CHINA AGRITECH, INC. NON-EXECUTIVE DIRECTOR’S CONTRACT
Exhibit
99.1
CHINA
AGRITECH, INC.
NON-EXECUTIVE
DIRECTOR’S CONTRACT
THIS AGREEMENT (this “Agreement”) is made
as of the _____ day of December, 2009 and is by and between China Agritech,
Inc., a Delaware corporation (hereinafter referred to as the “Company”) and Xx.
Xxxx Xxxx (hereinafter referred to as the “Director”).
BACKGROUND
The Board
of Directors of the Company desires to appoint the Director to serve as a member
of the Board of Directors and to have the Director perform the duties of a
Non-Executive Director and the Director desires to be so appointed for such
position and to perform the duties required of such position in accordance with
the terms and conditions of this Agreement.
AGREEMENT
In
consideration of the premises and the mutual covenants and agreements contained
herein, the adequacy and sufficiency of which are hereby acknowledged, the
Company and the Director hereby agree as follows:
1. DUTIES. The Company
requires that the Director will be available to perform the duties of a
Non-Executive Director customarily related to this function, customarily
performed by Non-Executive Directors of similarly situated companies and as may
be determined and assigned by the Board of Directors of the Company and/or
required by the Company’s constituent instruments, including its certificate or
articles of incorporation, bylaws and its corporate governance and board
committee charters, each as amended or modified from time to time, and by
applicable law, including the Delaware General Corporation Law. The
Director agrees to devote as much time as necessary to perform completely the
duties as the Director of the Company.
2. TERM. The term of
this Agreement shall commence as of the date of the Director’s appointment by
the Board of Directors of the Company (in the event the Director is appointed to
fill a vacancy) or the date of the Director’s election by the stockholders of
the Company and shall continue until the earlier of one year or the Director’s
removal or resignation.
3. COMPENSATION. The Director agrees to
serve as a director of the Company without remuneration; provided, however, that the
Company will reimburse the Director, in the same manner and to the same extent
as other non-executive or independent directors of the Company, for expenses
incurred by the Director in connection with the Director’s performance of her
duties as a Director.
4. CONFIDENTIALITY. The
Company and the Director each acknowledge that, in order for the intents and
purposes of this Agreement to be accomplished, the Director shall necessarily be
obtaining access to certain confidential information concerning the Company and
its affairs, including, but not limited to business methods, information
systems, financial data and strategic plans which are unique assets of the
Company (“Confidential
Information”). “Confidential Information” will not, however,
include information which (i) at the time of disclosure or thereafter is
generally available to, and known by, the public (other than as a result of a
disclosure directly or indirectly by the Director in violation of this
Agreement), (ii) at the time of disclosure was available on a nonconfidential
basis from a source other than the Company, provided that such source is not and
was not bound by a confidentiality, nondisclosure or other similar agreement
with the Company or (iii) was known by the Director prior to receiving the
information from the Company. The Director covenants not to, either
directly or indirectly, in any manner, utilize or disclose to any person, firm,
corporation, association or other entity any Confidential Information; provided, however, that the
Director may disclose the Confidential Information to the extent the Director
becomes legally required to do so, provided that the Director will notify the
Company promptly in writing of such requirement so that the Company may seek a
protective order or other appropriate remedy or, in its sole discretion, waive
compliance with the terms of this Agreement.
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6. NON-COMPETE. During
the term of this Agreement and for a period of twelve (12) months following the
Director’s removal or resignation from the Board of Directors of the Company or
any of its subsidiaries or affiliates (the “Restricted Period”),
the Director shall not, directly (i) in any manner whatsoever engage in the
People’s Republic of China in any capacity with any business competitive with
the Company’s current lines of business or any business then engaged in by the
Company, any of its subsidiaries or any of its affiliates (the “Company’s Business”)
for the Director’s own benefit or for the benefit of any person or entity other
than the Company or any subsidiary or affiliate; or (ii) have any interest as
owner, sole proprietor, stockholder, partner, lender, director, officer,
manager, employee, consultant, agent or otherwise in any business in the
People’s Republic of China competitive with the Company’s Business; provided, however, that the
Director may hold, directly or indirectly, solely as an investment, not more
than one percent (1%) of the outstanding securities of any person or entity
which is listed on any national securities exchange or regularly traded in the
over-the-counter market notwithstanding the fact that such person or entity is
engaged in a business competitive with the Company’s Business. In
addition, during the Restricted Period, the Director shall not develop any
property for use in the Company’s Business on behalf of any person or entity
other than the Company, its subsidiaries and affiliates. The Company
acknowledges that the Director is a Vice President of Carlyle Asia Growth
Capital, which regularly invests in businesses in Asia and may invest in
businesses that are competitive with the Company’s Business. As such,
notwithstanding anything in this Agreement to the contrary, nothing in this
Agreement shall prohibit The Carlyle Group or its affiliates, including Carlyle
Asia Growth Partners IV, L.P. and CAGP IV Co-Investment, L.P., from having any
interest as owner, stockholder, partner, lender, director, consultant or
otherwise in any business competitive with the Company’s Business.
