Exhibit 10.1
INDEMNIFICATION
AGREEMENT
THIS AGREEMENT
is made and entered into this
day
of
,
20 by
and between PANACOS PHARMACEUTICALS, INC. , a Delaware
corporation (the “ Corporation ”), and
(“
Agent ”). Its purpose is to provide the maximum
protection for the Agent against personal liability arising out of
his or her service to the Corporation so as to encourage the
continuation of such service and the effective exercise of his or
her business judgment in connection therewith.
RECITALS
WHEREAS , Agent performs a valuable service to the
Corporation in his or her capacity as [a director/an officer] of
the Corporation;
WHEREAS , the Corporation has adopted provisions in its
Certificate of Incorporation (the “ Charter ”)
and bylaws (the “ Bylaws ”) providing for the
indemnification of the directors, officers, employees and other
agents of the Corporation, including persons serving at the request
of the Corporation in such capacities with other corporations or
enterprises, as authorized by the Delaware General Corporation Law,
as amended (the “ Code ”);
WHEREAS , the Charter, the Bylaws and the Code, by their
non-exclusive nature, permit contracts between the Corporation and
its agents, officers, employees and other agents with respect to
indemnification of such persons; and
WHEREAS , in order to induce Agent to serve as [a
director/an officer] of the Corporation, the Corporation has
determined and agreed to enter into this Agreement with
Agent.
NOW, THEREFORE
, in consideration of Agent’s
service as [a director/an officer] of the Corporation after the
date hereof, the parties hereto agree as follows:
AGREEMENT
1. Services to the
Corporation . Agent will
serve, at the will of the Corporation or under separate contract,
if any such contract exists, as [a director/an officer] of the
Corporation or as a director, officer or other fiduciary of an
affiliate of the Corporation (including any employee benefit plan
of the Corporation) faithfully and to the best of his or her
ability so long as he or she [is duly elected and qualified in
accordance with the provisions of the Bylaws or other applicable
charter documents/is a duly appointed officer] of the Corporation
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 Corporation or any
affiliate shall have no obligation under this Agreement to continue
Agent in any such position.
2. Indemnity of Agent
. The Corporation hereby agrees to
hold harmless and indemnify Agent to the fullest extent authorized
or permitted by the provisions of the Charter,
the Bylaws and the Code, as the same may be
amended from time to time (but, only to the extent that such
amendment permits the Corporation to provide broader
indemnification rights than the Charter, the Bylaws or the Code
permitted prior to adoption of such amendment).
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 Corporation 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 him or her 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 Corporation) to which Agent is, was or at
any time becomes a party, witness or participant, or is threatened
to be made a party, witness or participant, by reason of the fact
that Agent is, was or at any time becomes a director, officer,
employee or other agent of Corporation, or is or was serving or at
any time serves at the request of the Corporation 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 Corporation under the non-exclusivity
provisions of the Code, the Charter and the Bylaws.
|
4.
|
Limitations
on Additional Indemnity .
No indemnity pursuant to Section 3 hereof shall be paid by the
Corporation:
|
(a) on account of any claim against Agent for an
accounting of profits made from the purchase or sale by Agent of
securities of the Corporation pursuant to the provisions of
Section 16(b) of the Securities Exchange Act of 1934 and
amendments thereto 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 Corporation 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 Corporation 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
Corporation 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 Corporation, (iii) such indemnification is
provided by the Corporation, in its sole discretion, pursuant to
the powers vested in the Corporation under the Code, or
(iv) the proceeding is initiated pursuant to Section 9
hereof.
5. Continuation of
Indemnity . All
agreements and obligations of the Corporation contained herein
shall continue during the period Agent is a director, officer,
employee or other agent of the Corporation (or is or was serving at
the request of the Corporation 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 threatened, pending or completed action, suit or
proceeding, whether civil, criminal, arbitrational, administrative
or investigative, by reason of the fac
