EXHIBIT 10.2
INDEMNIFICATION
AGREEMENT
AGREEMENT, effective as of March 26, 1999, between NEW PLANET RESOURCES, INC., a Delaware corporation
(the "Company"), and A.W. Dugan ("Indemnitee").
WHEREAS, Indemnitee is a director (or officer) of the Company;
WHEREAS, both the Company and Indemnitee recognize the increased risk of litigation and other claims
being asserted against directors and officers of public companies at a time when it has become increasingly
difficult to obtain adequate insurance coverage at reasonable costs;
WHEREAS, in recognition of Indemnities need for substantial protection against personal liability in
order to enhance Indemnitees continued service to the Company in an effective manner, the Company wishes to
provide in this Agreement for the identification of and the advancing of expenses to Indemnitee to the full
extent (whether partial or complete) permitted by law and as set forth in this Agreement, and, to the extent
insurance is maintained, for the continued coverage of Indemnitee under the Company's directors' and officers'
liability insurance policies, regardless of any future change in the Certificate of Incorporation, By-Laws,
composition of the Board of Directors, or structure of the Company.;
NOW, THEREFORE, in consideration of the premises and of Indemnitee's service to the Company, directly or
indirectly, and intending to be legally bound hereby, the parties hereto agree as follows:
1.
In the event Indemnitee was, is, or becomes a party to or a witness or other
participant in, or is threatened to be made a party to or a witness or other
participant in, any threatened, pending or completed action, suit or proceeding,
or any inquiry or investigation, whether conducted by the Company or any other
party, that Indemnitee in good faith believes might lead to any such action,
suit or proceeding, whether civil, criminal, administrative, investigative or
otherwise (a “Claim”) by reason of (or arising in part out of) the
fact that Indemnitee is or was a director, officer, employee, agent or fiduciary
of the Company, or is or was serving at the request of the Company as a
director, officer, employee, trustee, agent or fiduciary of another corporation,
partnership, joint venture, trust, employee benefit plan or other enterprise, or
by reason of anything done or not done by Indemnitee in any such capacity (an
“Indemnifiable Event”), the Company shall indemnify Indemnitee to the
full extent permitted by law (the determination of which shall be made by the
Reviewing Party referred to below) as soon as practicable but in any event no
later than thirty days after written demand is presented to the Company, against
any and all expenses (including attorneys’ fees and all other costs,
expenses, and obligations paid or incurred in connection with investigating,
preparing for and defending or participating in the defense of (including on
appeal) any Claim relating to any Indemnifiable Event) (collectively
“Expenses”), judgments, fines, penalties and amounts paid in
settlement (including all interest, assessments and other charges paid or
payable in connection with or in respect of such judgments, fines, penalties or
amounts paid in settlement) of such Claim and, if so requested by Indemnitee,
the Company shall advance (within two business days of such request) any and all
such Expenses to Indemnitee; provided, however, that (i) the foregoing
obligation of the Company shall not apply to a Claim that was commenced by the
Indemnitee without the prior approval of the Board of Directors of the Company
unless the Claim was commenced after a Change in Control (as defined in Section
5 herein); (ii) the foregoing obligation of the Company shall be subject to the
condition that an appropriate person or body (the “Reviewing Party”)
shall not have determined (in a written opinion in any case in which the
special, independent counsel referred to in Section 4 hereof is involved) that
Indemnitee would not be permitted to be indemnified for such Expenses under
applicable law; and (iii) if, when and to the extent that the Reviewing Party
determines that Indemnitee would not be permitted to be indemnified for such
Expenses under applicable law, the Company shall be entitled to be reimbursed by
Indemnitee (who hereby agrees to reimburse the Company) for all such amounts
theretofore paid (unless Indemnitee has commenced legal proceedings in a court
of competent jurisdiction to secure a determination that Indemnitee should be
indemnified under applicable law, in which event Indemnitee shall not be
required to so reimburse the Company until a final judicial determination
requiring such reimbursement is made with respect thereto as to which all rights
of appeal therefrom have been exhausted or lapsed) and the Company shall not be
obligated to indemnify or advance any additional amounts to Indemnitee under
this Agreement (unless there has been a determination by a court of competent
jurisdiction that the Indemnitee would be permitted to be so indemnified or
entitled to such expense advances under applicable law).
2.
If there has not been a Change in Control of the Company (as hereinafter
defined), the Reviewing Party shall be (1) quorum of the Board of Directors
consisting of directors who are not parties to the action, suit or proceeding
acting by majority vote, or, (2) if such a quorum is not obtainable, or, even if
obtainable, a quorum of disinterested directors so directs, independent legal
counsel by the use of a written opinion or (3) the stockholders. If there has
been a Change in Control of the Company, the Reviewing Party shall be the
special, independent counsel referred to in Section 4 hereof.
3.
If Indemnitee has not been indemnified by the expiration of the foregoing
thirty-day period or received expense advances or if the Reviewing Party
determines that Indemnitee would not be permitted to be indemnified or be
entitled to receive expense advances within two days of the request therefor in
whole or in part under applicable law, Indemnitee shall have the right to
commence litigation seeking from the court a finding that Indemnitee is entitled
to indemnification and expense advances or enforcement of Indemnitee’s
entitlement to indemnification and expense advances or challenging any
determination by the Reviewing Party or any aspect thereof that Indemnitee is
not entitled to be indemnified or receive expense advances and the burden of
proving that indemnification or advancement of expenses is not appropriate shall
be on the Company; any determination by the Reviewing Party in favor of
Indemnitee shall be conclusive and binding on the Company, unless facts supplied
by Indemnitee which form the basis for the determination are subsequently
determined to have been materially incorrect at the time supplied. Indemnitee
agrees to bring any such litigation in any court in the States of Delaware
having subject matter jurisdiction thereof and in which venue is proper, and the
Company hereby consents to service of process and to appear in any such
proceeding.
4.
The Company agrees that if there is a Change in Control of the Company (as
hereinafter defined), then with respect to all matters thereafter arising
concerning the rights of Indemnitee to indemnity payments and expense advances
under this Agreement or any other agreement or By-laws now or hereafter in
effect relating to Claims for Indemnifiable Events, the Company shall seek legal
advice only from special, independent counsel selected by Indemnitee who a
majority of the disinterested Directors approves (which approval shall not be
unreasonably withheld), and who has not otherwise performed services for the
Company or Indemnitee. Such counsel, among other things, shall determine whether
and to what extent Indemnitee is permitted to be indemnified or is entitled to
expense advances under applicable law and shall render its written opinion to
the Company and Indemnitee to such effect. The Company agrees to pay the
reasonable fees of the special, independent counsel referred to above and to
fully indemnify such counsel against any and all expenses (including
attorney’s fees), claims, liabilities and damages arising out of or
relating to this Agreement or its engagement pursuant hereto except for willful
misconduct or gross negligence.
5.
For purposes of this Agreement, (a) “Change in Control of the Company”
shall be deemed to have occurred if (i) any “person” (as such term is
used in Sections 13(d)(3) and 14(d) of the Securities Exchange Act of 1934, as
amended), other than a trustee or other fiduciary holding securities under an
employee benefit plan of the Company, is or becomes the beneficial owner (as
defined in Rule 13d-3 under said Act), directly or indirectly, of securities of
the Company representing 20% or more of the combined voting power of the
Company’s then outstanding securities, or (ii) during any period of two
consecutive years, individuals who at the beginning of such period constitute
the Board of Directors of the Company and any new director whose election by the
Board of Directors or nomination for election by the Company’s stockholders
was approved by a vote of at least two-thirds (2/3) 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
Company approve a merger or consolidation of the Company with any other
corporation, other than a merger or consolidation which would result in the
voting securities of the Company 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 combined
voting power of the voting securities of the Company of such surviving entity
outstanding immediately after such merger or consolidation, or if the
stockholders of the Company approve a plan of complete liquidation of the
Company or an agreement for the sale or disposition by the Company of all or
substantially all the Company’s assets.
6.
To the extent Indemnitee is successful in such proceeding, the Company shall
indemnify Indemnitee against any and all expenses (including attorney’s
fees) which are incurred by the Indemnitee in connection with any claim asserted
or action brought by Indemnitee for (i) indemnification or advance payment of
Expenses by the Company under this Agreement or any other agreement or Company
By-laws now or hereafter in effect relating to Claims for Indemnifiable Events
and/or (ii) recovery under any directors’ and officers’ liability
insurance policies maintained by the Company, regardless of whether Indemnitee
ultimately is determined to be entitled to such indemnification, advance payment
of Expenses or insurance recovery, as the case may be.
7.
If Indemnitee is entitled under any provision of this Agreement to
indemnification by the Company for some or a portion of the Expenses, judgments,
fines, penalties and amounts paid in settlement of any Claim but not, however,
for all of the total amount thereof, the Company shall nevertheless indemnify
Indemnitee for the portion thereof to which Indemnitee is entitled.
Notwithstanding any other provision of this Agreement, to the extent that
Indemnitee has been successful on the merits or otherwise in the defense of any
Claim relating in whole or in part to any Indemnifiable Event or in defense of
any issue or matter therein, including dismissal without prejudice, Indemnitee
shall be indemnified against all Expenses incurred in connection therewith.
8.
For purposes of this Agreement, the termination of any Claim by judgment, order,
settlement (whether with or without court approval) or conviction, or upon a
plea of nolo contendere, or its equivalent, shall not create a presumption that
Indemnitee did not meet any particular standard of conduct or have any
particular belief or that a court has determined that Indemnitee is not entitled
to indemnification or expense advance or that indemnification or expense advance
is not permitted by applicable law.
9.
The Company hereby agrees that, so long as Indemnitee shall continue to serve in
a capacity referred to in Section 1 hereof, and thereafter so long as Indemnitee
shall be subject to any possible claim or threatened, pending or completed
action, suit or proceeding, whether civil, criminal, administrative or
investigative, by reason of the fact that Indemnitee served in any capacity
referred to in Section 1 hereof, the Company shall maintain in effect for the
benefit of Indemnitee any Directors’ and Officers’ Liability Insurance
presently in force and effect, providing, in all respects, coverage at least
comparable to that presently provided; provided, however, if, in the business
judgment of the then Board, either (a) the premium cost for such insurance is
substantially disproportionate to the amount of coverage, or (b) the coverage
provided by such insurance is so limited by exclusions that there is
insufficient benefit from such insurance, then and in that event the Company
shall not be required to maintain such insurance but shall and hereby agrees to
the full extent permitted by law to hold harmless and indemnify Indemnitee to
the fullest extent of the coverage which would otherwise have been provided for
the benefit of Indemnitee.
10.
(a) In the event of any changes after the date of this Agreement in any
applicable law, statute, or rule which expands the right of the Company to
indemnify a person serving in a capacity referred to in Section 1 hereof, such
change shall be within the purview of Indemnitee’s rights, and the
Company’s obligations, under this Agreement. In the event of any changes in
any applicable law, statute, or rule which narrow the right of the Company to
indemnify a person serving in a capacity referred to in Section 1 hereof, such
changes, 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.
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(b)
The indemnification provided by this Agreement shall not be deemed exclusive of
any rights to which Indemnitee may be entitled under the Company’s
Certificate of Incorporation, its By-laws, any agreement, any vote of
stockholders or disinterested directors, laws and regulations in effect now or
in the future, or otherwise, both as to action in Indemnitee’s official
capacity and as to action in another capacity while holding such office. |
11.
If the indemnification provided in Section 1 is unavailable and may not be paid
to Indemnitee because such indemnification is not permitted by law, then in
respect of any threatened, pending or completed action, suit or proceeding in
which the Company is jointly liable with Indemnitee (or would be if joined in
such action, suit or proceeding), the Company shall contribute to the full
extent permitted by law, to the amount of expenses, judgments, fines (including
excise taxes and penalties) and amounts paid in settlement actually and
reasonably incurred and paid or payable by Indemnitee in such proportion as is
appropriate to reflect (i) the relative benefits received by the Company on the
one hand and Indemnitee on the other hand from the transaction from which such
action, suit or proceeding arose, and (ii) the relative fault of the Company on
the one hand and of Indemnitee on the other in connection with the events which
resulted in such expenses, judgments, fines or settlement amounts, as well as
any other relevant equitable considerations. The relative fault of the Company
on the one hand and of Indemnitee on the other shall be determined by reference
to among other things, the parties’ relative intent, knowledge, access to
information and opportunity to correct or prevent the circumstances resulting in
such expenses, judgments, fines or settlement amounts. The Company agrees that
it would not be just and equitable if contribution pursuant to this paragraph
were determined by pro rata allocation or any other method of allocation which
does not take account of the foregoing equitable considerations.
12.
All obligations of the Company contained herein shall continue during the period
Indemnitee serves in a capacity referred to in Section 1 hereof of the Company
and shall continue thereafter so long as Indemnitee shall be subject to any
possible Claim relating to an Indemnifiable Event.
13.
(a) Promptly after receipt by Indemnitee of notice of the commencement of any
Claim relating to an Indemnifiable Event or proceeding in which Indemnitee is
made or is threatened to be made a party or a witness, Indemnitee shall notify
the Company of the commencement of such Claim; but the omission so to notify the
Company shall not relieve the Company from any obligation it may have to
indemnify or advance expenses to Indemnitee otherwise than under this Agreement.
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(b)
Indemnitee shall not settle any claim or action in any manner which would impose
on the Company any penalty, constraint, or obligation to hold harmless or
indemnify Indemnitee pursuant to this Agreement without the Company’s prior
written consent, which consent shall not be unreasonably withheld. |
14.
If any Claim relating to an Indemnifiable Event, commenced against Indemnitee is
also commenced against the Company, the Company shall be entitled to participate
therein at its own expense, and, except as otherwise provided hereinbelow, to
the extent that it may wish, the Company shall be entitled to assume the defense
thereof. After notice from the Company to Indemnitee of its election to assume
the defense of any Claim, the Company shall not be obligated to Indemnitee under
this Agreement for any legal or other expenses subsequently incurred by
Indemnitee in connection with the defense thereof other than reasonable costs of
investigation, travel, and lodging expenses arising out of Indemnitee’s
participation in such Claim. Indemnitee shall have the right to employ
Indemnitee’s own counsel in such Claim, but the fees and expenses of such
counsel incurred after notice from the Company to Indemnitee of its assumption
of the defense thereof shall be at the expense of Indemnitee unless (i)
otherwise authorized by the Company, (ii) Indemnitee shall have reasonably
concluded, and so notified the Company, that there may be a conflict of interest
between the Company and Indemnitee in the conduct of the defense of such Claim,
or (iii) the Company shall not in fact have employed counsel to assume the
defense of such Claim, in which cases the 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 Claim brought by or on behalf of the
Company or its stockholders or as to which Indemnitee shall have made the
conclusion set forth in (ii) of this Section 14.
