Exhibit 10(ii)
RESOLUTION OF THE BOARD OF DIRECTORS
OF
POTASH CORPORATION OF SASKATCHEWAN INC.
(the "Corporation")
WHEREAS the Canada Business Corporation Act authorizes the Corporation
to indemnify its directors and officers and persons who, at the Corporation's
request, act as directors or officers of, or in a similar capacity to, other
entities (each, an "Eligible Indemnitee");
AND WHEREAS the by-laws of the Corporation require the Corporation to
indemnify its Eligible Indemnitees whenever required or permitted by law;
NOW THEREFORE BE IT RESOLVED THAT:
1. the form of Agreement of Indemnification attached hereto as Schedule
"A" (the "Agreement of Indemnification") be and it is hereby
approved;
2. any director or officer of the Corporation is hereby authorized from
time to time to execute and deliver Agreements of Indemnification
for and in the name of and on behalf of the Corporation with each
person who is, or who becomes, an Eligible Indemnitee, substantially
in the form and on the terms and subject to the conditions of the
Agreement of Indemnification;
3. any one officer or director of the Corporation is hereby authorized
and directed to do all such other acts and to execute, whether under
the corporate seal of the Corporation or otherwise, and deliver,
for, on behalf of, and in the name of the Corporation, all such
other documents, instruments or agreements and to take all such
actions from time to time as such officer or director may in his or
her sole and absolute discretion determine to be necessary or
advisable to give and effect and carry out the foregoing provisions
of this resolution and the terms of the Agreement of
Indemnification, the doing of all such acts and things and the
execution and delivery of such documents, instruments and agreements
being conclusive evidence of such determination.
Schedule "A"
AGREEMENT OF INDEMNIFICATION
THIS AGREEMENT made the day of 2004.
BETWEEN:
POTASH CORPORATION OF SASKATCHEWAN INC. (a corporation continued
under the Canada Business Corporations Act,
(the "Corporation");
- and -
•
(the "Indemnitee").
WHEREAS it is essential to the Corporation to retain and attract as
directors and officers of the Corporation or other bodies corporate
with which the Corporation has a relationship and other individuals
to act in a similar capacity of other entities with which the
Corporation has a relationship (collectively the "Included
Entities") the most capable persons available;
AND WHEREAS, for that purpose, it is the policy of the Corporation
to indemnify its directors and officers and the persons who, at the
Corporation's request, act as directors or officers of or in a
similar capacity for Included Entities (collectively the "Eligible
Indemnitees") as permitted by law;
AND WHEREAS, the bylaws of the Corporation require the Corporation
to indemnify its Eligible Indemnities whenever required or
permitted by law;
AND WHEREAS the Corporation has requested the Indemnitee to act or
to continue to act as a director or officer of, or to act in a
similar capacity for, one or more Included Entities;
AND WHEREAS the Indemnitee has agreed to act or to continue to act
as a director or officer, or both, or to act in a similar capacity,
of one or more of the Included Entities upon the condition that the
Corporation executes and delivers this agreement of
indemnification;
NOW, THEREFORE, THIS AGREEMENT WITNESSETH that in consideration of
the premises and the mutual covenants herein contained and for good
and valuable consideration, the receipt of which is hereby
acknowledged by both parties, the Corporation and Indemnitee agree
as follows:
1. Agreement to Serve: The Indemnitee agrees to act or to continue
to act as a director and/or officer of or in a similar capacity
for Included Entities for so long as [he or she] is duly
elected or appointed or until such time as he or she ceases to
so act, whether by resignation in writing or otherwise.
2. Indemnity Right: To the extent permitted under applicable law,
and subject to the further terms and conditions of this
agreement, the Corporation hereby agrees to indemnify the
Indemnitee and [his/her] personal representatives against all
costs, charges and expenses, including, without limitation, any
amount paid to settle an action or satisfy a judgment,
reasonably incurred by the Indemnitee in respect of any civil,
criminal, administrative, investigative or other proceeding to
which the Indemnitee by reason of being or having been a
director and/or officer or acting or having acted in a similar
capacity, is involved because of that association with one or
more Included Entities.
3. Scope: The agreement extends to all acts, omissions,
circumstances and events, whether occurring before or after the
date of this agreement.
4. Conditions Precedent:
(a) Notice: The Indemnitee shall, as soon as reasonably
practicable after becoming aware of any claim, demand,
action or proceeding which may give rise to indemnification
hereunder, give written notice to the Corporation, directed
to its corporate secretary, provided however, that failure
to give notice in a timely fashion shall not disentitle the
Indemnitee to the right to indemnity hereunder except to the
extent the Corporation suffers actual prejudice by reason of
the delay.
