INDEMNIFICATION AGREEMENT
Exhibit 4.37
EXECUTION VERSION
Confidential
Confidential
This INDEMNIFICATION AGREEMENT is entered into as of April 13, 2011 by and among Purple
Mountain Holding Ltd., a British Virgin Islands company having its registered office at 0xx Xxxxx,
Xxxxx Xxxxxxxx, Xxxx Reef, XX Xxx 000, Xxxx Xxxx, Xxxxxxx, Xxxxxxx Xxxxxx Xxxxxxx (“Option
Holder”) and Yue (Xxxxxx) Xxxx, an individual residing at #3701, Tower A, Beijing Xxxxxxx
Xxxxx, 0 Xxxx Xxx Xxxx Xxxxx Xx, Xxxxxxx, 000000 and sole shareholder of the Option Holder
(“Tang” and together with Option Holder, the “Option Holder Parties”), on the one
hand, and eLong, Inc., an exempted company incorporated with limited liability in the Cayman
Islands (“Company”), on the other hand.
RECITALS
WHEREAS, Option Holder has delivered to the Company a Notice of Exercise with respect to
Option Holder’s exercise of options (the “Options”) to purchase an aggregate of 1,377,430
ordinary shares, par value $0.01 per share (the “Shares”), of the Company, for an exercise
price of $0.50 per share, share, as well as related fees and costs, for a total payment of
$709,215; and
WHEREAS, simultaneously with the execution of this Agreement, the Company is issuing the
Shares in the name of the Option Holder; and
WHEREAS, the Option Holder Parties wish to provide indemnification rights to the Company and
other Indemnified Parties (as hereinafter defined) against any Claims or Taxes (as hereinafter
defined) for which the Company or any other Indemnified Party may become liable in connection with
the Option Holder’s ownership, receipt, transfer or exercise of the Options (other than any Taxes
imposed on the Company with respect to its receipt of the exercise price for the Options); and
WHEREAS, as security for the obligations of the Option Holder Parties under this Agreement,
the Option Holder Parties, the Company and the Escrow Agent named therein are entering into a
Securities Escrow Agreement (the “Escrow Agreement”) as of the date of this Agreement.
NOW, THEREFORE, in consideration of the premises and mutual covenants and agreements herein
contained, and for other good and valuable consideration, including the Company’s issuance of the
Shares to the Option Holder pursuant to the Option Holders’ exercise of the Option, the parties
hereto hereby agree as follows:
1. Obligation to Indemnify. Each of the Option Holder Parties, jointly and severally,
shall be liable to and shall indemnify, defend and hold the Company and each of its subsidiaries,
affiliates, and variable interest entities, and their respective successors and permitted assigns
(each, an “Indemnified Party”) harmless from and against any and all claims, demands,
actions, causes of action, judgments, damages, losses, liabilities, costs or expenses (each, a
“Claim” and collectively, the “Claims”) which may be made or brought against an
Indemnified Party or which it may suffer or incur as a result of, arising out of or relating to any
Taxes required to be withheld, or alleged to be required to be withheld, by the Company and/or its
affiliates, or for which the Company and/or any of its affiliates become liable, or are alleged to
be liable, including any costs or expenses incurred by the Company with respect to any inquiry by
any governmental authority regarding any of the foregoing, in connection with the Option Holder’s
receipt or exercise of the Options (other than any Taxes imposed on the Company with respect to its
receipt of the exercise price for the Options).
2. “Tax” or “Taxes” means all net income, gross income, gross receipts, sales,
use, ad valorem, transfer, excess profits, franchise, profits, license, withholding, payroll,
employment, unemployment social security, excise, severance, stamp, occupation, premium, property,
disability, capital stock, capital gains or windfall profits taxes, customs duties or other taxes,
fees, assessments or governmental charges of any kind whatsoever, together with any interest and
penalties, additions to tax or additional amounts imposed with respect thereto.
