Exhibit
10.1


 


INTARCIA THERAPEUTICS, INC. 


 


INDEMNITY AGREEMENT


 


THIS AGREEMENT is made and entered into this     
day of               ,
200   by and between INTARCIA
THERAPEUTICS, INC., a Delaware corporation (the “Company”), and                                
(“Agent”).


 


RECITALS


 


WHEREAS, Agent performs a valuable service to the
Company as a                        of
the Company;


 


WHEREAS, the stockholders of the Company have
adopted bylaws (the “Bylaws”) providing 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, as amended
(the “Code”);


 


WHEREAS, the Bylaws and the Code, 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 a                                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 a                            
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 a                          
of the Company or as a director, officer or other fiduciary of an affiliate of
the Company (including any employee benefit plan of the Company) faithfully and
to the best of his ability so long as he 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 Code, 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 Code permitted
prior to adoption of such amendment).


 


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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 him 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 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 company, 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 Code 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 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 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


 


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is provided by the Company, in its sole discretion, pursuant to the
powers vested in the Company under the Code, 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 company,
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 Company 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 Company 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 Company under
this Agreement, notify the Company of the commencement thereof; but the
omission so to notify the Company 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 Company of the commencement thereof:


 


(a)                                  the
Company will be entitled to participate therein at its own expense;


 


(b)                                  except
as otherwise provided below, the Company 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 Company to
Agent of its election to assume the defense thereof, the Company 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 Company 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 Company, (ii) Agent shall have
reasonably concluded, and so notified the Company, that there is an actual
conflict of interest between the Company and Agent in the conduct of the
defense of such action or (iii) the Company 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 Company.  The Company shall not be
entitled to assume the defense of any action, suit or proceeding brought by or
on behalf of the Company or as to which Agent shall have made the conclusion
provided for in clause (ii) above; and


 


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(c)                                  the
Company 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 Company 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 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 Company) that Agent is not entitled to indemnification because of the
limitations set forth in Section 4 hereof. 
Neither the failure of the Company (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 Company (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 Company 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
Company 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 Company’s Certificate of
Incorporation or Bylaws, agreement, vote of stockholders or directors, or
otherwise, both as to action in his 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 Company or to
serve at the request of the Company as a director, officer, employee or other
agent of another company, corporation, partnership, joint venture, trust,
employee benefit plan or other enterprise and shall inure to the benefit of
Agent’s heirs, executors and administrators.


 


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(b)                                  The
Company 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 Company, expressly to assume and agree to perform this Agreement
in the same manner and to the same extent that the Company 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 Company
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 Company, to:


 


Intarcia Therapeutics, Inc.


2000 Powell Street, Suite 1640


Emeryville, CA 94608


Attn: Alice Leung


 


or
to such other address as may have been furnished to Agent by the Company.


 


[SIGNATURE
PAGE FOLLOWS]


 


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IN WITNESS WHEREOF, the parties hereto have executed this
Agreement on and as of the day and year first above written.


 


	
   

  	
  INTARCIA THERAPEUTICS, INC.

  
	
   

  	
   

  
	
   

  	
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  AGENT

  
	
   

  	
   

  
	
   

  	
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