INDEMNIFICATION AGREEMENT
Exhibit 10.11
INDEMNIFICATION AGREEMENT (this “Agreement”) dated as of June 24, 2009, by and among EASTERN
WELL HOLDINGS LIMITED (the “Company”), and Xxxx Xxxxxxxx, a citizen of the United States of America
with passport number of 000000000 (the “Director” or “Indemnitee”).
RECITALS
A. The Company and the Indemnitee recognize the continued difficulty in obtaining liability
insurance for its directors and officers, the significant increases in the cost of such insurance
and the general reductions in the coverage of such insurance.
B. The Company and the Indemnitee further recognize the substantial increase in corporate
litigation in general, which subjects directors, officers, employees, controlling persons,
stockholders, agents and fiduciaries to expensive litigation risks at the same time as the
availability and coverage of liability insurance has been severely limited.
C. The Indemnitee does not regard the current protection available as adequate under the
present circumstances, and Indemnitee and other directors and officers of the Company may not be
willing to serve in such capacities without additional protection.
D. The Company (i) desires to attract and retain highly qualified individuals and entities,
such as the Director, to serve the Company and, in part, in order to induce the Director to be
involved with the Company and (ii) wishes to provide for the indemnification and advancing of
expenses to each Indemnitee to the maximum extent permitted by law as provided herein.
E. In view of the considerations set forth above, the Company desires that each Indemnitee be
indemnified by the Company as set forth herein.
NOW, THEREFORE, the Company and each Indemnitee hereby agree as follows:
1. Indemnification.
(a) Indemnification of Expenses.
(i) Third-Party Claims. Subject to Section 8 below, the Company shall indemnify and hold
harmless the Director to the fullest extent permitted by law if the Director was or is or becomes a
party to or witness, or is threatened to be made a party to or witness, any threatened, pending or
completed action, suit, proceeding or alternative dispute resolution mechanism, or any hearing,
inquiry or investigation that such Director reasonably believes might lead to the instigation of
any such action, suit, proceeding or alternative dispute resolution mechanism, whether civil,
criminal, administrative, investigative or other (hereinafter a “Claim”) (other than an action by
right of the Company) by reason of the fact that the Director is or was a director or officer of
the Company, or any subsidiary of the Company, or is or was serving at the request of the Company
as a director or officer of another corporation, partnership, limited liability company, joint
venture, trust or other enterprise, or by reason of any action or inaction on the part of the
Director while serving in such capacity (hereinafter, an “Agent”) or as a direct or indirect result
of any Claim made by any stockholder of the Company against the Director and arising out of or
related to any round of financing of the Company (including but not limited to Claims regarding
non-participation, or non-pro rata participation, in such round by such stockholder), or made by a
third party against the Director based on any misstatement or omission of a material fact by the
Company in
1.
violation of any duty of disclosure imposed on the Company by federal or state securities or common
laws (hereinafter an “Indemnification Event”) against any and all expenses (including attorneys’
fees and all other costs, expenses and obligations), judgments, fines, penalties and amounts paid
in settlement (if, and only if, such settlement is approved in advance by the Company, which
approval shall not be unreasonably withheld) (the “Expenses”) actually and reasonably incurred by
the Director in connection with investigating, defending or participating in (including on appeal)
such Claim if the Director acted in good faith and in a manner he reasonably believed to be in, or
not opposed to, the best interests of the Company and, with respect to any criminal action or
proceeding, had no reasonable cause to believe his conduct was unlawful.
(ii) Derivative Actions. If the Director is a person who was or is a party or is threatened to
be made a party to any Claim by or in the right of the Company to procure a judgment in its favor
by reason of the fact that he or she is or was an Agent of the Company, or by reason of anything
done or not done by him or her in any such capacity, the Company shall indemnify the Director
against any amounts paid in settlement of any such Claim and all Expenses actually and reasonably
incurred by him or her in connection with the investigation, defense, settlement or appeal of such
Claim if he or she acted in good faith and in a manner he or she reasonably believed to be in, or
not opposed to, the best interests of the Company; except that no indemnification under this
subsection shall be made in respect of any claim, issue or matter as to which such person shall
have been finally adjudged to be liable to the Company by a court of competent jurisdiction due to
willful misconduct of a culpable nature in the performance of his duty to the Company, unless and
only to the extent that the court in which such proceeding was brought shall determine upon
application that, despite the adjudication of liability but in view of all the circumstances of the
case, such person is fairly and reasonably entitled to indemnity for such amounts which such other
court shall deem proper.
