EXHIBIT 10.54
INDEMNIFICATION AGREEMENT
(Directors)
THIS AGREEMENT is made and entered into this _____ day of December, 1996,
between Dura Pharmaceuticals, Inc., a California corporation ("Corporation"),
whose address is ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, and
____________________ ("Director"), whose address is _________________________.
RECITALS
WHEREAS, Director, a member of the Board of Directors of Corporation,
performs a valuable service in such capacity for Corporation; and
WHEREAS, the Articles of Incorporation of Corporation authorize and permit
contracts between Corporation and the members of its Board of Directors with
respect to indemnification of such directors; and
WHEREAS, by its terms the California General Corporation Law, as amended
and in effect from time to time or any successor or other statutes of California
having similar import and effect (the "Code" or "California Law"), currently
purports to be the controlling law governing Corporation with respect to certain
aspects of corporate law, including indemnification of directors and officers;
and
WHEREAS, in accordance with the authorization provided by California Law,
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 members of the Board of
Directors by such D & 0 Insurance, if any, and by statutory and bylaw
indemnification provisions; and
WHEREAS, in order to induce Director to continue to serve as a member of
the Board of Directors of Corporation, Corporation has determined and agreed to
enter into this contract with Director;
AGREEMENT
NOW, THEREFORE, in consideration of Director's continued service as a
director after the date hereof, the parties hereto agree as follows:
1. CERTAIN DEFINITIONS. The following terms used in this Agreement shall
have the meanings set forth below. Other terms are defined where appropriate in
this Agreement.
(a) "Disinterested Director" shall mean a director of Corporation who is
not or was not a party to the Proceeding in respect of which indemnification is
being sought by Director.
(b) "Expenses" shall include all direct and indirect costs (including,
without limitation, attorneys' fees, retainers, court costs, transcripts, fees
of experts, witness fees, travel expenses, duplicating costs, printing and
binding costs, telephone charges, postage, delivery service fees, all other
disbursements or out-of-pocket expenses and reasonable compensation for time
spent by Director for which he or she is otherwise not compensated by
Corporation) actually and reasonably incurred in connection with a Proceeding or
establishing or enforcing a right to indemnification under this Agreement,
applicable law or otherwise; provided, however, that "Expenses" shall not
include any Liabilities.
(c) "Final Adverse Determination" shall mean that a determination that
Director is not entitled to indemnification shall have been made pursuant to
Section 5 hereof and either (i) a final adjudication in a California court or
decision of an arbitrator pursuant to Section 13(a) hereof shall have denied
Director's right to indemnification hereunder, or (ii) Director shall have
failed to file a complaint in a California court or seek an arbitrator's award
pursuant to Section 13(a) for a period of one hundred twenty (120) days after
the determination made pursuant to Section 5 hereof.
(d) "Independent Legal Counsel" shall mean a law firm or member of a law
firm selected by Corporation and approved by Director (which approval shall not
be unreasonably withheld) and that neither is presently nor in the past five
years has been retained to represent: (i) Corporation, in any material matter,
or (ii) any other party to the Proceeding giving rise to a claim for
indemnification hereunder. Notwithstanding the foregoing, the term "Independent
Legal Counsel" shall not include any person who, under the applicable standards
of professional conduct then prevailing, would have a conflict of interest in
representing either Corporation or Director in an action to determine Director's
right to indemnification under this Agreement.
(e) "Liabilities" shall mean liabilities of any type whatsoever including,
but not limited to, any judgments, fines, ERISA excise taxes and penalties,
penalties and amounts paid in settlement (including all interest assessments and
other charges paid or payable in connection with or in respect of such
judgments, fines, penalties or amounts paid in settlement) of any proceeding.
(f) "Proceeding" shall mean any threatened, pending or completed action,
claim, suit, arbitration, alternative dispute resolution mechanism,
investigation, administrative hearing or any other proceeding whether civil,
criminal, administrative or investigative, including any appeal therefrom.