15.
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.
16.
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 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.
17.
The Company shall not be liable under this Agreement to make any payment in
connection with any claim made against Indemnitee to the extent Indemnitee has
otherwise actually received payment (under any insurance policy, By-law or
otherwise) of the amounts otherwise indemnifiable hereunder.
18.
This Agreement shall be binding upon and inure to the benefit of and be
enforceable by the parties hereto and their respective successors, assigns,
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, spouses, heirs, executors, and personal and legal representatives. This
Agreement shall continue in effect regardless of whether Indemnitee continues to
serve as an officer or director of the Company or of any other enterprise at the
Company’s request.
19.
The provisions of this Agreement shall be severable in the event that any of the
provisions hereof (including any provision within a single section, paragraph or
sentence) are held by a court of competent jurisdiction to be invalid, void or
otherwise unenforceable, and the remaining provisions shall remain enforceable
to the full extent permitted by law.
20.
This Agreement shall be governed by and construed in accordance with the laws of
the State of Delaware applicable to contracts made and to be performed in such
state, but excluding any conflicts-of-law rule or principle which might refer
such governance, construction or enforcement to the laws of another state or
country.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on and as of the day and year first
above written.
NEW PLANET
RESOURCES, INC.
By:/s/A.W. Dugan
------------------------
A.W. Dugan, President
INDEMNITEE
/s/A.W. Dugan..... .........
------------------------------------
A.W. Dugan
EXHIBIT 10.3
INDEMNIFICATION
AGREEMENT
AGREEMENT, effective as of March 26, 1999, between NEW PLANET RESOURCES, INC., a Delaware corporation
(the "Company"), and Jacque N. York ("Indemnitee").
WHEREAS, Indemnitee is a director (or officer) of the Company;
WHEREAS, both the Company and Indemnitee recognize the increased risk of litigation and other claims
being asserted against directors and officers of public companies at a time when it has become increasingly
difficult to obtain adequate insurance coverage at reasonable costs;
WHEREAS, in recognition of Indemnities need for substantial protection against personal liability in
order to enhance Indemnitees continued service to the Company in an effective manner, the Company wishes to
provide in this Agreement for the identification of and the advancing of expenses to Indemnitee to the full
extent (whether partial or complete) permitted by law and as set forth in this Agreement, and, to the extent
insurance is maintained, for the continued coverage of Indemnitee under the Company's directors' and officers'
liability insurance policies, regardless of any future change in the Certificate of Incorporation, By-Laws,
composition of the Board of Directors, or structure of the Company.;
NOW, THEREFORE, in consideration of the premises and of Indemnitee's service to the Company, directly or
indirectly, and intending to be legally bound hereby, the parties hereto agree as follows:
1.
In the event Indemnitee was, is, or becomes a party to or a witness or other
participant in, or is threatened to be made a party to or a witness or other
participant in, any threatened, pending or completed action, suit or proceeding,
or any inquiry or investigation, whether conducted by the Company or any other
party, that Indemnitee in good faith believes might lead to any such action,
suit or proceeding, whether civil, criminal, administrative, investigative or
otherwise (a “Claim”) by reason of (or arising in part out of) the
fact that Indemnitee is or was a director, officer, employee, agent or fiduciary
of the Company, or is or was serving at the request of the Company as a
director, officer, employee, trustee, agent or fiduciary of another corporation,
partnership, joint venture, trust, employee benefit plan or other enterprise, or
by reason of anything done or not done by Indemnitee in any such capacity (an
“Indemnifiable Event”), the Company shall indemnify Indemnitee to the
full extent permitted by law (the determination of which shall be made by the
Reviewing Party referred to below) as soon as practicable but in any event no
later than thirty days after written demand is presented to the Company, against
any and all expenses (including attorneys’ fees and all other costs,
expenses, and obligations paid or incurred in connection with investigating,
preparing for and defending or participating in the defense of (including on
appeal) any Claim relating to any Indemnifiable Event) (collectively
“Expenses”), judgments, fines, penalties and amounts paid in
settlement (including all interest, assessments and other charges paid or
payable in connection with or in respect of such judgments, fines, penalties or
amounts paid in settlement) of such Claim and, if so requested by Indemnitee,
the Company shall advance (within two business days of such request) any and all
such Expenses to Indemnitee; provided, however, that (i) the foregoing
obligation of the Company shall not apply to a Claim that was commenced by the
Indemnitee without the prior approval of the Board of Directors of the Company
unless the Claim was commenced after a Change in Control (as defined in Section
5 herein); (ii) the foregoing obligation of the Company shall be subject to the
condition that an appropriate person or body (the “Reviewing Party”)
shall not have determined (in a written opinion in any case in which the
special, independent counsel referred to in Section 4 hereof is involved) that
Indemnitee would not be permitted to be indemnified for such Expenses under
applicable law; and (iii) if, when and to the extent that the Reviewing Party
determines that Indemnitee would not be permitted to be indemnified for such
Expenses under applicable law, the Company shall be entitled to be reimbursed by
Indemnitee (who hereby agrees to reimburse the Company) for all such amounts
theretofore paid (unless Indemnitee has commenced legal proceedings in a court
of competent jurisdiction to secure a determination that Indemnitee should be
indemnified under applicable law, in which event Indemnitee shall not be
required to so reimburse the Company until a final judicial determination
requiring such reimbursement is made with respect thereto as to which all rights
of appeal therefrom have been exhausted or lapsed) and the Company shall not be
obligated to indemnify or advance any additional amounts to Indemnitee under
this Agreement (unless there has been a determination by a court of competent
jurisdiction that the Indemnitee would be permitted to be so indemnified or
entitled to such expense advances under applicable law).
2.
If there has not been a Change in Control of the Company (as hereinafter
defined), the Reviewing Party shall be (1) quorum of the Board of Directors
consisting of directors who are not parties to the action, suit or proceeding
acting by majority vote, or, (2) if such a quorum is not obtainable, or, even if
obtainable, a quorum of disinterested directors so directs, independent legal
counsel by the use of a written opinion or (3) the stockholders. If there has
been a Change in Control of the Company, the Reviewing Party shall be the
special, independent counsel referred to in Section 4 hereof.
3.
If Indemnitee has not been indemnified by the expiration of the foregoing
thirty-day period or received expense advances or if the Reviewing Party
determines that Indemnitee would not be permitted to be indemnified or be
entitled to receive expense advances within two days of the request therefor in
whole or in part under applicable law, Indemnitee shall have the right to
commence litigation seeking from the court a finding that Indemnitee is entitled
to indemnification and expense advances or enforcement of Indemnitee’s
entitlement to indemnification and expense advances or challenging any
determination by the Reviewing Party or any aspect thereof that Indemnitee is
not entitled to be indemnified or receive expense advances and the burden of
proving that indemnification or advancement of expenses is not appropriate shall
be on the Company; any determination by the Reviewing Party in favor of
Indemnitee shall be conclusive and binding on the Company, unless facts supplied
by Indemnitee which form the basis for the determination are subsequently
determined to have been materially incorrect at the time supplied. Indemnitee
agrees to bring any such litigation in any court in the States of Delaware
having subject matter jurisdiction thereof and in which venue is proper, and the
Company hereby consents to service of process and to appear in any such
proceeding.
4.
The Company agrees that if there is a Change in Control of the Company (as
hereinafter defined), then with respect to all matters thereafter arising
concerning the rights of Indemnitee to indemnity payments and expense advances
under this Agreement or any other agreement or By-laws now or hereafter in
effect relating to Claims for Indemnifiable Events, the Company shall seek legal
advice only from special, independent counsel selected by Indemnitee who a
majority of the disinterested Directors approves (which approval shall not be
unreasonably withheld), and who has not otherwise performed services for the
Company or Indemnitee. Such counsel, among other things, shall determine whether
and to what extent Indemnitee is permitted to be indemnified or is entitled to
expense advances under applicable law and shall render its written opinion to
the Company and Indemnitee to such effect. The Company agrees to pay the
reasonable fees of the special, independent counsel referred to above and to
fully indemnify such counsel against any and all expenses (including
attorney’s fees), claims, liabilities and damages arising out of or
relating to this Agreement or its engagement pursuant hereto except for willful
misconduct or gross negligence.
5.
For purposes of this Agreement, (a) “Change in Control of the Company”
shall be deemed to have occurred if (i) any “person” (as such term is
used in Sections 13(d)(3) and 14(d) of the Securities Exchange Act of 1934, as
amended), other than a trustee or other fiduciary holding securities under an
employee benefit plan of the Company, is or becomes the beneficial owner (as
defined in Rule 13d-3 under said Act), directly or indirectly, of securities of
the Company representing 20% or more of the combined voting power of the
Company’s then outstanding securities, or (ii) during any period of two
consecutive years, individuals who at the beginning of such period constitute
the Board of Directors of the Company and any new director whose election by the
Board of Directors or nomination for election by the Company’s stockholders
was approved by a vote of at least two-thirds (2/3) 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
Company approve a merger or consolidation of the Company with any other
corporation, other than a merger or consolidation which would result in the
voting securities of the Company 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 combined
voting power of the voting securities of the Company of such surviving entity
outstanding immediately after such merger or consolidation, or if the
stockholders of the Company approve a plan of complete liquidation of the
Company or an agreement for the sale or disposition by the Company of all or
substantially all the Company’s assets.
6.
To the extent Indemnitee is successful in such proceeding, the Company shall
indemnify Indemnitee against any and all expenses (including attorney’s
fees) which are incurred by the Indemnitee in connection with any claim asserted
or action brought by Indemnitee for (i) indemnification or advance payment of
Expenses by the Company under this Agreement or any other agreement or Company
By-laws now or hereafter in effect relating to Claims for Indemnifiable Events
and/or (ii) recovery under any directors’ and officers’ liability
insurance policies maintained by the Company, regardless of whether Indemnitee
ultimately is determined to be entitled to such indemnification, advance payment
of Expenses or insurance recovery, as the case may be.
7.
If Indemnitee is entitled under any provision of this Agreement to
indemnification by the Company for some or a portion of the Expenses, judgments,
fines, penalties and amounts paid in settlement of any Claim but not, however,
for all of the total amount thereof, the Company shall nevertheless indemnify
Indemnitee for the portion thereof to which Indemnitee is entitled.
Notwithstanding any other provision of this Agreement, to the extent that
Indemnitee has been successful on the merits or otherwise in the defense of any
Claim relating in whole or in part to any Indemnifiable Event or in defense of
any issue or matter therein, including dismissal without prejudice, Indemnitee
shall be indemnified against all Expenses incurred in connection therewith.
8.
For purposes of this Agreement, the termination of any Claim by judgment, order,
settlement (whether with or without court approval) or conviction, or upon a
plea of nolo contendere, or its equivalent, shall not create a presumption that
Indemnitee did not meet any particular standard of conduct or have any
particular belief or that a court has determined that Indemnitee is not entitled
to indemnification or expense advance or that indemnification or expense advance
is not permitted by applicable law.
9.
The Company hereby agrees that, so long as Indemnitee shall continue to serve in
a capacity referred to in Section 1 hereof, and thereafter so long as Indemnitee
shall be subject to any possible claim or threatened, pending or completed
action, suit or proceeding, whether civil, criminal, administrative or
investigative, by reason of the fact that Indemnitee served in any capacity
referred to in Section 1 hereof, the Company shall maintain in effect for the
benefit of Indemnitee any Directors’ and Officers’ Liability Insurance
presently in force and effect, providing, in all respects, coverage at least
comparable to that presently provided; provided, however, if, in the business
judgment of the then Board, either (a) the premium cost for such insurance is
substantially disproportionate to the amount of coverage, or (b) the coverage
provided by such insurance is so limited by exclusions that there is
insufficient benefit from such insurance, then and in that event the Company
shall not be required to maintain such insurance but shall and hereby agrees to
the full extent permitted by law to hold harmless and indemnify Indemnitee to
the fullest extent of the coverage which would otherwise have been provided for
the benefit of Indemnitee.
10.
(a) In the event of any changes after the date of this Agreement in any
applicable law, statute, or rule which expands the right of the Company to
indemnify a person serving in a capacity referred to in Section 1 hereof, such
change shall be within the purview of Indemnitee’s rights, and the
Company’s obligations, under this Agreement. In the event of any changes in
any applicable law, statute, or rule which narrow the right of the Company to
indemnify a person serving in a capacity referred to in Section 1 hereof, such
changes, 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)
The indemnification provided by this Agreement shall not be deemed exclusive of
any rights to which Indemnitee may be entitled under the Company’s
Certificate of Incorporation, its By-laws, any agreement, any vote of
stockholders or disinterested directors, laws and regulations in effect now or
in the future, or otherwise, both as to action in Indemnitee’s official
capacity and as to action in another capacity while holding such office. |
11.
If the indemnification provided in Section 1 is unavailable and may not be paid
to Indemnitee because such indemnification is not permitted by law, then in
respect of any threatened, pending or completed action, suit or proceeding in
which the Company is jointly liable with Indemnitee (or would be if joined in
such action, suit or proceeding), the Company shall contribute to the full
extent permitted by law, to the amount of expenses, judgments, fines (including
excise taxes and penalties) and amounts paid in settlement actually and
reasonably incurred and paid or payable by Indemnitee in such proportion as is
appropriate to reflect (i) the relative benefits received by the Company on the
one hand and Indemnitee on the other hand from the transaction from which such
action, suit or proceeding arose, and (ii) the relative fault of the Company on
the one hand and of Indemnitee on the other in connection with the events which
resulted in such expenses, judgments, fines or settlement amounts, as well as
any other relevant equitable considerations. The relative fault of the Company
on the one hand and of Indemnitee on the other shall be determined by reference
to among other things, the parties’ relative intent, knowledge, access to
information and opportunity to correct or prevent the circumstances resulting in
such expenses, judgments, fines or settlement amounts. The Company agrees that
it would not be just and equitable if contribution pursuant to this paragraph
were determined by pro rata allocation or any other method of allocation which
does not take account of the foregoing equitable considerations.
12.
All obligations of the Company contained herein shall continue during the period
Indemnitee serves in a capacity referred to in Section 1 hereof of the Company
and shall continue thereafter so long as Indemnitee shall be subject to any
possible Claim relating to an Indemnifiable Event.
13.
(a) Promptly after receipt by Indemnitee of notice of the commencement of any
Claim relating to an Indemnifiable Event or proceeding in which Indemnitee is
made or is threatened to be made a party or a witness, Indemnitee shall notify
the Company of the commencement of such Claim; but the omission so to notify the
Company shall not relieve the Company from any obligation it may have to
indemnify or advance expenses to Indemnitee otherwise than under this Agreement.
| |
(b)
Indemnitee shall not settle any claim or action in any manner which would impose
on the Company any penalty, constraint, or obligation to hold harmless or
indemnify Indemnitee pursuant to this Agreement without the Company’s prior
written consent, which consent shall not be unreasonably withheld. |
14.
