EXHIBIT 4.04
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY (55 WATER STREET, NEW YORK, NEW YORK) (THE
"DEPOSITARY", WHICH TERM INCLUDES ANY SUCCESSOR DEPOSITARY FOR THE CERTIFICATES)
TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT,
AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH
OTHER NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY (AND
ANY PAYMENT HEREIN IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED
BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY), ANY TRANSFER, PLEDGE, OR
OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH
AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
ATHEROGENICS, INC.
4 1/2% CONVERTIBLE NOTE DUE 2008
CUSIP: 047439 AA2
No. 1 $100,000,000
AtheroGenics, Inc., a corporation duly organized and validly existing
under the laws of the State of Georgia (herein called the "COMPANY", which term
includes any successor corporation under the Indenture referred to on the
reverse hereof), for value received hereby promises to pay to Cede & Co., as the
nominee of The Depository Trust Company, or its registered assigns, the
principal sum set forth on Schedule I hereto on September 1, 2008 at the office
or agency of the Company maintained for that purpose in accordance with the
terms of the Indenture, in such coin or currency of the United States of America
as at the time of payment shall be legal tender for the payment of public and
private debts, and to pay interest, semiannually on March 1 and September 1 of
each year, commencing March 1, 2004, on said principal sum, in like coin or
currency, at the rate per annum of 4-1/2%, from the March 1 or September 1, as
the case may be, next preceding the date of this Note to which interest has been
paid or duly provided for, unless the date hereof is a date to which interest
has been paid or duly provided for, in which case from the date of this Note, or
unless no interest has been paid or duly provided for on the Notes, in which
case from August 19, 2003, until payment of said principal sum has been made or
duly provided for. Notwithstanding the foregoing, if the date hereof is after
any February 15 or August 15, as the case may be, and before the following March
1 or September 1, this Note shall bear interest from such March 1 or September
1; provided that if the Company shall default in the payment of interest due on
such March 1 or September 1, then this Note shall bear interest from the next
preceding March 1 or September 1 to which interest has been paid or duly
provided for or, if no interest
has been paid or duly provided for on such Note, from August 19, 2003. Except as
otherwise provided in the Indenture, the interest payable on this Note pursuant
to the Indenture on any March 1 or September 1 will be paid to the Person
entitled thereto as it appears in the Note Register at the close of business on
the record date, which shall be the February 15 or August 15 (whether or not a
Business Day) next preceding such March 1 or September 1, as provided in the
Indenture; provided that any such interest not punctually paid or duly provided
for shall be payable as provided in Section 2.03 of the Indenture. Interest on
the Notes shall be computed on the basis of a 360-day year of twelve 30-day
months.
The Company shall pay interest (i) on any Notes in certificated form by
check mailed to the address of the Person entitled thereto as it appears in the
Note Register (or, upon written notice by such Person, by wire transfer in
immediately available funds, if such Person is entitled to interest on aggregate
principal in excess of $2.0 million) or (ii) on any Global Note by wire transfer
of immediately available funds to the account of the Depositary or its nominee.
The Company promises to pay interest on overdue principal, premium, if
any, and (to the extent that payment of such interest is enforceable under
applicable law) interest and Liquidated Damages, if any, at the rate of 1%, per
annum.
Reference is made to the further provisions of this Note set forth on the
reverse hereof, including, without limitation, provisions giving the holder of
this Note the right to convert this Note into Common Stock of the Company on the
terms and subject to the limitations referred to on the reverse hereof and as
more fully specified in the Indenture. Such further provisions shall for all
purposes have the same effect as though fully set forth at this place.
This Note shall be deemed to be a contract made under the laws of the
State of New York, and for all purposes shall be construed in accordance with
and governed by the laws of the State of New York, without regard to conflicts
of laws principles thereof.
This Note shall not be valid or become obligatory for any purpose until
the certificate of authentication hereon shall have been manually signed by the
Trustee or a duly authorized authenticating agent under the Indenture.
2
IN WITNESS WHEREOF, the Company has caused this Note to be duly executed.
ATHEROGENICS, INC.
By: /s/ RUSSELL M. MEDFORD
---------------------------
By: /s/ MARK P. COLONNESE
---------------------------
3
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes described in the within-named Indenture.
