Exhibit 10.1
INDEMNITY
AGREEMENT
THIS INDEMNITY
AGREEMENT (this
“ Agreement ”) dated as of ___________ _____,
200_, is made by and between ARYX THERAPEUTICS, INC., a
Delaware corporation (the “ Company ”),
and _________________ (“ Indemnitee
”).
RECITALS
A.
The Company desires to attract and retain the services of highly
qualified individuals as directors, officers, employees and
agents.
B.
The Company’s bylaws (the “ Bylaws ”)
require that the Company indemnify its directors, and empowers the
Company to indemnify its officers, employees and agents, as
authorized by the Delaware General Corporation Law, as amended (the
“ Code ”), under which the Company is organized
and such Bylaws expressly provide that the indemnification provided
therein is not exclusive and contemplates that the Company may
enter into separate agreements with its directors, officers and
other persons to set forth specific indemnification
provisions.
C.
Indemnitee does not regard the protection currently provided by
applicable law, the Company’s governing documents and
available insurance as adequate under the present circumstances,
and the Company has determined that Indemnitee and other directors,
officers, employees and agents of the Company may not be willing to
serve or continue to serve in such capacities without additional
protection.
D.
The Company desires and has requested Indemnitee to serve or
continue to serve as a director, officer, employee or agent of the
Company, as the case may be, and has proffered this Agreement to
Indemnitee as an additional inducement to serve in such
capacity.
E.
Indemnitee is willing to serve, or to continue to serve, as a
director, officer, employee or agent of the Company, as the case
may be, if Indemnitee is furnished the indemnity provided for
herein by the Company.
AGREEMENT
NOW THEREFORE
, in consideration of the
mutual covenants and agreements set forth herein, the parties
hereto, intending to be legally bound, hereby agree as
follows:
1.
Definitions .
(a)
Agent .
For purposes of this Agreement, the term “agent” of the
Company means any person who: (i) is or was a director
, officer, employee or other fiduciary of the Company or a
subsidiary of the Company; or (ii) is or was serving at the
request or for the convenience of, or representing the interests
of, the Company or a subsidiary of the Company, as a director,
officer, employee or other fiduciary of a foreign or domestic
corporation, partnership, joint venture, trust or other
enterprise.
1
(b)
Expenses . For purposes of this Agreement, the
term “expenses” shall be broadly construed and shall
include, without limitation, all direct and indirect costs of any
type or nature whatsoever (including, without limitation, all
attorneys’, witness, or other professional fees and related
disbursements, and other out-of-pocket costs of whatever nature),
actually and reasonably incurred by Indemnitee in connection with
the investigation, defense or appeal of a proceeding or
establishing or enforcing a right to indemnification under this
Agreement, the Code or otherwise, and amounts paid in settlement by
or on behalf of Indemnitee, but shall not include any judgments,
fines or penalties actually levied against Indemnitee for such
individual’s violations of law. The term
“expenses” shall also include reasonable compensation
for time spent by Indemnitee for which he is not compensated by the
Company or any subsidiary or third party (i) for any period during
which Indemnitee is not an agent, in the employment of, or
providing services for compensation to, the Company or any
subsidiary; and (ii) if the rate of compensation and estimated time
involved is approved by the directors of the Company who are not
parties to any action with respect to which expenses are incurred,
for Indemnitee while an agent of, employed by, or providing
services for compensation to, the Company or any
subsidiary.
(c)
Proceedings . For purposes of this Agreement, the
term “proceeding” shall be broadly construed and shall
include, without limitation, any threatened, pending, or completed
action, suit, arbitration, alternate dispute resolution mechanism,
investigation, inquiry, administrative hearing or any other actual,
threatened or completed proceeding, whether brought in the right of
the Company or otherwise and whether of a civil, criminal,
administrative or investigative nature, and whether formal or
informal in any case, in which Indemnitee was, is or will be
involved as a party or otherwise by reason of: (i) the fact
that Indemnitee is or was a director or officer of the Company;
(ii) the fact that any action taken by Indemnitee or of any action
on Indemnitee’s part while acting as director, officer,
employee or agent of the Company; or (iii) 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, employee benefit plan or other enterprise,
and in any such case described above, whether or not serving in any
such capacity at the time any liability or expense is incurred for
which indemnification, reimbursement, or advancement of expenses
may be provided under this Agreement.
(d)
Subsidiary . For purposes of this Agreement, the
term “subsidiary” means any corporation or limited
liability company of which more than 50% of the outstanding voting
securities or equity interests are owned, directly or indirectly,
by the Company and one or more of its subsidiaries, and any other
corporation, limited liability company, partnership, joint venture,
trust, employee benefit plan or other enterprise of which
Indemnitee is or was serving at the request of the Company as a
director, officer, employee, agent or fiduciary.
