EXHIBIT 10.2
FORM OF INDEMNIFICATION AGREEMENT
This Indemnification Agreement (the "Agreement") is entered into as of
__________, 2007 by and between E-House (China) Holdings Limited, a Cayman
Islands company (the "Company") and the undersigned, a director and/or officer
of the Company ("Indemnitee").
RECITALS
1. The Company recognizes that highly competent persons are becoming more
reluctant to serve corporations as directors or in other capacities unless they
are provided with adequate protection through insurance or adequate
indemnification against risks of claims and actions against them arising out of
their services to the corporation.
2. The Board of Directors of the Company (the "Board") has determined that
the inability to attract and retain highly competent persons to serve the
Company is detrimental to the best interests of the Company and its shareholders
and that it is reasonable and necessary for the Company to provide adequate
protection to such persons against risks of claims and actions against them
arising out of their services to the corporation.
3. The Company is willing to indemnify Indemnitee to the fullest extent
permitted by applicable law, and Indemnitee is willing to serve and continue to
serve the Company on the condition that he be so indemnified.
AGREEMENT
In consideration of the premises and the covenants contained herein, the
Company and Indemnitee do hereby covenant and agree as follows:
A. DEFINITIONS
The following terms shall have the meanings defined below:
Expenses shall include damages, judgments, fines, penalties, settlements
and costs, attorneys' fees and disbursements and costs of attachment or similar
bond, investigations, and any expenses paid or incurred in connection with
investigating, defending, being a witness in, participating in (including on
appeal), or preparing for any of the foregoing in, any Proceeding.
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 was a director or
officer of an entity that was a predecessor of the Company or another entity at
the request of such predecessor entity, or related to anything done or not done
by Indemnitee in any such capacity.
Participant means a person who is a party to, or witness or participant
(including on appeal) in, a Proceeding.
Proceeding means any threatened, pending, or completed action, suit or
proceeding, or any inquiry, hearing or investigation, whether civil, criminal,
administrative, investigative or other, in which Indemnitee may be or may have
been involved as a party or otherwise by reason of an Indemnifiable Event,
including, without limitation, any threatened, pending, or completed action,
suit or proceeding by or in the right of the Company.
B. AGREEMENT TO INDEMNIFY
1. General Agreement. In the event Indemnitee was, is, or becomes a
Participant in, or is threatened to be made a Participant in, a Proceeding, the
Company shall indemnify the Indemnitee from and against any and all Expenses
which Indemnitee incurs or becomes obligated to incur in connection with such
Proceeding, to the fullest extent permitted by applicable law.
2. Indemnification of Expenses of Successful Party. Notwithstanding any
other provision of this Agreement, to the extent that Indemnitee has been
successful on the merits in defense of any Proceeding or in defense of any
claim, issue or matter in such Proceeding, Indemnitee shall be indemnified
against all Expenses incurred in connection with such Proceeding or such claim,
issue or matter, as the case may be.
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) 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 final judgment in a court of law to be liable for
gross negligence or willful misconduct in the performance of his duty to the
Company unless and only to the extent that any court in which such action was
brought shall determine upon application that, despite the adjudication of
liability but in view of all the circumstances of the case, the Indemnitee is
fairly and reasonably entitled to indemnity for such Expenses as such court
shall deem proper;
(c) in connection with any Proceeding initiated by Indemnitee against the
Company or any director or officer of the Company, and not by way of defense,
unless (i) the Company has joined in or the Board 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;
(d) for a disgorgement of profits made from the purchase and sale by the
Indemnitee of securities pursuant to Section 16(b) of the Exchange Act or
similar provisions of any applicable U.S. state statutory law or common law;
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(e) brought about by the dishonesty or fraud of the Indemnitee seeking
payment hereunder; provided, however, that the Indemnitee shall be protected
under this Agreement as to any claims upon which suit may be brought against him
by reason of any alleged dishonesty on his part, unless a judgment or other
final adjudication thereof adverse to the Indemnitee establishes that he
committed (i) acts of active and deliberate dishonesty, (ii) with actual
dishonest purpose and intent, and (iii) which acts were material to the cause of
action so adjudicated;
(f) for any judgment, fine or penalty which the Company is prohibited by
applicable law from paying as indemnity; or
(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.
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 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 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 6 were determined by pro rata allocation or any other method of
allocation which does not take account of the foregoing equitable
considerations.
C. INDEMNIFICATION PROCESS
1. Notice and Cooperation By Indemnitee. Indemnitee shall, as a condition
precedent to his right to be indemnified under this Agreement, give the Company
notice in writing as soon as practicable of any claim made against Indemnitee
for which indemnification will or could be sought under this Agreement, 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. In addition, Indemnitee shall give
the Company such information and cooperation as the Company may reasonably
request.
