INDEMNIFICATION AGREEMENT
EXHIBIT
10.1
THIS
AGREEMENT (the “Agreement”) is made and entered into as of this ____ day of
__________, 2006, by and between ATHEROGENICS, INC., a Georgia corporation
(the
“Company”), and ________________________ (“Indemnitee”).
Capitalized terms used herein and not otherwise defined shall have the meanings
set forth in Section 16.
RECITALS:
WHEREAS,
Indemnitee performs a valuable service for the Company;
WHEREAS,
the
Bylaws of the Company (the “Bylaws”) and the Georgia Business Corporation Code,
as amended (the “GBCC”), by their nonexclusive nature, permit contracts between
the Company and the officers and directors of the Company with respect to
indemnification of such officers or directors;
WHEREAS,
this
Agreement is a supplement to the provisions of the GBCC and the 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;
and
WHEREAS,
in
recognition of the need to provide Indemnitee with substantial protection
against personal liability, the Company has determined and agreed to enter
into
this Agreement with Indemnitee;
NOW,
THEREFORE,
in
consideration of Indemnitee’s service as an officer or director after the date
hereof, the parties hereto agree as follows:
1. Indemnification
of Indemnitee.
Subject
to Section 5, the Company hereby agrees to hold harmless and indemnify
Indemnitee if Indemnitee is a party to a Proceeding by reason of his Corporate
Status to the maximum extent not prohibited by the GBCC, as the same now exists
or may hereafter be amended (but only to the extent any such amendment permits
the Company to provide broader indemnification rights than the GBCC permitted
the Company to provide prior to such amendment); provided, however, that except
as provided in Section
6, Indemnitee shall not be entitled to indemnification pursuant to this
Agreement in connection with a Proceeding initiated by Indemnitee (other than
in
a Corporate Status capacity) against the Company or any director or officer
of
the Company unless the Company has joined in or consented in writing to the
initiation of such action.
2. Advancement
of Expenses.
(a) Procedure
for Advancement of Expenses.
The
Company shall pay for or reimburse the Expenses incurred by Indemnitee if
Indemnitee was or is a party to a Proceeding because of his Corporate Status
in
advance of final disposition of the Proceeding if:
(i) Indemnitee
furnishes the Company a written affirmation, in a form reasonably acceptable
to
the Company, of his good faith belief that he has met the standard of conduct
set forth in the GBCC or that the Proceeding involves conduct for which
liability has been eliminated under a provision
of
the
Articles of Incorporation as authorized by Section 14-2-202(b)(4) of the
GBCC; and
(ii) Indemnitee
furnishes the Company a written undertaking, in a form reasonably satisfactory
to the Company, to repay any advances if it is ultimately determined that he
is
not entitled to indemnification under this Agreement. Such undertaking must
be
an unlimited general obligation of Indemnitee but need not be secured and may
be
accepted without reference to the financial ability of Indemnitee to make
repayment.
(b) Notwithstanding
any other provision of this Agreement, the Company shall advance any and all
Expenses incurred by or on behalf of Indemnitee in connection with any
Proceeding to which Indemnitee is a party by reason of Indemnitee’s Corporate
Status within fifteen (15) business days after Indemnitee has presented the
affirmation and undertaking required pursuant to Section 2(a). Any advances
and
undertakings to repay pursuant to this Section 2 shall be unsecured and interest
free. Notwithstanding the foregoing, the obligation of the Company to advance
Expenses pursuant to this Section 2 shall be subject to the condition that,
if,
when and to the extent that the Company determines that Indemnitee would not
be
permitted to be indemnified under applicable law, the Company shall be
reimbursed, within thirty (30) days of such determination, by Indemnitee (who
hereby agrees to reimburse the Company) for all such amounts theretofore paid;
provided,
however,
that if
Indemnitee has commenced or thereafter commences legal proceedings in a court
of
competent jurisdiction to secure a determination that Indemnitee should be
indemnified under applicable law, any determination made by the Company 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 advance of Expenses until a final judicial determination is made with
respect thereto (as to which all rights of appeal therefrom have been exhausted
or lapsed).
3. Indemnification
for Expenses of a Party Who is Wholly or Partly Successful.
