Exhibit 10.1


 


INDEMNITY AGREEMENT


 


THIS AGREEMENT is made and entered into this 20th day of February, 2003
by and between Maxim Pharmaceuticals, Inc., a Delaware corporation (the
“Corporation”), and
               * 
(“Agent”).


 


RECITALS


 


WHEREAS, Agent performs a valuable service to the Corporation in
        *        
capacity as
         *         
of the Corporation;


 


WHEREAS, the stockholders of the Corporation have adopted bylaws (the
“Bylaws”) providing for the indemnification of the directors, officers,
employees and other agents of the Corporation, including persons serving at the
request of the Corporation in such capacities with other corporations or
enterprises, as authorized by the Delaware General Corporation Law, as amended
(the “Code”);


 


WHEREAS, the Bylaws and the Code, by their non-exclusive nature, permit
contracts between the Corporation and its agents, officers, employees and other
agents with respect to indemnification of such persons; and


 


WHEREAS, in order to induce Agent to continue to serve as
       *       
of the Corporation, the Corporation has determined and agreed to enter into
this Agreement with Agent;


 


NOW, THEREFORE, in consideration of Agent’s continued service as
     *      after the date
hereof, the parties hereto agree as follows:


 


AGREEMENT


 


1.                                      Services to the
Corporation.  Agent will serve, at the
will of the Corporation or under separate contract, if any such contract
exists, as      *      of the
Corporation or as a director, officer or other fiduciary of an affiliate of the
Corporation (including any employee benefit plan of the Corporation) faithfully
and to the best of his ability so long as he is duly elected and qualified in
accordance with the provisions of the Bylaws or other applicable charter
documents of the Corporation or such affiliate; provided, however, that Agent
may at any time and for any reason resign from such position (subject to any
contractual obligation that Agent may have assumed apart from this Agreement)
and that the Corporation or any affiliate shall have no obligation under this
Agreement to continue Agent in any such position.


 


2.                                      Indemnity of
Agent.  The Corporation hereby agrees to
hold harmless and indemnify Agent to the fullest extent authorized or permitted
by the provisions of the Bylaws and the Code, as the same may be amended from
time to time (but, only to the extent that such amendment permits the
Corporation to provide broader indemnification rights than the Bylaws or the
Code permitted prior to adoption of such amendment).


 


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3.                                      Additional
Indemnity.  In addition to and not in
limitation of the indemnification otherwise provided for herein, and subject
only to the exclusions set forth in Section 4 hereof, the Corporation
hereby further agrees to hold harmless and indemnify Agent:


 


(a)            against
any and all expenses (including attorneys’ fees), witness fees, damages,
judgments, fines and amounts paid in settlement and any other amounts that
Agent becomes legally obligated to pay because of any claim or claims made
against or by him in connection with any threatened, pending or completed
action, suit or proceeding, whether civil, criminal, arbitrational,
administrative or investigative (including an action by or in the right of the
Corporation) to which Agent is, was or at any time becomes a party, or is
threatened to be made a party, by reason of the fact that Agent is, was or at
any time becomes a director, officer, employee or other agent of Corporation,
or is or was serving or at any time serves at the request of the Corporation as
a director, officer, employee or other agent of another corporation,
partnership, joint venture, trust, employee benefit plan or other enterprise;
and


 


(b)            otherwise
to the fullest extent as may be provided to Agent by the Corporation under the
non-exclusivity provisions of the Code and Section 41 of the Bylaws.


 


4.                                      Limitations on
Additional Indemnity.  No indemnity
pursuant to Section 3 hereof shall be paid by the Corporation:


 


(a)            on
account of any claim against Agent solely for an accounting of profits made
from the purchase or sale by Agent of securities of the Corporation pursuant to
the provisions of Section 16(b) of the Securities Exchange Act of 1934 and
amendments thereto or similar provisions of any federal, state or local
statutory law;


 


(b)            on
account of Agent’s conduct that is established by a final judgment as knowingly
fraudulent or deliberately dishonest or that constituted willful misconduct;


 


(c)            on
account of Agent’s conduct that is established by a final judgment as
constituting a breach of Agent’s duty of loyalty to the Corporation or
resulting in any personal profit or advantage to which Agent was not legally
entitled;


 


(d)            for
which payment is actually made to Agent under a valid and collectible insurance
policy or under a valid and enforceable indemnity clause, bylaw or agreement,
except in respect of any excess beyond payment under such insurance, clause,
bylaw or agreement;


 


(e)            if
indemnification is not lawful (and, in this respect, both the Corporation and
Agent have been advised that the Securities and Exchange


 


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Commission believes that indemnification for
liabilities arising under the federal securities laws is against public policy
and is, therefore, unenforceable and that claims for indemnification should be
submitted to appropriate courts for adjudication); or


 


(f)              in
connection with any proceeding (or part thereof) initiated by Agent, or any
proceeding by Agent against the Corporation or its directors, officers,
employees or other agents, unless (i) such indemnification is expressly
required to be made by law, (ii) the proceeding was authorized by the
Board of Directors of the Corporation, (iii) such indemnification is
provided by the Corporation, in its sole discretion, pursuant to the powers
vested in the Corporation under the Code, or (iv) the proceeding is
initiated pursuant to Section 9 hereof.


