INDEMNIFICATION AGREEMENT
This
Agreement, made and entered into as of the ___ day of ________, 2011
(“Agreement”), by and between Plastec Technologies, Ltd., a Cayman Islands
company (“Company”), and __________ (each an
“Indemnitee”):
WHEREAS,
highly competent persons recently have become more reluctant to serve as
directors, officers, or in other capacities of publicly held corporations and
other corporations that have non-employee investors among their shareholders
unless they are provided with better protection from the risk of claims and
actions against them arising out of their services to and activities on behalf
of such corporation; and
WHEREAS,
the adoption of the United States Xxxxxxxx - Xxxxx Act of 2002 and other laws,
rules and regulations being promulgated have increased the potential for
liability of officers and directors of publicly traded companies;
and
WHEREAS,
the Company has determined that the inability to attract and retain such persons
is detrimental to the best interests of the Company’s shareholders and that such
persons should be assured that they will have better protection in the future;
and
WHEREAS,
it is reasonable, prudent and necessary for the Company to obligate itself
contractually to indemnify such persons to the fullest extent permitted by
applicable law so that such persons will serve or continue to serve the Company
free from undue concern that they will not be adequately indemnified;
and
WHEREAS,
this Agreement is a supplement to and in furtherance of Article 43 of the
Company’s Second Amended and Restated Memorandum and Articles of Association
(the “Articles”) and any resolutions adopted pursuant thereto and shall neither
be deemed to be a substitute therefor nor diminish or abrogate any rights of
Indemnitee thereunder; and
WHEREAS,
Indemnitee is willing to continue to serve and to take on additional service for
or on behalf of the Company on the condition that he or she be indemnified
according to the terms of this Agreement;
NOW,
THEREFORE, in consideration of the premises and the covenants contained herein,
the Company and Indemnitee do hereby covenant and agree as follows:
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1.
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Definitions. For
purposes of this Agreement:
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1.1 “Change
in Control” means a change in control of the Company occurring after the date
hereof of a nature that would be required to be reported in response to Item
6(e) of Schedule 14A of Regulation 14A (or in response to any similar item on
any similar schedule or form) promulgated under the Securities Exchange Act of
1934, as amended (“Act”), whether or not the Company is then subject to such
reporting requirement provided, however, that, without limitation, such a Change
in Control shall be deemed to have occurred if after the date hereof (i) any
“person” (as such term is used in Sections 13(d) and 14(d) of the Act), other
than a person who is an officer or director of the Company on December 16, 2010
(and any of such person’s affiliates), is or becomes the “beneficial owner” (as
defined in Rule 13d-3 under the Act) directly or indirectly, of securities of
the Company representing 50% or more of the combined voting power of the then
outstanding securities of the Company without the prior approval of at least
two-thirds of the members of the Board in office immediately prior to such
person attaining such percentage interest; (ii) the Company is a party to a
merger, consolidation, sale of assets or other reorganization, or a proxy
contest, as a consequence of which members of the Board of Directors (“Board”)
in office immediately prior to such transaction or event constitute less than a
majority of the Board thereafter; or (iii) during any period of two consecutive
years, individuals who at the beginning of such period constituted the Board
(including for this purpose any new director whose election or nomination for
election by the Company’s shareholders was approved by a vote of at least
two-thirds of the directors then still in office who were directors at the
beginning of such period) cease for any reason to constitute at least a majority
of the Board.
1.2 “Corporate
Status” means the status of a person who is or was a director, officer,
employee, agent or fiduciary of the Company or of any subsidiary of the Company
or any other corporation, partnership, joint venture, trust, employee benefit
plan or other enterprise which such person is or was serving at the request of
the Company.
1.3 “Disinterested
Director” means a director of the Company who is not and was not a party to the
Proceeding in respect of which indemnification is sought by
Indemnitee.
1.4 “Expenses”
means all reasonable attorneys’ fees, retainers, court costs (including trial
and appeals), transcript costs, fees of experts, witness fees, travel expenses,
duplicating costs, printing and binding costs, telephone charges, postage,
delivery service fees, and all other disbursements or expenses of the types
customarily incurred in connection with prosecuting, defending, preparing to
prosecute or defend, appealing, preparing to appeal, investigating, or being or
preparing to be a witness in a Proceeding.
