ARDEA BIOSCIENCES, INC. INDEMNITY AGREEMENT
Exhibit 10.1
ARDEA BIOSCIENCES, INC.
This Indemnity Agreement (this “Agreement”) is made and entered into this day
of , 20 by and between Ardea Biosciences, Inc., a Delaware corporation (the
"Corporation”), and (“Agent”).
Recitals
Whereas, Agent performs a valuable service to the Corporation in his or her capacity
as of the Corporation;
Whereas, the stockholders of the Corporation have adopted 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 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 continue to serve as of the
Corporation, the Corporation has determined and agreed to enter into this Agreement with Agent;
Now, Therefore, in consideration of Agent’s continued service as
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 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 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 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 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 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, 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 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 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 solely 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 fact that Agent was
serving in the capacity referred to herein.
6. Partial Indemnification. Agent shall be entitled under this Agreement to indemnification by the
Corporation for a portion of the 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 in connection with any action, suit or proceeding referred to in Section 3 hereof
even if not entitled hereunder to indemnification for the total amount thereof, and the Corporation
shall indemnify Agent for the portion thereof to which Agent is entitled.
7. Notification and Defense of Claim. Not later than thirty (30) days after receipt by Agent of
notice of the commencement of any action, suit or proceeding, Agent will, if a claim in respect
thereof is to be made against the Corporation under this Agreement, notify the Corporation of the
commencement thereof; but the omission so to notify the Corporation will not relieve it from any
liability which it may have to Agent otherwise than under this Agreement. With respect to any such
action, suit or proceeding as to which Agent notifies the Corporation of the commencement thereof:
(a) the Corporation will be entitled to participate therein at its own expense;
(b) except as otherwise provided below, the Corporation may, at its option and jointly with
any other indemnifying party similarly notified and electing to assume such defense, assume the
defense thereof, with counsel reasonably satisfactory to Agent. After notice from the Corporation
to Agent of its election to assume the defense thereof, the Corporation will not be liable to Agent
under this Agreement for any legal or other expenses subsequently incurred by Agent in connection
with the defense thereof except for reasonable costs of investigation or otherwise as provided
below. Agent shall have the right to employ separate counsel in such action, suit or proceeding but
the fees and expenses of such counsel incurred after notice from the Corporation of its assumption
of the defense thereof shall be at the expense of Agent unless (i) the employment of counsel by
Agent has been authorized by the Corporation, (ii) Agent shall have reasonably concluded, and so
notified the Corporation, that there is an actual conflict of interest between the Corporation and
Agent in the conduct of the defense of such action or (iii) the Corporation shall not in fact have
employed counsel to assume the defense of such action, in each of which cases the fees and expenses
of Agent’s separate counsel shall be at the expense of the Corporation. The Corporation shall not
be entitled to assume the defense of any action, suit
or proceeding brought by or on behalf of the Corporation or as to which Agent shall have made the
conclusion provided for in clause (ii) above; and
(c) the Corporation shall not be liable to indemnify Agent under this Agreement for any
amounts paid in settlement of any action or claim effected without its written consent, which shall
not be unreasonably withheld. The Corporation shall be permitted to settle any action except that
it shall not settle any action or claim in any manner which would impose any penalty or limitation
on Agent without Agent’s written consent, which may be given or withheld in Agent’s sole
discretion.
8. Expenses. The Corporation shall advance, prior to the final disposition of any proceeding,
promptly following request therefor, all expenses incurred by Agent in connection with such
proceeding upon receipt of an undertaking by or on behalf of Agent to repay said amounts if it
shall be determined ultimately that Agent is not entitled to be indemnified under the provisions of
this Agreement, the Bylaws, the Code or otherwise.
9. Enforcement. Any right to indemnification or advances granted by this Agreement to Agent shall
be enforceable by or on behalf of Agent in any court of competent jurisdiction if (i) the claim for
indemnification or advances is denied, in whole or in part, or (ii) no disposition of such claim is
made within ninety (90) days of request therefor. Agent, in such enforcement action, if successful
in whole or in part, shall be entitled to be paid also the expense of prosecuting his or her claim.
