Exhibit 10.4
INDEMNIFICATION AGREEMENT
This INDEMNIFICATION AGREEMENT (this "Agreement") is made and entered into
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this day of , 2004 (the "Effective Date") by and between Hurray!
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Holding Co., Ltd., a Cayman Islands corporation (the "Company"), and
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(the "Indemnitee").
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WHEREAS, the Company believes it is essential to retain and attract
qualified directors and officers;
WHEREAS, the Indemnitee is a director and/or officer of the Company;
WHEREAS, both the Company and the Indemnitee recognize the increased risk
of litigation and other claims being asserted against directors and officers of
public companies;
WHEREAS, the Company's Articles of Association require the Company to
indemnify its directors and officers except for costs and other expenses
incurred or sustained by or through their own willful neglect or default; and
WHEREAS, in recognition of the Indemnitee's need for (i) substantial
protection against personal liability and (ii) an inducement to continue to
provide effective services to the Company as a director and/or officer thereof,
the Company wishes to provide for the indemnification of the Indemnitee and to
advance expenses to the Indemnitee to the fullest extent permitted by law and as
set forth in this Agreement, and, to the extent insurance is maintained by the
Company, to provide for the continued coverage of the Indemnitee under the
Company's directors' and officers' liability insurance policies;
NOW, THEREFORE, in consideration of the premises contained herein and of
the Indemnitee continuing to serve the Company directly or, at its request, with
another enterprise, and intending to be legally bound hereby, the parties hereto
agree as follows:
1. Certain Definitions.
(a) A "Change in Control" shall be deemed to have occurred if:
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(i) any "person," as such term is used in Sections 13(d) and
14(d) of the Securities Exchange Act of 1934, as amended, and the rules and
regulations thereunder (the "Exchange Act"), other than (a) a trustee or other
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fiduciary holding securities under an employee benefit plan of the Company; (b)
a corporation owned, directly or indirectly, by the shareholders of the Company
in substantially the same proportions as their ownership of stock of the
Company; or (c) any current beneficial shareholder or group, as defined by Rule
13d-5 of the Exchange Act, including the heirs, assigns and successors thereof,
of beneficial ownership, within the meaning of Rule 13d-3 of the Exchange Act,
of securities possessing more than 50% of the total combined voting power of the
Company's outstanding securities; hereafter becomes
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the "beneficial owner," as defined in Rule 13d-3 of the Exchange Act, directly
or indirectly, of securities of the Company representing 20% or more of the
total combined voting power represented by the Company's then outstanding Voting
Securities;
(ii) during any period of two consecutive years, individuals who
at the beginning of such period constitute the Board and any new director whose
election by the Board or nomination for election by the Company's shareholders
was approved by a vote of at least two-thirds of the directors then in office
who either were directors at the beginning of the period or whose election or
nomination for election was previously so approved, cease for any reason to
constitute a majority thereof; or
(iii) the shareholders of the Company approve a merger or
consolidation of the Company with any other corporation, other than a merger or
consolidation which would result in the Voting Securities of the Company
outstanding immediately prior thereto continuing to represent (either by
remaining outstanding or by being converted into Voting Securities of the
surviving entity) at least 80% of the total voting power represented by the
Voting Securities of the Company or such surviving entity outstanding
immediately after such merger or consolidation, or the shareholders of the
Company approve a plan of complete liquidation of the Company or an agreement
for the sale or disposition by the Company, in one transaction or a series of
transactions, of all or substantially all of the Company's assets.
(b) "Expense" shall mean attorneys' fees and all other costs, expenses
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and obligations paid or incurred in connection with investigating, defending,
being a witness in or participating in (including on appeal), or preparing for
any of the foregoing, any Proceeding relating to any Indemnifiable Event.
(c) "Indemnifiable Event" shall mean any event or occurrence that
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takes place either prior to or after the execution of this Agreement, related to
the fact that the Indemnitee is or was a director or officer of the Company, or
is or was serving at the request of the Company as a director, officer,
employee, or agent of another corporation or of a partnership, joint venture,
trust or other enterprise, including service with respect to employee benefit
plans, or by reason of anything done or not done by the Indemnitee in any such
capacity.