1.5 “Independent
Counsel” means a law firm, or a member of a law firm, that is experienced in
matters of corporation law and neither presently is, nor in the past five years
has been, retained to represent: (i) the Company or Indemnitee in any
other matter material to either such party, or (ii) any other party to the
Proceeding giving rise to a claim for indemnification
hereunder. Notwithstanding the foregoing, the term “Independent
Counsel” does not include any person who, under the applicable standards of
professional conduct then prevailing, would have a conflict of interest in
representing either the Company or Indemnitee in an action to determine
Indemnitee’s rights under this Agreement. Except as provided in the
first sentence of Section 9.3 hereof, Independent Counsel shall be selected by
(a) the Disinterested Directors or (b) a committee of the Board consisting of
two or more Disinterested Directors or if (a) and (b) above are not possible,
then by a majority of the full Board.
1.6 “Proceeding”
means any action, suit, arbitration, alternate dispute resolution mechanism,
investigation, administrative hearing or any other proceeding, whether civil,
criminal, administrative or investigative, except one initiated by an Indemnitee
pursuant to Section 11 of this Agreement to enforce his rights under this
Agreement.
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2.
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Services by
Indemnitee.
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Indemnitee
agrees to continue to serve as a director, officer and/or employee of the
Company or one or more of its subsidiaries. Indemnitee may at any
time and for any reason resign from such position (subject to any other
contractual obligation or any obligation imposed by operation of
law).
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3.
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Indemnification -
General.
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The
Company shall indemnify, and advance Expenses to, Indemnitee as provided in this
Agreement to the fullest extent permitted by applicable law in effect on the
date hereof and to such greater extent as applicable law may thereafter from
time to time permit. The rights of Indemnitee provided under the
preceding sentence shall include, but not be limited to, the rights set forth in
the other Sections of this Agreement.
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4.
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Proceedings Other Than
Proceedings by or in the Right of the
Company.
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Indemnitee
shall be entitled to the rights of indemnification provided in this Section if,
by reason of his Corporate Status, he was or is threatened to be made, a party
to any threatened, pending or completed Proceeding, other than a Proceeding by
or in the right of the Company. Pursuant to this Section, Indemnitee
shall be indemnified against Expenses, judgments, penalties, fines and amounts
paid in settlement actually and reasonably incurred by him or on his behalf in
connection with any such Proceeding or any claim, issue or matter therein, if he
acted in good faith and absent his or her fraud or willful default and, with
respect to any criminal Proceeding, had no reasonable cause to believe his
conduct was unlawful.
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5.
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Proceedings by or in
the Right of the Company.
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Indemnitee
shall be entitled to the rights of indemnification provided in this Section if,
by reason of his Corporate Status, he is, was or is threatened to be made, a
party to any threatened, pending or completed Proceeding brought by or in the
right of the Company to procure a judgment in its favor. Pursuant to
this Section, Indemnitee shall be indemnified against Expenses and amounts paid
in settlement (such settlement amounts not to exceed, in the judgment of the
Board, the estimated expense of litigating the Proceeding to conclusion)
actually and reasonably incurred by him or on his behalf in connection with any
such Proceeding if he or she acted in good faith and absent his or her fraud or
willful default. Notwithstanding the foregoing, no indemnification
against such Expenses or amounts paid in settlement shall be made in respect of
any claim, issue or matter in any such Proceeding as to which Indemnitee has
been adjudged to be liable to the Company and/or if applicable law prohibits
such indemnification unless the court in which such Proceeding shall have been
brought, was brought or is pending, shall determine that indemnification against
Expenses or amounts paid in settlement may nevertheless be made by the
Company.
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6.
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Indemnification for
Expenses of Party Who is Wholly or Partly
Successful.