Notwithstanding any other provision of this Agreement, to the extent that
Indemnitee is, by reason of his Corporate Status, a party to and is successful
on the merits or otherwise in any Proceeding, he shall be indemnified against
reasonable Expenses incurred by him in connection with the Proceeding,
regardless of whether Indemnitee has met the standards set forth in the GBCC
and
without any action or determination in accordance with Section 5. If Indemnitee
is not wholly successful in such Proceeding but is successful on the merits
or
otherwise as to one or more but less than all claims, issues or matters in
such
Proceeding, the Company shall indemnify Indemnitee against all Expenses actually
and reasonably incurred by him or on his behalf in connection with each
successfully resolved claim, issue or matter.
4. Partial
Indemnification.
If
Indemnitee is entitled under any provision of this Agreement to indemnification
by the Company for some or a portion of any costs, claims or losses but not
for
the total amount thereof, the Company shall nevertheless indemnify Indemnitee
for the portion thereof to which Indemnitee is entitled.
5. Procedures
and Presumptions for Determination of Entitlement to
Indemnification.
It is
the intent of this Agreement to secure for Indemnitee rights of indemnification
that are as favorable as may be permitted under the law and public policy of
the
State of Georgia. Accordingly, the parties agree that the following procedures
and presumptions shall apply in the event of any question as to whether
Indemnitee is entitled to indemnification
(a) To
obtain
indemnification (including, but not limited to, the advancement of Expenses)
under this Agreement, Indemnitee shall submit to the Company a written request
in form reasonably satisfactory to the Company, including therein or therewith
such documentation and information as is reasonably available to Indemnitee
and
is reasonably necessary, in the Company’s opinion, to determine whether and to
what extent Indemnitee is entitled to indemnification. The General Counsel
of
the Company (or in the absence of the General Counsel, the Corporate Secretary
of the Company) shall, promptly upon receipt of such a request for
indemnification, advise the Board of Directors in writing that Indemnitee has
requested indemnification. Any Expenses incurred by Indemnitee in connection
with Indemnitee’s request for indemnification hereunder shall be borne by the
Company. The Company hereby indemnifies and agrees to hold Indemnitee harmless
for any Expenses incurred by Indemnitee under the immediately preceding sentence
irrespective of the outcome of the determination of Indemnitee’s entitlement to
indemnification.
(b) The
Company shall not indemnify Indemnitee under Section 1 unless a determination
has been made for a specific Proceeding that indemnification of Indemnitee
is
permissible because Indemnitee has met the standards set forth in the GBCC.
The
determination shall be made:
(i) If
there
are two or more Disinterested Directors, by the Board of Directors by a majority
vote of all the Disinterested Directors (a majority of whom shall for such
purpose constitute a quorum) or by a majority of the members of a committee
of
two or more Disinterested Directors appointed by such a vote;
(ii) By
special legal counsel
(A) selected
in the manner prescribed in paragraph (i) of this subsection; or
(B) if
there
are fewer than two Disinterested Directors, selected by the Board of Directors
(in which selection directors who do not qualify as Disinterested Directors
may
participate); or
(iii) By
the
shareholders, but the shares owned by or voted under the control of the officers
and directors who are at the time parties to the Proceeding may not be voted
on
the determination;
provided,
however, that following a Change of Control of the Company, with respect to
all
matters thereafter arising out of acts, omissions or events prior to the Change
of Control of the Company concerning the rights of Indemnitee to seek
indemnification under this Section 5, such determination shall be made by
special legal counsel nominated by
Indemnitee
and selected by the Board of Directors or its committee in the manner described
in Section 5(b)(ii) above (which selection shall not be unreasonably withheld),
which counsel has not otherwise performed services (other than in connection
with similar matters) within the five years preceding its engagement to render
such opinion for Indemnitee or for the Company or any affiliates (as such term
is defined in Rule 405 under the Securities Act of 1933, as amended) of the
Company (whether or not they were affiliates when services were so performed)
("Independent Counsel"). If Indemnitee fails to nominate Independent Counsel
within ten (10) business days following written request by the Company to
nominate Independent Counsel, legal counsel selected by a resolution or
resolutions of the Board of Directors of the Company prior to a Change of
Control of the Company shall be deemed to have been selected by the Company
as
required. Such Independent Counsel shall determine as promptly as practicable
whether and to what extent Indemnitee would be permitted to be indemnified
under
applicable law and shall render his written opinion to the Company and to
Indemnitee to such effect. The Company agrees to pay the reasonable fees of
the
Independent Counsel referred to above and to fully indemnify such Independent
Counsel against any and all expenses, claims, liabilities and damages arising
out of or relating to this Section 5 or its engagement pursuant
hereto.
