exv10w1



 






Exhibit 10.1




The following individuals have executed the Form of Indemnification Agreement attached
as Exhibit 10.1.


Ronald Barrett

Kenneth Cundy

William Dower

John Freund

Mark Gallop

Paul Goddard

William Harris

Jeryl Hilleman

Kenneth Nussbacher

Robert Overell

William Rieflin

Bryan Roberts

Pierre Tran

Wendell Wierenga



 









 








XENOPORT, INC.




INDEMNIFICATION AGREEMENT




     This Indemnification Agreement (“Agreement”) is effective as of ___by and between
XenoPort, Inc., a Delaware corporation (the “Company”), and ___(“Indemnitee”).



     WHEREAS, the Company desires to attract and retain the services of highly qualified
individuals, such as Indemnitee, to serve the Company and its related entities;



     WHEREAS, in order to induce Indemnitee to continue to provide services to the Company, the
Company wishes to provide for the indemnification of, and the advancement of expenses to,
Indemnitee to the maximum extent permitted by law;



     WHEREAS, the Company and Indemnitee recognize the continued difficulty in obtaining liability
insurance for the Company’s directors, officers, employees, agents and fiduciaries, the significant
increases in the cost of such insurance and the general reductions in the coverage of such
insurance;



     WHEREAS, the Company and Indemnitee further recognize the substantial increase in corporate
litigation in general, subjecting directors, officers, employees, agents and fiduciaries to
expensive litigation risks at the same time as the availability and coverage of liability insurance
has been severely limited; and



     WHEREAS, the Company and Indemnitee desire to continue to have in place the additional
protection provided by an indemnification agreement to provide indemnification and advancement of
expenses to the Indemnitee to the maximum extent permitted by Delaware law;



     WHEREAS, in view of the considerations set forth above, the Company desires that Indemnitee
shall be indemnified and advanced expenses by the Company as set forth herein;



     NOW, THEREFORE, the Company and Indemnitee hereby agree as set forth below.



     1. Certain Definitions.



          (a) “Change in Control” shall mean, and shall be deemed to have occurred if, on or
after the date of this Agreement, (i) any “person” (as such term is used in Sections 13(d) and
14(d) of the Securities Exchange Act of 1934, as amended) or group acting in concert, other than a
trustee or other fiduciary holding securities under an employee benefit plan of the Company acting
in such capacity or a corporation owned directly or indirectly by the stockholders of the Company
in substantially the same proportions as their ownership of stock of the Company, becomes the
“beneficial owner” (as defined in Rule 13d-3 under said Act), directly or indirectly, of securities
of the Company representing more than 50% of the total voting power represented by the Company’s
then outstanding Voting Securities, (ii) during any period of two consecutive years, individuals
who at the beginning of such period constitute the Board of Directors of the Company and any new
director whose election by the Board of Directors or nomination for election by the Company’s
stockholders was approved by a vote of at least two thirds (2/3) of the directors then still in
office who either were directors at the beginning of the period or whose election or nomination for
election was previously so approved, cease for any reason to constitute a majority thereof, (iii)
the stockholders of the Company approve a merger or consolidation of the Company with any other
corporation other than a merger or consolidation which would result in the Voting Securities of the
Company outstanding immediately prior thereto continuing
to represent (either by remaining outstanding or by being converted into Voting Securities of
the surviving



 









 




entity) at least 80% of the total voting power represented by the Voting Securities
of the Company or such surviving entity outstanding immediately after such merger or consolidation,
or (iv) the stockholders of the Company approve a plan of complete liquidation of the Company or an
agreement for the sale or disposition by the Company of (in one transaction or a series of related
transactions) all or substantially all of the Company’s assets.




          (b) “Claim” shall mean with respect to a Covered Event: any threatened, pending or completed
action, suit, proceeding or alternative dispute resolution mechanism, or any hearing, inquiry or
investigation that Indemnitee in good faith believes might lead to the institution of any such
action, suit, proceeding or alternative dispute resolution mechanism, whether civil, criminal,
administrative, investigative or other.