(e) "Proceeding" shall mean any threatened, pending or completed
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action, suit, investigation or proceeding, and any appeal thereof, whether
civil, criminal, administrative or investigative and/or any inquiry or
investigation, whether conducted by the Company or any other party, that the
Indemnitee in good faith believes might lead to the institution of any such
action.
(f) "Reviewing Party" shall mean any appropriate person or body
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consisting of a member or members of the Company's Board or any other person or
body appointed by the Board (including the special independent counsel referred
to in Section 6) who is not a party to the particular Proceeding with respect to
which the Indemnitee is seeking indemnification.
(g) "Voting Securities" shall mean any securities of the Company which
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vote generally in the election of directors.
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2. Indemnification. In the event the Indemnitee was or is a party to or is
involved (as a party, witness, or otherwise) in any Proceeding by reason of (or
arising in part out of) an Indemnifiable Event, whether the basis of the
Proceeding is the Indemnitee's alleged action in an official capacity as a
director or officer or in any other capacity while serving as a director or
officer, the Company shall indemnify the Indemnitee to the fullest extent
permitted by the laws of the Cayman Islands and the Company's Articles of
Association against any and all Expenses, liability, and loss (including
judgments, fines, and amounts paid or to be paid in settlement, and any
interest, assessments, or other charges imposed thereon, and any taxes imposed
on any director or officer as a result of the actual or deemed receipt of any
payments under this Agreement) (collectively, "Liabilities") reasonably incurred
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or suffered by such person in connection with such Proceeding. The Company shall
provide indemnification pursuant to this Section 2 as soon as practicable, but
in no event later than 30 days after it receives written demand from the
Indemnitee. Notwithstanding anything in this Agreement to the contrary and
except as provided in Section 5 below, the Indemnitee shall not be entitled to
indemnification pursuant to this Agreement in connection with any Proceeding
initiated by the Indemnitee against the Company or any director or officer of
the Company unless the Company has joined in or consented to the initiation of
such Proceeding.
3. Advancement of Expenses. The Company shall advance Expenses to the
Indemnitee within 30 business days of such request (an "Expense Advance");
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provided, however, that if required by applicable corporate laws such Expenses
shall be advanced only upon delivery to the Company of an undertaking by or on
behalf of the Indemnitee to repay such amount if it is ultimately determined
that the Indemnitee is not entitled to be indemnified by the Company; and
provided further, that the Company shall make such advances only to the extent
permitted by law. Expenses incurred by the Indemnitee while not acting in
his/her capacity as a director or officer, including service with respect to
employee benefit plans, may be advanced upon such terms and conditions as the
Board, in its sole discretion, deems appropriate.
4. Review Procedure for Indemnification. Notwithstanding the foregoing, (i)
the obligations of the Company under Sections 2 and 3 above shall be subject to
the condition that the Reviewing Party shall not have determined (in a written
opinion, in any case in which the special independent counsel referred to in
Section 6 hereof is involved) that the Indemnitee would not be permitted to be
indemnified under applicable law or the Company's Articles of Association, and
(ii) the obligation of the Company to make an Expense Advance pursuant to
Section 3 above shall be subject to the condition that, if, when and to the
extent that the Reviewing Party determines that the Indemnitee would not be
permitted to be so indemnified under applicable law or the Company's Articles of
Association, the Company shall be entitled to be reimbursed by the Indemnitee
(who hereby agrees to reimburse the Company) for all such amounts theretofore
paid; provided, however, that if the Indemnitee has commenced legal proceedings
in a court of competent jurisdiction pursuant to Section 5 below to secure a
determination that the Indemnitee should be indemnified under applicable law,
any determination made by the Reviewing Party that the Indemnitee would not be
permitted to be indemnified under applicable law shall not be binding and the
Indemnitee shall not be required to reimburse the Company for any Expense
Advance until a final judicial determination is made with respect thereto (as to
which all rights of appeal therefrom have been exhausted or have
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lapsed). The Indemnitee's obligation to reimburse the Company for Expense
Advances pursuant to this Section 4 shall be unsecured and no interest shall be
charged thereon. If there has not been a Change in Control, the Reviewing Party
shall be selected by the Board, and if there has been such a Change in Control,
other than a Change in Control which has been approved by a majority of the
Company's Board who were directors immediately prior to such Change in Control,
the Reviewing Party shall be the special independent counsel referred to in
Section 6 hereof.
