EXHIBIT 10.21
PROMISSORY NOTE AND STOCK PLEDGE AGREEMENT
$123,116 As of April 15, 2002
Alpharetta, Georgia
Pursuant to the Truth-in-Lending Act, 15 U.S.C. 1601 et seq.
and applicable regulations, 12 CFR 226, 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 The dollar amount The amount of
Initial Loan the Initial Loan Initial Loan
Principal as a Principal will Principal provided
yearly rate. cost you. to you or on
your behalf.
2.88% $10,946.51 $123,116
FOR VALUE RECEIVED, you (the undersigned Mark P. Colonnese),
a resident of the state of Georgia hereby promise to pay us the
principal amount of ONE HUNDRED TWENTY-THREE THOUSAND ONE HUNDRED
AND SIXTEEN DOLLARS ($123,116.00), 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 2.88% 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 obli-
gations 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 22,500 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 AG590 (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 or 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. Limitation on Sale of Stock. You agree that after
satisfaction of your Obligations, you will not sell, transfer or
assign the shares of stock represented by the Certificate unless:
(I) the shares are sold for an amount equal to or greater
than eight (8) dollars per share; or
(II) until after March 31, 2003
7. 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. With respect to 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.
8. 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.
9. 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 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.
10. Severability. The unenforceability or invalidity of any
provision of this Agreement shall not affect the enforceability
or validity of any other provision herein.
11. 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/MARK P. COLONNESE
Mark P. Colonnese
Attest:/s/CHARLES A. DEIGNAN
"US"
AtheroGenics, Inc.
/s/RUSSELL M. MEDFORD
A duly authorized officer
Name: Russell M. Medford
Attest:/s/LISA A. VALENTE
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 _____ 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. ________ (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/ MARK P. COLONNESE
Mark P. Colonnese