(b) Reviewing Party. Notwithstanding the foregoing, (i) the obligations of the Company under
Section 1(a) shall be subject to the condition that the Reviewing Party (as described in Section
10(e) hereof) shall not have determined that the Indemnitee would not be permitted to be
indemnified under applicable law or pursuant to Section 8 hereof, and (ii) each Indemnitee
acknowledges and agrees that the obligation of the Company to make an advance payment of Expenses
to an Indemnitee pursuant to Section 2(a) (an “Expense Advance”) shall be subject to the condition
that, if, when and to the extent that the Reviewing Party determines that such Indemnitee would not
be permitted to be so indemnified under applicable law or Section 8 hereof, the Company shall be
entitled to be reimbursed by the Indemnitee (who each hereby agree to promptly reimburse the
Company) for all such amounts theretofore paid; provided, however, that if the Indemnitee has
commenced or thereafter commences legal proceedings in a court of competent jurisdiction to secure
a determination that such Indemnitee should be indemnified under applicable law or Section 8
hereof, 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 lapsed). The
Indemnitee’s obligation to reimburse the Company for any Expense Advance shall be unsecured and no
interest shall be charged thereon. If there has not been a Change in Control (as defined in Section
10(c) hereof), the Reviewing Party shall be selected by the a majority of the Board of Directors
(excluding the Director), 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 of Directors (other than the
Director) who were directors immediately prior to such Change in Control), the Reviewing Party
shall be the Independent Legal Counsel referred to in Section 1(e) hereof. If there has been no
determination by the Reviewing Party or if the Reviewing Party determines that Indemnitee
substantively would not be permitted to be indemnified in whole or in part under applicable law or
Section 8 hereof,
the Indemnitee shall have the right to commence litigation seeking an initial determination by
the court or challenging any such determination by the Reviewing Party or any aspect thereof,
including the legal or factual bases
2.
therefor, and the Company hereby consents to service of process and to appear in any such
proceeding. Any determination by the Reviewing Party otherwise shall be conclusive and binding on
the Company and the Indemnitee.
(c) Contribution. If the indemnification provided for in Section 1(a) above for any reason
other than the statutory limitations of applicable law or as provided in Section 8, is held by a
court of competent jurisdiction to be unavailable to an Indemnitee in respect of any losses,
claims, damages, expenses or liabilities in which the Company is jointly liable with such
Indemnitee, as the case may be (or would be jointly liable if joined), then the Company, in lieu of
indemnifying the Indemnitee thereunder, shall contribute to the amount actually and reasonably
incurred and paid or payable by the Indemnitee as a result of such losses, claims, damages,
expenses or liabilities in such proportion as is appropriate to reflect (i) the relative benefits
received by the Company and the Indemnitee, and (ii) the relative fault of the Company and such
Indemnitee in connection with the action or inaction that resulted in such losses, claims, damages,
expenses or liabilities, as well as any other relevant equitable considerations. The relative
fault of the Company and the Indemnitee shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the Company or the Indemnitee
and the parties’ relative intent, knowledge, access to information and opportunity to correct or
prevent the circumstances resulting in such losses, claims, damages, expenses or liabilities.
The Company and the Indemnitee agree that it would not be just and equitable if contribution
pursuant to this Section 1(c) were determined by pro rata or per capita allocation or by any other
method of allocation which does not take account of the equitable considerations referred to in the
immediately preceding paragraph. No person found guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Securities Act of 1933, as amended (the “Securities Act”))
shall be entitled to contribution from any person who was not found guilty of such fraudulent
misrepresentation.
(d) Survival Regardless of Investigation. The indemnification and contribution provided for
in this Section 1 will remain in full force and effect regardless of any investigation made by or
on behalf of the Indemnitee.