Dated: August 19, 2003
THE BANK OF NEW YORK Trust
COMPANY OF FLORIDA N.A., as Trustee
By: /s/ DEREK C. KETTEL
---------------------------------
Authorized Signatory
, or
By: ________________________________
As Authenticating Agent
(if different from Trustee)
By: ________________________
Authorized Signatory
4
FORM OF REVERSE OF NOTE
ATHEROGENICS, INC.
4 1/2% CONVERTIBLE NOTE DUE 2008
This Note is one of a duly authorized issue of Notes of the Company,
designated as its 4 1/2% Convertible Notes Due 2008 (herein called the "NOTES"),
limited in aggregate principal amount to $100,000,000, issued and to be issued
under and pursuant to an Indenture dated as of August 19, 2003 (herein called
the "INDENTURE"), between the Company and The Bank of New York Trust Company of
Florida N.A., as trustee (herein called the "TRUSTEE"), to which Indenture and
all indentures supplemental thereto reference is hereby made for a description
of the rights, limitations of rights, obligations, duties and immunities
thereunder of the Trustee, the Company and the holders of the Notes.
The Notes are issuable in fully registered form, without coupons, in
denominations of $1,000 principal amount and any multiple of $1,000. Upon due
presentment for registration of transfer of this Note at the office or agency of
the Company maintained for that purpose in accordance with the terms of the
Indenture, a new Note or Notes of authorized denominations for an equal
aggregate principal amount will be issued to the transferee in exchange thereof,
subject to the limitations provided in the Indenture, without charge except for
any tax, assessment or other governmental charge imposed in connection
therewith.
The Notes are not subject to redemption through the operation of any
sinking fund and may not be redeemed at the option of the Company prior to
maturity.
If a Designated Event occurs at any time prior to maturity of the Notes,
this Note will be redeemable at the option of the holder of this Note at a
redemption price equal to 100% of the principal amount hereof, together with
accrued interest and Liquidated Damages, if any to (but excluding) the
redemption date, as provided in Article 3 of the Indenture.
Subject to compliance with the provisions of the Indenture, prior to the
close of business on the final maturity date of the Notes, the holder hereof has
the right, at its option, to convert each $1,000 principal amount of this Note
into 65.1890 shares (the "CONVERSION RATE") of the Company's Common Stock, as
such shares shall be constituted at the date of conversion and subject to
adjustment from time to time as provided in the Indenture.
5
No adjustment in respect of interest on any Note converted or dividends on
any shares issued upon conversion of such Note will be made upon any conversion
except as set forth in the next sentence. If this Note (or portion hereof) is
surrendered for conversion during the period from the close of business on any
record date for the payment of interest to the close of business on the Business
Day preceding the following interest payment date, this Note (or portion hereof
being converted) must be accompanied by payment, in immediately available funds
or other funds acceptable to the Company, of an amount equal to the interest
otherwise payable on such interest payment date on the principal amount being
converted; provided that no such payment shall be required (1) if the Company
has specified a redemption date following a Designated Event that is after a
record date and on or prior to the next interest payment date or (2) to the
extent of any overdue interest at the time of conversion with respect to this
Note.
No fractional shares will be issued upon any conversion, but an adjustment
and payment in cash will be made, as provided in the Indenture, in respect of
any fraction of a share which would otherwise be issuable upon the surrender of
any Note or Notes for conversion.
A Note in respect of which a holder is exercising its right to require
redemption upon a Designated Event may be converted only if such holder
withdraws its Redemption Notice in accordance with the terms of the Indenture.
In case an Event of Default shall have occurred and be continuing, the
principal of, premium, if any, and accrued interest, on all Notes may be
declared by either the Trustee or the holders of not less than 25% in aggregate
principal amount of the Notes then outstanding, and upon said declaration shall
become, due and payable, in the manner, with the effect and subject to the
conditions provided in the Indenture.
