EXHIBIT 10.27
NEGATIVE PLEDGE AGREEMENT
This Negative Pledge Agreement is made as of December 29, 2003, by and
between ATHEROGENICS, INC. ("Borrower") and SILICON VALLEY BANK ("Bank").
In connection with, among other documents, the Loan and Security
Agreement dated March 6, 2002 between Borrower and Bank and the Third
Modification Agreement being concurrently executed herewith between Borrower and
Bank (the "Loan Documents"), Borrower agrees as follows:
1. Borrower shall not sell, transfer, assign, mortgage, pledge,
lease, grant a security interest in, or encumber, or enter
into any agreement, document, instrument or other arrangement
(except with or in favor of Bank and except as permitted by
the Loan Documents) with any Person which directly or
indirectly prohibits or has the effect of prohibiting Borrower
from selling, transferring, assigning, mortgaging, pledging,
leasing, granting a security interest in or upon, or
encumbering any of Borrower's (i) Intellectual Property (as
defined in the Loan and Security Agreement) and (ii) cash,
deposit accounts and securities accounts maintained with Bank
and/or any of Bank's affiliates, including, without
limitation, the following:
(a) Any and all copyright rights, copyright applications,
copyright registrations and like protections in each
work or authorship and derivative work thereof,
whether published or unpublished and whether or not
the same also constitutes a trade secret, now or
hereafter existing, created, acquired or held;
(b) All mask works or similar rights available for the
protection of semiconductor chips, now owned or
hereafter acquired;
(c) Any and all trade secrets, and any and all
intellectual property rights in computer software and
computer software products now or hereafter existing,
created, acquired or held;
(d) Any and all design rights which may be available to
Borrower now or hereafter existing, created, acquired
or held;
(e) All Patents, patent applications and like protections
including, without limitation, improvements,
divisions, continuations, renewals, reissues,
extensions and continuations-in-part of the same,
including without limitation the patents and patent
applications;
(f) Any trademark and servicemark rights, whether
registered or not, applications to register and
registrations of the same and like protections, and
the entire goodwill of the business of Borrower
connected with and symbolized by such trademarks;
(g) Any and all claims for damages by way of past,
present and future infringements of any of the rights
included above, with the right, but not the
obligation, to sue for and collect such damages for
said use or infringement of the intellectual property
rights identified above;
(h) All licenses or other rights to use any of the
Copyrights, Patents or Trademarks, and all license
fees and royalties arising from such use to the
extent permitted by such license or rights;
(i) All amendments, extensions, renewals and extensions
of any of the Copyrights, Trademarks or Patents;
(j) Any and all cash, deposit accounts, securities,
securities entitlements, securities accounts, and
certificates of deposit pledged to or maintained with
Bank and/or any of Bank's affiliates.
(k) All proceeds and products of the foregoing, including
without limitation all payments under insurance or
any indemnity or warranty payable in respect of any
of the foregoing.
2. It shall be an event of default under the Loan Documents
between Borrower and Bank if there is a breach of any term of
this Negative Pledge Agreement.
3. Borrower hereby authorizes Bank to file or amend any Uniform
Commercial Code financing statement in order to give public
notice of the terms of this Negative Pledge Agreement.
4. Capitalized terms used but not otherwise defined herein shall
have the same meaning as in the Loan Documents.
5. This Negative Pledge Agreement replaces and supercedes the
existing Negative Pledge Agreement dated as of March 6, 2002
by and between Borrower and Bank.
BORROWER:
ATHEROGENICS, INC.
By: /s/MARK P. COLONNESE
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Name: Mark P. Colonnese
Title: Chief Financial Officer
BANK:
SILICON VALLEY BANK
By: /s/ANGELA HART
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Name: Angela Hart
Title: Vice President