Proceeding, that Indemnitee had
reasonable cause to believe his or her conduct was unlawful.
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(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 Company and/or the Subsidiaries, including financial statements,
or on information supplied to Indemnitee by the officers, agents or employees
of
the Company and/or the Subsidiaries in the course of their duties, or on the
advice of legal counsel for the Company and/or the Subsidiaries or on
information or records given or reports made to the Company and/or the
Subsidiaries by an independent certified public accountant or by an appraiser,
financial advisor or other expert or professional selected with reasonable
care
by the Company and/or the Subsidiaries. The provisions of this Section 9(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 Company and/or the Subsidiaries shall not be imputed to
Indemnitee for purposes of determining the right to indemnification under this
Agreement.
Section
10. Remedies of Indemnitee.
(a) If
(i) a determination is made pursuant to Section 8 that Indemnitee is not
entitled to indemnification under this Agreement, (ii) advancement of Expenses
is not timely made pursuant to Section 7, (iii) no determination of entitlement
to indemnification shall have been made pursuant to Section 8(a) within 60
days
after receipt by a Subsidiary of the request for indemnification, (iv) payment
of indemnification is not made pursuant to Section 5, Section 6, or Section
8(a) within 10 days after receipt by a Subsidiary of a written request therefor,
or (v) payment of indemnification pursuant to Section 3 or Section 4 is not
made
within 10 days after a determination has been made that Indemnitee is entitled
to indemnification, the Subsidiary shall have waived its right to deny
indemnification hereunder.
(b) If
a determination shall have been made pursuant to Section 8 that Indemnitee
is
entitled to indemnification, the Subsidiaries shall be bound by such
determination in any judicial proceeding or arbitration commenced pursuant
to
this Section 10, absent (i) a misstatement by Indemnitee of a material fact,
or
an omission of a material fact necessary to make Indemnitee’s statements not
materially misleading, in connection with the request for indemnification,
or
(ii) a prohibition of such indemnification under applicable law.
Section
11. 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 Subsidiaries’
or the Company’s respective Certificates of Incorporation, the Subsidiaries’ or
the Company’s respective By-laws, 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 or her Corporate Status prior to such amendment,
alteration or repeal. To the extent that a change in the DGCL, whether by
statute or judicial decision, permits greater indemnification or advancement
of
Expenses than would be afforded currently under the Subsidiaries’ or the
Company’s respective Certificates of Incorporation, By-laws 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.
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(b) To
the extent that the Company or any of the Subsidiaries maintain an insurance
policy or policies providing liability insurance for directors, officers,
employees, or agents of the Company, the Subsidiaries, or of any other
corporation, partnership, joint venture, trust, employee benefit plan or other
enterprise such person serves at the request of the Company or any Subsidiary,
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 Subsidiaries shall be
subrogated to the extent of such payment to all of the rights of recovery of
Indemnitee, who shall execute all documents required and take all action
necessary to secure such rights, including execution of such documents as are
necessary to enable the Company or any Subsidiary to bring suit to enforce
such
rights.
(d) The
Subsidiaries 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
Subsidiaries’ obligation to indemnify or advance Expenses hereunder to
Indemnitee who is or was serving at the request of the Company or any Subsidiary
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
12. 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 and of any proceeding commenced by Indemnitee
pursuant to Section 10 relating thereto. 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
13. 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
14. 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 of the Company and/or the
Subsidiaries against whom such claim shall have been brought or made.
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Section
15. 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
16. 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
17. 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 any Subsidiary or of any other corporation,
partnership, joint venture, trust, employee benefit plan or other enterprise
that such person is or was serving at the request of the Company or any
Subsidiary.
(b) “Disinterested
Director” means a director of the Company or any Subsidiary who is not and was
not a party to the Proceeding in respect of which indemnification is sought
by
Indemnitee.
(c) “Effective
Date” means the date first above written.
(d) [Intentionally
omitted].
(e) “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.
(f) “Good
Faith” shall mean Indemnitee having acted in good faith and in a manner
Indemnitee reasonably believed to be in or not opposed to the best interests
of
the Company or any Subsidiary, and, with respect to any criminal Proceeding,
having had no reasonable cause to believe Indemnitee’s conduct was unlawful.
