EXHIBIT 10.2
INDEMNIFICATION AGREEMENT
This Indemnification Agreement (the "Agreement") is entered into as of
__________, 2007 by and between Agria Corporation, a British Virgin Islands
company (the "Company") and the undersigned, a director and/or an officer of the
Company ("Indemnitee").
RECITALS
1. The Company recognizes that highly competent persons are becoming more
reluctant to serve corporations as directors or in other capacities unless they
are provided with adequate protection through insurance or adequate
indemnification against risks of claims and actions against them arising out of
their services to the corporation.
2. The Board of Directors of the Company (the "Board") has determined that
the inability to attract and retain highly competent persons to serve the
Company is detrimental to the best interests of the Company and its shareholders
and that it is reasonable and necessary for the Company to provide adequate
protection to such persons against risks of claims and actions against them
arising out of their services to the corporation.
3. The Indemnitee does not regard the indemnities available under the
Company's current memorandum and articles of association (the "Articles of
Association") as adequate to protect him against the risks associated with his
service to the Company.
4. The Company is willing to indemnify Indemnitee to the fullest extent
permitted by applicable law, and Indemnitee is willing to serve and continue to
serve the Company on the condition that he be so indemnified.
AGREEMENT
In consideration of the premises and the covenants contained herein, the
Company and Indemnitee do hereby covenant and agree as follows:
A. DEFINITIONS
The following terms shall have the meanings defined below:
Expenses shall include damages, judgments, fines, penalties, settlements
and costs, attorneys' fees and disbursements and costs of attachment or similar
bond, investigations, and any expenses paid or incurred in connection with
investigating, defending, being a witness in, participating in (including on
appeal), or preparing for any of the foregoing in, any Proceeding.
Indemnifiable Event means any event or occurrence that takes place either
before or after the execution of this Agreement, related to the fact that
Indemnitee is or was a director or an officer of the Company or any of its
subsidiaries, or is or was serving at the request of the Company as a director
or officer of another corporation, partnership, joint venture or other entity,
or related to anything done or not done by Indemnitee in any such capacity.
Participant means a person who is a party to, or witness or participant
(including on appeal) in, a Proceeding.
Proceeding means any threatened, pending, or completed action, suit or
proceeding, or any inquiry, hearing or investigation, whether civil, criminal,
administrative, investigative or other, in which Indemnitee may be or may have
been involved as a party or otherwise by reason of an Indemnifiable Event,
including, without limitation, any threatened, pending, or completed action,
suit or proceeding by or in the right of the Company.
B. AGREEMENT TO INDEMNIFY
1. General Agreement. In the event Indemnitee was, is, or becomes a
Participant in, or is threatened to be made a Participant in, a Proceeding, the
Company shall indemnify the Indemnitee from and against any and all Expenses
which Indemnitee incurs or becomes obligated to incur in connection with such
Proceeding, to the fullest extent permitted by applicable law.
2. Indemnification of Expenses of Successful Party. Notwithstanding any
other provision of this Agreement, to the extent that Indemnitee has been
successful on the merits in defense of any Proceeding or in defense of any
claim, issue or matter in such Proceeding, Indemnitee shall be indemnified
against all Expenses incurred in connection with such Proceeding or such claim,
issue or matter, as the case may be, offset by the amount of cash, if any,
received by the Indemnitee resulting from his/her success therein.
3. Partial Indemnification. If Indemnitee is entitled under any provision
of this Agreement to indemnification by the Company for a portion of Expenses,
but not for the total amount of Expenses, the Company shall indemnify the
Indemnitee for the portion of such Expenses to which Indemnitee is entitled.