If any Claim relating to an Indemnifiable Event, commenced against Indemnitee is
also commenced against the Company, the Company shall be entitled to participate
therein at its own expense, and, except as otherwise provided hereinbelow, to
the extent that it may wish, the Company shall be entitled to assume the defense
thereof. After notice from the Company to Indemnitee of its election to assume
the defense of any Claim, the Company shall not be obligated to Indemnitee under
this Agreement for any legal or other expenses subsequently incurred by
Indemnitee in connection with the defense thereof other than reasonable costs of
investigation, travel, and lodging expenses arising out of Indemnitee’s
participation in such Claim. Indemnitee shall have the right to employ
Indemnitee’s own counsel in such Claim, but the fees and expenses of such
counsel incurred after notice from the Company to Indemnitee of its assumption
of the defense thereof shall be at the expense of Indemnitee unless (i)
otherwise authorized by the Company, (ii) Indemnitee shall have reasonably
concluded, and so notified the Company, that there may be a conflict of interest
between the Company and Indemnitee in the conduct of the defense of such Claim,
or (iii) the Company shall not in fact have employed counsel to assume the
defense of such Claim, in which cases the 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 Claim brought by or on behalf of the
Company or its stockholders or as to which Indemnitee shall have made the
conclusion set forth in (ii) of this Section 14.
15.
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.
16.
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 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.
17.
The Company shall not be liable under this Agreement to make any payment in
connection with any claim made against Indemnitee to the extent Indemnitee has
otherwise actually received payment (under any insurance policy, By-law or
otherwise) of the amounts otherwise indemnifiable hereunder.
18.
This Agreement shall be binding upon and inure to the benefit of and be
enforceable by the parties hereto and their respective successors, assigns,
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, spouses, heirs, executors, and personal and legal representatives. This
Agreement shall continue in effect regardless of whether Indemnitee continues to
serve as an officer or director of the Company or of any other enterprise at the
Company’s request.
19.
The provisions of this Agreement shall be severable in the event that any of the
provisions hereof (including any provision within a single section, paragraph or
sentence) are held by a court of competent jurisdiction to be invalid, void or
otherwise unenforceable, and the remaining provisions shall remain enforceable
to the full extent permitted by law.
20.
This Agreement shall be governed by and construed in accordance with the laws of
the State of Delaware applicable to contracts made and to be performed in such
state, but excluding any conflicts-of-law rule or principle which might refer
such governance, construction or enforcement to the laws of another state or
country.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on and as of the day and year first
above written.
NEW PLANET
RESOURCES, INC.
By:/s/A.W. Dugan
------------------------
A.W. Dugan, President
INDEMNITEE
/s/Jacque N. York.
------------------------------------
Jacque N. York
EXHIBIT 10.4
INDEMNIFICATION
AGREEMENT
AGREEMENT, effective as of March 26, 1999, between NEW PLANET RESOURCES, INC., a Delaware corporation
(the "Company"), and Michael Branstetter ("Indemnitee").
WHEREAS, Indemnitee is a director (or officer) of the Company;
WHEREAS, both the Company and Indemnitee recognize the increased risk of litigation and other claims
being asserted against directors and officers of public companies at a time when it has become increasingly
difficult to obtain adequate insurance coverage at reasonable costs;
WHEREAS, in recognition of Indemnities need for substantial protection against personal liability in
order to enhance Indemnitees continued service to the Company in an effective manner, the Company wishes to
provide in this Agreement for the identification of and the advancing of expenses to Indemnitee to the full
extent (whether partial or complete) permitted by law and as set forth in this Agreement, and, to the extent
insurance is maintained, for the continued coverage of Indemnitee under the Company's directors' and officers'
liability insurance policies, regardless of any future change in the Certificate of Incorporation, By-Laws,
composition of the Board of Directors, or structure of the Company.;
NOW, THEREFORE, in consideration of the premises and of Indemnitee's service to the Company, directly or
indirectly, and intending to be legally bound hereby, the parties hereto agree as follows:
1.
In the event Indemnitee was, is, or becomes a party to or a witness or other
participant in, or is threatened to be made a party to or a witness or other
participant in, any threatened, pending or completed action, suit or proceeding,
or any inquiry or investigation, whether conducted by the Company or any other
party, that Indemnitee in good faith believes might lead to any such action,
suit or proceeding, whether civil, criminal, administrative, investigative or
otherwise (a “Claim”) by reason of (or arising in part out of) the
fact that Indemnitee is or was a director, officer, employee, agent or fiduciary
of the Company, or is or was serving at the request of the Company as a
director, officer, employee, trustee, agent or fiduciary of another corporation,
partnership, joint venture, trust, employee benefit plan or other enterprise, or
by reason of anything done or not done by Indemnitee in any such capacity (an
“Indemnifiable Event”), the Company shall indemnify Indemnitee to the
full extent permitted by law (the determination of which shall be made by the
Reviewing Party referred to below) as soon as practicable but in any event no
later than thirty days after written demand is presented to the Company, against
any and all expenses (including attorneys’ fees and all other costs,
expenses, and obligations paid or incurred in connection with investigating,
preparing for and defending or participating in the defense of (including on
appeal) any Claim relating to any Indemnifiable Event) (collectively
“Expenses”), judgments, fines, penalties and amounts paid in
settlement (including all interest, assessments and other charges paid or
payable in connection with or in respect of such judgments, fines, penalties or
amounts paid in settlement) of such Claim and, if so requested by Indemnitee,
the Company shall advance (within two business days of such request) any and all
such Expenses to Indemnitee; provided, however, that (i) the foregoing
obligation of the Company shall not apply to a Claim that was commenced by the
Indemnitee without the prior approval of the Board of Directors of the Company
unless the Claim was commenced after a Change in Control (as defined in Section
5 herein); (ii) the foregoing obligation of the Company shall be subject to the
condition that an appropriate person or body (the “Reviewing Party”)
shall not have determined (in a written opinion in any case in which the
special, independent counsel referred to in Section 4 hereof is involved) that
Indemnitee would not be permitted to be indemnified for such Expenses under
applicable law; and (iii) if, when and to the extent that the Reviewing Party
determines that Indemnitee would not be permitted to be indemnified for such
Expenses under applicable law, the Company shall be entitled to be reimbursed by
Indemnitee (who hereby agrees to reimburse the Company) for all such amounts
theretofore paid (unless Indemnitee has commenced legal proceedings in a court
of competent jurisdiction to secure a determination that Indemnitee should be
indemnified under applicable law, in which event Indemnitee shall not be
required to so reimburse the Company until a final judicial determination
requiring such reimbursement is made with respect thereto as to which all rights
of appeal therefrom have been exhausted or lapsed) and the Company shall not be
obligated to indemnify or advance any additional amounts to Indemnitee under
this Agreement (unless there has been a determination by a court of competent
jurisdiction that the Indemnitee would be permitted to be so indemnified or
entitled to such expense advances under applicable law).
2.
If there has not been a Change in Control of the Company (as hereinafter
defined), the Reviewing Party shall be (1) quorum of the Board of Directors
consisting of directors who are not parties to the action, suit or proceeding
acting by majority vote, or, (2) if such a quorum is not obtainable, or, even if
obtainable, a quorum of disinterested directors so directs, independent legal
counsel by the use of a written opinion or (3) the stockholders. If there has
been a Change in Control of the Company, the Reviewing Party shall be the
special, independent counsel referred to in Section 4 hereof.
3.
If Indemnitee has not been indemnified by the expiration of the foregoing
thirty-day period or received expense advances or if the Reviewing Party
determines that Indemnitee would not be permitted to be indemnified or be
entitled to receive expense advances within two days of the request therefor in
whole or in part under applicable law, Indemnitee shall have the right to
commence litigation seeking from the court a finding that Indemnitee is entitled
to indemnification and expense advances or enforcement of Indemnitee’s
entitlement to indemnification and expense advances or challenging any
determination by the Reviewing Party or any aspect thereof that Indemnitee is
not entitled to be indemnified or receive expense advances and the burden of
proving that indemnification or advancement of expenses is not appropriate shall
be on the Company; any determination by the Reviewing Party in favor of
Indemnitee shall be conclusive and binding on the Company, unless facts supplied
by Indemnitee which form the basis for the determination are subsequently
determined to have been materially incorrect at the time supplied. Indemnitee
agrees to bring any such litigation in any court in the States of Delaware
having subject matter jurisdiction thereof and in which venue is proper, and the
Company hereby consents to service of process and to appear in any such
proceeding.
4.
The Company agrees that if there is a Change in Control of the Company (as
hereinafter defined), then with respect to all matters thereafter arising
concerning the rights of Indemnitee to indemnity payments and expense advances
under this Agreement or any other agreement or By-laws now or hereafter in
effect relating to Claims for Indemnifiable Events, the Company shall seek legal
advice only from special, independent counsel selected by Indemnitee who a
majority of the disinterested Directors approves (which approval shall not be
unreasonably withheld), and who has not otherwise performed services for the
Company or Indemnitee. Such counsel, among other things, shall determine whether
and to what extent Indemnitee is permitted to be indemnified or is entitled to
expense advances under applicable law and shall render its written opinion to
the Company and Indemnitee to such effect. The Company agrees to pay the
reasonable fees of the special, independent counsel referred to above and to
fully indemnify such counsel against any and all expenses (including
attorney’s fees), claims, liabilities and damages arising out of or
relating to this Agreement or its engagement pursuant hereto except for willful
misconduct or gross negligence.
5.
For purposes of this Agreement, (a) “Change in Control of the Company”
shall be deemed to have occurred if (i) any “person” (as such term is
used in Sections 13(d)(3) and 14(d) of the Securities Exchange Act of 1934, as
amended), other than a trustee or other fiduciary holding securities under an
employee benefit plan of the Company, is or becomes the beneficial owner (as
defined in Rule 13d-3 under said Act), directly or indirectly, of securities of
the Company representing 20% or more of the combined voting power of the
Company’s then outstanding securities, or (ii) during any period of two
consecutive years, individuals who at the beginning of such period constitute
the Board of Directors of the Company and any new director whose election by the
Board of Directors or nomination for election by the Company’s stockholders
was approved by a vote of at least two-thirds (2/3) 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
Company approve a merger or consolidation of the Company with any other
corporation, other than a merger or consolidation which would result in the
voting securities of the Company 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 combined
voting power of the voting securities of the Company of such surviving entity
outstanding immediately after such merger or consolidation, or if the
stockholders of the Company approve a plan of complete liquidation of the
Company or an agreement for the sale or disposition by the Company of all or
substantially all the Company’s assets.
6.
To the extent Indemnitee is successful in such proceeding, the Company shall
indemnify Indemnitee against any and all expenses (including attorney’s
fees) which are incurred by the Indemnitee in connection with any claim asserted
or action brought by Indemnitee for (i) indemnification or advance payment of
Expenses by the Company under this Agreement or any other agreement or Company
By-laws now or hereafter in effect relating to Claims for Indemnifiable Events
and/or (ii) recovery under any directors’ and officers’ liability
insurance policies maintained by the Company, regardless of whether Indemnitee
ultimately is determined to be entitled to such indemnification, advance payment
of Expenses or insurance recovery, as the case may be.
7.
If Indemnitee is entitled under any provision of this Agreement to
indemnification by the Company for some or a portion of the Expenses, judgments,
fines, penalties and amounts paid in settlement of any Claim but not, however,
for all of the total amount thereof, the Company shall nevertheless indemnify
Indemnitee for the portion thereof to which Indemnitee is entitled.
Notwithstanding any other provision of this Agreement, to the extent that
Indemnitee has been successful on the merits or otherwise in the defense of any
Claim relating in whole or in part to any Indemnifiable Event or in defense of
any issue or matter therein, including dismissal without prejudice, Indemnitee
shall be indemnified against all Expenses incurred in connection therewith.
8.
For purposes of this Agreement, the termination of any Claim by judgment, order,
settlement (whether with or without court approval) or conviction, or upon a
plea of nolo contendere, or its equivalent, shall not create a presumption that
Indemnitee did not meet any particular standard of conduct or have any
particular belief or that a court has determined that Indemnitee is not entitled
to indemnification or expense advance or that indemnification or expense advance
is not permitted by applicable law.
9.
The Company hereby agrees that, so long as Indemnitee shall continue to serve in
a capacity referred to in Section 1 hereof, and thereafter so long as Indemnitee
shall be subject to any possible claim or threatened, pending or completed
action, suit or proceeding, whether civil, criminal, administrative or
investigative, by reason of the fact that Indemnitee served in any capacity
referred to in Section 1 hereof, the Company shall maintain in effect for the
benefit of Indemnitee any Directors’ and Officers’ Liability Insurance
presently in force and effect, providing, in all respects, coverage at least
comparable to that presently provided; provided, however, if, in the business
judgment of the then Board, either (a) the premium cost for such insurance is
substantially disproportionate to the amount of coverage, or (b) the coverage
provided by such insurance is so limited by exclusions that there is
insufficient benefit from such insurance, then and in that event the Company
shall not be required to maintain such insurance but shall and hereby agrees to
the full extent permitted by law to hold harmless and indemnify Indemnitee to
the fullest extent of the coverage which would otherwise have been provided for
the benefit of Indemnitee.
10.
(a) In the event of any changes after the date of this Agreement in any
applicable law, statute, or rule which expands the right of the Company to
indemnify a person serving in a capacity referred to in Section 1 hereof, such
change shall be within the purview of Indemnitee’s rights, and the
Company’s obligations, under this Agreement. In the event of any changes in
any applicable law, statute, or rule which narrow the right of the Company to
indemnify a person serving in a capacity referred to in Section 1 hereof, such
changes, 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)
The indemnification provided by this Agreement shall not be deemed exclusive of
any rights to which Indemnitee may be entitled under the Company’s
Certificate of Incorporation, its By-laws, any agreement, any vote of
stockholders or disinterested directors, laws and regulations in effect now or
in the future, or otherwise, both as to action in Indemnitee’s official
capacity and as to action in another capacity while holding such office. |
11.