(g) “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 a Subsidiary 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 or a Subsidiary, by reason of
any
action taken by him or her or of any inaction on his or her part while acting
as
director or officer of the Company, or by reason of the fact that he or she
is
or was serving at the request of the Company or a Subsidiary as a director,
officer, employee or agent of another corporation, partnership, joint venture,
trust or other enterprise, in each case whether or not he or she 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; except one initiated by a Indemnitee pursuant to Section 10 to
enforce his or her rights under this Agreement.
(h) 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 and/or any
Subsidiary shall include any service as a director, officer, employee or agent
of the Company or any Subsidiary 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 and/or
Subsidiaries” as referred to in this Agreement.
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(i) “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
18. Enforcement.
(a) Each
Subsidiary 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 the
Subsidiaries, and to serve upon any committee of the Board of Directors of
the
Company and/or the Subsidiaries as requested by such Board, and each Subsidiary
acknowledges that Indemnitee is relying upon this Agreement in serving as a
director and/or officer of the Company and/or the Subsidiaries and a member
of
any such committee.
(b) This
Agreement constitutes the entire agreement among 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
19. 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
20. Notice by Indemnitee. Indemnitee
agrees promptly to notify the Subsidiaries 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 Subsidiaries shall not relieve the Subsidiaries
of
any obligation any of them may have to the Indemnitee under this Agreement
or
otherwise, except to the extent the Subsidiary is materially prejudiced by
such
failure.
Section
21. 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:
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(a) If
to Indemnitee, to:
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(b) If
to any Subsidiary, to:
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℅
Apollo Gold, Inc.
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0000
Xxxxx Xxxxxxxx Xxxxxx, Xxxxx 000
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Xxxxxxxxx
Xxxxxxx, Xx 00000-0000
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Attention:
President
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or
to
such other address as may have been furnished to Indemnitee by the Subsidiaries
or to the Subsidiaries by Indemnitee, as the case may be.
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Section
22. 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 Subsidiaries, 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 Subsidiaries 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 Subsidiaries (and their respective directors, officers, employees
and agents) and Indemnitee in connection with such event(s) and/or
transaction(s).
Section
23. 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 State of Delaware,
without regard to its conflict of laws rules.
Section
24. 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.
Section
25. Joint and Several Obligations.
The
obligations of each Subsidiary under this Agreement are joint and
several.
IN
WITNESS WHEREOF,
the
parties hereto have executed this Agreement as of the day and year first above
written.
| ACCEPTED AND AGREED: | ||
| APOLLO GOLD EXPLORATION, INC. | ||
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By:
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| R. Xxxxx Xxxxxxx, President | ||
| FLORIDA CANYON MINING, INC. | ||
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By:
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| R. Xxxxx Xxxxxxx, President | ||
| STANDARD GOLD MINING, INC. | ||
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By:
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| R. Xxxxx Xxxxxxx, President |
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| SUBSIDIARIES: | ||
| APOLLO GOLD, INC. | ||
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By:
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R.
Xxxxx Xxxxxxx, President
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| APOLLO GOLD FINANCE, INC. | ||
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By:
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R.
Xxxxx Xxxxxxx, President
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| MONTANA TUNNELS MINING, INC. | ||
|
By:
|
||
| R. Xxxxx Xxxxxxx, President | ||
| INDEMNITEE: | ||
AUTHORIZATION
AND DIRECTION BY SHAREHOLDER
APOLLO
GOLD, INC.
Apollo
Gold, Inc., acting as sole shareholder of the other Subsidiaries, hereby
authorizes, directs, and consents to the execution, delivery and performance
of
this Agreement by each of the other Subsidiaries.
| APOLLO GOLD, INC. | ||
| |
|
|
| By: | ||
|
R. Xxxxx Xxxxxxx, President |
||
Page
9 of 10
Pages
AUTHORIZATION
AND DIRECTION BY SHAREHOLDER
APOLLO
GOLD CORPORATION
The
Company, acting as sole shareholder of Apollo Gold, Inc., hereby authorizes,
directs, and consents to Apollo Gold, Inc.’s execution, delivery, and
performance of this Agreement and the foregoing Authorization and Direction
by
Shareholder Apollo Gold, Inc.
| APOLLO GOLD, INC. | ||
| |
|
|
| By: | ||
|
R. Xxxxx Xxxxxxx, President |
||
Page
10 of 10
Pages
