Exhibit
10.1


 


RESTATED AND AMENDED
INDEMNITY AGREEMENT


 


THIS INDEMNITY AGREEMENT, effective as of [insert the
date of the original indemnity agreement], between SICOR INC., a Delaware
corporation (the “Corporation”), and
                          
(the “Indemnitee”),


 


W I T N E S S E T H:


 


Whereas  Indemnitee is a member of the board of
directors of the Corporation (the “Board of Directors”) and/or is an officer of
the Corporation and in such capacity is performing a valuable service for the
Corporation; and


 


Whereas  Indemnitee is willing to serve, continue to
serve, and take on additional service for or on behalf of the Corporation on
the condition that he be indemnified as herein provided; and


 


Whereas  it is intended that Indemnitee shall be paid
promptly by the Corporation all amounts necessary to effectuate in full the
indemnity provided herein.


 


N o w,  T h e r
e f o r e,  in consideration of the
premises and the covenants in this Agreement, and intending to be legally bound
hereby, the parties hereto agree as follows:


 


1.                                       Services
by Indemnitee.


 


Indemnitee agrees to serve as a director and/or
officer of the Corporation so long as he is duly appointed or elected and
qualified in accordance with the applicable provisions of the Restated
Certificate of Incorporation and By-laws of the Corporation or any subsidiary
of the Corporation and until such time as he resigns or fails to stand for
election or is removed from his position. 
Indemnitee may at any time and for any reason resign or be removed from
such position (subject to any other contractual obligation or other obligation
imposed by operation of law), in which event the Corporation shall have no
obligation under this Agreement to continue Indemnitee in any such position.


 


2.                                       Indemnification.


 


(a)                                  The
Corporation shall indemnify Indemnitee against Expenses and Liabilities in
connection with any Proceeding arising out of acts or omissions of Indemnitee
in his capacity as a director and/or an officer of the Corporation occurring
subsequent to the effective date hereof to the fullest extent permitted by
applicable law or the Restated Certificate of Incorporation of the Corporation
in effect on the effective date hereof or as such law or Restated Certificate
of Incorporation may from time to time be amended (but, in the case of any such
amendment, only to the extent such amendment permits the Corporation to provide
broader indemnification rights than the law or Restated Certificate of
Incorporation permitted the Corporation to provide before such amendment).  The right to indemnification provided in the
Restated Certificate of Incorporation shall be presumed to have been relied
upon by Indemnitee in serving or continuing to serve the Corporation and shall
be enforceable as a contract right. 
Without diminishing the scope of the indemnification provided by this
Section 2, the Corporation shall indemnify Indemnitee whenever he is or
was a party or is threatened to be made a party to any Proceeding, including
without limitation any such Proceeding brought by


 

















 


or in the right of the Corporation, because he is or
was a director and/or officer of the Corporation or because of anything done or
not done by him in such capacity, against Expenses and Liabilities actually and
reasonably incurred by Indemnitee or on his behalf in connection with such
Proceeding, including the costs of any investigation, defense, settlement or
appeal, except that no indemnification shall be made with respect to any claim,
issue or matter if Indemnitee was finally adjudged to be liable to the
Corporation by a court of competent jurisdiction due to his gross negligence or
willful misconduct unless and to the extent that a Delaware Court of Chancery
or the court in which the action was heard determines that Indemnitee is
entitled to indemnification for such amounts as the court deems proper.  In addition to, and not as a limitation of,
the foregoing, the rights of indemnification of Indemnitee provided under this
Agreement shall include those rights set forth in Sections 3, 7, 8 and 13
below.


 


(b)                                 Indemnitee
shall be paid promptly by the Corporation all amounts necessary to effectuate
the foregoing indemnity.


 


3.                                       Advancement
of Expenses.


 


All reasonable Expenses incurred by or on behalf of
Indemnitee shall be advanced from time to time by the Corporation to him within
thirty (30) days after the Corporation’s receipt of a written request for an
advance of Expenses, whether prior to or after final disposition of a
Proceeding (except to the extent that there has been a Final Adverse
Determination that Indemnitee is not entitled to be indemnified for such
Expenses), including without limitation any Proceeding brought by or in the
right of the Corporation.  The written
request for an advancement of any and all Expenses under this paragraph shall
contain reasonable detail of the Expenses incurred by Indemnitee.  If required by law at the time of such
advance, Indemnitee hereby agrees to repay the amounts advanced if it is
ultimately determined that Indemnitee is not entitled to be indemnified
pursuant to the terms of this Agreement.


