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EXHIBIT 10.1
SGX PHARMACEUTICALS, INC.
INDEMNITY AGREEMENT
THIS
INDEMNITY AGREEMENT (this "AGREEMENT") is made and entered into
this
[__] day of [_______], 2005 by and between
SGX PHARMACEUTICALS, INC., a Delaware
corporation (the "COMPANY"), and
[_____________] ("AGENT").
RECITALS
WHEREAS,
Agent performs a valuable service to the Company in [HIS/HER]
capacity as [_____________] of the
Company;
WHEREAS,
the Company's Amended and Restated Bylaws (the "BYLAWS"), which
were approved by the stockholders of the
Company, provide for the
indemnification of the directors, officers,
employees and other agents of the
Company, including persons serving at the
request of the Company in such
capacities with other corporations or
enterprises, as authorized by the Delaware
General Corporation Law (the "DGCL");
WHEREAS,
the Bylaws and the DGCL, by their non-exclusive nature, permit
contracts between the Company and its
agents, officers, employees and other
agents with respect to indemnification of
such persons; and
WHEREAS,
in order to induce Agent to continue to serve as
[_____________]
of the Company, the Company has determined
and agreed to enter into this
Agreement with Agent.
NOW,
THEREFORE, in consideration of Agent's continued service as
[_____________] of the Company after the
date hereof, the parties hereto agree
as follows:
AGREEMENT
1.
SERVICES TO THE COMPANY. Agent will serve, at the will of the
Company
or under separate contract, if any such
contract exists, as [_____________] of
the Company or as a director, executive
officer or other fiduciary of an
affiliate of the Company (including any
employee benefit plan of the Company)
faithfully and to the best of Agent's
ability so long as Agent is duly elected
and qualified in accordance with the
provisions of the Bylaws or other
applicable charter documents of the Company
or such affiliate; provided,
however, that Agent may at any time and for
any reason resign from such position
(subject to any contractual obligation that
Agent may have assumed apart from
this Agreement) and that the Company or any
affiliate shall have no obligation
under this Agreement to continue Agent in
any such position.
2.
INDEMNITY OF AGENT. The Company hereby agrees to hold harmless
and
indemnify Agent to the fullest extent
authorized or permitted by the provisions
of the Bylaws and the DGCL, as the same may
be amended from time to time (but
only to the extent that such amendment
permits the Company to provide broader
indemnification rights than the Bylaws or
the DGCL permitted prior to adoption
of such amendment).
1.
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EXHIBIT 10.1
3.
ADDITIONAL INDEMNITY. In addition to and not in limitation of
the
indemnification otherwise provided for
herein, and subject only to the
exclusions set forth in Section 4 hereof,
the Company hereby further agrees to
hold harmless and indemnify Agent:
(a) against any and all expenses (including attorneys' fees),
witness fees, damages, judgments, fines and
amounts paid in settlement and any
other amounts that Agent becomes legally
obligated to pay because of any claim
or claims made against or by Agent in
connection with any threatened, pending or
completed action, suit or proceeding,
whether civil, criminal, arbitrational,
administrative or investigative (including
an action by or in the right of the
Company) to which Agent is, was or at any
time becomes a party, or is threatened
to be made a party, by reason of the fact
that Agent is, was or at any time
becomes a director, officer, employee or
other agent of the Company, or is or
was serving or at any time serves at the
request of the Company as a director,
officer, employee or other agent of another
corporation, partnership, joint
venture, trust, employee benefit plan or
other enterprise; and
(b) otherwise to the fullest extent as may be provided to Agent
by
the Company under the non-exclusivity
provisions of the DGCL and Section 43 of
the Bylaws.
4.
LIMITATIONS ON ADDITIONAL INDEMNITY. No indemnity pursuant to
Section 3
hereof shall be paid by the Company:
(a) on account of any claim against Agent solely for an
accounting
of profits made from the purchase or sale
by Agent of securities of the Company
pursuant to the provisions of Section 16(b)
of the Securities Exchange Act of
1934, as amended, or similar provisions of
any federal, state or local statutory
law;
(b) on account of Agent's conduct that is established by a
final
judgment as knowingly fraudulent or
deliberately dishonest or that constituted
willful misconduct;
(c) on account of Agent's conduct that is established by a
final
judgment as constituting a breach of
Agent's duty of loyalty to the Company or
resulting in any personal profit or
advantage to which Agent was not legally
entitled;
(d) for which payment is actually made to Agent under a valid
and
collectible insurance policy or under a
valid and enforceable indemnity clause,
bylaw or agreement, except in respect of
any excess beyond payment under such
insurance, clause, bylaw or agreement;
(e) if indemnification is not lawful (and, in this respect, both
the
Company and Agent have been advised that
the Securities and Exchange Commission
believes that indemnification for
liabilities arising under the federal
securities laws is against public policy
and is, therefore, unenforceable and
that claims for indemnification should be
submitted to appropriate courts for
adjudication); or
(f) in connection with any proceeding (or part thereof) initiated
by
Agent, or any proceeding by Agent against
the Company or its directors,
officers, employees or other agents, unless
(i) such indemnification is
expressly required to be made by law, (ii)
the proceeding was authorized by the
Board of Directors of the Company, (iii)
such indemnification is provided by the
Company, in its sole discretion, pursuant
to the powers vested in the Company
2.
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EXHIBIT 10.1
under the DGCL or any other applicable law,
or (iv) the proceeding is initiated
pursuant to Section 9 hereof.
5.
CONTINUATION OF INDEMNITY. All agreements and obligations of
the
Company contained herein shall continue
during the period Agent is a director,
officer, employee or other agent of the
Company (or is or was serving at the
request of the Company as a director,
officer, employee or other agent of
another corporation, partnership, joint
venture, trust, employee benefit plan or
other enterprise) and shall continue
thereafter so long as Agent shall be
subject to any possible claim or thr
