EXHIBIT 10.11
MUTUAL RELEASE AND
INDEMNIFICATION AGREEMENT
By and between:
SAVOY RESOURCES CORP.,
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▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ THE PREVIOUS DIRECTORS
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And each of:
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▇▇▇▇▇ ▇▇▇▇▇▇▇ and ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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Savoy Resources Corp.
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▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ #▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇.▇.▇., ▇▇▇▇▇
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MUTUAL RELEASE AND
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INDEMNIFICATION AGREEMENT
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THIS MUTUAL RELEASE AND INDEMNIFICATION AGREEMENT (the "Agreement") is made
and entered into this 15th day of July, 2004, by and between Savoy Resources
Corp., a Colorado corporation, of ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ #▇▇▇▇, ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇, ▇.▇.▇., ▇▇▇▇▇ ("Savoy"), ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ("▇▇▇▇▇▇▇▇▇") and ▇▇▇▇▇▇
The Previous Directors ("The Previous Directors"), each c/o Dieterich &
Associates, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇,
▇.▇.▇., ▇▇▇▇▇ (Savoy, ▇▇▇▇▇▇▇▇▇ and The Previous Directors being, collectively,
the "Current Management" herein as the context so requires), and ▇▇▇▇▇ ▇▇▇▇▇▇▇
("▇▇▇▇▇▇▇") and ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ("▇▇▇▇▇▇▇▇"), each of ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇ ▇▇▇ (▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇ being, collectively, the
"Previous Directors" herein as the context so requires). .
RECITALS
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A. WHEREAS, in conjunction with the proposed resignations as a directors
and officers of Savoy of each of the Previous Directors, each of the parties
hereto has agreed to enter into the terms and conditions of this Agreement as
hereinafter set forth.
AGREEMENT
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NOW, THEREFORE, in consideration of the foregoing premises, the mutual
promises, covenants, agreements, representations and warranties set forth
hereinafter, and for other good and valuable consideration, the receipt and
sufficiency are hereby acknowledged, the parties hereto agree as follows:
ARTICLE I
MUTUAL RELEASE
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A. Know all men by these presents that, in conjunction with the proposed
resignations as directors and officers of Savoy of each of the Previous
Directors, and in consideration, in part, of Savoy's within agreement to
immediately repay to each of ▇▇. ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ all expenses
previously incurred by the same on behalf of Savoy totaling approximately U.S.
$47,000; (the receipt and sufficiency of which being hereby acknowledged by each
of the parties hereto); each of the Current Management and the previous
Directors (the Current Management and the Previous Directors being hereinafter
singularly and collectively referred to as the "Releasor" and the "Releasors",
respectively, as the contexts so requires) does hereby release, remise and
forever discharge all said other Releasors hereunder, together with each of said
other Releasors' respective directors, officers, employees, counsel (including
legal
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counsel), associates, affiliates, attorneys, agents, executors, administrators,
successors and assigns, of and from all manner of action and actions, causes of
action, suits, debts, dues, accounts, bonds, covenants, contracts, claims,
damages and demands, whether known or unknown, suspected or unsuspected and
whether at law or in equity, which against any of the other Releasors, and/or
any of the other Releasors' respective directors, officers, employees,
associates, affiliates, counsel (including legal counsel), agents, executors,
administrators, successors and assigns, any such Releasor ever had, now has, or
which any of such Releasor's respective successors or assigns, or any of them
hereafter can, shall or may have by reason of any matter whatsoever and
including, without limitation, resulting from the Previous Directors' roles as
directors and officers of Savoy and Messrs. ▇▇▇▇▇▇▇▇▇'▇ and The Previous
Directors's proposed and previous demands for a special meeting of the
shareholders of Savoy (herein, collectively, the "Release").
B. It is understood and agreed that the said Releasors do not by entering
into the Release, or otherwise, admit any liability to the other Releasors
herein, and that such liability is specifically denied.
ARTICLE II
INDEMNIFICATION
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Subject only to the exclusions set forth in Article III, Savoy hereby
agrees to hold harmless and indemnify the Previous Directors in the following
circumstances:
A. The Previous Directors were or are a party, or is threatened to be made
a party, to any threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative (other than an action
by or in the right of Savoy), by reason of the fact that they were directors,
officers or agents of Savoy, against expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement, actually and reasonably
incurred by them in connection with such action, suit or proceeding, if they
acted in good faith and in a manner they reasonably believed to be in, or not
opposed to, the best interests of Savoy, and, with respect to any criminal
action or proceeding, had no reasonable cause to believe their conduct was
unlawful.