 


4.                                       Limitations.


 


The foregoing indemnity and advancement of Expenses
shall apply only to the extent that Indemnitee has not been indemnified and
reimbursed pursuant to such insurance as the Corporation may maintain for Indemnitee’s
benefit, or otherwise; provided, however, that notwithstanding the availability
of such other indemnification and reimbursement, Indemnitee may claim
indemnification and advancement of Expenses pursuant to this Agreement by
assigning to the Corporation, at its request, Indemnitee’s claims under such
insurance to the extent Indemnitee has been paid by the Corporation.


 


5.                                       Insurance
and Funding.


 


The Corporation may purchase and maintain insurance to
protect itself and/or Indemnitee against any Expenses and Liabilities in
connection with any Proceeding to the fullest extent permitted by applicable
laws.  The Corporation may create a
trust fund, grant an interest or use other means (including, without limitation,
a letter of credit) to ensure the payment of such amounts as may be necessary
to effect indemnification or advancement of Expenses as provided in this
Agreement.


 


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6.                                       Procedure
for Determination of Entitlement to Indemnification.


 


(a)                                  Whenever
Indemnitee believes that he is entitled to indemnification pursuant to this
Agreement, Indemnitee shall submit a written request for indemnification to the
Corporation.  Any request for
indemnification shall include sufficient documentation or information
reasonably available to Indemnitee to support his claim for
indemnification.  Indemnitee shall
submit his claim for indemnification within a reasonable time not to exceed
five years after any judgment, order, settlement, dismissal, arbitration award,
conviction, acceptance of a plea of nolo contendere or its equivalent, final
termination or other disposition or partial disposition of any Proceeding,
whichever is the later date for which Indemnitee requests indemnification.  The President or the Secretary or other
appropriate officer shall, promptly upon receipt of Indemnitee’s request for
indemnification, advise the Board of Directors in writing that Indemnitee has
made such request.  Determination of
Indemnitee’s entitlement to indemnification shall be made not later than ninety
(90) days after the Corporation’s receipt of Indemnitee’s written request
for such indemnification.


 


(b)                                 The
Indemnitee shall be entitled to select the forum in which Indemnitee’s request
for indemnification will be heard, which selection shall be included in the
written request for indemnification required in Section 6(a).  The forum shall be any one of the following:


 


(i)  The stockholders of the Corporation;


 


(ii)  A quorum of the Board of Directors
consisting of Disinterested Directors;


 


(iii)  Independent Legal Counsel, who shall make
the determination in a written opinion; or


 


(iv)  A panel of three arbitrators, one selected
by the Corporation, another by Indemnitee and the third by the first two
arbitrators selected.  If for any reason
three arbitrators are not selected within thirty (30) days after the
appointment of the first arbitrator, then selection of additional arbitrators
shall be made by the American Arbitration Association.  If any arbitrator resigns or is unable to serve
in such capacity for any reason, the American Arbitration Association shall
select his replacement.  The arbitration
shall be conducted pursuant to the commercial arbitration rules of the American
Arbitration Association now in effect.


 


If Indemnitee fails to make such designation, his
claim shall be determined by an appropriate court of the State of Delaware.


 


7.                                       Fees
and Expenses of Independent Legal Counsel.


 


The Corporation agrees to pay the reasonable fees and
expenses of Independent Legal Counsel or a panel of three arbitrators should
such Counsel or such panel of arbitrators be retained to make a determination
of Indemnitee’s entitlement to indemnification pursuant to Section 6 of
this Agreement, and to fully indemnify such Counsel or arbitrators against any
and all expenses and losses incurred by any of them arising out of or relating
to this Agreement or their engagement pursuant hereto.


 


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8.                                       Remedies
of Indemnitee.