          (c) References to the “Company” shall include, in addition to XenoPort, Inc., any constituent
corporation (including any constituent of a constituent) absorbed in a consolidation or merger to
which XenoPort, Inc. (or any of its wholly owned subsidiaries) is a party which, if its separate
existence had continued, would have had power and authority to indemnify its directors, officers,
employees, agents or fiduciaries, so that if Indemnitee is or was a director, officer, employee,
agent or fiduciary of such constituent corporation, or is or was serving at the request of such
constituent corporation as a director, officer, employee, agent or fiduciary of another
corporation, partnership, joint venture, employee benefit plan, trust or other enterprise,
Indemnitee shall stand in the same position under the provisions of this Agreement with respect to
the resulting or surviving corporation as Indemnitee would have with respect to such constituent
corporation if its separate existence had continued.



          (d) “Covered Event” shall mean any event or occurrence related to the fact that Indemnitee is
or was a director, officer, employee, agent or fiduciary of the Company, or any subsidiary of the
Company, or is or was serving at the request of the Company as a director, officer, employee, agent
or fiduciary of another corporation, partnership, joint venture, trust or other enterprise, or by
reason of any action or inaction on the part of Indemnitee while serving in such capacity.



          (e) “Expenses” shall mean any and all expenses (including attorneys’ fees and all other costs,
expenses and obligations incurred in connection with investigating, defending, being a witness in
or participating in (including on appeal), or preparing to defend, to be a witness in or to
participate in, any action, suit, proceeding, alternative dispute resolution mechanism, hearing,
inquiry or investigation), judgments, fines, penalties and amounts paid in settlement (if such
settlement is approved in advance by the Company, which approval shall not be unreasonably
withheld) of any Claim and any federal, state, local or foreign taxes imposed on the Indemnitee as
a result of the actual or deemed receipt of any payments under this Agreement.



          (f) “Expense Advance” shall mean a payment to Indemnitee pursuant to Section 3 of Expenses in
advance of the settlement of or final judgement in any action, suit, proceeding or alternative
dispute resolution mechanism, hearing, inquiry or investigation that constitutes a Claim.



          (g) “Independent Legal Counsel” shall mean an attorney or firm of attorneys, selected in
accordance with the provisions of Section 2(d) hereof, who shall not have otherwise performed
services for



-3-









 




the Company or Indemnitee within the last three years (other than with respect to matters
concerning the rights of Indemnitee under this Agreement, or of other Indemnitees under similar
indemnity agreements).




          (h) References to “other enterprises” shall include employee benefit plans; references to
“fines” shall include any excise taxes assessed on Indemnitee with respect to an employee benefit
plan; and references to “serving at the request of the Company” shall include any service as a
director, officer, employee, agent or fiduciary of the Company which imposes duties on, or involves
services by, such director, officer, employee, agent or fiduciary with respect to an employee
benefit plan, its participants or its beneficiaries; and if Indemnitee acted in good faith and in a
manner Indemnitee reasonably believed to be in the interest of the participants and beneficiaries
of an employee benefit plan, Indemnitee shall be deemed to have acted in a manner “not opposed to
the best interests of the Company” as referred to in this Agreement.



          (i) “Reviewing Party” shall mean, subject to the provisions of Section 2(d), any person or
body appointed by the Board of Directors in accordance with applicable law to review the Company’s
obligations hereunder and under applicable law, which may include a member or members of the
Company’s Board of Directors, Independent Legal Counsel or any other person or body not a party to
the particular Claim for which Indemnitee is seeking indemnification.



          (j) “Section” refers to a section of this Agreement unless otherwise indicated.



          (k) “Voting Securities” shall mean any securities of the Company that vote generally in the
election of directors.



     2. Indemnification.



          (a) Indemnification of Expenses. Subject to the provisions of Section 2(b) below, the
Company shall indemnify Indemnitee for Expenses to the fullest extent permitted by law if
Indemnitee was or is or becomes a party to or witness or other participant in, or is threatened to
be made a party to or witness or other participant in, any Claim (whether by reason of or arising
in part out of a Covered Event), including all interest, assessments and other charges paid or
payable in connection with or in respect of such Expenses.