The Indenture contains provisions permitting the Company and the Trustee,
with the consent of the holders of at least a majority in aggregate principal
amount of the Notes at the time outstanding, to execute supplemental indentures
adding any provisions to or changing in any manner or eliminating any of the
provisions of the Indenture or of any supplemental indenture or modifying in any
manner the rights of the holders of the Notes, subject to the exceptions set
forth in Section 12.02 of the Indenture. Subject to the provisions of the
Indenture, the holders of a majority in aggregate principal amount of the Notes
at the time outstanding may on behalf of the holders of all of the Notes waive
any past default or Event of Default, subject to the exceptions set forth in the
Indenture. Any such consent or waiver by the holder of this Note (unless revoked
as provided in the Indenture) shall be conclusive and binding upon such holder
and upon all future holders and owners of this Note and any Notes which may be
issued in exchange or substitution hereof, irrespective of whether or not any
notation thereof is made upon this Note or such other Notes.
6
No reference herein to the Indenture and no provision of this Note or of
the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of and any premium and
interest, on this Note at the place, at the respective times, at the rate and in
the coin or currency herein prescribed.
The Company, the Trustee, any authenticating agent, any paying agent, any
conversion agent and any Note Registrar may deem and treat the registered holder
hereof as the absolute owner of this Note (whether or not this Note shall be
overdue and notwithstanding any notation of ownership or other writing hereon
made by anyone other than the Company or any Note Registrar) for the purpose of
receiving payment hereof, or on account hereof, for the conversion hereof and
for all other purposes, and neither the Company nor the Trustee nor any other
authenticating agent nor any paying agent nor other conversion agent nor any
Note Registrar shall be affected by any notice to the contrary. All payments
made to or upon the order of such registered holder shall, to the extent of the
sum or sums paid, satisfy and discharge liability for monies payable on this
Note.
No recourse for the payment of the principal of or any premium or interest
on this Note, or for any claim based hereon or otherwise in respect hereof, and
no recourse under or upon any obligation, covenant or agreement of the Company
in the Indenture or any supplemental indenture or in any Note, or because of the
creation of any indebtedness represented thereby, shall be had against any
incorporator, stockholder, employee, agent, officer or director or subsidiary,
as such, past, present or future, of the Company or of any successor
corporation, either directly or through the Company or any successor
corporation, whether by virtue of any constitution, statute or rule of law or by
the enforcement of any assessment or penalty or otherwise, all such liability
being, by acceptance hereof and as part of the consideration for the issue
hereof, expressly waived and released.
Terms used in this Note and defined in the Indenture are used herein as
therein defined.
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ABBREVIATIONS
The following abbreviations, when used in the inscription of the face of
this Note, shall be construed as though they were written out in full according
to applicable laws or regulations.
TEN COM - as tenants in common UNIF GIFT MIN ACT - ___ Custodian ___
TEN ENT - as tenant by the entireties (Cust) (Minor)
JT TEN - as joint tenants with under Uniform Gifts to Minors Act
right of survivorship
and not as tenants in common __________________________________
(State)
Additional abbreviations may also be used though not in the above list.
CONVERSION NOTICE
TO: ATHEROGENICS, INC.
THE BANK OF NEW YORK Trust Company of Florida N.A.
The undersigned registered owner of this Note hereby irrevocably exercises
the option to convert this Note, or the portion thereof (which is $1,000 or a
multiple thereof) below designated, into shares of Common Stock of AtheroGenics,
Inc. in accordance with the terms of the Indenture referred to in this Note, and
directs that the shares issuable and deliverable upon such conversion, together
with any check in payment for fractional shares and any Notes representing any
unconverted principal amount hereof, be issued and delivered to the registered
holder hereof unless a different name has been indicated below. Capitalized
terms used herein but not defined shall have the meanings ascribed to such terms
in the Indenture. If shares or any portion of this Note not converted are to be
issued in the name of a person other than the undersigned, the undersigned will
provide the appropriate information below and pay all transfer taxes payable
with respect thereto. Any amount required to be paid by the undersigned on
account of interest accompanies this Note.
Dated: _____________________
__________________________
__________________________
Signature(s)
Signature(s) must be guaranteed by an
"ELIGIBLE GUARANTOR INSTITUTION" meeting
the requirements of the Note Registrar,
which requirements include membership or
participation in the Security Transfer
Agent Medallion Program ("STAMP") or such
other "SIGNATURE GUARANTEE PROGRAM" as
may be determined by the Note Registrar
in addition to, or in substitution for,
STAMP, all in accordance with the
Securities Exchange Act of 1934, as
amended.
