FORM OF INDEPENDENT DIRECTOR AGREEMENT
Exhibit
10.1
FORM
OF INDEPENDENT DIRECTOR AGREEMENT
THIS
INDEPENDENT DIRECTOR
AGREEMENT (the “Agreement”) is made as of the
_____ day of July, 2010 and is by and between Bohai Pharmaceuticals Group, Inc.,
a Nevada corporation (the “Company”), and _________(the
“Director”).
WHEREAS, the Board of
Directors of the Company (the “Board of Directors”) desires
to appoint the Director to perform the duties of an “independent” director
(within the meaning of the rules of the U.S. Securities and Exchange Commission
(the “SEC”)), 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.
NOW, THEREFORE, in
consideration for the above recited promises and the mutual promises, agreements
and covenants of the Company and the Director 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 be available to perform the duties of an independent
director customarily related to this function as may be determined and assigned
by the Board of Directors of the Company and as may be 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, without
limitation, the Nevada Revised Statutes (the “NRS”) and the rules and
regulations of the SEC and any exchange or quotation system on which the
Company’s securities may be traded from time to time. The Director
agrees to devote as much time as is necessary to perform completely the duties
as an independent director of the Company, including duties as a member of the
Audit Committee and such other committees as the Director may hereafter be
appointed to. The Director will perform such duties described herein
in accordance with the general fiduciary duty of directors arising under the
NRS.
2. TERM.
(a) Except
as provided for in Section 2(b), the term of this Agreement shall commence as of
the date of the Director’s appointment by the Board of Directors of the Company
and shall continue until the expiration of the Director’s term or his death,
incapacity, removal or resignation.
(b) It
is acknowledged and agreed that the Director shall serve for an initial period
ending on three months after date first written above, (the “Initial
Period”). At any time prior to the conclusion of the Initial
Period, the Chairman of the Board of Directors may, on behalf of the Company and
in his discretion, request that the Director tender his resignation from the
Board of Directors, effective immediately, and if so requested, the Director
shall offer such resignation immediately. If the Director’s service
on the Board of Directors is terminated in accordance with this Section 2(b),
the Director shall forfeit his rights hereunder to receive any compensation from
the Company and this Agreement shall terminate (expect for those provisions
which expressly survive termination).
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3. COMPENSATION. For
all services to be rendered by the Director in any capacity hereunder, the
Company agrees to: (i) pay the Director a cash fee of $[
] per annum with the first year’s payment due quarterly in arrears on the
last day of each fiscal quarter of the Company (i.e., March 31, June 30,
September 30 and December 31) commencing September 30, 2010, and (ii) following
the conclusion of the Initial Period, and provided this Agreement is not
terminated pursuant to the Section 2(b), issue to the Director a 5 year
non-qualified option to purchase [ ] shares of resticted
common stock of the Company at a price equal to $[ ] per
share, which option shall contain a cashless exercise feature. Such
fee and any other compensation of the Director may be adjusted from time to time
as agreed by the parties or as determined by the Compensation or other similar
committee of the Board of Directors.
4. EXPENSES. In
addition to the compensation provided in paragraph 3 hereof, the Company will
reimburse the Director for pre-approved reasonable business related expenses
incurred in good faith in the performance of the Director’s duties for the
Company, including, without limitation, the cost of round trip business class
airfare to China from the United States and back at least one time per year for
an in person board meeting. Such payments shall be made by the
Company upon submission by the Director of a signed statement itemizing the
expenses incurred. Such statement shall be accompanied by sufficient
documentary matter to support the expenditures.
5. 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 (as further defined below, the “Confidential Information”) and
that the communication of such Confidential Information to third parties could
irreparably injure the Company and its business. Accordingly,
Director agrees that, during his association with the Company and thereafter, he
will treat and safeguard as confidential and secret all Confidential Information
received by him at any time and that, without the prior written consent of the
Company, he will not disclose or reveal any of the Confidential Information to
any third party whatsoever or use the same in any manner except in connection
with the business of the Company and in any event in no way harmful to or
competitive with the Company or its business. For purposes of this
Agreement, “Confidential Information” means any information not generally known
to the public or recognized as standard industry practice, any trade secrets,
know-how, development, manufacturing, marketing and distribution plans and
information, inventions, formulas, methods or processes, whether or not patented
or patentable, pricing policies and records of the Company (and such other
information normally understood to be confidential or otherwise designated as
such in writing by the Company), all of which Director expressly acknowledges
and agrees shall be confidential and proprietary information belonging to the
Company. Upon termination of his association with the Company,
Director shall return to the Company all documents and papers relating to the
Company, including any Confidential Information, together with any copies
thereof, or certify that he has destroyed all such documents and
papers. Furthermore, Director recognizes that the Company has
received and in the future will receive confidential or proprietary information
from third parties subject to a duty on the Company’s part to maintain the
confidentiality of such information and, in some cases, to use it only for
certain limited purposes. Director agrees that Director owes the
Company and such third parties, both during the term of Directors association
with the Company and thereafter, a duty to hold all such confidential or
proprietary information in the strictest confidence and not to, except as is
consistent with the Company’s agreement with the third party, disclose it to any
person or entity or use it for the benefit of anyone other than the Company or
such third party, unless expressly authorized to act otherwise by an officer of
the Company. Director agrees that his obligations under this Section
5 are necessary and reasonable in order to protect the Company and its business,
and expressly agrees that monetary damages would be inadequate to compensate the
Company for any breach of this Section 5. Accordingly, Director
agrees and acknowledges that any such violation or threatened violation will
cause irreparable injury to the Company and that, in addition to any other
remedies that may be available, in law, in equity or otherwise, the Company
shall be entitled to seek injunctive relief against the threatened breach of
this Agreement or the continuation of any such breach, without the necessity of
proving actual damages and without the necessity of posting bond or other
security.