4. Exclusions. Notwithstanding anything in this Agreement to the contrary,
Indemnitee shall not be entitled to indemnification under this Agreement:
(a) to the extent that payment is actually made to Indemnitee under a
valid, enforceable and collectible insurance policy;
(b) to the extent that Indemnitee is indemnified and actually paid other
than pursuant to this Agreement;
(c) in connection with a judicial action by or in the right of the Company,
in respect of any claim, issue or matter as to which the Indemnitee shall have
been adjudicated by final judgment in a court of law to be liable for gross
negligence or misconduct in the performance of his duty to the Company unless
and only to the extent that any court in which such action was brought shall
determine upon application that, despite the adjudication of liability but in
view of all the circumstances of the case, the Indemnitee is fairly and
reasonably entitled to indemnity for such Expenses as such court shall deem
proper;
(d) in connection with any Proceeding initiated by Indemnitee against the
Company, any director or officer of the Company or any other party, and not by
way of defense, unless (i) the Company has joined in or the Reviewing Party (as
hereinafter defined) has consented to the initiation of such Proceeding; or (ii)
the Proceeding is one to enforce indemnification rights under this Agreement or
any applicable law;
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(e) for a disgorgement of profits made from the purchase and sale by the
Indemnitee of securities pursuant to Section 16(b) of the Exchange Act or
similar provisions of any applicable U.S. state statutory law or common law;
(f) brought about by the dishonesty or fraud of the Indemnitee seeking
payment hereunder; provided, however, that the Indemnitee shall be protected
under this Agreement as to any claims upon which suit may be brought against him
by reason of any alleged dishonesty on his part, unless a judgment or other
final adjudication thereof adverse to the Indemnitee establishes that he
committed (i) acts of active and deliberate dishonesty, (ii) with actual
dishonest purpose and intent, and (iii) which acts were material to the cause of
action so adjudicated;
(g) for any judgment, fine or penalty which the Company is prohibited by
applicable law from paying as indemnity;
(h) arising out of Indemnitee's personal tax matter; or
(i) arising out of Indemnitee's breach of an employment agreement with the
Company (if any) or any other agreement with the Company or any of its
subsidiaries.
5. No Employment Rights. Nothing in this Agreement is intended to create in
Indemnitee any right to continued employment with the Company.
6. Contribution. If the indemnification provided in this Agreement is
unavailable and may not be paid to Indemnitee for any reason other than those
set forth in Section 4, then the Company shall contribute to the amount of
Expenses paid in settlement actually and reasonably incurred and paid or payable
by Indemnitee in such proportion as is appropriate to reflect (i) the relative
benefits received by the Company on the one hand and by the Indemnitee on the
other hand from the transaction from which such 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 which resulted in such Expenses, 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 settlement amounts. The Company
agrees that it would not be just and equitable if contribution pursuant to this
Section 6 were determined by pro rata allocation or any other method of
allocation which does not take account of the foregoing equitable
considerations.
C. INDEMNIFICATION PROCESS
1. Notice and 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 given in accordance with Section F.7 below. In addition,
Indemnitee shall give the Company such information and cooperation as the
Company may reasonably request.
2. Indemnification Payment.
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(a) Advancement of Expenses. Indemnitee may submit a written request with
reasonable particulars to the Company requesting that the Company advance to
Indemnitee all Expenses that may be reasonably incurred by Indemnitee in
connection with a Proceeding. The Company shall, within ten (10) business days
of receiving such a written request by Indemnitee, advance all requested
Expenses to Indemnitee. Any excess of the advanced Expenses over the actual
Expenses will be repaid to the Company.
(b) Reimbursement of Expenses. To the extent Indemnitee has not requested
any advanced payment of Expenses from the Company, Indemnitee shall be entitled
to receive reimbursement for the Expenses incurred in connection with a
Proceeding from the Company as soon as practicable after Indemnitee makes a
written request to the Company for reimbursement.
(c) Determination by the Reviewing Party. Notwithstanding anything
foregoing to the contrary, in the event the Reviewing Party informs the Company
that Indemnitee is not entitled to indemnification in connection with a
Proceeding under this Agreement or applicable law, the Company shall be entitled
to be reimbursed by Indemnitee for all the Expenses previously advanced or
otherwise paid to Indemnitee in connection with such Proceeding; provided,
however, that Indemnitee may bring a suit to enforce his indemnification right
in accordance with Section C.3 below.
3. Suit to Enforce Rights. Regardless of any action by the Reviewing Party,
if Indemnitee has not received full indemnification within 30 days after making
a written demand in accordance with Section C.2 above, Indemnitee shall have the
right to enforce its indemnification rights under this Agreement by commencing
litigation in any court of competent jurisdiction seeking a determination by the
court or challenging any determination by the Reviewing Party or any breach in
any aspect of this Agreement. Any determination by the Reviewing Party not
challenged by Indemnitee and any judgment entered by the court shall be binding
on the Company and Indemnitee.