(g) "Change of Control" shall mean the occurrence of any of the following
events after the date of this Agreement:
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(i) A change in the composition of the Board of Directors of
Corporation (the "Board"), as a result of which fewer than two-thirds (2/3) of
the incumbent directors are directors who either (1) had been directors of
Corporation twenty-four (24) months prior to such change or (2) were elected, or
nominated for election, to the Board with the affirmative votes of at least a
majority of the directors who had been directors of Corporation 24 months prior
to such change and who were still in office at the time of the election or
nomination; or
(ii) Any "person" (as such term is used in section 13(d) and 14(d) of
the Securities Exchange Act of 1934, as amended) through the acquisition or
aggregation of securities is or becomes the beneficial owner, directly or
indirectly, of securities of Corporation representing twenty percent (20%) or
more of the combined voting power of Corporation's then outstanding securities
ordinarily (and apart from rights accruing under special circumstances) having
the right to vote at elections of directors (the "Capital Stock"), except that
any change in ownership of Corporation's securities by any person resulting
solely from a reduction in the aggregate number of outstanding shares of Capital
Stock, and any decrease thereafter in such person's ownership of securities,
shall be disregarded until such person increases in any manner, directly or
indirectly, such person's beneficial ownership of any securities of Corporation.
2. INDEMNITY OF DIRECTOR. Corporation hereby agrees to hold harmless and
indemnify Director to the fullest extent authorized by the provisions of the
Code.
3. ADDITIONAL INDEMNITY. Subject only to the limitations set forth in
Section 4 hereof, Corporation hereby further agrees to hold harmless and
indemnify Director:
(a) against any and all expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement actually and reasonably incurred
by Director 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 Director is,
was or at any time becomes a party, or is threatened to be made a party, by
reason of the fact that Director is, was or at any time becomes a director,
officer, employee or agent of Corporation, or is or was serving or 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 Director by
Corporation under the indemnification non-exclusivity provision of the Articles
of Incorporation of Corporation and the Code.
4. LIMITATIONS ON ADDITIONAL INDEMNITY.
(a) No indemnity pursuant to Section 3 hereof shall be paid by Corporation
for any of the following:
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(i) except to the extent the aggregate of losses to be indemnified
thereunder exceeds the sum of such losses for which Director is indemnified
pursuant to Section 2 hereof or reimbursed pursuant to any D & 0 Insurance
purchased and maintained by Corporation;
(ii) in respect to remuneration paid to Director if it shall be
determined by a final judgment or other final adjudication that such
remuneration was in violation of law;
(iii) on account of any suit in which judgment is rendered against
Director for an accounting of profits made from the purchase or sale by
Director 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;
(iv) on account of Director's acts or omissions that involve
intentional misconduct or a knowing and culpable violation of law if such
acts or omission have been established by a judgment or other final
adjudication adverse to Director (an "Adverse Judgment");
(v) provided there has been no Change of Control, on account of or
arising in response to any action, suit or proceeding (other than an action,
suit or proceeding referred to in Section 14(b) hereof) initiated by Director
or any of Director's affiliates against Corporation or against any officer,
director or shareholder of Corporation unless such 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
(vii) on account of any action, suit or proceeding to the extent
that Director is a plaintiff, a counter-complainant or a cross-complainant
therein (other than an action, suit or proceeding permitted by Section
4(a)(v) hereof).
(b) In addition to those limitations set forth above in paragraph (a)
of this Section 4, no indemnity pursuant to Section 3 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 Director 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 Director, if so established
by an Adverse Judgment;
(ii) with respect to any transaction from which Director derived an
improper personal benefit, if so established by an Adverse Judgment;
(iii)on account of acts or omissions that show a reckless disregard
for Director's duty to Corporation or its shareholders in circumstances in
which Director was aware,
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or should have been aware, in the ordinary course of performing a director's
duties, of a risk of serious injury to Corporation or its shareholders, if so
established by an Adverse Judgment;
(iv) on account of acts or omissions that constitute an unexcused
pattern of inattention that amounts to an abdication of Director's duty to
Corporation or its shareholders, if so established by an Adverse Judgment;
(v) on account of proceedings under Section 310 of California Law
(contracts in which director has material financial interest), if so
established by an Adverse Judgment;
(vi) on account of proceedings under Section 316 of California Law
(corporation actions subjecting directors to joint and several liability), if
so established by an Adverse Judgment;
(vii) in respect of any claim, issue or matter as to which Director
shall have been adjudged to be liable to Corporation in the performance of
Director'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, Director is fairly and reasonably entitled to indemnity for expenses
and then only to the extent that the court shall determine;
(viii) of amounts paid in settling or otherwise disposing of a
pending action without court approval; and
(ix) of expenses incurred in defending a pending action which is
settled or otherwise disposed of without court approval.
