INDEMNIFICATION AGREEMENT
Exhibit 10.16
This Indemnification Agreement (this “Agreement”) is entered into as of [•], 2010 by and
between Le Gaga Holdings Limited, Cayman Islands company (the “Company”) and the undersigned, a
director and/or an officer of the Company (“Indemnitee”), as applicable.
RECITALS
The Board of Directors of the Company (the “Board of Directors”) has determined that the
inability to attract and retain highly competent persons to serve the Company is detrimental to the
best interests of the Company and its shareholders and that it is reasonable and necessary for the
Company to provide adequate protection to such persons against risks of claims and actions against
them arising out of their services to the corporation.
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, without limitation, damages, judgments, fines, penalties, settlements
and costs, attorneys’ fees and disbursements and costs of attachment or similar bond,
investigations, and any other expenses paid or incurred in connection with investigating,
defending, being a witness in, participating in (including on appeal), or preparing for any of the
foregoing in, any Proceeding.
Indemnifiable Event means any event or occurrence that takes place either [before or] after
the execution of this Agreement, related to the fact that Indemnitee is or was a director or an
officer of the Company, or 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, including, but not limited to neglect, breach of duty,
error, misstatement, misleading statement or omission.
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, arbitration 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.
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, whether or not such Proceeding proceeds to
judgment or is settled or is otherwise brought to a final disposition, to the fullest extent
permitted by applicable law.
2. Indemnification of Expenses of Successful Party. Notwithstanding any other
provision of this Agreement, to the extent that Indemnitee has been successful on the merits in
defense of any Proceeding or in defense of any claim, issue or matter in such Proceeding, the
Company shall indemnify Indemnitee against all Expenses incurred in connection with such Proceeding
or such claim, issue or matter, whether or not such Proceeding proceeds to judgment or is settled
or is otherwise brought to a final disposition, as the case may be, offset by the amount of cash,
if any, received by the Indemnitee resulting from his/her success therein.
3. Partial Indemnification. If Indemnitee is entitled under any provision of this
Agreement to indemnification by the Company for a portion of Expenses, but not for the total amount
of Expenses, the Company shall indemnify the Indemnitee for the portion of such Expenses to which
Indemnitee is entitled.
4. Exclusions. Notwithstanding anything in this Agreement to the contrary, Indemnitee
shall not be entitled to indemnification under this Agreement:
(a) to the extent that payment is actually made to Indemnitee under a valid, enforceable and
collectible insurance policy;
(b) to the extent that Indemnitee is indemnified and actually paid other than pursuant to this
Agreement;
(c) subject to Section C.2(a), in connection with a judicial action by or in the right of the
Company, in respect of any claim, issue or matter as to which the Indemnitee shall have been
adjudicated by a court of competent jurisdiction, in a decision from which there is no further
right of appeal, to be liable for gross negligence or knowing or willful misconduct in the
performance of his/her duty to the Company unless and only to the extent that any court in which
such action was brought shall determine upon application that, despite the adjudication of
liability but in view of all the circumstances of the case, the Indemnitee is fairly and reasonably
entitled to indemnity for such Expenses as such court shall deem proper;
(d) in connection with any Proceeding initiated by Indemnitee against the Company, any
director or officer of the Company or any other party, and not by way of defense, unless (i) the
Company has joined in or the Board of Directors 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;
(e) brought about by the dishonesty or fraud of the Indemnitee seeking payment hereunder;
provided, however, that the Company shall indemnify Indemnitee under this Agreement as to any
claims upon which suit may be brought against him by reason of any alleged dishonesty on his/her
part, unless a judgment or other final adjudication thereof adverse to the Indemnitee establishes
that he/she 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;
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(f) for any judgment, fine or penalty which the Company is prohibited by applicable law from
paying as indemnity;
(g) 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, or
(h) arising out of Indemnitee’s personal income tax payable on any salaries, bonuses,
director’s fees, including fees for attending meetings, or gain on disposition of shares, options
or restricted shares of the Company.