If the indemnification provided in Section 1 is unavailable and may not be paid
to Indemnitee because such indemnification is not permitted by law, then in
respect of any threatened, pending or completed action, suit or proceeding in
which the Company is jointly liable with Indemnitee (or would be if joined in
such action, suit or proceeding), the Company shall contribute to the full
extent permitted by law, to the amount of expenses, judgments, fines (including
excise taxes and penalties) and amounts paid in settlement actually and
reasonably incurred and paid or payable by Indemnitee in such proportion as is
appropriate to reflect (i) the relative benefits received by the Company on the
one hand and Indemnitee on the other hand from the transaction from which such
action, suit or proceeding arose, and (ii) the relative fault of the Company on
the one hand and of Indemnitee on the other in connection with the events which
resulted in such expenses, judgments, fines or settlement amounts, as well as
any other relevant equitable considerations. The relative fault of the Company
on the one hand and of Indemnitee on the other shall be determined by reference
to among other things, the parties’ relative intent, knowledge, access to
information and opportunity to correct or prevent the circumstances resulting in
such expenses, judgments, fines or settlement amounts. The Company agrees that
it would not be just and equitable if contribution pursuant to this paragraph
were determined by pro rata allocation or any other method of allocation which
does not take account of the foregoing equitable considerations.
12.
All obligations of the Company contained herein shall continue during the period
Indemnitee serves in a capacity referred to in Section 1 hereof of the Company
and shall continue thereafter so long as Indemnitee shall be subject to any
possible Claim relating to an Indemnifiable Event.
13.
(a) Promptly after receipt by Indemnitee of notice of the commencement of any
Claim relating to an Indemnifiable Event or proceeding in which Indemnitee is
made or is threatened to be made a party or a witness, Indemnitee shall notify
the Company of the commencement of such Claim; but the omission so to notify the
Company shall not relieve the Company from any obligation it may have to
indemnify or advance expenses to Indemnitee otherwise than under this Agreement.
| |
(b)
Indemnitee shall not settle any claim or action in any manner which would impose
on the Company any penalty, constraint, or obligation to hold harmless or
indemnify Indemnitee pursuant to this Agreement without the Company’s prior
written consent, which consent shall not be unreasonably withheld. |
14.
If any Claim relating to an Indemnifiable Event, commenced against Indemnitee is
also commenced against the Company, the Company shall be entitled to participate
therein at its own expense, and, except as otherwise provided hereinbelow, to
the extent that it may wish, the Company shall be entitled to assume the defense
thereof. After notice from the Company to Indemnitee of its election to assume
the defense of any Claim, the Company shall not be obligated to Indemnitee under
this Agreement for any legal or other expenses subsequently incurred by
Indemnitee in connection with the defense thereof other than reasonable costs of
investigation, travel, and lodging expenses arising out of Indemnitee’s
participation in such Claim. Indemnitee shall have the right to employ
Indemnitee’s own counsel in such Claim, but the fees and expenses of such
counsel incurred after notice from the Company to Indemnitee of its assumption
of the defense thereof shall be at the expense of Indemnitee unless (i)
otherwise authorized by the Company, (ii) Indemnitee shall have reasonably
concluded, and so notified the Company, that there may be a conflict of interest
between the Company and Indemnitee in the conduct of the defense of such Claim,
or (iii) the Company shall not in fact have employed counsel to assume the
defense of such Claim, in which cases the 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 Claim brought by or on behalf of the
Company or its stockholders or as to which Indemnitee shall have made the
conclusion set forth in (ii) of this Section 14.
15.
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.
16.
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 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.
17.
The Company shall not be liable under this Agreement to make any payment in
connection with any claim made against Indemnitee to the extent Indemnitee has
otherwise actually received payment (under any insurance policy, By-law or
otherwise) of the amounts otherwise indemnifiable hereunder.
18.
This Agreement shall be binding upon and inure to the benefit of and be
enforceable by the parties hereto and their respective successors, assigns,
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, spouses, heirs, executors, and personal and legal representatives. This
Agreement shall continue in effect regardless of whether Indemnitee continues to
serve as an officer or director of the Company or of any other enterprise at the
Company’s request.
19.
The provisions of this Agreement shall be severable in the event that any of the
provisions hereof (including any provision within a single section, paragraph or
sentence) are held by a court of competent jurisdiction to be invalid, void or
otherwise unenforceable, and the remaining provisions shall remain enforceable
to the full extent permitted by law.
20.
This Agreement shall be governed by and construed in accordance with the laws of
the State of Delaware applicable to contracts made and to be performed in such
state, but excluding any conflicts-of-law rule or principle which might refer
such governance, construction or enforcement to the laws of another state or
country.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on and as of the day and year first
above written.
NEW PLANET
RESOURCES, INC.
By:/s/A.W. Dugan
------------------------
A.W. Dugan, President
INDEMNITEE
/s/Michael Branstetter
------------------------------------
Michael Branstetter
EXHIBT 10.5
INDEMNIFICATION
AGREEMENT
AGREEMENT, effective as of March 26, 1999, between NEW PLANET RESOURCES, INC., a Delaware corporation
(the "Company"), and Danyel Owens ("Indemnitee").
WHEREAS, Indemnitee is a director (or officer) of the Company;
WHEREAS, both the Company and Indemnitee recognize the increased risk of litigation and other claims
being asserted against directors and officers of public companies at a time when it has become increasingly
difficult to obtain adequate insurance coverage at reasonable costs;
WHEREAS, in recognition of Indemnities need for substantial protection against personal liability in
order to enhance Indemnitees continued service to the Company in an effective manner, the Company wishes to
provide in this Agreement for the identification of and the advancing of expenses to Indemnitee to the full
extent (whether partial or complete) permitted by law and as set forth in this Agreement, and, to the extent
insurance is maintained, for the continued coverage of Indemnitee under the Company's directors' and officers'
liability insurance policies, regardless of any future change in the Certificate of Incorporation, By-Laws,
composition of the Board of Directors, or structure of the Company.;
NOW, THEREFORE, in consideration of the premises and of Indemnitee's service to the Company, directly or
indirectly, and intending to be legally bound hereby, the parties hereto agree as follows:
1.
In the event Indemnitee was, is, or becomes a party to or a witness or other
participant in, or is threatened to be made a party to or a witness or other
participant in, any threatened, pending or completed action, suit or proceeding,
or any inquiry or investigation, whether conducted by the Company or any other
party, that Indemnitee in good faith believes might lead to any such action,
suit or proceeding, whether civil, criminal, administrative, investigative or
otherwise (a “Claim”) by reason of (or arising in part out of) the
fact that Indemnitee is or was a director, officer, employee, agent or fiduciary
of the Company, or is or was serving at the request of the Company as a
director, officer, employee, trustee, agent or fiduciary of another corporation,
partnership, joint venture, trust, employee benefit plan or other enterprise, or
by reason of anything done or not done by Indemnitee in any such capacity (an
“Indemnifiable Event”), the Company shall indemnify Indemnitee to the
full extent permitted by law (the determination of which shall be made by the
Reviewing Party referred to below) as soon as practicable but in any event no
later than thirty days after written demand is presented to the Company, against
any and all expenses (including attorneys’ fees and all other costs,
expenses, and obligations paid or incurred in connection with investigating,
preparing for and defending or participating in the defense of (including on
appeal) any Claim relating to any Indemnifiable Event) (collectively
“Expenses”), judgments, fines, penalties and amounts paid in
settlement (including all interest, assessments and other charges paid or
payable in connection with or in respect of such judgments, fines, penalties or
amounts paid in settlement) of such Claim and, if so requested by Indemnitee,
the Company shall advance (within two business days of such request) any and all
such Expenses to Indemnitee; provided, however, that (i) the foregoing
obligation of the Company shall not apply to a Claim that was commenced by the
Indemnitee without the prior approval of the Board of Directors of the Company
unless the Claim was commenced after a Change in Control (as defined in Section
5 herein); (ii) the foregoing obligation of the Company shall be subject to the
condition that an appropriate person or body (the “Reviewing Party”)
shall not have determined (in a written opinion in any case in which the
special, independent counsel referred to in Section 4 hereof is involved) that
Indemnitee would not be permitted to be indemnified for such Expenses under
applicable law; and (iii) if, when and to the extent that the Reviewing Party
determines that Indemnitee would not be permitted to be indemnified for such
Expenses under applicable law, the Company shall be entitled to be reimbursed by
Indemnitee (who hereby agrees to reimburse the Company) for all such amounts
theretofore paid (unless Indemnitee has commenced legal proceedings in a court
of competent jurisdiction to secure a determination that Indemnitee should be
indemnified under applicable law, in which event Indemnitee shall not be
required to so reimburse the Company until a final judicial determination
requiring such reimbursement is made with respect thereto as to which all rights
of appeal therefrom have been exhausted or lapsed) and the Company shall not be
obligated to indemnify or advance any additional amounts to Indemnitee under
this Agreement (unless there has been a determination by a court of competent
jurisdiction that the Indemnitee would be permitted to be so indemnified or
entitled to such expense advances under applicable law).
2.
If there has not been a Change in Control of the Company (as hereinafter
defined), the Reviewing Party shall be (1) quorum of the Board of Directors
consisting of directors who are not parties to the action, suit or proceeding
acting by majority vote, or, (2) if such a quorum is not obtainable, or, even if
obtainable, a quorum of disinterested directors so directs, independent legal
counsel by the use of a written opinion or (3) the stockholders. If there has
been a Change in Control of the Company, the Reviewing Party shall be the
special, independent counsel referred to in Section 4 hereof.
3.
If Indemnitee has not been indemnified by the expiration of the foregoing
thirty-day period or received expense advances or if the Reviewing Party
determines that Indemnitee would not be permitted to be indemnified or be
entitled to receive expense advances within two days of the request therefor in
whole or in part under applicable law, Indemnitee shall have the right to
commence litigation seeking from the court a finding that Indemnitee is entitled
to indemnification and expense advances or enforcement of Indemnitee’s
entitlement to indemnification and expense advances or challenging any
determination by the Reviewing Party or any aspect thereof that Indemnitee is
not entitled to be indemnified or receive expense advances and the burden of
proving that indemnification or advancement of expenses is not appropriate shall
be on the Company; any determination by the Reviewing Party in favor of
Indemnitee shall be conclusive and binding on the Company, unless facts supplied
by Indemnitee which form the basis for the determination are subsequently
determined to have been materially incorrect at the time supplied. Indemnitee
agrees to bring any such litigation in any court in the States of Delaware
having subject matter jurisdiction thereof and in which venue is proper, and the
Company hereby consents to service of process and to appear in any such
proceeding.
4.
The Company agrees that if there is a Change in Control of the Company (as
hereinafter defined), then with respect to all matters thereafter arising
concerning the rights of Indemnitee to indemnity payments and expense advances
under this Agreement or any other agreement or By-laws now or hereafter in
effect relating to Claims for Indemnifiable Events, the Company shall seek legal
advice only from special, independent counsel selected by Indemnitee who a
majority of the disinterested Directors approves (which approval shall not be
unreasonably withheld), and who has not otherwise performed services for the
Company or Indemnitee. Such counsel, among other things, shall determine whether
and to what extent Indemnitee is permitted to be indemnified or is entitled to
expense advances under applicable law and shall render its written opinion to
the Company and Indemnitee to such effect. The Company agrees to pay the
reasonable fees of the special, independent counsel referred to above and to
fully indemnify such counsel against any and all expenses (including
attorney’s fees), claims, liabilities and damages arising out of or
relating to this Agreement or its engagement pursuant hereto except for willful
misconduct or gross negligence.
5.
For purposes of this Agreement, (a) “Change in Control of the Company”
shall be deemed to have occurred if (i) any “person” (as such term is
used in Sections 13(d)(3) and 14(d) of the Securities Exchange Act of 1934, as
amended), other than a trustee or other fiduciary holding securities under an
employee benefit plan of the Company, is or becomes the beneficial owner (as
defined in Rule 13d-3 under said Act), directly or indirectly, of securities of
the Company representing 20% or more of the combined voting power of the
Company’s then outstanding securities, or (ii) during any period of two
consecutive years, individuals who at the beginning of such period constitute
the Board of Directors of the Company and any new director whose election by the
Board of Directors or nomination for election by the Company’s stockholders
was approved by a vote of at least two-thirds (2/3) 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
Company approve a merger or consolidation of the Company with any other
corporation, other than a merger or consolidation which would result in the
voting securities of the Company 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 combined
voting power of the voting securities of the Company of such surviving entity
outstanding immediately after such merger or consolidation, or if the
stockholders of the Company approve a plan of complete liquidation of the
Company or an agreement for the sale or disposition by the Company of all or
substantially all the Company’s assets.
6.
To the extent Indemnitee is successful in such proceeding, the Company shall
indemnify Indemnitee against any and all expenses (including attorney’s
fees) which are incurred by the Indemnitee in connection with any claim asserted
or action brought by Indemnitee for (i) indemnification or advance payment of
Expenses by the Company under this Agreement or any other agreement or Company
By-laws now or hereafter in effect relating to Claims for Indemnifiable Events
and/or (ii) recovery under any directors’ and officers’ liability
insurance policies maintained by the Company, regardless of whether Indemnitee
ultimately is determined to be entitled to such indemnification, advance payment
of Expenses or insurance recovery, as the case may be.
7.
If Indemnitee is entitled under any provision of this Agreement to
indemnification by the Company for some or a portion of the Expenses, judgments,
fines, penalties and amounts paid in settlement of any Claim but not, however,
for all of the total amount thereof, the Company shall nevertheless indemnify
Indemnitee for the portion thereof to which Indemnitee is entitled.
Notwithstanding any other provision of this Agreement, to the extent that
Indemnitee has been successful on the merits or otherwise in the defense of any
Claim relating in whole or in part to any Indemnifiable Event or in defense of
any issue or matter therein, including dismissal without prejudice, Indemnitee
shall be indemnified against all Expenses incurred in connection therewith.
8.
For purposes of this Agreement, the termination of any Claim by judgment, order,
settlement (whether with or without court approval) or conviction, or upon a
plea of nolo contendere, or its equivalent, shall not create a presumption that
Indemnitee did not meet any particular standard of conduct or have any
particular belief or that a court has determined that Indemnitee is not entitled
to indemnification or expense advance or that indemnification or expense advance
is not permitted by applicable law.
9.
The Company hereby agrees that, so long as Indemnitee shall continue to serve in
a capacity referred to in Section 1 hereof, and thereafter so long as Indemnitee
shall be subject to any possible claim or threatened, pending or completed
action, suit or proceeding, whether civil, criminal, administrative or
investigative, by reason of the fact that Indemnitee served in any capacity
referred to in Section 1 hereof, the Company shall maintain in effect for the
benefit of Indemnitee any Directors’ and Officers’ Liability Insurance
presently in force and effect, providing, in all respects, coverage at least
comparable to that presently provided; provided, however, if, in the business
judgment of the then Board, either (a) the premium cost for such insurance is
substantially disproportionate to the amount of coverage, or (b) the coverage
provided by such insurance is so limited by exclusions that there is
insufficient benefit from such insurance, then and in that event the Company
shall not be required to maintain such insurance but shall and hereby agrees to
the full extent permitted by law to hold harmless and indemnify Indemnitee to
the fullest extent of the coverage which would otherwise have been provided for
the benefit of Indemnitee.