 


(a)                                  In
the event that (i) a determination pursuant to Section 6 hereof is
made that Indemnitee is not entitled to indemnification, (ii) advances of
Expenses are not made pursuant to this Agreement, (iii) payment has not
been timely made following a determination of entitlement to indemnification
pursuant to this Agreement, or (iv) Indemnitee otherwise seeks enforcement
of this Agreement, Indemnitee shall be entitled to a final adjudication in an
appropriate court of the State of Delaware of his rights.  Alternatively, Indemnitee at his option may
seek an award in arbitration to be conducted by a single arbitrator pursuant to
the commercial arbitration rules of the American Arbitration Association now in
effect, whose decision is to be made within ninety (90) days following the
filing of the demand for arbitration. 
The Corporation shall not oppose Indemnitee’s right to seek any such
adjudication or arbitration award.


 


(b)                                 In
the event that a determination that Indemnitee is not entitled to
indemnification, in whole or in part, has been made pursuant to Section 6
hereof, the decision in the judicial proceeding or arbitration provided in
paragraph (a) of this Section 8 shall be made de novo and Indemnitee
shall not be prejudiced by reason of a determination that he is not entitled to
indemnification.


 


(c)                                  If
a determination that Indemnitee is entitled to indemnification has been made
pursuant to Section 6 hereof or otherwise pursuant to the terms of this
Agreement, the Corporation shall be bound by such determination in the absence
of (i) a misrepresentation of a material fact by Indemnitee or (ii) a
specific finding (which has become final) by an appropriate court of the State
of Delaware that all or any part of such indemnification is expressly
prohibited by law.


 


(d)                                 In
any court proceeding pursuant to this Section 8, the Corporation shall be
precluded from asserting that the procedures and presumptions of this Agreement
are not valid, binding and enforceable. 
The Corporation shall stipulate in any such court or before any such
arbitrator that the Corporation is bound by all the provisions of this
Agreement and is precluded from making any assertion to the contrary.


 


(e)                                  Expenses
reasonably incurred by Indemnitee in connection with his request for
indemnification under this Agreement, seeking enforcement of this Agreement or
to recover damages for breach of this Agreement shall be borne by the
Corporation.


 


9.                                       Presumptions
and Effect of Certain Proceedings.


 


No initial finding by the
Board, its counsel, Independent Counsel, arbitrators or the stockholders shall
be effective to deprive Indemnitee of the protection of this indemnity, nor
shall a court or other forum to which Indemnitee may apply for enforcement of
this indemnity give any weight to any such adverse finding in deciding any issue
before it.  Upon making a request for
indemnification, Indemnitee shall be presumed to be entitled to indemnification
under this Agreement and the Company shall have the burden of proof to overcome
that presumption in reaching any contrary determination.  The termination of any Proceeding by
judgment, order, settlement, arbitration award or conviction, or upon a plea of
nolo contendere or its equivalent, shall not, of itself, (a) adversely affect
the rights of Indemnitee to indemnification except as indemnification may be
expressly prohibited under this Agreement, (b) create a presumption that
Indemnitee did not act in good faith and in a manner which he reasonably
believed to be in or not opposed to the best interests of the


 


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Company or (c) with
respect to any criminal action or proceeding, create a presumption that
Indemnitee had reasonable cause to believe that his conduct was unlawful.


 


10.                                 Modification,
Waiver, Termination and Cancellation.


 


No supplement, modification, termination, cancellation
or amendment of this Agreement shall be binding unless executed in writing by
both of 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.


 


11.                                 Notice
by Indemnitee and Defense of Claim.


 


Indemnitee shall promptly notify the Corporation in
writing upon being served with any summons, citation, subpoena, complaint,
indictment, information or other document relating to any matter, whether
civil, criminal, administrative or investigative, but the omission so to notify
the Corporation will not relieve it from any liability which it may have to Indemnitee
if such omission does not prejudice the Corporation’s rights.  If such omission does prejudice the
Corporation’s rights, the Corporation will be relieved from liability only to
the extent of such prejudice; nor will such omission relieve the Corporation
from any liability which it may have to Indemnitee otherwise than under this
Agreement.  With respect to any
Proceeding as to which Indemnitee notifies the Corporation of the commencement
thereof:


 


(a)                                  The
Corporation will be entitled to participate therein at its own expense; and


 


