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Exhibit 10.3
INDEMNIFICATION AGREEMENT
(Officers)
THIS AGREEMENT is made and entered into this 26th day of August, 1996,
between Dura Pharmaceuticals, Inc., a California corporation ("Corporation"),
and ________________________ ("Officer").
RECITALS
WHEREAS, Officer is ___________________ of Corporation and performs a
valuable service in such capacity for Corporation; and
WHEREAS, the Articles of Incorporation of Corporation authorize and
permit contracts between Corporation and its officers with respect to
indemnification of such officers; and
WHEREAS, by its terms the California General Corporation Law currently
purports to be the controlling law governing the Corporation with respect to
certain aspects of corporate law, including indemnification of directors and
officers; and
WHEREAS, in accordance with the authorization provided by the
California General Corporation Law, as amended ("Code"), Corporation may
purchase and maintain a policy or policies of Directors and Officers Liability
Insurance ("D & 0 Insurance"), covering certain liabilities which may be
incurred by its directors and officers in the performance of services as
directors and officers of Corporation; and
WHEREAS, as a result of recent developments affecting the terms, scope
and availability of D & 0 insurance there exists general uncertainty as to the
extent and overall desirability of protection afforded its officers by such D &
0 Insurance, if any, and by statutory and bylaw indemnification provisions; and
WHEREAS, in order to induce Officer to continue to serve in such
capacity for Corporation, Corporation has determined and agreed to enter into
this contract with Officer;
AGREEMENT
NOW, THEREFORE, in consideration of Officer's continued service as a
officer after the date hereof, the parties hereto agree as follows:
1. Indemnity of Officer. Corporation hereby agrees to hold harmless and
indemnify Officer to the fullest extent authorized by the provisions of the
Code, as it may be amended from time to time.
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2. Additional Indemnity. Subject only to the limitations set forth in
Section 3 hereof, Corporation hereby further agrees to hold harmless and
indemnify Officer:
(a) against any and all expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement actually and reasonably incurred
by Officer in connection with any threatened, pending or completed action, suit
or proceeding, whether civil, criminal, administrative or investigative
(including an action by or in the right of Corporation) to which Officer is, was
or at any time becomes a party, or is threatened to be made a party, by reason
of the fact that Officer is, was or at any time becomes a director, officer,
employee or agent of Corporation, or is or was serving at any time serves at the
request of Corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise; and
(b) otherwise to the fullest extent as may be provided to Officer
by Corporation under the indemnification non-exclusivity provision of the
Articles of Incorporation of Corporation and the Code.
3. Limitations on Additional Indemnity.
(a) No indemnity pursuant to Section 2 hereof shall be paid by
Corporation for any of the following:
(i) except to the extent the aggregate of losses to be
indemnified thereunder exceeds the sum of such losses for which Officer is
indemnified pursuant to Section 1 hereof or pursuant to any D & 0 Insurance
purchased and maintained by Corporation;
(ii) in respect to remuneration paid to Officer if it shall be
determined by a final judgment or other final adjudication that some
remuneration was in violation of law;
(iii) on account of any suit in which judgment is rendered against
Officer for an accounting of profits made from the purchase or sale by Officer
of securities of 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;
(vi) on account of Officer's acts or omissions that involve
intentional misconduct or a knowing and culpable violation of law;
(v) on account of or arising in response to any action, suit or
proceeding (other than an action, suit or proceeding referred to in Section 8(b)
hereof) initiated by Officer or any of Officer's affiliates against Corporation
or against any officer, director or shareholder of Corporation unless proceeding
was authorized by the board of directors of Corporation;
(vi) if a final decision by a court having jurisdiction in the
matter shall determine that such indemnification is not lawful; or
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(vii) on account of any action, suit or proceeding to the extent
that Officer is a plaintiff, a counter-complainant or a cross-complainant
therein (other than an action, suite or proceeding permitted by Section 3(a)(v)
hereof).