2. Indemnification Payment.
(a) Advancement of Expenses. Indemnitee may submit a written request to
the Company requesting that the Company advance to Indemnitee all Expenses that
may be reasonably incurred by Indemnitee in connection with a Proceeding as such
Expenses are
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incurred. The Company shall, within ten business days of receiving such a
written request by Indemnitee, advance all requested Expenses to Indemnitee.
(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 immediately after Indemnitee makes a written request
to the Company for reimbursement.
(c) Determination by the Reviewing Party. Notwithstanding anything
foregoing to the contrary, in the event the Reviewing Party informs the Company
that Indemnitee is not entitled to indemnification in connection with a
Proceeding under this Agreement or applicable law, the Company shall be entitled
to be reimbursed by Indemnitee for all the Expenses previously advanced or
otherwise paid to Indemnitee in connection with such Proceeding; provided,
however, that Indemnitee may bring a suit to enforce his indemnification right
in accordance with Section C.3 below.
3. Suit to Enforce Rights. Regardless of any action by the Reviewing
Party, if Indemnitee has not received full indemnification within 30 days after
making a written demand in accordance with Section C.2 above, Indemnitee shall
have the right to enforce 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 any aspect of the 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 any Expenses for any Proceeding against Indemnitee, the
Company shall be entitled to assume the defense of such Proceeding, with counsel
approved by Indemnitee, upon delivery to Indemnitee of written notice of its
election to do so. After delivery of such notice, approval of such counsel by
Indemnitee and the retention of such counsel by the Company, the Company will
not be liable to Indemnitee under this Agreement for any fees of counsel
subsequently incurred by Indemnitee with respect to the same Proceeding, unless
(i) the employment of counsel by Indemnitee has been previously authorized by
the Company, (ii) Indemnitee shall have reasonably concluded, based on written
advice of counsel, that there may be a conflict of interest of such counsel
retained by the Company between the Company and Indemnitee in the conduct of any
such defense, or (iii) the Company ceases or terminates the employment of such
counsel with respect to the defense of such Proceeding, in any of which events
the fees and expenses of Indemnitee's counsel shall be at the expense of the
Company. At all times, Indemnitee shall have the right to employ counsel in any
Proceeding at Indemnitee's expense.
5. Defense to Indemnification, Burden of Proof and Presumptions. It shall
be a defense to any action brought by Indemnitee against the Company to enforce
this Agreement that it is not permissible under this Agreement or applicable law
for the Company to indemnify the Indemnitee for the amount claimed. In
connection with any such action or any determination by the Reviewing Party or
otherwise as to whether Indemnitee is entitled to be indemnified under this
Agreement, the burden of proving such a defense or determination shall be on the
Company. Neither the failure of the Reviewing Party or the Company to have made
a determination prior to the commencement of such action by Indemnitee that
indemnification is proper under the circumstances because Indemnitee has met the
standard
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of conduct set forth in applicable law, nor an actual determination by the
Reviewing Party or the Company that Indemnitee had not met such applicable
standard of conduct shall be a defense to the action or create a presumption
that Indemnitee has not met the applicable standard of conduct.
6. No Settlement Without Consent. The Company shall not settle any
Proceeding in any manner that would impose any damage, loss, penalty or
limitation on Indemnitee without Indemnitee's prior written consent. Neither the
Company nor Indemnitee shall unreasonably withhold its consent to any proposed
settlement, provided that Indemnitee may withhold his consent if any proposed
settlement imposes any damage, loss, penalty or limitation on Indemnitee.
7. Company Participation. 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 of such action, unless such lack of opportunity does
not result in the Company's forfeiture of substantive rights or defenses.
8. Reviewing Party.
(a) For purposes of this Agreement, the Reviewing Party with respect
to each indemnification request of Indemnitee shall by (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; and, if it is determined that Indemnitee is entitled to
indemnification, payment to Indemnitee shall be made within ten 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 the Agreement of the Indemnitee's
entitlement to indemnification. Any costs or expenses (including 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 8(b). The Independent Counsel shall be selected by
Indemnitee (unless Indemnitee shall request that such selection be made by the
Board of Directors, in which event the preceding 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,
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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 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 8(b), regardless of the manner in
which such Independent Counsel was selected or appointed.