5. PROCEDURE FOR DETERMINATION OF ENTITLEMENT TO INDEMNIFICATION.
(a) Whenever Director believes that he or she is entitled to
indemnification pursuant to this Agreement, Director shall submit a written
request for indemnification to Corporation. Any request for indemnification
shall include sufficient documentation or information reasonably available to
Director to support his or her claim for indemnification. Director shall
submit his or her claim for indemnification within a reasonable time not to
exceed five years after any judgment, order, settlement, dismissal,
arbitration award, conviction, acceptance of a plea of nolo contendere or its
equivalent, final termination or other disposition or partial disposition of
any Proceeding, whichever is the later date for which Director requests
indemnification. The President or the Secretary or other appropriate officer
shall, promptly upon receipt of Director's request for indemnification,
advise the Board of Directors in writing that Director has made such a
request. Determination of Director's entitlement to indemnification shall be
made not later than ninety (90) days after Corporation's receipt of his or
her written request for such indemnification.
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(b) The Director shall be entitled to select the forum in which
Director's request for indemnification will be heard, which selection shall
be included in the written request for indemnification required in Section
5(a). This forum shall be any one of the following:
(i) The stockholders of Corporation;
(ii) A quorum of the Board of Directors consisting of Disinterested
Directors;
(iii)Independent Legal Counsel, who shall make the determination in
a written opinion; or
(iv) A panel of three arbitrators, one selected by Corporation,
another by Director and the third by the first two arbitrators selected. If
for any reason three arbitrators are not selected within thirty (30) days
after the appointment of the first arbitrator, then selection of additional
arbitrators shall be made by the American Arbitration Association. If any
arbitrator resigns or is unable to serve in such capacity for any reason, the
American Arbitration Association shall select his or her replacement. The
arbitration shall be conducted pursuant to the commercial arbitration rules
of the American Arbitration Association now in effect.
If Director fails to make such designation, his or her claim shall
be determined by the forum selected by Corporation.
6. PRESUMPTIONS AND EFFECT OF CERTAIN PROCEEDINGS. Upon making a
request for indemnification, Director shall be presumed to be entitled to
indemnification under this Agreement and Corporation shall have the burden of
proof to overcome that presumption in reaching any contrary determination.
The termination of any Proceeding by judgment, order, settlement, arbitration
award or conviction, or upon a plea of nolo contendere or its equivalent
shall not affect this presumption or, except as may be provided in Section 4
hereof, establish a presumption with regard to any factual matter relevant to
determining Director's rights to indemnification hereunder. If the person or
persons so empowered to make a determination pursuant to Section 5(b) hereof
shall have failed to make the requested determination within thirty (30) days
after any judgment, order, settlement, dismissal, arbitration award,
conviction, acceptance of a plea of nolo contendere or its equivalent, or
other disposition or partial disposition of any Proceeding or any other event
which could enable Corporation to determine Director's entitlement to
indemnification, the requisite determination that Director is entitled to
indemnification shall be deemed to have been made.
7. CONTRIBUTION. If the indemnification provided in Sections 2 and 3
is unavailable and may not be paid to Director for any reason other than
those set forth in Section 4 (excluding subsections 4(b) (viii) and (ix)),
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
Director (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 Director in such proportion as is
appropriate to reflect (i) the relative benefits received by Corporation on
the one hand and Director 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 Director 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 Director 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 7
were determined by pro rata allocation or any other method of allocation
which does not take account of the foregoing equitable considerations.
8. INSURANCE AND FUNDING. Corporation hereby represents and warrants
that it shall purchase and maintain insurance to protect itself and/or
Director against any Expenses and Liabilities in connection with any
Proceeding to the fullest extent permitted by California Law. In the event of
a Change of Control, Corporation shall establish a letter of credit, as
provided in Section 9, to ensure the payment of such amounts as may be
necessary to effect indemnification or advancement of Expenses as provided in
this Agreement.
