Exhibit
10.20


 


[AMENDED AND RESTATED] INDEMNIFICATION AGREEMENT


 


This
[Amended and Restated] Indemnification Agreement made and entered into this
           day of
                    ,
(the “Agreement”), by and between Ikaria, Inc. (f/k/a Ikaria Holdings, Inc.),
a Delaware corporation (the “Company,” which term shall include, where
appropriate, any Entity (as hereinafter defined) controlled directly or
indirectly by the Company) and
                      
(the “Indemnitee”):


 


[WHEREAS,
the Company and the Indemnitee are party to that certain Indemnification
Agreement dated as of
                    
(the “Original Agreement”) to provide for indemnification arrangements for
Indemnitee; and


 


WHEREAS,
the Company and the Indemnitee wish to amend and restate the Original Agreement
in its entirety on the terms and conditions contained herein to induce the
Indemnitee to continue his/her service to the Company;]


 


WHEREAS,
it is essential to the Company that it be able to retain and attract as
directors and officers the most capable persons available;


 


WHEREAS,
increased corporate litigation has subjected directors and officers to
litigation risks and expenses, and the limitations on the availability of
directors and officers liability insurance have made it increasingly difficult
for the Company to attract and retain such persons;


 


WHEREAS,
the Company’s Certificate of Incorporation and By-laws (the “Certificate of
Incorporation” and “By-laws,” respectively) require it to indemnify its
directors and officers to the fullest extent permitted by law and permit it to
make other indemnification arrangements and agreements;


 


WHEREAS,
the Company desires to provide Indemnitee with specific contractual assurance
of Indemnitee’s rights to full indemnification against litigation risks and
expenses (regardless, among other things, of any amendment to or revocation of
the Certificate of Incorporation or By-laws or any change in the ownership of
the Company or the composition of its Board of Directors);


 


WHEREAS,
the Company intends that this Agreement provide Indemnitee with greater
protection than that which is provided by the Company’s Certificate of
Incorporation and By-laws; and


 


WHEREAS, Indemnitee
is relying upon the rights afforded under this Agreement in continuing as a [director
/officer]of the Company.


 


NOW,
THEREFORE, in consideration of the promises and the covenants contained herein,
the Company and Indemnitee do hereby covenant and agree as follows:


 

















 


1.                                       Definitions.


 


(a)                                  “Corporate Status” describes the status of a person who is
serving or has served (i) as a director or officer of the Company, (ii) in
any capacity with respect to any employee benefit plan of the Company, or (iii) as
a director, partner, trustee, member, manager, shareholder, officer, employee,
or agent of any other Entity at the request of the Company.  For purposes of subsection (iii) of this
Section l(a), if Indemnitee is serving or has served as a director,
partner, trustee, member, manager, shareholder, officer, employee or agent of a
Subsidiary, Indemnitee shall be deemed to be serving at the request of the
Company.


 


(b)                                 “Entity” shall mean any corporation, partnership, limited
liability company, joint venture, trust, foundation, association, organization
or other legal entity.


 


(c)                                  “Expenses” shall mean all reasonable fees, costs and expenses
incurred by Indemnitee in connection with any Proceeding (as defined below)
(including in connection with investigating, being a witness in or defending
any Proceeding, or any preparation for any of the foregoing), including,
without limitation, attorneys’ fees, disbursements and retainers (including,
without limitation, any such fees, disbursements and retainers incurred by
Indemnitee pursuant to Section 11 or 12(c) below), fees and
disbursements of expert witnesses, private investigators and professional
advisors (including, without limitation, accountants and investment bankers),
court costs, transcript costs, fees and disbursements of experts, travel
expenses, duplicating, printing and binding costs, telephone and fax
transmission charges, postage, delivery services, secretarial services, and
other disbursements and expenses.


 


(d)                                 “Finally
Adjudicated” shall mean that there has been a final adjudication by
a court of competent jurisdiction from which there is no further right to
appeal.


 


(e)                                  “Indemnifiable Expenses,” “Indemnifiable
Liabilities” and “Indemnifiable Amounts”
shall have the meanings ascribed to those terms in Section 3(a) below.


 


(f)                                    “Liabilities” shall mean judgments, damages, liabilities,
losses, penalties, excise taxes, fines and amounts paid in settlement.


 


(g)                                 “Proceeding” shall mean any threatened, pending or completed
claim, action, suit, arbitration, alternate dispute resolution process,
investigation, administrative hearing, appeal, or any other proceeding, whether
civil, criminal, administrative, arbitrative or investigative, whether formal
or informal, including any inquiry which the Indemnitee reasonably believes
might lead to the institution of any of the foregoing and further including any
proceeding initiated by Indemnitee pursuant to Section 11 below to enforce
Indemnitee’s rights hereunder.


 


(h)                                 “Subsidiary” shall mean any corporation, partnership, limited
liability company, joint venture, trust or other Entity of which the Company
owns (either directly or through or together with another Subsidiary of the
Company) either (i) a general partner, managing member or other similar
interest or (ii) (A) 50% or more of the 


 


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voting power of the voting capital equity interests
of such corporation, partnership, limited liability company, joint venture or
other Entity, or (B) 50% or more of the outstanding capital stock or other
equity interests of such corporation, partnership, limited liability company,
joint venture or other Entity.


 


2.                                       Services of
Indemnitee.  In
consideration of the Company’s covenants and commitments hereunder, Indemnitee
agrees to serve and continue to serve as a [director/officer] of the
Company.  However, this Agreement shall
not impose any obligation on Indemnitee or the Company to continue Indemnitee’s
service to the Company beyond any period otherwise required by law or by other
agreements or commitments of the parties, if any.


 


3.                                       Agreement to
Indemnify.  The Company
agrees to indemnify Indemnitee as follows:


 


(a)                                  Proceedings
Other Than By or In the Right of the Company.  Subject to the exceptions contained in Section 4(a) below,
if Indemnitee was or is a party or is threatened to be made a party to any
Proceeding (other than an action by or in the right of the Company) by reason
of Indemnitee’s Corporate Status, Indemnitee shall be indemnified by the
Company against all Expenses and Liabilities incurred or paid by Indemnitee
(referred to herein as “Indemnifiable Expenses” and “Indemnifiable Liabilities,”
respectively, and collectively as “Indemnifiable Amounts”) in connection
therewith.


 


(b)                                 Proceedings By
or In the Right of the Company.  Subject to the exceptions contained in Section 4(b) below,
if Indemnitee was or is a party or is threatened to be made a party to any
Proceeding by or in the right of the Company by reason of Indemnitee’s
Corporate Status, Indemnitee shall be indemnified by the Company against
all Indemnifiable Expenses incurred or paid by Indemnitee in connection
therewith.


 


(c)                                  Conclusive
Presumption Regarding Rights to Indemnification.  In making any determination required to be
made under Delaware law or under this Agreement with respect to entitlement to
indemnification hereunder, the person, persons or entity making such
determination shall presume that Indemnitee is entitled to indemnification
under this Agreement if Indemnitee submitted a request therefor in accordance
with Section 7 below, and the Company shall have the burden of proof to overcome
that presumption in connection with the making by any person, persons or entity
of any determination contrary to that presumption.


 


4.                                       Exceptions to
Indemnification.  Indemnitee
shall be entitled to indemnification under Sections 3(a) and 3(b) above
in all circumstances other than with respect to any specific claim, issue or
matter involved in the Proceeding out of which Indemnitee’s claim for
indemnification has arisen (each such specific claim, issue or matter, a “Specific
Claim”) as follows:


 


(a)                                  Proceedings
Other Than By or In the Right of the Company.  If indemnification is requested under Section 3(a) above
and it has been Finally Adjudicated that, in 


 


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connection with a Specific Claim, Indemnitee
failed to act (i) in good faith and (ii) in a manner Indemnitee
reasonably believed to be in or not opposed to the best interests of the
Company, or, with respect to any criminal Proceeding, Indemnitee had
reasonable cause to believe that Indemnitee’s conduct was unlawful, Indemnitee
shall not be entitled to payment hereunder of any Indemnifiable Amounts
incurred or paid by Indemnitee by reason of such Specific Claim.


 


(b)                                 Proceedings By
or In the Right of the Company.  If indemnification is requested under Section 3(b) above
and


 


(i)            it has been
Finally Adjudicated that, in connection with a Specific Claim, Indemnitee
failed to act (A) in good faith and (B) in a manner Indemnitee
reasonably believed to be in or not opposed to the best interests of the Company, Indemnitee
shall not be entitled to payment hereunder of any Indemnifiable Expenses
incurred or paid by Indemnitee by reason of such Specific Claim; or


 


(ii)           it has been
Finally Adjudicated that Indemnitee is liable to the Company with respect to such
Specific Claim, Indemnitee shall not be entitled to payment hereunder of
any Indemnifiable Expenses incurred or paid by Indemnitee by reason of such
Specific Claim unless the Court of Chancery or another court in which such
Proceeding was brought shall determine upon application that, despite the
adjudication of liability, but in view of all the circumstances of the case, Indemnitee
is fairly and reasonably entitled to indemnification for such Indemnifiable
Expenses which such court shall deem proper; or


 


(iii)          it has been
Finally Adjudicated that Indemnitee is liable to the Company for an accounting
of profits made from the purchase or sale by the Indemnitee of securities of
the Company pursuant to the provisions of Section 16(b) of the
Securities Exchange Act of 1934, the rules and regulations promulgated
thereunder and amendments thereto or similar provisions of any federal, state
or local statutory law, Indemnitee shall not be entitled to payment of
Indemnifiable Expenses relating thereto hereunder.


 


(c)                                  Insurance
Proceeds.  To the
extent payment of Indemnifiable Amounts in connection with a Specific Claim is
actually made to the Indemnitee under a valid and collectible insurance policy
the premiums for which have been paid by the Company, Indemnitee shall not
be entitled to payment hereunder of Indemnifiable Amounts with respect to such
Specific Claim except to the extent that the amount of payment under such
insurance policy is less than such Indemnifiable Amounts.  Any fees, costs and expenses incurred or paid
by Indemnitee in enforcing Indemnitee’s rights under any liability insurance
policy paid for by the Company and insuring Indemnitee shall be considered an
Indemnifiable Expense hereunder.


 


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5.                                       Additional
Indemnity.  In addition
to, and without regard to any limitations on, the indemnification provided for
in Section 3 of this Agreement, the Company shall and hereby does
indemnify and hold harmless Indemnitee against all Expenses and Liabilities incurred
by Indemnitee or on Indemnitee’s behalf if, by reason of Indemnitee’s Corporate
Status, Indemnitee is, or is threatened to be made, a party to or
participant in any Proceeding (including a Proceeding by or in the right of the
Company), including, without limitation, all liability arising out of the
negligence or active or passive wrongdoing of Indemnitee.  The only limitation that shall exist upon the
Company’s obligations pursuant to this Agreement shall be that the Company
shall not be obligated to make any payment to Indemnitee that  has been Finally Adjudicated (under the
procedures, and subject to the presumptions, set forth in Sections 3, 9 and 11
hereof) to be unlawful.


 


6.                                       Contribution.


 


(a)                                  Whether or not
the indemnification provided in Sections 3 and 5 hereof is available, in
respect of any Proceeding in which the Company is jointly liable with
Indemnitee (or would be if joined in such Proceeding), the Company shall pay,
in the first instance, the entire amount of any judgment or settlement of such
Proceeding without requiring Indemnitee to contribute to such payment and the
Company hereby waives and relinquishes any right of contribution it may have
against Indemnitee. The Company shall not enter into any settlement of any
Proceeding in which the Company is jointly liable with Indemnitee (or would be
if joined in such Proceeding) unless such settlement provides for a full and
final release of all claims asserted against Indemnitee.


 


(b)                                 Without
diminishing or impairing the obligations of the Company set forth in Section 6(a) above,
if, for any reason, all or any portion of any judgment or settlement in any
Proceeding in which the Company is jointly liable with Indemnitee (or would be
if joined in such Proceeding) is paid or payable by Indemnitee, the Company
shall contribute to the amount of Indemnifiable Amounts paid or payable by
Indemnitee in proportion to the relative benefits received by the Company and
all officers, directors or employees of the Company, other than Indemnitee, who
are jointly liable with Indemnitee (or would be if joined in such Proceeding),
on the one hand, and Indemnitee, on the other hand, from the transaction or
events from which such Proceeding arose; provided, however, that the proportion
determined on the basis of relative benefit may, to the extent necessary to
conform to law, be further adjusted by reference to the relative fault of the
Company and all officers, directors or employees of the Company other than
Indemnitee who are jointly liable with Indemnitee (or would be if joined in
such Proceeding), on the one hand, and Indemnitee, on the other hand, in
connection with the transaction or events that resulted in such expenses,
judgments, fines or settlement amounts, as well as any other equitable
considerations which applicable law may require to be considered.  The relative fault of the Company and all
officers, directors or employees of the Company, other than Indemnitee, who are
jointly liable with Indemnitee (or would be if joined in such Proceeding), on
the one hand, and Indemnitee, on the other hand, shall be determined by
reference to, among other things, the degree to which their 


 


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actions were motivated by intent to gain personal
profit or advantage, the degree to which their liability is primary or
secondary and the degree to which their conduct is active or passive.


 


(c)                                  The Company
hereby agrees to fully indemnify and hold Indemnitee harmless from any claims
of contribution which may be brought by officers, directors or employees of the
Company, other than Indemnitee, who may be jointly liable with Indemnitee.


 


(d)                                 To the fullest
extent permissible under applicable law, if the indemnification provided for in
this Agreement is unavailable to Indemnitee for any reason whatsoever, the
Company, in lieu of indemnifying Indemnitee, shall contribute to the
Indemnifiable Amounts incurred by Indemnitee in such proportion as is deemed
fair and reasonable in light of all of the circumstances of such Proceeding in
order to reflect (i) the relative benefits received by the Company and
Indemnitee as a result of the event(s) and/or transaction(s) giving
cause to such Proceeding; and/or (ii) the relative fault of the Company
(and its directors, officers, employees and agents) and Indemnitee in
connection with such event(s) and/or transaction(s).


 


7.                                       Procedure for
Payment of Indemnifiable Amounts.  Indemnitee shall submit to the Company a
written request specifying the Indemnifiable Amounts for which Indemnitee seeks
payment under Section 3 above and the basis for the claim.  The Company shall pay such Indemnifiable
Amounts to Indemnitee within twenty (20) calendar days of receipt of the
request and receipt of the documentation referred to in the next sentence, as
applicable.  At the request of the
Company, Indemnitee shall furnish such documentation and information as
are reasonably available to Indemnitee and necessary to establish that
Indemnitee has incurred or paid such Indemnifiable Amounts.


 


8.                                       Indemnification
for Expenses of a Party Who is Wholly or Partly Successful.  Notwithstanding any other provision of this
Agreement, to the extent that Indemnitee is, by reason of Indemnitee’s
Corporate Status, a party to or otherwise the subject of, and is successful, on
the merits or otherwise, in, any Proceeding, Indemnitee shall be
indemnified against all Expenses reasonably incurred by Indemnitee or on
Indemnitee’s behalf in connection therewith. 
If Indemnitee is not wholly successful in such Proceeding but is
successful, on the merits or otherwise, as to one or more but less than all
claims, issues or matters in such Proceeding, the Company shall indemnify
Indemnitee against all Expenses reasonably incurred by Indemnitee or on
Indemnitee’s behalf in connection with each successfully resolved claim, issue
or matter.  For purposes of this
Agreement, the termination of any claim, issue or matter in such a Proceeding
by dismissal, with or without prejudice, by reason of settlement, judgment, order
or otherwise, shall be deemed to be a successful result as to such claim, issue
or matter.


 


9.                                       Effect of
Certain Resolutions.  The
termination of any Proceeding by judgment, order, settlement, conviction, or
upon a plea of nolo contendere or its equivalent shall not create a presumption
that Indemnitee did not act in good faith and in a manner which Indemnitee
reasonably believed to be in or not opposed to the best interests of the
Company or, with respect 


 


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to
any criminal Proceeding, had reasonable cause to believe that Indemnitee’s
action was unlawful.


 


10.                                 Agreement to Advance
Expenses: Undertaking.  The
Company shall advance all Expenses incurred by or on behalf of Indemnitee in
connection with any Proceeding, including a Proceeding by or in the right of
the Company, in which Indemnitee is involved by reason of Indemnitee’s
Corporate Status within twenty (20) calendar days after the receipt by the
Company of a written statement from Indemnitee requesting such advance or
advances from time to time, whether prior to or after final disposition of such
Proceeding.  To the extent required by
Delaware law, Indemnitee hereby undertakes to repay any and all of the
amount of Indemnifiable Expenses paid to Indemnitee if it is Finally
Adjudicated that Indemnitee is not entitled under this Agreement to
indemnification with respect to such Expenses. 
This undertaking is an unlimited general obligation of Indemnitee.


 


11.                                 Remedies of Indemnitee.


 


(a)                                  Adjudication.  In the event that the it should appear to
Indemnitee that the Company has failed to comply with any of its obligations
under this Agreement or in the event that the Company or any other person takes
or threatens to take any action to declare this Agreement void or
unenforceable, or institutes any action, suit or other proceeding designed to
deny, or to recover from, Indemnitee the benefits provided or intended to
be provided to Indemnitee hereunder, Indemnitee shall be entitled to an
adjudication in an appropriate court of the State of Delaware, or in any other
court of competent jurisdiction, of Indemnitee’s entitlement to such
indemnification.  Alternatively, the
Indemnitee at the Indemnitee’s option may seek an award in an arbitration to be
conducted by a single arbitrator in the State of Delaware pursuant to the rules of
the American Arbitration Association, such award to be made within twenty (20)
days following the filing of the demand for arbitration if the arbitration
relates to failure by the Company to advance expenses and otherwise within
sixty (60) days following the filing of the demand for arbitration.  Indemnitee shall commence such proceeding
seeking an adjudication or arbitration within one year following the date on
which Indemnitee first has the right to commence such proceeding or arbitration
pursuant to this Section 11(a).  The
Company shall not oppose Indemnitee’s right to seek any such adjudication or
award in arbitration.


 


(b)                                 Legal Fees and
Expenses.  It is the
intent of the Company that Indemnitee not be required to incur legal fees or
other Expenses associated with the interpretation, enforcement or defense of
Indemnitee’s rights under this Agreement by litigation or otherwise because the
cost and expense thereof would substantially detract from the benefits intended
to be extended to Indemnitee hereunder. 
Accordingly, if it should appear to Indemnitee that the Company has
failed to comply with any of its obligations under this Agreement or in the
event that the Company or any other person takes or threatens to take any action
to declare this Agreement void or unenforceable, or institutes any action, suit
or other proceeding designed to deny, or to recover from, Indemnitee the
benefits provided or intended to be provided to Indemnitee hereunder, the
Company irrevocably authorizes


 


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Indemnitee from time to time to retain counsel of
Indemnitee’s choice, at the expense of the Company as hereafter provided, to
advise and represent Indemnitee in connection with any such interpretation,
enforcement or defense, including without limitation the initiation or defense
of any action, suit or other proceeding, whether by or against the Company or
any director, officer, stockholder or other person affiliated with the Company,
in any jurisdiction.  Notwithstanding any
existing or prior attorney-client relationship between the Company and any
counsel, the Company irrevocably consents to Indemnitee’s entering into an
attorney-client relationship with such counsel, and in that connection the
Company and Indemnitee agree that a confidential relationship shall exist
between Indemnitee and such counsel. 
Without respect to whether Indemnitee prevails, in whole or in part, in
connection with any of the foregoing, the Company will pay and be solely
financially responsible for any and all Expenses incurred by the Indemnitee in
connection with any of the foregoing.


 


(c)                                  Burden of Proof.  In any action, suit or other proceeding
brought under Section 11(a) above to obtain payment by the Company of
any Indemnifiable Amounts, the Company shall have the burden of proving that
Indemnitee is not entitled to such payment hereunder.


 


(d)                                 Prior
Determinations Made Concerning Permissibility of Payment of Indemnifiable
Amounts.


 


(i)            The failure of
the Company (including its Board of Directors or any committee thereof, independent
legal counsel, or stockholders) to make a determination concerning the
permissibility of the payment of Indemnifiable Amounts or the advancement of
Indemnifiable Expenses under this Agreement shall not be a defense in any
action, suit or other proceeding brought under Section 11(a) above,
and shall not create a presumption that such payment or advancement is not
permissible.


 


(ii)           In the event
that the Company has made a determination that the payment of Indemnifiable
Amounts or the advancement of Indemnifiable Expenses under this Agreement is
not permissible and/or that the Indemnitee is not entitled to indemnification,
any action, suit or other proceeding brought under Section 11(a) above
shall be conducted in all respects as a de novo trial on the merits, and
Indemnitee shall not be prejudiced by reason of such adverse determination by
the Company.


 


(iii)          In the event
that the Company has made a determination that the payment of Indemnifiable
Amounts or the advancement of Indemnifiable Expenses under this Agreement is
permissible and/or that the Indemnitee is entitled to indemnification, the
Company shall be bound by such determination in any action, suit or other
proceeding brought under Section 11(a) above, absent (i) a
misstatement by Indemnitee of a material fact, or an omission of a material
fact necessary to make Indemnitee’s misstatement not materially misleading in
connection with the application for 


 


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indemnification, or (ii) a prohibition of such
indemnification under applicable law.


 


(iv)          Notwithstanding
anything in this Agreement to the contrary, no determination as to the
permissibility of the payment of Indemnifiable Amounts and/or the advancement
of Indemnifiable Expenses or as to the entitlement to indemnification under
this Agreement shall be required to be made prior to the final disposition of
the Proceeding.


 


(e)                                  The Company
shall be precluded from asserting in any action, suit or other proceeding
brought under Section 11(a) above that the procedures, presumptions
or other provisions of this Agreement are not valid, binding and enforceable
and shall stipulate in any such court that the Company is bound by all the
provisions of this Agreement.


 


12.                               Defense of the Underlying
Proceeding.


 


(a)                                 Notice by
Indemnitee.  Indemnitee
agrees to notify the Company promptly upon being served with any summons,
citation, subpoena, complaint, indictment, information, or other document
relating to any Proceeding which may result in the payment of Indemnifiable
Amounts or the advancement of Indemnifiable Expenses hereunder; provided,
however, that the failure to give any such notice shall not disqualify
Indemnitee from the right, or otherwise affect in any manner any right of
Indemnitee, to receive payments of Indemnifiable Amounts or advancements of
Indemnifiable Expenses unless the Company’s ability to defend in such
Proceeding is materially and adversely prejudiced thereby.


 


(b)                                 Defense by
Company.  Subject to the provisions of
the last sentence of this Section 12(b) and Section 12(c) below,
the Company shall have the right to defend Indemnitee in any Proceeding which
may give rise to the payment of Indemnifiable Amounts hereunder with counsel
reasonably satisfactory to the Indemnitee; provided, however, that the Company
shall notify Indemnitee of any such decision to defend within ten (10) calendar
days of receipt of notice of any such Proceeding under Section 12(a) above.  The Company shall not, without the prior
written consent of Indemnitee, consent to the entry of any judgment against
Indemnitee or enter into any settlement or compromise which (i) includes
an admission of fault of Indemnitee or (ii) does not include, as an
unconditional term thereof, the full release of Indemnitee from all liability
in respect of such Proceeding, which release shall be in form and substance
reasonably satisfactory to Indemnitee. 
This Section 12(b) shall not apply to a Proceeding brought by
Indemnitee under Section 11(a) above or to any counterclaims or
defenses of Indemnitee referred to in Section 20 below.


 


(c)                                  Indemnitee’s
Right to Counsel. 
Notwithstanding the provisions of Section 12(b) above, if in a
Proceeding to which Indemnitee is a party by reason of Indemnitee’s Corporate
Status, (i) Indemnitee reasonably concludes that he or she may have
separate defenses or counterclaims to assert with respect to any issue 


 


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which may be different from or in addition to those
of the Company or other defendants in such Proceeding, (ii) a conflict of
interest or potential conflict of interest exists between Indemnitee and the
Company or the representation of the Indemnitee by the Company would be
precluded under the applicable standards of professional conduct then prevailing,
or (iii) the Company fails to assume the defense of such Proceeding in a
timely manner, Indemnitee shall be entitled to be represented by separate
legal counsel of Indemnitee’s choice (but not more than one law firm plus, if
applicable, local counsel in respect of any one Proceeding) at the expense of
the Company.


 


13.                               Representations and
Warranties of the Company.  The
Company hereby represents and warrants to Indemnitee as follows:


 


(a)                                 Authority.  The Company has all necessary power and
authority to enter into, and be bound by the terms of, this Agreement, and the
execution, delivery and performance by the Company of the undertakings
contemplated by this Agreement have been duly authorized by all requisite
corporate action.


 


(b)                                 Enforceability.  This Agreement, when executed and delivered
by the Company in accordance with the provisions hereof, shall be a legal,
valid and binding obligation of the Company, enforceable against the Company in
accordance with its terms, except as such enforceability may be limited by
applicable bankruptcy, insolvency, moratorium, reorganization or similar laws
affecting the enforcement of creditors’ rights generally.


 


14.                               Insurance.  The Company shall, from time to time, make
the good faith determination whether or not it is practicable for the Company
to obtain and maintain a policy or policies of insurance with a reputable
insurance company providing the Indemnitee with coverage for losses from
wrongful acts or omissions.  For so long
as Indemnitee shall remain a [director/officer] of the Company and with respect
to any such prior service, in all policies of director and officer liability
insurance, Indemnitee shall be named as an insured in such a manner as to
provide Indemnitee the same rights and benefits as are accorded to the most
favorably insured of the Company’s officers and directors.


 


15.                               Contract Rights Not
Exclusive[; Third Party Indemnitors](1)


 


(a)                                 Except as
otherwise provided in Section 4(c) above, the rights to payment of
Indemnifiable Amounts and advancement of Indemnifiable Expenses provided by
this Agreement shall be in addition to, but not exclusive of, any other rights
which Indemnitee may have at any time under applicable law, the Company’s
Certificate of Incorporation or By-laws, or any other agreement, vote of
stockholders or directors (or a committee of directors), or otherwise, both as
to action in Indemnitee’s official capacity and as to action in any other
capacity as a result of Indemnitee’s serving as a [director/officer] of the
Company.


 






(1) Include
only for directors associated with a venture capital or private equity fund.


 


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(b)                                 [The Company hereby
acknowledges that Indemnitee may have certain rights to indemnification,
advancement of expenses and/or insurance provided  by third parties, including stockholders of
the Company (the “Third Party Indemnitors”). 
The Company hereby agrees:


 


(i)                                     that it is the indemnitor of
first resort (i.e., its obligations to Indemnitee are primary and any obligation
of the Third Party Indemnitors to advance expenses or to provide
indemnification for the same expenses or liabilities incurred by Indemnitee are
secondary);


 


(ii)                                  that it shall be required to
advance the full amount of Expenses incurred by Indemnitee and shall be liable
for the full amount of all Expenses and Liabilities to the extent legally
permitted and as required by the terms of the Certificate of Incorporation, the
By-laws and/or this Agreement, without regard to any rights Indemnitee may have
against the Third Party Indemnitors; and


 


(iii)                               that it irrevocably waives,
relinquishes and releases the Third Party Indemnitors from any and all claims
against the Third Party Indemnitors for contribution, subrogation or any other
recovery of any kind in respect thereof.


 


(iv)                              The Company further agrees
that no advancement or payment by the Third Party Indemnitors on behalf of
Indemnitee with respect to any claim for which Indemnitee has sought
indemnification from the Company shall affect the foregoing and the Third Party
Indemnitors shall have a right of contribution and/or be subrogated to the
extent of such advancement or payment to all of the rights of recovery of
Indemnitee against the Company.  The
Company agrees that the Third Party Indemnitors are express third party
beneficiaries of the terms of this Section 15(b).]


 


(c)                                  [Except as provided in Section 15(b) above,
t]/[T]he Company shall not be liable under this Agreement to make any payment
of amounts otherwise indemnifiable hereunder if and to the extent that
Indemnitee has otherwise actually received such payment under any insurance
policy, contract, agreement or otherwise.


 


(d)                                 [Except as provided in Section 15(b) above,
t]/[T]he Company’s obligation to indemnify or advance Expenses hereunder to Indemnitee
who is or was serving at the request of the Company as a director, partner,
trustee, member, manager, shareholder, officer, employee, or agent of any other
Entity shall be reduced by any amount Indemnitee has actually received as
indemnification or advancement of expenses from such other Entity.


 


16.                               Successors.  This Agreement shall be (a) binding upon
all successors and assigns of the Company (including any transferee of all or a
substantial portion of the business, stock 


 


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and/or
assets of the Company and any direct or indirect successor by merger or
consolidation or otherwise by operation of law) and (b) binding on and
shall inure to the benefit of the heirs, personal representatives, executors
and administrators of Indemnitee.  This
Agreement shall continue for the benefit of Indemnitee and such heirs, personal
representatives, executors and administrators after Indemnitee has ceased to
have Corporate Status with respect to acts and omissions by Indemnitee that
shall have occurred while Indemnitee had Corporate Status.


 


17.                               Subrogation.  [Except as provided in Section 15(b) above,
in] [In] the event of any payment of Indemnifiable Amounts under this
Agreement, the Company shall be subrogated to the extent of such payment to all
of the rights of contribution or recovery of Indemnitee against other persons,
and Indemnitee shall take, at the request and expense of the Company, all
reasonable action necessary to secure such rights, including the execution of
such documents as are necessary to enable the Company to bring suit to enforce
such rights.


 


18.                               Change in Law; Amendments.  To the extent that a change in Delaware law
(whether by statute or judicial decision) shall permit broader indemnification
or advancement of expenses than is provided under the terms of the Certificate
of Incorporation, the By-laws and/or this Agreement, Indemnitee shall be
entitled to such broader indemnification and advancements, and this Agreement
shall be deemed to be amended to such extent. 
The Company will not adopt any amendments to its Certificate of
Incorporation or By-Laws the effect of which would be to deny or diminish or
encumber Indemnitee’s right to indemnification under this Agreement.


 


19.                               Severability.  Whenever possible, each provision of this
Agreement shall be interpreted in such a manner as to be effective and valid
under applicable law, but if any provision of this Agreement, or any clause
thereof, shall be determined by a court of competent jurisdiction to be
illegal, invalid or unenforceable, in whole or in part, such provision or
clause shall be limited or modified in its application to the minimum extent
necessary to make such provision or clause valid, legal and enforceable, and
the remaining provisions and clauses of this Agreement shall remain fully
enforceable and binding on the parties.


 


20.                               Indemnitee as Plaintiff.  Except as provided in Section 11 above,
in the last sentence of Section 4(c) above and in the next sentence, Indemnitee
shall not be entitled to payment of Indemnifiable Amounts or advancement of
Indemnifiable Expenses with respect to any Proceeding brought by Indemnitee
against the Company, any Entity which it controls, any director or officer
thereof, or any third party, unless the Board of Directors of the Company has
consented to the initiation of such Proceeding. 
This Section shall not apply to counterclaims or affirmative
defenses asserted by Indemnitee in any Proceeding brought against Indemnitee.


 


21.                               Modifications and Waiver.  Except as provided in Section 18 above
with respect to changes in Delaware law which broaden the right of Indemnitee
to be indemnified by the Company, no supplement, modification or amendment of
this Agreement shall be binding unless executed in writing by each 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 of this Agreement (whether or not similar), nor shall such
waiver constitute a continuing waiver.


 


22.                               General Notices.  All notices, requests, demands and other
communications hereunder shall be in writing and shall be deemed to have been
duly given (a) when delivered by 


 


12

















 


hand,
(b) when transmitted by facsimile and receipt is acknowledged, (c) if
sent for next-day delivery by means of a nationally recognized overnight
courier service, on the next day after it is so sent, or (d) if mailed by
certified or registered mail with postage prepaid, on the third business day
after the date on which it is so mailed:


 


(i)                                     If to
Indemnitee, to:


 


 


 


(ii)                                  If to the
Company, to:


 


Ikaria, Inc.


Attn:
General Counsel


6
Route 173


Clinton,
NJ 08809


Fax:
908-238-6773


 


or
to such other address as may have been furnished in the same manner by any
party to the others.


 


23.                               Governing Law: Consent to
Jurisdiction; Service of Process.  This Agreement shall be governed by and
construed in accordance with the laws of the State of Delaware without regard
to its rules of conflict of laws. 
Each of the Company and the Indemnitee hereby irrevocably and
unconditionally consents to submit to the exclusive jurisdiction (except as
provided below) of the Court of Chancery of the State of Delaware and the courts
of the United States of America located in the State of Delaware (the “Delaware
Courts”) for any litigation arising out of or relating to this Agreement and
the transactions contemplated hereby (and agrees not to commence any litigation
relating thereto other than in such courts except (i) to enforce a
judgment or order rendered by any of the aforesaid courts or (ii) as
otherwise provided in Section 11(a)), waives any objection to the laying
of venue of any such litigation in the Delaware Courts and agrees not to plead
or claim in any Delaware Court that such litigation brought therein has been
brought in an inconvenient forum;.  Each
of the parties hereto agrees that service of process may also be made on such
party by prepaid certified mail with a proof of mailing receipt validated by
the United States Postal Service constituting evidence of valid service.  Service made pursuant to the preceding
sentence shall have the same legal force and effect as if served upon such
party personally within the State of Delaware.


 


[signature page follows]


 


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


 


	
   

  	
  IKARIA, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  
	
   

  	
   

  
	
   

  	
  INDEMNITEE

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  



 


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