B. The Previous Directors were or are a party, or are threatened to be made
a party, to any threatened, pending or completed action or suit by or in the
right of the corporation, to procure a judgment in its favor by reason of the
fact that they were directors, officers or agents of Savoy, against expenses
(including attorney's fees) actually and reasonably incurred by them in
connection with the defense or settlement of such action or suit, if they acted
in good faith and in a manner they reasonably believed to be in, or not opposed
to, the best interests of the corporation, except that no indemnification shall
be made in respect of any claim, issue or matter as to which the Previous
Directors shall have been adjudged to be liable for negligence or misconduct in
the performance of their duty to the corporation, unless, and only to the extent
that, the court in which such action or suit was brought shall determine upon
application that, despite the adjudication of liability, but in view of all
circumstances of the case, the Previous Directors are fairly and reasonably
entitled to indemnification for such expenses which such court deems proper.
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C. To the extent that the Previous Directors have been successful on the
merits or otherwise in defense of any action, suit or proceeding referred to in
Sections A. and B. of this Article, or in defense of any claim, issue or matter
therein, they shall be indemnified against expenses (including attorneys' fees)
actually and reasonably incurred by him in connection therewith.
D. Any indemnification under Section A. or B. of this Article (unless
ordered by a court) shall be made by Savoy only as authorized in the specific
case upon a determination that indemnification of the officer, director and
employee or agent is proper in the circumstances, because they have met the
applicable standard of conduct set forth in Section A. or B. of this Article.
Such determination shall be made by the Board of Directors of Savoy by a
majority vote of a quorum consisting of directors who were not parties to such
action, suit or proceeding, or, if such quorum is not obtainable or, even if
obtainable, a quorum of disinterested directors so directs, by independent legal
counsel in a written opinion, or by the affirmative vote of the holders of a
majority of the shares of stock entitled to vote and represented at a meeting
called for such purpose.
ARTICLE III
EXCLUSIONS
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No indemnity will be paid by Savoy pursuant to this Agreement:
A. If the final decision by a court having jurisdiction in the matter
determines that such indemnification is not lawful.
B. On account of the Previous Directors' conduct that is finally adjudged
to have been knowingly fraudulent or deliberately dishonest, which conduct was
material to the cause of action so adjudicated.
C. On account of any suit in which the Previous Directors are finally
adjudged to have obtained, in fact, a personal profit or advantage to which they
were not legally entitled.
ARTICLE IV
NO PRESUMPTION
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For the purpose of this Agreement, to the fullest extent permitted by law,
the termination of any action, suit or proceeding, by judgment, order,
settlement (whether with or without court approval) or conviction, or upon a
plea of nolo contendere or its equivalent, will not create a presumption that
the Previous Directors did not meet any particular standard of conduct or have
any particular belief or that a court has determined that indemnification is not
permitted by applicable law.
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ARTICLE V
SETTLEMENT AND COSTS
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Savoy will not be liable to indemnify the Previous Directors under this
Agreement for any costs, charges or expenses incurred or amounts paid in
settlement or any action or claim effected without their prior written consent.
Savoy will not settle any action or claim in any manner that would impose any
penalty or limitation on the Previous Directors without the Previous Directors'
prior written consent. Neither Savoy nor the Previous Directors will
unreasonably withhold its or their respective consent.
ARTICLE VI
SUBROGATION
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In the event of payment by or on behalf of Savoy under this Agreement,
Savoy will be subrogated to the extent of such payment to all of the rights of
recovery of the Previous Directors, who will execute all documents required and
will do everything that may be necessary to secure such rights including the
execution of such documents necessary to enable the Previous Directors
effectively to bring suit to enforce such rights.
ARTICLE VII
DEFENSE OF CLAIMS
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With respect to any action, suit or proceeding as to which the Previous
Directors are seeking indemnification under this Agreement and as to which the
Previous Directors notify Savoy pursuant to the provisions hereof:
▇. ▇▇▇▇▇ will be entitled to participate therein at its own expense; and
B. Except as otherwise provided below, to the extent that it may wish,
Savoy jointly with any other indemnifying party similarly notified will be
entitled to assume the defense thereof, with counsel satisfactory to the
Previous Directors. After notice from Savoy to the Previous Directors of its
election to assume the defense thereof, Savoy will not be liable to the Previous
Directors under this Agreement for any legal or other expenses subsequently
incurred by the Previous Directors in connection with the defense thereof other
than reasonable costs of investigation or as otherwise provided below. The
Previous Directors will have the right to employ separate counsel in such
action, suit or proceeding but the fees and expenses of such counsel incurred
after notice from Savoy of its assumption of the defense thereof will be at the
expense of the Previous Directors unless (i) the employment of counsel by the
Previous Directors has been authorized by Savoy, (ii) the Previous Directors
will have reasonably concluded that there may be a conflict of interest between
Savoy and the Previous Directors in the conduct of the defense of such action or
(iii) Savoy does not in fact employ counsel to assume the defense of such
action, in each of which cases the fees and expenses of counsel will be at the
expense of Savoy. Savoy will not be entitled to assume the defense of any
action, suit or proceeding brought by or on behalf of Savoy or as to which the
Previous Directors have made the reasonable conclusion that there may be a
conflict of interest between Savoy and the Previous Directors in the conduct of
the defense of such action.