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Notwithstanding
any other provision of this Agreement, to the extent that Indemnitee is, by
reason of his Corporate Status, a party to and is successful, on the merits or
otherwise, in any Proceeding, he or she shall be indemnified against all
Expenses (and, when eligible hereunder, amounts paid in settlement) actually and
reasonably incurred by him or on his behalf in connection
therewith. If Indemnitee is not wholly successful in such Proceeding
but is successful, on the merits or otherwise, as to one or more but less than
all claims, issues or matters in such Proceeding, the Company shall indemnify
Indemnitee against all Expenses (and, when eligible hereunder, amounts paid in
settlement) actually and reasonably incurred by him or on his behalf in
connection with each successfully resolved claim, issue or
matter. For purposes of this Section, the term “successful, on the
merits or otherwise,” includes, but is not limited to, (i) any termination,
withdrawal, discontinuance or dismissal (with or without prejudice) of any
Proceeding against the Indemnitee without any express finding of liability or
guilt against him, and (ii) the expiration of 90 days after the making of any
claim or threat of a Proceeding without the institution of the same and without
any promise or payment made to induce a settlement.
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7.
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Indemnification for
Expenses as a Witness.
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Notwithstanding
any other provision of this Agreement, to the extent that Indemnitee is, by
reason of his Corporate Status, a witness in any Proceeding, he shall be
indemnified against all Expenses actually and reasonably incurred by him on his
behalf in connection therewith.
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8.
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Advancement of
Expenses and Other Amounts.
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The
Company shall advance all Expenses, judgments, penalties, fines and, when
eligible hereunder, amounts paid in settlement, incurred by or on behalf of
Indemnitee in connection with any Proceeding within thirty (30) days after the
receipt by the Company of a statement or statements from Indemnitee requesting
such advance or advances from time to time, whether prior to or after final
disposition of such Proceeding. Such statement or statements shall
reasonably evidence the Expenses, judgments, penalties, fines and amounts paid
in settlement, incurred by Indemnitee and shall include or be preceded or
accompanied by an agreement by or on behalf of Indemnitee to repay any Expenses,
judgments, penalties, fines and amounts paid in settlement advanced if it shall
ultimately be determined that Indemnitee is not entitled to be indemnified
against such Expenses, judgments, penalties, fines and, when eligible hereunder,
amounts paid in settlement.
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9.
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Procedure for
Determination of Entitlement to
Indemnification.
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9.1 To
obtain indemnification under this Agreement in connection with any Proceeding,
and for the duration thereof, 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. The duly authorized officer of the Company shall,
promptly upon receipt of any such request for indemnification, advise the Board
in writing that Indemnitee has requested indemnification.
9.2 Upon
written request by Indemnitee for indemnification pursuant to Section 9.1
hereof, a determination, if required by applicable law, with respect to
Indemnitee’s entitlement thereto shall be made in such case: (i) if a
Change in Control shall have occurred, by Independent Counsel (unless Indemnitee
shall request that such determination be made by the Board or the shareholders,
in which case in the manner provided for in clauses (ii) or (iii) of this
Section 9.2) in a written opinion to the Board, a copy of which shall be
delivered to Indemnitee; (ii) if a Change of Control shall not have occurred,
(A) by the Board by a majority vote of a quorum consisting of Disinterested
Directors, or (B) if a quorum of the Board consisting of Disinterested Directors
is not obtainable, by a majority of a committee of the Board consisting of two
or more Disinterested Directors, or (C) by Independent Counsel in a written
opinion to the Board, a copy of which shall be delivered to Indemnitee, or (D)
by the shareholders of the Company, by a majority vote of a quorum consisting of
shareholders who are not parties to the proceeding, or if no such quorum is
obtainable, by a majority vote of shareholders who are not parties to such
proceeding; or (iii) as provided in Section 10.2 of this
Agreement. If it is so determined that Indemnitee is entitled to
indemnification, payment to Indemnitee shall be made within ten (10) days after
such determination. Indemnitee shall cooperate with the person,
persons or entity making such determination with respect to Indemnitee’s
entitlement to indemnification, including providing to such person, persons or
entity upon reasonable advance request any documentation or information which is
not privileged or otherwise protected from disclosure and which is reasonably
available to Indemnitee and reasonably necessary to such
determination. Any costs or expenses (including attorneys’ fees and
disbursements) incurred by Indemnitee in so cooperating with the person, persons
or entity making such determination shall be borne by the Company (irrespective
of the determination as to Indemnitee’s entitlement to indemnification) and the
Company hereby indemnifies and agrees to hold Indemnitee harmless
therefrom.