          (b) Review of Indemnification Obligations. Notwithstanding the foregoing, in the
event any Reviewing Party shall have determined (in a written opinion, in any case in which
Independent Legal Counsel is the Reviewing Party) that Indemnitee is not entitled to be indemnified
hereunder under applicable law, (i) the Company shall have no further obligation under Section 2(a)
to make any payments to Indemnitee not made prior to such determination by such Reviewing Party,
and (ii) the Company shall be entitled to be reimbursed by Indemnitee (who hereby agrees to
reimburse the Company) for all Expenses theretofore paid to Indemnitee to which Indemnitee is not
entitled hereunder under applicable law; provided, however, that if Indemnitee has
commenced or thereafter commences legal proceedings in a court of competent jurisdiction to secure
a determination that Indemnitee is entitled to be indemnified hereunder under applicable law, any
determination made by any Reviewing Party that Indemnitee is not entitled to be indemnified
hereunder under applicable law shall not be binding and Indemnitee shall not be required to
reimburse the Company for any Expenses theretofore paid in indemnifying Indemnitee until a final
judicial determination is made with respect



-4-









 




thereto (as to which all rights of appeal therefrom
have been exhausted or lapsed). Indemnitee’s obligation to reimburse the Company for any Expenses
shall be unsecured and no interest shall be charged thereon.




          (c) Indemnitee Rights on Unfavorable Determination; Binding Effect. If any Reviewing
Party determines that Indemnitee substantively is not entitled to be indemnified hereunder in whole
or in part under applicable law, Indemnitee shall have the right to commence litigation seeking an
initial determination by the court or challenging any such determination by such Reviewing Party or
any aspect thereof, including the legal or factual bases therefor, and, subject to the provisions
of Section 15, the Company hereby consents to service of process and to appear in any such
proceeding. Absent such litigation, any determination by any Reviewing Party shall be conclusive
and binding on the Company and Indemnitee.



          (d) Selection of Reviewing Party; Change in Control. If there has not been a Change
in Control, any Reviewing Party shall be selected by the Board of Directors, and if there has been
such a Change in Control (other than a Change in Control which has been approved by a majority of
the Company’s Board of Directors who were directors immediately prior to such Change in Control),
any Reviewing Party with respect to all matters thereafter arising concerning the rights of
Indemnitee to indemnification of Expenses under this Agreement or any other agreement or under the
Company’s Certificate of Incorporation or Bylaws as now or hereafter in effect, or under any other
applicable law, if desired by Indemnitee, shall be Independent Legal Counsel selected by Indemnitee
and approved by the Company (which approval shall not be unreasonably withheld). Such counsel,
among other things, shall render its written opinion to the Company and Indemnitee as to whether
and to what extent Indemnitee would be entitled to be indemnified hereunder under applicable law
and the Company agrees to abide by such opinion. The Company agrees to pay the reasonable fees of
the Independent Legal Counsel referred to above and to indemnify fully such counsel against any and
all expenses (including attorneys’ fees), claims, liabilities and damages arising out of or
relating to this Agreement or its engagement pursuant hereto. Notwithstanding any other provision
of this Agreement, the Company shall not be required to pay Expenses of more than one Independent
Legal Counsel in connection with all matters concerning a single Indemnitee, and such Independent
Legal Counsel shall be the Independent Legal Counsel for any or all other Indemnitees unless (i)
the employment of separate counsel by one or more Indemnitees has been previously authorized by the
Company in writing, or (ii) an Indemnitee shall have provided to the Company a written statement
that such Indemnitee has reasonably concluded that there may be a conflict of interest between such
Indemnitee and the other Indemnitees with respect to the matters arising under this Agreement.



          (e) Mandatory Payment of Expenses. Notwithstanding any other provision of this
Agreement other than Section 10 hereof, to the extent that Indemnitee has been successful on the
merits or otherwise, including, without limitation, the dismissal of an action without prejudice,
in defense of any Claim, Indemnitee shall be indemnified against all Expenses incurred by
Indemnitee in connection therewith.