7. TERMINATION. With
or without cause, the Company and the Director may each terminate this Agreement
at any time upon ten (10) days written notice, and the Company shall be
obligated to pay to the Director the compensation and expenses due up to the
date of the termination. Nothing contained herein or omitted herefrom
shall prevent the stockholder(s) of the Company from removing the Director with
immediate effect at any time for any reason.
8. INDEMNIFICATION. The
Company shall indemnify, defend and hold harmless the Director, to the full
extent allowed by the law of the State of Delaware, and as provided by, or
granted pursuant to, any charter provision, bylaw provision, agreement
(including, without limitation, the Indemnification Agreement executed
herewith), vote of stockholders or disinterested directors or otherwise, both as
to action in the Director’s official capacity and as to action in another
capacity while holding such office. The Company and the Director are
executing the Indemnification Agreement in the form attached hereto as Exhibit
A.
9. EFFECT OF
WAIVER. The waiver by either party of the breach of any
provision of this Agreement shall not operate as or be construed as a waiver of
any subsequent breach thereof.
10. NOTICE. Any and all
notices referred to herein shall be sufficient if furnished in writing at the
addresses specified on the signature page hereto or, if to the Company, to the
Company’s address as specified in filings made by the Company with the U.S.
Securities and Exchange Commission and if by fax to 00- 00-0000
1225.
11. GOVERNING LAW. This
Agreement shall be interpreted in accordance with, and the rights of the parties
hereto shall be determined by, the laws of the State of Delaware without
reference to that state’s conflicts of laws principles.
12. ASSIGNMENT. The
rights and benefits of the Company under this Agreement shall be transferable,
and all the covenants and agreements hereunder shall inure to the benefit of,
and be enforceable by or against, its successors and assigns. The
duties and obligations of the Director under this Agreement are personal and
therefore the Director may not assign any right or duty under this Agreement
without the prior written consent of the Company.
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13. MISCELLANEOUS. If
any provision of this Agreement shall be declared invalid or illegal, for any
reason whatsoever, then, notwithstanding such invalidity or illegality, the
remaining terms and provisions of this Agreement shall remain in full force and
effect in the same manner as if the invalid or illegal provision had not been
contained herein.
14. ARTICLE
HEADINGS. The article headings contained in this Agreement are
for reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
15. COUNTERPARTS. This Agreement may be
executed in any number of counterparts, all of which taken together shall
constitute one instrument. Facsimile execution and delivery of this
Agreement is legal, valid and binding for all purposes.
16. ENTIRE
AGREEMENT. Except as provided elsewhere herein, this Agreement
sets forth the entire agreement of the parties with respect to its subject
matter and supersedes all prior agreements, promises, covenants, arrangements,
communications, representations or warranties, whether oral or written, by any
officer, employee or representative of any party to this Agreement with respect
to such subject matter.
[Signature Page
Follows]
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IN
WITNESS WHEREOF, the parties hereto have cause this Non-Executive Director’s
Contract to be duly executed and signed as of the day and year first above
written.
CHINA
AGRITECH, INC.
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BY:
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Name:
Xx Xxxxx
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Title:
CEO and President
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NON-EXECUTIVE
DIRECTOR
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Xxxx
Xxxx
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Address:
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Carlyle
Asia Growth Capital
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The
Carlyle Group
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00xx
Xxxxx, Xxxxx 00
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0000
Xxxxxxx Xxxx Xxxx
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Xxxxxxxx
200040
China
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EXHIBIT
A
This Indemnification Agreement (this
“Agreement”),
dated as of the ___ day of _______, 2009 is made by and between China
Agritech Inc., a Delaware corporation (the “Company”), Xxxx Xxxx,
a non-executive director of the Company
(the “Indemnitee”) and
Carlyle Asia Growth Partners IV, L.P., a Cayman Islands exempted limited
partnership, and CAGP IV Co-Investment, L.P., a Cayman Islands exempted limited
partnership (collectively, the “Fund”).