3. Notice of Claims. Upon obtaining knowledge thereof, an Indemnified Party (the
“Indemnitee”) shall promptly notify either or both of the Option Holder Parties (the
“Indemnitor”) in writing of any damage, claim, loss, liability or expense which the
Indemnitee has determined has given or could give rise to a Claim under Section 1 hereof (a
“Notice of Claim”). A Notice of Claim shall specify, in reasonable detail, the nature and
estimated amount of any such Claim giving rise to a right of indemnification. The omission to so
notify the Indemnitor shall not relieve the Indemnitor from any duty to indemnify, defend and hold
harmless which otherwise might exist with respect to such Claim unless (and only to the extent
that) the omission to notify prejudices the ability of the Indemnitor to exercise its right to
defend provided in Section 5 hereof and results in a direct loss being incurred by the Indemnitor.
The Indemnitor shall deliver or cause to be delivered to the Indemnitee (as well as to the Company
in the event that the Indemnitee is a party other than the Company) copies of all correspondence,
pleadings, motions, briefs, appeals or other written statements relating to or submitted in
connection with the defense of any such Claim and timely notices of any hearing or other court
proceeding relating to such Claim.
4. Recovery for Claims. If any Indemnified Party has a claim that either or both of
the Option Holder Parties is liable for any Claims, the Indemnified Party seeking indemnification
shall provide a Notice of Claim, within 90 days of its discovery of the Claim, of the nature and
extent thereof, and the Option Holder Parties shall repay such Claim within 10 days thereafter or
shall inform the Indemnified Party seeking indemnification that it is denying in good faith all or
a portion of such Claim. If the Indemnified Party seeking indemnification disputes the denial of
any portion of such Claim, it may thereupon proceed to enforce its rights under this Agreement and
the Escrow Agreement.
5. Defense of Third Party Claims. With respect to any Claim set forth in a Notice of
Claim relating to a third party Claim, the Indemnitor may elect to defend, at its own expense, any
such Claim; provided, however, the Indemnitor shall not settle or compromise any claim, suit or
action against any Indemnitee without the written consent of the Indemnitee, and the Indemnitee,
at the expense of the Indemnitor, shall have the right to participate in the defense of any
such third party Claim. The Indemnitee shall make available to the Indemnitor and its
representatives all records and other materials reasonably required by them for use in contesting
any third party Claim and shall cooperate reasonably with the Indemnitor and its representatives in
the defense of all such Claims. If the Indemnitor does not so elect to defend any such third party
Claim, the Indemnitee may so elect, but shall have no obligation to do so. It is agreed and
understood that Indemnitor shall have the right to be informed of and consulted with respect to any
communications of Indemnitee with governmental authorities regarding any Claim.
6. Notice of Inquiry; Top Up Payments.
(a) If at any time the Company receives notice that any governmental authority is conducting
an inquiry (an “Inquiry”) which may relate to the Option Holder’s ownership, receipt,
transfer or exercise of the Options or Shares, the Company will provide written notice thereof (an
“Inquiry Notice”) to the Option Holder Parties.
(b) The Option Holder Parties shall, within 10 days after the date of the Inquiry Notice,
deposit with the Company or the Company’s designee, in Renminbi cash, an amount (the “Top Up
Payment”) equal to (i) the greater of (x) the RMB Market Value (as defined below) of the
Escrowed Shares (as defined in the Escrow Agreement) as of the date of this Agreement and (y) such
other potential claim amount set forth by the Company in its reasonable discretion in the Inquiry
Notice (the “Potential Claim Amount”); minus (ii) the RMB Market Value of the Escrowed
Shares as of the date of the Inquiry Notice. Subsequently, the Option Holder Parties shall, by no
later than the tenth (10th) day of each calendar month thereafter, deposit with the Company or the
Company’s designee, in Renminbi cash, an amount equal to (i) the greater of (x) the RMB Market
Value of the Escrowed Shares as of the date of this Agreement and (y) the Potential Claim Amount;
minus (ii) the sum of (x) the RMB Value of the Escrowed Shares as of the first day of such month
and (y) the aggregate total of Top Up Payments previously received by the Company or the Company’s
designee. The RMB Market Value of the Escrowed Shares for a given date shall be equal to (i)
one-half the closing price of the Company’s American depositary shares (adjusted to reflect the
number of ordinary shares represented by each ADS) on NASDAQ for such date, (ii) multiplied by the
RMB:US dollar exchange rate on such date (based on the noon buying rate in New York for cable
transfers of Renminbi as published by the Federal Reserve Bank of New York), (iii) multiplied by
the total number of Escrowed Shares.