     3. Expense Advances.



          (a) Obligation to Make Expense Advances. Upon receipt of a written undertaking by or
on behalf of the Indemnitee to repay such amounts if it shall ultimately be determined that the
Indemnitee is not entitled to be indemnified therefor by the Company hereunder under applicable
law, the Company shall make Expense Advances to Indemnitee.



-5-









 





          (b) Form of Undertaking. Any obligation to repay any Expense Advances hereunder
pursuant to a written undertaking by the Indemnitee shall be unsecured and no interest shall be
charged thereon.



          (c) Determination of Reasonable Expense Advances. The parties agree that for the
purposes of any Expense Advance for which Indemnitee has made written demand to the Company in
accordance with this Agreement, all Expenses included in such Expense Advance that are certified by
affidavit of Indemnitee’s counsel as being reasonable shall be presumed conclusively to be
reasonable.



     4. Procedures for Indemnification and Expense Advances.



          (a) Timing of Payments. All payments of Expenses (including without limitation
Expense Advances) by the Company to the Indemnitee pursuant to this Agreement shall be made to the
fullest extent permitted by law as soon as practicable after written demand by Indemnitee therefor
is presented to the Company, but in no event later than thirty (30) business days after such
written demand by Indemnitee is presented to the Company, except in the case of Expense Advances,
which shall be made no later than ten (10) business days after such written demand by Indemnitee is
presented to the Company.



          (b) Notice/Cooperation by Indemnitee. Indemnitee shall, as a condition precedent to
Indemnitee’s right to be indemnified or Indemnitee’s right to receive Expense Advances under this
Agreement, give the Company notice in writing as soon as practicable of any Claim made against
Indemnitee for which indemnification will or could be sought under this Agreement. Notice to the
Company shall be directed to the Chief Executive Officer of the Company at the address shown on the
signature page of this Agreement (or such other address as the Company shall designate in writing
to Indemnitee). In addition, Indemnitee shall give the Company such information and cooperation as
it may reasonably require and as shall be within Indemnitee’s power.



          (c) No Presumptions; Burden of Proof. For purposes of this Agreement, the termination
of any Claim by judgment, order, settlement (whether with or without court approval) or conviction,
or upon a plea of nolo contendere, or its equivalent, shall not create a presumption that
Indemnitee did not meet any particular standard of conduct or have any particular belief or that a
court has determined that indemnification is not permitted by this Agreement or applicable law. In
addition, neither the failure of any Reviewing Party to have made a determination as to whether
Indemnitee has met any particular standard of conduct or had any particular belief, nor an actual
determination by any Reviewing Party that Indemnitee has not met such standard of conduct or did
not have such belief, prior to the commencement of legal proceedings by Indemnitee to secure a
judicial determination that Indemnitee should be indemnified under this Agreement under applicable
law, shall be a defense to Indemnitee’s claim or create a presumption that Indemnitee has not met
any particular standard of conduct or did not have any particular belief. In connection with any
determination by any Reviewing Party or otherwise as to whether the Indemnitee is entitled to be
indemnified hereunder under applicable law, the burden of proof shall be on the Company to
establish that Indemnitee is not so entitled.



          (d) Notice to Insurers. If, at the time of the receipt by the Company of a notice of
a Claim pursuant to Section 4(b) hereof, the Company has liability insurance in effect which may
cover such Claim,



-6-









 




the Company shall give prompt notice of the commencement of such Claim to the
insurers in accordance with the procedures set forth in the respective policies. The Company shall
thereafter take all necessary or desirable action to cause such insurers to pay, on behalf of the
Indemnitee, all amounts payable as a result of such Claim in accordance with the terms of such
policies.