(b) In addition to those limitations set forth above in paragraph (a)
of this Section 3, no indemnity pursuant to Section 2 hereof in an action by or
in the right of Corporation shall be paid by Corporation for any of the
following:
(i) on account of acts or omissions that Officer believes to be
contrary to the best interests of Corporation or its shareholders or that
involve the absence of good faith on the part of Officer;
(ii) with respect to any transaction from which Officer derived an
improper personal benefit;
(iii) on account of acts or omissions that show a reckless disregard
for Officer's duty to Corporation or its shareholders in circumstances in which
Officer was aware, or should have been aware, in the ordinary course of
performing an officer's duties, of a risk of serious injury to Corporation or
its shareholders;
(iv) on account of acts or omissions that constitute an unexcused
pattern of inattention that amounts to an abdication of Officer's duty to
Corporation or its shareholders;
(v) in respect of any claim, issue or matter as to which Officer
shall have been adjudged to be liable to Corporation in the performance of
Officer's duty to Corporation and its shareholders, unless and only to the
extent that the court in which such proceeding is or was pending shall determine
upon application that, in view of all the circumstances of the case, Officer is
fairly and reasonably entitled to indemnity for expenses and then only to the
extent that the court shall determine;
(vi) of amounts paid in settling or otherwise disposing of a
pending action without court approval; and
(vii) of expenses incurred in defending a pending action which is
settled or otherwise disposed of without court approval.
4. Contribution. If the indemnification provided in Sections 1 and 2 is
unavailable and may not be paid to Officer for any reason other than those set
forth in Section 3 (excluding subsections 3(b) (vi) and (vii)), then in respect
of any threatened, pending or completed action, suit or proceeding in which
Corporation is or is alleged to be jointly liable with Officer (or would be if
joined in such action, suit or proceeding), Corporation shall contribute to the
amount of expenses (including attorneys' fees), judgments, fines and amounts
paid in settlement actually and reasonably incurred and paid or payable by
Officer in such proportion as is appropriate to reflect (i) the relative
benefits received by Corporation on the one hand and Officer on the other
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hand from the transaction from which such action, suit or proceeding arose, and
(ii) to relative fault of Corporation on the one hand and of Officer on the
other in connection with the events which resulted in such expenses, judgments,
fines or settlement amounts, as well as any other relevant equitable
considerations. The relative fault of Corporation on the one hand and of Officer
on the other shall be determined by reference to, among other things, the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent the circumstances resulting in such expenses, judgments,
fines or settlement amounts. Corporation agrees that it would not be just and
equitable if contribution pursuant to this Section 4 were determined by pro rata
allocation or any other method of allocation which does not take account of the
foregoing equitable considerations.
5. Continuation of Obligations. All agreements and obligations of
Corporation contained herein shall continue during the period Officer is a
director, officer, employee or agent of Corporation (or is or was serving at the
request of Corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise) and shall
continue thereafter so long as Officer shall be subject to any possible claim or
threatened, pending or completed action, suit or proceeding, whether civil,
criminal or investigative, by reason of the fact that Officer was serving
Corporation or any such other entity in any capacity referred to herein.
6. Notification and Defense of Claim. Promptly after receipt by
Officer of notice of the commencement of any action, suit or proceeding, Officer
will, if a claim in respect thereof is to be made against Corporation under this
Agreement, notify Corporation of the commencement thereof; but the omission so
to notify Corporation will not relieve it from any liability which it may have
to Officer otherwise, than under this Agreement. With respect to any such
action, suit or proceeding as to which Officer notifies Corporation of the
commencement thereof:
(a) Corporation will be entitled to participate therein at its own
expense;
(b) Except as otherwise provided below, to the extent that it may wish,
Corporation jointly with any other indemnifying party similarly notified will be
entitled to assume the defense thereof, with counsel satisfactory to Officer.
After notice from Corporation to Officer of its election so as to assume the
defense thereof, Corporation will not be liable to Officer under this Agreement
for any legal or other expenses subsequently incurred by Officer in connection
with the defense thereof other than reasonable costs of investigation or as
otherwise provided below. Officer shall have the right to employ its counsel in
such action, suit or proceeding, but the fees and expenses of such counsel
incurred after notice from Corporation of its assumption of the defense thereof
shall be at the expense of Officer unless (i) the employment of counsel by
Officer has been authorized by Corporation, (ii) Officer shall have reasonably
concluded that there may be a conflict of interest between Corporation and
Officer in the conduct of the defense of such action or (iii) 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 counsel shall be at the expense of
Corporation. Corporation shall not be entitled to assume the defense of any
action, suit or proceeding brought by or on behalf of Corporation or as to which
Officer shall have made the conclusion provided for in (ii) above; and
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(c) Corporation shall not be liable to indemnify Officer under this
Agreement for any amounts paid in settlement of any action or claim effected
without its written consent. Corporation shall not settle any action or claim in
any manner which would impose any penalty or limitation on Officer without
Officer's written consent. Neither Corporation nor Officer will unreasonably
withhold its consent to any proposed settlement.