(c) Any failure of the Option Holder Parties to make the deposits with the Escrow Agent
required by this paragraph will constitute a default of the Option Holder Parties’ indemnification
obligations under this Agreement, and an “Event of Default” under the Escrow Agreement. In
addition to all other remedies available under this Agreement and the Escrow Agreement, the Company
shall be entitled to collect interest on any unpaid Top Up Payments at the rate of five (5%)
percent per month.
(d) If at any time either of the Option Holder Parties receives notice of an Inquiry, the
Option Holder Parties shall notify the Company, including setting forth in detail the nature of
such notice, within one business day of such Option Holder Party’s receipt of such notice. Any
failure to so notify the Company will constitute a default in the Option Holder Parties’
indemnification obligations under this Agreement and an Event of Default under the Escrow
Agreement.
7. Pledge of Escrowed Shares. As security for its indemnification obligations under
this Agreement, each of the Option Holder Parties hereby pledges to the Company and grants to the
Company a first priority security interest in the Escrowed Shares (as defined in the Escrow
Agreement) and all proceeds of the Escrowed Shares (collectively, the “Pledged Assets”).
Simultaneously with the execution of this Agreement, the Option Holder has delivered or will
deliver to the Company (as and if appropriate, for delivery to the Escrow Agent), (i) the original
share certificate(s) (if any) in respect of the Escrowed Shares, (ii) blank, signed and undated
transfers in respect of the Escrowed Shares in the form set out in Annex 1, and (iii) such other
documents of transfer as Company may from time to time reasonably request to enable the Company,
after the occurrence and during the continuance of a default in the payment, performance or
observance of the indemnification obligations under this Agreement, to transfer into its name or
the name of its nominee the Escrowed Shares.
8. Remedies.
(a) The Company may, after the occurrence and during the continuance of a default in the
performance or observance of the indemnification obligations under this Agreement, without notice
and at its option, transfer or register the Pledged Assets or any part thereof into its or its
nominee’s name with or without any indication that such Pledged Assets is subject to the lien
created hereunder.
(b) The Company shall have, in addition to any other rights given under this Agreement or any
other document or by applicable law, all of the rights and remedies with respect to the Pledged
Assets of a secured party under the Uniform Commercial Code as in effect from time to time in the
State of New York. In addition, after the occurrence of a default in the performance or observance
of the indemnification obligations under this Agreement, the Company shall have such powers of sale
and other powers as may be conferred by applicable law. With respect to the Pledged Assets or any
part thereof which shall then be in or shall thereafter come into the possession or custody of the
Company, or which the Company shall otherwise have the ability to transfer under applicable law,
the Company may, in its sole discretion, without notice except as specified below, after the
occurrence and during the continuance of a default in the payment, performance or observance of the
indemnification obligations under this Agreement, retain such Pledged Assets, or sell or cause the
same to be sold at any exchange, broker’s board or at public or private sale, in one or more sales
or lots, at such price as the Company may deem best, for cash or on credit or for future delivery,
without assumption of any credit risk, and the purchaser of any or all of the Pledged Assets so
sold shall thereafter own the same, absolutely free and clear from any subordinate claim,
encumbrance or right of any kind whatsoever. The Option Holder Parties will pay to the Company all
reasonable expenses (including, without limitation, reasonable attorneys’ fees and expenses) of, or
incident to, the enforcement of any of the provisions hereof. The Company agrees to apply any
proceeds of the sale of the Pledged Assets to the Obligations and the Option Holder Parties shall
remain liable for any deficiency following the sale of the Pledged Assets.