9. LETTER OF CREDIT.
(a) In order to secure the obligations of Corporation to indemnify and
advance Expenses to Director pursuant to this Agreement, Corporation shall
obtain at the time of any Change of Control, upon request of any director, an
irrevocable standby letter of credit naming the directors of the Corporation
in office at the time of a Change of Control as joint beneficiaries (the
"Letter of Credit"). The Letter of Credit shall be in an appropriate amount
not less than two million dollars ($2,000,000), shall be issued by a
commercial bank headquartered in the United States having assets in excess of
$10 billion and capital according to its most recent published reports equal
to or greater than the then applicable minimum capital standards promulgated
by such bank's primary federal regulator and shall contain terms and
conditions reasonably acceptable to all directors. The Letter of Credit
shall provide that Director may from time to time draw certain amounts
thereunder, upon written certification by Director to the issuer of the
Letter of Credit that (i) Director has made written request upon Corporation
for an amount not less than the amount he or she is drawing under the Letter
of Credit and that Corporation has failed or refused to provide him with such
amount in full within thirty (30) days after receipt of the request, and (ii)
Director believes that he or she is entitled under the terms of this
Agreement to the amount which he or she is drawing upon under the Letter of
Credit. The issuance of the Letter of Credit shall not, in any way, diminish
Corporation's obligation to indemnify Director against Expenses and
Liabilities to the full extent required by this Agreement.
(b) Once Corporation has obtained the Letter of Credit, Corporation
shall maintain and renew the Letter of Credit or substitute letter of credit
meeting the criteria of Section 9(a) during the term of this Agreement so
that the Letter of Credit shall have an initial term of five years, be
renewed for successive five-year terms, and always have at least one year of
its term remaining.
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10. CONTINUATION OF OBLIGATIONS. All agreements and obligations of
Corporation contained herein shall continue during the period Director 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 Director 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 Director was serving Corporation or any such other entity in any
capacity referred to herein.
11. NOTIFICATION AND DEFENSE OF CLAIM. Promptly after receipt by
Director of notice of the commencement of any action, suit or proceeding,
Director 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 Director otherwise, than under this
Agreement. With respect to any such action, suit or proceeding as to which
Director 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
Director. After notice from Corporation to Director of its election so as to
assume the defense thereof, Corporation will not be liable to Director under
this Agreement for any legal or other expenses subsequently incurred by
Director in connection with the defense thereof other than reasonable costs
of investigation or as otherwise provided below. Director 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 Director unless
(i) the employment of counsel by Director has been authorized by Corporation,
(ii) Director shall have reasonably concluded that there may be a conflict of
interest between Corporation and Director 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 Director shall have
made the conclusion provided for in (ii) above; and
(c) Provided there has been no Change of Control, Corporation shall not
be liable to indemnify Director under this Agreement for any amounts paid in
settlement of any action or claim effected without its written consent, which
consent shall not be unreasonably withheld. Corporation shall not settle any
action or claim in any manner which would impose any penalty or limitation on
Director without Director's written consent.
12. ADVANCEMENT AND REPAYMENT OF EXPENSES.
(a) In the event that Director employs his or her own counsel pursuant
to Section 11(b)(i) through (iii) above, Corporation shall advance to
Director, prior to any final
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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
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expenses) incurred in investigating or defending any such action, suit or
proceeding within ten (10) days after receiving copies of invoices presented
to Director for such expenses;
(b) Director agrees that Director will reimburse Corporation for all
reasonable expenses paid by Corporation in defending any civil or criminal
action, suit or proceeding against Director 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 Director is not entitled, under
applicable law, the Bylaws, this Agreement and otherwise, to be indemnified
by Corporation for such expenses.
13. REMEDIES OF DIRECTOR.
(a) In the event that (i) a determination pursuant to Section 5 hereof
is made that Director is not entitled to indemnification, (ii) advances of
Expenses are not made pursuant to this Agreement, (iii) payment has not been
timely made following a determination of entitlement to indemnification
pursuant to this Agreement, or (iv) Director otherwise seeks enforcement of
this Agreement, Director shall be entitled to a final adjudication in an
appropriate court of the State of California of his or her rights.
Alternatively, Director at his or her option may seek an award in arbitration
to be conducted by a single arbitrator pursuant to the commercial arbitration
rules of the American Arbitration Association now in effect, whose decision
is to be made within ninety (90) days following the filing of the demand for
arbitration. The Corporation shall not oppose Director's right to seek any
such adjudication or arbitration award.