(e)
Independent Counsel . For purposes of this Agreement, the
term “independent counsel” means a law firm, or a
partner (or, if applicable, member) of such a law firm, that is
experienced in matters of corporation law and neither presently is,
nor in the past five (5) years has been, retained to represent: (i)
the Company or Indemnitee in any matter material to either such
party, or (ii) any other party to the proceeding giving rise to a
claim for indemnification hereunder. Notwithstanding the
foregoing, the term “independent counsel” shall not
include any person who, under the applicable standards of
professional conduct then
2
prevailing, would have a conflict of interest
in representing either the Company or Indemnitee in an action to
determine Indemnitee’s rights under this
Agreement.
2.
Agreement to Serve . Indemnitee will serve, or continue to
serve, as a director, officer, employee or agent of the Company or
any subsidiary, as the case may be, faithfully and to the best of
his or her ability, at the will of such corporation (or under
separate agreement, if such agreement exists), in the capacity
Indemnitee currently serves as an agent of such corporation, so
long as Indemnitee is duly appointed or elected and qualified in
accordance with the applicable provisions of the bylaws or other
applicable charter documents of such corporation, or until such
time as Indemnitee tenders his or her resignation in writing;
provided, however, that nothing contained in this Agreement is
intended as an employment agreement between Indemnitee and the
Company or any of its subsidiaries or to create any right to
continued employment of Indemnitee with the Company or any of its
subsidiaries in any capacity.
The
Company acknowledges that it has entered into this Agreement and
assumes the obligations imposed on it hereby, in addition to and
separate from its obligations to Indemnitee under the Bylaws, to
induce Indemnitee to serve, or continue to serve, as a director,
officer, employee or agent of the Company, and the Company
acknowledges that Indemnitee is relying upon this Agreement in
serving as a director, officer, employee or agent of the
Company.
3.
Indemnification .
(a)
Indemnification in Third Party Proceedings . Subject to Section 10
below, the Company shall indemnify Indemnitee to the fullest extent
permitted by the Code, as the same may be amended from time to time
(but, only to the extent that such amendment permits Indemnitee to
broader indemnification rights than the Code permitted prior to
adoption of such amendment), if Indemnitee is a party to or
threatened to be made a party to or otherwise involved in any
proceeding, for any and all expenses, actually and reasonably
incurred by Indemnitee in connection with the investigation,
defense, settlement or appeal of such proceeding.
(b)
Indemnification in Derivative Actions and Direct Actions by the
Company .
Subject to Section 10 below, the Company shall indemnify Indemnitee
to the fullest extent permitted by the Code, as the same may be
amended from time to time (but, only to the extent that such
amendment permits Indemnitee to broader indemnification rights than
the Code permitted prior to adoption of such amendment), if
Indemnitee is a party to or threatened to be made a party to or
otherwise involved in any proceeding by or in the right of the
Company to procure a judgment in its favor, against any and all
expenses actually and reasonably incurred by Indemnitee in
connection with the investigation, defense, settlement, or appeal
of such proceedings.
4.
Indemnification of Expenses of Successful Party
. Notwithstanding
any other provision of this Agreement, to the extent that
Indemnitee has been successful on the merits or otherwise in
defense of any proceeding or in defense of any claim, issue or
matter therein, including the dismissal of any action without
prejudice, the Company shall indemnify
3
Indemnitee against all expenses actually and
reasonably incurred in connection with the investigation, defense
or appeal of such proceeding.
5.
Partial Indemnification . If Indemnitee is entitled under any
provision of this Agreement to indemnification by the Company for
some or a portion of any expenses actually and reasonably incurred
by Indemnitee in the investigation, defense, settlement or appeal
of a proceeding, but is precluded by applicable law or the specific
terms of this Agreement to indemnification for the total amount
thereof, the Company shall nevertheless indemnify Indemnitee for
the portion thereof to which Indemnitee is entitled.
6.
Advancement of Expenses . To the extent not prohibited by law,
the Company shall advance the expenses incurred by Indemnitee
in connection with any proceeding, and such advancement shall be
made within twenty (20) days after the receipt by the Company of a
statement or statements requesting such advances (which shall
include invoices received by Indemnitee in connection with such
expenses but, in the case of invoices in connection with legal
services, any references to legal work performed or to expenditures
made that would cause Indemnitee to waive any privilege accorded by
applicable law shall not be included with the invoice) and upon
request of the Company, an undertaking to repay the advancement of
expenses if and to the extent that it is ultimately determined by a
court of competent jurisdiction in a final judgment, not subject to
appeal, that Indemnitee is not entitled to be indemnified by the
Company. Advances shall be unsecured, interest free and
without regard to Indemnitee’s ability to repay the expenses.
Advances shall include any and all expenses actually and reasonably
incurred by Indemnitee pursuing an action to enforce
Indemnitee’s right to indemnification under this Agreement,
or otherwise and this right of advancement, including expenses
incurred preparing and forwarding statements to the Company to
support the advances claimed. Indemnitee acknowledges that
the execution and delivery of this Agreement shall constitute an
undertaking providing that Indemnitee shall, to the fullest
exten
|