5. Enforcement of Indemnification Rights. If the Reviewing Party determines
that the Indemnitee would not be permitted to be indemnified in whole or in part
under applicable law, or if the Indemnitee has not otherwise been paid in full
pursuant to Sections 2 and 3 above within 30 days after a written demand has
been received by the Company, the Indemnitee shall have the right to commence
litigation in any court having subject matter jurisdiction thereof and in which
venue is proper to recover the unpaid amount of the demand (an "Enforcement
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Proceeding") and, if successful in whole or in part, the Indemnitee shall be
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entitled to be paid any and all Expenses in connection with such Enforcement
Proceeding. The Company hereby consents to service of process for such
Enforcement Proceeding and to appear in any such Enforcement Proceeding. Any
determination by the Reviewing Party otherwise shall be conclusive and binding
on the Company and the Indemnitee.
6. Change in Control. The Company agrees that if there is a Change in
Control of the Company, other than a Change in Control which has been approved
by a majority of the Company's Board who were directors immediately prior to
such Change in Control, then with respect to all matters thereafter arising
concerning the rights of the Indemnitee to indemnity payments and Expense
Advances under this Agreement or any other agreement or under applicable law or
the Company's Articles of Association now or hereafter in effect relating to
indemnification for Indemnifiable Events, the Company shall seek legal advice
only from special independent counsel selected by the Indemnitee and approved by
the Company, which approval shall not be unreasonably withheld. Such special
independent counsel shall not have otherwise performed services for the Company
or the Indemnitee, other than in connection with such matters, within the last
five years. Such 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 the Indemnitee in an
action to determine the Indemnitee's rights under this Agreement. Such counsel,
among other things, shall render its written opinion to the Company and the
Indemnitee as to whether and to what extent the Indemnitee would be permitted to
be indemnified under applicable law. The Company agrees to pay the reasonable
fees of the special independent counsel referred to above and to indemnify fully
such counsel against any and all expenses (including attorneys' fees), claims,
liabilities and damages arising out of or relating to this Agreement or the
engagement of special independent counsel pursuant to this Agreement.
7. Partial Indemnity. If the Indemnitee is entitled under any provision of
this Agreement to indemnification by the Company for some or a portion of the
Expenses and Liabilities, but not, however, for all of the total amount thereof,
the Company shall nevertheless indemnify the Indemnitee for the portion thereof
to which the Indemnitee is entitled. Moreover, notwithstanding any other
provision of this Agreement, to the extent that the Indemnitee has
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been successful on the merits or otherwise in defense of any or all Proceedings
relating in whole or in part to an Indemnifiable Event or in defense of any
issue or matter therein, including dismissal without prejudice, the Indemnitee
shall be indemnified against all Expenses incurred in connection therewith. In
connection with any determination by the Reviewing Party or otherwise as to
whether the Indemnitee is entitled to be indemnified hereunder, the burden of
proof shall be on the Company to establish that the Indemnitee is not so
entitled.
8. Non-exclusivity. The rights of the Indemnitee hereunder shall be in
addition to any other rights the Indemnitee may have under any statute,
provision of the Company's Articles of Association, vote of shareholders or
disinterested directors or otherwise, both as to action in an official capacity
and as to action in another capacity while holding such office.
9. Liability Insurance. To the extent the Company maintains an insurance
policy or policies providing directors' and officers' liability insurance, the
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 director
or officer of the Company.
10. Settlement of Claims. The Company shall not be liable to indemnify the
Indemnitee under this Agreement (a) for any amounts paid in settlement of any
action or claim effected without the Company's written consent, which consent
shall not be unreasonably withheld; or (b) for any judicial award if the Company
was not given a reasonable and timely opportunity, at its expense, to
participate in the defense of such action.
11. No Presumption. For purposes of this Agreement, to the fullest extent
permitted by law, the termination of any Proceeding, action, suit or claim, by
judgment, order, settlement (whether with or without court approval) or
conviction, or upon a plea of nolo contendere, or its equivalent, shall not
create a presumption that the Indemnitee did not meet any particular standard of
conduct or have any particular belief or that a court has determined that
indemnification is not permitted by applicable law.
