EXHIBIT 10.19
PROMISSORY NOTE AND STOCK PLEDGE AGREEMENT
$200,000.00 AS OF DECEMBER 26, 0000
XXXXXXXXXX, XXXXXXX
Pursuant to the Truth-in-Lending Act, 15 U.S.C. 1601 et seq. and
applicable regulations, 00 XXX 000, we (AtheroGenics, Inc., a Georgia
corporation) hereby make the following financial disclosures regarding this
Promissory Note and Stock Pledge Agreement (the "Agreement"):
ANNUAL PERCENTAGE RATE FINANCE CHARGE AMOUNT FINANCED
The cost of your Initial Loan Principal The dollar amount the Initial Loan The amount of Initial Loan Principal
as a yearly rate. Principal will cost you. provided to you or on your behalf.
2.48% $15,252.07 $200,000
FOR VALUE RECEIVED, you (the undersigned Xxxxxxxx Xxxxx), a resident of
the state of Delaware hereby promise to pay us the principal amount of TWO
HUNDRED THOUSAND AND NO/100 DOLLARS ($200,000.00), together with interest
accruing in accordance with section 1 below, from the date hereof through the
Maturity Date identified in section 2 below, all upon the terms and conditions
specified below.
1. ACCRUAL AND CALCULATION OF INTEREST. Commencing immediately,
interest shall accrue at the rate of 2.48% per annum, based on a 365-day year,
which is the current short-term applicable federal rate. Interest shall accrue
for each day (365 days per year, 366 days per leap year) on which any unpaid
principal amounts, but shall not accrue on the day on which you repay funds.
2. PAYMENT OF PRINCIPAL AND INTEREST. The principal amount
evidenced by this Agreement (the "Principal") shall be payable in full on the
third anniversary of the date hereof (the "Maturity Date"), at which time the
entire outstanding balance of the Principal, together with all accrued but
unpaid interest thereon ("Interest"), shall be due and payable in full; provided
that if your employment with us terminates for any reason prior to the Maturity
Date, the entire outstanding balance of the Principal and Interest shall become
immediately due and payable as of the date of termination of employment. Your
obligation to repay Principal and Interest is absolute and unconditional, and
shall be owed without any abatement, postponement, diminution or deduction and
without any reduction for counterclaim or setoff. All payments shall be in the
form of cash, cashier's check, or other form of same day funds.
3. PREPAYMENT. You may prepay Principal in whole or in part at
any time and from time to time without the payment of any premium or penalty.
All prepayments in whole or in part of the Principal shall include interest
accrued but unpaid through the date of prepayment on the amount of Principal
being prepaid.
4. DEFAULT. Should you either (I) fail to pay Principal and
Interest promptly when due (whether on the Maturity Date, upon acceleration or
otherwise), any Principal, Interest or other payment obligation as stipulated
herein, or (II) breach any other warranty, representation, covenant, term or
condition of this Agreement, then a "Default" shall exist and you agree to pay
all reasonable and actual out-of-pocket costs and expenses, including reasonable
attorneys' fees,
that we may reasonably incur following a Default in the collection of the
indebtedness evidenced by this Agreement or in enforcing any of our associated
rights, powers, remedies and privileges.
5. PLEDGE. As security for the performance of your obligations
under this Agreement (including the immediate payment of all amounts (the
"Obligations"), you hereby pledge, transfer, assign, and grant to us a
continuing first-priority lien upon and security interest in and to 41,000
shares of our common stock, no par value per share, that you have owned for at
least six months (having a value constituting 125% of the Principal), which
shares are represented by stock certificate number AG506 (the "Certificate"),
regardless of where such shares may be located and whether such shares may be in
the possession of you, us, or a third party, together with all income and
profits thereon, and all dividends and other payments and distributions with
respect thereto, and all proceeds of the foregoing (the "Collateral").
You represent and warrant to us that you own the Collateral, free and
clear of any and all liens, claims, or encumbrances other than our interest in
the Collateral. those created pursuant to this Agreement. You agree not to
create, incur, assume or suffer to exist any lien, claim or encumbrance upon or
security interest in the Collateral, other than our interest in the Collateral.
You further agree to obtain our written consent before selling or otherwise
disposing of, or granting any option with respect to, any of the Collateral.
Further, you shall, at any time and from time to time, at your expense, promptly
execute and deliver all further documents, and take all further action, that may
be necessary or desirable, or that we may reasonably request, in order to
perfect and protect the security interest granted or purported to be granted
hereby or to enable us to exercise and enforce our rights and remedies with
respect to any Collateral.
The Certificate, together with the Stock Power attached hereto as
Exhibit A, each duly endorsed in blank, shall be delivered to and held by or on
your behalf pursuant to the terms hereof. Upon the final satisfaction of all
Obligations, we shall redeliver the Certificate to you and shall execute such
documents as you shall reasonably request to evidence the termination of our
security interest and the release of our rights to any Collateral.
6. REMEDIES FOR DEFAULT. In the event of a Default, we shall have
the right to sell the Collateral, the proceeds of which shall first be used to
repay the outstanding balance of the Principal, together with all Interest. We
shall return to you any excess Collateral or sales proceeds remaining after
satisfaction of the Obligations. If the proceeds from the sale of the Collateral
are not sufficient to satisfy the Obligations, you shall reimburse us for any
difference, up to but not exceeding the maximum amount of the Alternative
Minimum Tax credit carry forward you used (received) in the year of sale of the
Collateral. We shall also have the rights and remedies provided by law for a
secured party (including, without limitation, those provided under Title 11 of
the Official Code of Georgia, as in effect from time to time). Such rights and
remedies are hereby incorporated herein and made a part of this Agreement.
7. GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of Georgia, without regard to
the rules governing conflicts of laws.
8. SUCCESSORS AND PERMITTED ASSIGNS. This Agreement shall inure
to the benefit of and be binding upon each of us and our respective heirs,
executors, administrators, legal representatives, successors,
successors-in-title and permitted assigns, subject to the restrictions on
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transfer contained herein. As used herein, "you" and "we" includes our
respective heirs, executors, legal representatives, successors,
successors-in-title and permitted assigns, whether by voluntary action of the
parties or by operation of law.
9. SEVERABILITY. The unenforceability or invalidity of any
provision of this Agreement shall not affect the enforceability or validity of
any other provision herein.
10. INTERPRETATION. All headings used herein are used for
convenience only and shall not be used to construe or interpret this Agreement.
IN WITNESS WHEREOF, we have voluntarily and mutually agreed on this
Agreement, on the date first above written.
"YOU"
/s/ XXXXXXXX XXXXX
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XXXXXXXX XXXXX, M.D.
Attest: /s/ XXXX X. XXXXX
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"US"
ATHEROGENICS, INC.
By /s/ XXXX X. XXXXXXXXX
---------------------------------
A duly authorized officer
Attest: /s/ XXXXXXX X. XXXXXXX
-------------------------
Name: Xxxx X. Xxxxxxxxx
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EXHIBIT A
STOCK POWER
FOR VALUE RECEIVED, the undersigned does hereby sell, deliver, assign
and transfer unto AtheroGenics, Inc. (the "Company") his right, title and
interest in 41,000 shares of the common stock, no par value per share, of the
Company standing in the undersigned's name on the books of the Company,
represented by the attached Certificate No. AG506 (the "Shares"), and hereby
irrevocably constitutes and appoints the Secretary of the Company
attorney-in-fact to transfer, redeem, and cancel such Shares on the books of the
Company with full power of substitution in the premises.
DATED:
/s/ XXXXXXXX XXXXX
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Xxxxxxxx Xxxxx, M.D.