10.
(a) In the event of any changes after the date of this Agreement in any
applicable law, statute, or rule which expands the right of the Company to
indemnify a person serving in a capacity referred to in Section 1 hereof, such
change shall be within the purview of Indemnitee’s rights, and the
Company’s obligations, under this Agreement. In the event of any changes in
any applicable law, statute, or rule which narrow the right of the Company to
indemnify a person serving in a capacity referred to in Section 1 hereof, such
changes, 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.
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(b)
The indemnification provided by this Agreement shall not be deemed exclusive of
any rights to which Indemnitee may be entitled under the Company’s
Certificate of Incorporation, its By-laws, any agreement, any vote of
stockholders or disinterested directors, laws and regulations in effect now or
in the future, or otherwise, both as to action in Indemnitee’s official
capacity and as to action in another capacity while holding such office. |
11.
If the indemnification provided in Section 1 is unavailable and may not be paid
to Indemnitee because such indemnification is not permitted by law, then in
respect of any threatened, pending or completed action, suit or proceeding in
which the Company is jointly liable with Indemnitee (or would be if joined in
such action, suit or proceeding), the Company shall contribute to the full
extent permitted by law, to the amount of expenses, judgments, fines (including
excise taxes and penalties) and amounts paid in settlement actually and
reasonably incurred and paid or payable by Indemnitee in such proportion as is
appropriate to reflect (i) the relative benefits received by the Company on the
one hand and Indemnitee on the other hand from the transaction from which such
action, suit or proceeding arose, and (ii) the relative fault of the Company on
the one hand and of Indemnitee on the other in connection with the events which
resulted in such expenses, judgments, fines or settlement amounts, as well as
any other relevant equitable considerations. The relative fault of the Company
on the one hand and of Indemnitee on the other shall be determined by reference
to among other things, the parties’ relative intent, knowledge, access to
information and opportunity to correct or prevent the circumstances resulting in
such expenses, judgments, fines or settlement amounts. The Company agrees that
it would not be just and equitable if contribution pursuant to this paragraph
were determined by pro rata allocation or any other method of allocation which
does not take account of the foregoing equitable considerations.
12.
All obligations of the Company contained herein shall continue during the period
Indemnitee serves in a capacity referred to in Section 1 hereof of the Company
and shall continue thereafter so long as Indemnitee shall be subject to any
possible Claim relating to an Indemnifiable Event.
13.
(a) Promptly after receipt by Indemnitee of notice of the commencement of any
Claim relating to an Indemnifiable Event or proceeding in which Indemnitee is
made or is threatened to be made a party or a witness, Indemnitee shall notify
the Company of the commencement of such Claim; but the omission so to notify the
Company shall not relieve the Company from any obligation it may have to
indemnify or advance expenses to Indemnitee otherwise than under this Agreement.
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(b)
Indemnitee shall not settle any claim or action in any manner which would impose
on the Company any penalty, constraint, or obligation to hold harmless or
indemnify Indemnitee pursuant to this Agreement without the Company’s prior
written consent, which consent shall not be unreasonably withheld. |
14.
If any Claim relating to an Indemnifiable Event, commenced against Indemnitee is
also commenced against the Company, the Company shall be entitled to participate
therein at its own expense, and, except as otherwise provided hereinbelow, to
the extent that it may wish, the Company shall be entitled to assume the defense
thereof. After notice from the Company to Indemnitee of its election to assume
the defense of any Claim, the Company shall not be obligated to Indemnitee under
this Agreement for any legal or other expenses subsequently incurred by
Indemnitee in connection with the defense thereof other than reasonable costs of
investigation, travel, and lodging expenses arising out of Indemnitee’s
participation in such Claim. Indemnitee shall have the right to employ
Indemnitee’s own counsel in such Claim, but the fees and expenses of such
counsel incurred after notice from the Company to Indemnitee of its assumption
of the defense thereof shall be at the expense of Indemnitee unless (i)
otherwise authorized by the Company, (ii) Indemnitee shall have reasonably
concluded, and so notified the Company, that there may be a conflict of interest
between the Company and Indemnitee in the conduct of the defense of such Claim,
or (iii) the Company shall not in fact have employed counsel to assume the
defense of such Claim, in which cases the 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 Claim brought by or on behalf of the
Company or its stockholders or as to which Indemnitee shall have made the
conclusion set forth in (ii) of this Section 14.
15.
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.
16.
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 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.
17.
The Company shall not be liable under this Agreement to make any payment in
connection with any claim made against Indemnitee to the extent Indemnitee has
otherwise actually received payment (under any insurance policy, By-law or
otherwise) of the amounts otherwise indemnifiable hereunder.
18.
This Agreement shall be binding upon and inure to the benefit of and be
enforceable by the parties hereto and their respective successors, assigns,
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, spouses, heirs, executors, and personal and legal representatives. This
Agreement shall continue in effect regardless of whether Indemnitee continues to
serve as an officer or director of the Company or of any other enterprise at the
Company’s request.
19.
The provisions of this Agreement shall be severable in the event that any of the
provisions hereof (including any provision within a single section, paragraph or
sentence) are held by a court of competent jurisdiction to be invalid, void or
otherwise unenforceable, and the remaining provisions shall remain enforceable
to the full extent permitted by law.
20.
This Agreement shall be governed by and construed in accordance with the laws of
the State of Delaware applicable to contracts made and to be performed in such
state, but excluding any conflicts-of-law rule or principle which might refer
such governance, construction or enforcement to the laws of another state or
country.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on and as of the day and year first
above written.
NEW PLANET
RESOURCES, INC.
By:/s/A.W. Dugan
------------------------
A.W. Dugan, President
INDEMNITEE
Danyel Owens
------------------------------------
Danyel Owens
EXHIBIT 10.6
INDEMNIFICATION
AGREEMENT
Agreement, effective as of March 30, 1999 between New Planet Resources, Inc., a Delaware corporation
("Indemnifying Party")
WHEREAS, Planet and National previously entered into an Agreement and Plan of Reorganization, dated as
of March 25, 1999 (the "Reorganization Agreement"), providing for the acquisition (the "Acquisition") of all of
the outstanding shares of capital stock of National by Planet;
WHEREAS, immediately after the Closing (as defined in the Reorganization Agreement) of the Acquisition
Planet intends to transfer all of its mineral properties (as hereinafter defined) to New Planet in exchange for
the issuance of shares of New Planet Common Stock;
WHEREAS, Planet's board of directors expects to complete the Distribution (as hereinafter defined)
immediately after the Closing of the Acquisition; and
WHEREAS, the purpose of the Distribution is to make possible the Acquisition by divesting Planet of the
mineral properties with which National is unwilling to combine, and this Distribution Agreement sets forth the
various agreements between Planet and New Planet relating to the divestiture of the mineral properties by Planet.
NOW THEREFORE in consideration of the mutual promises and benefits to be derived from this Agreement,
New Planet and Planet hereby agree as follows:
ARTICLE I
DEFINITIONS
Section 1.1 General. As used in this Agreement, the following terms shall have the following meanings
(such meanings to be equally applicable to both the singular and plural forms of the terms defined):
Agreement: This Indemnification Agreement as amended or supplemented from time to time.
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Affiliate:
Affiliate of any Person shall mean any Person directly or indirectly controlling
or controlled by or under direct or indirect common control with such person.
For purposes of this definition, “control” when used with respect to
any Person means the power to direct the management and policies of such Person,
directly or indirectly, whether through the ownership of voting securities, by
contract or otherwise; and the terms “controlling” and
“controlled” have meanings correlative to the foregoing. |
Agent: Any Person authorized to act and who acts on behalf of any other Person with respect to
the transactions contemplated by the Documents.
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CERCLA
shall mean the Comprehensive Environmental Response, Compensation and Liability
Act of 1980, 42 U.S.C. Section 9601, et seq., as the same may be amended from
time to time. |
Documents: This Agreement, the Registration Statement, together with any exhibits, schedules
or other attachments thereto.
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Environmental
Laws and Orders shall mean collectively, all Laws and Orders relating to
industrial hygiene, occupational safety conditions or environmental conditions
on, under or about property, including, without limitation, RCRA, CERCLA and all
other Laws and Orders relating to emissions, discharges, releases or threatened
releases of pollutants, contaminants, chemicals or industrial, hazardous or
toxic materials or wastes into the environment (including ambient air, surface
water, ground water, land surface or sub-surface strata) or otherwise relating
to the manufacture, processing, distribution, use, treatment, storage, disposal,
transport or handling of pollutants, contaminants, chemicals or industrial
hazardous or toxic materials or wastes. |
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Indemnifiable
Losses shall mean any and all losses, Liabilities, claims, damages,
penalties, fines, demands, awards and judgments, including reasonable costs and
expenses (including, without limitation, attorneys’ fees and any and all
out-of-pocket expenses) whatsoever reasonably incurred in investigating,
preparing for or defending against any Actions or potential Actions involving an
Indemnifiable Loss, incurred by an Indemnitee. |
Mineral Properties shall mean the following:
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(a)
Subsurface mineral rights on approximately 190 acres located in the City of
Mullan, Idaho. Title was acquired by issuance to real property owners of one
share of capital stock for each 25 square feet of surface owned. In acquiring
such mineral rights, the Company issued 361,739 shares of capital stock as
adjusted for subsequent stock splits and Planet merger. Conveyance of title
included, free of any additional stock issue, all subsurface rights lying
beneath adjacent streets and alleys where ownership rested with the grantor. The
acquisition of such mineral rights was completed in November of 1985. |
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(b)
Lease agreement dated May 1, 1981, with the City of Mullan (which supersedes a
previous agreement dated December 31, 1971) whereby Planet, as Lessee, has the
right to mine subsurface minerals on approximately 200 acres owned by the City
north of Osburn Fault for a period of 25 years (subject to a renewal option for
an additional 25 years), The City, as lessor, received 20% of all royalty
payments or other consideration received by Allied from Hecla. In the event
Allied enters in to a lease agreement for the exploration and development of
“City Property” south of the Osburn Fault, the City shall receive 15%
of the royalties received. No royalties have been paid on “City
Property” south of the fault. |
Person: shall mean and include an individual, a partnership, a joint venture, a corporation, a
trust, an association, a company, an unincorporated organization, a government or any department,
political subdivision or agency thereof.
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Planet
Indemnitees shall mean Planet, National, the directors and officers of
Planet, National and each of the heirs, executors, successors and assigns of any
of the foregoing. |
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RCRA
shall mean the Resource Conservation and Recovery Act of 1976, 42 U.S.C. Section
6901, et seq., as the same may be amended from time to time. |
ARTICLE II
INDEMNIFICATION
Section 2.1 Indemnification by New Planet Subsequent to the Distribution Date, except as otherwise
specifically set forth in any provision of this Distribution Agreement, New Planet shall indemnify, defend and
hold harmless the New Planet Indemnitees from and against any and all Indemnifiable Losses of the New Planet
Indemnitees arising out of, by reason of or otherwise in connection with (a) the Mineral Properties, (b) the
breach, whether before or after the Distribution Date, by Planet of any provision of this Distribution Agreement
or (c) any Planet Liabilities.
Section 2.2 Procedures for Indemnification.
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(a)
If a claim or demand is made against an Indemnitee by any person who is not a
party to this Distribution Agreement (a “Third Party Claim”) as to
which such Indemnitee is entitled to indemnification pursuant to this
Distribution Agreement, such Indemnitee shall notify the Indemnifying Party in
writing, and in reasonable detail, of the Third Party Claim promptly (and in any
event within 20 business days) after receipt by such Indemnitee of written
notice of the Third Party Claim; provided, however, that failure to give such
notification within such 20 business day period shall not affect the
indemnification provided hereunder except to the extent the Indemnifying Party
shall have been actually prejudiced as a result of such failure (except that the
Indemnifying Party shall not be liable for any expenses incurred during the
period in which the Indemnitee failed to give such notice). Thereafter, the
Indemnitee shall deliver to the Indemnifying Party, promptly (and in any event
within 20 business days) after the Indemnitee’s receipt thereof, copies of
all notices and documents (including court papers) received by the Indemnitee
relating to the Third Party Claim. |
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(b)
If a Third Party Claim is made against an Indemnitee, the Indemnifying Party
shall be entitled to participate in the defense thereof and, if it so chooses
and acknowledges in writing its obligation to indemnify the Indemnitee therefor,
to assume the defense thereof with counsel selected by the Indemnifying Party;
provided that such counsel is not reasonably objected to by the Indemnitee.
Should the Indemnifying Party so elect to assume the defense of a Third Party
Claim, the Indemnifying Party shall not be liable to the Indemnitee for legal or
other expenses subsequently incurred by the Indemnitee in connection with the
defense thereof. If the Indemnifying Party assumes such defense, the Indemnitee
shall have the right to participate in the defense thereof and to employ
counsel, at its own expense, separate from the counsel employed by the
Indemnifying Party, it being understood that the Indemnifying Party shall
control such defense. The Indemnifying Party shall be liable for the fees and
expenses of counsel employed by the Indemnitee (i) for any period during which
the Indemnifying Party has failed to assume the defense thereof (other than
during the 20 business day period prior to the time the Indemnitee shall have
given notice of the Third Party Claim as provided above) or (ii) in the event
the Indemnitee reasonably determines, based on the advice of its counsel that
there shall exist a conflict of interest between the Indemnitee and the
Indemnifying Party or that there are defenses available to the Indemnitee that
are not available to the Indemnifying Party, the effect of which shall be to
make it impractical for the Indemnitee and the Indemnifying Party to be jointly
represented by the same counsel, in which case the Indemnifying Party shall be
liable for the fees and expenses of one counsel for all Indemnitees in any
single or series of related Actions. If the Indemnifying Party so elects to
assume the defense of any Third Party Claim, the Indemnitee shall cooperate with
the Indemnifying Party in the defense or prosecution thereof. |
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(c)
If the Indemnifying Party acknowledges in writing liability for indemnification
of a Third Party Claim, then in no event will the Indemnitee admit any liability
with respect to, or settle, compromise or discharge, any Third Party Claim
without the Indemnifying Party’s prior written consent; provided, however,
that the Indemnitee shall have the right to settle, compromise or discharge such
Third Party Claim without the consent of the Indemnifying Party if the
Indemnitee releases the Indemnifying Party from its indemnification obligation
hereunder with respect to such Third Party Claim and such settlement, compromise
or discharge would not otherwise adversely affect the Indemnifying Party. If the
Indemnifying Party acknowledges in writing liability for indemnification of a
Third Party Claim, the Indemnitee will agree to any settlement, compromise or
discharge of a Third Party Claim that the Indemnifying Party may recommend that
by its terms (i) obligates the Indemnifying Party to pay the full amount of the
liability in connection with such Third Party Claim, (ii) releases the
Indemnitee completely in connection with such Third Party Claim and (iii) would
not otherwise adversely affect the Indemnitee; provided, however, that the
Indemnitee may refuse to agree to any such settlement, compromise or discharge
and may assume the defense of such Third Party Claim if the Indemnitee agrees
(A) that the Indemnifying Party’s indemnification obligation with respect
to such Third Party Claim shall not exceed the amount that would have been
required to be paid by or on behalf of the Indemnifying Party in connection with
such settlement, compromise or discharge and (B) to assume all costs and
expenses thereafter incurred in connection with the defense of such Third Party
Claim (other than those contemplated by subclause (A) herein above). |
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(d)
Notwithstanding the foregoing, the Indemnifying Party shall not be entitled to
assume the defense of any Third Party Claim (and shall be liable for the fees
and expenses of counsel incurred by the Indemnitee in defending such Third Party
Claim) if the Third Party Claim seeks an order, injunction or other equitable
relief or relief other than money damages against the Indemnitee which the
Indemnitee reasonably determines, based on the advice of its counsel, cannot be
separated from any related claim for money damages. If such equitable or other
relief portion of the Third Party Claim can be so separated from the claim for
money damages, the Indemnifying Party shall be entitled to assume the defense of
the portion relating to money damages. |
Section 2.3 Indemnification Payments. Indemnification required by this Article III shall be made by
periodic payments of the amount thereof during the course of the investigation or defense, as and when bills are
received or loss, liability, claim, damage or expense is incurred.