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, then the
Company shall contribute to the amount of Expenses paid in settlement actually and reasonably
incurred and paid or payable by Indemnitee in such proportion as is appropriate to reflect (i) the
relative benefits received by the Company on the one hand and by the Indemnitee on the other hand
from the transaction or events from which such Proceeding arose, and (ii) the relative fault of the
Company on the one hand and of the Indemnitee on the other hand in connection with the events which
resulted in such Expenses, as well as any other relevant equitable considerations. The relative
fault of the Company on the one hand and of the Indemnitee on the other hand shall be determined by
reference to, among other things, the parties’ relative intent, knowledge, access to information
and opportunity to correct or prevent the circumstances resulting in such Expenses, judgments,
fines or settlement amounts. The Company agrees that it would not be just and equitable if
contribution pursuant to this Section 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/her 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, provided that the delay of Indemnitee to give notice hereunder shall
not prejudice any of Indemnitee’s rights hereunder, unless such delay results in the Company’s
forfeiture of substantive rights or defenses. Notice to the Company shall be given in accordance
with Section F.7 below. If, at the time of receipt of such notice, the Company has directors’ and
officers’ liability insurance policies in effect, the Company shall give prompt notice to its
insurers of the Proceeding relating to the notice. The Company shall thereafter take all necessary
and desirable action to cause such insurers to pay, on behalf of Indemnitee, all Expenses payable
as a result of such Proceeding. In addition, Indemnitee shall give the Company such cooperation as
the Company may reasonably request and the Company shall give the Indemnitee such cooperation as
the Indemnitee may reasonably request, including providing any documentation or information which
is not privileged or otherwise protected from disclosure and which is reasonably available to
Indemnitee or the Company, as the case may be.
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 and, in
any event, within 30 days after Indemnitee makes a written request to the Company for reimbursement
unless the Company refers the indemnification request to the Reviewing Party in compliance with
Section C.2(c) below.
(c) Determination by the Reviewing Party. If the Company reasonably believes that it is not
obligated under this Agreement to indemnify the Indemnitee, the Company shall, within 10 days after
the Indemnitee’s written request for an advancement or reimbursement of Expenses, notify the
Indemnitee that the request for advancement of Expenses or reimbursement of Expenses will be
submitted to the Reviewing Party (as hereinafter defined). The Reviewing Party shall make a
determination on the request within 30 days after the Indemnitee’s written request for an
advancement or reimbursement of Expenses. Notwithstanding anything foregoing to the contrary, in
the event the Reviewing Party informs the Company that Indemnitee is not entitled to
indemnification in connection with a Proceeding under this Agreement or applicable law, the Company
shall be entitled to be reimbursed by Indemnitee for all the Expenses previously advanced or
otherwise paid to Indemnitee in connection with such Proceeding; provided, however,
that Indemnitee may bring a suit to enforce his/her 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 or 50 days if the Company submits a request for advancement or
reimbursement to the Reviewing Party under Section C.2(c), Indemnitee shall have the right to
enforce its indemnification rights under this Agreement by commencing litigation in any court of
competent jurisdiction seeking a determination by the court or challenging any determination by the
Reviewing Party or with respect to 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
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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. Burden of Proof and Presumptions. Upon making a request for indemnification,
Indemnitee shall be presumed to be entitled to indemnification under this Agreement and the Company
shall have the burden of proof to overcome that presumption in reaching any contrary determination.
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 that is referred by the Company pursuant to Section C.2(c) above 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, by
Independent Counsel in a written opinion to the Board of Directors, a copy of which shall be
delivered to Indemnitee. If the Reviewing Party determines 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. “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
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shall request that such selection be made by the Board of Directors, in which event the proceeding
sentence shall apply), 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, within 20 days after submission by
Indemnitee of a written request for indemnification, no Independent Counsel shall have been
selected and not objected to, either the Company or Indemnitee may petition the a court of
competent jurisdiction for resolution of any objection which shall have been made by the Company or
Indemnitee to the other’s selection of Independent Counsel and/or for the appointment as
Independent Counsel of a person selected by the court or by such other person as the court shall
designate, and the person with respect to whom all objections are so resolved or the person so
appointed shall act as 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/she 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/her 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
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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 the Indemnitee may
be deemed to have met the applicable standard of conduct set forth in this Agreement.
(d) “Independent Counsel” means a law firm, or a member of a law firm, that is experienced in
matters of corporation law and neither presently is, nor in the past five (5) years has been,
retained to represent (i) the Company or Indemnitee in any matter material to either such party
(other than with respect to matters concerning the Indemnitee under this Agreement, or of other
indemnitees under similar indemnification agreements), or (ii) any other party to the Proceeding
giving rise to a claim for indemnification hereunder. Notwithstanding the foregoing, the term
“Independent Counsel” shall not include any person who, under the applicable standards of
professional conduct then prevailing, would have a conflict of interest in representing either the
Company or Indemnitee in an action to determine Indemnitee’s rights under this Agreement. The
Company agrees to pay the reasonable fees of the Independent Counsel referred to above and to fully
indemnify such counsel against any and all Expenses, claims, liabilities and damages arising out of
or relating to this Agreement or its engagement pursuant hereto.
