UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 OR 15(d) of The Securities Exchange Act of 1934
Date of Report (Date of Earliest Event Reported): July 15, 2005
THE GOLDFIELD CORPORATION
-------------------------
(Exact Name of Registrant as Specified in its Charter)
Delaware
(State or Other Jurisdiction of Incorporation)
1-7525 88-0031580
(Commission File Number) (I.R.S. Employer
Identification No.)
1684 W. Hibiscus Boulevard, Melbourne, Florida 32901
---------------------------------------------- -----
(Address of Principal Executive Offices) (Zip Code)
(321) 724-1700
--------------
(Registrant's Telephone Number, Including Area Code)
Not Applicable
--------------
(Former Name or Former Address, if Changed Since Last Report)
Check the appropriate box below if the Form 8-K filing is intended to
simultaneously satisfy the filing obligation of the registrant under any of the
following provisions:
|_| Written communications pursuant to Rule 425 under the Securities Act
(17 CFR 230.425)
|_| Soliciting material pursuant to Rule 14a-12 under the Exchange Act
(17 CFR 240.14a-12)
|_| Pre-commencement communications pursuant to Rule 14d-2(b) under the
Exchange Act (17 CFR 240.14d-2(b))
|_| Pre-commencement communications pursuant to Rule 13e-4(c) under the
Exchange Act (17 CFR 240.13e-4(c))
Table of Contents
Item 1.01 - Entry Into a Material Definitive Agreement
Item 5.03 - Amendments to Articles of Incorporation or Bylaws; Change in Fiscal
Year
Item 9.01 - Financial Statements and Exhibits Signature
Exhibit Index
Exhibit 3-1 - Amendment to The Goldfield Corporation's By-Laws effective July
15, 2005
Exhibit 10-1 - Form of Indemnification Agreement
Item 1.01 - Entry Into a Material Definitive Agreement.
On July 15, 2005, the Board of Directors of The Goldfield Corporation
("Goldfield" or the "Company") adopted a standard indemnification agreement to
be entered into between the Company and its directors and officers. This action
was based in large part on the Board's determination that it would be in the
best interests of the Company and its stockholders for the Company to
contractually obligate itself to indemnify its directors and officers as
described below in order to facilitate the Company's ability to retain and
attract talented and experienced individuals to serve as directors and officers.
The Board authorized the Company to enter into indemnification agreements with
each of its directors and with the following officers: John H. Sottile,
Chairman, President and Chief Executive Officer of Goldfield, Robert L. Jones,
President of Southeast Power Corporation, Goldfield's electrical construction
subsidiary, Stephen R. Wherry, Vice President, Treasurer and Chief Financial
Officer of Goldfield, Patricia A. Strange, Secretary of Goldfield, and William
Braselton III, Vice President of Bayswater Development Corporation, Goldfield's
real estate development subsidiary. On or about July 18, 2005 the Company
entered into an indemnification agreement with each of the foregoing persons
(each, an "Indemnitee").
Each indemnification agreement provides that, subject to the limitations
described below, the Company will indemnify the Indemnitee to the fullest extent
permitted under Delaware law, as it presently exists or may be amended, for all
indemnifiable amounts (including fees, expenses, judgments, fines, interest,
penalties, settlements and taxes), arising out of or resulting from any
threatened, pending or completed legal action or proceeding relating to the
Indemnitee's service as a director, officer, employee or agent of the Company or
subsidiary of the Company. The Company will also advance expenses to the
Indemnitee prior to the settlement or final judgment in any such action or
proceeding, provided that the Indemnitee agrees to reimburse the Company if it
is ultimately determined that the Indemnitee is not entitled to be indemnified
by the Company.
In addition, each indemnification agreement provides that the Indemnitee will
not be entitled to indemnification with respect to any claim against the
Indemnitee relating to (i) the purchase or sale the Company's securities
pursuant to Section 16(b) of the Securities Exchange Act of 1934, as amended, or
similar provisions of any federal, state or local law; (ii) fraudulent or
deliberately dishonest conduct or conduct that constituted willful misconduct;
(iii) a breach of Indemnitee's duty of loyalty to the Company or conduct
resulting in
personal profit or advantage to which Indemnitee was not legally entitled; and
(iv) any proceeding initiated by Indemnitee, or any proceeding by Indemnitee
against the Company or its directors, officers, employees or other agents,
unless indemnification is expressly required to be made by law, the proceeding
was authorized by the Board, or indemnification is provided by the Company, in
its sole discretion, pursuant to the powers vested in the Company under
applicable Delaware law. In addition, no indemnity payments will be made by the
Company under any of the indemnity agreements if indemnification would not be
lawful, or if a payment is actually made to the Indemnitee under an insurance
policy, indemnity clause, By-Law or agreement, except to the extent that
Indemnitee is entitled to amounts in excess of the payment made to Indemnitee
pursuant to such insurance policy, indemnity clause, By-Law or agreement.