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ARTICLE VIII
ADVANCES AND REPAYMENT OF EXPENSES
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All reasonable expenses incurred by the Previous Directors in defending or
investigating any civil or criminal action, suit or proceeding will be paid in
advance of the final disposition of such action, suit, proceeding or
investigation. In addition, Savoy may advance expenses incurred by the Previous
Directors in connection with the recovery under any insurance maintained by
Savoy, regardless of whether the Previous Directors ultimately are determined to
be entitled to such indemnification, expense advance or insurance recovery, as
the case may be. The Previous Directors agree that they will reimburse Savoy for
all such expense so advanced by Savoy in defending any civil or criminal action,
suit or proceeding against the Previous Directors in the event and only to the
extent that it is ultimately determined that the Previous Directors are not
entitled to be indemnified by Savoy for such expenses under the provisions of
the applicable law, this agreement or otherwise.
ARTICLE IX
TERMINATION
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Savoy will require and cause any successor (whether direct or indirect by
purchase, merger, consolidation or otherwise) to all, substantially all or a
substantial part, of the business and/or assets of Savoy, by written agreement
in form and substance satisfactory to the Previous Directors, expressly to
assume and agree to perform this Agreement in the same manner and to the same
extent that Savoy would be required to perform if no such succession had taken
place.
ARTICLE X
MISCELLANEOUS
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A. Each of the parties hereto shall execute and deliver such other and
further documents and instruments, and take such other and further actions, as
may be reasonably requested of him or it for the implementation and consummation
of this Agreement and the transactions herein contemplated.
B. This Agreement shall be binding upon and inure to the benefit of the
parties hereto, and the heirs, personal representatives, successors and assigns
of each of them, but shall not confer, expressly or by implication, any rights
or remedies upon any other party.
C. This Agreement is made and shall be governed in all respects, including
validity, interpretation and effect, by the laws of the State of Colorado.
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D. All notices, requests or demands and other communications hereunder must
be in writing and shall be deemed to have been duly made if personally delivered
or mailed, postage prepaid, to the parties as follows:
(i) If to Savoy, to:
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ #▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇.▇.▇., ▇▇▇▇▇
(ii) If to the Previous Directors, to:
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇ ▇▇▇
Any party hereto may change his or its address by written notice to the other
party given in accordance with this Section D. of Article X.
E. This Agreement contains the entire agreement between the parties and
supersedes all prior agreements, understandings and writings between the parties
with respect to the subject matter hereof and thereof. Each party hereto
acknowledges that no representations, inducements, promises or agreements,
verbal or otherwise, have been made by either party, or anyone acting with
authority on behalf of either party, which are not embodied herein, and that no
other agreement, statement or promise may be relied upon or shall be valid or
binding. Neither this Agreement nor any term hereof may be changed, waived,
discharged or terminated verbally. This Agreement may be amended or any term
hereof may be changed, waived, discharged or terminated by an agreement in
writing signed by all of the parties hereto.
F. The captions and headings used herein are for convenience only and shall
not be construed as part of this Agreement.
G. In the event of any litigation between the parties hereto, the
non-prevailing party shall pay the reasonable expenses, including but not
limited to the attorneys' fees, of the prevailing party in connection therewith.
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EXECUTION
IN WITNESS WHEREOF, each of the undersigned parties hereto has executed
this Agreement as of the day and year first written above.
The COMMON SEAL of )
SAVOY RESOURCES CORP. )
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Was hereunto affixed in the presence of: )
)
/s/ ▇▇▇▇▇▇ ▇▇▇▇, Chairman )
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Authorized Signatory )
SIGNED, SEALED and DELIVERED by )
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ )
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In the presence of: )
)
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ )
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Witness Signature )
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) ----------------------
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Witness Address )
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Witness Name and Occupation )
SIGNED, SEALED and DELIVERED by )
▇▇▇▇▇▇ ▇▇▇▇▇▇ )
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In the presence of: )
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Witness Signature ) /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
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Witness Address (home) )
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Witness Name and Occupation )
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SIGNED, SEALED and DELIVERED by )
▇▇▇▇▇ ▇▇▇▇▇▇▇ )
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In the presence of: )
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Witness Signature )
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Witness Address )
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Witness Name and Occupation )
SIGNED, SEALED and DELIVERED by )
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In the presence of: )
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Witness Signature ) /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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Witness Address )
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Witness Name and Occupation )
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