(c) If
the
person, persons or entity empowered or selected under Section 5(b) to determine
whether Indemnitee is entitled to indemnification shall not have made a
determination within thirty (30) days after receipt by the Company of the
request therefor, the requisite determination of entitlement to indemnification
shall be deemed to have been made and Indemnitee shall be entitled to such
indemnification, absent (i) a misstatement by Indemnitee of a material fact,
or
an omission of a material fact necessary to make Indemnitee’s statement not
materially misleading, in connection with the request for indemnification,
or
(ii) a prohibition of such indemnification under applicable law; provided,
however,
that
such thirty (30) day period may be extended for a reasonable time, not to exceed
an additional thirty (30) days, if the person, persons or entity making the
determination with respect to entitlement to indemnification in good faith
requires such additional time for the obtaining or evaluating documentation
and/or information relating thereto; and provided,
further,
that
the foregoing provisions of this Section 5(c) shall not apply if the
determination of entitlement to indemnification is to be made by the
shareholders pursuant to Section 5(b)(iii) of this Agreement and if within
fifteen (15) days after receipt by the Company of the request for such
determination (A) the Board of Directors or the Disinterested Directors, if
appropriate, resolve to submit such determination to the shareholders for their
consideration at an annual meeting thereof to be held within ninety (90) days
after such receipt and such determination is made thereat, or (B) a special
meeting of shareholders is called for the purpose of making such determination,
the meeting is held for such purpose within ninety (90) days after having been
so called and the determination is made at the meeting.
(d) Indemnitee
shall cooperate with the person, persons or entity making such determination
with respect to Indemnitee’s entitlement to indemnification, including providing
to such person, persons or entity upon reasonable advance request any
documentation or information which is not privileged or otherwise protected
from
disclosure and
6. Remedies
of Indemnitee; Legal Fees and Expenses.
(a) If
(i) a
determination is made pursuant to Section 5 of this Agreement that Indemnitee
is
not entitled to indemnification under this Agreement, (ii) advancement of
Expenses is not timely made pursuant to Section 2 of this Agreement, (iii)
no
determination of entitlement to indemnification shall have been made pursuant
to
Section 5(b) of this Agreement within one hundred twenty (120) days after
receipt by the Company of the request for indemnification, or (iv) payment
of indemnification is not made within fifteen (15) business days after a
determination has been made that Indemnitee is entitled to indemnification
or
such determination is deemed to have been made pursuant to Section 5 of this
Agreement, Indemnitee shall be entitled to an adjudication in an appropriate
court of the State of Georgia, or in any other court of competent jurisdiction,
of his entitlement to such indemnification or advancement of Expenses.
Indemnitee shall commence such action seeking an adjudication within 270 days
following the date on which Indemnitee first has the right to commence such
action pursuant to this Section 6(a). The Company shall not oppose Indemnitee’s
right to seek any such adjudication.
(b) If
a
determination shall have been made pursuant to Section 5(b) of this Agreement
that Indemnitee is entitled to indemnification, the Company shall be bound
by
such determination in any judicial proceeding commenced pursuant to this Section
6, absent a prohibition of such indemnification under applicable
law.
(c) In
the
event that Indemnitee, pursuant to this Section 6, seeks an interpretation
or
judicial adjudication of his rights under, or to recover damages for breach
of
this Agreement, or to recover under any directors’ and officers’ liability
insurance policies maintained by the Company, the Company shall pay on his
behalf, in advance, any and all expenses (of the types described in the
definition of Expenses in Section 16 of this Agreement) actually and reasonably
incurred by him in such interpretation or judicial adjudication, regardless
of
whether Indemnitee ultimately is determined to be entitled to such
interpretation, indemnification, advancement of expenses or insurance
recovery.
(d) The
Company shall be precluded from asserting in any judicial proceeding commenced
pursuant to this Section 6 that the procedures and presumptions of this
Agreement are not valid, binding and enforceable and shall stipulate in any
such
court that the Company is bound by all the provisions of this
Agreement.
