NEOSTEM, INC. INDEMNIFICATION AGREEMENT
This
Indemnification Agreement ("Agreement") is made as of October __, 2009 by and
between NeoStem, Inc., a Delaware corporation (the "Company"), and
______________ ("Indemnitee").
RECITALS
WHEREAS,
highly competent persons have become more reluctant to serve publicly-held
corporations as directors or officers or in other capacities unless they are
provided with adequate protection through insurance or adequate indemnification
against inordinate risks of claims and actions against them arising out of their
service to and activities on behalf of the corporation;
WHEREAS,
the Board of Directors of the Company (the "Board") has, in order to attract and
retain qualified individuals, obtained liability insurance to protect persons
serving the Company and its subsidiaries from certain liabilities. The
furnishing of such insurance has been a customary and widespread practice among
United States-based corporations and other business enterprises. At
the same time, directors, officers, and other persons in service to corporations
or business enterprises are being increasingly subjected to expensive and
time-consuming litigation relating to, among other things, matters that
traditionally would have been brought only against the Company or business
enterprise itself. The Certificate of Incorporation of the Company
permits indemnification of the officers, directors and employees of the
Company. Indemnitee may also be entitled to indemnification pursuant
to the General Corporation Law of the State of Delaware (the
"DGCL"). The DGCL expressly provides that the indemnification
provisions set forth therein are not exclusive, and thereby contemplate that
contracts may be entered into between the Company and members of the board of
directors, officers and other persons with respect to
indemnification;
WHEREAS,
the uncertainties relating to such insurance and to indemnification have
increased the difficulty of attracting and retaining such persons, particularly
those at greater risk in light of their position with the Company;
WHEREAS,
the Board has determined that the increased difficulty in attracting and
retaining such persons is detrimental to the best interests of the Company's
stockholders and that the Company should act to assure such of those persons who
in light of their position with the Company are at an increased risk, that there
will be increased certainty of such protection in the future;
WHEREAS,
it is reasonable, prudent and necessary for the Company contractually to
obligate itself to indemnify, and to advance expenses on behalf of, such persons
at an increased risk to the fullest extent permitted by applicable law so that
they will serve or continue to serve the Company free from undue concern that
they will not be so indemnified;
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WHEREAS,
this Agreement is a supplement to and in furtherance of the Certificate of
Incorporation of the Company and any resolutions adopted pursuant thereto, and
any agreements the Indemnitee may otherwise have with the Company, and shall not
be deemed a substitute therefor, nor to diminish or abrogate any rights of
Indemnitee thereunder; and
WHEREAS,
Indemnitee does not regard the protection available under the Company's
Certificate of Incorporation and insurance as adequate in the present
circumstances, and may not be willing to serve as an officer, director or
employee without adequate protection, and the Company desires Indemnitee to
serve in such capacity. Indemnitee is willing to serve
and continue to serve for or on behalf of the Company on the
condition that he or she be so indemnified;
NOW,
THEREFORE, in consideration of the premises and the covenants contained herein,
the Company and Indemnitee do hereby covenant and agree as follows:
1. Indemnification.
(a) Third Party
Proceedings. The Company shall
indemnify Indemnitee if Indemnitee is or was a party or is threatened to be made
a party to any threatened, pending or completed action, suit, proceeding or any
alternative dispute resolution mechanism, whether civil, criminal,
administrative or investigative (other than an action by or in the right of the
Company) by reason of the fact that Indemnitee is or was a director, officer,
employee or agent of the Company, or any subsidiary of the Company, or by reason
of the fact that Indemnitee 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, against expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement (if such settlement is
approved in advance by the Company, which approval shall not be unreasonably
withheld) actually and reasonably incurred by Indemnitee in connection with such
action, suit or proceeding if Indemnitee acted in good faith and in a manner
Indemnitee reasonably believed to be in or not opposed to 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 action, suit or 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 or not opposed to the best
interests of the Company, and, with respect to any criminal action or
proceeding, had reasonable cause to believe that Indemnitee's conduct was
unlawful.