__________________________
Signature Guarantee
Fill in the registration of shares of Common Stock if to be issued, and
Notes if to be delivered, other than to and in the name of the registered
holder:
________________________________
(Name)
________________________________
(Street Address)
________________________________
(City, State and Zip Code)
________________________________
Please print name and address
Principal amount to be converted
(if less than all):
$_______________________________
Social Security or Other Taxpayer
Identification Number:
________________________________
OPTION TO ELECT REDEMPTION
UPON A DESIGNATED EVENT
TO: ATHEROGENICS, INC.
THE BANK OF NEW YORK Trust Company of Florida N.A.
The undersigned registered owner of this Note hereby irrevocably
acknowledges receipt of a notice from AtheroGenics, Inc. (the "COMPANY") as to
the occurrence of a Designated Event with respect to the Company and requests
and instructs the Company to redeem the entire principal amount of this Note, or
the portion thereof (which is $1,000 or a multiple thereof) below designated, in
accordance with the terms of the Indenture referred to in this Note at the price
of 100% of such entire principal amount or portion thereof, together with
accrued interest and Liquidated Damages, if any, to, but excluding, the
Designated Event Redemption Date, to the registered holder hereof. Capitalized
terms used herein but not defined shall have the meanings ascribed to such terms
in the Indenture.
Dated: ______________________
____________________________
____________________________
Signature(s)
NOTICE: The above signatures of the
holder(s) hereof must correspond with the
name as written upon the face of the Note
in every particular without alteration or
enlargement or any change whatever.
Principal amount to be redeemed (if less
than all):
____________________________
____________________________
Social Security or Other Taxpayer
Identification Number
ASSIGNMENT
For value received ______________________________ hereby sell(s) assign(s)
and transfer(s) unto ___________________________________ (Please insert social
security or other Taxpayer Identification Number of assignee) the within Note,
and hereby irrevocably constitutes and appoints
______________________________________ attorney to transfer said Note on the
books of the Company, with full power of substitution in the premises.
In connection with any transfer of the Note prior to the expiration of the
holding period applicable to sales thereof under Rule 144(k) under the
Securities Act (or any successor provision) (other than any transfer pursuant to
a registration statement that has been declared effective under the Securities
Act), the undersigned confirms that such Note is being transferred:
[ ] To AtheroGenics, Inc. or a subsidiary thereof; or
[ ] To a "QUALIFIED INSTITUTIONAL BUYER" in compliance with Rule 144A
under the Securities Act of 1933, as amended; or
[ ] Pursuant to and in compliance with Rule 144 under the Securities Act
of 1933, as amended; or
[ ] Pursuant to a Registration Statement which has been declared
effective under the Securities Act of 1933, as amended, and which
continues to be effective at the time of transfer;
and unless the Note has been transferred to AtheroGenics, Inc. or a subsidiary
thereof, the undersigned confirms that such Note is not being transferred to an
"AFFILIATE" of the Company as defined in Rule 144 under the Securities Act of
1933, as amended.
Unless one of the boxes is checked, the Trustee will refuse to register
any of the Notes evidenced by this certificate in the name of any person other
than the registered holder thereof.
Dated: ______________________
____________________________
____________________________
Signature(s)
Signature(s) must be guaranteed by an
"ELIGIBLE GUARANTOR INSTITUTION" meeting
the requirements of the Note Registrar,
which requirements include membership or
participation in the Security Transfer
Agent Medallion Program ("STAMP") or such
other "SIGNATURE GUARANTEE PROGRAM" as
may be determined by the Note Registrar
in addition to, or in substitution for,
STAMP, al in accordance
with the Securities Exchange Act of 1934,
as amended.
____________________________
Signature Guarantee
NOTICE: The signature on the Conversion Notice, the Option to Elect Redemption
Upon a Designated Event, or the Assignment must correspond with the name as
written upon the face of the Note in every particular without alteration or
enlargement or any change whatever.
Schedule I
ATHEROGENICS, INC.
4 1/2% Convertible Note Due 2008
No. 1
Authorized Signature
Notation Explaining Principal of Trustee or
Date Principal Amount Amount Recorded Custodian
- ---- ---------------- ----------------------------- --------------------
August 19, 2003 $100,000,000 Original issue
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