# **Exhibit 10.1**

# ** **

# **INDEMNITY AGREEMENT**

 

**THIS INDEMNITY AGREEMENT**(this “Agreement”) is made as of March     , 2003, by andbetween Vicuron Pharmaceuticals Inc., a Delaware corporation (the “Company”),and                          (the “Indemnitee”), a director [and/or officer] of the Company.

 

**THE PARTIES TO THIS AGREEMENT**enter into this Agreement on the basis of the following facts, intentions andunderstandings:

 

## A.            The Indemnitee is currently servingas a director [and/or an officer] of the Company and in such capacity rendersvaluable services to the Company.

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## B.            The Company has investigated theavailability and sufficiency of liability insurance and Delaware statutoryindemnification provisions to provide its directors and officers with adequateprotection against various legal risks and potential liabilities to whichdirectors and officers are subject due to their position with the Company andhas concluded that insurance and statutory provisions may provide inadequateand unacceptable protection to certain individuals requested to serve as itsdirectors and officers.

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## C.            In order to induce and encouragehighly experienced and capable persons such as the Indemnitee to continue toserve as a director [and/or officer] of the Company, the Board of Directors hasdetermined, after due consideration and investigation of the terms andprovisions of this Agreement and the various other options available to theCompany and the Indemnitee in lieu of this Agreement, that this Agreement isnot only reasonable and prudent but necessary to promote and ensure the bestinterests of the Company and its shareholders.

##  

 

**NOW, THEREFORE**, Inconsideration of the continued services of the Indemnitee and in order toinduce the Indemnitee to continue to serve as a director [and/or officer], theCompany and the Indemnitee agree as follows:

 

### **SECTION 1.**              DEFINITIONS

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As used in this Agreement:

 

(a)           A “Change inControl” shall be deemed to have occurred if (i) any “person” (as that term isused in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, asamended (the “Exchange Act”)), other than a trustee or other fiduciary holdingsecurities under an employee benefit plan of the Company or a corporation owneddirectly or indirectly by the stockholders of the Company in substantially thesame proportions as their ownership of stock of the Company, is or becomes the“beneficial owner” (as defined in Rule 13d-3 under the Exchange Act), directlyor indirectly, of securities of the Company representing

 

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20% or more of the total votingpower represented by the Company’s then outstanding voting securities, or (ii)during any period of two consecutive years, individuals who at the beginning ofthe two year period constitute the Board of Directors of the Company and anynew director whose election by the Board of Directors or nomination forelection by the Company’s stockholders was approved by a vote of at leasttwo-thirds (2/3) of the directors then still in office who either weredirectors at the beginning of the period or whose election or nomination forelection was previously so approved, cease for any reason to constitute amajority of the Board of Directors, or (iii) the stockholders of the Companyapprove a merger or consolidation of the Company with any other corporation, otherthan a merger or consolidation which would result in the voting securities ofthe Company outstanding immediately prior to such a merger or consolidationcontinuing to represent (either by remaining outstanding or by being convertedinto voting securities of the surviving entity) at least 80% of the totalvoting power represented by the voting securities of the Company or thesurviving entity outstanding immediately after the merger or consolidation, orthe stockholders of the Company approve a plan of complete liquidation of theCompany or an agreement for the sale or disposition by the Company (in onetransaction or a series of transactions) of all or substantially all theCompany’s assets.

 

(b)           The term “Expenses”includes, without limitation, attorneys’ fees, disbursements and retainers,accounting and witness fees, travel and deposition costs, expenses ofinvestigations, judicial or administrative proceedings or appeals, amounts paidin settlement by or on behalf of Indemnitee, and any expenses of establishing aright to indemnification, pursuant to this Agreement or otherwise includingreasonable compensation for time spent by the Indemnitee in connection with theinvestigation, defense or appeal of a Proceeding or action for indemnificationfor which he is not otherwise compensated by the Company or any thirdparty.  The term “Expenses” does notinclude the amount of judgments, fines, penalties or ERISA excise taxesactually levied against the Indemnitee.

