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EXHIBIT 10.2
INDEMNITY AGREEMENT
THIS AGREEMENT made as of the _______ day of _________________, 1997.
BETWEEN:
XXXXXXX BROS. AUCTIONEERS INCORPORATED, a corporation amalgamated under
the laws of Canada and having an office at 0000 Xxxxxxxxxx Xxxx,
Xxxxxxxx, Xxxxxxx Xxxxxxxx, X0X 0X0
(the "Corporation")
AND:
_____________________, _______________, of ____________________________
(the "Indemnified Party")
WHEREAS:
A. The Indemnified Party is, has been or may become a director or officer
of the Corporation or of a body corporate of which the Corporation is, was or
may become a shareholder or creditor (an "Interested Corporation"), or at the
request of the Corporation or an Interested Corporation a director or officer of
(or is acting in a similar capacity for) a corporation, partnership,
association, syndicate, joint venture, trust or other organization, whether
incorporated or unincorporated (an "Other Entity");
B. The Corporation considers it desirable and in the best interests of the
Corporation to enter into this Agreement to set out the circumstances and manner
in which the Indemnified Party may be indemnified in respect of certain
liabilities or expenses which the Indemnified Party may incur as a result of his
acting as a director or officer of the Corporation, an Interested Corporation or
Other Entity;
C. The Indemnified Party has agreed to serve or to continue to serve as a
director or officer of the Corporation, an Interested Corporation or Other
Entity subject to the Corporation providing him with adequate insurance or an
indemnity against certain liabilities and, in order to induce the Indemnified
Party to serve and to continue to so serve, the Corporation has agreed to
provide the indemnity herein;
D. The Articles of Amalgamation and By-Laws of the Corporation contemplate
that the Indemnified Party may be indemnified in certain circumstances.
IN WITNESS THEREFORE that in consideration of the sum of ONE DOLLAR ($1.00) now
paid by the Indemnified Party to the Corporation (the receipt and sufficiency of
which is acknowledged
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by the Corporation), and in consideration of the mutual promises and covenants
contained herein, the parties agree as follows:
1. GENERAL INDEMNITY. The Corporation agrees:
(a) Expanded Indemnity - except in respect of an action by or on behalf of
the Corporation or an Interested Corporation to procure a judgment in
its favour against the Indemnified Party, or as otherwise provided
herein, to indemnify and save the Indemnified Party harmless, to the
full extent permitted by law, including but not limited to that under
the Canada Business Corporations Act, as the same exists on the date
hereof or may hereafter be amended (but, in the case of such amendment,
only to the extent that such amendment permits the Corporation to
provide broader indemnification rights than the law permitted prior to
such amendment) from and against any and all costs, charges, expenses,
fees, loss, damages or liabilities (including legal or other
professional fees), without limitation, and whether incurred alone or
jointly with others, which the Indemnified Party may suffer, sustain,
incur or be required to pay arising out of or incurred in respect of
any action, suit, proceeding, investigation or claim which may be
brought, commenced, made, prosecuted or threatened against the
Indemnified Party or any of the other directors or officers of the
Corporation, an Interested Corporation or Other Entity, for or in
respect of any claim to which he is made a party by being or having
been a director or officer of the Corporation, an Interested
Corporation or Other Entity or which the Indemnified Party may be
required to participate in or provide evidence in respect of (any of
the same hereinafter being referred to as a "Claim") howsoever arising
and whether arising in law, equity or under statute, regulation or
governmental ordinance of any jurisdiction or any act, deed, matter or
thing done, made, permitted or omitted by the Indemnified Party arising
out of, or in connection with the affairs of the Corporation, the
Interested Corporation or Other Entity or the exercise by the
Indemnified Party of his powers or the performance of his duties as a
director or officer of the Corporation, an Interested Corporation or
Other Entity including, without limitation, any and all costs, charges,
expenses, fees, loss, damages or liabilities which the Indemnified
Party may suffer, sustain or incur or be required to pay in connection
with investigating, initiating, defending, appealing, preparing for,
providing evidence in, instructing and receiving the advice of his own
or other counsel, or any amount paid to settle any claim or satisfy any
judgment, fine or penalty, provided that the indemnity provided for in
this Section 1(a) will only be available provided:
(i) the Indemnified Party was acting honestly and in good faith
with a view to the best interests of the Corporation, the
Interested Corporation or Other Entity, as the case may be;
(ii) in the case of a criminal or administrative action or
proceeding that is enforced by monetary penalty, in so acting,
the Indemnified Party had reasonable grounds for believing
that his conduct was lawful; and
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(iii) in so acting, the Indemnified Party was not in breach of his
obligations hereunder.