RECITALS
A. The
Company and the Indemnitee recognize that the present state of the law is too
uncertain to provide the Company’s officers and directors with adequate and
reliable advance knowledge or guidance with respect to the legal risks and
potential liabilities to which they may become personally exposed as a result of
performing their duties for the Company;
B. The
Company and the Indemnitee are aware of the substantial growth in the number of
lawsuits filed against corporate officers and directors in connection with their
activities in such capacities and by reason of their status as
such;
C. The
Company and the Indemnitee recognize that the cost of defending against such
lawsuits, whether or not meritorious, is typically beyond the financial
resources of most officers and directors of the Company;
D. The
Company and the Indemnitee recognize that the legal risks and potential
liabilities, and the threat thereof, associated with proceedings filed against
the officers and directors of the Company bear no reasonable relationship to the
amount of compensation received by the Company’s officers and
directors;
E. The
Company, after reasonable investigation prior to the date hereof, has determined
that the liability insurance coverage available to the Company as of the date
hereof is inadequate, unreasonably expensive or both. The Company
believes, therefore, that the interest of the Company and its current and future
stockholders would be best served by a combination of (i) such insurance as the
Company may obtain pursuant to the Company’s obligations hereunder and (ii) a
contract with its officers and directors, including the Indemnitee, to indemnify
them to the fullest extent permitted by law (as in effect on the date hereof,
or, to the extent any amendment may expand such permitted indemnification, as
hereafter in effect) against personal liability for actions taken in the
performance of their duties to the Company;
F. Section
145 of the Delaware General Corporation Law empowers Delaware corporations to
indemnify their officers and directors and further states that the
indemnification provided by Section 145 shall not be deemed exclusive of any
other rights to which those seeking indemnification may be entitled under the
articles of incorporation or any bylaw, agreement, vote of stockholders or
disinterested directors or otherwise, both as to action in an official capacity
and as to action in another capacity while holding such office; thus, Section
145 does not by itself limit the extent to which the Company may indemnify
persons serving as its officers and directors;
G. The
Company’s Certificate of Incorporation and Bylaws authorize the indemnification
of the officers and directors of the Company in excess of that expressly
permitted by Section 145;
H. The
Board of Directors of the Company has concluded that, to retain and attract
talented and experienced individuals to serve as officers and directors of the
Company and to encourage such individuals to take the business risks necessary
for the success of the Company, it is necessary for the Company to contractually
indemnify its officers and directors, and to assume for itself liability for
expenses and damages in connection with claims against such officers and
directors in connection with their service to the Company, and has further
concluded that the failure to provide such contractual indemnification could
result in great harm to the Company and its stockholders;
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I. The
Company desires and has requested the Indemnitee to serve or continue to serve
as a director or officer of the Company, free from undue concern for the risks
and potential liabilities associated with such services to the Company;
and
J. The
Indemnitee is willing to serve, or continue to serve, the Company, provided, and
on the expressed condition, that the Indemnitee and Fund are furnished with the
indemnification provided for herein.
AGREEMENT
NOW, THEREFORE, the Company and
Indemnitee agree as follows:
1. DEFINITIONS.
(a) “Expenses” means, for the
purposes of this Agreement, any and all expenses (including reasonable
attorneys’ fees and all other costs, expenses and obligations), losses, claims,
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) actually incurred by the Indemnitee in connection with
investigating, defending or participating in (including on appeal) a
Proceeding.
(b) “Proceeding” means, for the
purposes of this Agreement, any threatened, pending or
completed action
or proceeding, whether civil, criminal,
administrative or investigative (including an action brought by or in the right
of the Company) in which Indemnitee may be or may have been involved as a party
or otherwise, by reason of the fact that Indemnitee is or was a director or
officer of the Company, by reason of any action taken by Indemnitee or of any
inaction on his or her part while acting as such director or officer or by
reason of the fact that he or she is or was serving at the request of the
Company as a director, officer, employee or agent of another foreign or domestic
corporation, partnership, joint venture, trust or other enterprise, or was a
director or officer of the foreign or domestic corporation which was a
predecessor corporation to the Company or of another enterprise at the request
of such predecessor corporation, whether or not he or she is serving in such
capacity at the time any liability or expense is incurred for which
indemnification or reimbursement can be provided under this
Agreement.