          (e) Selection of Counsel. In the event the Company shall be obligated hereunder to
provide indemnification for or make any Expense Advances with respect to the Expenses of any Claim,
the Company, if appropriate, shall be entitled to assume the defense of such Claim with counsel
approved by Indemnitee (which approval shall not be unreasonably withheld) upon the delivery to
Indemnitee of written notice of the Company’s election to do so. After delivery of such notice,
approval of such counsel by Indemnitee and the retention of such counsel by the Company, the
Company will not be liable to Indemnitee under this Agreement for any fees or expenses of separate
counsel subsequently retained by or on behalf of Indemnitee with respect to the same Claim;
provided that, (i) Indemnitee shall have the right to employ Indemnitee’s separate counsel in any
such Claim at Indemnitee’s expense and (ii) if (A) the employment of separate counsel by Indemnitee
has been previously authorized by the Company, (B) Indemnitee shall have reasonably concluded that
there may be a conflict of interest between the Company and Indemnitee in the conduct of any such
defense, or (C) the Company shall not continue to retain such counsel to defend such Claim, then
the fees and expenses of Indemnitee’s separate counsel shall be Expenses for which Indemnitee may
receive indemnification or Expense Advances hereunder.



     5. Additional Indemnification Rights; Nonexclusivity.



          (a) Scope. The Company hereby agrees to indemnify the Indemnitee to the fullest
extent permitted by law, notwithstanding that such indemnification is not specifically authorized
by the other provisions of this Agreement, the Company’s Certificate of Incorporation, the
Company’s Bylaws or by statute. In the event of any change after the date of this Agreement in any
applicable law, statute or rule which expands the right of a Delaware corporation to indemnify a
member of its board of directors or an officer, employee, agent or fiduciary, it is the intent of
the parties hereto that Indemnitee shall enjoy by this Agreement the greater benefits afforded by
such change. In the event of any change in any applicable law, statute or rule which narrows the
right of a Delaware corporation to indemnify a member of its board of directors or an officer,
employee, agent or fiduciary, such change, to the extent not otherwise required by such law,
statute or rule to be applied to this Agreement, shall have no effect on this Agreement or the
parties’ rights and obligations hereunder except as set forth in Section 10(a) hereof.



          (b) Nonexclusivity. The indemnification and the payment of Expense Advances provided
by this Agreement shall be in addition to any rights to which Indemnitee may be entitled under the
Company’s Certificate of Incorporation, its Bylaws, any other agreement, any vote of stockholders
or disinterested directors, the General Corporation Law of the State of Delaware, or otherwise.
The indemnification and the payment of Expense Advances provided under this Agreement shall
continue as to Indemnitee for any action taken or not taken while serving in an indemnified
capacity even though subsequent thereto Indemnitee may have ceased to serve in such capacity.



     6. No Duplication of Payments. The Company shall not be liable under this Agreement
to make any payment in connection with any Claim made against Indemnitee to the extent Indemnitee
has otherwise



-7-









 




actually received payment (under any insurance policy, provision of the Company’s
Certificate of Incorporation, Bylaws or otherwise) of the amounts otherwise payable hereunder.




     7. Partial Indemnification. If Indemnitee is entitled under any provision of this
Agreement to indemnification by the Company for some or a portion of Expenses incurred in
connection with any Claim,
but not, however, for all of the total amount thereof, the Company shall nevertheless
indemnify Indemnitee for the portion of such Expenses to which Indemnitee is entitled.



     8. Mutual Acknowledgment. Both the Company and Indemnitee acknowledge that in certain
instances, federal law or applicable public policy may prohibit the Company from indemnifying its
directors, officers, employees, agents or fiduciaries under this Agreement or otherwise.
Indemnitee understands and acknowledges that the Company has undertaken or may be required in the
future to undertake with the Securities and Exchange Commission to submit the question of
indemnification to a court in certain circumstances for a determination of the Company’s right
under public policy to indemnify Indemnitee.



     9. Liability Insurance. To the extent the Company maintains liability insurance
applicable to directors, officers, employees, agents or fiduciaries, Indemnitee shall be covered by
such policies in such a manner as to provide Indemnitee the same rights and benefits as are
provided to the most favorably insured of the Company’s directors, if Indemnitee is a director; or
of the Company’s officers, if Indemnitee is not a director of the Company but is an officer; or of
the Company’s key employees, agents or fiduciaries, if Indemnitee is not an officer or director but
is a key employee, agent or fiduciary.



     10. Exceptions. Notwithstanding any other provision of this Agreement, the Company
shall not be obligated pursuant to the terms of this Agreement:



          (a) Excluded Action or Omissions. To indemnify or make Expense Advances to Indemnitee
with respect to Claims arising out of acts, omissions or transactions for which Indemnitee is
prohibited from receiving indemnification under applicable law.