(e) 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 of
Directors who were directors immediately prior to such Change in Control) then, with respect to all
matters thereafter arising concerning the rights of Indemnitee to payments of Expenses under this
Agreement or any other agreement or under the Company’s Memorandum and Articles of Association, as
amended (the “M&A”), Independent Legal Counsel (as defined in Section 10(d) hereof) shall be
selected by the Indemnitee and approved by the Company (which approval shall not be unreasonably
withheld) to determine all such matters. The Company agrees to abide by the determination of the
Independent Legal Counsel and to pay the reasonable fees of the Independent Legal Counsel referred
to above and to fully indemnify such counsel against any and all expenses (including attorneys’
fees), claims, liabilities and damages arising out of or relating to this Agreement or its
engagement pursuant hereto.
(f) Mandatory Payment of Expenses. Notwithstanding any other provision of this Agreement, to
the extent an Indemnitee has been successful on the merits or otherwise, in the defense of any
Claim referred to in Section 1(a) hereof or in the defense of any claim, issue or matter therein,
such Indemnitee shall be indemnified against all Expenses actually and reasonably incurred by such
Indemnitee in connection herewith.
3.
2. Expenses; Indemnification Procedure.
(a) Advancement of Expenses. Subject to Section 8 and except as prohibited by applicable law,
the Company shall advance all Expenses incurred by an Indemnitee in connection with the
investigation, defense, settlement or appeal of any Claim to which such Indemnitee is a party or is
threatened to be made a party by reason of the fact that the Director is or was an Agent of the
Company or by reason of anything done or not done by him or her in any such capacity. The
Indemnitee hereby undertakes to promptly repay such amounts advanced only if, and to the extent
that, it shall ultimately be determined that such Indemnitee is not entitled to be indemnified by
the Company under the provisions of this Agreement, the M&A, applicable law or otherwise. The
advances to be made hereunder shall be paid by the Company to the Indemnitee as soon as practicable
but in any event no later than thirty days after written demand by the Indemnitee therefor to the
Company.
(b) Notice/Cooperation by Indemnitee. The Indemnitee shall give the Company notice in writing
promptly after receipt of notice of commencement of any Claim, or the threat of the commencement of
any Claim, made against such Indemnitee for which indemnification will or could be sought under
this Agreement. Notice to the Company shall be directed to the Chief Executive Officer of the
Company at the address shown on the signature page of this Agreement (or such other person and/or
address as the Company shall designate in writing to the Indemnitee).
(c) No Presumptions. For purposes of this Agreement, the termination of any 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. In addition, neither the failure of the
Reviewing Party to have made a determination as to whether the Indemnitee has met any particular
standard of conduct or had any particular belief, nor an actual determination by the Reviewing
Party that the Indemnitee had not met such standard of conduct or did not have such belief, prior
to the commencement of legal proceedings by the Indemnitee to secure a judicial determination that
the Indemnitee should be indemnified under applicable law, shall be a defense to the Indemnitee’s
claim or create a presumption that the Indemnitee had not met any particular standard of conduct or
did not have any particular belief.
(d) Notice to Insurers. If, at the time of the receipt by the Company of a notice of a Claim
pursuant to Section 2(b) hereof, the Company has liability insurance in effect which may cover such
Claim, the Company shall give prompt written notice of the commencement of such Claim to the
insurers in accordance with the procedures set forth in each of the policies. The Company shall
thereafter take all necessary or desirable action to cause such insurers to pay, on behalf of the
Indemnitee, all amounts payable as a result of such action, suit, proceeding, inquiry or
investigation in accordance with the terms of such policies.
(e) Selection of Counsel. In the event the Company shall be obligated hereunder to pay the
Expenses of any Claim, the Company shall be entitled to assume the defense of such Claim, with
counsel reasonably approved by the Indemnitee, upon the delivery to such Indemnitee of written
notice of its election to do so. After delivery of such notice, approval of such counsel by the
Indemnitee and the retention of such counsel by the Company, the Company will not be liable to such
Indemnitee under this Agreement for any fees of counsel subsequently incurred by such Indemnitee
with respect to the same Claim; provided that, (i) the Indemnitee shall have the right to employ
such Indemnitee’s counsel in any such Claim at the Indemnitee’s expense; (ii) the Indemnitee shall
have the right to employ its own counsel in connection with any such proceeding, at the expense of
the Company, if such counsel serves in a review, observer, advice and counseling capacity and does
not otherwise materially control or participate in the defense of such proceeding; and (iii) if (A)
the employment of counsel by the Indemnitee has been
4.
previously authorized by the Company, (B) such Indemnitee shall have reasonably concluded that
there is a conflict of interest between the Company and such Indemnitee in the conduct of any such
defense, or (C) the Company shall not in fact continue to retain such counsel to defend such Claim,
then the fees and expenses of the Indemnitee’s counsel shall be at the expense of the Company.
