**Exhibit 10.1**

 

INDEMNITY AGREEMENT

 

THIS AGREEMENT is made and entered into this 20th day of February, 2003by 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 therequest of the Corporation in such capacities with other corporations orenterprises, as authorized by the Delaware General Corporation Law, as amended(the “Code”);

 

WHEREAS, the Bylaws and the Code, by their non-exclusive nature, permitcontracts between the Corporation and its agents, officers, employees and otheragents 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 intothis Agreement with Agent;

 

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

 

AGREEMENT

 

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

 

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

 

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**3.**                                      AdditionalIndemnity.  In addition to and not inlimitation of the indemnification otherwise provided for herein, and subjectonly to the exclusions set forth in Section 4 hereof, the Corporationhereby further agrees to hold harmless and indemnify Agent:

 

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

 

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

 

**4.**                                      Limitations onAdditional Indemnity.  No indemnitypursuant to Section 3 hereof shall be paid by the Corporation:

 

**(a)****           **onaccount of any claim against Agent solely for an accounting of profits madefrom the purchase or sale by Agent of securities of the Corporation pursuant tothe provisions of Section 16(b) of the Securities Exchange Act of 1934 andamendments thereto or similar provisions of any federal, state or localstatutory law;

 

**(b)****           **onaccount of Agent’s conduct that is established by a final judgment as knowinglyfraudulent or deliberately dishonest or that constituted willful misconduct;

 

**(c)****           **onaccount of Agent’s conduct that is established by a final judgment asconstituting a breach of Agent’s duty of loyalty to the Corporation orresulting in any personal profit or advantage to which Agent was not legallyentitled;

 

**(d)****           **forwhich payment is actually made to Agent under a valid and collectible insurancepolicy 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)****           **ifindemnification is not lawful (and, in this respect, both the Corporation andAgent have been advised that the Securities and Exchange

 

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Commission believes that indemnification forliabilities arising under the federal securities laws is against public policyand is, therefore, unenforceable and that claims for indemnification should besubmitted to appropriate courts for adjudication); or

 

**(f)****             **inconnection with any proceeding (or part thereof) initiated by Agent, or anyproceeding by Agent against the Corporation or its directors, officers,employees or other agents, unless (i) such indemnification is expresslyrequired to be made by law, (ii) the proceeding was authorized by theBoard of Directors of the Corporation, (iii) such indemnification isprovided by the Corporation, in its sole discretion, pursuant to the powersvested in the Corporation under the Code, or (iv) the proceeding isinitiated pursuant to Section 9 hereof.

 

**5.**                                      Continuation ofIndemnity.  All agreements andobligations of the Corporation contained herein shall continue during theperiod 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 thereafterso long as Agent shall be subject to any possible claim or threatened, pendingor completed action, suit or proceeding, whether civil, criminal, arbitrational,administrative or investigative, by reason of the fact that Agent was servingin the capacity referred to herein.

 

**6.**                                      PartialIndemnification.  Agent shall beentitled under this Agreement to indemnification by the Corporation for aportion of the expenses (including attorneys’ fees), witness fees, damages,judgments, fines and amounts paid in settlement and any other amounts thatAgent becomes legally obligated to pay in connection with any action, suit orproceeding referred to in Section 3 hereof even if not entitled hereunderto indemnification for the total amount thereof, and the Corporation shallindemnify Agent for the portion thereof to which Agent is entitled.

 

**7.**                                      Notification andDefense 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 madeagainst the Corporation under this Agreement, notify the Corporation of thecommencement thereof; but the omission so to notify the Corporation will notrelieve it from any liability which it may have to Agent otherwise than underthis Agreement.  With respect to anysuch action, suit or proceeding as to which Agent notifies the Corporation ofthe commencement thereof:

 

**(a)****           **theCorporation will be entitled to participate therein at its own expense;

 

**(b)****           **exceptas otherwise provided below, the Corporation may, at its option and jointlywith any other indemnifying party similarly notified and electing to assumesuch defense, assume the defense thereof, with counsel reasonably satisfactoryto Agent.  After notice from theCorporation to Agent of its election to assume the defense thereof, theCorporation will not be liable to Agent under this Agreement for any legal orother expenses

 

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subsequently incurred by Agent in connectionwith the defense thereof except for reasonable costs of investigation orotherwise as provided below.  Agentshall have the right to employ separate counsel in such action, suit orproceeding but the fees and expenses of such counsel incurred after notice fromthe Corporation of its assumption of the defense thereof shall be at theexpense of Agent unless (i) the employment of counsel by Agent has beenauthorized by the Corporation, (ii) Agent shall have reasonably concluded,and so notified the Corporation, that there is an actual conflict of interestbetween the Corporation and Agent in the conduct of the defense of such actionor (iii) the Corporation shall not in fact have employed counsel to assumethe defense of such action, in each of which cases the fees and expenses ofAgent’s separate counsel shall be at the expense of the Corporation.  The Corporation shall not be entitled toassume the defense of any action, suit or proceeding brought by or on behalf ofthe Corporation or as to which Agent shall have made the conclusion providedfor in clause (ii) above; and

 

**(c)****           **theCorporation shall not be liable to indemnify Agent under this Agreement for anyamounts paid in settlement of any action or claim effected without its writtenconsent, which shall not be unreasonably withheld.  The Corporation shall be permitted to settle any action exceptthat it shall not settle any action or claim in any manner which would imposeany penalty or limitation on Agent without Agent’s written consent, which maybe given or withheld in Agent’s sole discretion.