 


5.                                      Continuation of
Indemnity.  All agreements and
obligations of the Corporation contained herein shall continue during the
period Agent is a director, officer, employee or other agent of the Corporation
(or is or was serving at the request of the Corporation as a director, officer,
employee or other agent of another corporation, partnership, joint venture,
trust, employee benefit plan or other enterprise) and shall continue thereafter
so long as Agent shall be subject to any possible claim or threatened, pending
or completed action, suit or proceeding, whether civil, criminal, arbitrational,
administrative or investigative, by reason of the fact that Agent was serving
in the capacity referred to herein.


 


6.                                      Partial
Indemnification.  Agent shall be
entitled under this Agreement to indemnification by the Corporation for a
portion of the expenses (including attorneys’ fees), witness fees, damages,
judgments, fines and amounts paid in settlement and any other amounts that
Agent becomes legally obligated to pay in connection with any action, suit or
proceeding referred to in Section 3 hereof even if not entitled hereunder
to indemnification for the total amount thereof, and the Corporation shall
indemnify Agent for the portion thereof to which Agent is entitled.


 


7.                                      Notification and
Defense of Claim.  Not later than thirty
(30) days after receipt by Agent of notice of the commencement of any action,
suit or proceeding, Agent will, if a claim in respect thereof is to be made
against the Corporation under this Agreement, notify the Corporation of the
commencement thereof; but the omission so to notify the Corporation will not
relieve it from any liability which it may have to Agent otherwise than under
this Agreement.  With respect to any
such action, suit or proceeding as to which Agent notifies the Corporation of
the commencement thereof:


 


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


 


(b)            except
as otherwise provided below, the Corporation may, at its option and jointly
with any other indemnifying party similarly notified and electing to assume
such defense, assume the defense thereof, with counsel reasonably satisfactory
to Agent.  After notice from the
Corporation to Agent of its election to assume the defense thereof, the
Corporation will not be liable to Agent under this Agreement for any legal or
other expenses


 


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subsequently incurred by Agent in connection
with the defense thereof except for reasonable costs of investigation or
otherwise as provided below.  Agent
shall have the right to employ separate counsel in such action, suit or
proceeding but the fees and expenses of such counsel incurred after notice from
the Corporation of its assumption of the defense thereof shall be at the
expense of Agent unless (i) the employment of counsel by Agent has been
authorized by the Corporation, (ii) Agent shall have reasonably concluded,
and so notified the Corporation, that there is an actual conflict of interest
between the Corporation and Agent in the conduct of the defense of such action
or (iii) the Corporation shall not in fact have employed counsel to assume
the defense of such action, in each of which cases the fees and expenses of
Agent’s separate counsel shall be at the expense of the Corporation.  The Corporation shall not be entitled to
assume the defense of any action, suit or proceeding brought by or on behalf of
the Corporation or as to which Agent shall have made the conclusion provided
for in clause (ii) above; and


 


(c)            the
Corporation shall not be liable to indemnify Agent under this Agreement for any
amounts paid in settlement of any action or claim effected without its written
consent, which shall not be unreasonably withheld.  The Corporation shall be permitted to settle any action except
that it shall not settle any action or claim in any manner which would impose
any penalty or limitation on Agent without Agent’s written consent, which may
be given or withheld in Agent’s sole discretion.


 


8.                                      Expenses.  The Corporation shall advance, prior to the
final disposition of any proceeding, promptly following request therefor, all
expenses incurred by Agent in connection with such proceeding upon receipt of
an undertaking by or on behalf of Agent to repay said amounts if it shall be
determined ultimately that Agent is not entitled to be indemnified under the provisions
of this Agreement, the Bylaws, the Code or otherwise.