(b) Indemnity as of Right - notwithstanding anything herein, an Indemnified
Party is entitled to indemnity from the Corporation in respect of all
costs, charges and expenses reasonably incurred by him in connection
with the defence of any civil, criminal or administrative action or
proceeding to which he is made a party by reason of his being or having
been a director or officer of the Corporation or an Interested
Corporation, if the Indemnified Party:
(i) was substantially successful on the merits in his defence of
the action or proceeding; and
(ii) fulfils the conditions set out in Section 1(a)(i) and (ii)
above.
(c) Derivative Claims etc. - in respect of any action by or on behalf of
the Corporation or an Interested Corporation to procure a judgment in
its favour against the Indemnified Party, in respect of which the
Indemnified Party is made a party by reason of his being or having been
a director or officer of the Corporation or an Interested Corporation,
the Corporation shall make application, at its expense, for the
approval of a court of competent jurisdiction to indemnify and save
harmless the Indemnified Party, his heirs and legal representatives
against such costs, charges and expenses reasonably incurred by him in
connection with such action provided the Indemnified Party fulfils the
conditions set out in Section 1(a)(i) and (ii) above.
(d) Incidental Expenses - except to the extent such costs, charges,
expenses, fees or liabilities are paid by an Interested Corporation or
Other Entity, the Corporation shall pay or reimburse the Indemnified
Party for his reasonable travel, lodging or accommodation costs,
charges or expenses paid or incurred by or on behalf of the Indemnified
Party in carrying out his duties as a director or officer of the
Corporation, an Interested Corporation or Other Entity, whether or not
incurred in connection with any Claim.
2. SPECIFIC INDEMNITY FOR STATUTORY OBLIGATIONS. Without limiting the
generality of Section 1 hereof, the Corporation agrees, to the extent permitted
by law, to indemnify and save the Indemnified Party harmless from and against
any and all costs, charges, expenses, fees, loss, damages or liabilities arising
by operation of statute and incurred by or imposed upon the Indemnified Party in
relation to the affairs of the Corporation, an Interested Corporation or Other
Entity in the Indemnified Party's capacity as director or officer thereof,
including but not limited to, all statutory obligations to creditors, employees,
suppliers, contractors, subcontractors, and any government or any agency or
division of any government, whether federal, provincial, state, regional or
municipal.
3. TAXATION INDEMNITY. Without limiting the generality of Section 1
hereof, the
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Corporation agrees that the payment of any indemnity to or reimbursement of the
Indemnified Party hereunder shall include any amount the Indemnified Party may
be required to pay on account of applicable income or goods or services taxes or
other taxes or levies of whatsoever description arising out of the payment of
such indemnity or reimbursement such that the amount received by or on behalf of
the Indemnified Party, after payment of any such taxes or levies, is equal to
the amount required by the Indemnified Party to pay such costs, charges,
expenses, fees, loss, damages or liabilities, provided however that any amount
required to be paid with respect to such taxes or levies shall be payable by the
Corporation only upon the Indemnified Party remitting or being required to remit
any amount payable an account of such taxes or levies. Without limiting the
foregoing, the Corporation shall indemnify and make whole the Indemnified Party
for any taxes or levies payable by the Indemnified Party arising from or as
result of any advancement or loans made by the Corporation to the Indemnified
Party pursuant to this Agreement.