          (b) Claims Initiated by Indemnitee. To indemnify or make Expense Advances to
Indemnitee with respect to Claims initiated or brought voluntarily by Indemnitee and not by way of
defense, counterclaim or crossclaim, except (i) with respect to actions or proceedings brought to
establish or enforce a right to indemnification under this Agreement or any other agreement or
insurance policy or under the Company’s Certificate of Incorporation or Bylaws now or hereafter in
effect relating to Claims for Covered Events, (ii) in specific cases if the Board of Directors has
approved the initiation or bringing of such Claim, or (iii) as otherwise required under Section 145
of the Delaware General Corporation Law, regardless of whether Indemnitee ultimately is determined
to be entitled to such indemnification, Expense Advances, or insurance recovery, as the case may
be.



          (c) Lack of Good Faith. To indemnify Indemnitee for any Expenses incurred by the
Indemnitee with respect to any action instituted (i) by Indemnitee to enforce or interpret this
Agreement, if a court having jurisdiction over such action determines as provided in Section 13
that each of the material assertions made by the Indemnitee as a basis for such action was not made
in good faith or was frivolous, or (ii) by or in the name of the Company to enforce or interpret
this Agreement, if a court having jurisdiction



-8-









 




over such action determines as provided in Section
13 that each of the material defenses asserted by Indemnitee in such action was made in bad faith
or was frivolous.




          (d) Claims Under Section 16(b). To indemnify Indemnitee for Expenses and the payment
of profits arising from the purchase and sale by Indemnitee of securities in violation of Section
16(b) of the Securities Exchange Act of 1934, as amended, or any similar successor statute.



     11. Counterparts. This Agreement may be executed in one or more counterparts, each of
which shall constitute an original.



     12. Binding Effect; Successors and Assigns. This Agreement shall be binding upon and
inure to the benefit of and be enforceable by the parties hereto and their respective successors,
assigns (including any direct or indirect successor by purchase, merger, consolidation or otherwise
to all or substantially all of the business or assets of the Company), spouses, heirs and personal
and legal representatives. The Company shall require and cause any successor (whether direct or
indirect, and whether by purchase, merger, consolidation or otherwise) to all, substantially all,
or a substantial part, of the business or assets of the Company, by written agreement in form and
substance satisfactory to Indemnitee, expressly to assume and agree to perform this Agreement in
the same manner and to the same extent that the Company would be required to perform if no such
succession had taken place. This Agreement shall continue in effect regardless of whether
Indemnitee continues to serve as a director, officer, employee, agent or fiduciary (as applicable)
of the Company or of any other enterprise at the Company’s request.



     13. Expenses Incurred in Action Relating to Enforcement or Interpretation. In the
event that any action is instituted by Indemnitee under this Agreement or under any liability
insurance policies maintained by the Company to enforce or interpret any of the terms hereof or
thereof, Indemnitee shall be entitled to be indemnified for all Expenses incurred by Indemnitee
with respect to such action (including without limitation attorneys’ fees), regardless of whether
Indemnitee is ultimately successful in such action, unless as a part of such action a court having
jurisdiction over such action makes a final judicial determination (as to which all rights of
appeal therefrom have been exhausted or lapsed) that each of the material assertions made by
Indemnitee as a basis for such action was not made in good faith or was frivolous; provided,
however, that until such final judicial determination is made, Indemnitee shall be entitled under
Section 3 to receive payment of Expense Advances hereunder with respect to such action. In the
event of an action instituted by or in the name of the Company under this Agreement to enforce or
interpret any of the terms of this Agreement, Indemnitee shall be entitled to be indemnified for
all Expenses incurred by Indemnitee in defense of such action (including without limitation costs
and expenses incurred with respect to Indemnitee’s counterclaims and cross-claims made in such
action), unless as a part of such action a court having jurisdiction over such action makes a final
judicial determination (as to which all rights of appeal therefrom have been exhausted or lapsed)
that each of the material defenses asserted by Indemnitee in such action was made in bad faith or
was frivolous; provided, however, that until such final judicial determination is made, Indemnitee
shall be entitled under Section 3 to receive payment of Expense Advances hereunder with respect to
such action.



