Exhibit 10.2


 


INDEMNIFICATION AGREEMENT


 


THIS INDEMNIFICATION
AGREEMENT (as amended, modified or otherwise supplemented from time to time,
the “Agreement”), dated March     , 2009 is
entered into by and between Golden Minerals Company, a Delaware corporation
(the “Company”), and
                                      ,
an individual (the “Indemnitee”).


 


WHEREAS, the Company and
Indemnitee recognize the continued difficulty in obtaining liability insurance
for corporate directors, officers, employees, agents and fiduciaries, the
significant increases in the cost of such insurance and the general reductions
in the coverage of such insurance;


 


WHEREAS, the Company desires
to attract and retain the services of highly qualified individuals, such as
Indemnitee, to serve the Company and, to that end, wishes to provide for the
indemnification and advancing of expenses to Indemnitee to the maximum extent
permitted by law;


 


WHEREAS, Section 145 of
the Delaware General Corporation Law, as amended from time to time (the “DGCL”),
under which the Company is organized, empowers the Company to indemnify its
officers, directors, employees and agents by agreement and to indemnify persons
who serve, at the request of the Company, 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; and


 


WHEREAS, in view of the
considerations set forth above, the Company desires that Indemnitee shall be
indemnified by the Company as set forth herein.


 


NOW, THEREFORE, the Company
and Indemnitee hereby agree as follows:


 


1.            Indemnification.  Except as otherwise provided in this
Agreement, the Company shall indemnify Indemnitee to the fullest extent
permitted by and in the manner permissible under the DGCL, if Indemnitee is
made, or threatened to be made, a party to any threatened, pending or completed
action, suit, or proceeding, whether criminal, civil, administrative, or
investigative, or any hearing, inquiry or investigation is initiated that
Indemnitee believes in good faith may lead to any such action, suit or
proceeding (an “Action”), by reason of the fact that Indemnitee (a) is
or was a director, officer, employee or agent of the Company or any predecessor
of the Company or (b) is or was a director, officer, employee or agent of
the Company or any predecessor of the Company and served any other corporation,
partnership, joint venture, trust, employee benefit plan or other enterprise as
a director, officer, partner, trustee, employee or agent at the request of the
Company or any predecessor of the Company, against any and all expenses
(including attorneys’ fees), judgments, fines, penalties, amounts paid in
settlement (provided that any such settlement is approved in advance by the
board of directors of the Company (the “Board”), which approval shall
not be unreasonably withheld or delayed) and taxes imposed on Indemnitee as a
result of the actual or deemed receipt by Indemnitee of any payments pursuant
to this Agreement.


 


2.            Advancement of Expenses.  The right to indemnification conferred
pursuant to Section 1 shall include the right to be paid by the Company
the expenses incurred in defending or participating in any Action in advance of
its final disposition, such advances to be paid by the


 

















 


Company within twenty (20)
days after the receipt by the Company of a statement or statements from
Indemnitee requesting such advance or advances from time to time; provided, however, that the payment of
such expenses incurred by Indemnitee in his capacity as a director, officer or
agent (and not in any other capacity in which service was or is rendered by
Indemnitee while a director, officer or agent, including, without limitation,
service to an employee benefit plan) in advance of the final disposition of a
proceeding shall be made only upon delivery to the Company of an undertaking by
or on behalf of Indemnitee to repay all amounts so advanced if it shall
ultimately be determined that the Indemnitee is not entitled to be indemnified
under Section 1 or otherwise.  Such
undertaking shall be accepted without reference to the financial ability of
Indemnitee to make such repayment. 
Advances shall be unsecured and interest-free.


 


3.            Procedure for Indemnification.  To obtain indemnification under Section 1,
Indemnitee shall submit to the Company a written request, including therein or
therewith such documentation and information as is reasonably available to
Indemnitee and is reasonably necessary to determine whether and to what extent
Indemnitee is entitled to indemnification. Upon the Company’s receipt of such
written request, indemnification shall (unless otherwise ordered by a court) be
made by the Company unless a determination is made that indemnification of such
person is not proper in the circumstances because he or she has not met the
applicable standard of conduct set forth in the DGCL.  Such determination with respect to Indemnitee’s
entitlement thereto shall be made as follows: (a) if requested by
Indemnitee or if there are no Disinterested Directors, by Independent Counsel,
or (b) by a majority vote of the Disinterested Directors, even though less
than a quorum, or by a majority vote of a committee of Disinterested Directors
designated by a majority vote of Disinterested Directors, even though less than
a  quorum.  If it is determined that Indemnitee is
entitled to indemnification, payment to Indemnitee shall be made within ten (10) days
after such determination.  If Independent
Counsel is retained with respect to the foregoing, the fees and expenses of
such counsel shall be paid by the Company.


