Exhibit 10.26
INDEMNIFICATION AGREEMENT
This Agreement is made as of April 15, 2006, between QuatRx Pharmaceuticals
Company, a Delaware corporation (the "Company"), and ___________________ (the
"Indemnitee").
RECITALS
Both the Company and Indemnitee recognize that highly competent persons
have become more reluctant to serve publicly-held corporations as directors or
in other capacities unless they are provided with adequate protection through
insurance or adequate indemnification against inordinate risks of claims and
actions against them arising out of their service to and activities on behalf of
the corporation.
In recognition of Indemnitee's need for substantial protection against
personal liability in order to enhance Indemnitee's continued service to the
Company in an effective manner and Indemnitee's reliance on the provisions of
the Company's Certificate of Incorporation ("Certificate of Incorporation") and
the Company's Bylaws (the "Bylaws") requiring indemnification of the Indemnitee
to the fullest extent permitted by law, and in part to provide Indemnitee with
specific contractual assurance that the protection promised by such Certificate
of Incorporation and Bylaws will be available to Indemnitee (regardless of,
among other things, any amendment to or revocation of such Certificate of
Incorporation or Bylaws or any change in the composition of the Company's Board
of Directors or acquisition transaction relating to the Company), the Company
wishes to provide in this Agreement for the indemnification of and the advancing
of expenses to Indemnitee to the fullest extent (whether partial or complete)
permitted by law and as set forth in this Agreement.
The Certificate of Incorporation, the Bylaws and the General Corporation
Law of the State of Delaware ("DGCL") expressly provide that the indemnification
provisions set forth therein are not exclusive and thereby contemplate that
contracts may be entered into between the Company and members of the board of
directors, officers and other persons with respect to indemnification.
It is reasonable, prudent and necessary for the Company contractually to
obligate itself to indemnify, and to advance expenses on behalf of, such persons
to the fullest extent permitted by applicable law so that they will serve or
continue to serve the Company free from undue concern that they will not be so
indemnified.
This Agreement is a supplement to and in furtherance of the Certificate of
Incorporation and Bylaws and any resolutions adopted pursuant thereto and shall
not be deemed a substitute therefor, nor to diminish or abrogate any rights of
Indemnitee thereunder.
AGREEMENT
In consideration of the premises and of Indemnitee agreeing to serve or
continuing to serve the Company directly or, at its request, with another
enterprise, and intending to be legally bound hereby, the parties hereto agree
as follows:
1. BASIC INDEMNIFICATION AGREEMENT.
(a) In the event Indemnitee was, is or becomes a party to or witness
or other participant in, or is threatened to be made a party to or witness or
other participant in, a Claim (as defined in Section 9(b)) by reason of (or
arising in part out of) an Indemnifiable Event (as defined in Section 9(d)), the
Company shall indemnify Indemnitee to the fullest extent permitted by law as
soon as practicable but in any event no later than 30 days after written demand
is presented to the Company, against any and all Expenses (as defined in Section
9(c)), judgments, fines, penalties and amounts paid in settlement (including all
interest, assessments and other charges paid or payable in connection therewith)
of such Claim actually and reasonably incurred by or on behalf of Indemnitee in
connection with such Claim and any federal, state, local or foreign taxes
imposed on Indemnitee as a result of the actual or deemed receipt of any
payments under this Agreement. If requested by Indemnitee in writing, the
Company shall advance (within ten business days of such written request) any and
all Expenses to Indemnitee (an "Expense Advance"). Notwithstanding anything in
this Agreement to the contrary, prior to a Change of Control (as defined in
Section 9(a)) and except as set forth in Sections 1(b), 3 and 7, Indemnitee
shall not be entitled to indemnification pursuant to this Agreement in
connection with any Claim (i) initiated by Indemnitee against the Company or any
director or officer of the Company unless the Company has joined in or consented
to the initiation of such Claim; (ii) made on account of Indemnitee's conduct
which constitutes a breach of Indemnitee's duty of loyalty to the Company or its
stockholders or is an act or omission not in good faith or which involves
intentional misconduct or a knowing violation of the law; or (iii) arising from
the purchase and sale by Indemnitee of securities in violation of Section 16(b)
of the Securities Exchange Act of 1934, as amended (the "Exchange Act").