 

(c)           The term “fullestextent permitted by applicable law” shall mean the fullest extent authorized orpermitted by the Fourth Amended and Restated Certificate of Incorporation ofthe Company (the “Certificate of Incorporation”), the Bylaws of the Company, asamended and restated by the Board of Directors on July 30, 2002 (the “Bylaws”),and any applicable law as each of the foregoing may be amended from time totime (but, in the case of an amendment, only to the extent that such amendmentpermits the Company to provide broader indemnification rights than theCertificate of Incorporation, the Bylaws or such law, as applicable, permittedprior to the adoption of such amendment).

 

(d)           A “Potential Changein Control” shall be deemed to have occurred if (i) the Company entersinto an agreement or arrangement, the consummation of which would result in theoccurrence of a Change in Control; (ii) any person (including the Company)publicly announces an intention to take or to consider taking actions which ifconsummated would constitute a Change in Control; (iii) any person (other thana trustee or other fiduciary holding securities under an employee benefit planof the Company acting in such capacity or a corporation owned, directly orindirectly, by the stockholders of the Company in substantially the same proportionsas their ownership of stock of the Company), who is or becomes the beneficialowner, directly or indirectly, of securities of the Company representing 10% ormore of the combined voting power of the Company’s then outstanding votingsecurities increases his

 

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beneficial ownership of thesecurities by 5% or more over the percentage so owned by that person on thedate this Agreement is executed; or (iv) the Board adopts a resolution to theeffect that, for purposes of this Agreement, a Potential Change in Control hasoccurred.

 

(e)           The term“Proceeding” shall include any threatened, pending or completed action, suit orproceeding, whether brought by or in the name of the Company or otherwise andwhether of a civil, criminal or administrative or investigative nature, byreason of the fact that the Indemnitee is or was a director or officer of theCompany, or is or was serving at the request of the Company as a director,officer, employee or agent of another enterprise, whether or not he is servingin such capacity at the time any liability or Expense is incurred for whichindemnification or reimbursement is to be provided under this Agreement, andthe term shall expressly include, without limitation, any proceeding commencedby or on behalf of any Italian tax authority seeking to hold the Indemniteepersonally liable (or jointly liable with the Company or any subsidiary) forany penalties asserted in connection with any alleged breach of any Italian taxor fiscal law by the Company or any subsidiary.

 

### **SECTION 2.**              INDEMNIFICATION

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2.1           **Indemnification in Third Party Actions. **The Company shall indemnify theIndemnitee in accordance with the provisions of this subsection 2.1 if theIndemnitee is a party to or threatened to be made a party to or otherwiseinvolved in any Proceeding (other than a Proceeding by or in the name of theCorporation to procure a judgment in its favor), by reason of the fact that theIndemnitee is or was a director or officer of the Company, or is or was servingat the request of the Company as a director, officer, employee or agent ofanother enterprise against all Expenses, judgments, fines, penalties and ERISAexcise tax actually and reasonably incurred by the Indemnitee in connection withthe defense or settlement of the Proceeding, to the fullest extent permitted byapplicable law; provided that any settlement be approved in writing by theCompany.

 

2.2           **Indemnification in Proceedings By or In the Name ofthe Company.**  The Companyshall indemnify the Indemnitee in accordance with the provisions of thissubsection 2.2 if the Indemnitee is a party to or threatened to be made a partyto or otherwise involved in any Proceeding by or in the name of the Company toprocure a judgment in its favor by reason of the fact that Indemnitee was or isa director or officer of the Company, or is or was serving at the request ofthe Company as a director, officer, employee or agent of another enterprise,against all Expenses actually and reasonably incurred by Indemnitee inconnection with the defense or settlement of the Proceeding, to the fullestextent permitted by applicable law.

 

2.3           **Partial Indemnification. **If the Indemnitee is entitled under any provisionof this Agreement to indemnification by the Company for some or a portion of,but not the total amount of, the Expenses, judgments, fines, penalties or ERISAexcise taxes actually and reasonably incurred by him in the investigation,defense, appeal or settlement of any Proceeding, the Company shall neverthelessindemnify the Indemnitee for the portion of the Expenses, judgments, fines,penalties or ERISA excise taxes to which the Indemnitee is entitled.