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, or (ii) the coverage provided by
such insurance is limited by exclusions so as to provide an insufficient benefit.
E. NON-EXCLUSIVITY; [ U.S. 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 Company’s memorandum
and articles of association, as may be amended from time to time, applicable law or any written
agreement between Indemnitee and the Company (including its subsidiaries and affiliates). The
indemnification provided under this Agreement shall
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continue to be available to Indemnitee for any action taken or not taken while serving in an
indemnified capacity even though he/she may have ceased to serve in any such capacity at the time
of any Proceeding. To the extent that a change in the laws of the Cayman Islands permits greater
indemnification by agreement than would be afforded under the Articles of Association or this
Agreement, it is the intent of the parties hereto that Indemnitee shall enjoy by this Agreement the
greater benefits so afforded by such change.
2. U.S. 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 officers under this
Agreement or otherwise. Such instances include, but are not limited to, the U.S. Securities and
Exchange Commission’s prohibition on indemnification for liabilities arising under certain U.S.
federal securities laws. Indemnitee understands and acknowledges that the Company has undertaken
or may be required in the future to undertake with the SEC to submit the question of
indemnification to a court in certain circumstances for a determination of the Company’s right
under public policy to indemnify Indemnitee.
3. Duration of Agreement. All agreements and obligations of the Company contained
herein shall continue during the period Indemnitee is an officer and/or a director of the Company
(or is or was serving at the request of the Company as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise) and shall continue
thereafter so long as Indemnitee shall be subject to any Proceeding by reason of his/her former or
current capacity at the Company or any other enterprise at the Company’s request, whether or not
he/she 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
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against the parties hereto and the Company’s successors (including any direct or indirect successor
by purchase, merger, consolidation, or otherwise to all or substantially all of the business and/or
assets of the Company) and assigns, as well as Indemnitee’s spouses, heirs, and personal and legal
representatives.
4. Severability and Construction. Nothing in this Agreement is intended to require or
shall be construed as requiring the Company to do or fail to do any act in violation of applicable
law. The Company’s inability, pursuant to a court order, to perform its obligations under this
Agreement shall not constitute a breach of this Agreement. In addition, if any portion of this
Agreement shall be held by a court of competent jurisdiction to be invalid, void, or otherwise
unenforceable, the remaining provisions shall remain enforceable to the fullest extent permitted by
applicable law. The parties hereto acknowledge that they each have opportunities to have their
respective counsels review this Agreement. Accordingly, this Agreement shall be deemed to be the
product of both of the parties hereto, and no ambiguity shall be construed in favor of or against
either of the parties hereto.
5. Counterparts. This Agreement may be executed in two counterparts, both of which
taken together shall constitute one instrument.
6. Governing Law. This agreement and all acts and transactions pursuant hereto and
the rights and obligations of the parties hereto shall be governed, construed and interpreted in
accordance with the laws of the Hong Kong Special Administrative Region, 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 via postage prepaid, certified or registered mail,
return receipt requested, and addressed to the Company at:
Le Gaga Holdings Limited
Unit 1112, The Metropolis Tower
00 Xxxxxxxxxx Xxxxx, Xxxx Xxx
Xxxxxxx, Xxxx Xxxx
Attention: Chief Financial Officer
Unit 1112, The Metropolis Tower
00 Xxxxxxxxxx Xxxxx, Xxxx Xxx
Xxxxxxx, Xxxx Xxxx
Attention: Chief Financial Officer
and to Indemnitee at his/her address last known to the Company.
8. Entire Agreement. This Agreement constitutes the entire agreement and supersedes
all prior agreements and understandings, both written and oral, between the parties with respect to
the subject matter hereof.
(Signature page follows)
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IN WITNESS WHEREOF, the parties hereto execute this Agreement as of the date first written above.
| LE GAGA HOLDINGS LIMITED |
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| By: | ||||
| Name: | ||||
| Title: | ||||
Signature Page to Indemnification Agreement