2. AGREEMENT
TO SERVE.
Indemnitee agrees to serve or continue
to serve as a director or officer of the Company to the best of his or her
abilities at the will of the Company or under separate contract, if such
contract exists, for so long as Indemnitee is duly elected or appointed and
qualified or until such time as the Indemnitee tenders his or her resignation in
writing. Nothing contained in this Agreement is intended to create in
Indemnitee any right to continued employment.
3. INDEMNIFICATION.
(a) Third
Party Proceedings. The Company shall indemnify Indemnitee against
Expenses, judgments, fines, penalties or amounts paid in settlement (if the
settlement is approved in advance by the Company) actually and reasonably
incurred by Indemnitee in connection with a Proceeding (other than a Proceeding
by or in the right of the Company) if Indemnitee acted in good faith and in a
manner Indemnitee reasonably believed to be in the best interests of the
Company, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe Indemnitee’s conduct was unlawful. The
termination of any Proceeding by judgment, order, settlement, conviction, or
upon a plea of nolo
contendere or its equivalent, shall not, of itself, create a presumption
that Indemnitee did not act in good faith and in a manner which Indemnitee
reasonably believed to be in the best interests of the Company, or, with respect
to any criminal Proceeding, had no reasonable cause to believe that Indemnitee's
conduct was unlawful.
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(b) Proceedings
By Or In The Right Of The Company. To the fullest extent permitted by
law, the Company shall indemnify Indemnitee against Expenses and amounts paid in
settlement, actually and reasonably incurred by Indemnitee in connection with a
Proceeding by or in the right of the Company to procure a judgment in its favor
if Indemnitee acted in good faith and in a manner Indemnitee reasonably believed
to be in the best interests of the Company and its
stockholders. Notwithstanding the foregoing, no indemnification shall
be made in respect of any claim, issue or matter as to which Indemnitee shall
have been adjudged liable to the Company in the performance of Indemnitee’s duty
to the Company and its stockholders unless and only to the extent that the court
in which such action or Proceeding is or was pending shall determine upon
application that, in view of all the circumstances of the case, Indemnitee is
fairly and reasonably entitled to indemnity for Expenses and then only to the
extent that the court shall determine.
(c) Fund. The
Company agrees that, if and whenever the Fund is or was a party or is threatened
to be made a party to or is in any way involved in any Proceeding related to
Indemnitee’s
service with or on behalf of the Company (including, without limitation, any
such Proceeding brought by or in the right of the Company), the Company shall
indemnify the Fund against all Expenses actually incurred by the Fund or on the
Fund’s behalf in connection with such Proceeding (including but not limited to
in connection with the investigation, defense, settlement or appeal of such
Proceeding) except to the extent that any such Expenses arise from a Proceeding
for which the Fund is not entitled to indemnification hereunder pursuant to
Section 4
hereof or under applicable law.
(d) Scope. Notwithstanding
any other provision of this Agreement but subject to Section 14(b), the Company
shall indemnify the Indemnitee to the fullest extent permitted by law,
notwithstanding that such indemnification is not specifically authorized by
other provisions of this Agreement, the Company’s Certificate of Incorporation,
the Company’s Bylaws or by statute.
4. LIMITATIONS
ON INDEMNIFICATION.