 


9.                                      Enforcement.  Any right to indemnification or advances
granted by this Agreement to Agent shall be enforceable by or on behalf of
Agent in any court of competent jurisdiction if (i) the claim for
indemnification or advances is denied, in whole or in part, or (ii) no
disposition of such claim is made within ninety (90) days of request
therefor.  Agent, in such enforcement
action, if successful in whole or in part, shall be entitled to be paid also
the expense of prosecuting his claim. 
It shall be a defense to any action for which a claim for
indemnification is made under Section 3 hereof (other than an action
brought to enforce a claim for expenses pursuant to Section 8 hereof,
provided that the required undertaking has been tendered to the Corporation)
that Agent is not entitled to indemnification because of the limitations set
forth in Section 4 hereof.  Neither
the failure of the Corporation (including its Board of Directors or its
stockholders) to have made a determination prior to the commencement of such
enforcement action that indemnification of Agent is proper in the
circumstances, nor an actual determination by the Corporation (including its
Board of Directors or its stockholders) that such indemnification is improper
shall be a defense to the action or create a presumption that Agent is not
entitled to indemnification under this Agreement or otherwise.


 


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


 


11.                               Non-Exclusivity of
Rights.  The rights conferred on Agent
by this Agreement shall not be exclusive of any other right which Agent may
have or hereafter acquire under any statute, provision of the Corporation’s
Certificate of Incorporation or Bylaws, agreement, vote of stockholders or
directors, or otherwise, both as to action in his official capacity and as to
action in another capacity while holding office.


 


12.                               Survival of Rights.


 


(a)            The
rights conferred on Agent by this Agreement shall continue after Agent has
ceased to be a director, officer, employee or other agent of the Corporation or
to serve at the request of the Corporation as a director, officer, employee or
other agent of another corporation, partnership, joint venture, trust, employee
benefit plan or other enterprise and shall inure to the benefit of Agent’s
heirs, executors and administrators.


 


(b)            The
Corporation shall require any successor (whether direct or indirect, by
purchase, merger, consolidation or otherwise) to all or substantially all of
the business or assets of the Corporation, expressly to assume and agree to
perform this Agreement in the same manner and to the same extent that the
Corporation would be required to perform if no such succession had taken place.


 


13.                               Separability.  Each of the provisions of this Agreement is
a separate and distinct agreement and independent of the others, so that if any
provision hereof shall be held to be invalid for any reason, such invalidity or
unenforceability shall not affect the validity or enforceability of the other
provisions hereof.  Furthermore, if this
Agreement shall be invalidated in its entirety on any ground, then the
Corporation shall nevertheless indemnify Agent to the fullest extent provided
by the Bylaws, the Code or any other applicable law.


 


14.                               Governing Law.  This Agreement shall be interpreted and
enforced in accordance with the laws of the State of Delaware.


 


15.                               Amendment and
Termination.  No amendment,
modification, termination or cancellation of this Agreement shall be effective
unless in writing signed by both parties hereto.


 


16.                               Identical
Counterparts.  This Agreement may be
executed in one or more counterparts, each of which shall for all purposes be
deemed to be an original but all of which together shall constitute but one and
the same Agreement.  Only one such
counterpart need be produced to evidence the existence of this Agreement.


 


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17.                               Headings.  The headings of the sections of this
Agreement are inserted for convenience only and shall not be deemed to
constitute part of this Agreement or to affect the construction hereof.


 


18.                               Notices.  All notices, requests, demands and other
communications hereunder shall be in writing and shall be deemed to have been
duly given (i) upon delivery if delivered by hand to the party to whom
such communication was directed or (ii) upon the third business day after
the date on which such communication was mailed if mailed by certified or
registered mail with postage prepaid:


 


(a)            If
to Agent, at the address indicated on the signature page hereof.


 


(b)            If
to the Corporation, to:


 


MAXIM PHARMACEUTICALS, INC.

8899 University Center Lane, Suite 400

San Diego, CA 92122


 


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


 


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


 


	
   

  	
  MAXIM PHARMACEUTICALS, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/

  	
  Larry G. Stambaugh

  
	
   

  	
  Name:

  	
  Larry G. Stambaugh

  
	
   

  	
  Title:

  	
  Chief Executive Officer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  AGENT

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  [* see attached list]

  
	
   

  	
   

  
	
   

  	
  Address:

  
	
   

  	
   

  
	
   

  	
   

  



 


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MAXIM PHARMACEUTICALS, INC.

LIST OF PERSONS WHO HAVE ENTERED

INTO INDEMNITY AGREEMENTS


 


Larry
G. Stambaugh (Officer and Director)


Anthony
E. Altig (Officer)


Gary
E. Frashier (Director)


Kurt
R. Gehlsen (Officer)


Pam
G. Gleason (Officer)


Per-Olof
Mårtensson (Director)


Theodor
H. Heinrichs (Director)


F.
Duwaine Townsen (Director)


Robert
L. Zerbe (Director)


 


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