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6. TERMINATION. With
or without cause, the Company and the Director may each terminate this Agreement
at any time upon thirty (30) days written notice, and, provided that such
termination is following the Initial Period, 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 shareholders of the Company from removing the Director with
immediate effect at any time for any reason.
7. INDEMNIFICATION;
INSURANCE.
(a) The
Company shall indemnify, defend and hold harmless the Director, to the full
extent allowed by the law of the State of Nevada, 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 relating to
the Company’s business while holding such office. The Company and the
Director are executing an indemnification agreement in the form attached hereto
as Exhibit
A.
(b) During
the term of this Agreement the Company shall at all times obtain and maintain a
policy or policies of director and officer liability insurance, in an amount not
less than $3,000,000, of which the Independent Director will be named as an
insured, providing the Independent Director with coverage for all amounts and
expenses arising in any way as a result of Independent Director’s service or
appointment as a director of the Company. The Company shall promptly (and in any
event within 2 business days) notify the Independent Director of any lapse in
coverage under such policy or policies or any material change or modification to
such policy or policies. It being agreed that the Company shall use commercially
reasonable efforts to increase such coverage to $5,000,000 if: (i) the Company
lists on a national exchange or (ii) the Company raises material capital with
third parties through the issuance of securities
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8. AMENDMENTS;
WAIVERS. No provision of this Agreement may be waived or
amended except in a written instrument signed, in the case of an amendment, by
the Company and the Director or, in the case of a waiver, by the party against
whom enforcement of any such waiver is sought. No waiver of any
breach with respect to any provision, condition or requirement of this Agreement
shall be deemed to be a continuing waiver in the future or a waiver of any
subsequent breach or a waiver of any other provision, condition or requirement
hereof, nor shall any delay or omission of either party to exercise any right
hereunder in any manner impair the exercise of any such right.
9. NOTICES. All
notices, requests, demands and other communications provided in connection with
this Agreement shall be in writing and shall be deemed to have been duly given
at the time when hand delivered, delivered by express courier, or sent by
facsimile (with receipt confirmed by the sender’s transmitting device) in
accordance with the contact information provided on the signature page hereto or
such other contact information as the parties may have duly provided by
notice.
10. 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 Nevada without reference
to that state’s conflicts of laws principles.
11. 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.
12. 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 the 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.
13. HEADINGS;
CONSTRUCTION. The section headings contained in this Agreement
are for reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement. The language used in this Agreement
will be deemed to be the language chosen by the parties to express their mutual
intent, and no rules of strict construction will be applied against any
party.
14. NO THIRD-PARTY
BENEFICIARIES. This Agreement is intended for the benefit of
the parties hereto and their respective successors and permitted assigns and is
not for the benefit of, nor may any provision hereof be enforced by, any other
person or entity.
15. SEVERABILITY. If
any provision of this Agreement is held to be invalid or unenforceable in any
respect, the validity and enforceability of the remaining terms and provisions
of this Agreement shall not in any way be affected or impaired thereby and the
parties will attempt to agree upon a valid and enforceable provision that is a
reasonable substitute therefor, and upon so agreeing, shall incorporate such
substitute provision in this Agreement.
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16. ENTIRE
AGREEMENT. Subject to the provisions of the NRS and the
Company’s articles of association and bylaws, this Agreement and the exhibit
hereto 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.
17. COUNTERPARTS. This Agreement may be
executed in any number of counterparts, all of which taken together shall
constitute one instrument. Execution and delivery of this Agreement
by facsimile or other electronic signature is legal, valid and binding for all
purposes.
[Signature
Page Follows]
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IN WITNESS WHEREOF, the
parties hereto have caused this Independent Director Agreement to be duly
executed and signed as of the day and year first above written.
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By:
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Name:
Hongwei Qu
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Title: President
and CEO
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Contact
Information:
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x/x
Xxxxxx Xxxxx Pharmaceuticals Group Co. Ltd.
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Xx.
0 Xxxxx Xxxx, Xxxxx Xxxxxxxx
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Xxxxxx,
Xxxxxxxx Xxxxxxxx, Xxxxx
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Attention:
Hongwei Qu
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Fax
Number: x00-0000-0000000
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Independent
Director
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Name:
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Contact
Information:
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[Signature Page to Independent
Director Agreement]
INDEMNIFICATION
AGREEMENT
This INDEMNIFICATION
AGREEMENT is made as of the _____ day of July, 2010 and is by and
between Bohai Pharmaceuticals Group Inc., a Nevada corporation (the “Company”), and
[
] (hereinafter referred to as the “Indemnitee”).