3. Additional Indemnification Rights; Nonexclusivity.
(a) Scope. The Company hereby agrees to indemnify the Director to the fullest extent
permitted by law (except as provided in Section 8) with respect to Claims for Indemnification
Events, even if such indemnification is not specifically authorized by the other provisions of this
Agreement or any other agreement, the M&A or by statute. In the event of any change after the date
of this Agreement in any applicable law, statute or rule which expands the right of a Hong Kong
company to indemnify a member of its Board of Directors or an officer, it is the intent of the
parties hereto that Indemnitee shall enjoy by this Agreement the greater benefits afforded by such
change. In the event of any change in any applicable law, statute or rule which narrows the right
of a Hong Kong company to indemnify a member of its Board of Directors or an officer, such change,
to the extent not otherwise required by such law, statute or rule to be applied to this Agreement,
shall have no effect on this Agreement or the parties’ rights and obligations hereunder except as
set forth in Section 8 hereof.
(b) Nonexclusivity. Notwithstanding anything in this Agreement, the indemnification provided
by this Agreement shall be in addition to any rights to which the Indemnitee may be entitled under
the M&A, any agreement, any vote of stockholders or disinterested directors, the laws of Hong Kong,
or otherwise. Notwithstanding anything in this Agreement, the indemnification provided under this
Agreement shall continue as to each Indemnitee for any action the Director took or did not take
while serving in an indemnified capacity even though such Director may have ceased to serve in such
capacity and such indemnification shall inure to the benefit of each Indemnitee from and after the
Director’s first day of service as a director with the Company or affiliation with a director from
and after the date the Director commences services as a director with the Company.
4. No Duplication of Payments. The Company shall not be liable under this Agreement to make
any payment in connection with any Claim made against any Indemnitee to the extent such Indemnitee
has otherwise actually received payment (under any insurance policy, M&A or otherwise) of the
amounts otherwise indemnifiable hereunder.
5. Partial Indemnification. If any Indemnitee is entitled under any provision
of this
Agreement to indemnification by the Company for any portion of Expenses incurred in connection with
any Claim, but not, however, for all of the total amount thereof, the Company shall nevertheless
indemnify the Indemnitee for the portion of such Expenses to which such Indemnitee is entitled.
6. Mutual Acknowledgement. The Company and each Indemnitee acknowledge that in certain
instances, federal law or applicable public policy may prohibit the Company from indemnifying its
directors, officers, employees, controlling persons, agents or fiduciaries under this Agreement or
otherwise.
7. Liability Insurance. To the extent the Company maintains liability insurance applicable to
directors, the Company shall use commercially reasonable efforts to provide that Director shall be
covered by such policies in such a manner as to provide the Indemnitee the same rights and benefits
as are accorded to the most favorably insured of the Company’s directors, if such Indemnitee is a
director.
8. Exceptions. notwithstanding any other provision herein to the contrary, the Company shall
not be obligated pursuant to the terms of this Agreement:
5.
(a) Claims Under Section 16(b). To indemnify either Indemnitee for expenses and the payment of
profits or an accounting thereof arising from the purchase and sale by such Indemnitee of
securities in violation the provisions of Section 16(b) of the Securities Exchange Act of 1934, as
amended (the “Exchange Act”), or any similar provisions of any federal, state or local statutory
law;
(b) Unauthorized Settlements. To indemnify the Indemnitee hereunder for any amounts paid in
settlement of a proceeding unless the Company consents in advance in writing to such settlement,
which consent shall not be unreasonably withheld.
(c) Unlawful Indemnification. To indemnify an Indemnitee if a final decision by a court having
jurisdiction in the matter shall determine that such indemnification is not lawful. In this
respect, the Company and the Indemnitee have been advised that the Securities and Exchange
Commission takes the position that indemnification for liabilities arising under the federal
securities laws is against public policy and is, therefore, unenforceable and that claims for
indemnification should be submitted to appropriate courts for adjudication.;
(d) Fraud. To indemnify an Indemnitee if a final decision by a court having jurisdiction in
the matter shall determine that the Indemnitee has committed fraud on the Company; or
(e) Insurance. To indemnify any Indemnitee for which payment is actually and fully made to the
Indemnitee under a valid and collectible insurance policy; or
(f) Company Contracts. To indemnify an Indemnitee with respect to any Claim related to any
dispute or breach arising under any contract or similar obligation between the Company and such
Indemnitee.