 

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2.4           **Indemnification Hereunder Not Exclusive. **The indemnification provided by thisAgreement shall not be deemed exclusive of any other rights to which theIndemnitee may be entitled under the Certificate of Incorporation, as the samemay be amended from time to time, the Bylaws, as may be amended from time totime, any agreement [including, without limitation, that certain IndemnityAgreement dated October 29, 1999], any vote of stockholders or disinteresteddirectors, applicable law, or otherwise, both as to action in his officialcapacity and as to action in another capacity on behalf of the Company whileholding office.

 

2.5           **Indemnification of Expenses of Successful Party**.  Notwithstanding any other provisions of thisAgreement, to the extent that the Indemnitee has been successful in defense of anyProceeding or in defense of any claim, issue or matter in the Proceeding, onthe merits or otherwise, including the dismissal of a Proceeding withoutprejudice , the Indemnitee shall be indemnified against all Expenses incurredin connection therewith to the fullest extent permitted by applicable law.

 

### **SECTION 3.**              PRESUMPTIONS

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3.1           **Presumption Regarding Standard of Conduct . **The Indemnitee shall be conclusivelypresumed to have met the relevant standards of conduct as defined by applicablelaw for indemnification pursuant to this Agreement, unless a determination thatthe Indemnitee has not met the relevant standards is made by (i) the Board ofDirectors of the Company by a majority vote of a quorum consisting of directorswho were not parties to the Proceedings, (ii) the stockholders of theCompany by majority vote, or (iii) in a written opinion by independent legalcounsel, selection of whom has been approved by the Indemnitee in writing.

 

3.2           **Determination of Right to Indemnification. **If a claim under this Agreement is notpaid by the Company within 30 days of receipt of written notice, the right toindemnification as provided by this Agreement shall be enforceable by theIndemnitee in any court of competent jurisdiction.  The burden of proving by clear and convincing evidence thatindemnification or advances are not appropriate shall be on the Company.  Neither the failure of the directors orshareholders of the Company or independent legal counsel to have made adetermination prior to the commencement of the action that indemnification oradvances are proper in the circumstances because the Indemnitee has met theapplicable standard of conduct, nor an actual determination by the directors orshareholders of the Company or independent legal counsel that the Indemniteehas not met the applicable standard of conduct, shall be a defense to theaction or create a presumption that the Indemnitee has not met the applicablestandard of conduct.

 

The Indemnitee’s Expenses incurred in connection with any Proceedingconcerning his right to indemnification or advances in whole or in partpursuant to this Agreement shall also be indemnified by the Company regardlessof the outcome of the Proceeding, unless a court of competent jurisdictiondetermines that each of the material assertions made by the Indemnitee in theProceeding was not made in good faith or was frivolous.

 

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### **SECTION 4.**              ADVANCES OFEXPENSES

 

The Expenses incurred by the Indemnitee in any Proceeding shall be paidpromptly by the Company in advance of the final disposition of the Proceedingat the written request of the Indemnitee to the fullest extent permitted byapplicable law (but only to the extent permissible under Section 402 of theSarbanes-Oxley Act of 2002, as may be amended from time to time) provided thatif applicable law requires an undertaking , the Indemnitee shall undertake inwriting to repay the amount advanced to the extent that it is ultimatelydetermined that the Indemnitee is not entitled to indemnification.

 

### **SECTION 5.**              CHANGE IN CONTROL.

 

The Company agrees that if there is a Change in Control of the Company(other than a Change in Control which has been approved by a majority of theCompany’s Board of Directors who were directors immediately prior to the Changein Control) then with respect to all matters thereafter arising concerning therights of Indemnitee to indemnity payments and Expense advances under thisAgreement or any other agreement, the Company’s Certificate of Incorporation,or the Company’s Bylaws in effect relating to claims for indemnifiable events,the Company shall seek legal advice only from independent counsel selected byIndemnitee and approved by the Company (which approval shall not beunreasonably withheld), and who has not otherwise performed services for theCompany or Indemnitee within the last five years (other than in connection withsuch matters)(“Special Independent Counsel”). The Special Independent Counsel, among other things, shall render itswritten opinion to the Company and Indemnitee as to whether and to what extentthe Indemnitee would be permitted to be indemnified under applicable law.  The Company agrees to pay the reasonablefees of the Special Independent Counsel referred to above and may fullyindemnify the Special Independent Counsel against any and all expenses(including attorneys’ fees), claims, liabilities and damages arising out of orrelating to this Agreement.