 

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

 

**9.**                                      Enforcement.  Any right to indemnification or advancesgranted by this Agreement to Agent shall be enforceable by or on behalf ofAgent in any court of competent jurisdiction if (i) the claim forindemnification or advances is denied, in whole or in part, or (ii) nodisposition of such claim is made within ninety (90) days of requesttherefor.  Agent, in such enforcementaction, if successful in whole or in part, shall be entitled to be paid alsothe expense of prosecuting his claim. It shall be a defense to any action for which a claim forindemnification is made under Section 3 hereof (other than an actionbrought 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 setforth in Section 4 hereof.  Neitherthe failure of the Corporation (including its Board of Directors or itsstockholders) to have made a determination prior to the commencement of suchenforcement action that indemnification of Agent is proper in thecircumstances, nor an actual determination by the Corporation (including itsBoard of Directors or its stockholders) that such indemnification is impropershall be a defense to the action or create a presumption that Agent is notentitled to indemnification under this Agreement or otherwise.

 

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**10.**                               Subrogation.  In the event of payment under thisAgreement, the Corporation shall be subrogated to the extent of such payment toall of the rights of recovery of Agent, who shall execute all documentsrequired and shall do all acts that may be necessary to secure such rights andto enable the Corporation effectively to bring suit to enforce such rights.

 

**11.**                               Non-Exclusivity ofRights.  The rights conferred on Agentby this Agreement shall not be exclusive of any other right which Agent mayhave or hereafter acquire under any statute, provision of the Corporation’sCertificate of Incorporation or Bylaws, agreement, vote of stockholders ordirectors, or otherwise, both as to action in his official capacity and as toaction in another capacity while holding office.

 

**12.**                               Survival of Rights.

 

**(a)****           **Therights conferred on Agent by this Agreement shall continue after Agent hasceased to be a director, officer, employee or other agent of the Corporation orto serve at the request of the Corporation as a director, officer, employee orother agent of another corporation, partnership, joint venture, trust, employeebenefit plan or other enterprise and shall inure to the benefit of Agent’sheirs, executors and administrators.

 

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

 

**13.**                               Separability.  Each of the provisions of this Agreement isa separate and distinct agreement and independent of the others, so that if anyprovision hereof shall be held to be invalid for any reason, such invalidity orunenforceability shall not affect the validity or enforceability of the otherprovisions hereof.  Furthermore, if thisAgreement shall be invalidated in its entirety on any ground, then theCorporation shall nevertheless indemnify Agent to the fullest extent providedby the Bylaws, the Code or any other applicable law.

 

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

 

**15.**                               Amendment andTermination.  No amendment,modification, termination or cancellation of this Agreement shall be effectiveunless in writing signed by both parties hereto.

 

**16.**                               IdenticalCounterparts.  This Agreement may beexecuted in one or more counterparts, each of which shall for all purposes bedeemed to be an original but all of which together shall constitute but one andthe same Agreement.  Only one suchcounterpart need be produced to evidence the existence of this Agreement.

 

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

 

**18.**                               Notices.  All notices, requests, demands and othercommunications hereunder shall be in writing and shall be deemed to have beenduly given (i) upon delivery if delivered by hand to the party to whomsuch communication was directed or (ii) upon the third business day afterthe date on which such communication was mailed if mailed by certified orregistered mail with postage prepaid:

 

**(a)****           **Ifto Agent, at the address indicated on the signature page hereof.

 

**(b)****           **Ifto the Corporation, to:

 

MAXIM PHARMACEUTICALS, INC.8899 University Center Lane, Suite 400San Diego, CA 92122

 

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

 

IN WITNESSWHEREOF, the parties hereto have executed this Agreement on and as of the dayand 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 ENTEREDINTO INDEMNITY AGREEMENTS

 

LarryG. Stambaugh (Officer and Director)

AnthonyE. Altig (Officer)

GaryE. Frashier (Director)

KurtR. Gehlsen (Officer)

PamG. Gleason (Officer)

Per-OlofMårtensson (Director)

TheodorH. Heinrichs (Director)

F.Duwaine Townsen (Director)

RobertL. Zerbe (Director)

 

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