Exhibit 4.10
INDEMNIFICATION AGREEMENT
This Indemnification Agreement ("Agreement") is made as of this day
of 08 November, 2005 by and between Xxxxxx.xxx India Limited, an Indian public
limited company (the "Company"), and Xxx Xxxx, Chief Financial Officer of the
Company("Indemnitee").
WHEREAS, the Company is issuing its American Depositary Shares through
a registered public offering in the United States, and as a result, Indemnitee
will be exposed to litigation risks arising from claims that may be made under
U.S. laws;
WHEREAS, the Company and Indemnitee recognize the increasing
difficulty in obtaining directors' and officers' liability insurance, the
significant increases in the cost of such insurance and the general reductions
in the coverage of such insurance;
WHEREAS, Indemnitee does not regard the current protection available
as adequate under the present circumstances, and Indemnitee and other officers
and directors of the Company may not be willing to continue to serve as
officers and directors without additional protection; and
WHEREAS, the Company will benefit from going public in the United
States and desires to attract and retain the services of highly qualified
individuals, such as Indemnitee, to serve as officers and directors of the
Company and to indemnify its officers and directors so as to provide them with
the maximum protection permitted by law.
NOW, THEREFORE, the Company and Indemnitee hereby agree as follows:
1. Indemnification.
(a) Third Party Proceedings. The Company shall indemnify
Indemnitee if Indemnitee is or was a party or is threatened to be made a party
to any threatened, pending or completed action or proceeding arising under the
laws of the United States or any state thereof (other than an action in the
right of the Company) by reason of the fact that Indemnitee is or was a
director, officer, employee or agent of the Company or any subsidiary of the
Company, or by reason of any action or inaction on the part of Indemnitee
while an officer or director, against expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement (if such settlement is
approved in advance by the Company, which approval shall not be unreasonably
withheld) actually and reasonably incurred by Indemnitee in connection with
such action or proceeding if Indemnitee acted without intentional misconduct
or gross negligence.
(b) Proceedings in the Right of the Company. The Company shall
indemnify Indemnitee if Indemnitee was or is a party or is threatened to be
made a party to any threatened, pending or completed action or proceeding in
the right of the Company to procure a judgment in its favor by reason of the
fact that Indemnitee is or was a director, officer, employee or agent of the
Company or any Subsidiary of the Company by reason of any action or inaction
on the part of Indemnitee while an officer or director such expenses
(including attorneys'fees) actually and reasonably incurred by Indemnitee in
connection with such action or proceeding if such action or proceeding is
adjudged in favor of Indemnitee.
(c) Scope. Notwithstanding any other provision of this
Agreement, Indemnitee shall be entitled to such indemnification, reimbursement
and the like only to the extent permitted under Indian law.
(d) Nonexclusivity. The indemnification provided by this
Agreement shall not be deemed exclusive of any rights to which Indemnitee may
be entitled under any other agreement to which Indemnitee is a party. The
indemnification provided under this Agreement shall continue as to Indemnitee
for any action taken or not taken while serving in an indemnified capacity
even though he may have ceased to serve in such capacity at the time of any
action or other covered proceeding.
2. Indemnification Procedure.
(a) Notice/Cooperation by Indemnitee. Indemnitee shall, as a
condition precedent to his right to be indemnified under this Agreement, give
the company notice in writing as soon as practicable of any claim made against
Indemnitee for which indemnification will or could be sought under this
Agreement. Notice to the Company shall be directed to the Managing Director of
the Company at the address shown on the signature page of this Agreement (or
such other address as the Company shall designate in writing to Indemnitee).
In addition, Indemnitee shall give the Company such information and
cooperation as it may reasonably require and as shall be within Indemnitee's
power.
(b) Procedure. Any indemnification provided for in Section 1
shall be made no later than forty-five (45) days after receipt of the written
request of Indemnitee. If a claim under this Agreement, under any statute, or
under any provision of the Company's Articles of Association or Memorandum of
Association providing for indemnification, is not paid in full by the Company
within forty-five (45) days after a written request for payment thereof has
first been received by the Company, Indemnitee may, but need not, at any time
thereafter bring an action against the Company to recover the unpaid amount of
the claim and, subject to Section 9 of this Agreement, Indemnitee shall also
be entitled to be paid for the expenses (including attorneys' fees) of
bringing such action. It shall be a defense to any such action (other than an
action brought to enforce a claim for expenses incurred in connection with any
action or proceeding in advance of its final disposition) that Indemnitee has
not met the standards of conduct which make it permissible under applicable
law for the company to indemnify Indemnitee for the amount claimed, but the
burden of proving such defense shall be on the Company and Indemnitee shall be
entitled to receive interim payments of expenses pursuant to Subsection 2(a)
unless and until such defense may be finally adjudicated by court order or
judgment from which no further right of appeal exists.