4. Assumption of Defense. In the event the Company is obligated under this
Agreement to advance or bear any Expenses for any Proceeding against Indemnitee,
the Company shall be entitled to assume the defense of such Proceeding, with
counsel approved by Indemnitee, upon delivery to Indemnitee of written notice of
its election to do so. 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 Proceeding, unless
(i) the employment of counsel by Indemnitee has been previously authorized by
the Company, (ii) Indemnitee shall have reasonably concluded, based on written
advice of counsel, that there may be a conflict of interest of such counsel
retained by the Company between the Company and Indemnitee in the conduct of any
such defense, or (iii) the Company ceases or terminates the employment of such
counsel with respect to the defense of such Proceeding, in any of which events
the fees and expenses of Indemnitee's counsel shall be at the expense of the
Company. At all times, Indemnitee shall have the right to employ counsel in any
Proceeding at Indemnitee's expense.
5. Defense to Indemnification, Burden of Proof and Presumptions. It shall
be a defense to any action brought by Indemnitee against the Company to enforce
this Agreement that it is not permissible under this Agreement or applicable law
for the Company to indemnify the Indemnitee for the amount claimed. In
connection with any such action or any
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determination by the Reviewing Party or otherwise as to whether Indemnitee is
entitled to be indemnified under this Agreement, the burden of proving such a
defense or determination shall be on the Company. Neither the failure of the
Reviewing Party or the Company to have made a determination prior to the
commencement of such action by Indemnitee that indemnification is proper under
the circumstances because Indemnitee has met the standard of conduct set forth
in applicable law, nor an actual determination by the Reviewing Party or the
Company that Indemnitee had not met such applicable standard of conduct shall be
a defense to the action or create a presumption that Indemnitee has not met the
applicable standard of conduct.
6. No Settlement Without Consent. Neither party to this Agreement shall
settle any Proceeding in any manner that would impose any damage, loss, penalty
or limitation on Indemnitee without the other party's written consent. Neither
the Company nor Indemnitee shall unreasonably withhold its consent to any
proposed settlement.
7. Company Participation. Subject to Section B.6, the Company shall not be
liable to indemnify the Indemnitee under this Agreement with regard to any
judicial action if the Company was not given a reasonable and timely
opportunity, at its expense, to participate in the defense, conduct and/or
settlement of such action.
8. Reviewing Party.
(a) For purposes of this Agreement, the Reviewing Party with respect
to each indemnification request of Indemnitee shall be (A) the Board of
Directors by a majority vote of a quorum consisting of Disinterested Directors
(as hereinafter defined), or (B) if a quorum of the Board of Directors
consisting of Disinterested Directors is not obtainable or, even if obtainable,
said Disinterested Directors so direct, Independent Counsel in a written opinion
to the Board of Directors, a copy of which shall be delivered to Indemnitee;
and, if it is 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 Independent Counsel or member of
the Board of Directors shall act reasonably and in good faith in making a
determination under this Agreement of the Indemnitee's entitlement to
indemnification. Any reasonable costs or expenses (including reasonable
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 to the extent as aforesaid. "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.
(b) If the determination of entitlement to indemnification is to be
made by Independent Counsel, the Independent Counsel shall be selected as
provided in this Section 8(b). The Independent Counsel shall be selected by
Indemnitee (unless Indemnitee shall request that such selection be made by the
Board of Directors, in which event the Board of Directors by a majority vote of
a quorum consisting of Disinterested Directors shall
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select), and Indemnitee shall give written notice to the Company advising it of
the identity of the Independent Counsel so selected. In either event, Indemnitee
or the Company, as the case may be, may, within 10 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; provided,
however, that such objection may be asserted only on the ground that the
Independent Counsel so selected does not meet the requirements of "Independent
Counsel" as defined in Section 8(d) of this Agreement, and the objection shall
set forth with particularity the factual basis of such assertion. Absent a
proper and timely objection, the person so selected shall act as Independent
Counsel. If a written objection is made and substantiated, the Independent
Counsel selected may not serve as Independent Counsel unless and until such
objection is withdrawn or a court has determined that such objection is without
merit. If the determination of entitlement to indemnification is to be made by
Independent Counsel, but within 20 days after submission by Indemnitee of a
written request for indemnification, no Independent Counsel shall have been
selected and not objected to, then the Board of Directors by a majority vote
shall select the Independent Counsel. The Company shall pay any and all
reasonable fees and expenses of Independent Counsel incurred by such Independent
Counsel in connection with acting under this Agreement, and the Company shall
pay all reasonable fees and expenses incident to the procedures of this Section
8(b), regardless of the manner in which such Independent Counsel was selected or
appointed.
