INDEMNIFICATION AGREEMENT
Exhibit 10.2
This Indemnification Agreement (the “Agreement”) is entered into as of , 2009 by and
between China Real Estate Information Corporation, a company incorporated and existing under the
laws of the Cayman Islands (the “Company”), and the undersigned, a director and/or 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 Company.
3. 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 (as hereinafter
defined).
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 of the
Company 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,
including appeal, 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 contrary, 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 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 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 Indemnitee shall have been adjudicated by final judgment in a
court of law to be liable for intentional 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, 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 Securities Exchange Act of 1934, as amended, or similar
provisions of any applicable U.S. state statutory law or common law;
(f) brought about by the dishonesty or fraud of Indemnitee seeking payment hereunder;
provided, however, that 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 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 B.4 above, 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 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 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 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 B.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 in advance 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 (as hereinafter defined) 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 his 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 (as hereinafter defined) 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 C.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
C.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
C.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 C.8(c) shall not be deemed to be exclusive or to limit in any way the other
circumstances in which
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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 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. Indemnitee acknowledges that the U.S. Securities and
Exchange Commission (the “SEC”) believes that indemnification for liabilities arising under the
federal securities laws is against public policy and is, therefore, unenforceable and 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,
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if any portion of this Agreement shall be held by a court of competent jurisdiction to be 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 counsel 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:
Xx. 000 Xxxxxxxx Xxxx
Xxxxxxxx 00000
Xxxxxx’s Republic of China
Attn: Chief Financial Officer
and to Indemnitee at:
the address set forth on Annex A hereto.
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
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INDEMNITEE
Annex A
Name and Business Address
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Tel:
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