7. Advancement and Repayment of Expenses.
(a) In the event that Officer employs his own counsel pursuant to
Section (b)(i) through (iii) above, Corporation shall advance to Officer, prior
to any final disposition of any threatened or pending action, suit or
proceeding, whether civil, criminal, administrative or investigative, any and
all reasonable expenses (including legal fees and expenses) incurred in
investigating or defending any such action, suit or proceeding within ten (10)
days after receiving copies of invoices presented to Officer for such expenses;
provided, however, Corporation shall not be required to advance such expenses to
Officer in connection with any action, suit or proceeding brought by Corporation
and approved by a majority of the Board of Directors which alleges willful
misappropriation of corporate assets by Officer, disclosure of confidential
information in violation of Officer's fiduciary or contractual obligations to
Corporation, or any other willful and deliberate breach in bad faith of
Officer's duty to Corporation or its sharholders.
(b) Officer agrees that Officer will reimburse Corporation for all
reasonable expenses paid by Corporation in defending any civil or criminal
action, suit or proceeding against Officer in the event and only to the extent
it shall be ultimately determined by a final judicial decision (from which there
is no right of appeal) that Officer is not entitled, under applicable law, the
Bylaws, this Agreement and otherwise, to be indemnified by Corporation for such
expenses.
8. Enforcement.
(a) Corporation expressly confirms and agrees that it has entered into
this Agreement and assumed the obligations imposed on Corporation hereby in
order to induce Officer to continue as an officer of Corporation, and
acknowledges that Officer is relying upon this Agreement in continuing in such
capacity.
(b) In the event Officer is required to bring any action to enforce
rights or to collect moneys due under this Agreement and is successful in such
action, Corporation shall reimburse Officer for all of Officer's reasonable
attorneys' fees and expenses in bringing and pursuing such action.
9. 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 or unenforceable to any extent for
any reason, such invalidity or unenforceability shall not affect the validity or
enforceability of the other provisions hereof, and the affected provision shall
be construed and enforced so as to effectuate the parties' intent to the maximum
extent possible.
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10. Governing Law. This Agreement shall be governed by and interpreted
and enforced in accordance with the laws of the State of California.
11. Binding Effect. This Agreement shall be binding upon Officer and
upon Corporation, its successors and assigns, and shall inure to the benefit of
Officer, his or her heirs, personal representatives and assigns and to the
benefit of Corporation, its successors and assigns.
12. Amendment and Termination. No amendment, modification, waiver,
termination or cancellation of this Agreement shall be effective for any purpose
unless set forth in writing signed by both parties hereto.
13. Subrogation. In the event of payment under this Agreement,
Corporation shall be subrogated to the extent of such payment to all of the
rights of recovery of Officer, who shall execute all documents required and
shall do all acts that may be necessary to secure such rights and to enable
Corporation effectively to bring suit to enforce such rights.
14. Non-Exclusivity of Rights. The rights conferred on Officer by this
Agreement shall not be exclusive of any other right which Officer may have or
hereafter acquire under any statute, provision of Corporation's Articles of
Incorporation or Bylaws, agreement vote of shareholders or directors, or
otherwise, both as to action in his or her official capacity and as to action in
another capacity while holding office.
15. Survival of Rights. The rights conferred on Officer by this
Agreement shall continue after Officer has ceased to be a director, officer,
employee or other agent of Corporaton and shall inure to the benefit of
Officer's heirs, executors and administrators.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
and as of the day and year first above written.
OFFICER: CORPORATION:
DURA PHARMACEUTICALS, INC.
By:
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(Signature) (Signature)
Cam X. Xxxxxx, Chairman, President & CEO
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Printed Name Printed Name and Title