Section 2.4 Indemnities. . The obligations of New Planet under this Article III shall survive the sale
or other transfer by either of them of any assets or businesses or the assignment by either of them of any
Liabilities, with respect to any Indemnifiable Loss of any Indemnitee related to such assets, businesses or
Liabilities and shall be binding on the successors and assigns of all, or substantially all, of their respective
assets and business.
ARTICLE III
DISPUTE
RESOLUTION
Section 3.1 Indemnification Agreement Disputes. In the event of a controversy, dispute or claim
arising out of, in connection with, or in relation to the interpretation, performance, nonperformance, validity
or breach of this Agreement or otherwise arising out of, or in any way related to this Agreement, including,
without limitation, any claim based on contract, tort, statute or constitution (singly, an "Agreement Dispute"
and collectively, "Agreement Disputes"), the party asserting the Agreement Dispute shall give written notice to
the other party of the existence and nature of such Agreement Dispute. Thereafter, the general counsels (or other
designated representatives) of the respective parties shall negotiate in good faith for a period no less than 60
days after the date of the notice in an attempt to settle such Agreement Dispute. If after such 60 calendar day
period such representatives are unable to settle such Agreement Dispute, any party hereto may commence
arbitration by giving written notice to all other party that such Agreement Dispute has been referred to the
American Arbitration Association for arbitration in accordance with the provisions of this Article.
Section 3.2 Arbitration in Accordance with American Arbitration Association Rules. All Agreement
Disputes shall be settled by arbitration in Houston, Texas, before a single arbitrator in accordance with the
rules of the American Arbitration Association (the "Rules"). The arbitrator shall be selected by the mutual
agreement of all parties, but if they do not so agree within twenty (20) days after the date of the notice of
arbitration referred to above, the selection shall be made pursuant to the Rules from the panels of arbitrators
maintained by the American Arbitration Association. The arbitrator shall be an individual with substantial
professional experience with regard to resolving or settling sophisticated commercial disputes.
Section 3.3 Final and Binding Awards. Any award rendered by the arbitrator shall be conclusive and
binding upon the parties hereto; provided, however, that any such award shall be accompanied by a written opinion
of the arbitrator giving the reasons for the award. This provision for arbitration shall be specifically
enforceable by the parties and the decision of the arbitrator in accordance therewith shall be final and binding,
and there shall be no right of appeal therefrom. The parties agree to comply with any award made in any such
arbitration proceedings that has become final in accordance with the Rules, and agree to the entry of a judgment
in any jurisdiction upon any award rendered in such proceedings becoming final under the Rules.
Section 3.4 Costs of Arbitration. In the award the arbitrator shall allocate, in his or her
discretion, among the parties to the arbitration all costs of the arbitration, including, without limitation, the
fees and expenses of the arbitrator and reasonable attorneys' fees, costs and expert witness expenses of the
parties. Absent such an allocation by the arbitrator, each party shall pay its own expenses of arbitration, and
the expenses of the arbitrator shall be equally shared.
Section 3.5 Settlement by Mutual Agreement. Nothing contained in this Article shall prevent the
parties from settling any Agreement Dispute by mutual agreement at any time.
SECTION IV
MISCELLANEOUS
Section 4.1 No Inconsistent Agreements. New Planet will not on or after the date of this Agreement
enter into any agreement with respect to its securities which is inconsistent with this Agreement or otherwise
conflicts with the provisions hereof. In the event New Planet has previously entered into any agreement with
respect to its securities granting any registration rights to any Person, the rights granted to Planet hereunder
do not in any way conflict with and are not inconsistent with the rights granted to the holders of New Planet's
securities under any such agreements.
Section 4.2 Survival of Obligations. The obligations of the parties under Sections 3 and 4 of this
Agreement shall survive the termination for any reason of this Agreement (whether such termination is by New
Planet, by Planet, upon the expiration of this Agreement or otherwise).
Section 4.3 Severability. In case any one or more of the provisions or part of the provision
contained in this Agreement shall for any reason be held to be invalid, illegal or unenforceable in any respect
in any jurisdiction, such invalidity, illegality or unenforceability shall be deemed not to affect any other
jurisdiction or any other provision or part of a provision of this Agreement, but this Agreement shall be
reformed and construed in such jurisdiction as if such provision or part of a provision held to be invalid or
illegal or unenforceable had never been contained herein and such provision or part reformed so that it would be
valid, legal and enforceable in such jurisdiction to the maximum extent possible. In furtherance and not in
limitation of the foregoing, New Planet and Planet each intend that the covenants contained in Sections 4 and 5
shall be deemed to be a series of separate covenants, one for each county of the State of Texas and one for each
and every other state, territory or jurisdiction of the United States and any foreign country set forth therein.
If, in any judicial proceeding, a court shall refuse to enforce any of such separate covenants, then such
enforceable covenants shall be deemed eliminated from the provisions hereof for the purpose of such proceedings
to the extent necessary to permit the remaining separate covenants to be enforced in such proceedings. If, in
any judicial proceeding, a court shall refuse to enforce any one or more of such separate covenants because the
total time thereof is deemed to be excessive or unreasonable, then it is the intent of the parties hereto that
such covenants, which would otherwise be unenforceable due to such excessive or unreasonable period of time, be
enforced for such lesser period of time as shall be deemed reasonable and not excessive by such court.
Section 4.4 Entire Agreement, Amendment. This Agreement contains the entire agreement between New
Planet and Planet with respect to the subject matter thereof. Planet acknowledges that it neither holds any
right, warrant or option to acquire securities of New Planet, nor has the right to any such rights, warrants or
options, except pursuant to the is Agreement. This Agreement may not be amended, waived, changed, modified or
discharged except by an instrument in writing executed by or on behalf of the party against whom any amendment,
waiver, change, modification or discharge is sought.
Section 4.5 Notices. All notices and other communications provided for or permitted hereunder shall
be made in writing and shall be deemed to have duly given if delivered by hand-delivery, registered first-class
mail, postage prepaid, telex, telecopier, or air courier guaranteeing overnight delivery as follows:
To New Planet: To Planet
New Planet Resources, Inc. Planet Resources, Inc.
1415 Louisiana, Suite 3100 One Park Ten Place, Suite 200
Houston, Texas 77002 Houston, Texas 77084
Attn: A.W. Dugan, President Attn: Hunter M.A. Carr, President
with an additional copy by like means to: with an additional copy by like means to:
Sonfield and Sonfield Planet Resources, Inc.
770 South Post Oak Lane One Park Ten Place, Suite 200
Houston, Texas 77056 Houston, Texas 77084
Attn: Robert L. Sonfield, Jr., Esq. Attn: Jonathan C. Gilchrist, Esq.
and/or to such other persons and addresses as any party shall have specified in writing to the other.
All such notices and communications shall be deemed to have been duly given: at the time delivered by
hand, if personally delivered; five business days after being deposited in the mail, postage prepaid, if mailed;
when answered back, if telexed; when receipt acknowledged, if telecopied; and on the next business day if timely
delivered to an air courier guaranteeing overnight delivery.
Section 4.6 Assignability. This Agreement shall be assignable by either party on the express consent
of the other and shall be binding upon, and shall inure to the benefit of, the successors and assigns of the
parties.
Section 4.7 Governing Law. This Agreement shall be governed by and construed under the laws of the
State of Delaware.
Section 4.8 Waiver and Further Agreement. Any waiver of any breach of any terms or conditions of this
Agreement shall not operate as a waiver of any other breach of such terms or conditions or any other term or
condition, nor shall any failure to enforce any provision hereof operate as a waiver of such provision or of any
other provision hereof. Each of the parties hereto agrees to execute all such further instruments and documents
and to take all such further action as the other party may reasonably require in order to effectuate the terms
and purposes of this Agreement.
Section 4.9 Heading of No Effect. The paragraph headings contained in this Agreement are for
reference purposes only and shall not in any way affect the meaning or interpretation of this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first above written.
NEW PLANET RESOURCES, INC.
By: /s/A.W. Dugan
----------------------------------------
A.W. Dugan, President
PLANET RESOURCES, INC.
By: /s/Hunter M.A. Carr
----------------------------------------
Hunter M.A. Carr, President
EXHIBIT 10.8
LEASE
AGREEMENT WITH CITY OF MULLAN, IDAHO
ASSIGNMENT
OF MINING LEASE
For value received, Planet Resources, Inc., a Delaware Corporation, formally known as Allied Silver Lead
Company, Assignor, hereby sells, assigns and transfers to New Planet Resources Inc., a Delaware Corporation,
Assignee, all of Assignor's right, title and interest in and to that certain lease by and between the City of
Mullan, County of Shoshone, State of Idaho and Allied Silver Lead Company, dated May 7, 198 1, a copy of which is
attached hereto as Exhibit "1".
By reason of this Assignment, Assignor assigns to the Assignee all of its rights, privileges and duties
arising or existing under said Lease. Assignee hereby agrees to fully and faithfully perform all of Assignor's
duties and obligations under said Lease.
Dated this ___ day of ________________, 1999.
Planet Resources, Inc.
By: /s/Hunter M.A. Carr
-----------------------------------------
Hunter M.A. Carr, President
The above Assignment is hereby accepted by Assignee.
New Planet Resources, Inc.
By: /s/A.W. Dugan
-----------------------------------------
A.W. Dugan
STATE OF TEXAS )
)ss.
County of HARRIS )
On this ___ day of __________, 1999, before me, the undersigned, a Notary Public in and for the state
aforesaid, personally appeared Hunter M.A. Carr known or identified to me to be the President of Planet
Resources, Inc., a Delaware corporation and the officer that executed the foregoing instrument on behalf of said
corporation, and acknowledged to me that such corporation executed the same.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my Notary the day and year in this
certificate first above written.
--------------------------------------------
Notary Public in and for the State of Texas
Residing at:
--------------------------------
My Commission expires:
----------------------
STATE OF TEXAS )
)ss.
County of HARRIS )
On this ___ day of __________, 1999, before me, the undersigned, a Notary Public in and for the state
aforesaid, personally appeared _________________ or identified to me to be the Secretary of Planet Resources,
Inc., a Delaware corporation and the officer that executed the foregoing instrument on behalf of said
corporation, and acknowledged to me that such corporation executed the same.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my Notary the day and year in this
certificate first above written.
--------------------------------------------
Notary Public in and for the State of Texas
Residing at:
--------------------------------
My Commission expires:
----------------------
MINING LEASE
THIS LEASE AGREEMENT, entered into this 7th day of May, 1981, by and between the CITY OF MULLAN, a
municipal corporation organized under the laws of the State of Idaho, party of the first part and hereinafter
referred to as the "LESSOR", and ALLIED SILVER LEAD COMPANY, an Idaho Corporation, having its principal place of
business within the City of Mullan, County of Shoshone, State of Idaho, party of the second part, hereinafter
referred to as the "LESSEE".
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, the Lessor and the Lessee on the 28th day of December, 1970, entered into that certain letter
of intent wherein the Lessor desired to lease to the Lessee the mineral rights owned by the Lessor and situated
within the exterior boundaries of the City of Mullan, Shoshone County, State-of Idaho, and which letter of intent
was later revised to a written mining lease, dated December 3,-1971; and
WHEREAS, the parties now desire to enter into a new lease;
NOW THEREFORE, IT IS HEREBY AGREED AS FOLLOWS:
1. The Lessor does hereby let, lease and demise to the Lessee, for the term of Twenty-Five (25)
years pursuant to Idaho Code Section 50-234, the exclusive right and privilege in the Lessee to mine for and
extract any and all minerals which may underlie the surface of the real- property within the exterior
geographical boundaries of the City of Mullan, County of Shoshone, State of Idaho, which may be owned by said
Lessor and consisting of approximately 200 total acres and shown as outlined on Exhibit `A" attached hereto and
by reference incorporated herein and shall be referred to as the "Property" or "Properties".
2. It is understood that the Lessee and/or its assignees intend to explore and develop the mineral
rights owned by the Lessor and the Lessee jointly. In this regard, it is specifically understood by and between
the parties hereto that the Lessee has entered into a letter of intent with Sunshine Mining Company, a Delaware
corporation, licensed to transact business within the State of Idaho, for the exploration and development of the
mining properties lying north of the Osburn fault as defined by attached Exhibit "B", owned by the Lessor and the
Lessee and to receive from the exploration and development therefrom certain royalties to be paid by the Sunshine
Mining Company for minerals extracted from the properties of the Lessor and the Lessee. In this regard, it is
understood and agreed by the parties hereto that in consideration of the lease granted hereunder by the Lessor to
the Lessee, that the Lessor shall be entitled to receive twenty per cent (20%) of any and all royalty payments,
advance or otherwise, or other consideration which may be paid by the Sunshine Mining Company or any other
assignee of all or part of this Lease to the Lessee. If and when the Lessor herein enters into any agreement for
the exploration and development of its properties south of the Osburn fault, the Lessor shall be entitled to
fifteen per cent (15%) of the returns from this property.
3. It is understood and agreed between the Lessor and the Lessee, that the Lessor, if it elects,
shall be entitled to have one representative upon the Board of Directors of the Lessee during the term of this
lease agreement or any extension or renewal thereof, so that the Lessor may be properly informed upon the
progress of the work to be performed by the Lessee and/or its assignee under this agreement.