(c) In making a determination with respect to entitlement to
indemnification hereunder, the Reviewing Party shall presume that Indemnitee is
entitled to indemnification under this Agreement if Indemnitee has submitted a
request for indemnification in accordance with this Agreement, and the Company
shall have the burden of proof to overcome that presumption in connection with
the making by any person, persons or entity of any determination contrary to
that presumption. The termination of any Proceeding or of any claim, issue or
matter therein, by judgment, order, settlement (with or without court approval),
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 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. For purposes of any determination of good
faith, Indemnitee shall be deemed to have acted in good faith if Indemnitee's
action is based on the records or books of account of the Company and any other
corporation, partnership, joint venture or other entity of which Indemnitee is
or was serving at the written request of the Company as a director, officer,
employee, agent or fiduciary, including financial statements, or on information
supplied to Indemnitee by the officers and directors of the Company or such
other corporation, partnership, joint venture or other entity in the course of
their duties, or on the advice of legal counsel for the Company or such other
corporation, partnership, joint venture or other entity or on information or
records given or reports made to the Company or such other corporation,
partnership, joint venture or other entity by an independent certified public
accountant or by an appraiser or other expert selected with reasonable care by
the Company or such other corporation, partnership, joint venture or other
entity. In addition, the knowledge and/or actions, or failure to act, of any
director, officer, agent or employee of the Company or such other corporation,
partnership, joint venture or other entity shall not be imputed to Indemnitee
for purposes of determining the right to indemnification under this Agreement.
The provisions of this Section 8(c) shall not be deemed to be exclusive or to
limit in any way the other circumstances in which the
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Indemnitee may be deemed to have met the applicable standard of conduct set
forth in this Agreement.
(d) "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 (5) years has been, retained to represent (i) the Company or
Indemnitee in any matter material to either such party (other than with respect
to matters concerning the Indemnitee under this Agreement, or of other
indemnitees under similar indemnification agreements), or (ii) any other party
to the Proceeding giving rise to a claim for indemnification hereunder.
Notwithstanding the foregoing, the term "Independent Counsel" shall 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. The Company agrees to pay the reasonable fees of the Independent
Counsel referred to above.
D. DIRECTOR AND OFFICER LIABILITY INSURANCE
1. Good Faith Determination. The Company shall from time to time make the
good faith determination whether or not it is practicable for the Company to
obtain and maintain a policy or policies of insurance with reputable insurance
companies providing the officers and directors of the Company with coverage for
losses incurred in connection with their services to the Company or to ensure
the Company's performance of its indemnification obligations under this
Agreement.
2. Coverage of Indemnitee. To the extent the Company maintains an insurance
policy or policies providing directors' and officers' liability insurance,
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 of the
Company's directors or officers.
3. No Obligation. Notwithstanding the foregoing, the Company shall have no
obligation to obtain or maintain any director and officer insurance policy if
the Company determines in good faith that such insurance is not reasonably
available in the case that (i) premium costs for such insurance are
disproportionate to the amount of coverage provided, (ii) the coverage provided
by such insurance is limited by exclusions so as to provide an insufficient
benefit, or (iii) Indemnitee is covered by similar insurance maintained by a
parent or subsidiary of the Company.
E. NON-EXCLUSIVITY; FEDERAL PREEMPTION; TERM
1. Non-Exclusivity. The indemnification provided by this Agreement shall
not be deemed exclusive of any rights to which Indemnitee may be entitled under
the Articles of Association, applicable law or any written agreement between
Indemnitee and the Company (including its subsidiaries and affiliates). The
indemnification provided under this Agreement shall continue to be available to
Indemnitee for any action taken or not taken while serving in an indemnified
capacity even though he may have ceased to serve in any such capacity at the
time of any Proceeding.