(b) Notwithstanding the foregoing, (i) the indemnification obligations
of the Company under Section 1(a) shall not be applicable if the Reviewing Party
(as defined in Section 9(f)) has determined (in a written opinion, in any case
in which the special independent counsel referred to in Section 2 is involved)
that Indemnitee would not be permitted to be indemnified under applicable law,
and (ii) the obligation of the Company to make an Expense Advance pursuant to
Section 1(a) shall be subject to the condition that the Company receives an
undertaking that, if, when and to the extent that the Reviewing Party determines
that Indemnitee would not be permitted to be so indemnified under applicable
law, the Company shall be entitled to be reimbursed by Indemnitee (who hereby
agrees to reimburse the Company) for all such amounts theretofore paid;
provided, however, that if Indemnitee has commenced legal proceedings in the
Court of Chancery of the State of Delaware (the "Delaware Court") to secure a
determination that Indemnitee should be indemnified under applicable law, any
determination made by the Reviewing Party that Indemnitee would not be permitted
to be indemnified under applicable law shall not be binding and Indemnitee shall
not be required to reimburse the Company for any Expense Advance until a final
judicial determination is made with respect
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thereto (as to which all rights of appeal therefrom have been exhausted or
lapsed). Indemnitee's obligation to reimburse the Company for Expense Advances
shall be unsecured and no interest shall be charged thereon. If there has not
been a Change in Control, the Reviewing Party shall be selected by the Board of
Directors, and if there has been such a Change in Control, the Reviewing Party
shall be the special independent counsel referred to in Section 2. If there has
been no determination by the Reviewing Party or if the Reviewing Party
determines that Indemnitee substantively would not be permitted to be
indemnified in whole or in part under applicable law, Indemnitee shall have the
right to commence litigation in the Delaware Court seeking an initial
determination by the court or challenging any such determination by the
Reviewing Party or any aspect thereof and the Company hereby consents to service
of process and to appear in any such proceeding. Any determination by the
Reviewing Party otherwise shall be conclusive and binding on the Company and
Indemnitee. The Company shall indemnify Indemnitee for Expenses incurred by
Indemnitee in connection with the successful establishment or enforcement, in
whole or in part, by Indemnitee of Indemnitee's right to indemnification or
advances.
2. CHANGE IN CONTROL. The Company agrees that if there is a Change in
Control of the Company (other than a Change in Control which has been approved
by two- thirds or more of the Company's Board of Directors who were directors
immediately prior to such Change in Control) then with respect to all matters
thereafter arising concerning the rights of Indemnitee to indemnity payments and
Expense Advances under this Agreement or any other agreement, the Bylaws or
Certificate of Incorporation now or hereafter in effect relating to Claims for
Indemnifiable Events, the Company shall seek legal advice only from special
independent counsel selected by Indemnitee and approved by the Company (which
approval shall not be unreasonably withheld or delayed) and who has not
otherwise performed services for the Company within the last five years (other
than in connection with such matters) or for Indemnitee. In the event that
Indemnitee and the Company are unable to agree on the selection of the special
independent counsel, such special independent counsel shall be selected by lot
from among at least five law firms with offices in the State of Delaware having
more than fifty attorneys, having a rating of "av" or better in the then current
Martindale Xxxxxxx Law Directory and having attorneys which specialize in
corporate law. Such selection shall be made in the presence of Indemnitee (and
his legal counsel or either of them, as Indemnitee may elect). Such counsel,
among other things, shall, within 90 days of its retention, render its written
opinion to the Company and Indemnitee as to whether and to what extent
Indemnitee would be permitted to be indemnified under applicable law. The
Company agrees to pay the reasonable fees of the special independent counsel
referred to above and to fully indemnify such counsel against any and all
expenses (including attorneys' fees), claims, liabilities, and damages arising
out of or relating to this Agreement or its engagement pursuant hereto.
3. INDEMNIFICATION FOR ADDITIONAL EXPENSES. The Company shall indemnify
Indemnitee against any and all expenses (including attorneys' fees) and, if
requested by Indemnitee in writing, shall (within ten business days of such
written request) advance such expenses to Indemnitee, which are incurred by
Indemnitee in connection with any Claim asserted against or action brought by
Indemnitee for (i) indemnification or advance payment of Expenses by the Company
under this Agreement or any other agreement, the Bylaws or Certificate of
Incorporation now or hereafter in effect relating to Claims for Indemnifiable
Events and/or (ii)
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recovery under any directors' and officers' liability insurance policies
maintained by the Company, regardless of whether the Company believes that
Indemnitee is entitled to such indemnification, advance expense payment or
insurance recovery, as the case may be. The Indemnitee shall qualify for
advances solely upon the execution and delivery to the Company of an undertaking
providing that the Indemnitee undertakes to repay the advance to the extent that
it is ultimately determined that the Indemnitee is not entitled to be
indemnified by the Company.