4. PARTIAL INDEMNIFICATION. If the Indemnified Party is determined to be
entitled under any provisions of this Agreement to indemnification by the
Corporation for some or a portion of the costs, charges, expenses, fees, loss,
damages or liabilities incurred in respect of any Claim but not for the total
amount thereof, the Corporation shall nevertheless indemnify the Indemnified
Party for the portion thereof to which the Indemnified Party is determined by a
court of competent jurisdiction to be so entitled.
5. NOTICES OF THE PROCEEDINGS. The Indemnified Party shall give notice, in
writing, to the Corporation upon the Indemnified Party being served with any
statement of claim, writ, notice of motion, indictment, subpoena, investigation
order or other document commencing, threatening or continuing any Claim
involving the Corporation, an Interested Corporation or Other Entity or the
Indemnified Party which may result in a claim for indemnification under this
Agreement, and the Corporation agrees to notify the Indemnified Party, in
writing, forthwith upon it or any Interested Corporation being served with any
statement of claim, writ, notice of motion, indictment, subpoena, investigation
order or other document commencing or continuing any Claim involving the
Indemnified Party. Failure by either party to so notify the other of any Claim
shall not relieve the Corporation from liability hereunder except to the extent
that the failure materially prejudices the Indemnified Party or the Corporation,
as the case may be.
6. SUBROGATION. Promptly after receiving notice of any Claim or threatened
Claim from the Indemnified Party, the Corporation may, and upon the written
request of the Indemnified Party shall, promptly assume conduct of the defence
thereof and retain counsel on behalf of the Indemnified Party who is reasonably
satisfactory to the Indemnified Party, to represent the Indemnified Party in
respect of the Claim. If the Corporation assumes conduct of the defence on
behalf of the Indemnified Party, the Indemnified Party hereby consents to the
conduct thereof and of any action taken by the Corporation, in good faith, in
connection therewith and the Indemnified Party shall fully cooperate in such
defence including, without limitation, the provision of documents, attending
examinations for discovery, making affidavits, meeting with counsel, testifying
and divulging to the Corporation all information reasonably required to defend
or prosecute the Claim.
7. SEPARATE COUNSEL. In connection with any Claim the Indemnified Party
shall have
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the right to employ separate counsel of the Indemnified Party's choosing and to
participate in the defence thereof but the fees and disbursements of such
counsel shall be at the Indemnified Party's expense unless:
(a) the Indemnified Party reasonably determines that there are legal
defences available to the Indemnified Party that are different from or
in addition to those available to the Corporation, the Interested
Corporation or Other Entity or that a conflict of interest exists which
makes representation by counsel chosen by the Corporation not
advisable;
(b) the Corporation has not assumed the defence of the Claim and employed
counsel therefor reasonably satisfactory to the Indemnified Party
within a reasonable period of time after receiving notice thereof; or
(c) employment of such other counsel has been authorized by the
Corporation;
in which event the fees and disbursements of such counsel shall be paid by the
Corporation.
8. NO PRESUMPTION AS TO ABSENCE OF GOOD FAITH. Unless a court of competent
jurisdiction otherwise has held or decided that the Indemnified Party is not
entitled to be indemnified hereunder, in full or partially, the determination of
any Claim by judgment, order, settlement or conviction, or upon a plea of nolo
contendere or its equivalent, shall not, of itself, create any presumption for
the purposes of this Agreement that the Indemnified Party is not entitled to
indemnity hereunder.
9. SETTLEMENT OF CLAIM. No admission of liability and no settlement of any
Claim in a manner adverse to the Indemnified Party shall be made without the
consent of the Indemnified Party, such consent not to be unreasonably withheld.
No admission of liability shall be made by the Indemnified Party without the
consent of the Corporation and the Corporation shall not be liable for any
settlement of any Claim made without its consent, such consent not to be
unreasonably withheld.
10. DETERMINATION OF RIGHT TO INDEMNIFICATION. If the payment of an
indemnity hereunder requires the approval of a court, under the provisions of
the Canada Business Corporations Act or otherwise, either of the Corporation or,
failing the Corporation, the Indemnified Party may apply to a court of competent
jurisdiction for an order approving such indemnity by the Corporation of the
Indemnified Party pursuant to this Agreement.