2. Federal Preemption. Notwithstanding the foregoing, both the Company and
Indemnitee acknowledge that in certain instances, U.S. federal law or public
policy may override applicable law and prohibit the Company from indemnifying
its directors and
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officers under this Agreement or otherwise. Such instances include, but are not
limited to, the U.S. Securities and Exchange Commission's prohibition on
indemnification for liabilities arising under certain U.S. federal securities
laws. Indemnitee understands and acknowledges that the Company has undertaken or
may be required in the future to undertake with the SEC to submit the question
of indemnification to a court in certain circumstances for a determination of
the Company's right under public policy to indemnify Indemnitee.
3. Duration of Agreement. All agreements and obligations of the Company
contained herein shall continue during the period Indemnitee is an officer
and/or a director of the Company (or is or was serving at the request of the
Company as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise) and shall continue
thereafter so long as Indemnitee shall be subject to any Proceeding by reason of
his former or current capacity at the Company or any other enterprise at the
Company's request, whether or not he is acting or serving in any such capacity
at the time any Expense is incurred for which indemnification can be provided
under this Agreement. This Agreement shall continue in effect regardless of
whether Indemnitee continues to serve as an officer and/or a director of the
Company or any other enterprise at the Company's request.
F. MISCELLANEOUS
1. Amendment of this Agreement. No supplement, modification, or amendment
of this Agreement shall be binding unless executed in writing by the parties
hereto. No waiver of any of the provisions of this Agreement shall operate as a
waiver of any other provisions (whether or not similar), nor shall such waiver
constitute a continuing waiver. Except as specifically provided in this
Agreement, no failure to exercise or any delay in exercising any right or remedy
shall constitute a waiver.
2. Subrogation. In the event of payment to Indemnitee by the Company 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 shall do everything that may be necessary to secure such rights,
including the execution of such documents necessary to enable the Company to
bring suit to enforce such rights.
3. Assignment; Binding Effect. Neither this Agreement nor any of the rights
or obligations hereunder may be assigned by either party hereto without the
prior written consent of the other party; except that the Company may, without
such consent, assign all such rights and obligations to a successor in interest
to the Company which assumes all obligations of the Company under this
Agreement. Notwithstanding the foregoing, this Agreement shall be binding upon
and inure to the benefit of and be enforceable by and against the parties hereto
and the Company's successors (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) and assigns, as well as Indemnitee's
spouses, heirs, and personal and legal representatives.
4. Severability and Construction. 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 a court
order, to perform its obligations under this Agreement shall not constitute a
breach of this Agreement. In addition, if any portion of this Agreement shall be
held by a court of competent jurisdiction to be
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invalid, void, or otherwise unenforceable, the remaining provisions shall remain
enforceable to the fullest extent permitted by applicable law. The parties
hereto acknowledge that they each have opportunities to have their respective
counsels review this Agreement. Accordingly, this Agreement shall be deemed to
be the product of both of the parties hereto, and no ambiguity shall be
construed in favor of or against either of the parties hereto.
5. Counterparts. This Agreement may be executed in two counterparts, both
of which taken together shall constitute one instrument.
6. Governing Law. This agreement and all acts and transactions pursuant
hereto and the rights and obligations of the parties hereto shall be governed,
construed and interpreted in accordance with the laws of the State of New York,
U.S.A., without giving effect to conflicts of law provisions thereof.
7. Notices. All notices, demands, and other communications required or
permitted under this Agreement shall be made in writing and shall be deemed to
have been duly given if delivered by hand, against receipt, or mailed, postage
prepaid, certified or registered mail, return receipt requested, and addressed
to the Company at:
Agria Corporation
Xxxx 000, 0/X, Xxxxxxx Xxxxxxxx
Xx. 00X, Xxxxx Xxxxxx Zhongguancun
Haidian District, Beijing 100081
People's Republic of China
Attention: Xxxxxxxx Xxx
and to Indemnitee at his or her address last known to the Company.
8. Entire Agreement. This Agreement constitutes the entire agreement and
supersedes all prior agreements and understandings, both written and oral,
between the parties with respect to the subject matter hereof.
(Signature page follows)
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IN WITNESS WHEREOF, the parties hereto execute this Agreement as of the date
first written above.
COMPANY
AGRIA CORPORATION
-----------------------------
Name:
Title:
INDEMNITEE
-----------------------------
Name:
