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EXHIBIT 10.16
INDEMNITY AGREEMENT
THIS INDEMNITY AGREEMENT dated the 3rd day of November, 1998.
BETWEEN:
XXXXX X. XXXXXX, of the City of Calgary, in the Province of
Alberta
(hereinafter referred to as "Xxxxxx")
OF THE FIRST PART
- and -
GEOCAN ENERGY INC., a corporation incorporated under the
Business Corporation Act (Alberta) and having its registered office
in the City of Calgary in the Province of Alberta
(hereinafter referred to as "Corporation")
OF THE SECOND PART
WHEREAS Xxxxxx has served as a Director of the Corporation effective
as of the 25th day of March, 1998;
NOW THEREFORE WITNESSETH that in consideration of the premises, the
Corporation hereby agrees to indemnify Xxxxxx to the full extent permitted by
law in respect of all costs, charges and expenses which he may suffer or incur
relating to directly or indirectly, or by reason of being or having been a
director or an officer of the Corporation or a director or an officer of a body
corporate of which the Corporation was a shareholder or creditor provided that
Xxxxxx is or was so acting as a director or an officer of the body corporate at
the request of the Corporation. Without limiting the generality of the
foregoing, the Corporation also agrees to provide such further specific
indemnification and other contractual rights set forth below as follows:
1. The Corporation will indemnify and save harmless Xxxxxx, his heirs and legal
representatives, against all costs, charges and expenses, including an amount
paid to settle an action
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or to satisfy a judgment, reasonably incurred by Xxxxxx in respect of any civil,
criminal or administrative action or proceeding to which Xxxxxx is made a party
by reason of being or having been a director or an officer of the Corporation or
a director or an officer of a body corporate of which the Corporation is a
shareholder or creditor, provided that Xxxxxx is or was so acting as a director
or an officer of such body corporate at the request of the Corporation, if (a)
Xxxxxx acted honestly and in good faith with a view to the best interests of the
Corporation, and (b) in the case of a criminal or administrative action or
proceeding that is enforced by a monetary penalty, Xxxxxx had reasonable grounds
for believing that his conduct was lawful.
2. For the purposes of this Indemnity Agreement and otherwise, the conclusion of
any civil, criminal or administrative action or hearing either prior to or
subsequent to a suit being filed or charges being laid or proceeding by
judgment, order, settlement, conviction or similar or other result shall not, of
itself, create a presumption either that Xxxxxx did not act honestly and in good
faith with a view to the best interests of the Corporation or that, in the case
of a criminal or administrative action or proceeding that is enforced by a
monetary penalty, Xxxxxx did not have reasonable grounds for believing that his
conduct was lawful.
3. Subject to receipt of any necessary court approval, the Corporation shall
indemnify Xxxxxx, his heirs and legal representatives, against all costs,
charges and expenses reasonably incurred by him in respect of an action by or on
behalf of the Corporation or a body corporate of which the Corporation is or was
a shareholder or creditor to procure judgment in its favour to which Xxxxxx is
made a party by reason of being or having been a director or an officer of the
Corporation or a director or an officer of the body corporate at the
Corporation's request if (a) Xxxxxx acted honestly and in good faith with a view
to the best interests of the Corporation, and (b) in the case of a criminal or
administrative action or proceeding that is enforced by a monetary penalty,
Xxxxxx had reasonable grounds for believing that his conduct was lawful.
Corporation agrees that it will, at the request of Xxxxxx, make application to
the Court of Queen's Bench of Alberta for approval of any indemnity under this
paragraph 3. The application to be undertaken by the Corporation pursuant to
this paragraph 3 shall be prosecuted by the Corporation, at the Corporation's
expense,
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on a best efforts basis which shall include all appeals (including where
required, applications for leave to appeal) from any judgement or order of the
Alberta Court of Queen's Bench or other court of first instance, refusing such
application.