Any other provision herein to the
contrary notwithstanding, the Company shall not be obligated pursuant to the
terms of this Agreement:
(a) Excluded
Acts. To indemnify Indemnitee for any violations of law or any acts
or omissions or transactions from which a director may not be relieved of
liability under applicable law;
(b) Excluded
Indemnification Payments. To indemnify or advance Expenses in
violation of any prohibition or limitation on indemnification under the
statutes, regulations or rules promulgated by any state or federal regulatory
agency having jurisdiction over the Company;
(c) Claims
Initiated By Indemnitee. To indemnify or advance Expenses to
Indemnitee with respect to Proceedings or claims initiated or brought
voluntarily by Indemnitee and not by way of defense, except with respect to
Proceedings brought to establish or enforce a right to indemnification under
this Agreement or any other statute or law or otherwise as required under
Section 145 of the Delaware General Corporation Law, but such indemnification or
advancement of Expenses may be provided by the Company in specific cases if the
Board of Directors has approved the initiation or bringing of such
suit;
(d) Lack
Of Good Faith. To indemnify Indemnitee for any Expenses incurred by
the Indemnitee with respect to any Proceeding instituted by Indemnitee to
enforce or interpret this Agreement, if a court of competent
jurisdiction determines that each of the material assertions made by the
Indemnitee in such Proceeding was not made in good faith or was
frivolous;
(e) Insured
Claims. To indemnify Indemnitee for Expenses or liabilities of any
type whatsoever (including, but not limited to, judgments, fines, ERISA excise
taxes or penalties, and amounts paid in settlement) which have been paid
directly to or on behalf of Indemnitee by an insurance carrier under a policy of
directors’ and officers’ liability insurance maintained by the Company or any
other policy of insurance maintained by the Company or Indemnitee;
or
(f) Claims
Under Section 16(b). To indemnify Indemnitee for Expenses and the
payment of profits arising from the purchase and sale by Indemnitee of
securities in violation of Section 16(b) of the Securities Exchange Act of 1934,
as amended, or any similar successor statute.
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5. DETERMINATION
OF RIGHT TO INDEMNIFICATION.
Upon receipt of a written claim
addressed to the Board of Directors for indemnification pursuant to Section 3,
the Company shall determine by any of the methods set forth in Section 145 of
the Delaware General Corporation Law whether Indemnitee has met the applicable
standards of conduct which makes it permissible under applicable law to
indemnify Indemnitee. If a claim under Section 3 is not paid in full
by the Company within ninety (90) days after such written claim has been
received by the Company, the Indemnitee may at any time thereafter bring suit
against the Company to recover the unpaid amount of the claim and, unless such
action is dismissed by the court as frivolous or brought in bad faith, the
Indemnitee shall be entitled to be paid also the expense of prosecuting such
claim. The court in which such action is brought shall determine
whether Indemnitee or the Company shall have the burden of proof concerning
whether Indemnitee has or has not met the applicable standard of
conduct.
6. ADVANCEMENT
AND REPAYMENT OF EXPENSES.
Subject to Section 4 hereof, the
Expenses incurred by Indemnitee in defending and investigating any Proceeding
shall be paid by the Company in advance of the final disposition of such
Proceeding within 30 days after receiving from Indemnitee the copies of invoices
presented to Indemnitee for such Expenses, if Indemnitee shall provide an
undertaking to the Company to repay such amount to the extent it is ultimately
determined that Indemnitee is not entitled to indemnification. In
determining whether or not to make an advance hereunder, the ability of
Indemnitee to repay shall not be a factor. Notwithstanding the
foregoing, in a proceeding brought by the Company directly, in its own right (as
distinguished from an action bought derivatively or by any receiver or trustee),
the Company shall not be required to make the advances called for hereby if the
Board of Directors determines, in its sole discretion, that it does not appear
that Indemnitee has met the standards of conduct which make it permissible under
applicable law to indemnify Indemnitee and the advancement of Expenses would not
be in the best interests of the Company and its stockholders.
7. PARTIAL
INDEMNIFICATION.
If the Indemnitee is entitled under any
provision of this Agreement to indemnification or advancement by the Company of
some or a portion of any Expenses or liabilities of any type whatsoever
(including, but not limited to, judgments, fines, penalties, and amounts paid in
settlement) incurred by him in the investigation, defense, settlement or appeal
of a Proceeding, but is not entitled to indemnification or advancement of the
total amount thereof, the Company shall nevertheless indemnify or pay
advancements to the Indemnitee for the portion of such Expenses or liabilities
to which the Indemnitee is entitled.
8. NOTICE
TO COMPANY BY INDEMNITEE.
Indemnitee shall notify the Company in
writing of any matter with respect to which Indemnitee intends to seek
indemnification hereunder as soon as reasonably practicable following the
receipt by Indemnitee of written notice thereof; provided, however, that any
delay in so notifying the Company shall not constitute a waiver by Indemnitee of
her rights hereunder. The written notification to the Company shall
be addressed to the Board of Directors and shall include a description of the
nature of the Proceeding and the facts underlying the Proceeding and be
accompanied by copies of any documents filed with the court in which the
Proceeding is pending. In addition, Indemnitee shall give the Company
such information and cooperation as it may reasonably require and as shall be
within Indemnitee’s power.