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9.3 If
a Change of Control shall have occurred, Independent Counsel shall be selected
by Indemnitee (unless Indemnitee shall request that such selection be made by
the Board), and Indemnitee shall give written notice to the Company advising it
of the identity of Independent Counsel so selected. In either event,
Indemnitee or the Company, as the case may be, may, within seven days after such
written notice of selection shall have been given, deliver to the Company or to
Indemnitee, as the case may be, a written objection to such
selection. Such objection may be asserted only on the ground that
Independent Counsel so selected does not meet the requirements of “Independent
Counsel” as defined in Section 1 of this Agreement, and the objection shall set
forth with particularity the factual basis of such assertion. If such
written objection is made, Independent Counsel so selected may not serve as
Independent Counsel unless and until a court has determined that such objection
is without merit. If, within 20 days after submission by Indemnitee of a written
request for indemnification pursuant to Section 9.1 hereof, no Independent
Counsel shall have been selected and not objected to, either the Company or
Indemnitee may petition the Grand Court of the Cayman Islands or other court of
competent jurisdiction, for resolution of any objection which has been made by
the Company or Indemnitee to the other’s selection of Independent Counsel and/or
for the appointment as Independent Counsel of a person selected by such court or
by such other person as such court shall designate, and the person with respect
to whom an objection is so resolved or the person so appointed shall act as
Independent Counsel under Section 9.2 hereof. The Company shall pay any and all
reasonable fees and expenses of Independent Counsel incurred by such Independent
Counsel in connection with its actions pursuant to this Agreement, and the
Company shall pay all reasonable fees and expenses incident to the procedures of
this Section 9.3, regardless of the manner in which such Independent Counsel was
selected or appointed. Upon the due commencement date of any judicial
proceeding pursuant to Section 11.1(iii) of this Agreement, Independent Counsel
shall be discharged and relieved of any further responsibility in such capacity
(subject to the applicable standards of professional conduct then
prevailing).
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10.
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Presumptions and
Effects of Certain
Proceedings.
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10.1 In
making a determination with respect to entitlement to indemnification hereunder,
the person or persons or entity making such determination shall presume that
Indemnitee is entitled to indemnification under this Agreement if Indemnitee has
submitted a request for indemnification in accordance with Section 9.1 of this
Agreement, and the Company shall have the burden of proof to overcome that
presumption by clear and convincing evidence in connection with the making by
any person, persons or entity of any determination contrary to that
presumption.
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10.2 If
the person, persons or entity empowered or selected under Section 9 of this
Agreement to determine whether Indemnitee is entitled to indemnification shall
not have made a determination within thirty (30) days after receipt by the
Company of the request therefor, the requisite determination of entitlement to
indemnification shall be deemed to have been made and Indemnitee shall be
entitled to such indemnification, absent (i) a misstatement by Indemnitee of a
material fact, or an omission of a material fact necessary to make Indemnitee’s
statement not materially misleading, in connection with the request for
indemnification, or (ii) prohibition of such indemnification under applicable
law; provided, however, that such 30-day period may be extended for a reasonable
time, not to exceed an additional thirty (30) days, if the person, persons or
entity making the determination with respect to entitlement to indemnification
in good faith require(s) such additional time for the obtaining or evaluating of
documentation and/or information relating thereto; and provided, further,
however, that the foregoing provisions of this Section 10.2 shall not apply (i)
if the determination of entitlement to indemnification is to be made by the
shareholders pursuant to Section 9.2 of this Agreement and if (A) within 15 days
after receipt by the Company of the request for such determination the Board has
resolved to submit such determination to the shareholders for their
consideration at an annual meeting thereof to be held within 75 days after such
receipt and such determination is made thereat, or (B) a special meeting of
shareholders is called within 15 days after such receipt for the purpose of
making such determination, such meeting is held for such purpose within 60 days
after having been so called and such determination is made thereat, or (ii) if
the determination of entitlement to indemnification is to be made by Independent
Counsel pursuant to Section 9.2 of this Agreement. In connection with
each meeting at which a shareholder determination will be made, the Company
shall solicit proxies that expressly include a proposal to indemnify or
reimburse the Indemnitee. The Company shall afford the Indemnitee
ample opportunity to present evidence of the facts upon which the Indemnitee
relies for indemnification in any Company proxy statement relating to such
shareholder determination. Subject to the fiduciary duties of its
members under applicable law, the Board will not recommend against
indemnification or reimbursement in any proxy statement relating to the proposal
to indemnify or reimburse the Indemnitee.