4. Notwithstanding anything in this Indemnity Agreement, the Corporation shall
indemnify Xxxxxx in respect of all costs, charges and expenses reasonably
incurred by him in connection with the defence of any civil, criminal or
administrative action or proceeding to which Xxxxxx is made a party by reason of
being or having been a director or an officer of the Corporation or a director
or an officer of a body corporate of which the Corporation is or was a
shareholder or creditor, provided Xxxxxx is or was so acting as a director or an
officer of such body corporate at the request of the Corporation, if (a) Xxxxxx
was substantially successful on the merits in his defence of the action or
proceeding, (b) Xxxxxx acted honestly and in good faith with a view to the best
interests of the Corporation, and (c) in the case of a criminal or
administrative action or proceeding that is enforced by a monetary penalty,
Xxxxxx had reasonable grounds for believing that his conduct was lawful; and (d)
Xxxxxx is fairly and reasonably entitled to indemnity.
5. Notwithstanding anything in this Indemnity Agreement, where Xxxxxx was not
substantially successful on the merits in the defence of an action or proceeding
or where the action or proceeding never reached full trial and judgement, but it
cannot be determined that Xxxxxx breached the fundamental statutory condition
required by the Business Corporation Act (Alberta) that (a) Xxxxxx act honestly
and in good faith with a view to the best interests of the Corporation, and (b)
in the case of a criminal or administrative action or proceeding that is
enforced by a monetary penalty, Xxxxxx had reasonable grounds for believing that
his conduct was lawful, then the Corporation shall indemnify Xxxxxx in respect
of all costs, charges and expenses reasonably incurred by him in connection with
the defence of any civil, criminal or administrative action or proceeding to
which Xxxxxx is made a party by reason of being or having been a director or an
officer of the Corporation or a director or an officer of a body corporate of
which the Corporation is or was a shareholder or creditor, provided Xxxxxx is or
was so acting as a director or an officer of such body corporate at the request
of the Corporation.
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6. In the event that Xxxxxx is insured for any costs, charges, expenses or
liabilities previously referred to in this Indemnity Agreement or in the event
that the Corporation has insurance of its own liability under this Indemnity
Agreement, the Corporation agrees that it will forthwith pay Xxxxxx his valid
claims for indemnification under this Indemnity Agreement and thereafter claim
from such an insurance policy either in its own right or in subrogation to the
rights of Xxxxxx in the case of personal coverage, such payments by the
Corporation to Xxxxxx being in the full amount as required in this Indemnity
Agreement, notwithstanding any insurance deductibles, co-insurance provisions or
policy limits.
7. In the event that Revenue Canada or any other competent taxing authority
determines that the indemnity provided by the Corporation to Xxxxxx under any of
the other provisions of this Indemnity Agreement is a taxable benefit to Xxxxxx
and therefore taxable to Xxxxxx, the Corporation shall provide Xxxxxx a further
indemnity of such amount as to allow Xxxxxx to be fully indemnified on an after
tax basis.
8. Subject only to the limitations as hereinbefore and hereinafter provided, the
Corporation shall pay on an interim basis all costs, charges and expenses
covered by this Indemnity Agreement and incurred by Xxxxxx, his heirs and legal
representatives, in defending any civil, criminal or administrative action or
proceeding to which Xxxxxx or his heirs and legal representatives are made a
party by reason of Xxxxxx being or having been a director or an officer of the
Corporation or a director or an officer of a body corporate of which the
Corporation is a shareholder or creditor, if Xxxxxx is or was so acting as a
director or an officer of such body corporate at the request of the Corporation,
in advance of the settlement or of the final disposition of such action or
proceeding.