7. Presumption
of Entitlement.
In
making a determination of entitlement to indemnification under this Agreement
pursuant to Section 5, the person or persons making such determination shall
presume that indemnification is permissible unless clearly precluded by this
Agreement or the applicable provisions of the GBCC.
8. No
Presumptions as to Certain Termination Events of Proceeding.
For
purposes of this Agreement, the termination of a Proceeding by judgment, order,
settlement, or conviction, or upon a plea of nolo contendere or its equivalent
is not, of itself, determinative that Indemnitee did not meet the standard
of
conduct set forth in the GBCC.
9. Non-Exclusivity.
The
rights of indemnification as provided by this Agreement (including without
limitation the right to advancement of Expenses) shall be in addition to, and
not in lieu of, any other rights to which Indemnitee may at any time be entitled
under the GBCC, applicable law, the Company’s Articles of Incorporation or
Bylaws, any agreement, a vote of shareholders or a resolution of directors,
or
otherwise. Except as required by applicable law, the Company shall not adopt
any
amendment to its Articles of Incorporation or the Bylaws the effect of which
would be to deny, diminish or encumber Indemnitee’s right to indemnification
under this Agreement. 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 in his
Corporate Status prior to such amendment, alteration or repeal. To the extent
that a change in the GBCC, whether by statute or judicial decision, permits
greater indemnification or advancement of Expenses than would be afforded
currently under the GBCC, 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.
10. Subrogation.
In the
event of any payment under this Agreement, the Company shall be subrogated
to
the extent of such payment to all of the rights of recovery of Indemnitee.
Following receipt of indemnification payments hereunder, as further assurance,
Indemnitee shall execute all papers required and take all action reasonably
necessary to secure such rights, including execution of such documents as are
reasonably necessary to enable the Company to bring suit to enforce such
rights.
11. No
Duplication of Payment.
The
Company shall not be liable under this Agreement to make any payment of amounts
otherwise indemnifiable hereunder if and to the extent that Indemnitee has
otherwise actually received such payment under any insurance policy, contract,
agreement or otherwise.
12. Defense
of Claims.
The
Company shall be entitled to participate in the defense of any Proceeding to
which Indemnitee is a party by reason of his Corporate Status or to assume
the
defense thereof, with counsel reasonably satisfactory to Indemnitee,
provided,
however,
if
Indemnitee, concludes that (a) the use of counsel chosen by the Company to
represent Indemnitee would likely present such counsel with an actual or
potential conflict, (b) the named parties in the Proceeding include both
Indemnitee and the Company and Indemnitee concludes that there may be one or
more legal defenses available to him that are different from or in addition
to
those available to the Company, or (c) any such representation by counsel would
be precluded under the applicable standards of conduct then prevailing, then
Indemnitee shall be entitled to retain separate counsel (but not more than
one
law firm plus, if applicable, local counsel) at the Company’s expense. The
Company shall not be liable to Indemnitee under this Agreement for any amounts
paid in settlement of any Proceeding effected without the
13. Successors
and Binding Agreement.
(a) The
Company shall require any successor (whether direct or indirect, by purchase,
merger, consolidation, reorganization or otherwise) to all or substantially
all
the business or assets of the Company, by agreement in form and substance
satisfactory to Indemnitee and his counsel, expressly to assume and agree to
perform this Agreement in the same manner and to the same extent the Company
would be required to perform if no such succession had taken place. This
Agreement shall be binding upon and inure to the benefit of the Company and
any
successor to the Company, including any person acquiring directly or indirectly
all or substantially all the business or assets of the Company whether by
purchase, merger, consolidation, reorganization or otherwise (and such successor
will thereafter be deemed the “Company” for purposes of this Agreement).
(b) Indemnitee’s
right to indemnification and advancement of Expenses pursuant to this Agreement
shall continue regardless of whether Indemnitee has ceased for any reason his
service to the Company and this Agreement shall inure to the benefit of and
be
enforceable by Indemnitee’s personal or legal representatives, executors,
administrators, successors, spouses, heirs, assigns and other
successors.