12. Period of Limitations. No legal action shall be brought and no cause of
action shall be asserted by or on behalf of the Company or any affiliate of the
Company against the Indemnitee, the Indemnitee's spouse, heirs, executors or
personal or legal representatives after the expiration of two years from the
date of accrual of such cause of action, or such longer period as may be
required by applicable law under the circumstances, and any claim or cause of
action of the Company or its affiliate shall be extinguished and deemed released
unless asserted by the timely filing of a legal action within such period;
provided, however, that if any shorter period of limitations is otherwise
applicable to any such cause of action, such shorter period shall govern.
13. Consent and Waiver by Third Parties. The Indemnitee hereby represents
and warrants that he or she has obtained all waivers and/or consents from third
parties which are necessary for his or her employment with the Company on the
terms and conditions set forth herein and to execute and perform this Agreement
without being in conflict with any other agreement, obligation or understanding
with any such third party. The Indemnitee represents that he or she is not bound
by any agreement or any other existing or previous business
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relationship which conflicts with, or may conflict with, the performance of his
or her obligations hereunder or prevent the full performance of his or her
duties and obligations hereunder.
14. Amendment of this Agreement. 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. Except as
specifically provided herein, no failure to exercise or any delay in exercising
any right or remedy hereunder shall constitute a waiver thereof.
15. Subrogation. In the event of payment under this Agreement, the Company
shall be subrogated to the extent of such payment to all of the rights of
recovery of the 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 effectively to bring suit to
enforce such rights.
16. No Duplication of Payments. The Company shall not be liable under this
Agreement to make any payment in connection with any claim made against
Indemnitee to the extent the Indemnitee has otherwise actually received payment
(under any insurance policy, vote, agreement or otherwise) of the amounts
otherwise indemnifiable hereunder.
17. Binding Effect. This Agreement shall be binding upon and inure to the
benefit of and be enforceable by the parties hereto and their respective
successors, assigns, 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, spouses, heirs, and personal and legal
representatives. The Company shall require and cause any successor (whether
direct or indirect by purchase, merger, consolidation or otherwise) to all,
substantially all, or a substantial part, of the business and/or assets of the
Company, by written agreement in form and substance satisfactory to the
Indemnitee, expressly to assume and agree to perform this Agreement in the same
manner and to the same extent that the Company would be required to perform if
no such succession had taken place. This Agreement shall continue in effect
regardless of whether the Indemnitee continues to serve as a director or officer
of the Company or of any other enterprise at the Company's request.
18. Severability. The provisions of this Agreement shall be severable in
the event that any of the provisions hereof (including any provision within a
single section, paragraph or sentence) is held by a court of competent
jurisdiction to be invalid, void or otherwise unenforceable, and the remaining
provisions shall remain enforceable to the fullest extent permitted by law.
Furthermore, to the fullest extent possible, the provisions of this Agreement
(including, without limitation, each portion of this Agreement containing any
provision held to be invalid, void or otherwise unenforceable, that is not
itself invalid, void 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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19. Governing Law. This Agreement shall be governed by and construed and
enforced in accordance with the laws of the Cayman Islands applicable to
contracts made and to be performed in such jurisdiction without giving effect to
the principles of conflicts of laws.
20. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
21. Notices. All notices, demands, and other communications required or
permitted hereunder shall be made in writing and shall be deemed to have been
duly given (a) if delivered by hand, when received (b) if transmitted by
facsimile, on receipt of an error-free confirmation, or (c) if by international
courier service, on the fourth (4th) business day following the date of deposit
with such courier service, or such earlier delivery date as may be confirmed in
writing to the sender by the courier service. All such notices, demands and
other communications shall be addressed as follows:
the Company:
Room 000-000, Xxxxx Resources Building
8 Xxxx Xxx Men Xxx Xxxxxx
Xxxxxxxxx Xxxxxxxx
Xxxxxxx 000000 Xxxxx
the Indemnitee:
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Notice of change of address shall be effective only when done in accordance
with this Section. All notices complying with this Section shall be deemed to
have been received on the date of delivery or on the third business day after
mailing.
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IN WITNESS WHEREOF, the parties hereto have duly executed and delivered
this Agreement as of the day first set forth above.
THE COMPANY:
HURRAY! HOLDING CO., LTD.
By:
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Name:
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Title:
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INDEMNITEE:
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Signature
Print Name:
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