(c) In view of the fact that applicable law and the Articles of Association of the Company
impose certain restrictions on the method by which the Company may sell the Escrowed Shares, a sale
of the Pledged Assets may be effected after a default in the performance or observance of the
indemnification obligations under this Agreement, the Option Holder Parties agree that after the
occurrence and during the continuance of a default in the performance or observance of the
indemnification obligations under this Agreement, the Company may, from time to time, attempt to
sell all or any part of the Pledged Assets by means of a private placement restricting the bidders
and prospective purchasers to those who are qualified and will represent and agree that they are
purchasing for investment only and not for distribution. In so doing, the Company may solicit
offers to buy the Pledged Assets, or any part of it, from a limited number of investors deemed by
the Company, in its reasonable judgment, to be financially responsible parties who might be
interested in purchasing the Pledged Assets.
9. The Company Appointed Attorney-in-Fact. Each of the Option Holder Parties hereby
appoints the Company its attorney-in-fact, with full authority, in the name either or both of the
Option Holder Parties or otherwise, after the occurrence and during the continuance of a default in
the payment, performance or observance of the indemnification obligations under this Agreement,
from time to time in the Company’s sole discretion, to take any lawful action and to execute any
instrument which the Company may deem necessary or advisable to accomplish the purposes of this
Agreement, including, without limitation, to receive, endorse and collect all instruments made
payable to either of the Option Holder Parties representing any dividend or other distribution in
respect of the Escrowed Shares or any part thereof and to give full discharge for the same and to
arrange for the transfer of all or any part of the Escrowed Shares on the books of the Company to
the name of the Company or the Company’s nominee.
10. Termination of Right to Deliver Notices of Claims. The Company’s rights to deliver
Notices of Claim hereunder shall terminate on the fifth (5th) anniversary of the date of this
Agreement, unless there is then pending a Tax Authority Inquiry, in which case The Company’s rights
to deliver Notices of Claim will continue until such Tax Authority Inquiry is concluded.
11. Notices. All notices, requests, consents and other communications hereunder shall
be in writing, shall be sent by domestic or international express courier, with a courtesy copy via
e-mail (which shall not be considered notice), shall be deemed given when delivered, and shall be
addressed as follows:
If to either of the Option Holder Parties:
#0000, Xxxxx X
Xxxxxxx Xxxxxxx Xxxxx
7 Dong San Xxxx Xxxxx Lu
Beijing, 100020
Attn: Xxxx Xxx
Email: xxxxxx@xx-xxxxx.xxx
Xxxxxxx Xxxxxxx Xxxxx
7 Dong San Xxxx Xxxxx Lu
Beijing, 100020
Attn: Xxxx Xxx
Email: xxxxxx@xx-xxxxx.xxx
If to the Company:
eLong, Inc.
Xingke Plaza, Tower B, 3d Floor
Xx. 00 Xxxxxx Xxxxxxxxxxx Xxxx
Xxxxxxx, Xxxxx 100015
Attn: General Counsel
Email: xxxx.xxxxxx@xxxx.xxxxx.xxx
Xingke Plaza, Tower B, 3d Floor
Xx. 00 Xxxxxx Xxxxxxxxxxx Xxxx
Xxxxxxx, Xxxxx 100015
Attn: General Counsel
Email: xxxx.xxxxxx@xxxx.xxxxx.xxx
12. Entire Agreement and Modification. This Agreement and the Indemnification
Agreement constitute the entire agreement between the parties hereto with respect to the matters
contemplated herein and therein, and supersede all prior agreements and understandings with respect
thereto. Any amendment, modification, or waiver of this Agreement shall not be effective unless in
writing. Neither the failure nor any delay on the part of any party to exercise any right, remedy,
power, or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial
exercise of any right, remedy, power or privilege preclude any other or further exercise of the
same or of any other right, remedy, power, or privilege.