4. PARTIAL INDEMNITY. If Indemnitee is entitled under any provisions of
this Agreement to indemnification by the Company of some but not all of the
Expenses, liabilities, judgments, fines, penalties and amounts paid in
settlement of a Claim, the Company shall nevertheless indemnify Indemnitee for
the portion thereof to which Indemnitee is entitled. Moreover, notwithstanding
any other provision of this Agreement, to the extent that Indemnitee has been
successful on the merits or otherwise in defense of any or all Claims relating
in whole or in part to an Indemnifiable Event or in defense of any issue or
matter therein, including dismissal without prejudice, Indemnitee shall be
indemnified against all Expenses incurred in connection therewith. In connection
with any determination by the Reviewing Party or otherwise as to whether
Indemnitee is entitled to be indemnified hereunder the burden of proof shall be
on the Company to establish that Indemnitee is not so entitled.
5. NO PRESUMPTION. For purposes of this Agreement, the termination of any
action, suit or proceeding by judgment, order, settlement (whether with or
without court approval) or conviction, or upon a plea of nolo contendere, or its
equivalent, shall not create a presumption that Indemnitee did not meet any
particular standard of conduct or have any particular belief.
6. NOTIFICATION AND DEFENSE OF CLAIM. Within 30 days after receipt by
Indemnitee of notice of the commencement of a Claim which may involve an
Indemnifiable Event, Indemnitee will, if a claim in respect thereof is to be
made against the Company under this Agreement, submit to the Company a written
notice identifying the proceeding, but the omission so to notify the Company
will not relieve it from any liability which it may have to Indemnitee under
this Agreement unless the Company is materially prejudiced by such lack of
notice. With respect to any such Claim as to which Indemnitee notifies the
Company of the commencement thereof:
(a) the Company will be entitled to participate therein at its own
expense;
(b) except as otherwise provided below, to the extent that it may
wish, the Company jointly with any other indemnifying party similarly notified
will be entitled to assume the defense thereof, with counsel selected by the
Board of Directors and reasonably satisfactory to Indemnitee. After notice from
the Company to Indemnitee of its election to assume the defense thereof, the
Company will not be liable to Indemnitee under this Agreement for any legal or
other expenses subsequently incurred by Indemnitee in connection with the
defense thereof other than reasonable costs of investigation or as otherwise
provided below. Indemnitee shall have the right to employ its own counsel in
such action, suit or proceeding, but the fees and expenses of such counsel
incurred after notice from the Company of its assumption of the defense thereof
shall be at the expense of Indemnitee unless (i) the employment of counsel by
Indemnitee has been authorized by the Company, (ii) Indemnitee shall have
reasonably
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concluded that there may be a conflict of interest between the Company and the
Indemnitee in the conduct of the defense of such action, or (iii) the Company
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
the Company. The Company shall not be entitled to assume the defense of any
claim brought by or on behalf of the Company or as to which Indemnitee shall
have made the conclusion provided for in clause (ii) above; and
(c) the Company shall not be liable to indemnify Indemnitee under this
Agreement for any amounts paid in settlement of any action or claim effected
without its written consent. The Company shall not settle any action or claim in
any manner which would impose any penalty or limitation on Indemnitee without
Indemnitee's written consent. Neither the Company nor Indemnitee will
unreasonably withhold or delay their consent to any proposed settlement.
7. NON-EXCLUSIVITY. The rights of Indemnitee hereunder shall be in addition
to any other rights Indemnitee may have under the Certificate of Incorporation,
the Bylaws, the DGCL, any agreement, a vote of the stockholders, a resolution of
directors or otherwise. No amendment, alteration or repeal of this Agreement or
of any provision hereof shall limit or restrict any right of Indemnitee under
this Agreement in respect of any action taken or omitted by such Indemnitee
acting on behalf of the Company and at the request of the Company prior to such
amendment, alteration or repeal. To the extent that a change in the DGCL
(whether by statute or judicial decision), the Certificate of Incorporation or
the Bylaws permits greater indemnification by agreement than would be afforded
currently under the Certificate of Incorporation, the Bylaws and this Agreement,
it is the intent of the parties hereto that Indemnitee shall enjoy by this
Agreement the greater benefits so afforded by such change. No right or remedy
herein conferred is intended to be exclusive of any other right or remedy, and
every other right and remedy shall be cumulative and in addition to every other
right and remedy given hereunder or now or hereafter existing at law or in
equity or otherwise. The assertion or employment of any right or remedy
hereunder, or otherwise, shall not prevent the concurrent assertion or
employment of any other right or remedy.