9. MAINTENANCE
OF LIABILITY INSURANCE.
(a) Subject
to Section 4 hereof, the Company hereby agrees that so long as Indemnitee shall
continue to serve as a director or officer of the Company and thereafter so long
as Indemnitee shall be subject to any possible Proceeding, the Company, subject
to Section 9(b), shall use reasonable commercial efforts to obtain and maintain
in full force and effect directors’ and officers’ liability insurance (“D&O Insurance”)
which provides Indemnitee the same rights and benefits as are accorded to the
most favorably insured of the Company’ directors, if Indemnitee is a director;
or of the Company’s officers, if Indemnitee is not a director of the Company but
is an officer.
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(b) Notwithstanding
the foregoing, the Company shall have no obligation to obtain or maintain
D&O Insurance if the Company determines in good faith that such insurance is
not reasonably available, the premium costs for such insurance are
disproportionate to the amount of coverage provided, the coverage provided by
such insurance is limited by exclusions so as to provide an insufficient
benefit, or the Indemnitee is covered by similar insurance maintained by a
subsidiary or parent of the Company.
(c) If,
at the time of the receipt of a notice of a claim pursuant to Section 8 hereof,
the Company has D&O Insurance in effect, the Company shall give prompt
notice of the commencement of such Proceeding to the insurers in accordance with
the procedures set forth in the respective 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
Proceeding in accordance with the terms of such policies.
10. DEFENSE
OF CLAIM.
In the event that the Company shall be
obligated under Section 6 hereof to pay the Expenses of any Proceeding against
Indemnitee, the Company, if appropriate, shall be entitled to assume the defense
of such Proceeding, with counsel approved by Indemnitee, which approval shall
not be unreasonably withheld, upon the 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,
provided that (i) Indemnitee shall have the right to employ counsel in any such
Proceeding at Indemnitee’s expense; and (ii) if (A) the employment of counsel by
Indemnitee has been previously authorized by the Company, or (B) Indemnitee
shall have reasonably concluded that there may be a conflict of interest between
the Company and the Indemnitee in the conduct of such defense or (C) the Company
shall not, in fact, have employed counsel to assume the defense of such
Proceeding, then the fees and expenses of Indemnitee’s counsel shall be at the
expense of the Company.
11. ATTORNEYS'
FEES.
In the event that Indemnitee or the
Company institutes an action to enforce or interpret any terms of this
Agreement, the Company shall reimburse Indemnitee for all of the Indemnitee’s
reasonable fees and expenses in bringing and pursuing such action or defense,
unless as part of such action or defense, a court of competent jurisdiction
determines that the material assertions made by Indemnitee as a basis for such
action or defense were not made in good faith or were frivolous.
12. CONTINUATION
OF OBLIGATIONS.
All agreements and obligations of the
Company contained herein shall continue during the period the Indemnitee is a
director or officer of the Company, or is or was serving at the request of the
Company as a director, officer, fiduciary, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise, and shall
continue thereafter so long as the Indemnitee shall be subject to any possible
proceeding by reason of the fact that Indemnitee served in any capacity referred
to herein.
13. SUCCESSORS
AND ASSIGNS.
This Agreement establishes contract
rights that shall be binding upon, and shall inure to the benefit of, the
successors, assigns, heirs and legal representatives of the parties
hereto.
14. NON-EXCLUSIVITY.
(a) The
provisions for indemnification and advancement of expenses set forth in this
Agreement shall not be deemed to be exclusive of any other rights that the
Indemnitee may have under any provision of law, the Company’s Certificate of
Incorporation or Bylaws, the vote of the Company’s stockholders or disinterested
directors, other agreements or otherwise, both as to action in the Indemnitee’s
official capacity and action in another capacity while occupying the
Indemnitee’s position as a director or officer of the Company.
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(b) In
the event of any changes, after the date of this Agreement, in any applicable
law, statute, or rule which expand the right of a Delaware corporation to
indemnify its officers and directors, the Indemnitee's rights and the Company’s
obligations under this Agreement shall be expanded to the full extent permitted
by such changes. In the event of any changes in any applicable law,
statute or rule, which narrow the right of a Delaware corporation to indemnify a
director or officer, such changes, 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.