(b) General Conditions: Notwithstanding anything herein
contained, and for greater certainty, the indemnity provided
by Section 2 is only available to the Indemnitee if:
(i) the Indemnitee acted honestly and in good faith with
a view to the best interests of the Included Entity;
(ii) in the case of a criminal or administrative action or
proceeding that is enforced by a monetary penalty,
the Indemnitee had reasonable grounds for believing
that the conduct in question was lawful; and
(iii) in respect of an action by or on behalf of an
Included Entity to procure a judgment in its favour,
to which the Indemnitee is made a party by reason of
the Indemnitee's association with the Included
Entity, if a court of competent jurisdiction gives
its approval to the Corporation to indemnify the
Indemnitee.
(c) Defence Costs: The Corporation shall not be liable for
any defence costs (including without limitation, any
costs, charges and expenses to
investigate, defend, or monitor any action or proceeding)
incurred without its prior express consent, which consent shall
not be unreasonably withheld. In considering the reasonableness
of any request by the Indemnitee that the Corporation consent to
the incurring of defence costs, the Corporation may consider,
without limitation, the proposed choice of defence counsel, the
terms of engagement or proposed counsel and the extent to which
the defence costs may be controlled or limited through common
efforts, including the employment of common counsel, with other
directors and officers of the Included Entity, without the
creation of actual or perceived conflicts of interest.
(d) Settlements: The Corporation shall not be liable for any
costs, charges, or expenses incurred in connection with
any settlement in respect of any claim, demand, action
or proceeding against the Indemnitee which has been
entered into without the prior express consent of the
Corporation. For greater clarity, and without limiting
in any way the generality of the foregoing, in the event
that the Indemnitee enters into any such settlement
without the prior express consent of the Corporation,
the Corporation shall not be responsible for
indemnifying the Indemnitee for any compensation or
other payment to be made under the settlement or for
costs of negotiating or implementing the settlement and
the Indemnitee shall not seek indemnity from the
Corporation in respect of any other costs, charges or
expenses in association with such settlement.
5. Further Exceptions: Nothwithstanding anything herein contained,
the indemnity proved by Section 2 shall not be applicable to or
in respect of any claim arising from:
(a) any act, omission, circumstance or event, in respect of
which it is proven that the Indemnitee has improperly
profited by the conduct which is the subject of the
claim, demand, action or proceeding, whether by trading
activities contrary to securities laws or otherwise;
(b) failure of the Indemnitee to act in accordance with
specific and lawful instructions or directions of the
board of directors of the Corporation, or an officer of
the Corporation who is authorized to provide instruction
or directions to the Indemnitee.
6. Approvals: Where any indemnification sought pursuant to
Section 2 hereof is, under applicable law, subject to or
conditional upon the approval or consent of any court or of any
governmental body or regulatory authority, the Corporation
agrees to make or cause to be made all necessary applications
and to use its reasonable best efforts to obtain or assist in
obtaining or facilitating the obtaining of such approval or
consent.
7. Right to Resign and Survival: Nothing in this agreement shall
prevent the Indemnitee from resigning as a director or officer,
or both, of the Corporation or
any other body corporate at any time. This agreement shall
survive any such resignation or any other circumstance by reason
of which the Indemnitee shall cease to be a director or officer
of the Corporation or any other body corporate.
8. Settlement for Corporation: Subject to the consent of the
Indemnitee, the Corporation may enter into a settlement or
other agreement to compromise a claim, demand, action or
proceeding which has given rise to a notice of claim for
indemnity hereunder.
If the Indemnitee refuses to give consent to the terms of a
proposed settlement or compromise which is otherwise acceptable
to the Corporation, any amount awarded against the Indemnitee
in excess of the amount for which settlement or compromise
could have been made by the Corporation shall not be
recoverable under this agreement, it being further agreed by
the parties that in such event the Corporation shall only be
responsible for costs, charges and expenses up to the time at
which settlement could have been made.