(c) This
Agreement is personal in nature and neither of the parties hereto shall, without
the prior written consent of the other, assign or delegate this Agreement or
any
rights or obligations hereunder except as expressly provided in Sections 13(a)
and 13(b).
14. Duration
of Agreement.
This
Agreement, including the obligations of the Company to indemnify Indemnitee,
shall survive regardless of the termination of Indemnitee’s Corporate Status.
This Agreement shall be binding upon and inure to the benefit of and be
enforceable by the parties hereto and their respective successors (including
any
direct or indirect successor by purchase, merger, consolidation, reorganization
or otherwise to all or substantially all of the business or assets of the
Company), assigns, spouses, heirs, executors, administrators and personal and
legal representatives.
15. Enforcement/Reliance.
(a) The
Company expressly confirms and agrees that it has entered into this Agreement
and assumed the obligations imposed on it hereby in order to induce Indemnitee
to serve as an officer or director of the Company, and the Company acknowledges
that Indemnitee is relying upon this Agreement in serving as a director or
officer of the Company.
(b) This
Agreement constitutes the entire agreement between the parties hereto with
respect to the subject matter hereof and supersedes all prior agreements and
16. Definitions.
For
purposes of this Agreement:
(a) “Change
of Control” means (1) an acquisition by a person of beneficial ownership of 20%
or more of the combined voting power of the Company's then outstanding voting
securities, provided that any such securities acquired directly from the Company
shall be excluded from the determination of such person's beneficial ownership
(but shall be included in calculating total outstanding securities); or (2)
the
individuals who are members of the Incumbent Board cease for any reason to
constitute two-thirds of the Board of Directors; or (3) approval by the
shareholders of the Company of (i) a merger or consolidation involving the
Company if the shareholders of the Company, immediately before such merger
or
consolidation, do not own, immediately following such merger or consolidation,
more than 80% of the combined voting power of the outstanding voting securities
of the resulting corporation in substantially the same proportion as their
ownership of voting securities immediately before such merger or consolidation
or (ii) a complete liquidation or dissolution of the Company or an agreement
for
the sale or other disposition of all or substantially all of the assets of
the
Company.
Notwithstanding
the foregoing, a Change of Control shall not be deemed to occur solely because
twenty percent (20%) or more of the then outstanding voting securities is
acquired by (i) a trustee or other fiduciary holding securities under one or
more employee benefit plans maintained by the Company or any of its subsidiaries
or (ii) any corporation which, immediately prior to such acquisition, is owned
directly or indirectly by the shareholders of the Company in the same proportion
as their ownership of shares in the Company immediately prior to such
acquisition.
Moreover,
notwithstanding the foregoing, a change of control shall not be deemed to occur
solely because any person (the "Subject Person") acquired beneficial ownership
of more than the permitted amount of the outstanding voting securities as a
result of the acquisition of voting securities by the Company which, by reducing
the number of voting securities outstanding increases the proportional number
of
shares beneficially owned by the Subject Person, provided, that if a Change
of
Control would occur (but for the operation of this sentence) as a result of
the
acquisition of voting securities by the Company, and after such share
acquisition by the Company, the Subject Person becomes the beneficial owner
of
any additional voting securities which increases the percentage of the then
outstanding voting securities beneficially owned by the Subject Person, then
a
Change of Control shall occur.
(b) “Corporate
Status” describes the status of a person who is or was a director of the Company
or an individual who, while a director of the Company, is or was serving at
the
Company’s request as a director, officer, partner, trustee, employee,
administrator or agent of another foreign or domestic corporation, partnership,
joint venture, trust, employee benefit plan, entity, or other enterprise.
Corporate Status also describes a person’s service in connection with an
employee benefit plan at the Company’s request if his duties to the Company also
impose duties on, or otherwise involve services by, him to the plan or to
participants in or beneficiaries of the plan. Corporate Status includes, in
reference to a particular person unless the context requires otherwise, the
estate or personal representative of such person.
(c) “Disinterested
Director” means a director who at the time of a vote referred to in Section 3(b)
of this Agreement or a vote or selection referred to in Section 4(b) or 4(c)
is
not:
(i) A
party
to the Proceeding; or
(ii) An
individual who is a party to a Proceeding having a familial, financial,
professional, or employment relationship with the director whose indemnification
or advance for expenses is the subject of the decision being made with respect
to the proceeding, which relationship would, in the circumstances, reasonably
be
expected to exert an influence on the director's judgment when voting on the
decision being made.