(b) Proceedings
By or in the Right of the Company. The
Company shall indemnify Indemnitee if Indemnitee was or is a party or is
threatened to be made a party to any threatened, pending or completed action,
suit or proceeding by or in the right of the Company or any subsidiary of the
Company to procure a judgment in its favor by reason of the fact that Indemnitee
is or was a director, officer, employee or agent of the Company, or any
subsidiary of the Company, or by reason of the fact that Indemnitee 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,
against expenses (including attorneys' fees) and, to the fullest extent
permitted by law, amounts paid in settlement actually and reasonably incurred by
Indemnitee in connection with the defense or settlement of such action or suit
if Indemnitee acted in good faith and in a manner Indemnitee reasonably believed
to be in or not opposed to the best interests of the Company, except that no
indemnification shall be made in respect of any claim, issue or matter as to
which Indemnitee shall have been adjudged to be liable to the Company unless and
only to the extent that the court in which such action or suit was brought shall
determine upon application that, despite the adjudication of liability but in
view of all the circumstances of the case, Indemnitee is fairly and reasonably
entitled to indemnity for such expenses which such court shall deem
proper.
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(c) Proceedings
Definition. For purposes of clarity, the term "proceeding" as
used in Subsections (a) and (b) of this Section 1, and throughout this
Agreement, shall include any threatened, pending or completed action, suit,
arbitration, alternate dispute resolution mechanism, investigation, inquiry,
administrative hearing or any other actual, threatened or completed proceeding,
and whether of a civil, criminal, administrative legislative, or investigative
nature, including any appeal therefrom, in which Indemnitee was, is or will be
involved as a party, potential party, non-party witness or otherwise by reason
of the fact that Indemnitee is or was a director, officer or employee of the
Company, by reason of any action taken by him or of any action on his part while
acting as director, officer or employee of the Company, 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 corporation, limited liability company,
partnership, joint venture, trust or other enterprise, in each case whether or
not serving in such capacity at the time any liability or expense is incurred
for which indemnification, reimbursement, or advancement of expenses can be
provided under this Agreement.
(d) Mandatory Payment of
Expenses. To the extent that Indemnitee has been successful on the merits
or otherwise in defense of any action, suit or proceeding referred to in
Subsections (a) and (b) of this Section 1, or in defense of any claim, issue or
matter therein, Indemnitee shall be indemnified against expenses (including
attorneys' fees) actually and reasonably incurred by Indemnitee in connection
therewith.
2. Expenses; Indemnification
Procedure.
(a) Advancement of
Expenses. The
Company shall advance all expenses incurred by Indemnitee in connection with the
investigation, defense, settlement or appeal of any civil or criminal action,
suit or proceeding referenced in Section 1(a) or (b) hereof. Indemnitee hereby
undertakes to repay such amounts advanced only if, and to the extent that, it
shall ultimately be determined that Indemnitee is not entitled to be indemnified
by the Company as authorized hereby. The advances to be made hereunder shall be
paid by the Company to Indemnitee within thirty (30) days following delivery of
a written request therefor by Indemnitee to the Company. As used in
this Agreement, “expenses” shall include, among other things, all reasonable
attorneys' fees, retainers, court costs, transcript costs, fees of experts,
witness fees, travel expenses, duplicating costs, printing and binding costs,
telephone charges, postage, delivery service fees, and all other disbursements
or expenses of the types customarily incurred in connection with prosecuting,
defending, preparing to prosecute or defend, investigating, being or preparing
to be a witness in, or otherwise participating in, an action, suit or
proceeding. Expenses also shall include (i) expenses incurred in
connection with any appeal resulting from any action, suit or proceeding,
including without limitation the premium, security for, and other costs relating
to any cost bond, supersedeas bond, or other appeal bond or its equivalent, and
(ii) for purposes of Section 10 only, expenses incurred by Indemnitee in
connection with the interpretation, enforcement or defense of Indemnitee's
rights under this Agreement, by litigation or otherwise. Expenses,
however, for purposes of this Section 2(a), shall not include amounts paid in
settlement by Indemnitee or the amount of judgments or fines against
Indemnitee. Advances shall be unsecured and interest
free. Advances shall be made without regard to Indemnitee's ability
to repay the expenses and without regard to Indemnitee's ultimate entitlement to
indemnification under the other provisions of this
Agreement. Advances shall include any and all reasonable expenses
incurred pursuing an action to enforce this right of advancement, including
expenses incurred preparing and forwarding statements to the Company to support
the advances claimed. The Indemnitee shall qualify for advances upon
the execution and delivery to the Company of this Agreement, which shall
constitute an undertaking providing that the Indemnitee undertakes to repay the
advance to the extent that it is ultimately determined that Indemnitee is not
entitled to be indemnified by the Company.