WHEREAS, Section 78.7502 of
the Nevada Revised Statutes and the Bylaws of the Company empower the Company to
indemnify its officers and directors and do not, by themselves, limit the extent
to which the Company may indemnify persons serving as its officers and
directors;
WHEREAS, the Indemnitee has
agreed to serve as an independent director of the Company, provided, and on the
expressed condition, that he is furnished with the indemnification provided for
herein;
WHEREAS, the Company believes
that the interest of the Company and its current and future shareholders would
be best served by a combination of: (i) such director and officer liability
insurance as the Company may obtain pursuant to the Company’s obligations
hereunder and (ii) a contract with Indemnitee to indemnify him 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 his duties to
the Company; and
WHEREAS, the Company and the
Indemnitee desire to enter into this Agreement in order to satisfy the foregoing
premises.
NOW, THEREFORE, in
consideration for the above recited promises and the mutual promises, agreements
and covenants of the Company and the Indemnitee contained herein, the adequacy
and sufficiency of which are hereby acknowledged, the Company and the Indemnitee
hereby agree as follows:
1. CERTAIN DEFINITIONS. In addition to the other
capitalized terms defined herein, the following capitalized terms shall have the
following meanings:
(a) “Expenses” means, for the
purposes of this Agreement, all direct and indirect costs of any type or nature
whatsoever (including, without limitation, any reasonable and customary fees and
expenses of Indemnitee’s counsel, accountants and other experts and other
reasonable and customary out-of-pocket costs) actually and reasonably incurred
by the Indemnitee in connection with the investigation, preparation, defense or
appeal of a Proceeding; provided, however, that Expenses shall not include
judgments, fines, penalties or amounts paid in settlement of 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 of the Company, by reason of any action taken by
him or of any inaction on his part while acting as such director or by reason of
the fact that he 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 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. 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.
(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
shareholders. 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 shareholders 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) SCOPE. Notwithstanding
any other provision of this Agreement but subject to Section 13(b) hereof, 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 Amended and Restated Articles
of Incorporation, the Company’s Amended and Restated Bylaws or by
statute.
3. 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 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 78.7502 of the
Nevada Revised Statutes, 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;
(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.
4. DETERMINATION OF RIGHT TO
INDEMNIFICATION. Upon receipt of a written claim addressed to
the Board of Directors for indemnification pursuant to Section 2 hereof, the
Company shall determine by any of the methods set forth in Section 78.751 of the
Nevada Revised Statutes whether Indemnitee has met the applicable standards of
conduct which makes it permissible under applicable law to indemnify
Indemnitee. If a claim under Section 2 hereof 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.
5. ADVANCEMENT AND REPAYMENT OF
EXPENSES. Subject to Section 3
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 shareholders.
6. 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.
7. 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.
8. MAINTENANCE OF LIABILITY
INSURANCE.
(a) Subject
to Section 3 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 8(b) below, 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’s 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.
(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 7 hereof
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.
9. DEFENSE OF CLAIM. In the event that the
Company shall be obligated under Section 5 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 his 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.
10. 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.
11. 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.
12. 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.
13.
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 Amended Articles
of Incorporation or Amended and Restated Bylaws, the vote of the Company’s
shareholders or disinterested directors, other agreements or otherwise, both as
to action in her official capacity and action in another capacity while
occupying her position as a director or officer of the Company.
(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 Nevada 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 Nevada 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.
14. 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 Nevada
Revised Statutes, such provisions shall not be effective unless and until the
Company’s Articles 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.
15. 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 15. 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.
16. GOVERNING LAW. This Agreement shall be
interpreted and enforced in accordance with the laws of the State of Nevada,
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.
17. NOTICES. All notices, requests,
demands and other communications provided in connection with this Agreement
shall be in writing and shall be deemed to have been duly given at the time when
hand delivered, delivered by express courier, or sent by facsimile (with receipt
confirmed by the sender’s transmitting device) in accordance with the contact
information provided on the signature page hereto or such other contact
information as the parties may have duly provided by notice.
18. 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.
19. 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.
20. AMENDMENT AND
TERMINATION. No amendment,
modification, termination or cancellation of this Agreement shall be effective
unless in writing signed by both parties hereto.
[Signature
Page Follows]
IN WITNESS WHEREOF, the
parties hereto have caused this Indemnification Agreement to be duly executed
and signed as of the day and year first above written.
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By:
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Name:
Hongwei Qu
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Title:
President and CEO总裁
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Contact
Information:
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x/x
Xxxxxx Xxxxx Pharmaceuticals Group Co. Ltd.
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Xx.
0 Xxxxx Xxxx, Xxxxx Xxxxxxxx
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Xxxxxx,
Xxxxxxxx Xxxxxxxx, Xxxxx
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Attention:
Hongwei Qu
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Fax
Number: x00-0000-0000000
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Director:
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