13. Governing Law. This Agreement shall be governed by and construed under the Laws
of the State of New York as applied to agreements among New York residents entered into and to be
performed entirely within New York, without regard to principles of conflict of laws thereunder.
Each of the parties hereto irrevocably (i) agrees that any dispute or controversy arising out of,
relating to, or concerning any interpretation, construction, performance or breach of this
Agreement, shall be settled by arbitration to be held in the Hong Kong S.A.R. under the UNCITRAL
Arbitration Rules in accordance with the HKIAC Procedures for the Administration of International
Arbitration in force at the date of this Agreement (the “Arbitration Rules”), (ii) waives,
to the fullest extent it may effectively do so, any objection which it may now or hereafter have to
the laying of venue of any such arbitration, and (iii) submits to the exclusive jurisdiction of the
Hong Kong S.A.R. in any such arbitration. There shall be one (1) arbitrator, selected in accordance
with the Arbitration Rules. The decision of the arbitrator shall be final, conclusive and binding
on the parties to the arbitration. Judgment may be entered on the arbitrator’s decision in any
court having jurisdiction. The parties to the arbitration shall each pay an equal share of the
costs and expenses of such arbitration, and each party shall separately pay for its respective
counsel fees and expenses. In the event of two or more arbitrations having been commenced under
this Agreement, the tribunal in the arbitration first filed (the “Principal Tribunal”) may
in its sole discretion, upon the application of any party to the arbitrations, order that the
proceedings be consolidated before the Principal Tribunal, which will have the jurisdiction to
resolve all disputes forming part of the consolidation order, if (i) there are issues of fact
and/or law common to the arbitrations, (ii) the interests of justice and efficiency would be served
by such a consolidation, and (iii) no prejudice would be caused to any party in any material
respect as a result of such consolidation, whether through undue delay or otherwise. Such
application shall be made as soon as practicable and the party making such application shall give
notice to the other parties to the arbitrations.
14. Counterparts; Facsimile Signatures. This Agreement may be executed in two or more
counterparts (delivery of which may occur via facsimile or as an attachment to an electronic mail
message in “PDF” or similar format), each of which shall be binding as of the date first written
above, and, when delivered, all of which shall constitute one and the same instrument. This
Agreement and any amendments hereto, to the extent signed and delivered by
means of a facsimile machine or as an attachment to an electronic mail message in “PDF” or
similar format, shall be treated in all manner and respects as an original agreement or instrument
and shall be considered to have the same binding legal effect as if it were the original signed
version thereof delivered in person. Each such copy shall be deemed an original, and it shall not
be necessary in making proof of this Agreement to produce or account for more than one such
counterpart.
15. Further Assurances. Each of the parties hereto shall execute such further
instruments and take such other actions as any other party shall reasonably request in order to
effectuate the purposes of this Agreement.
16. Binding Effect; Severability. This Agreement shall be binding upon and inure to
the benefit of the parties hereto and their respective successors, assigns, heirs, executors, and
administrators. If any provision of this Agreement shall be or become illegal or unenforceable in
whole or in part for any reason whatsoever, the remaining provisions shall nevertheless be deemed
valid, binding and subsisting.
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date written above.
| THE COMPANY: | ||||||||
| eLong, Inc. | ||||||||
| By: | /s/ Xxxx Xxxxxx | |||||||
| Name: | Xxxx Xxxxxx | |||||||
| Title: | General Counsel | |||||||
| OPTION HOLDER PARTIES: | ||||||||
| Purple Mountain Holding Ltd | ||||||||
| By: | /s/ Xxxxxx Xxxx | |||||||
| Name: | Xxxxxx Xxxx | |||||||
| Title: | ||||||||
| Yue (Xxxxxx) Xxxx | ||||||||
| /s/ Xxxxxx Xxxx | ||||||||