9. Period of Limitations. No legal action shall be brought and no cause of action shall be
asserted by or in the right of the Company against the Director, the Director’s estate, spouse,
heirs, executors or personal or legal representatives after the expiration of five (5) years from
the date of accrual of such cause of action, and any claim or cause of action of the Company shall
be extinguished and deemed released unless asserted by the timely filing of a legal action within
such five (5) year period; provided, however, that if any shorter period of limitations is
otherwise applicable to any such cause of action, such shorter period shall govern.
10. Construction of Certain Phrases.
(a) For the purposes of this Agreement, references to the “Company” shall include, in addition
to the resulting corporation, any constituent corporation (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 and officers, so that if the Director
is or was or may be deemed a director or officer of such constituent corporation, or is or was or
may be deemed to be serving at the request of such constituent corporation as a director or officer
of another corporation, partnership, joint venture, employee benefit plan, trust or other
enterprise, each Indemnitee shall stand in the same position under the provisions of this Agreement
with respect to the resulting or surviving corporation as the Director would have with respect to
such constituent corporation if its separate existence had continued.
(b) For purposes of this Agreement, references to “other enterprises” shall include employee
benefit plans; references to “fines” shall include any excise taxes assessed on the Director with
respect to an employee benefit plan; and references to “serving at the request of the Company”
shall include any service as a director or officer of the Company which imposes duties on, or
involves services
6.
by, such director or officer with respect to an employee benefit plan, its participants or its
beneficiaries; and if the Director acted in good faith and in a manner the Director reasonably
believed to be in the interest of the participants and beneficiaries of an employee benefit plan,
the Director shall be deemed to have acted in a manner “not opposed to the best interests of the
Company” as referred to in this Agreement.
(c) For purposes of this Agreement a “Change in Control” shall be deemed to have occurred if
(i) any “person” (as such term is used in Sections 13(d)(3) and 14(d)(2) of the Exchange Act),
other than a trustee or other fiduciary holding securities under an employee benefit plan of the
Company or a corporation owned directly or indirectly by the stockholders of the Company in
substantially the same proportions as their ownership of stock of the Company, becomes the
“beneficial owner” (as defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of
securities of the Company representing more than 30% of the total 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 of Directors of the Company
and any new director whose election by the Board of Directors or nomination for election by the
Company’s stockholders was approved by a vote of at least a majority of the directors then still 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 stockholders 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
two-thirds (2/3) 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 (iv) the
stockholders of the Company approve a plan of complete liquidation of the Company or an agreement
for the sale or disposition by the Company of (in one transaction or a series of transactions) all
or substantially all of the Company’s assets; provided that in no event shall a Change in Control
be deemed to include (i) a merger, consolidation or reorganization of the Company for the purpose
of changing the Company’s jurisdiction of incorporation and in which there is no substantial change
in the shareholders of the Company or its successor (as the case may be), or (ii) the Company’s
first firm commitment underwritten public offering of any of its securities to the general public
pursuant to (i) a registration statement filed under the Securities Act, or (ii) the securities
laws applicable to an offering of securities in another jurisdiction pursuant to which such
securities will be listed on an internationally recognized securities exchange (the “IPO”).
(d) For purposes of this Agreement, “Independent Legal Counsel” shall mean an attorney or firm
of attorneys, selected in accordance with the provisions of Section 1(e) hereof, who shall not have
otherwise performed services for the Company or any Indemnitee within the last two (2) (other than
with respect to matters concerning the right of any Indemnitee under this Agreement, or of other
indemnitee under similar indemnity agreements).
(e) For purposes of this Agreement, a “Reviewing Party” shall mean any appropriate person or
body consisting of a member or members of the Company’s Board of Directors (other than the
Director) or any other person or body appointed by the Board of Directors who is not a named party
to the particular Claim for which Indemnitee is seeking indemnification, or Independent Legal
Counsel.
(f) For purposes of this Agreement, “Voting Securities” shall mean any securities of the
Company that vote generally in the election of directors.