8. LIABILITY INSURANCE. To the extent the Company maintains an insurance
policy or policies providing directors' and officers' liability insurance,
Indemnitee shall be covered by such policy or policies in accordance with its or
their terms to the maximum extent of the coverage available for any Company
director or officer. If, at the time the Company receives notice from any source
of a Claim as to which Indemnitee is a party or a participant (as a witness or
otherwise), the Company has director and officer liability insurance in effect,
the Company shall give prompt notice of such Proceeding to the insurers in
accordance with the procedures set forth in the respective policies. The Company
shall thereafter take all necessary or desirable action to cause such insurers
to pay, on behalf of the Indemnitee, all amounts payable as a result of such
Claim in accordance with the terms of such policies. In the event of a Potential
Change in Control (as defined in Section 9), the Company shall maintain in force
any and all insurance policies then maintained by the Company providing
directors' and officers' liability insurance, in respect of Indemnitee, for a
period of six years thereafter. The Company shall indemnify Indemnitee for
Expenses incurred by Indemnitee in connection with any successful action brought
by Indemnitee for recovery under any insurance policy referred to in this
Section 8 and
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shall advance to Indemnitee the Expenses of such action in the manner provided
in Section 3 above.
9. CERTAIN DEFINITIONS.
(a) A "Change in Control" shall be deemed to have occurred if:
(i) before the Company has a class of securities registered under
Section 12 of the Exchange Act:
(A) the Company, or any material subsidiary of the Company,
is merged, consolidated or reorganized into or with another
corporation or other legal person (an "Acquiring Person") or
securities of the Company are exchanged for securities of an
Acquiring Person, and as a result of such merger, consolidation,
reorganization or exchange less than a majority of the combined
voting power of the then outstanding securities of the Acquiring
Person immediately after such transaction are held, directly or
indirectly, in the aggregate by the holders of Voting Securities
immediately prior to such transaction;
(B) the Company, or any material subsidiary of the Company,
in any transaction or series of related transactions, sells or
otherwise transfers all or substantially all of its assets to an
Acquiring Person, and less than a majority of the combined voting
power of the then outstanding securities of the Acquiring Person
immediately after such sale or transfer are held, directly or
indirectly, in the aggregate by the holders of Voting Securities
immediately prior to such sale or transfer;
(C) during any period of two consecutive years, individuals
who at the beginning of any such period constitute the directors
of the Company cease for any reason to constitute at least a
majority thereof, unless the election, or the nomination for
election by the Company's stockholders, of each director of the
Company first elected during such period was approved by a
unanimous vote of the directors of the Company or a committee
thereof authorized to nominate and appoint directors then still
in office who were directors of the Company at the beginning of
any such period;
(D) the Company and its subsidiaries, in any transaction or
series of related transactions, sells or otherwise transfers
business operations that generated two thirds or more of the
consolidated revenues (determined on the basis of the Company's
four most recently completed fiscal quarters) of the Company and
its subsidiaries immediately prior thereto; or
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(E) any other transaction or series of related transactions
occur that have substantially the effect of the transactions
specified in any of the preceding clauses in this paragraph (i);
or
(ii) after the Company has a class of securities registered under
Section 12 of the Exchange Act:
(A) any person, as that term is used in Section 13(d) and
Section 14(d)(2) of the Exchange Act, becomes, is discovered to
be, or files a report on Schedule 13D or 14D-1 (or any successor
schedule, form or report) disclosing that such person is a
beneficial owner (as defined in Rule 13d-3 under the Exchange Act
or any successor rule or regulation), directly or indirectly, of
securities of the Company representing 20% or more of the total
voting power of the Company's then outstanding Voting Securities
(unless such person becomes such a beneficial owner in connection
with the initial public offering of the Company);
(B) individuals who, as of the consummation date of the
Company's initial public offering, constitute the Board of
Directors of the Company cease for any reason to constitute at
least a majority of the Board of Directors of the Company, unless
any such change is approved by a unanimous vote of the members of
the Board of Directors of the Company or a committee thereof
authorized to nominate and appoint directors in office
immediately prior to such cessation;
(C) the Company, or any material subsidiary of the Company,
is merged, consolidated or reorganized into or with another
corporation or legal person (an "Acquiring Person") or securities
of the Company are exchanged for securities of an Acquiring
Person, and immediately after such merger, consolidation,
