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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
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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
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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
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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
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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
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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 pr