(b)                                 The
Corporation jointly with any other indemnifying party similarly notified will
be entitled to assume the defense thereof, with counsel reasonably satisfactory
to Indemnitee; provided, however, that the Corporation shall not be entitled to
assume the defense of any Proceeding if Indemnitee shall have reasonably
concluded that there may be a conflict of interest between the Corporation and
Indemnitee with respect to such Proceeding. 
The Corporation will not be liable to Indemnitee under this Agreement
for any expenses subsequently incurred by Indemnitee in connection with the
defense thereof, other than reasonable costs of investigation or as otherwise
provided below.  After notice from the
Corporation to Indemnitee of its election to assume the defense thereof,
(i) the Corporation shall pay the fees and expenses of counsel selected by
the Indemnitee, promptly after statements therefor are received, and otherwise
advance to such Indemnitee upon request reimbursement of documented expenses
reasonably incurred, and (ii) the Corporation will cooperate in the
defense of any such matter; provided,
however, that (A) the Corporation shall be obligated pursuant
to this section to pay for only one firm of counsel for all Indemnitees in
any jurisdiction, except to the extent there is, in the opinion of counsel to
an Indemnitee, under applicable standards of professional conduct, a conflict
on any significant issue between the positions of such Indemnitee and any other
Indemnitee, in which case each Indemnitee with a conflicting position on a
significant issue shall be entitled to retain separate counsel mutually
satisfactory to the Corporation and such Indemnitee, (B) the Indemnitees
shall cooperate in the defense of any such matter and (C) the Corporation
shall not be liable for any settlement effected without its prior written
consent (which consent may not be unreasonably withheld or delayed).  Indemnitee shall have the right to employ
Indemnitee’s own counsel in such Proceeding but except as provided above the
fees and expenses of such counsel incurred after


 


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notice from the Corporation of its assumption of the
defense thereof shall be at the expense of Indemnitee unless:


 


(i)                                     The
employment of counsel by Indemnitee has been authorized by the Corporation;


 


(ii)  Indemnitee shall have reasonably concluded
that counsel engaged by the Corporation may not adequately represent
Indemnitee;


 


(iii) The Corporation
shall not in fact have employed counsel to assume the defense in such
Proceeding or shall not in fact have assumed such defense and be acting in
connection therewith with reasonable diligence;


 


in each of which cases the fees and expenses of such counsel shall be
at the expense of the Corporation.


 


(c)                                  The
Corporation shall not settle any Proceeding in any manner which would impose
any penalty or limitation on Indemnitee without Indemnitee’s written consent;
provided, however, that Indemnitee will not unreasonably withhold his consent
to any proposed settlement.


 


12.                                 Notices.


 


All notices, requests, demands and other
communications hereunder shall be in writing and shall be deemed to have been
duly given if (i) delivered by hand and receipted for by the party to whom
said notice or other communication shall have been directed, or
(ii) mailed by certified or registered mail with postage prepaid, on the
third business day after the date on which it is so mailed:


 


(a)                                  If
to Indemnitee, to:


 


 


 


 


 


or to such other address as may have been furnished to Indemnitee


 


(b)                                 If
to the Corporation, to:


 


Sicor Inc.


19 Hughes


Irvine, California 92618


 


or to such other address as may have been furnished to Indemnitee by
the Corporation or to the Corporation by Indemnitee, as the case may be.


 


13.                                 Nonexclusivity.


 


The rights of Indemnitee hereunder shall not be deemed
exclusive of any other rights to which Indemnitee may now or in the future be
entitled under the Delaware General Corporation Law, the Corporation’s Restated
Certificate of Incorporation or By-laws, or any agreements, vote of
stockholders, resolution of the Board of Directors or otherwise.


 


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14.                                 Certain
Definitions.


 


(a)                                  “Disinterested
Director” shall mean a director of the Corporation who is not or was not a
party to the Proceeding in respect of which indemnification is being sought by
Indemnitee.


 


(b)                                 “Expenses”
shall include all direct and indirect costs (including, without limitation,
attorneys’ fees, retainers, court costs, transcripts, fees of experts, witness
fees, travel expenses, duplicating costs, printing and binding costs, telephone
charges, postage, delivery service fees, all other disbursements or
out-of-pocket expenses and reasonable compensation for time spent by Indemnitee
for which he is otherwise not compensated by the Corporation) actually and
reasonably incurred in connection with a Proceeding or establishing or
enforcing a right to indemnification under this Agreement, applicable law or
otherwise; provided, however, that “Expenses” shall not include any
Liabilities.