3. Partial Indemnification. If Indemnitee is entitled under any
provision of this Agreement to indemnification by the Company for some or a
portion of the expenses, judgments, fines or penalties actually or reasonably
incurred by him in the investigation, defense, appeal or settlement of any
civil action or proceeding, but not, however, for the total amount thereof,
the Company shall nevertheless indemnify Indemnitee for the portion of such
expenses, judgments, fines or penalties to which Indemnitee is entitled.
4. 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 and officers 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 or any other regulatory body to submit the question of
indemnification to a court in certain circumstances for a determination of the
Company is right under public policy to indemnify Indemnitee.
5. Severability. Nothing in this Agreement is intended to require or
shall be construed as requiring the Company to do or fail to do any act in
violation of applicable law. The Company's inability, pursuant to court order,
to perform its obligations under this Agreement shall not constitute a breach
of this Agreement. The provisions of this Agreement shall be severable as
provided in this Section 5. If this Agreement or any portion hereof shall be
invalidated on any ground by any court of competent jurisdiction, then the
Company shall nevertheless indemnify Indemnitee to the full extent permitted
by any applicable portion of this Agreement that shall not have been
invalidated, and the balance of this Agreement not so invalidated shall be
enforceable in accordance with its terms.
6. Construction of Certain Phrases. For purposes of this Agreement,
references to the "Company" shall include, in addition to the resulting
company, any constituent company (including any constituent of a constituent)
absorbed in a consolidation or merger which, if its separate existence had
continued, would have had power and authority to indemnify its directors,
officers, employees or agents, so that if Indemnitee is or was a director,
officer, employee or agent of such constituent company, or is or was serving
at the request of such constituent company as a director, officer, employee or
agent of another corporation, partnership, joint venture, trust or other
enterprise, Indemnitee shall stand in the same position under the provisions
of this Agreement with respect to the resulting or surviving company as
Indemnitee would have with respect to such constituent company if its separate
existence had continued.
7. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall constitute an original.
8. Successors and Assigns. This Agreement shall be binding upon the
Company and its successors and assigns, and shall inure to the benefit of
Indemnitee and Indemnitee's estate, heirs, legal representatives and assigns.
9. Attorneys' Fees. To the maximum extent provided for under Indian
law,in the event that any action is instituted by Indemnitee under this
Agreement to enforce or interpret any of the terms hereof, Indemnitee shall be
entitled to be paid all court costs and expenses, including reasonable
attorneys' fees, incurred by Indemnitee with respect to such action, except
for the pro-rata amount of any such costs and expenses relating to material
assertions that, as a part of such action, the court of competent jurisdiction
determines were not made in good faith or were frivolous. In the event of an
action instituted in the name of the Company under this Agreement or to
enforce or interpret any of the terms of this Agreement, Indemnitee shall be
entitled to be paid all court costs and expenses, including attorneys, fees,
incurred by Indemnitee in defense of such action (including with respect to
Indemnitee's counterclaims and cross-claims made in such action), except for
the pro-rata amount of any such costs and expenses relating to material
assertions that, as a part of such action, the court determines were not made
in good faith or were frivolous.
10. Notice. All notices, requests, demands and other communications
under this Agreement shall be in writing. Addresses for notice to either party
are as shown on the signature page of this Agreement, or as subsequently
modified by written notice.
11. Consent to Jurisdiction. The Company and Indemnitee each hereby
irrevocably consent to the jurisdiction of the State of Maharashtra, India for
all purposes in connection with any action or proceeding which arises out of
or relates to this Agreement and agree that any action instituted under this
Agreement shall be brought only in such courts.
12. Choice of Law. This Agreement shall be governed by and its
provisions construed in accordance with the laws of India.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the date first above written.
XXXXXX.XXX INDIA LIMITED
By: /s/ Xxxx Xxxxxxxxxxxx
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Name: Xxxx Xxxxxxxxxxxx
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Title: Chairman & Managing Director
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Address:
Xxxxxxxxx Engineering
Estate 1st Floor,
X. X. First Cross Road
Mahim (West),
Xxxxxx 000 000, Xxxxx
AGREED TO AND ACCEPTED:
INDEMNITEE
/s/ Xxx Xxxx
(signature)
Address: Xxxxxx.xxx India Limited
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Xxxxxxxxx Engg Estate, X X First Cross Road
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Mahim (West) Mumbai - 400025
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