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(b) Notice by
Indemnitee. Indemnitee
shall notify the Company in writing in accordance with the provisions of Section
15 hereof of any matter with respect to which Indemnitee intends to seek
indemnification or advancement of expenses hereunder as soon as reasonably
practicable following the receipt by Indemnitee of written notice
thereof. The written notification to the Company shall include a
description of the nature of the proceeding and the facts underlying the
proceeding. To obtain indemnification under this Agreement,
Indemnitee shall submit to the Company a written request, including therein or
therewith such documentation and information as is reasonably available to
Indemnitee and is reasonably necessary to determine whether and to what extent
Indemnitee is entitled to indemnification following the final disposition of
such action, suit or proceeding. The omission by Indemnitee to notify
the Company hereunder will not relieve the Company from any liability which it
may have to Indemnitee hereunder or otherwise than under this Agreement, and any
delay in so notifying the Company shall not constitute a waiver by Indemnitee of
any rights under this Agreement. The Secretary of the Company shall,
promptly upon receipt of such a request for indemnification, advise the Board in
writing that Indemnitee has requested indemnification.
(c) Procedure. Any indemnification and
advances provided for in Section 1 and this Section 2 shall be made no later
than thirty (30) days after receipt of the written request of Indemnitee. If a
claim under this Agreement, under any statute, or under any provision of the
Company's Certificate of Incorporation or Bylaws providing for indemnification,
is not paid in full by the Company within thirty (30) days after a written
request for payment thereof has first been received by the Company, Indemnitee
may, but need not, at any time thereafter bring an action against the Company to
recover the unpaid amount of the claim and, subject to Section 14 of this
Agreement, Indemnitee shall also be entitled to be paid for the expenses
(including attorneys' fees) of bringing such action. It shall be a defense to
any such action (other than an action brought to enforce a claim for expenses
incurred in connection with any action, suit or proceeding in advance of its
final disposition) that Indemnitee has not met the standards of conduct which
make it permissible under applicable law for the Company to indemnify Indemnitee
for the amount claimed. However, Indemnitee shall be entitled to receive interim
payments of expenses pursuant to Subsection 2(a) unless and until such defense
may be finally adjudicated by court order or judgment from which no further
right of appeal exists. It is the parties' intention that if the Company
contests lndemnitee's right to indemnification, the question of Indemnitee's
right to indemnification shall be for the court to decide, and neither the
failure of the Company (including its Board of Directors, any committee or
subgroup of the Board of Directors, independent legal counsel, or its
stockholders) to have made a determination that indemnification of Indemnitee is
proper in the circumstances because Indemnitee has met the applicable standard
of conduct required by applicable law, nor an actual determination by the
Company (including it Board of Directors, any committee or subgroup of the Board
of Directors, independent legal counsel, or its stockholders) that Indemnitee
has not met such applicable standard of conduct, shall create a presumption that
Indemnitee has or has not met the applicable standard of conduct.
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(d) Notice to
Insurers. If, at
the time of the receipt of a notice of a claim pursuant to Section 2(b) hereof,
the Company has director and officer liability 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.
(e) Selection of
Counsel. In the event the Company
shall be obligated under Section 2(a) 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, 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, (B)
Indemnitee shall have reasonably concluded that there may be a conflict of
interest between the Company and Indemnitee in the conduct of any 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.
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3. Additional Indemnification
Rights; Nonexclusivity.
(a) Scope. Notwithstanding any
other provision of this Agreement, the Company hereby agrees to indemnify the
Indemnitee to the fullest extent permitted by law, notwithstanding that such
indemnification is not specifically authorized by the other provisions of this
Agreement, the Company's Certificate of Incorporation, the Company's Bylaws or
by statute. In the event of any change, after the date of this Agreement, in any
applicable law, statute, or rule which expands the right of a Delaware
corporation to indemnify a member of its board of directors, an officer or an
employee, such changes shall be, ipso facto, within the
purview of Indemnitee's rights and Company's obligations, under this Agreement.
In the event of any change in any applicable law, statute or rule which narrows
the right of a Delaware corporation to indemnify a member of its board of
directors, an officer or an employee, 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.
(b) Nonexclusivity. The
indemnification provided by this Agreement shall not be deemed exclusive of any
rights to which Indemnitee may be entitled under the Company's Certificate of
Incorporation, its Bylaws, any agreement, any vote of stockholders or
disinterested Directors, the General Corporation Law of the State of Delaware,
or otherwise, both as to action in Indemnitee's official capacity and as to
action in another capacity while holding such office. The indemnification
provided under this Agreement shall continue as to Indemnitee for any action
taken or not taken while serving in an indemnified capacity even though he may
have ceased to serve in such capacity at the time of any action, suit or other
covered proceeding.