 

### **SECTION 6.**              INDEMNIFICATIONPROCEDURE

 

6.1           **Notice. **Promptly after receipt by the Indemnitee of notice of thecommencement of any Proceeding, the Indemnitee will, if a claim is to be madeagainst the Company under this Agreement, notify the Company of thecommencement of the Proceeding.  Theomission to notify the Company will not relieve it from any liability which itmay have to the Indemnitee otherwise than under this Agreement.

 

6.2           **Company Participation. **With respect to any Proceeding for whichindemnification is requested, the Company will be entitled to participate inthe Proceeding at its own expense and, except as otherwise provided below, tothe extent that it may wish, the Company may assume the defense of theProceeding, with counsel satisfactory to the Indemnitee.  After notice from the Company to theIndemnitee of its election to assume the defense of a Proceeding, during theCompany’s good faith active defense the Company will not be liable to theIndemnitee under this Agreement for any legal or other expenses subsequentlyincurred by the Indemnitee in connection with the defense of the Proceeding,other than reasonable costs of investigation or as otherwise providedbelow.  The Company shall not settle

 

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any Proceeding in any mannerwhich would impose any penalty or limitation on the Indemnitee without theIndemnitee’s written consent.  TheIndemnitee shall have the right to employ his counsel in any Proceeding but thefees and expenses of the counsel incurred after notice from the Company of itsassumption of the defense of the Proceeding shall be at the expense of theIndemnitee, unless (i) the employment of counsel by the Indemnitee has beenauthorized by the Company, (ii) the Indemnitee shall have reasonably concludedthat there may be a conflict of interest between the Company and the Indemniteein the conduct of the defense of a Proceeding, or (iii) the Company shall notin fact have employed counsel to assume the defense of a Proceeding, in each ofwhich cases the fees and expenses of the Indemnitee’s counsel shall be at theexpense of the Company.  The Companyshall not be entitled to assume the defense of any Proceeding brought by or onbehalf of the Company or as to which the Indemnitee has made the conclusionthat there may be a conflict of interest between the Company and theIndemnitee.

 

### **SECTION 7.**              LIMITATIONS ONINDEMNIFICATION

 

No payments pursuant to this Agreement shall be made by the Company:

 

(a)  to indemnify or advanceExpenses to the Indemnitee with respect to Proceedings initiated or broughtvoluntarily by the Indemnitee and not by way of defense, except with respect toProceedings brought to establish or enforce a right to indemnification underthis Agreement or any other statute or law or otherwise as required underapplicable law, but the indemnification or advancement of Expenses may beprovided by the Company in specific cases if the Board of Directors finds it tobe appropriate;

 

(b)  to indemnify the Indemniteefor any Expenses, judgments, fines, penalties or ERISA excise taxes for whichpayment is actually made to the Indemnitee under a valid and collectibleinsurance policy, except in respect of any excess beyond the amount of paymentunder the insurance;

 

(c)  to indemnify the Indemniteefor any Expenses, judgments, fines or penalties sustained in any Proceeding foran accounting of profits made from the purchase or sale by Indemnitee ofsecurities of the Company pursuant to the provisions of Section 16(b) of theSecurities Exchange Act of 1934, the rules and regulations promulgatedthereunder and amendments thereto or similar provisions of any federal, stateor local statutory law;

 

(d)  to indemnify the Indemniteefor any Expenses, judgments, fines, penalties or ERISA excise taxes resultingfrom Indemnitee’s conduct which is finally adjudged to have been willfulmisconduct, knowingly fraudulent or deliberately dishonest; or

 

(e)  if a court of competentjurisdiction shall finally determine that any indemnification hereunder isunlawful.

 

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### **SECTION 8.**              MAINTENANCE OFLIABILITY INSURANCE

 

8.1           **Affirmative Covenant of the Company. **The Company covenants and agrees that,as long as the Indemnitee shall continue to serve as a director of the Companyand thereafter so long as the Indemnitee shall be subject to any possibleProceeding, the Company, subject to subsection 8.3 of this Agreement, shallpromptly obtain and maintain in full force and effect directors’ and officers’liability insurance (“D&O Insurance”) in reasonable amounts from establishedand reputable insurers.

