Exhibit 10.1


 


INDEMNITY AGREEMENT


 


THIS AGREEMENT is made and
entered into this                     
day of                     ,
200   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 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


 


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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 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


 


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(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.


 


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.


 


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(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.


 


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.


 


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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:

  	
   

  
	
   

  	
  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
(former Officer)**


John F. Bedard
(Director)


Dan L. Dearen
(Officer)


Gary E. Frashier
(Director)


Kurt R. Gehlsen
(former Officer)**


Pam G. Gleason
(Officer)


Theodor H.
Heinrichs (Director)


Richard A. Mafrica
(Officer)


Per-Olof
Martensson (Director)


John D. Prunty
(Officer)


Sharon A. Tonetta
(Officer)


F. Duwaine Townsen
(Director)


Wayne P. Yetter
(Director)


Robert L. Zerbe
(Director)


 










** Employment
terminated on October 18, 2004.


 


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