 


4.            Certain Remedies.  If a claim under Section 1 is not paid
in full by the Company within thirty (30) days after a written claim pursuant
to Section 3 has been received by the Company, Indemnitee may at any time
thereafter bring suit against the Company to recover the unpaid amount of the
claim and, if successful in whole or in part, Indemnitee shall also be entitled
to be paid the expense of prosecuting such suit.  It shall be a defense to any such suit (other
than a suit brought to enforce a claim for expenses incurred in defending any
proceeding in advance of its final disposition where the required undertaking,
if any, has been tendered to the Company) that Indemnitee has not met the
standard of conduct which makes it permissible under the DGCL for the Company
to indemnify Indemnitee for the amount claimed; provided, however, that the burden of proving such defense
shall be on the Company; and provided
further that the termination of any Action 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 such standard of conduct.  Neither the failure of the Company (including
the Board, Independent Counsel or shareholders) to have made a determination
prior to the commencement of such suit that indemnification of Indemnitee is
proper in the circumstances because he has met the applicable standard of
conduct under the DGCL, nor an actual determination by the Company (including
the Board, Independent Counsel or shareholders) that Indemnitee has not met
such applicable standard of conduct, shall be a defense to the suit or create a
presumption that Indemnitee has not met the applicable standard of conduct.


 


2

















 


5.            Binding Effect.  If a determination shall have been made
pursuant to Section 3 that Indemnitee is entitled to indemnification, the
Company shall be bound by such determination in any suit commenced pursuant to Section 4.


 


6.            Notice by Indemnitee and the
Company.  Indemnitee shall, as a
condition precedent to Indemnitee’s right to receive indemnification or the
advancement of expenses under this Agreement, give the Company notice in
writing of any Action.  If, at the time
of the receipt by the Company of such a notice, the Company has liability
insurance in effect that may cover its obligation to Indemnitee in connection
with the Action, the Company shall give prompt notice to its insurer(s) in
accordance with the procedures set forth in the relevant policy or
policies.  The Company shall thereafter
take all necessary or desirable action to cause such insurers to pay, on behalf
of Indemnitee, all amounts payable in connection with the Action pursuant to
this Agreement in accordance with the terms of such policy or policies.


 


7.            Selection of Counsel.  In the event the Company shall be obligated
to pay the expenses of Indemnitee pursuant to this Agreement, the Company shall
be entitled to assume the defense of the Action with counsel approved by
Indemnitee, which approval shall not be unreasonably withheld, upon the
delivery to Indemnitee of written notice of its election so to do.  After delivery of such notice, approval of
such counsel by Indemnitee and the retention of such counsel by the Company,
the Company will not be liable to Indemnitee under this Agreement for any fees
of counsel subsequently incurred by Indemnitee with respect to the same Action;
provided however,  that, (i) Indemnitee shall have the
right to employ Indemnitee’s counsel in the Action at Indemnitee’s expense and (ii) if
(a) the employment of counsel by Indemnitee in such Action has been
previously authorized by the Company, (b) Indemnitee shall have reasonably
concluded that there is or may be a conflict of interest between the Company
and Indemnitee in the conduct of any such defense or (c) the Company shall
not continue to retain such counsel to defend the Action, then the fees and
expenses of Indemnitee’s counsel shall be at the expense of the Company.  The Company shall not settle, compromise or
consent to the entry of any judgment with respect to the Action without the
prior written consent of Indemnitee (which shall not be unreasonably withheld
or delayed), unless such settlement, compromise or consent includes an
unconditional release of Indemnitee from all liability arising out of such
Action (other than amounts to be paid by the Company on Indemnitee’s behalf
pursuant to this Agreement or otherwise).