11. ADVANCE OF EXPENSES. The Corporation shall, at the request of the
Indemnified Party, advance to the Indemnified Party sufficient funds, or arrange
to pay on behalf of or reimburse the Indemnified Party for any costs, charges,
expenses, retainers or legal fees incurred or paid by the Indemnified Party in
investigating, defending, appealing, preparing for, providing evidence in or
instructing and receiving the advice of his counsel or other professional
advisors in regard to any Claim or other matter for which the Indemnified Party
may be entitled to an indemnity or reimbursement hereunder, and such amounts
shall be treated as a non-interest bearing
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advance or loan to the Indemnified Party, pending approval of the Corporation
and of the court (if required), to the payment thereof as an indemnity. In the
event it is ultimately determined by a court of competent jurisdiction that the
Indemnified Party is not entitled to be indemnified in respect of any amount for
which a loan or advance was made, or that the Indemnified Party was not entitled
to be fully so indemnified, such loan or advance, or the appropriate portion
thereof shall be repayable on demand and shall bear interest from the date of
such determination until repaid in full at the prime rate prescribed from time
to time by The Royal Bank of Canada.
12. OTHER RIGHTS AND REMEDIES UNAFFECTED. The indemnification and payment
provided in this Agreement shall not derogate from or exclude any other rights
to which the Indemnified Party may be entitled under any provision of the Canada
Business Corporations Act or otherwise at law, the Articles or By-Laws of the
Corporation, the constating documents of any Interested Corporation or Other
Entity, any applicable policy of insurance, guarantee or third-party indemnity,
any vote of shareholders of the Corporation, or otherwise, both as to matters
arising out of his capacity as a director or officer of the Corporation, an
Interested Corporation or Other Entity, or as to matters arising out of any
other capacity in which the Indemnified Party may act for or on behalf of the
Corporation.
13. INSURANCE. The Corporation shall purchase and maintain, or cause to be
purchased and maintained, for so long as the Indemnified Party remains a
director or officer of the Corporation, an Interested Corporation or Other
Entity, and for a period of six (6) years thereafter, insurance for the benefit
of the Indemnified Party (or a rider, extension or modification of such policy
to extend the time within which a Claim would be required to be reported by the
Indemnified Party under such policy after the Indemnified Party has ceased to be
a director or officer) on such terms as the Corporation then maintains in
existence for its directors and officers, to the extent permitted by law and in
either case, provided such insurance, rider, extension or modification is
available on commercially acceptable terms and premiums therefor.
14. COMPANY AND INDEMNIFIED PARTY TO COOPERATE. The Corporation and the
Indemnified Party shall, from time to time, provide such information and
cooperate with the other, as the other may reasonably request, in respect of all
matters hereunder.
15. EFFECTIVE TIME. This Agreement shall be deemed to have effect as and
from the first date that the Indemnified Party became a director or officer of
the Corporation, an Interested Corporation or Other Entity.
16. EXTENSIONS, MODIFICATIONS. This Agreement is absolute and unconditional
and the obligations of the Corporation shall not be affected, discharged,
impaired, mitigated or released by the extension of time, indulgence or
modification which the Indemnified Party may extend or make with any person
regarding any Claim against the Indemnified Party or in respect of any liability
incurred by him in acting as a director or officer of the Corporation, an
Interested Corporation or Other Entity.
17. INSOLVENCY. The liability of the Corporation under this Agreement
shall not be affected, discharged, impaired, mitigated or released by reason of
the discharge or release of the
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Indemnified Party in any bankruptcy, insolvency, receivership or other similar
proceeding of creditors.
18. MULTIPLE PROCEEDINGS. No action or proceeding brought or instituted
under this Agreement and no recovery pursuant thereto shall be a bar or defence
to any further action or proceeding which may be brought under this Agreement.
19. MODIFICATION. No modification of this Agreement shall be valid unless
the same is in writing and signed by the Corporation and the Indemnified Party.
