Exhibit 10.18
INDEMNIFICATION AGREEMENT
This
Indemnification Agreement (this “
Agreement ”)
is made as of __________, 2007, by and between General Moly, Inc.,
a Delaware corporation (the “
Corporation ”),
and _____________ (the “
Indemnitee ”).
RECITALS
A.
The
Corporation recognizes that competent and experienced persons
are increasingly reluctant to serve or to continue to serve as
directors or officers of corporations unless they are
protected by comprehensive liability insurance or
indemnification, or both, due to increased exposure to
litigation costs and risks resulting from their service to
such corporations, and due to the fact that the exposure
frequently bears no reasonable relationship to the
compensation of such directors and officers;
B.
The
statutes and judicial decisions regarding the duties of
directors and officers are often difficult to apply,
ambiguous, or conflicting, and therefore fail to provide such
directors and officers with adequate, reliable knowledge of
legal risks to which they are exposed or information regarding
the proper course of action to take;
C.
The
Corporation believes that the interests of the Corporation and
its stockholders would best be served by a combination of
liability insurance and indemnification by the Corporation of
the directors and officers of the Corporation;
D.
The
Corporation’s Bylaws requires the Corporation to
indemnify its directors and officers to the fullest extent
permitted by the Delaware General Corporation Law (the
“DGCL”);
E.
Section
145 of the DGCL (“Section 145”), under which
the Corporation is organized, empowers the Corporation to
indemnify its officers, directors, employees and agents by
agreement and to indemnify persons who serve, at the request
of the Corporation, as the directors, officers, employees or
agents of other corporations or enterprises, and expressly
provides that the indemnification provided by Section 145 is
not exclusive;
F.
Section
102(b)(7) of the DGCL allows a corporation to include in its
certificate of incorporation a provision limiting or
eliminating the personal liability of a director for monetary
damages in respect of claims by shareholders and corporations
for breach of certain fiduciary duties, and the Corporation
has so provided in its Certificate of Incorporation that each
Director shall be exculpated from such liability to the
maximum extent permitted by law;
G.
The
Board of Directors has determined that contractual
indemnification as set forth herein is not only reasonable and
prudent but also promotes the best interests of the
Corporation and its stockholders; and
H.
Indemnitee
is willing to serve, continue to serve or to provide
additional service for or on behalf of the Corporation on the
condition that he is furnished the indemnity provided for
herein.
AGREEMENT
NOW,
THEREFORE, in consideration of the mutual covenants and
agreements set forth below, and other good and valuable
consideration, the receipt and adequacy of which are hereby
acknowledged, the parties hereto, intending to be legally
bound, hereby agree as follows:
Section
1.
Certain Definitions
(a)
Corporation: shall
include, in addition to the resulting corporation, any constituent
corporation (including any constituent of a constituent) absorbed
in a consolidation or merger which, if its separate existence had
continued, would have had power and authority to indemnify its
directors, officers, and employees or agents, so that if Indemnitee
is or was a director, officer, employee or agent of such
constituent corporation, or is or was serving at the request of
such constituent corporation as a director, officer, employee or
agent of another corporation, partnership, joint venture, trust or
other enterprise, Indemnitee shall stand in the same position under
the provisions of this Agreement with respect to the resulting or
surviving corporation as Indemnitee would have with respect to such
constituent corporation if its separate existence had
continued.
(b)
Indemnifiable Event :
any event or occurrence related to the fact that Indemnitee is or
was a director, officer, employee, agent, or fiduciary of the
Corporation, or is or was serving at the request of the Corporation
as a director, officer, employee, trustee, agent, or fiduciary of
another corporation, partnership, joint venture, employee benefit
plan, trust, or other enterprise, or by reason of anything done or
not done by Indemnitee in any such capacity. For purposes of this
Agreement, the Corporation agrees that Indemnitee's service on
behalf of or with respect to any Subsidiary of the Corporation
shall be deemed to be at the request of the
Corporation.
(c)
Independent Legal Counsel :
shall include special, independent counsel selected by Indemnitee
and approved by the Corporation (which approval shall not be
unreasonably withheld), and who has not otherwise performed
services for the Corporation or for Indemnitee within the last five
years (other than as Independent Legal Counsel under this Agreement
or similar agreements). Independent Legal Counsel shall not be any
person who, under the applicable standards of professional conduct
then prevailing, would have a conflict of interest in representing
either the Corporation or Indemnitee in an action to determine
Indemnitee's rights under this Agreement, nor shall Independent
Legal Counsel be any person who has been sanctioned or censured for
ethical violations of applicable standards of professional
conduct.