     14. Period of Limitations. No legal action shall be brought and no cause of action
shall be asserted by or in the right of the Company against Indemnitee, Indemnitee’s estate,
spouse, heirs, executors or personal or



-9-









 




legal representatives after the expiration of two years
from the date of accrual of such cause of action, and any claim or cause of action of the Company
shall be extinguished and deemed released unless asserted by the timely filing of a legal action
within such two year period; provided, however, that if any shorter period of
limitations is otherwise applicable to any such cause of action, such shorter period shall govern.




     15. Notice. All notices, requests, demands and other communications under this
Agreement shall be in writing and shall be deemed duly given (i) if delivered by hand and signed
for by the party addressed, on
the date of such delivery, or (ii) if mailed by domestic certified or registered mail with
postage prepaid, on the third business day after the date postmarked. Addresses for notice to
either party are as shown on the signature page of this Agreement, or as subsequently modified by
written notice.



     16. Consent to Jurisdiction. The Company and Indemnitee each hereby irrevocably
consent to the jurisdiction of the courts of the State of Delaware for all purposes in connection
with any action or proceeding which arises out of or relates to this Agreement and agree that any
action instituted under this Agreement shall be commenced, prosecuted and continued only in the
Court of Chancery of the State of Delaware in and for New Castle County, which shall be the
exclusive and only proper forum for adjudicating such a claim.



     17. Severability. The provisions of this Agreement shall be severable in the event
that any of the provisions hereof (including any provision within a single section, paragraph or
sentence) are held by a court of competent jurisdiction to be invalid, void or otherwise
unenforceable, and the remaining provisions shall remain enforceable to the fullest extent
permitted by law. Furthermore, to the fullest extent possible, the provisions of this Agreement
(including without limitation each portion of this Agreement containing any provision held to be
invalid, void or otherwise unenforceable, that is not itself invalid, void or unenforceable) shall
be construed so as to give effect to the intent manifested by the provision held invalid, illegal
or unenforceable.



     18. Choice of Law. This Agreement, and all rights, remedies, liabilities, powers and
duties of the parties to this Agreement, shall be governed by and construed in accordance with the
laws of the State of Delaware as applied to contracts between Delaware residents entered into and
to be performed entirely in the State of Delaware without regard to principles of conflicts of
laws.



     19. Subrogation. In the event of payment under this Agreement, the Company shall be
subrogated to the extent of such payment to all of the rights of recovery of Indemnitee, who shall
execute all documents required and shall do all acts that may be necessary to secure such rights
and to enable the Company effectively to bring suit to enforce such rights.



     20. Amendment and Termination. No amendment, modification, termination or
cancellation of this Agreement shall be effective unless it is in writing signed by both the
parties hereto. No waiver of any of the provisions of this Agreement shall be deemed to be or
shall constitute a waiver of any other provisions hereof (whether or not similar), nor shall such
waiver constitute a continuing waiver.



     21. Integration and Entire Agreement. This Agreement sets forth the entire
understanding between the parties hereto and supersedes and merges all previous written and oral
negotiations, commitments, understandings and agreements relating to the subject matter hereof
between the parties hereto.



-10-









 





     22. No Construction as Employment Agreement. Nothing contained in this Agreement
shall be construed as giving Indemnitee any right to be retained in the employ of the Company or
any of its subsidiaries or affiliated entities.



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




	 	 	 	 	 	 	 
	XENOPORT, INC.	 	 	 	AGREED TO AND ACCEPTED
	 
	 	 	 	 	 	 
	

	 	 	 	 	 	INDEMNITEE:
	By:
	 	 	 	 	 	 
	

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	Print Name:
	 	 	 	 	 	 
	

	 	 
	 	 	 	 
	 
	 	 	 	 	 	 
	Title:
	 	 	 	 	 	 
	

	 	 	 	 	 	 
	Address:

	 	3410 Central Expressway	 	 	 	 
	

	 	Santa Clara, CA 95051	 	 	 	 






-11-