20. TERMINATION. The obligations of the Corporation shall not terminate or
be released upon the Indemnified Party ceasing to act as a director or officer
of the Corporation, an Interested Corporation or Other Entity at any time or
times. The Corporation's obligations hereunder may be terminated or released
only by a written instrument executed by the Indemnified Party.
21. NOTICES. Any notice to be given by one party to the other shall be
sufficient if delivered by hand, deposited in any post office in Canada,
registered, postage prepaid, or sent by means of electronic transmission (in
which case any message so transmitted shall be immediately confirmed in writing
and mailed as provided above), addressed, as the case may be:
(a) To the Corporation:
0000 Xxxxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxx Xxxxxxxx,
X0X 0X0
Attention: President
Telecopier: (000) 000-0000
(b) To the Indemnified Party:
_________________________
_________________________
_________________________
_________________________
Telecopier: _____________
or at such other address of which notice is given by the parties pursuant to the
provisions of this section. Such notice shall be deemed to have been received
when delivered, if delivered, and if mailed, on the fifth business day
(exclusive of Saturdays, Sundays and statutory holidays) after the
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date of mailing. Any notice sent by means of electronic transmission shall be
deemed to have been given and received on the day it is transmitted, provided
that if such day is not a business day then the notice shall be deemed to have
been given and received on the next business day following. In case of an
interruption of the postal service, all notices or other communications shall be
delivered or sent by means of electronic transmission as provided above, except
that it shall not be necessary to confirm in writing and mail any notice
electronically transmitted.
22. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the Province of British Columbia and all disputes
arising under this Agreement shall be referred to and the parties hereto
irrevocably attorn to the jurisdiction of the courts of British Columbia.
23. FURTHER ASSURANCES. The Corporation and the Indemnified Party agree
that they shall do all such further acts, deeds or things and execute and
deliver all such further documents as may be necessary or advisable for the
purpose of assuring and conferring on the Indemnified Party the rights hereby
created or intended, and of giving effect to and carrying out the intention or
facilitating the performance of the terms of this Agreement or to evidence any
loan or advance made pursuant to Section 11 hereof.
24. INTERPRETATION. Wherever the singular or masculine are used in this
Agreement, the same shall be construed as meaning the plural or the feminine or
body corporate and whenever the plural is used in this Agreement the same shall
be construed as meaning the singular.
25. INVALID TERMS SEVERABLE. If any term, clause or provision of this
Agreement shall be held to be invalid or contrary to law, the validity of any
other term, clause or provision shall not be affected and such invalid term,
clause or provision shall be considered severable and the remaining provisions
of this Agreement valid and enforceable to the fullest extent permitted by law.
26. BINDING EFFECT. All of the agreements, conditions and terms of this
Agreement shall extend to and be binding upon the Corporation and its successors
and assigns and shall enure to the benefit of and may be enforced by the
Indemnified Party and his heirs, executors, administrators and other legal
representatives, successors and assigns.
27. INDEPENDENT LEGAL ADVICE. The Indemnified Party acknowledges that he
has been advised to obtain independent legal advice with respect to entering
into this Agreement, that he has obtained such independent legal advice or has
expressly decided not to seek such advice, and that he is entering into this
Agreement with full knowledge of the contents hereof, of his own free will and
with full capacity and authority to do so.
28. DEEMING PROVISION. The Indemnified Party shall be deemed to have acted
or be acting at the request of the Corporation upon his being appointed or
elected as a director or officer of the Corporation or an Interested
Corporation.
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IN WITNESS WHEREOF the Corporation and the Indemnified Party have hereunto set
their hands and seals as of the day and year first above written.
THE COMMON SEAL OF XXXXXXX BROS. )
AUCTIONEERS INCORPORATED was hereunto )
affixed in the presence of: )
)
)
___________________________________ ) C/S
Title:_____________________________ )
(Authorized Signatory) )
)
___________________________________ )
Title:_____________________________ )
(Authorized Signatory)
SIGNED, SEALED AND DELIVERED by ______ )
________ in the presence of: )
)
)
__________________________________ )
Name )
) ________________________ (seal)
___________________________________ )
Address )
)
___________________________________ )
)
)
___________________________________ )
Occupation )
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