The indemnification agreements are not exclusive of any other rights to which
the Indemnitee may be entitled to under the Company's certificate of
incorporation, By-Laws, the General Corporation Law of the State of Delaware or
otherwise. The obligations of the Company set forth in the applicable
indemnification agreement will continue as to the Indemnitee for any action
taken or not taken while serving in an indemnified capacity even after the
Indemnitee ceases to serve in such capacity.
The foregoing description of the indemnification agreements does not purport to
summarize all of the provisions of the indemnification agreements and is
qualified in its entirety by reference to the form of indemnification agreement
filed as Exhibit 10-1 to this Current Report on Form 8-K, which is incorporated
herein by reference.
Item 5.03 - Amendments to Articles of Incorporation or Bylaws; Change in Fiscal
Year.
(a) On July 15, 2005, pursuant to the authority provided by the Company's
certificate of incorporation, the Company's Board of Directors amended Article
XIII of the Company's By-Laws to make the By-Law provisions relating to the
indemnification of directors and officers consistent with the procedures and
protections contained in the form indemnification agreement described above in
Item 1.01 of this Current Report on Form 8-K, and to otherwise require the
Company to indemnify directors, officers, employees and other agents of the
Company to the full extent authorized or permitted by law. The Company is not
aware of any pending claims pursuant to which indemnification could be sought
under Article XIII.
Although the Company's existing By-Laws provided for the indemnification of the
Company's directors, officers and employees, the amendment broadens the
indemnification under certain circumstances, in that it provides indemnification
to the full extent authorized or permitted by law, whereas the Company's
existing By-Laws specify the indemnification to be provided which, although
broad, are not coterminous with the indemnification permitted by Delaware law in
all cases. Specifically, the Company's existing By-Laws provide for
indemnification in circumstances where a person is not liable for misconduct or
negligence in the performance of his or her duties to the Company (and in
addition, with respect to criminal matters, where the person has acted in good
faith for a purpose which the person reasonably believed to be in the best
interests of the Company and had
no reasonable cause to believe that his or her conduct was unlawful), whereas,
consistent with the indemnification agreements described above, the amendment
authorizes the Company to provide indemnification to the extent permitted by
Delaware law, which currently provides for indemnification in circumstances
where a person acted in good faith and in a manner the person reasonably
believed to be in or not opposed to the best interests of the Company (and in
addition, with respect to criminal matters, where the person had no reasonable
cause to believe that his or her conduct was unlawful).
In addition, the amendment removes the requirement that the Company receive an
opinion of independent counsel (i) prior to the Company providing
indemnification in respect of fines, penalties and costs and expenses incurred
in connection with a criminal action or proceeding and (ii) prior to the Company
providing advances for expenses before there is a final determination in the
matter as to which indemnification is claimed, and releasing the person
receiving the advances from his or her obligation to repay them to the Company.
Pursuant to the amendment, all determinations as to whether indemnification is
proper under the circumstances will be made either by the Company's Board of
Directors by a majority vote of a quorum of directors who are not party to the
action, suit or proceeding, or, if such a quorum is not obtainable, or the Board
of Directors otherwise directs, by an independent legal counsel, consistent with
the indemnification agreements described above.
The foregoing description of Article XIII of the Company's By-Laws, as amended,
does not purport to summarize all of the provisions thereof and is qualified in
its entirety by reference to the copy of the amendment to the By-Laws which is
filed as Exhibit 3-1 to this Current Report on Form 8-K, which is incorporated
herein by reference.
Item 9.01 - Financial Statements and Exhibits.
(c) Exhibits.
Number Description
------ -----------
Exhibit 3-1 Amendment to The Goldfield Corporation's By-Laws effective
July 15, 2005
Exhibit 10-1 Form of Indemnification Agreement
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
THE GOLDFIELD CORPORATION
By: /s/ Stephen R. Wherry
-----------------------------
Name: Stephen R. Wherry
Title: Vice President, Chief Financial
Officer (Principal Financial Officer),
Treasurer, Assistant Secretary and
Principal Accounting Officer
Dated: July 19, 2005
Exhibit Index
Number Description
------ -----------
Exhibit 3-1 Amendment to The Goldfield Corporation's By-Laws effective
July 15, 2005
Exhibit 10-1 Form of Indemnification Agreement