It shall be a defense to any action for which a claim for indemnification is made under Section 3
hereof (other than an action brought to enforce a claim for expenses pursuant to Section 8 hereof,
provided that the required undertaking has been tendered to the Corporation) that Agent is not
entitled to indemnification because of the limitations set forth in Section 4 hereof. Neither the
failure of the Corporation (including its Board of Directors or its stockholders) to have made a
determination prior to the commencement of such enforcement action that indemnification of Agent is
proper in the circumstances, nor an actual determination by the Corporation (including its Board of
Directors or its stockholders) that such indemnification is improper shall be a defense to the
action or create a presumption that Agent is not entitled to indemnification under this Agreement
or otherwise.
10. Subrogation. In the event of payment under this Agreement, the Corporation shall be subrogated
to the extent of such payment to all of the rights of recovery of Agent, who shall execute all
documents required and shall do all acts that may be necessary to secure such rights and to enable
the Corporation effectively to bring suit to enforce such rights.
11. Non-Exclusivity of Rights. The rights conferred on Agent by this Agreement shall not be
exclusive of any other right which Agent may have or hereafter acquire under any statute, provision
of the Corporation’s Certificate of Incorporation or Bylaws, agreement, vote of stockholders or
directors, or otherwise, both as to action in his or her official capacity and as to action in
another capacity while holding office.
12. Survival of Rights.
(a) The rights conferred on Agent by this Agreement shall continue after Agent has ceased to
be a director, officer, employee or other agent of the Corporation or to serve 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 inure to the
benefit of Agent’s heirs, executors and administrators.
(b) The Corporation shall require any successor (whether direct or indirect, by purchase,
merger, consolidation or otherwise) to all or substantially all of the business or assets of the
Corporation, expressly to assume and agree to perform this Agreement in the same manner and to the
same extent that the Corporation would be required to perform if no such succession had taken
place.
13. Separability. Each of the provisions of this Agreement is a separate and distinct agreement
and independent of the others, so that if any provision hereof shall be held to be invalid for any
reason, such invalidity or unenforceability shall not affect the validity or enforceability of the
other provisions hereof. Furthermore, if this Agreement shall be invalidated in its entirety on any
ground, then the Corporation shall nevertheless indemnify Agent to the fullest extent provided by
the Bylaws, the Code or any other applicable law.
14. Governing Law. This Agreement shall be interpreted and enforced in accordance with the laws of
the State of Delaware.
15. Amendment and Termination. No amendment, modification, termination or cancellation of this
Agreement shall be effective unless in writing signed by both parties hereto.
16. Identical Counterparts. This Agreement may be executed in one or more counterparts, each of
which shall for all purposes be deemed to be an original but all of which together shall constitute
but one and the same Agreement. Only one such counterpart need be produced to evidence the
existence of this Agreement.
17. Headings. The headings of the sections of this Agreement are inserted for convenience only and
shall not be deemed to constitute part of this Agreement or to affect the construction hereof.
18. Notices. All notices, requests, demands and other communications hereunder shall be in writing
and shall be deemed to have been duly given (i) upon delivery if delivered by hand to the party to
whom such communication was directed or (ii) upon the third business day after the date on which
such communication was mailed if mailed by certified or registered mail with postage prepaid:
(a) If to Agent, at the address indicated on the signature page hereof.
(b) If to the Corporation, to:
ARDEA BIOSCIENCES, INC.
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ATTENTION: PRESIDENT
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ATTENTION: PRESIDENT
or to such other address as may have been furnished to Agent by the Corporation.
In Witness Whereof, the parties hereto have executed this Agreement on and as of the day
and year first above written.
| ARDEA BIOSCIENCES, INC. | ||||||
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