 


(c)                                  “Final
Adverse Determination” shall mean that a determination that Indemnitee is not
entitled to indemnification shall have been made pursuant to Section 6
hereof and either (i) a final adjudication in a Delaware court or decision
of an arbitrator pursuant to Section 8(a) hereof shall have denied
Indemnitee’s right to indemnification hereunder, or (ii) Indemnitee shall
have failed to file a complaint in a Delaware court or seek an arbitrator’s
award pursuant to Section 8(a) for a period of one hundred twenty (120)
days after the determination made pursuant to Section 6 hereof.


 


(d)                                 “Indemnification
Period” shall mean the period of time during which Indemnitee shall continue to
serve as a director and/or as an officer of the Corporation, and thereafter so
long as Indemnitee shall be subject to any possible Proceeding arising out of
acts or omissions of Indemnitee as a director and/or as an officer of the
Corporation.


 


(e)                                  “Independent
Legal Counsel” shall mean a law firm or a member of a law firm selected by the
Corporation and approved by Indemnitee (which approval shall not be
unreasonably withheld) and that neither is presently nor in the past five years
has been retained to represent: 
(i) the Corporation, in any material matter, or (ii) any other
party to the Proceeding giving rise to a claim for indemnification
hereunder.  Notwithstanding the
foregoing, the term “Independent Legal Counsel” shall not include any person
who, under the applicable standards of professional conduct then prevailing,
would have a conflict of interest in representing either the Corporation or
Indemnitee in an action to determine Indemnitee’s right to indemnification
under this Agreement.


 


(f)                                    “Liabilities”
shall mean liabilities of any type whatsoever including, but not limited to,
any judgments, fines, ERISA excise taxes and penalties, penalties and amounts
paid in settlement (including all interest assessments and other charges paid
or payable in connection with or in respect of such judgments, fines, penalties
or amounts paid in settlement) of any proceeding.


 


(g)                                 “Proceeding”
shall mean any threatened, pending or completed action, claim, suit,
arbitration, alternate dispute resolution mechanism, investigation,
administrative hearing or any other proceeding whether civil, criminal,
administrative or investigative, including any appeal therefrom.


 


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15.                                 Binding
Effect, Duration and Scope of Agreement.


 


This Agreement shall be binding upon and inure to the
benefit of and be enforceable by the parties hereto and their respective
successors and assigns (including any direct or indirect successor by purchase,
merger, consolidation or otherwise to all or substantially all of the business
or assets of the Corporation), spouses, heirs and personal and legal
representatives.  This Agreement shall
continue in effect during the Indemnification Period, regardless of whether
Indemnitee continues to serve as a director and/or officer.


 


16.                                 Severability.


 


If any provision or provisions of this Agreement (or
any portion thereof) shall be held to be invalid, illegal or unenforceable for
any reason whatsoever:


 


(a)                                  The
validity, legality and enforceability of the remaining provisions of this
Agreement shall not in any way be affected or impaired thereby; and


 


(b)                                 To
the fullest extent legally possible, the provisions of this Agreement shall be
construed so as to give effect to the intent of any provision held invalid,
illegal or unenforceable.


 


17.                                 Governing
Law and Interpretation of Agreement.


 


This Agreement shall be governed by and construed and
enforced in accordance with the laws of the State of Delaware, as applied to
contracts between Delaware residents entered into and to be performed entirely
within Delaware.  If the laws of the
State of Delaware are hereafter amended to permit the Corporation to provide
broader indemnification rights than said laws permitted the Corporation to
provide prior to such amendment, the rights of indemnification and advancement
of expenses conferred by this Agreement shall automatically be broadened to the
fullest extent permitted by the laws of the State of Delaware, as so amended.


 


18.                                 Consent
to Jurisdiction.


 


The Corporation and Indemnitee each irrevocably
consent to the jurisdiction of the courts of the State of Delaware 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 state courts of the State of Delaware.


 


19.                                 Entire
Agreement.


 


This Agreement represents the entire agreement between
the parties hereto, and there are no other agreements, contracts or
understandings between the parties hereto with respect to the subject matter of
this Agreement, except as specifically referred to herein or as provided in
Section 13 hereof.


 


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20.                                 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 one and the same Agreement.


 


 


	
   

  	
  SICOR INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  INDEMNITEE

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
					



 


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