10.3 The
termination of any Proceeding or of any claim, issue or matter therein, by
judgment, order, settlement or conviction, or upon a plea of nolo contendere or
its equivalent, shall not (except as otherwise expressly provided in this
Agreement) of itself adversely affect the right of Indemnitee to indemnification
or create a presumption that Indemnitee did not act in good faith and in a
manner which he or she reasonably believed to be in or not opposed to the best
interests of the Company or, with respect to any criminal Proceeding, that
Indemnitee had reasonable cause to believe that his conduct was
unlawful.
10.4 Reliance as Safe
Harbor. For purposes of this Agreement, the Indemnitee shall
be deemed to have acted in good faith and in a manner he reasonably believed to
be in or not opposed to the best interests of the Company, or, with respect to
any criminal Proceeding, to have had no reasonable cause to believe his conduct
was unlawful, if his action is based on (i) the records or books of account of
the Company, or another enterprise, including financial statements, (ii)
information supplied to him by the officers of the Company or another enterprise
in the course of their duties, (iii) the advice of legal counsel for the Company
or another enterprise, or of an independent certified public accountant or an
appraiser or other expert selected with reasonable care by the Company or
another enterprise. The term “another enterprise” as used in this
Section shall mean any other corporation or any partnership, joint venture,
trust, employee benefit plan or other enterprise of which the Indemnitee is or
was serving at the request of the Company as a director, officer, partner,
trustee, employee or agent. The provisions of this Section shall not
be deemed to be exclusive or to limit in any way the other circumstances in
which the Indemnitee may be deemed to have met the applicable standard of
conduct set forth herein. Whether or not the foregoing provisions of this
Section 10.4 are satisfied, it shall in any event be presumed that Indemnitee
has at all times acted in good faith and in a manner he reasonably believed to
be in or not opposed to the best interests of the Company, or, with respect to
any criminal Proceeding, to have had no reasonable cause to believe Indemnitee’s
conduct was unlawful. Anyone seeking to overcome this presumption shall have the
burden of proof and the burden of persuasion by clear and convincing
evidence.
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11.
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Remedies of
Indemnitee.
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11.1 In
the event that (i) a determination is made pursuant to Section 9 of this
Agreement that Indemnitee is not entitled to indemnification under this
Agreement, (ii) advancement of Expenses is not timely made pursuant to Section 8
of this Agreement, (iii) the determination of indemnification is to be made by
Independent Counsel pursuant to Section 9.2 of this Agreement and such
determination shall not have been made and delivered in a written opinion within
30 days after receipt by the Company of the request for indemnification, (iv)
payment of indemnification is not made pursuant to Section 7 of this Agreement
within thirty (30) days after receipt by the Company of a written request
therefor, or (v) payment of indemnification is not made within thirty (30) days
after a determination has been made that Indemnitee is entitled to
indemnification or such determination is deemed to have been made pursuant to
Section 9 or 10 of this Agreement, Indemnitee shall be entitled to an
adjudication in the Grand Court of the Cayman Islands, or in any other court of
competent jurisdiction, of his entitlement to such indemnification or
advancement of Expenses, judgments, penalties, fines or, when eligible
hereunder, amounts paid in settlement. The Company shall not oppose
Indemnitee’s right to seek any such adjudication.