reorganization or exchange less than a majority of the combined
voting power of the then outstanding securities of the Acquiring
Person immediately after such transaction are held, directly or
indirectly, in the aggregate by the holders of Voting Securities
immediately prior to such transaction;
(D) the Company, or any material subsidiary of the Company,
in any transaction or series of related transactions, sells or
otherwise transfers all or substantially all of its assets to an
Acquiring Person, and less than a majority of the combined voting
power of the then outstanding securities of the Acquiring Person
immediately after such sale or transfer is held, directly or
indirectly, in the aggregate by the holders of Voting Securities
immediately prior to such sale or transfer;
(E) the Company and its subsidiaries, in any transaction or
series of related transactions, sells or otherwise transfers
business operations that generated two thirds or more of the
consolidated revenues
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(determined on the basis of the Company's four most recently
completed fiscal quarters) of the Company and its subsidiaries
immediately prior thereto;
(F) the Company files a report or proxy statement with the
Securities and Exchange Commission pursuant to the Exchange Act
disclosing that a change in control of the Company has or may
have occurred or will or may occur in the future pursuant to any
then existing contract or transaction; or
(G) any other transaction or series of related transactions
occur that have substantially the effect of the transactions
specified in any of the preceding clauses in this paragraph (ii).
Notwithstanding the provisions of Section 9(a)(ii)(A) or 9(a)(ii)(D), unless
otherwise determined in a specific case by majority vote of the Board of
Directors of the Company, a Change of Control shall not be deemed to have
occurred for purposes of this Agreement solely because (i) the Company, (ii) an
entity in which the Company directly or indirectly beneficially owns 50% or more
of the voting securities or (iii) any Company sponsored employee stock ownership
plan, or any other employee benefit plan of the Company, either files or becomes
obligated to file a report or a proxy statement under or in response to Schedule
13D, Schedule 14D-1, Form 8-K or Schedule 14A (or any successor schedule, form
or report or item therein) under the Exchange Act, disclosing beneficial
ownership by it of shares of stock of the Company, or because the Company
reports that a Change in Control of the Company has or may have occurred or will
or may occur in the future by reason of such beneficial ownership.
(b) A "Claim" is any threatened, pending or completed action, suit,
proceeding or alternative dispute resolution mechanism, or any inquiry, hearing
or investigation whether conducted by the Company or any other party, whether
civil, criminal, administrative, investigative or other.
(c) "Expenses" include attorneys' fees and all other costs, fees,
expenses and obligations of any nature whatsoever paid or incurred in connection
with investigating, defending, being a witness in or participating in (including
appeal), or preparing to defend, be a witness in or participate in any Claim
relating to any Indemnifiable Event.
(d) An "Indemnifiable Event" is any event or occurrence (whether
before or after the date hereof) related to the fact that Indemnitee is or was a
director, officer, employee, consultant, agent or fiduciary of or to the
Company, or any subsidiary of the Company, or is or was serving at the request
of the Company as a director, officer, employee, trustee, agent or fiduciary of
another corporation, partnership, joint venture, employee benefit plan, trust or
other enterprise, or by reason of anything done or not done by Indemnitee in any
such capacity.
(e) A "Potential Change in Control" shall be deemed to have occurred
if (i) the Company enters into an agreement, the consummation of which would
result in the occurrence of a Change in Control; (ii) any person (including the
Company) publicly announces
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an intention to take or to consider taking actions which, if consummated, would
constitute a Change in Control; (iii) any person, other than a trustee or other
fiduciary holding securities under an employee benefit plan of the Company or a
corporation owned, directly or indirectly, by the stockholders of the Company in
substantially the same proportions as their ownership of stock of the Company,
who is or becomes the beneficial owner, directly or indirectly, of securities of
the Company representing 9.5% or more of the combined voting power of the
Company's then outstanding Voting Securities, increases such person's beneficial
ownership of such securities by five percentage points or more over the initial
percentage of such securities; or (iv) the Board of Directors of the Company
adopts a resolution to the effect that, for purposes of this Agreement, a
Potential Change in Control has occurred.
(f) A "Reviewing Party" is (i) the Company's Board of Directors
(provided that a majority of directors are not parties to the particular Claim
for which Indemnitee is seeking indemnification) or (ii) any other person or
body appointed by the Company's Board of Directors, who is not a party to the
particular Claim for which Indemnitee is seeking indemnification, or (iii) if
there has been a Change in Control, the special independent counsel referred to
in Section 2 hereof.