 


8.            Liability Insurance.  The Company shall, from time to time, make a
good faith determination whether it is practicable for the Company to obtain
and maintain an insurance policy or policies with one or more reputable
insurance companies providing the officers and directors of the Company with
coverage for losses incurred in connection with their service with the Company
or to insure the Company’s performance of its indemnification obligations under
this Agreement.  Among other considerations,
the Company will weigh the costs of obtaining such insurance coverage against
the protection afforded by such coverage. 
In all policies of directors’ and officers’ liability insurance,
Indemnitee shall be named as an insured in such a manner as to provide
Indemnitee the same rights and benefits as are accorded to the most favorably
insured of the Company’s directors, if Indemnitee is a director; or of the
Company’s officers, if Indemnitee is not a director of the Company but is an
officer; or of the Company’s key employees, if Indemnitee is not an officer or
director but is a key employee. 
Notwithstanding the foregoing, the Company shall have no obligation to
obtain or maintain such insurance if the Company determines in good faith that
such insurance is not


 


3

















 


reasonably available, that
the premium costs for such insurance are disproportionate to the amount of
coverage provided, that the coverage provided by such insurance is limited by
exclusions so as to provide an insufficient benefit or that Indemnitee is
adequately covered by similar insurance maintained by a subsidiary or parent of
the Company.


 


9.            Exceptions.  Any other provision herein to the contrary
notwithstanding, the Company shall not be obligated pursuant to the terms of
this Agreement:


 


(a)           Excluded Actions or Omissions.  To indemnify Indemnitee for expenses
resulting from acts, omissions or transactions from which Indemnitee may not be
relieved of liability under the DGCL;


 


(b)           Claims Initiated by Indemnitee.  To indemnify or advance expenses to
Indemnitee with respect to Actions initiated or brought voluntarily by
Indemnitee and not by way of defense, except (i) in connection with suits
or proceedings brought in good faith to establish or enforce a right to
indemnification or advancement of expenses under this Agreement, any other
agreement or insurance policy or the Company’s Certificate of Incorporation or
Bylaws (as amended and restated from time to time) now or hereafter in effect,
or (ii) in specific cases if the Board has approved the initiation or
bringing of such Action, regardless whether Indemnitee ultimately is determined
to be entitled to such indemnification, advance expense payment or insurance
recovery, as the case may be; or


 


(c)           Claims Under Section 16(b).  To indemnify Indemnitee for expenses and the
payment of profits arising from the purchase and sale by Indemnitee of
securities in violation of Section 16 of the Securities Exchange Act of
1934, as amended, or any similar successor statute.


 


10.          Mutual Acknowledgment.  Both the Company and Indemnitee acknowledge
that in certain instances, applicable law or public policy may prohibit the
Company from indemnifying its directors, officers, employees, agents or
fiduciaries under this Agreement or otherwise. 
Indemnitee understands and acknowledges that the Company has undertaken
or may be required in the future to undertake with the Securities and Exchange
Commission to submit the question of indemnification to a court in certain circumstances
for a determination of the Company’s right to indemnify Indemnitee.


 


11.          Certain Definitions.  For purposes of this Agreement:


 


(a)           “Disinterested Director” means
a director of the Company who is not and was not a party to the Action in question.


 


(b)           “Independent Counsel” means a
law firm, a member of a law firm, or an independent practitioner that is
experienced in matters of corporation law and shall include any such person
who, under the applicable standards of professional conduct then prevailing,
would not have a conflict of interest in representing either the Company or
Indemnitee in a proceeding to determine Indemnitee’s rights under this
Agreement.  The Independent Counsel shall
be selected by the Board; provided however,
that at any time after a “Change of Control” (as that term is defined in
Exhibit A


 


4

















 


hereto), the Independent
Counsel shall be selected by Indemnitee and approved by the Board (which
approval shall not be unreasonably withheld or delayed).


 


12.          Validity of this Agreement;
Severability.  Subject to the
provisions of Section 10, the Company agrees that it shall be precluded
from asserting in any suit commenced pursuant to Section 4 that the
procedures and presumptions of this Agreement are not valid, binding and
enforceable and shall stipulate in such proceeding that the Company is bound by
all the provisions of this Agreement.  If
any provision or provisions of this Agreement shall be held to be invalid,
illegal or unenforceable for any reason whatsoever: (a) the validity,
legality and enforceability of the remaining provisions of this Agreement
(including, without limitation, each portion of this Agreement containing any
such provision held to be invalid, illegal or unenforceable, that is not itself
held to be invalid, illegal or unenforceable) shall not in any way be affected
or impaired thereby and (b) to the fullest extent possible, the provisions
of this Agreement (including, without limitation, each such portion of the
Agreement containing any such provision held to be invalid, illegal or
unenforceable) shall be construed so as to give effect to the intent manifested
by the provision held invalid, illegal or unenforceable.