11.2 In
the event that a determination shall have been made pursuant to Section 9 of
this Agreement that Indemnitee is not entitled to indemnification, any judicial
proceeding commenced pursuant to this Section shall be conducted in all respects
as a de novo trial on the merits and Indemnitee shall not be prejudiced by
reason of that adverse determination.
11.3 If
a determination shall have been made or deemed to have been made pursuant to
Section 9 or 10 of this Agreement that Indemnitee is entitled to
indemnification, the Company shall be bound by such determination in any
judicial proceeding commenced pursuant to this Section, absent (i) a
misstatement by Indemnitee of a material fact, or an omission of a material fact
necessary to make Indemnitee’s statement not materially misleading, in
connection with the request for indemnification, or (ii) prohibition of such
indemnification under applicable law.
11.4 The
Company shall be precluded from asserting in any judicial proceeding commenced
pursuant to this Section that the procedures and presumptions of this Agreement
are not valid, binding and enforceable and shall stipulate in any such court
that the Company is bound by all the provisions of this Agreement.
11.5 In
the event that Indemnitee, pursuant to this Section, seeks a judicial
adjudication of his or her rights under, or to recover damages for breach of,
this Agreement, Indemnitee shall be entitled to recover from the Company, and
shall be indemnified by the Company against, any and all expenses (of the kinds
described in the definition of Expenses) actually and reasonably incurred by him
or her in such judicial adjudication, but only if he or she prevails
therein. If it shall be determined in such judicial adjudication that
Indemnitee is entitled to receive less than all of the indemnification or
advancement of expenses sought, the expenses incurred by Indemnitee in
connection with such judicial adjudication shall be appropriately
prorated.
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12.
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Procedure Regarding
Indemnification.
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With
respect to any Proceedings, the Indemnitee, prior to taking any action with
respect to such Proceeding, shall consult with the Company as to the procedure
to be followed in defending, settling, or compromising the Proceeding and may
not consent to any settlement or compromise of the Proceeding without the
written consent of the Company (which consent may not be unreasonably withheld
or delayed). The Company shall be entitled to participate in
defending, settling or compromising any Proceeding and to assume the defense of
such Proceeding with counsel of its choice and shall assume such defense if
requested by the Indemnitee. Notwithstanding the election by, or
obligation of, the Company to assume the defense of a Proceeding, the Indemnitee
shall have the right to participate in the defense of such Proceeding and to
employ counsel of Indemnitee’s choice, but the fees and expenses of such counsel
shall be at the expense of the Indemnitee unless (i) the employment of such
counsel has been authorized in writing by the Company, or (ii) the Indemnitee
has reasonably concluded that there may be defenses available to him or her
which are different from or additional to those available to the Company (in
which latter case the Company shall not have the right to direct the defense of
such Proceeding on behalf of the Indemnitee), in either of which events the fees
and expenses of not more than one additional firm of attorneys selected by the
Indemnitee shall be borne by the Company. If the Company assumes the
defense of a Proceeding, then counsel for the Company and Indemnitee shall keep
Indemnitee reasonably informed of the status of the Proceeding and promptly send
to Indemnitee copies of all documents filed or produced in the Proceeding, and
the Company shall not compromise or settle any such Proceeding without the
written consent of the Indemnitee (which consent may not be unreasonably
withheld or delayed) if the relief provided shall be other than monetary damages
and shall promptly notify the Indemnitee of any settlement and the amount
thereof.
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13.
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Non-Exclusivity;
Survival of Rights; Insurance; Subrogation;
Contribution.
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13.1 The
rights of indemnification and to receive advancement of Expenses as provided by
this Agreement shall not be deemed exclusive of any other rights to which
Indemnitee may at any time be entitled under applicable law, the Articles, any
agreement, a vote of shareholders or a resolution of directors, or
otherwise. No amendment, alteration or repeal of this Agreement or
any provision hereof shall be effective as to any Indemnitee with respect to any
action taken or omitted by such Indemnitee in his Corporate Status prior to such
amendment, alteration or repeal.