4. Partial
Indemnification. If
Indemnitee is entitled under any provision of this Agreement to indemnification
by the Company for some or a portion of the expenses, judgments, fines or
penalties actually or reasonably incurred by him in the investigation, defense,
appeal or settlement of any civil or criminal action, suit or proceeding, but
not, however, for the total amount thereof, the Company shall nevertheless
indemnify Indemnitee for the portion of such expenses, judgments, fines or
penalties to which Indemnitee is entitled.
5. Mutual
Acknowledgement. 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 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.
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6. Officer and Director Liability
Insurance. The Company shall
obtain and maintain a policy or policies of insurance with reputable insurance
companies to ensure the Company's performance of its indemnification obligations
under this Agreement. In all policies of director and officer liability
insurance, Indemnitee shall be named as an insured in such a manner as to
provide 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 or an employee. Notwithstanding the foregoing, the Company shall have no
obligation under this Agreement (although it may have such obligation under
other contractual arrangements or otherwise) to obtain or maintain such
insurance if the Company determines in good faith that such insurance is not
reasonably available, if the premium costs for such insurance are
disproportionate to the amount of coverage provided, if the coverage provided by
such insurance is limited by exclusions so as to provide an insufficient
benefit, or if Indemnitee is covered by similar insurance maintained by a
subsidiary or parent of the Company.
7. 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 7. 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.
8. Exceptions. Any other provision herein
to the contrary notwithstanding, the Company shall not be obligated pursuant to
the terms of this Agreement:
(a) 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; or
(b) 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; or
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(c) 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 Indemnitee by an insurance carrier
under a policy of officers' and directors' liability insurance maintained by the
Company.
(d) 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.
9. (a) Reliance as Safe
Harbor. 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, including financial
statements, or on information supplied to Indemnitee by the officers of the
Company in the course of their duties, or on the advice of legal counsel for the
Company or on information or records given or reports made to the Company by an
independent certified public accountant or by an appraiser or other expert
selected with the reasonable care by the Company. The provisions of
this Section 9(a) shall not be deemed to be exclusive or to limit in any way the
other circumstances in which the Indemnitee may be deemed to have met the
applicable standard of conduct set forth in this Agreement.
(b) Actions of
Others. The knowledge and/or actions, or failure to act, of
any director, officer, agent or employee of the Company shall not be imputed to
Indemnitee for purposes of determining the right to indemnification under this
Agreement.
10. Intentions. The
Company shall, to the fullest extent not prohibited by law, be precluded from
asserting in any judicial proceeding or arbitration commenced relating to this
Agreement that the procedures and presumptions of this Agreement are not valid,
binding and enforceable and shall stipulate in any such court or before any such
arbitrator that the Company is bound by all the provisions of this
Agreement. It is the intent of the Company that the Indemnitee not be
required to incur legal fees or other expenses associated with the
interpretation, enforcement or defense of Indemnitee's rights under this
Agreement by litigation or otherwise because the cost and expense thereof would
substantially detract from the benefits intended to be extended to the
Indemnitee hereunder. The Company shall indemnify Indemnitee against
any and all expenses and, if requested by Indemnitee, shall (within ten (10)
days after receipt by the Company of a written request therefor) advance, to the
extent not prohibited by law, such expenses to Indemnitee, which are incurred by
Indemnitee in connection with any action brought by Indemnitee for
indemnification or advance of expenses from the Company under this Agreement or
under any directors' and officers' liability insurance policies maintained by
the Company, regardless of whether Indemnitee ultimately is determined to be
entitled to such indemnification, advancement of expenses or insurance recovery,
as the case may be.
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11.
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Construction of
Certain Phrases.
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(a) For
purposes of this Agreement, references to the "Company" shall include, in
addition to the resulting corporation, any constituent corporation (including
any constituent of a constituent) absorbed in a consolidation or merger which,
if its separate existence had continued, would have had power and authority to
indemnify its directors, officers, and employees or agents, so that if
Indemnitee is or was a director, officer, employee or agent of such constituent
corporation, or is or was serving at the request of such constituent corporation
as a director, officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise, Indemnitee shall stand in the same
position under the provisions of this Agreement with respect to the resulting or
surviving corporation as Indemnitee would have with respect to such constituent
corporation if its separate existence had continued.