(g) "Voting Securities" means any securities of the Company which vote
generally in the election of directors.
10. AMENDMENTS, TERMINATION AND WAIVER. No supplement, modification,
amendment or termination of this Agreement shall be binding unless executed in
writing by both of the parties hereto. No waiver of any of the provisions of
this Agreement shall be deemed or shall constitute a waiver of any other
provisions hereof (whether or not similar) nor shall such waiver constitute a
continuing waiver.
11. CONTRIBUTION. If the indemnification provided in Sections 1 and 3 is
unavailable, then, in respect of any Claim in which the Company is jointly
liable with Indemnitee (or would be if joined in the Claim), the Company shall
contribute to the amount of Expenses, judgments, fines, penalties and amounts
paid in settlement as appropriate to reflect: (i) the relative benefits received
by the Company, on the one hand, and Indemnitee, on the other hand, from the
transaction from which the Claim arose, and (ii) the relative fault of the
Company, on the one hand, and of Indemnitee, on the other, in connection with
the events which resulted in such Expenses, judgments, fines, penalties and
amounts paid in settlement, as well as any other relevant equitable
considerations. The relative fault of the Company, on the one hand, and of
Indemnitee, 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
and Liabilities. The Company agrees that it would not be just and equitable if
contribution pursuant to this Section 11 were determined by pro rata allocation
or any other method of allocation which does not take account of the equitable
considerations described in this Section 11.
12. SUBROGATION. In the event of payment under this Agreement, the Company
shall be subrogated to the extent of such payment to all of the rights of
recovery of Indemnitee, who shall execute all papers required and shall do
everything that may be necessary to secure such
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rights, including the execution of such documents necessary to enable the
Company effectively to bring suit to enforce such rights.
13. NO DUPLICATION OF PAYMENTS. The Company shall not be liable under this
Agreement to make any payment in connection with any Claim made against
Indemnitee to the extent Indemnitee has otherwise actually received payment
(under insurance policy, Certificate of Incorporation or otherwise) of the
amounts otherwise indemnifiable hereunder.
14. BINDING EFFECT. This Agreement shall be binding upon and inure to the
benefit of and be enforceable by the parties hereto and their respective
successors, assigns, including any direct or indirect successor by purchase,
merger, consolidation or otherwise to all or substantially all of the business
and/or assets of the Company, spouse, heirs, and personal and legal
representatives. This Agreement shall continue in effect regardless of whether
Indemnitee continues to serve as a director or officer (or in one of the
capacities enumerated in Section 9(d) hereof) of the Company or of any other
enterprise at the Board of Director's request.
15. SEVERABILITY. The provisions of this Agreement shall be severable in
the event that any of the provisions hereof (including any provision within a
single section, paragraph or sentence) are held by a court of competent
jurisdiction to be invalid, void or otherwise unenforceable, and the remaining
provisions shall remain enforceable to the fullest extent permitted by law.
16. APPLICABLE LAW AND CONSENT TO JURISDICTION. This Agreement and the
legal relations among the parties shall be governed by, and construed and
enforced in accordance with, the laws of the State of Delaware, without regard
to its conflict of laws rules. The Company and Indemnitee hereby irrevocably and
unconditionally (i) agree that any action or proceeding arising out of or in
connection with this Agreement shall be brought only in the Delaware Court and
not in any other state or federal court in the United States of America or any
court in any other country, (ii) consent to submit to the exclusive jurisdiction
of the Delaware Court for purposes of any action or proceeding arising out of or
in connection with this Agreement, (iii) appoint, irrevocably, to the extent
such party is not a resident of the State of Delaware, the Company's resident
agent for the State of Delaware as its agent in the State of Delaware for
acceptance of legal process in connection with any such action or proceeding
against such party with the same legal force and validity as if served upon such
party personally within the State of Delaware, (iv) waive any objection to the
laying of venue of any such action or proceeding in the Delaware Court, and (v)
waive, and agree not to plead or to make, any claim that any such action or
proceeding brought in the Delaware Court has been brought in an improper or
inconvenient forum.
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17. 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 one and the same Agreement. Only one
such counterpart signed by the party against whom enforceability is sought needs
to be produced to evidence the existence of this Agreement.
QUATRX PHARMACEUTICALS COMPANY
By:
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Xxxxxx X. Xxxxx, CEO
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Indemnitee
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