(c) In making a determination with respect to entitlement to
indemnification hereunder, the Reviewing Party shall presume that Indemnitee is
entitled to indemnification under this Agreement if Indemnitee has submitted a
request for indemnification in accordance with this Agreement, and the Company
shall have the burden of proof to overcome that presumption in connection with
the making by any person, persons or entity of any determination contrary to
that presumption. The termination of any Proceeding or of any claim, issue or
matter therein, by judgment, order, settlement (with or without court approval),
conviction, or upon a plea of nolo contendere or its equivalent, shall not
(except as otherwise expressly provided in this Agreement) of itself adversely
affect the right of Indemnitee to indemnification or create a presumption that
Indemnitee did not act in good faith and in a manner which he reasonably
believed to be in or not opposed to the best interests of the Company or, with
respect to any criminal Proceeding, that Indemnitee had reasonable cause to
believe that his conduct was unlawful. For purposes of any determination of good
faith, Indemnitee shall be deemed to have acted in good faith if Indemnitee's
action is based on the records or books of account of the Company and any other
corporation, partnership, joint venture or other entity of which Indemnitee is
or was serving at the written request of the Company as a director, officer,
employee, agent or fiduciary, including financial statements, or on information
supplied to Indemnitee by the officers and directors of the Company or such
other corporation, partnership, joint venture or other entity in the course of
their duties, or on the advice of legal counsel for the Company or such other
corporation, partnership, joint venture or other entity or on information or
records given or reports made to the Company or such other corporation,
partnership, joint venture or other entity by an independent certified public
accountant or by an appraiser or other expert selected with reasonable care by
the Company or such other corporation, partnership, joint venture or other
entity. In addition, the knowledge and/or actions, or failure to act, of any
director, officer, agent or employee of the Company or such other corporation,
partnership, joint venture or other entity shall not be imputed to Indemnitee
for purposes of determining the right to indemnification under this Agreement.
The provisions of this Section 8(c) shall not be deemed to be exclusive or to
limit in any way the other circumstances in which the
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Indemnitee may be deemed to have met the applicable standard of conduct set
forth in this Agreement.
(d) "Independent Counsel" means a law firm, or a member of a law
firm, that is experienced in matters of corporation law and neither presently
is, nor in the past five 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; 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 current memorandum and articles of association, applicable law or
any written agreement between Indemnitee and the Company (including its
subsidiaries and affiliates). The indemnification provided under this Agreement
shall continue to be available to Indemnitee for any action taken or not taken
while serving in an indemnified capacity even though he may have ceased to serve
in any such capacity at the time of any Proceeding.
2. Federal Preemption. Notwithstanding the foregoing, both the Company and
Indemnitee acknowledge that in certain instances, U.S. federal law or public
policy may
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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 former or current capacity at the Company, whether or not he is acting or
serving in any such capacity at the time any expense is incurred for which
indemnification can be provided under this Agreement. This Agreement shall
continue in effect regardless of whether Indemnitee continues to serve as an
officer and/or a director of the Company or any other enterprise at the
Company's request.
F. MISCELLANEOUS
1. Amendment of this Agreement. No supplement, modification, or amendment
of this Agreement shall be binding unless executed in writing by the parties
hereto. No waiver of any of the provisions of this Agreement shall operate as a
waiver of any other provisions (whether or not similar), nor shall such waiver
constitute a continuing waiver. Except as specifically provided in this
Agreement, no failure to exercise or any delay in exercising any right or remedy
shall constitute a waiver.
2. Subrogation. In the event of payment to Indemnitee by the Company under
this Agreement, the Company shall be subrogated to the extent of such payment to
all of the rights of recovery of Indemnitee, who shall execute all papers
required and shall do everything that may be necessary to secure such rights,
including the execution of such documents necessary to enable the Company to
bring suit to enforce such rights.
3. Assignment; Binding Effect. Neither this Agreement nor any of the
rights or obligations hereunder may be assigned by either party hereto without
the prior written consent of the other party; except that the Company may,
without such consent, assign all such rights and obligations to a successor in
interest to the Company which assumes all obligations of the Company under this
Agreement. Notwithstanding the foregoing, this Agreement shall be binding upon
and inure to the benefit of and be enforceable by and against the parties hereto
and the Company's successors (including any direct or indirect successor by
purchase, merger, consolidation, or otherwise to all or substantially all of the
business and/or assets of the Company) and assigns, as well as Indemnitee's
spouses, heirs, and personal and legal representatives. As a condition to any
purchase, merger, consolidation or other business combination transaction
involving the Company, the Company's successor shall expressly assume the
obligations under this Agreement.
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
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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 State of New York,
U.S.A., without giving effect to conflicts of law provisions thereof.
7. Notices. All notices, demands, and other communications required or
permitted under this Agreement shall be made in writing and shall be deemed to
have been duly given if delivered by hand, against receipt, or mailed, postage
prepaid, certified or registered mail, return receipt requested, and addressed
to the Company at:
E-House (China) Holdings Limited
17/F, Merchandise Harvest Building (East)
No. 333 North Chengdu Road
Shanghai, PRC 200041, People's Republic of China
Attention: Chief Financial Officer
and to Indemnitee at its last address notified 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.
COMPANY
E-House (China) Holdings Limited
_____________________________
Name:
Title:
INDEMNITEE
_____________________________
Name: