Exhibit 10.20


 


INDEMNIFICATION AGREEMENT


 


This Agreement made and entered into this
         day of
                                      ,
(the “Agreement”), by and between 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, it is essential to the Company that
it be able to retain and attract as directors the most capable persons
available;


 


WHEREAS, increased corporate litigation has
subjected directors 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 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 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 of
the Company, (ii) in any capacity with respect to any employee benefit
plan of the Company, or (iii) as a director, partner, trustee, 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, 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,
defending, 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 9
or 10(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 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)           “Indemnifiable Expenses,” “Indemnifiable
Liabilities” and “Indemnifiable Amounts” shall have the meanings ascribed to
those terms in Section 3(a) below.


 


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


 


(f)            “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 9 below to enforce Indemnitee’s rights hereunder.


 


(g)           “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 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 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 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 5
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 by a court of competent jurisdiction that,
in 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)  subject to the
provisions of Section 6, it has been finally adjudicated by a court of competent
jurisdiction 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;


 


(ii)  it has been
finally adjudicated by a court of competent jurisdiction 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 by a court of competent jurisdiction 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 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.


 


5.             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 sixty (60) 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
is entitled to indemnification hereunder.


 

















 


6.             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.


 


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


 


8.             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 such 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 determined by a
court of competent jurisdiction that Indemnitee is not entitled under this
Agreement to indemnification with respect to such Expenses.  This undertaking is an unlimited general
obligation of Indemnitee.


 


9.             Remedies of
Indemnitee.


 


(a)           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 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.


 


(b)           Burden of Proof.  In any action, suit or other proceeding
brought under Section 9(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.


 


(c)           Failure to Act Not a Defense.  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 9(a) above, and shall not create a
presumption that such payment or advancement is not permissible.


 


10.          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 10(b) and Section 10(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 10(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 10(b) shall not apply
to a Proceeding brought by Indemnitee under Section 9(a) above or to
any counterclaims or defenses of Indemnitee referred to in Section 18
below.


 


(c)           Indemnitee’s Right to
Counsel.  Notwithstanding the provisions
of Section 10(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 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.


 


11.          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 of the undertakings contemplated by this
Agreement have been duly authorized by the Company.


 


(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.


 


12.          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 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.  Notwithstanding the foregoing, the Company
shall have no obligation to obtain or maintain such insurance if the Company
determines in good faith that such insurance is not reasonably available, if
the premium costs for such insurance are disproportionate to the amount of
coverage provided, or if the coverage provided by such 


 

















 


insurance is limited by exclusions so as to provide an insufficient
benefit. The Company shall promptly notify Indemnitee of any good faith
determination not to provide such coverage.


 


13.          Contract Rights
Not Exclusive.  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 of the Company.


 


14.          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 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.


 


15.          Subrogation.  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 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.


 


16.          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 ByLaws the
effect of which would be to deny or diminish or encumber Indemnitee’s right to
indemnification under this Agreement.


 


17.          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.


 


18.          Indemnitee as
Plaintiff.  Except as
provided in Section 9 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.


 


19.          Modifications
and Waiver.  Except as
provided in Section 16 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.


 


20.          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 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
Holdings, 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.


 


21.          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 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 except in such courts),
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]


 


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


 


 


	
   

  	
  IKARIA
  HOLDINGS, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  INDEMNITEE