15. EFFECTIVENESS
OF AGREEMENT.
To the extent that the indemnification
permitted under the terms of certain provisions of this Agreement exceeds the
scope of the indemnification provided for in the Delaware General Corporate Law,
such provisions shall not be effective unless and until the Company’s
Certificate of Incorporation authorize such additional rights of
indemnification. In all other respects, the balance of this Agreement
shall be effective as of the date set forth on the first page and may apply to
acts of omissions of Indemnitee which occurred prior to such date if Indemnitee
was an officer, director, employee or other agent of the Company, 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, at
the time such act or omission occurred.
16. SEVERABILITY.
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 court order, to perform its obligations under this Agreement shall
not constitute a breach of this Agreement. The provisions of this
Agreement shall be severable as provided in this Section 16. If this
Agreement or any portion hereof shall be invalidated on any ground by any court
of competent jurisdiction, then the Company shall nevertheless indemnify
Indemnitee to the full extent permitted by any applicable portion of this
Agreement that shall not have been invalidated, and the balance of this
Agreement not so invalidated shall be enforceable in accordance with its
terms.
17. GOVERNING
LAW.
This Agreement shall be interpreted and
enforced in accordance with the laws of the State of Delaware, without reference
to its conflict of law principals. To the extent permitted by
applicable law, the parties hereby waive any provisions of law which render any
provision of this Agreement unenforceable in any respect.
18. NOTICE.
All notices, requests, demands and
other communications under this Agreement shall be in writing and shall be
deemed duly given (i) if delivered by hand and receipted for by the party
addressee or (ii) if mailed by certified or registered mail with postage
prepaid, on the third business day after the mailing date. Addresses
for notice to either party are as shown on the signature page of this Agreement,
or as subsequently modified by written notice.
19. MUTUAL
ACKNOWLEDGMENT.
Both the Company and Indemnitee
acknowledge that in certain instances, federal law or applicable public policy
may prohibit the Company from indemnifying its directors and officers under this
Agreement or otherwise. Indemnitee understands and acknowledges that
the Company has undertaken or may be required in the future to undertake with
the appropriate state or federal regulatory agency to submit for approval any
request for indemnification, and has undertaken or may be required in the future
to undertake with the Securities and Exchange Commission 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.
20. COUNTERPARTS.
This Agreement may be executed in one
or more counterparts, each of which shall constitute an
original.
10
21. AMENDMENT
AND TERMINATION.
No amendment, modification, termination
or cancellation of this Agreement shall be effective unless in writing signed by
both parties hereto.
[Signature Pages
Follow]
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IN WITNESS WHEREOF, the
parties hereto have executed this Agreement on and as of the day and year first
above written.
COMPANY:
|
CHINA AGRITECH, INC. | |
By
|
||
Name:
|
||
Title:
|
||
Address:
|
||
Attention:
|
||
Facsimile:
|
||
INDEMNITEE:
|
As Individual: | |
Name: Xxxx Xxxx | ||
Address: | ||
Carlyle
Asia Growth Capital
|
||
The
Carlyle Group
|
||
00xx
Xxxxx, Xxxxx 00
|
||
0000
Xxxxxxx Xxxx Xxxx
|
||
Xxxxxxxx
200040
China
|
12
FUND:
|
CARLYLE ASIA GROWTH PARTNERS IV, L.P. | |
By
|
CAGP
General Partner, L.P. as its General Partner
|
|
By
|
CAGP
Ltd., as its General Partner
|
|
By
|
||
Name:
|
||
Title:
|
||
Address:
|
||
Xxxxx
0000, 00/X, Xxx Xxxxxxx Xxxxx
|
||
00
Xxxxxxxxx, Xxxx Xxxx
|
||
Attention:
|
||
Facsimile:
|
||
CAGP IV CO-INVESTMENT, L.P. | ||
By
|
CAGP
General Partner, L.P. as its
|
|
General
Partner
|
||
By
|
CAGP
Ltd., as its General Partner
|
|
By
|
||
Name:
|
||
Title:
|
||
Address:
|
||
Xxxxx
0000, 00/X, Xxx Xxxxxxx Xxxxx
|
||
00
Xxxxxxxxx, Xxxx Xxxx
|
||
Attention:
|
||
Facsimile:
|
13