9. In the event that the Corporation's obligation to make any payment or to
provide any indemnification under this Indemnity Agreement is subject to a
determination (a "Determination") by the Corporation, a court or some other
person that:
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(a) Xxxxxx acted honestly and in good faith with a view to the
best interest of the Corporation; or
(b) in the case of a criminal or administrative action or
proceeding that is enforced by monetary penalty, Xxxxxx had
reasonable grounds for believing his conduct was lawful; or
(c) Xxxxxx was substantially successful on merits in his defence
of the civil, criminal or administrative action or proceeding;
or
(d) Xxxxxx is fairly and reasonably entitled to indemnity;
then upon any request by Xxxxxx for such a payment or indemnification and
receipt of a written undertaking from Xxxxxx to repay any amount received as a
loan under this paragraph 9, the Corporation shall promptly provide the
requested amount to Xxxxxx by way of an unsecured loan bearing interest
calculated at a rate equal to the prime commercial lending rate announced by the
Corporation's principal bank in effect from time to time until repayment of such
amount. All amounts advanced by the Corporation under this paragraph 9 shall
become due and payable by Xxxxxx to the Corporation upon a final decision by a
court of competent jurisdiction (after all appeals required or chosen to be
undertaken by the Corporation) that all required Determinations could not be
made.
If the Corporation, a court or some other person who is required to
make a Determination prior to the Corporation becoming obligated to make a
payment or provide any indemnification hereunder, makes all necessary
Determinations, the Corporation shall promptly make payment to or provide Xxxxxx
with the required indemnification, including an amount equal to the interest
accrued on amounts advanced by the Corporation under this paragraph 9, and upon
receipt thereof, Xxxxxx shall promptly repay to the Corporation all such
advances with accrued interest.
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10. The Corporation agrees to keep in force the indemnification provisions of
its By- Laws, as amended from time to time, including substantially similar
indemnification provisions in any By-Laws approved in replacement or
substitution of the present By-Laws of the Corporation.
11. Nothing in this Indemnity Agreement shall prevent Xxxxxx from resigning as a
director or an officer of the Corporation and this indemnity shall continue
notwithstanding that Xxxxxx is no longer a director or an officer of the
Corporation.
12. All matters in dispute between the parties to this Indemnity Agreement shall
be referred to the arbitration of a single arbitrator. if the parties agree upon
one, otherwise to three arbitrators, one to be appointed by each party and third
to be chosen by the first two named before they enter upon the business of
arbitration. The award and determination of the arbitrator or arbitrators or any
two of the three arbitrators shall be binding upon the parties, their respective
heirs, executors, administrators and assigns. Such arbitration shall be subject
to the Arbitration Act (Alberta).
13. This Indemnity Agreement shall not operate to abridge or exclude any other
rights, in law or in equity, to which Xxxxxx may be entitled by operation of
law, under any statute or under any by-law of the Corporation, agreement, vote
of shareholders of the Corporation, vote of disinterested directors of the
Corporation or otherwise.
14. If any provision or provisions of this Indemnity Agreement shall be held to
be invalid, illegal or unenforceable for any reason whatsoever:
(a) the validity, legality or enforceability of the remaining
provisions of this Indemnity Agreement (including, without
limitation, all portions of any paragraphs, sections or
subsections of this Indemnity Agreement containing any such
provision held to be invalid, illegal or unenforceable that
are not of themselves in the whole invalid, illegal or
unenforceable) shall not in any way be affected or impaired
thereby; and
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(b) to the fullest extent possible, the provisions of this
Indemnity Agreement (including, without limitation, all
portions of any paragraphs, sections or subsections of this
Indemnity Agreement containing any such provision held to be
invalid, illegal or unenforceable that are not of themselves
in the whole invalid, illegal or unenforceable) shall be
construed so as to give effect to the intent manifested by the
provision which is held to be invalid, illegal or
unenforceable.
15. This Indemnity Agreement and the benefit and obligation of all covenants
herein contained shall enure to the benefit of and be binding upon the heirs,
executors, administrators, legal personal representatives and successors and
assigns of each of the parties hereto.
IN WITNESS WHEREOF this Indemnity Agreement has been executed
by the parties hereto.
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XXXXX X. XXXXXX
GEOCAN ENERGY INC.
Per:
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Per:
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