(d)
Other enterprises :
shall include employee benefit plans; references to “
fines ”
shall include any excise taxes assessed on Indemnitee with respect
to an employee benefit plan; and references to “
serving at the request of the Corporation ”
shall include any service as a director, officer, employee or agent
of the Corporation which imposes duties on, or involves services
by, such director, officer or employee with respect to an employee
benefit plan, its participants, or beneficiaries; and if Indemnitee
acted in good faith and in a manner Indemnitee reasonably believed
to be in the interest of the participants and beneficiaries of an
employee benefit plan, Indemnitee shall be deemed to have acted in
a manner “
not opposed to the best interests of the Corporation
”
as referred to in this Agreement.
Section
2.
Generally.
To
the fullest extent permitted by the laws of the State of
Delaware:
(a)
The
Corporation shall indemnify, in the manner and to the fullest
extent permitted by the Delaware Law as the same may be
amended from time to time (but in the case of any such
amendment, only to the extent that such amendment permits the
Corporation to provide broader indemnification rights than
permitted prior thereto), any person (or the estate of any
person) who is or was a party to, or is threatened to be made
a party to, any threatened, pending or completed action, suit
or proceeding, whether or not by or in the right of the
Corporation, and whether civil, criminal, administrative,
investigative or otherwise, by reason of the fact that such
person is or was a director or officer of the Corporation, or
is or was serving at the request of the Corporation as a
director or officer of another corporation, partnership, joint
venture, trust or other enterprise. For the avoidance of
doubt, the foregoing indemnification obligation includes,
without limitation, claims for monetary damages against
Indemnitee in respect of an alleged breach of fiduciary
duties, to the fullest extent permitted under Section
102(b)(7) of the DGCL as in existence on the date
hereof.
(b)
Subject
to the limitation of Section 7 herein, to the fullest extent
permitted by the Delaware Law, the indemnification provided by
this Section 2 shall include expenses as incurred (including
attorneys’ fees), judgments, fines and amounts paid in
settlement and any such expenses shall be paid by the
Corporation in advance of the final disposition of such
action, suit or proceeding upon receipt of an undertaking by
or on behalf of the person seeking indemnification to repay
such amounts if it is ultimately determined that he or she is
not entitled to be indemnified. Notwithstanding the foregoing
or any other provision of this Article, no advance shall be
made by the Corporation if a determination is reasonably and
promptly made by the Board by a majority vote of a quorum of
disinterested Directors, or (if such a quorum is not
obtainable or, even if obtainable, a quorum of disinterested
Directors so directs) by Independent Legal Counsel to the
Corporation, that, based upon the facts known to the Board or
such counsel at the time such determination is made, (a) the
party seeking an advance acted in bad faith or deliberately
breached his or her duty to the Corporation or its
stockholders, and (b) as a result of such actions by the party
seeking an advance, it is more likely than not that it will
ultimately be determined that such party is not entitled to
indemnification pursuant to this Agreement.
(c)
Notwithstanding
the foregoing provisions of this Section 2, in the case of 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 Indemnitee is or was a director,
officer, employee or agent of the Corporation, or while
serving as a director or officer of the Corporation, is or was
serving or has agreed to serve at the request of the
Corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust,
employee benefit plan or other enterprise, no indemnification
shall be made in respect of any claim, issue or matter as to
which Indemnitee shall have been adjudged to be liable to the
Corporation unless, and only to the extent that, the Delaware
Court of Chancery or 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 the circumstances
of the case, Indemnitee is fairly and reasonably entitled to
indemnity for such expenses which the Delaware Court of
Chancery or such other court shall deem proper.
(d)
The
termination of any action, suit or proceeding by judgment,
order, settlement, conviction, or upon a plea of nolo
contendere or its equivalent, shall not, of itself, create a
presumption that Indemnitee did not act in good faith and in a
manner which Indemnitee reasonably believed to be in or not
opposed to the best interests of the Corporation, and, with
respect to any criminal action or proceeding, had reasonable
cause to believe that Indemnitee’s conduct was
unlawful.
Section
3.
Successful Defense; Partial Indemnification.
(a)
Successful Defense. To
the extent that Indemnitee has been successful on the merits or
otherwise in defense of any action, suit or proceeding referred to
in Section 2 hereof or in defense of any claim, issue or matter
therein, Indemnitee shall be indemnified against expenses
(including attorneys’ fees) actually and reasonably incurred
in connection therewith. For purposes of this Agreement and
w
ithout limiting the foregoing, if any action, suit or proceeding is
disposed of, on the merits or otherwise (including a disposition
without prejudice), without (i) the disposition being adverse to
Indemnitee, (ii) an adjudication that Indemnitee was liable to the
Corporation, (iii) a plea of guilty or nolo contendere by
Indemnitee, (iv) an adjudication that Indemnitee did not act in
good faith and in a manner Indemnitee reasonably believed to be in
or not opposed to the best interests of the Corporation, and (v)
with respect to any criminal proceeding, an adjudication that
Indemnitee had reasonable cause to believe Indemnitee’s
conduct was unlawful, Indemnitee shall be considered for the
purposes hereof to have been wholly successful with respect
thereto.
(b)
Partial Indemnification. If
Indemnitee is entitled under any provision
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