4. It is understood and agreed by the Lessee that in accordance with Idaho Code Section 50-234
that the-surface of said property shall to the extent provided by said statute in no wise be interfered with or
disturbed, by the Lessee in the mining and extraction of any and all minerals which may be found within the
property herein leased by the Lessor.
5. It is expressly understood and agreed that the Lessee may either choose to explore and/or
develop the mineral rights of the Lessor subject to this agreement or to engage others to perform such
exploration and/or development. The Lessor hereby agrees that the Lessee shall have the right to assign this
agreement and all rights pertaining thereto.
6. It is expressly understood and agreed by and between the Lessor and the Lessee that all work
which may be performed under the terms of this lease agreement by the Lessee and/or its assignee, shall be
performed in such a manner and at such depths below the surface as will not cause or result in any caving or
settlement of the surface or any damage to any buildings or other structures on the surface and situated within
the exterior boundaries of the City of Mullan, County of Shoshone, State of Idaho.
7. To the extent permitted by the Laws of the State of Idaho, the Lessee shall have the option to renew
said lease upon the same terms and conditions for an additional term of twenty-five (25) years from the date of
expiration of this lease agreement by giving written notice of said renewal on or before 180 days from the
expiration date of this lease agreement.
8. This lease of' subsurface minerals is intended to and does convey according to the terms and
conditions hereof to the Lessee and/or its assignee during the term of this agreement and any renewal or
extension thereof, all veins, fissures, stringers or other mineral bearing structures' and all ores therein
containing precious or base metals, including but not limited to silver, lead, zinc, gold and copper, together
with the right to enter into the above described property by such underground tunnels, drifts, crosscuts,
laterals, raises, winzes or other necessary or appropriate openings as in the judgment of the Lessee and/or its
assignees shall be necessary or convenient in its exploration and/or development of the property of the Lessor.
IN WITNESS WHEREOF, The Lessor has caused these presents to be signed by its duly authorized Mayor and
attested to by its City Clerk, and the Lessee has caused these presents to be signed by its duly authorized
President and attested thereto by its duly authorized Secretary, the day and year first above written.
ATTEST: CITY OF MULLAN
------------------------------------ --------------------------------------------
City Clerk Mayor
ATTEST: ALLIED SILVER LEAD COMPANY
------------------------------------ --------------------------------------------
Secretary President
EXHIBIT 10.9
FORM OF
MINING DEED
.........THIS INDENTURE, made the ___ day of ____________. 1999, between Planet Resources, Inc., a Delaware
Corporation, party of the first part, and New Planet Resources, Inc., a Delaware Corporation, of 14.15 Louisiana
Street, Suite 3 100, Houston, Texas, 77002-7360, party of the second part.
W I T N E S S E T H:
- - - - - - - - - -
.........That the said
party of the first part, for and in consideration of the sum of ONE DOLLAR ($
1.00), lawful money of the United States of America, to it in hand paid by the
said party of the second part, the receipt whereof is hereby acknowledged, has
granted, bargained, sold, remised, released and forever quitclaimed and by these
presents does grant, bargain, sell, remise, release and forever quitclaim unto
said party of the second part, its heirs and assigns the following:
......... The subsurface mineral rights set forth in Exhibit "A" attached hereto as Exhibit A-1 through
A-8.
.........Together with all
the dips, spurs and angles, and also all the metals, ores, gold and
silver-bearing quartz rock and earth therein belonging thereto, and all the
rights, privileges and franchises thereto incident, appendant and appurtenant,
or therewith usually had and enjoyed; and also all and singular the tenements,
hereditaments and appurtenances thereto belonging or in anywise appertaining,
and the rents, issues and profits thereof, and also all the estate, right,
title, interest, property, possession, claim and demand whatsoever, as well in
law as in equity, of the said party of the first part, of, in and to said
premises, and every part and parcel thereof, with appurtenances.
.........To have and to
hold all and singular, the said premises, together with the appurtenances and
privileges thereto incident, unto the said party of the second part, its heirs
and assigns forever.
.........IN WITNESS WHEREOF,, the said party of the first part has hereunto subscribed their names the day and
year first above written.
Planet Resources, Inc.
By:....../s/Hunter M.A. Carr
-----------------------------------------
Hunter M.A. Carr, President
Attest:
........./s/
------------------------------------
_________________, Secretary
STATE OF TEXAS )
......... )ss.
County of HARRIS )
.........On this ___ day of __________, 1999, before me, the undersigned, a Notary Public in and for the state
aforesaid, personally appeared Hunter M.A. Carr and ________________ known or identified to me to be the
President and Secretary respectively, of Planet Resources, Inc., a Delaware corporation and the officers that
executed the foregoing instrument on behalf of said corporation, and acknowledged to me that such corporation
executed the same.
.........IN WITNESS WHEREOF, I have hereunto set my hand and affixed my Notary the day and year in this
certificate first above written.
.........
--------------------------------------------
......... Notary Public in and for the State of Texas
......... Residing at:
--------------------------------
......... My Commission expires:
----------------------
EXHIBIT 10.10
FRANK J.
FRANKOVICH
INDEPENDENT GEOLOGIST
East 34 High Drive Spokane, WA 99203 (509) 747-7300
March 23, 2000
Planet Resources, Inc.
1415 Louisiana, Suite 3100
Houston, Texas 77002
RE: My opinion on the worth of the mineral lands owned by Planet Resources, Inc. in and Adjacent to the city
of Mullan, Idaho.
PROPERTY: City of Mullen Lease Agreement on approximately 200 acres of land for a period of 25
years with an option to renew for 25 years. 190 acres of ownership of sub-surface mineral
rights held as fee simple by Planet Resources, Inc. (Allied Silver-Lead Company)
Gentlemen:
I place a value of $100,000 on the mineral rights that Planet Resources, Inc. owns in the property described
above.
This opinion is based
principally on the fact that the immensely productive Lucky Friday mine is
adjacent to the subject property on the east and near it on the north. The
geologic features in the subject property and in the Lucky Friday property are
closely related and very similar. My judgment in this subject comes from 17
years of full-time geological work in the Couer d’Alene district and my
subsequent 20 years of occasional consulting work in the district.
All of the hundreds of
millions of ounces of ore found in the last 50 years in the Coeur d’Alene
mining district had no surface manifestation of its existence and was found only
by underground exploration guided by a few general geologic principles. It is in
this manner that I expect ore to be developed, in due time, in the subject
property and probably by the Hecla Mining Company which owns the Lucky Friday
mine.
/s/Frank J. Frankovich
------------------------------------
Frank J. Frankovich
Consulting Geologist
Idaho Registration No. 273
Arizona Registration No. 2650
EXHIBIT 23.1
CONSENT OF
INDEPENDENT PUBLIC ACCOUNTANTS
We consent to the use in this Registration Statement on Form SB-2 No. 33-76533 of our report dated
August 24, 2000 relating to the financial statements of Planet Resources, Inc., and to the reference to our Firm
under the caption "Experts" in the Prospectus.
/s/HARPER and PEARSON COMPANY
Houston, Texas
November 6, 2000
EXHIBIT 23.2
S O N F I E L D and S O N F I E L D
A
Professional Corporation
LEON SONFIELD (1865-1934) ATTORNEYS AT LAW NEW YORK
GEORGE M. SONFIELD (1899-1967) LOS ANGELES
ROBERT L. SONFIELD (1893-1972) 770 SOUTH POST OAK LANE WASHINGTON, D.C.
____________________ HOUSTON, TEXAS 77056-1913
http://www.sonfield.com
FRANKLIN D. ROOSEVELT, JR. (1914-1988)
Telecopier (713) 877-1547
----
ROBERT L. SONFIELD, JR. Telephone (713) 877-8333
Managing Director
[email protected]
November 6, 2000
Board of Directors
Planet Resources, Inc.
1415 Louisiana, Suite 3100
Houston, Texas 77002
Re: Federal Income Tax Consequences of Proposed Distribution to Shareholders of Internet Law Library, Inc.
Ladies and Gentlemen:
In our capacity as counsel for Planet Resources, Inc. (formerly New Planet Resources, Inc.) (the
"Company"), we have participated in the corporate proceedings relative to the authorization and issuance of
2,000,000 shares of Common Stock, par value $.001 per share ("Company Common Stock") to the stockholders of
Internet Law Library, Inc. (formerly Planet Resources, Inc.) ("Internet Law") (the "Distribution"), pursuant to
the terms of a Amended and Restated Plan and Agreement of Distribution by and between Internet Law and the
Company (the "Distribution Agreement"). A copy of the Distribution Agreement is included as exhibit 1.2 to the
registration statement of which the prospectus is a part, all as set out and described in the Company's
registration statement on Form SB-2 (File No. 333-76533) under the Securities Act of 1933 (the "Registration
Statement"). We have also participated in the preparation and filing of the Registration Statement including the
federal income tax information set out therein under the caption "Federal Income Tax Consequences" and elsewhere
in the prospectus constituting a part of the Registration Statement.
Based upon the foregoing and upon our examination of originals (or copies certified to our satisfaction)
of such corporate records, certificates and other documents of the Company and upon inquiry of such officers of
the Company as we have deemed necessary or appropriate as a basis for the opinions hereinafter expressed, and
assuming the accuracy and completeness of all information supplied us by the Company, we are of the opinion that:
(1) The Company is a corporation duly organized and validly existing under the laws of the State of
Delaware;
(2) The Company has taken all requisite corporate action and all action required by the laws of the
State of Delaware with respect to the authorization, issuance and sale of the Company Common Stock, to be issued
pursuant to the Registration Statement;
(3) The 2,000,000 shares of the Company Common Stock, when issued and delivered in the Distribution in
the manner set forth in the Registration Statement relating to the Company Common Stock, will be duly authorized,
validly issued, fully paid and non-assessable shares of the Company Common Stock;
(4) Based upon the current provisions of federal income tax laws and regulations, and on current
authoritative interpretations thereof, we are of the opinion that the Distribution will qualify as a tax-free
spin-off under sections 355 and 368(a)(1)(D) of the Internal Revenue Code of 1986. Neither Internet Law, Planet
nor their stockholders, will recognize any gain or loss upon the receipt by Planet of the mineral properties and
related assets from Internet Law or upon receipt by Internet Law stockholders of the Planet common stock in the
Distribution.
No opinion is expressed with respect to state, local, foreign or other tax laws. This opinion does not
take into account the special circumstances of certain stockholders of Internet Law, for example, foreign
persons, tax-exempt organizations, insurance companies, financial institutions, dealers in stocks and securities,
and persons who do not hold their Internet Law common stock as a capital asset, which might affect the results
described above.
We hereby consent to the
use of this opinion as an exhibit to the Registration Statement and to the
references to our firm in the prospectus.
Yours very truly,
/s/Sonfield and Sonfield
------------
SONFIELD and SONFIELD
EXHIBIT 23.3
CONSULTING
AGREEMENT BY AND BETWEEN
GENESIS
FINANCIAL GROUP, L.L.C AND PLANET RESOURCES, INC.
| |
THIS
AGREEMENT (the “Agreement”) is entered into as of this 2nd day of
November, 1999, by and between Genesis Financial Group, L.L.C., a Delaware
limited liability company with principal offices at 2476 Bolsover, Suite 607,
Houston, Texas 77005 (the “Consultant”) and Planet Resources, Inc., a
Delaware corporation (formerly New Planet Resources, Inc, a wholly-owned
subsidiary of Internet Law Library, Inc. (formerly Planet Resources, Inc.)) with
its principal offices at 1415 Louisiana, Suite 3100, Houston, Texas 77002
(collectively hereinafter referred to as the “Corporation”). |
WHEREAS, the Consultant has developed expertise in providing strategic business advice and consulting
services; and
WHEREAS, the Corporation desires to engage the services of the Consultant and the Consultant desires to
provide services to the Corporation as set forth below, upon the terms and subject to the conditions set forth
herein.
NOW, THEREFORE, in consideration of the foregoing and for such other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:
1. Engagement.
Effective upon execution hereof, the Corporation hereby engages the Consultant
to render to it assistance in the preparation of certain sections of the SB-2
Registration Statement for the Corporation (currently, a wholly-owned subsidiary
of Internet Law Library, Inc.) (formerly Planet Resources, Inc.), as well as
preparation of responses to comments on the initial SB-2 Registration Statement
for the Corporation received from the United States Securities and Exchange
Commission (the “SEC”) in its letter to the Corporation dated May 20,
1999. (the “Project”). This Agreement shall remain in effect for a
period of the earlier of six months from the date hereof or the approval of said
registration statement by the SEC (the “Term”). The Term hereof may be
extended or renewed upon the written agreement of the Corporation and the
Consultant prior to expiration of the Term hereof upon such terms as the parties
hereto may negotiate at the time of such extension or renewal.
2. Services. For the
Term of this Agreement, the Consultant shall render to the Corporation
management consulting advice in the areas of strategic planning, business
strategy, administration and such other related management services as shall
reasonably be requested by the board of directors of the Corporation in
connection with the Project. Notwithstanding the foregoing, yet understanding
that time is of the essence in the completion of the Project, the Consultant
shall not be required to devote more than twenty hours per week to the
performance of services hereunder.
3. Compensation. In
consideration for the performance of the services described above, the
Corporation shall pay to the Consultant, Five Thousand Dollars ($5,000) in cash
upon execution of this Agreement. In addition, within five (5) business days
from the date the SB-2 Registration Statement of the Corporation is declared
effective by the SEC, the Corporation shall pay to the Consultant an additional
$5,000 in cash and issue to the Consultant (as the Consultant designates) a
warrant to purchase an aggregate of 50,000 shares of common stock of the
Corporation with an exercise price of $0.40 per share (the “Warrant”).
The purchase price of the Warrant shall be $10.00. The Warrant, in the
aggregate, will have an expiration date of five (5) years from the date of
execution of this Agreement.
4. Out-of-Pocket
Expenses. The Corporation shall reimburse Consultant for its travel and
other out-of-pocket expenses incurred in connection with this Agreement, and
such reimbursement shall be in addition to any other fees payable hereunder. The
Consultant will submit to the Corporation for pre-approval of all out-of-pocket
expenses greater than $500. Out-of-pocket expenses less than $500 will not
require pre-approval by the Corporation. All invoices shall be paid in cash and
are due and payable upon receipt of monthly invoices from Consultant
5. Warrant. The
Warrant outlined in paragraph 3 hereof shall provide for cashless exercise and
shall be exercisable as to all or any portion thereof from time to time on any
Business Day for a period of seven years. The Corporation shall include in the
registration statement, which is being prepared pursuant to this Agreement,
50,000 shares of common stock to be registered to cover the sale of the shares
of common stock issuable upon exercise of the Warrant. The Warrant shall be
purchasable by the Consultant, its affiliates, or its designees in amounts yet
to be determined. The Warrant, as to all or any part of the number of shares of
common stock issuable under the terms of the Warrant, and all options and rights
under the Warrant, shall be transferable. In the event that the registration
statement contemplated hereby is not declared effective, then on any date
subsequent hereto in which the Corporation proposes to file a registration
statement relating to any of its securities under the Securities Act in
connection with the public offering of such securities, the Corporation shall
promptly give the Consultant written notice of such registration (the
“Piggy-Back Notice”), and the Consultant shall be afforded the right
to include the shares of common stock issuable upon exercise of the Warrant in
such registration statement.