11. Counterparts. This Agreement may be executed in one or more counterparts, each of which
shall constitute an original.
7.
12. Binding Effect; Successors and Assigns. 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 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 reasonably
satisfactory to each 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 with respect to Claims relating
to Indemnifiable Events regardless of whether any Indemnitee continues to serve as a director or
officer of the Company or of any other enterprise, including subsidiaries of the Company, at the
Company’s request.
13. Attorneys’ Fees. Subject to Section 8 and except as prohibited by applicable law, in the
event that any action is instituted by an Indemnitee under this Agreement or under any liability
insurance policies maintained by the Company to enforce or interpret any of the terms hereof or
thereof, such Indemnitee shall be entitled to be paid all Expenses actually and reasonably incurred
by such Indemnitee with respect to such action if such Indemnitee is ultimately successful in such
action. In the event of an action instituted by or in the name of the Company under this Agreement
to enforce or interpret any of the terms of this Agreement, the Indemnitee shall be entitled to be
paid Expenses actually and reasonably incurred by such Indemnitee in defense of such action
(including costs and expenses incurred with respect to Indemnitee counterclaims and cross-claims
made in such action), and shall be entitled to the advancement of Expenses with respect to such
action, in each case only to the extent that such Indemnitee is ultimately successful in such
action.
14. Notice. All notices and other communications required or permitted hereunder shall be in
writing, shall be effective when given, and shall in any event be deemed to be given (a) five (5)
days after deposit with the U.S. Postal Service or other applicable postal service, if delivered by
first class mail, postage prepaid, (b) upon delivery, if delivered by hand, (c) one business day
after the business day of deposit with Federal Express or similar overnight courier, freight
prepaid, or (d) one day after the business day of delivery by facsimile transmission, if
deliverable by facsimile transmission, with copy by first class mail, postage prepaid, and shall be
addressed if to the Indemnitee, at the Director’s addresses as set forth beneath his signature to
this Agreement and if to the Company at the address of its principal corporate offices (attention:
Chief Executive Officer), with a copy to Xx. 000-000, Xx Xxxx Xxxx, Xxxxxxxxx Xxxxxxxx, Xxxxxxxx,
Xxxxx (attention: Sun Xxxx Xxxx), or at such other address as such party may designate by ten (10)
days’ advance written notice to the other party hereto.
15. 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) are
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 limitations,
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.
16. Choice of Law. This Agreement shall be governed by and its provisions construed and
enforced in accordance with the laws of Hong Kong, without regard to the conflict of laws
principles thereof.
8.
17. 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 documents required and shall do all acts that may be necessary to secure such
rights and to enable the Company effectively to bring suit to enforce such rights.
18. Amendment and Termination. Except as provided in Section 21, no amendment, modification,
termination or cancellation of this Agreement shall be effective unless it is in writing signed by
the parties to be bound thereby. Notice of same shall be provided to all 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.
19. No Construction as Employment Agreement. Nothing contained in this Agreement shall be
construed as giving the Indemnitee any right to be retained in the employ or service of the Company
or any of its subsidiaries.
20. Corporate Authority. The Board of Directors of the Company and its stockholders in
accordance with Hong Kong law have approved the terms of this Agreement.
21. Termination of Agreement. This Agreement shall terminate and be of no further force or
effect upon the closing of the IPO, provided that each Indemnitee will be entitled to all of the
benefits and rights accorded such party under this Agreement with respect to any Claims for any
Indemnification Events arising or related to events, circumstances and actions or omissions which
have occurred or alleged and to have occurred prior to the closing of the IPO.
[The remainder of this page is intentionally left blank.]
9.
IN
WITNESS WHEREOF,
the parties hereto have executed this Indemnification Agreement on and as of the day and year first above
written
| COMPANY: | EASTERN WELL HOLDINGS LIMITED | |||||
| By: |  |
 |
||||
| Title | ||||||
| DIRECTOR: | As Individual: | |||||
| /s/ Xxxx Xxxxxxxx | ||||||
| Name: Xxxx Xxxxxxxx | ||||||
| Address: | ||||||
| A2302, XX Xxxxx, Xxxxxxxx Xxxxxxx Xxxx, Xxxxxxx 000000 Xxxxx |
||||||
[Signature Page to Indemnification Agreement]