 

8.2           **Indemnitee Named as Insured. **In all D&O Insurance policies, theIndemnitee shall be named as an insured in a manner that provides theIndemnitee the same rights and benefits as are accorded to the most favorablyinsured of the Company’s directors.

 

8.3           **Exemption from Maintenance of Insurance. **Notwithstanding the foregoing, theCompany shall have no obligation to obtain or maintain D&O Insurance if theCompany determines in good faith that insurance is not reasonably available,the premium costs for insurance are disproportionate to the amount of coverageprovided, the coverage provided by insurance is so limited by exclusions thatit provides an insufficient benefit, or the Indemnitee is covered by similarinsurance maintained by a subsidiary of the Company.

 

### **SECTION 9.**              MISCELLANEOUS

 

9.1           **Successors and Assigns. **This Agreement shall be binding upon,and shall inure to the benefit of the Indemnitee and his heirs, personalrepresentatives and assigns, and the Company and its successors and assigns.

 

9.2           **Separability. **Each provision of this Agreement is a separate and distinctagreement and independent of the others, so that if any provision of thisAgreement shall be held to be invalid or unenforceable for any reason, theinvalidity or unenforceability shall not affect the validity or enforceabilityof the other provisions of this Agreement. To the extent required, any provision of this Agreement may be modifiedby a court of competent jurisdiction to preserve its validity and to providethe Indemnitee with the broadest possible indemnification permitted underapplicable law.

 

9.3           **Savings Clause. **If this Agreement or any portion of it is invalidated on anyground by any court of competent jurisdiction, then the Company shall neverthelessindemnify Indemnitee as to Expenses, judgments, fines, penalties or ERISAexcise taxes with respect to any Proceeding to the full extent permitted by anyapplicable portion of this Agreement that shall not have been invalidated or byany other applicable law.

 

9.4           **Interpretation; Governing Law. **This Agreement shall be construed as awhole and in accordance with its fair meaning. Headings are for convenience only and shall not be used in construingmeaning.  This Agreement shall begoverned and interpreted in accordance with the laws of the State of Delaware.

 

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9.5           **Amendments. **No amendment, waiver, modification, termination orcancellation of this Agreement shall be effective unless in writing signed bythe party against whom enforcement is sought. The indemnification rights afforded to the Indemnitee by this Agreementare contract rights and may not be diminished, eliminated or otherwise affectedby amendments to the Company’s Certificate of Incorporation, Bylaws oragreements including D&O Insurance policies.

 

9.6           **Counterparts. **This Agreement may be executed in one or more counterparts,all of which shall be considered one and the same agreement and shall becomeeffective when one or more counterparts have been signed by each party anddelivered to the other.

 

9.7           **Notices. **Any notice required to be given under this Agreement shall bedirected to the Company at 455 South Gulph Road, Suite 305, King of Prussia,Pennsylvania 19406, Attention: President, with a copy to Peter T. Healy, Esq.275 Battery Street, Suite 2600, San Francisco, CA  94111, and to Indemnitee at the address set forth below or toanother address as either shall designate in writing.

 

**IN WITNESS WHEREOF**,the parties have executed this Agreement as of the date first written above.

 

 
|   |   | “**Indemnitee”**        |
|--------|--------|-----------------------------------|
|   |   |                              |
|   |   |                              |
|   |   | [**NAME]**                        |
|   |   |                              |
|   |   | Notice Address:                   |
|   |   |                              |
|   |   |                              |   |
|   |   |                              |   |
|   |   |                              |   |
|   |   |                              |
|   |   |                              |
|   |   | “**Company**”           |
|   |   |                              |
|   |   | **VICURON PHARMACEUTICALS INC.**, |
|   |   | a Delaware corporation            |
|   |   |                              |
|   |   |                              |
|   |   | By                                |   |
|   |   |                              | George F. Horner III |
|   |   |                              | President and Chief Executive Officer |
|        |        |                                   |  |  |  |

 

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