6. Confidential
Information. By reason of performance under this Agreement, the Consultant
may have access to and may obtain specialized knowledge, trade secrets and
confidential information about the business and operation of the Corporation,
its subsidiaries and divisions thereof. Therefore, the Consultant hereby agrees
that he shall keep secret and retain in confidence and shall not use, disclose
to others, or publish, other than in connection with the performance of services
hereunder and in accordance herewith, any information relating to the business,
operation or other affairs of the Corporation, its subsidiaries and divisions
thereof, which information is acquired in the course of providing services for
the Corporation. To the extent that any of such information may be deemed from
time to time to be “material non-public information” as construed
under the Exchange Act of 1934, the Consultant hereby agrees not to purchase or
sell (or offer to purchase or sell) any of the Corporation’s securities
while in possession of information which may be so deemed to be “material
non-public information” prior to termination of this engagement without
prior approval of legal counsel. Notwithstanding the foregoing, the Corporation
is entitled to sell the shares of common stock of the Corporation resulting from
the exercise of the Warrant as outlined in paragraph 3 hereof.
7. Indemnification. The Consultant and the Corporation hereby agree as follows:
(a)
the Corporation will indemnify and hold harmless the Consultant against and in
respect of all damages, claims, losses and expenses (including, without
limitation, attorneys’ fees and disbursements) reasonably incurred (all
such amounts may hereinafter be referred to as the “Damages”) by the
Consultant arising out of: (i) any misrepresentation or breach of any warranty
made by the Corporation pursuant to the provisions of this Agreement or in any
statement, certificate or other document furnished by the Corporation pursuant
to this Agreement, and (ii) the nonperformance or breach of any covenant,
agreement or obligation of the Corporation contained in this Agreement which has
not been waived by the Consultant;
(b)
the Corporation will be obligated to indemnify and hold harmless the Consultant
with respect to claims for Damages as to which the Consultant shall have given
written notice to the Corporation on or before the close of business on the
sixtieth day following the expiration of the Term hereof;
(c)
in any case where the Corporation has indemnified the Consultant for any Damages
and the Consultant recovers from third parties all or any part of the amount so
indemnified by the Corporation, the Consultant shall promptly pay over to the
Corporation the amount so recovered;
(d)
with respect to claims or demands by third parties, whenever the Consultant
shall have received notice that such a claim or demand has been asserted or
threatened which, if valid, would be subject to indemnification hereunder, the
Consultant shall as soon as reasonably possible and in any event within thirty
(30) days of receipt of such notice, notify the Corporation of such claim or
demand and of all relevant facts within its knowledge which relate thereto. The
Corporation shall then have the right at its own expense to undertake the
defense of any such claims or demands utilizing counsel selected by the
Corporation and approved by the Consultant, which approval shall not be
unreasonably withheld. In the event that the Corporation should fail to give
notice of the intention to undertake the defense of any such claim or demand
within thirty (30) days after receiving notice that it has been asserted or
threatened, the Consultant shall have the right to satisfy and discharge the
same by payment, compromise or otherwise and shall give written notice of any
such payment, compromise or settlement to the Corporation;
(e)
the Consultant will indemnify and hold harmless the Corporation against and in
respect of all Damages reasonably incurred by the Corporation arising out of:
(i) any misrepresentation or breach of any warranty made by the Consultant
pursuant to the provisions of this Agreement, and (ii) the nonperformance or
breach of any covenant, agreement or obligation of the Consultant which has not
been waived by the Corporation;
(f)
the Consultant will be obligated to indemnify the Corporation for Damages as to
which the Corporation shall have given written notice to the Consultant on or
before the close of business on the sixtieth day following the second
anniversary hereof;
(g)
in any case where the Consultant has indemnified the Corporation for any Damages
and the Corporation recovers from third parties all or any part of the amount so
indemnified by the Consultant, the Corporation shall promptly pay over to the
Consultant the amount so recovered; and
(h)
with respect to claims or demands by third parties, whenever the Corporation
shall have received notice that such a claim or demand has been asserted or
threatened, which, if valid, would be subject to indemnification hereunder, the
Corporation shall as soon as reasonably possible and in any event within thirty
(30) days of receipt of such notice, notify the Consultant of such claim or
demand and of all relevant facts within its knowledge which relate thereto. The
Consultant shall have the right at its expense to undertake the defense of any
such claim or demand utilizing counsel selected by the Consultant and approved
by the Corporation, which approval shall not be unreasonably withheld. In the
event that the Consultant should fail to give notice of its intention to
undertake the defense of any such claim or demand within thirty (30) days after
receiving notice that it has been asserted or threatened, the Corporation shall
have the right to satisfy and discharge the same by payment, compromise or
otherwise and shall give written notice of any such payment, compromise or
settlement to the Consultant.
8. Applicable Law.
This Agreement shall be construed and enforced in accordance with the laws of
the State of Delaware without regard to the principles of conflicts of laws
thereof and shall inure to the benefit of and be binding upon the Consultant and
the Corporation and their respective legal successors and assigns.
9. Arbitration. The
Corporation represents, warrants, covenants and agrees that any controversy or
claim brought in any capacity by the Corporation against the Consultant or any
members, officers, directors, agents, affiliates, associates, employees or
controlling persons of the Consultant shall be settled by expedited arbitration
under the Federal Arbitration Act in accordance with the commercial arbitration
rules of the American Arbitration Association (“AAA”) and judgment
upon the award rendered by the arbitrators may be entered in any court having
jurisdiction thereof. Any controversy or claim brought by the Consultant against
the Corporation or its securityholders, officers, directors, agents, affiliates,
associates, employees or controlling persons shall be settled by arbitration
under the Federal Arbitration Act in accordance with the commercial arbitration
rules of the AAA and judgment rendered by the arbitrators may be entered in any
court having jurisdiction thereof. In arbitration proceedings under this
section, the parties shall be entitled to any and all remedies that would be
available in the absence of this section and the arbitrators, in rendering their
decision, shall follow the substantive laws of the State of Delaware. The
arbitration of any dispute pursuant to this paragraph shall be held in the State
of Delaware.
Notwithstanding the
foregoing, in order to preserve the status quo pending the resolution by
arbitration of a claim seeking relief of an injunctive or equitable nature, any
party, upon submitting a matter to arbitration as required by this section, may
simultaneously or thereafter seek a temporary restraining order or preliminary
injunction from a court of competent jurisdiction pending the outcome of the
arbitration. This section is intended to benefit the members, managers, agents,
affiliates, associates and employees of the Consultant, each of whom shall be
deemed to be a third party beneficiary of this section, and each of whom may
enforce this section to the full extent that the Consultant could do so if a
controversy or claim were brought against it.
10. No Continuing Waiver. The waiver by any party of any provision or breach of this Agreement shall not
operate as or be construed to be a waiver of any other provision hereof or of any other breach of any provision
hereof.
11. Notice. Any and all notices from either party to the other which may be specified by, or otherwise
deemed necessary or incident to this Agreement shall, in the absence of hand delivery with return receipt
requested, be deemed duly given when mailed if the same shall be sent to the address of the party set out on the
first page of this Agreement by registered or certified mail, return receipt requested, or express delivery
(e.g., Federal Express).
12. Severability of
Provisions. The provisions of this Agreement shall be considered severable
in the event that any of such provisions are held by a court of competent
jurisdiction to be invalid, void or otherwise unenforceable. Such invalid, void
or otherwise unenforceable provisions shall be automatically replaced by other
provisions which are valid and enforceable and which are as similar as possible
in term and intent to those provisions deemed to be invalid, void or otherwise
unenforceable. Notwithstanding the foregoing, the remaining provisions hereof
shall remain enforceable to the fullest extent permitted by law.
13. Assignability. This Agreement shall not be assignable without the prior written consent of the
non-assigning party or parties hereto and shall be binding upon and inure to the benefit of any heirs, executors,
legal representatives or successors or permitted assigns of the parties hereto.
14. Entire Agreement;
Amendment. This Agreement contains the entire agreement among the
Corporation and the Consultant with respect to the subject matter hereof. This
Agreement may not be amended, changed, modified or discharged, nor may any
provision hereof be waived, except by an instrument in writing executed by or on
behalf of the party against whom enforcement of any amendment, waiver, change,
modification or discharge is sought. No course of conduct or dealing shall be
construed to modify, amend or otherwise affect any of the provisions hereof.
15. Headings. The paragraph headings contained in this Agreement are for reference purposes only and shall
not in any way affect the meaning or interpretation of the provisions of this Agreement.
16. Survival. Sections 3, 4, 5, 6, 7, 8, 9, 10 and 12 of this Agreement shall survive the termination of
this Agreement for any reason (whether such termination is by the Corporation, upon the expiration of this
Agreement, by its terms or otherwise).
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed and delivered by their duly
authorized officers as set forth below and have caused their respective corporate seals to be hereunder affixed
as of the date first above written.
GENESIS FINANCIAL GROUP, L.L.C.
By:
-----------------------------------------------------
Managing Member
PLANET RESOURCES, INC.
By:
-----------------------------------------------------
Its:
-----------------------------------------------------
EXHIBIT 23.4
GENESIS
FINANCIAL GROUP, L.L.C.
2476 BOLSOVER, SUITE 607
HOUSTON, TEXAS 77005
TELEPHONE (713) 839-0627 FACSIMILE (713) 839-1066
April 30, 2000
Mr. A.W. Dugan
Chairman
Planet Resources, Inc.
1415 Louisiana, Suite 3100
Houston, TX 77002
Re: Amendment to Consulting Agreement dated November 2, 1999
---------------------------------------------------------
Reference is hereby made to that certain Consulting Agreement dated as of November 2, 1999 (the
"Agreement") between Genesis Financial Group, L.L.C. (the "Consultant") and Planet Resources, Inc. (the
"Corporation"). Because the Corporation and the Consultant desire additional time to complete those services
outlined in the above referenced Agreement, the parties have agreed to extend the term of the Agreement. This
letter is intended to confirm that, notwithstanding anything else to the contrary set forth in the Agreement, the
Corporation and the Consultant hereby agree that Section 1 of the Agreement be hereby amended by striking Section
1 of the Agreement and by substituting in lieu thereof the following new Section 1:
| |
“1.
Engagement. Effective upon execution hereof, the Corporation hereby
engages the Consultant to render to it assistance in the preparation of certain
sections of the SB-2 Registration Statement for the Corporation (currently, a
wholly-owned subsidiary of Internet Law Library, Inc.) (formerly Planet
Resources, Inc.), as well as preparation of responses to comments on the initial
SB-2 Registration Statement for the Corporation received from the United States
Securities and Exchange Commission (the “SEC”) in its letter to the
Corporation dated May 20, 1999. (the “Project”). This Agreement shall
remain in effect for a period of the earlier of twelve months from the date
hereof or the approval of said registration statement by the SEC (the
“Term”). The Term hereof may be extended or renewed upon the written
agreement of the Corporation and the Consultant prior to expiration of the Term
hereof upon such terms as the parties hereto may negotiate at the time of such
extension or renewal.” |
The modifications stated herein shall become effective on May 1, 2000. Except as otherwise expressly
modified hereby or required to effectuate the modification set forth herein, the Agreement shall remain unchanged
and shall continue in full force and effect pursuant to the terms thereof.
This letter agreement contains the entire agreement between the Corporation and the Consultant with
respect to the modification which is the subject hereof. This letter agreement may not be amended, changed,
modified, or discharged, nor may any provision hereof be waived, except by an instrument in writing executed by
or on behalf of the party against whom enforcement of any amendment, waiver, change, modification or discharge is
sought. No course of conduct or dealing shall be construed to modify, amend or otherwise affect any of the
provisions hereof. Please confirm that the Corporation is in agreement with the forgoing, and that the foregoing
is in accordance with your understanding by signing and returning this letter, which shall thereupon constitute a
binding agreement.
Very truly yours,
Genesis Financial Group, L.L.C.
By: /s/ Kevin P. Regan
-----------------------------------------
Kevin P. Regan, Managing Director
ACCEPTED AND AGREED TO THIS 7th DAY OF JUNE, 2000:
PLANET
RESOURCES, INC.
By: /s/ A.W. Dugan
-----------------------------------------
A.W. Dugan
EXHIBIT 27
FINANCIAL
DATA SCHEDULE
This schedule contains summary financial information extracted from the financial statements as of and
for the twelve months ended June 30, 2000, and is qualified in its entirety by reference to such financial
statements. (In thousands, except EPS.)
ITEM NUMBER
-----------
ITEM DESCRIPTION AMOUNT
---------------- ------
5-02(1) Cash and cash items. $9,197
5-02(2) Marketable securities 0
5-02(3)(a)(1) Notes and interest receivable--trade 0
5-02(4) Allowances for doubtful accounts 0
5-02(6) Inventory 0
5-02(9) Total current assets 9,197
5-02(13) Property, plant and equipment 0
5-02(14) Accumulated depreciation 0
5-02(18) Total assets 9,197
5-02(21) Total current liabilities 0
5-02(22) Bonds, mortgages and similar debt 0
5-02(28) Preferred stock--mandatory redemption 0
5-02(29) Preferred stock--no mandatory redemption 0
5-02(30) Common stock 1
5-02(31) Other stockholder's equity 9,197
5-02(32) Total liabilities and stockholder's equity 9,197
5-03(b)1(a) Net sales tangible products 0
5-03(b)1 Total revenues 0
5-03(b)2(a) Cost of tangible goods sold 0
5-03(b)2 Total costs and expenses applicable to sales and
revenues 0
5-03(b)3 Other costs expenses 23,318
5-03(b)5 Provision for doubtful accounts and notes 0
5-03(b)(8) Interest and amortization of debt discount 0
5-03(b)(10) Income before taxes and other items 0
5-03(b)(11) Income tax expense 0
5-03(b)(14) Income/loss continuing operations 0
5-03(b)(15) Discontinued operations 0
5-03(b)(17) Extraordinary items 0
5-03(b)(18) Cumulative effect--changes in accounting principles 0
5-03(b)(19) Net income or loss (23,318)
5-03(b)(20) Earnings per share--primary (.23)
5-03(b)(20) Earnings per share--fully diluted 0