(b) In the event that a determination that Director is not entitled to
indemnification, in whole or in part, has been made pursuant to Section 5
hereof, the decision in the judicial proceeding or arbitration provided in
paragraph (a) of this Section 13 shall be made de novo and Director shall not
be prejudiced by reason of a determination that he or she is not entitled to
indemnification.
(c) If a determination that Director is entitled to indemnification has
been made pursuant to Section 5 hereof or otherwise pursuant to the terms of
this Agreement, Corporation shall be bound by such determination in the
absence of (i) a misrepresentation of a material fact by Director or (ii) a
specific finding (which has become final) by an appropriate court of the
State of California that all or any part of such indemnification is expressly
prohibited by law.
(d) In any court proceeding pursuant to this Section 13, Corporation
shall be precluded from asserting that the procedures and presumptions of
this Agreement are not valid, binding and enforceable. The Corporation shall
stipulate in any such court or before any such arbitrator that Corporation is
bound by all the provisions of this Agreement and is precluded from making
any assertion to the contrary.
(e) Expenses reasonably incurred by Director in connection with his or
her request for indemnification under this Agreement, meeting enforcement of
this Agreement or to recover damages for breach of this Agreement shall be
borne by Corporation.
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(f) Corporation and Director agree herein that a monetary remedy for
breach of this Agreement, at some later date, will be inadequate,
impracticable and difficult of proof, and further agree that such breach
would cause Director irreparable harm. Accordingly, Corporation and Director
agree that Director shall be entitled to temporary and permanent injunctive
relief to enforce this Agreement without the necessity of proving actual
damages or irreparable harm. The Corporation and Director further agree that
Director shall be entitled to such injunctive relief, including temporary
restraining orders, preliminary injunctions and permanent injunctions,
without the necessity of posting bond or other undertaking in connection
therewith. Any such requirement of bond or undertaking is hereby waived by
Corporation, and Corporation acknowledges that in the absence of such a
waiver, a bond or undertaking may be required by the court.
14. 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 Director to continue as a director of Corporation, and
acknowledges that Director is relying upon this Agreement in continuing in
such capacity.
(b) In the event Director 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 Director for all of Director's
reasonable attorneys' fees and expenses in bringing and pursuing such action.
15. 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.
16. GOVERNING LAW. This Agreement shall be governed by and interpreted
and enforced in accordance with the laws of the State of California.
17. CONSENT TO JURISDICTION. The Corporation and Director each
irrevocably consent to jurisdiction of the courts of the State of California
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 brought only in the state courts of the State of
California.
18. BINDING EFFECT. This Agreement shall be binding upon Director and
upon Corporation, its successors and assigns, and shall inure to the benefit
of Director, his or her heirs, personal representatives and assigns and to
the benefit of Corporation, its successors and assigns.
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19. ENTIRE AGREEMENT. This Agreement represents the entire agreement
between the parties hereto and there are no other agreements, contracts or
understandings between the parties hereto with respect to the subject matter
of this Agreement, except as specifically referred to herein. This Agreement
supersedes any and all agreements regarding indemnification heretofore
entered into by the parties.
20. 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.
21. 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 Director, 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.
22. NON-EXCLUSIVITY OF RIGHTS. The rights conferred on Director by
this Agreement shall not be exclusive of any other right which Director 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.
23. SURVIVAL OF RIGHTS. The rights conferred on Director by this
Agreement shall continue after Director has ceased to be a director, officer,
employee or other agent of Corporation and shall inure to the benefit of
Director's heirs, executors and administrators.
24. NOTICES. All notices, requests, demands and other communications
hereunder shall be in writing and shall be addressed to Director or to
Corporation, as the case may be, at the address shown on page 1 of this
Agreement, or to such other address as may have been furnished by either
party to the other, and shall be deemed to have been duly given if (i)
delivered by hand and receipted for by the party to whom said notice or other
communication shall have been directed, or (ii) mailed by certified or
registered mail with postage prepaid, on the third business day after the
date on which it is so mailed.
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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.
DIRECTOR: CORPORATION:
DURA PHARMACEUTICALS, INC.
By:
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(Signature) (Signature)
Cam ▇. ▇▇▇▇▇▇, Chairman, President & CEO
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Printed Name Printed Name and Title
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