13.2 To
the extent that the Company maintains an insurance policy or policies providing
liability insurance for directors, officers, employees, agents or fiduciaries of
the Company or of any other corporation, partnership, joint venture, trust,
employee benefit plan or other enterprise which such person serves at the
request of the Company, Indemnitee shall be covered by such policy or policies
in accordance with its or their terms to the maximum extent of the coverage
available for any such director, officer, employee, agent or fiduciary under
such policy or policies.
13.3 In
the event of any 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 papers required and take all action necessary to secure
such rights, including execution of such documents as are reasonably necessary
to enable the Company to bring suit to enforce such rights.
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13.4 The
Company shall not be liable under this Agreement to make any payment of amounts
otherwise indemnifiable hereunder if and to the extent that Indemnitee has
otherwise actually received such payment under any insurance policy, contract,
agreement or otherwise.
13.5 (a) If
a determination is made that Indemnitee is not entitled to indemnification,
after Indemnitee submits a written request therefor, under this Agreement, then
in respect of any threatened, pending or completed Proceeding in which the
Company is jointly liability with the Indemnitee (or would be if joined in such
Proceeding), the Company shall contribute to the amount of Expenses, judgments,
fines and amounts paid in settlement by the Indemnitee in such proportion as is
appropriate to reflect (i) the relative benefits received by the Company on the
one hand and the Indemnitee on the other hand from the transaction from which
the Proceeding arose, and (ii) the relative fault of the Company on the one hand
and of the Indemnitee on the other hand in connection with the events that
resulted in such Expenses, judgments, fines or amounts paid in settlement, as
well as any other relevant equitable considerations. The relative
fault of the Company on the one hand and of the Indemnitee on the other hand
shall be determined by reference to, among other things, the parties’ relative
intent, knowledge, access to information and opportunity to correct or prevent
the circumstances resulting in such Expenses, judgments, fines or amounts paid
in settlement. The Company agrees that it would not be just and
equitable if contribution pursuant to this Section were determined by pro rata
allocation or any other method of allocation that does not take into account the
foregoing equitable considerations.
(b) The
determination as to the amount of the contribution, if any, shall be made
by:
(i) a
court of competent jurisdiction upon the application of both the Indemnitee and
the Company (if the Proceeding had been brought in, and final determination had
been rendered by such court);
(ii) the
Board by a majority vote of a quorum consisting of Disinterested Directors;
or
(iii) Independent
Counsel, if a quorum is not obtainable for purpose of (ii) above, or, even if
obtainable, a quorum of Disinterested Directors so directs.
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14.
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Duration of
Agreement.
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This
Agreement shall continue until and terminate upon the later of: (a) ten (10)
years after the date that Indemnitee shall have ceased to serve as a director
and/or officer of the Company, or (b) the final termination of all pending
Proceedings in respect of which Indemnitee is granted rights of indemnification
or advancement of Expenses, judgments, penalties, fines or amounts paid in
settlement hereunder and or any proceeding commenced by Indemnitee pursuant to
Section 11 of this Agreement. This Agreement shall be binding upon
the Company and its successors and assigns and shall inure to the benefit of
Indemnitee and his spouse, heirs, executors, personal representatives and
administrators.
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15.
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Severability.
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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 any Section of this Agreement
containing any such provision held to be invalid, illegal or unenforceable, that
is not itself 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 portion of any
Section of this Agreement containing any such provision held to be invalid,
illegal or unenforceable, that is not itself invalid, illegal or unenforceable)
shall be construed so as to give effect to the intent manifested by the
provision held invalid, illegal or unenforceable.
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16.
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Entire
Agreement.
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Save for
Article 43 of the Articles, which this Agreement supplements, this Agreement
constitutes the entire agreement between the Company and the Indemnitee with
respect to the subject matter hereof and supercedes all prior agreements,
understanding, negotiations and discussion, both written and oral, between the
parties hereto with respect to such subject matter (the “Prior Agreements”);
provided, however, that if this Agreement shall ever be held void or
unenforceable for any reasons whatsoever, and is not amended pursuant to Section
15 hereof, then (i) this Agreement shall not be deemed to have superceded any
Prior Agreements; (ii) all of such Prior Agreements shall be deemed to be in
full force and effect notwithstanding the execution of this Agreement; and (iii)
the Indemnitee shall be entitled to maximum indemnification benefits provided
under any Prior Agreements, as well as those provided under applicable law, the
Articles, a vote of shareholders or resolution of directors.