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(b) For
purposes of this Agreement, references to "other enterprises" shall include
employee benefit plans; references to "fines" shall include any excise taxes
assessed on Indemnitee with respect to an employee benefit plan; and references
to "serving at the request of the Company" shall include any service as a
director, officer, employee or agent of the Company which imposes duties on, or
involves services by, such director, officer, employee or agent with respect to
an employee benefit plan, its participants, or beneficiaries; and if Indemnitee
acted in good faith and in a manner Indemnitee reasonably believed to be in the
interest of the participants and beneficiaries of an employee benefit plan,
Indemnitee shall be deemed to have acted in a manner "not opposed to the best
interests of the Company" as referred to in this Agreement.
12. Counterparts. This
Agreement may be executed in one or more counterparts, each of which shall
constitute an original.
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13.
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Successors and
Assigns. This Agreement
shall be binding upon the Company and its successors and assigns, and
shall inure to the benefit of Indemnitee and Indemnitee's estate, heirs,
legal representatives and assigns.
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14.
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Attorneys'
Fees. In
the event that any action is instituted by Indemnitee under this Agreement
to enforce or interpret any of the terms hereof, Indemnitee shall be
entitled to be paid all court costs and expenses, including reasonable
attorneys' fees, incurred by Indemnitee with respect to such action,
unless as a part of such action, the court of competent jurisdiction
determines that each of the material assertions made by Indemnitee as a
basis for such action were not made in good faith or were frivolous. In
the event of an action instituted by or in the name of the Company under
this Agreement or to enforce or interpret any of the terms of this
Agreement, Indemnitee shall be entitled to be paid all court costs and
expenses, including attorneys' fees, incurred by Indemnitee in defense of
such action (including with respect to Indemnitee's counterclaims and
cross-claims made in such action), unless as a part of such action the
court determines that each of Indemnitee's material defenses to such
action were made in bad faith or were
frivolous.
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15. 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, on the date of such receipt, (ii) if mailed by
domestic certified or registered mail with postage prepaid, on the third
business day after the date postmarked, or (iii) mailed by reputable overnight
courier and receipted for by the party addressee, on the date of such receipt.
Addresses for notice to either party are as shown on the signature page of this
Agreement, or as subsequently modified by written notice.
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16.
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Consent to
Jurisdiction. The
Company and Indemnitee each hereby irrevocably consent to the jurisdiction
of the courts of the State of New York for all purposes in connection with
any action or proceeding which arises out of or relates to this Agreement
and agree that any action instituted under this Agreement shall be brought
only in the courts of the State of New
York.
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17.
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Choice of Law.
This Agreement shall be governed by and its provisions construed in
accordance with the laws of the State of Delaware, without regard to the
conflict of law principles thereof.
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18.
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Duration of
Agreement. This Agreement shall continue until and
terminate upon the later of: (a) ten (10) years after the date that
Indemnitee shall have ceased to serve as a director, officer or employee
of the Company or, at the request of the Company, as a director, officer,
employee, agent or fiduciary of another corporation, partnership, joint
venture, trust, employee benefit plan or other enterprise or (b) two (2)
years after the final termination of any proceeding then pending in
respect of which Indemnitee is granted rights of indemnification or
advancement of expenses hereunder and of any proceeding commenced by
Indemnitee to enforce the provisions of this Agreement relating
thereto. This Agreement shall be binding upon the Company and
its successors and assigns and shall inure to the benefit of Indemnitee
and his heirs, executors and
administrators.
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19.
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Subrogation. In
the event of payment 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 documents required and shall do all acts
that maybe necessary to secure such rights and to enable the Company
effectively to bring suit to enforce such
rights.
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20.
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Amendment and
Termination. No
amendment, modification, termination or cancellation of this Agreement
shall be effective unless it is in writing signed by both the parties
hereto. No waiver of any of the provisions of this Agreement shall be
deemed or shall constitute a waiver of any other provisions hereof
(whether or not similar) nor shall such waiver constitute a continuing
waiver.
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21.
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Integration and Entire
Agreement. This
Agreement sets forth the entire understanding between the parties hereto
and supersedes and merges all previous written and oral negotiations,
commitments, understandings and agreements relating to the subject matter
hereof between the parties hereto.
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IN
WITNESS WHEREOF, the parties hereto have executed this Indemnification Agreement
as of the date first above written.
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INDEMNITEE | |||
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By:
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Name:
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Name:
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Title:
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Title:
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NeoStem
Address:
000 Xxxxxxxxx Xxxxxx
Xxxxx
000
Xxx
Xxxx, XX 00000
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Indemnitee
Address:
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