9. Advance Payment of Defence Costs: Except as otherwise expressly
provided herein, in the event the Indemnitee is not in fact
receiving indemnification on a current basis from any other
source with respect to any matter for which indemnity is
available pursuant to this agreement except for the indemnities
provided for in Section 14 and in Section 15 hereof, the
Corporation will advance and pay all costs, charges and
expenses reasonably incurred by the Indemnitee in respect of
any civil, criminal, administrative, investigative, or other
proceeding in which the Indemnitee, by reason of being or
having been a director and/or officer or acting or having acted
in any similar capacity, is involved because of that
association with one or more Included Entities, as such costs,
charges and expenses are incurred, provided however:
(a) that no such advancement shall be made unless and until the
Indemnitee has provided to the Corporation a written
affirmation of [his/her] good faith belief that [he/she] has
met the standard of conduct necessary for indemnification by
the Corporation as provided for in Section 4(b) hereof;
(b) that no such advancement shall be made unless and until the
Indemnitee has provided to the Corporation a written
undertaking by or on behalf of the Indemnitee to repay all
amounts so advanced forthwith if it shall be determined that
the Indemnitee has not met the standard of conduct necessary
for indemnification by the Corporation as provided for in
Section 4(b) hereof;
(c) that if the Indemnitee subsequently receives indemnification
or reimbursement for all or part of any costs, charges or
expenses from a source or sources other than the
Corporation, the amounts so advanced and paid by the
Corporation shall be repaid by the Indemnitee to the
Corporation forthwith upon request, to the extent that the
Indemnitee receives indemnification or reimbursement from
such other source or sources.
10. Subrogation: To the extent permitted by law, the Corporation
shall be subrogated to all rights which the Indemnitee may
have under all policies of insurance or other contracts
pursuant to which the Indemnitee may be entitled to
reimbursement of, or indemnification in respect of, all or
any part of the costs, charges and expenses which are borne
by the Corporation pursuant to this agreement.
11. Proper Law and Attornment: This agreement shall be construed
in accordance with and governed by the laws of the Province
of Saskatchewan and the parties hereto attorn to the
jurisdiction of the courts of Saskatchewan in respect of any
proceedings arising out of this agreement.
12. Severability: Each section, and each provision within each
section, of this agreement is severable, the one from the
other, and if for any reason any section or provision of
this agreement is not enforceable or is otherwise invalid at
law, or would render invalid or unenforceable any policy of
insurance purchased by the Corporation on behalf of or for
the benefit of either the Corporation or the Indemnitee, the
same shall be severed from the remainder of the agreement
and the remainder of this agreement shall nonetheless be
given full force and effect in accordance with its terms.
13. Further Responsibilities and Assurances: The Indemnitee:
(a) shall attend diligently to, and assist in the conduct of,
the defence of any claim, demand, action or proceeding,
shall assist in enforcing any right of contribution or
indemnity against any person or organization and shall
attend hearings and trials and assist in securing and
giving and obtaining the attendance of witnesses;
(b) shall not voluntarily make any payment, assume any
obligation or admit any liability in respect of any claim,
demand, action or proceeding without the prior express
consent of the Corporation; and
(c) shall execute such further assurances and document, give
such consents and perform such further acts as the
Corporation may reasonable request in order that the
Corporation may enjoy the full benefits of this agreement
in accordance with its terms and for that purpose shall
enter into such assignments, powers of attorney and other
documents as may be reasonably required in the
circumstances.
14. Further Indemnity: In addition to the other indemnities
provided for herein, the Corporation shall defend, indemnify
and hold Indemnitee harmless from any loss, liability,
damage, or expense, including reasonable attorney's fees,
arising in connection with or resulting from any breach or
non-fulfillment or any agreement on the part of the
Corporation under this agreement.
15. Payment: Any indemnification or advancement of expenses
required hereunder shall be made promptly upon, and in any
event within thirty (30) days after, a written request from
the Indemnitee to the Corporation. If the Corporation denies
a written request for indemnity or advancement of expenses,
in whole or in part, or if payment in full pursuant to such
request is not made within thirty (30) days of the date such
request is received by the Corporation, the Indemnitee may
at any time bring suit against the Corporation in any court
of competent jurisdiction to establish the Indemnitee's
right to indemnity or advancement of expenses. Indemnitee's
costs and expenses incurred in connection with successfully
establishing his or her right to indemnification in any such
action or proceeding shall also be indemnified by the
Corporation.
16. Initiation of Claims: Notwithstanding anything in this
agreement to the contrary, except with respect to
proceedings initiated by Indemnitee to enforce rights of
indemnification to which Indemnitee is entitled under this
agreement, the Corporation shall indemnify Indemnitee in
connection with a proceeding (or part thereof) initiated by
Indemnitee only if the Initiation of such proceeding (or
part thereof) was authorized by the Board of Directors of
the Corporation.
17. Enurement and Successors: This agreement is irrevocable and
enures to, and is binding upon, the parties hereto and their
respective heirs, successors, representatives and assigns.
IN WITNESS WHEREOF the Corporation and the Indemnitee have
executed this Agreement as of the day and year first written
above.
POTASH CORPORATION OF
SASKATCHEWAN INC.
By:
Name:
SIGNED, SEALED and DELIVERED
by in the presence of
Witness Name