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17.
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Exception to Right of
Indemnification or Advancement of
Expenses.
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Except as
provided in Section 11.5 and under Article 43 of the Articles, Indemnitee shall
not be entitled to indemnification or advancement of Expenses under this
Agreement with respect to any Proceeding, or any claim therein, brought or made
by him against the Company.
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18.
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Covenant Not to Xxx;
Limitation of Actions; Release of
Claims.
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In
consideration of the services provided by Indemnitee, no legal action shall be
brought and no cause of action shall be asserted by or on behalf of the Company
(or any of its subsidiaries) against the Indemnitee, his spouse, heirs,
executors, personal representatives or administrators after the expiration of
two (2) years from the date of accrual of such cause of action and any claim or
cause of action of the Company (or any of its subsidiaries) shall be
extinguished and deemed released unless asserted by the filing of a legal action
within such two (2) year period; provided, however, that if any shorter period
of limitation is otherwise applicable to any such cause of action, such shorter
period shall govern. The Company hereby waives its right to assert a
longer period in which to bring any such action that might be available to it
under law.
10
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19.
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Identical
Counterparts.
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This
Agreement may be executed in one or more counterparts, each of which shall for
all purposes be deemed to be an original but all of which together shall
constitute one and the same Agreement.
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20.
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Headings.
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The
headings of the paragraphs of this Agreement are inserted for convenience only
and shall not be deemed to constitute part of this Agreement or to affect the
construction thereof.
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21.
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Modification and
Waiver.
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No
supplement, modification or amendment of this Agreement shall be binding unless
executed in writing by both of the parties hereto. No waiver of any
of the provisions of this Agreement shall be deemed or shall constitute a waiver
of any other provisions hereof (whether or not similar) nor shall such waiver
constitute a continuing waiver.
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22.
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Notice by
Indemnitee.
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Indemnitee
agrees promptly to notify the Company in writing upon being served with any
summons, citation, subpoena, complaint, indictment, information or other
document relating any Proceeding or matter which may be subject to
indemnification or advancement of Expenses, judgments, penalties, fines or
amounts paid in settlement covered hereunder.
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23.
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Notices.
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All
notices, requests, demands and other communications hereunder shall be in
writing and shall be deemed to have been duly given if (i) delivered by hand and
receipted for by the party to whom such notice or other communication shall have
been directed, or (ii) mailed by certified or registered mail with postage
prepaid, on the third business day after the date on which it is so
mailed:
If to
Indemnitee, to:
If to the
Company, to:
x/x Xxxx
00, 00/X, Xxxxxx Xxxxxx Xxxxxx
00 Xxx
Xxxx Road, Xxxx Xxxx
Kowloon,
Hong Kong
Attention: Chief Executive
Officer
or to
such other address or such other person as Indemnitee or the Company shall
designate in writing in accordance with this Section, except that notices
regarding changes in notices shall be effective only upon
receipt.
11
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24.
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Governing
Law.
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The
parties agree that this Agreement shall be governed by, and construed and
enforced in accordance with, the law of the Cayman Islands without giving effect
to the principles of conflicts of law and the parties submit to the
non-exclusive jurisdiction of the Courts of the Cayman Islands.
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25.
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Miscellaneous.
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Use of
the masculine pronoun shall be deemed to include usage of the feminine pronoun
where appropriate.
IN
WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day
and year first above written.
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By:
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Name: Kin
Sun SZE-TO
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Title: Chairman
& Chief Executive Officer
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INDEMNITEE
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Kin
Sun SZE-TO
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Chin
Xxxx XXX
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Ho
Xxxxx NING
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Xxx
X. XXXXX
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J.
Xxxxx XXXXXX
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Xxxxx
Xxxx XXX
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Xxxxxx
Xxx Xxx
CHOW
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12