 


13.          Nonexclusivity, etc.  The right to indemnification and the payment
of expenses incurred in defending a proceeding in advance of its final
disposition conferred in this Agreement shall not be exclusive of any other
right which any person may have or hereafter acquire under any statute,
provision of the Certificate of Incorporation or Bylaws of the Company (as
amended and restated from time to time), agreement, vote of stockholders or
Disinterested Directors or otherwise.


 


14.          Binding Effect; Successors and
Assigns.  This Agreement shall be
binding upon and inure to the benefit of and be enforceable by the parties
hereto and their respective successors and 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,
and personal and legal representatives. 
The Company shall 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 the Company, by
written agreement in form and substance satisfactory to Indemnitee, expressly
to assume and agree to perform this Agreement in the same manner and to the
same extent that the Company would be required to perform if no such succession
had taken place.  This Agreement shall
continue in effect regardless  of whether Indemnitee continues to serve as a director, officer or
agent of the Company or of any other enterprise at the Company’s request.


 


15.          Notice.  Any notice required or permitted to be given
under this Agreement is to be in writing and either given by personal delivery
or deemed to be delivered three (3) days after deposited, postage
pre-paid, in the U.S. certified or registered mail, return receipt requested,
addressed as follows:


 


	
  If to the Company:

  	
   

  	
  Golden Minerals Company

  1700 Lincoln Street
 Suite 3050
 Denver, Colorado 80203
 Attention: President

  



 


5

















 


	
  If to Indemnitee:

  	
   

  	
  [                                                             ]

  



 


or at such other address as
is specified in written notice given in the manner required in this Agreement.


 


16.          Choice of Law.  This Agreement shall be governed exclusively
by and construed according to the laws of the State of Delaware, as applied to
contracts between Delaware residents entered into and to be performed entirely
within Delaware.  If a court of competent
jurisdiction shall make a final determination that the provisions of the law of
any state other than Delaware govern indemnification by the Company of its
directors, then the indemnification provided under this Agreement shall in all
instances be enforceable to the fullest extent permitted under such law,
notwithstanding any provision of this Agreement to the contrary.


 


17.          Subrogation.  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 documents required and
shall do all acts that may be necessary to secure such rights and to enable the
Company effectively to bring suit to enforce such rights.


 


18.          Amendment and Termination.  No amendment or variation of the terms of
this Agreement will be valid unless the same is in writing signed by all
parties.


 


19.          Integration and Entire Agreement.  This Agreement sets forth the entire
understanding between the parties hereto and supersedes and merges all previous
written and oral negotiations, commitments, understandings and agreements
relating to the subject matter hereof between the parties hereto.


 


20.          Counterparts.  This Agreement may be executed in one or more
counterparts, each of which shall constitute an original.


 


6

















 


IN WITNESS WHEREOF, the
parties hereto have executed this Agreement as of the date first above written.


 


	
   

  	
   

  	
  Golden Minerals Company

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  AGREED TO AND ACCEPTED
  INDEMNITEE:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  [                               ]

  	
   

  	
   

  



 


7

















 


EXHIBIT A


 


A
“Change of Control” shall mean the first to occur of the following: (A) any
person becomes the beneficial owner, directly or indirectly, of securities of
the Company representing 35% or more of the combined voting power of the
Company’s then outstanding voting securities (other than (i) the Company, (ii) any
subsidiary of the Company, or (iii) one or more employee benefit plans
maintained by the Company); (B) three or more Directors of the Company,
whose election or nomination for election is not approved by a majority of the
applicable Incumbent Board, are elected within any single twelve month period
to serve on the Board; (C) members of the applicable Incumbent Board cease
to constitute a majority of the Board; (D) the consummation of a merger or
consolidation of the Company with or into any other corporation or entity or
person, or any other corporate reorganization, in which the stockholders of the
Company immediately prior to such consolidation, merger or reorganization own
less than 50% of the outstanding voting securities of the surviving entity (or
its parent) following the consolidation, merger or reorganization or (E) the
consummation of a sale, lease or other disposition of all or substantially all
of the assets of the Company.  The terms “person”
and “beneficial owner” shall have the meanings set forth in Section 13(d) and
Rule 13d-3, respectively, of the Securities Exchange Act of 1934, as
amended, and in the regulations promulgated thereunder.  “Incumbent Board” means (i) members of
the Board of Directors of the Company as of the date hereof, to the extent that
they continue to serve as members of the Board, and (ii) any individual
who becomes a member of the Board after the date hereof, if such individual’s
election or nomination for election as a Director was approved by a vote of at
least 75% of the then applicable Incumbent Board.