(d) “Expenses”
include the reasonable out-of-pocket fees and expenses incurred by Indemnitee,
including counsel fees and expenses.
(e) “Incumbent
Board” includes the individuals who as of ______, 2006 are members of the Board
of Directors and any individual becoming a director subsequent to _____, 2006
whose election, or nomination for election by the corporation's shareholders
was
approved by a vote of at least two-thirds of the directors then comprising
the
Incumbent Board; provided,
however,
that
any individual who is not a member of the incumbent board at the time he or
she
becomes a member of the Board of Directors shall become a member of the
incumbent board upon the completion of two full years as a member of the Board
of Directors; provided further,
however,
that
notwithstanding the foregoing, no individual shall be considered a member of
the
incumbent board if such individual initially assumed office (1) as a result
of
either an actual or threatened "election contest" (within the meaning of Rule
14a-11 promulgated under the 0000 Xxx) or other actual or threatened
solicitation of proxies or consents by or on behalf of a person other than
the
Board of Directors (a "Proxy Contest") or (2) with the approval of the other
members of the Board of Directors, but by reason of any agreement intended
to
avoid or settle a Proxy Contest.
(f) “Proceeding”
means any threatened, pending, or completed action, suit, or proceeding,
including discovery, whether civil, criminal, administrative, arbitrative,
or
investigative, whether formal or informal and including any action brought
under
the federal securities laws.
17. Severability.
If any
provision or provisions of this Agreement shall be held by a court of competent
jurisdiction to be invalid, void, illegal or otherwise unenforceable for any
reason whatsoever: (a) the validity, legality and enforceability of the
remaining provisions of this Agreement (including without limitation, each
portion of any section of this Agreement containing any such provision held
to
be invalid, illegal or unenforceable, that is not itself invalid, illegal or
unenforceable) shall not in any way be affected or impaired thereby and shall
remain enforceable to the fullest extent permitted by law; and (b) to the
fullest extent possible, the provisions of this Agreement (including, without
limitation, each portion of any section of this Agreement containing any such
provision held to be invalid, illegal or unenforceable, that is not itself
invalid, illegal or unenforceable) shall be construed so as to give effect
to
the intent manifested thereby.
18. Modification
and Waiver.
No
supplement, modification, termination or amendment 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.
19. Notice
By Indemnitee.
Indemnitee agrees promptly to notify the Company in writing upon being served
with any summons, citation, subpoena, complaint, indictment, information or
other document relating to any Proceeding or matter which may be subject to
indemnification covered hereunder. The failure to so notify the Company shall
not relieve the Company of any obligation which it may have to Indemnitee under
this Agreement or otherwise unless and only to the extent that such failure
or
delay materially prejudices the Company.
20. Notices.
All
notices, requests, demands and other communications hereunder shall be in
writing 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:
(a)
If to
Indemnitee, to:
_____________________
_____________________
_____________________
(b)
If to
the Company, to:
AtheroGenics,
Inc.
0000
Xxxxxxxx Xxxxxxx
Xxxxxxxxxx,
XX. 00000
Attention:
General Counsel
or
to
such other address as may have been furnished to Indemnitee by the Company
or to
the Company by Indemnitee, as the case may be.
21. 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.
22. Headings.
The
headings of the paragraphs of this Agreement are inserted for convenience only
and shall not be deemed to constitute part of this Agreement or to affect the
construction thereof.
23. Governing
Law.
The
parties agree that this Agreement shall be governed by, and construed and
enforced in accordance with, the laws of the State of Georgia without
application of the conflict of laws principles thereof. The Company and
Indemnitee each hereby irrevocably consent to the jurisdiction of the courts
of
the State of Georgia for all purposes in
24. Gender.
Use of
the masculine pronoun shall be deemed to include usage of the feminine pronoun
where appropriate.
IN
WITNESS WHEREOF, the parties hereto have executed this Agreement on and as
of
the day and year first above written.
ATHEROGENICS,
INC.
By:______________________________
Name:____________________________
Title:_____________________________
OFFICER:
_________________________________
Name:
Address:
___________________________
___________________________
___________________________
